Tharp v. Com.
| Decision Date | 15 June 1970 |
| Citation | 175 S.E.2d 277,211 Va. 1 |
| Parties | Richard Terry THARP, Alias, etc. v. COMMONWEALTH of Virginia. Richard Terry THARD, Alias, etc. v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
Ronald J. Berg, Norfolk, for plaintiff in error.
William P. Bagwell, Jr., Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on the brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMAN, JJ.
On August 26, 1968, defendant Richard Terry Tharp was convicted on each of three indictments for felonies. On the same day, the trial court entered a conviction order on all indictments, but on motion of Tharp's retained counsel, Ronald J. Berg, Esquire, suspended execution of the order for a period of sixty days to give Tharp an opportunity to apply to this Court for writs of error. Nothing was done until November 1, 1968, when Tharp filed an affidavit of poverty and the court appointed Berg as his counsel to perfect appeals, to this Court.
Counsel presented a petition for a writ of error to a Justice of this Court on February 17, 1969, more than four months after the date of the conviction order appealed from. On April 29, 1969, we awarded Tharp writs of error to the order on all indictments.
The applicable statute provides, 'No petition shall be presented for an appeal from, or writ of error or supersedeas to, any final judgment * * * which shall have been rendered more than four months before the petition is presented'. Code of Virginia, § 8--463. And our Rule 5:4 provides, 'The petition for appeal and the record shall be filed with the clerk of this court * * * or presented to a Justice within the time allowed by statute for presenting a petition for appeal'.
The time limit fixed by Code § 8--463 is jurisdictional. Cousins v. Commonwealth, 187 Va. 506, 47 S.E.2d 391 (1948). The writs of error awarded Tharp by this Court therefore were improvidently awarded and will be dismissed.
It is true that during the past several years we have granted requests for extensions of time for filing petitions for writs of error in criminal cases and habeas corpus proceedings. In fact, we have granted such requests liberally in the interest of insuring that defendants' rights to appeal would not be abridged by counsel's failure to file petitions within the time required by statute.
Our practice of granting extensions has led to abuse. Anticipating our indulgence, certain members of the bar...
To continue reading
Request your trial
-
Cooey v. Anderson
...must first file a notice of the appeal within 30 days of the judgment. Nevertheless, pursuant to its holding in Tharp v. Commonwealth, 211 Va. 1, 175 S.E.2d 277 (1970), the Court considered whether a denial of the "extension would abridge a constitutional right." Coleman, 501 U.S. at 741, 1......
-
Coleman v. Thompson
...because the Virginia court relied on an independent state procedural ground. Moreover, it is clear that the rule of Tharp v. Commonwealth, 211 Va. 1, 3, 175 S.E.2d 277, 278—in which the Virginia court announced that it would no longer allow extensions of time for filing petitions for writs ......
-
Wise v. Williams
...at 130-33. The five Virginia cases relied upon by Wise are not to the contrary. See Appellant's Br. at 34-35 (citing Tharp v. Commonwealth, 211 Va. 1, 175 S.E.2d 277 (1970); O'Brien v. Socony Mobil Oil Co., 207 Va. 707, 152 S.E.2d 278 (1967), cert. denied, 389 U.S. 825, 88 S.Ct. 65, 19 L.Ed......
-
Watkins v. Fairfax County
...within four months following final judgment. Code 8-463 [now Code § 8.01-671]. That rule is jurisdictional. Tharp v. Commonwealth, 211 Va. 1, 175 S.E.2d 277 (1970). As to Carolyn F. Vaughn, individually, appellants failed to comply with those rules. Carolyn F. Vaughn, administratrix, is not......