Virginia Dept. of Corrections v. Crowley

• Decision Date: 27 April 1984
• Docket Number: 820086,820085,Nos. 820084,s. 820084
• Citation: 316 S.E.2d 439,227 Va. 254
• Parties: VIRGINIA DEPARTMENT OF CORRECTIONS, et al. v. Daniel Curry CROWLEY. VIRGINIA DEPARTMENT OF CORRECTIONS, et al. v. David Steeves TAYLOR. VIRGINIA DEPARTMENT OF CORRECTIONS, et al. v. Larry Noel SHERMAN. Record
• Court: Virginia Supreme Court

Page 439

316 S.E.2d 439

227 Va. 254

VIRGINIA DEPARTMENT OF CORRECTIONS, et al. v. Daniel Curry CROWLEY.

VIRGINIA DEPARTMENT OF CORRECTIONS, et al. v. David Steeves TAYLOR.

VIRGINIA DEPARTMENT OF CORRECTIONS, et al. v. Larry Noel SHERMAN.

Record Nos. 820084, 820085, 820086.

Supreme Court of Virginia.

April 27, 1984.

James E. Kulp, Sr. Asst. Atty. Gen., Jerry P. Slonaker, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellant.

Robert G. Cabell, Jr., Richmond (C. Michael DeCamps, Cabell, Paris, Lowenstein & Bareford, Richmond, on brief), for appellee Crowley.

Ralph B. Robertson, Richmond, for appellee Taylor.

Edward L. Hogshire, Charlotteville (Bailes, Buck, Hogshire & Gouldman, Ltd., Charlotteville, on brief), for appellee Sherman.

Present: All the Justices.

POFF, Justice.

As posited by appellants Commonwealth of Virginia and Department of Corrections (collectively, the Commonwealth), the question common to three cases consolidated for appeal is: "Should an order entered by a circuit court after its jurisdiction has been extinguished be vacated and set aside?"

Appellees Daniel Curry Crowley, David Steeves Taylor, and Larry Noel Sherman were three of five defendants convicted on guilty pleas (entered in separate trials) of felonies involving possession of LSD and possession of 13,402 pounds of marijuana with intent to distribute. In each case, the defendant filed a motion to modify or suspend the penalty imposed and the judgment entered against him. In separate orders, each endorsed "Seen" by the Commonwealth's Attorney, the trial judge noted that the defendants had not yet been transferred from the county jail to the penitentiary, declared that he was not prepared to rule, and took the motions under advisement. All five orders were entered before expiration of the 21-day period prescribed in Rule 1:1.

Following expiration of that period and after the five felons had been transferred to the penal system and had served a portion of their sentences, Crowley, Taylor, and Sherman moved the trial court to rule upon their previous motions. The trial judge granted the several motions and entered orders releasing the appellees from custody, suspending the remainder of the terms imposed, and placing each on probation under the supervision of the Parole Board. The Commonwealth's Attorney endorsed each release order "Seen and Agreed to". The trial judge took no action on the motions filed by the other two felons, Douglas Bogue and William Syfrett.

At this point, the Department of Corrections filed a petition in this Court seeking a writ of prohibition to prohibit enforcement of the orders releasing Crowley, Taylor, and Sherman and to prohibit the trial court from entering such orders respecting Bogue and Syfrett. All five defendants intervened and filed briefs amicus curiae and motions to dismiss. Bogue and Syfrett argued that the orders taking their motions under advisement had tolled the 21-day limitation in Rule 1:1; that the sentencing orders remained interlocutory; and that in such case Code § 53-272 (now §§ 53.1-151, -186) should be construed to permit a trial court to retain jurisdiction over the sentence even after the defendant has been transferred to the penitentiary. Rejecting the tolling argument and construing the rule and statute together, we said:

Code § 53-272 authorizes the trial court, where a defendant convicted of a felony has been sentenced but not actually committed and delivered to the penitentiary, to suspend or modify the unserved portion of his sentence, or place the defendant on probation. Thus, reading Rule 1:1 and Code § 53-272 together, we conclude that after the expiration of 21 days from the sentencing order if the prisoner has been committed and delivered to the penitentiary and no order had been entered within 21 days after final judgment suspending the sentence, the trial court has no further authority to suspend the sentence.

In re: Dept. of Corrections, 222 Va. 454, 463, 281 S.E.2d 857, 862 (1981) (hereinafter cited "Corrections" or referenced "the prohibition proceeding").

Based upon this holding, we awarded the Department a writ prohibiting the trial court from suspending the sentences of Bogue and Syfrett. With reference to the other three defendants, we held that the writ could not be used to prohibit enforcement of the release and suspension orders.

We can not pass upon the validity of the orders under which Sherman, Crowley and Taylor were released from custody. The Attorney General has misconstrued the function of the writ of prohibition, which is not available to undo errors that may have been committed in ordering the release of these defendants....

....

... In each case, the release is an accomplished fact; thus, the time for challenging such releases in a petition for a writ of prohibition has passed. So long as these defendants continue to comply with the terms of their probation, the orders of the trial court are final and conclusive. The only portions of the release orders that remain executory are the requirements for continuing supervisory probation.... [T]he effect of prohibiting enforcement of the unexecuted provisions would be to leave the defendants free from the constraints of probation, a result that unquestionably would be contrary to the public interest.

Corrections at 461, 281 S.E.2d at 861.

Four days after the date of our opinion in that case, the Commonwealth filed motions in the trial court to vacate the orders releasing Crowley, Taylor, and Sherman from custody. Citing "reasons stated in defendant's pleading, and the decision of the Supreme Court of Virginia in the recent case", the trial court entered orders in all three cases dismissing the motion to vacate.

One of the "reasons stated in defendant's pleading" and restated on appeal was that the Commonwealth's motions were time-barred under Rule 1:1. ¹ The appellees overlook the fact that we have expressly held that "this rule is not a limitation on the power and authority of the court to vacate a void order." Cofer v. Cofer, 205 Va. 834, 837, 140 S.E.2d 663, 665-66 (1965). We reaffirmed that holding in an appeal from an order refusing to vacate a void order in Matthews v. Commonwealth, 216 Va. 358, 359, 218 S.E.2d 538, 540 (1975). This brings us to the crucial question whether the orders releasing the appellees and suspending their sentences were void.

Those orders were not entered until after the 21-day limitation fixed in Rule 1:1 had expired and the prisoners had been transferred to the penitentiary. And "by taking the motions to set aside [the judgments] under advisement the trial court did not 'modify, vacate, or suspend' the judgments" so as to toll the period of limitation. Corrections at 464, 281 S.E.2d at 863. "As no order modifying, vacating, or suspending the [judgment] order was entered within the prescribed period of 21 days, the court lost jurisdiction over the action upon the expiration of that time." Prohm v. Anderson, 220 Va. 74, 77, 255 S.E.2d 491, 493 (1979). Applying these principles in our opinion in the prohibition proceeding, we held that "the trial court ha[d] no further authority to suspend the sentence." Corrections at 463, 281 S.E.2d at 862.

The appellees insist that this holding applied only to Bogue and Syfrett and not to them, that the orders entered in their cases were declared to be "final and conclusive", and, consequently, that the question whether their orders were valid or void is foreclosed by "the basic precepts of res judicata, collateral estoppel and stare decisis". We disagree.

The appellees argued at bar that if the Attorney General wanted to relitigate the jurisdictional issue in their cases, he could have and should have done so by petitioning this Court for a writ of mandamus. That argument tacitly recognizes that our opinion in the prohibition proceeding was not a final adjudication of the validity of the release orders. The import and effect of our holding that those orders were "final and conclusive" must be understood in the context in which it was rendered. As we said, "[w]e can not pass upon the validity of the orders" because "[t]he Attorney General has misconstrued the function of the writ of prohibition, which is not available to undo errors that may have been committed in ordering the release of these defendants." Corrections at 461, 281 S.E.2d at 861. Thus, we restricted the basis of our holding to the procedural error committed by the Attorney General. Since we specifically refrained from making a merits determination as to the validity of the release orders, the jurisdictional issue remained an open question.

The Attorney General promptly submitted that question for a merits determination to the trial court. He did so by filing a motion to vacate the release orders on the ground they were void for want of jurisdiction. ² Since that procedure was an "adequate legal remedy", a writ of mandamus could not issue. Board of Supervisors v. Combs, 160 Va. 487, 498, 169 S.E. 589, 593 (1933). Want of subject-matter jurisdiction may be raised by motion. Thacker v. Hubard, 122 Va. 379, 386, 94 S.E. 929, 930 (1918); accord Nolde Bros. v. Chalkley, 184 Va. 553, 561, 35 S.E.2d 827, 830 (1945), aff'd on other grounds sub nom. Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946). Proceeding by motion is also a proper way to challenge jurisdiction over the person, even when the motion is made in a different case pending before a different court, and "[i]t is immaterial that the order was not attacked by direct appeal or by a bill in equity." Slaughter v. Commonwealth, 222 Va. 787, 793, 284 S.E.2d 824, 827 (1981).

In the orders underlying these appeals, the trial court dismissed the Commonwealth's motions on the ground "the Court finds the Motion to Vacate to be without merit". Now, for the first time, the jurisdictional question adjudicated in those orders is procedurally ripe for appellate review on the merits....