Belew v. Com.
284 Va. 173
Va.2012Background
- Belew was convicted in Albemarle County Circuit Court of felony failure to stop at the scene of an accident; judgment May 25, 2010, sentence five years with 90 days to serve.
- Belew timely filed a notice of appeal; transcripts filed July 12, 2010 for March 17 and May 25, 2010, but March 3, 2010 transcript was omitted.
- The Missing Transcript (March 3, 2010) was discovered omitted on September 16, 2010; the transcript was prepared and filed September 22, 2010.
- Belew moved under Code § 8.01-428(B) to make the Missing Transcript part of the record; circuit court granted the correction on September 24, 2010 and ordered transmission to the Court of Appeals via Rule 5A:9.
- The Court of Appeals denied relief, noting the Missing Transcript was not filed within Rule 5A:8(a)’s 60-day deadline; Belew sought review by the Supreme Court of Virginia.
- The Supreme Court held that the circuit court had authority to correct under § 8.01-428(B) and Rule 5A:9, and that 5A:8(a)’s deadline did not apply to this corrective action; reversing the Court of Appeals and remanding for merits review with the Missing Transcript included.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether circuit court correction under § 8.01-428(B) validly included Missing Transcript | Belew: correction authorized by statute and Rule 5A:9; transcript becomes part of record. | Commonwealth: correction cannot supplement a deficient record; unsigned by timely filing. | Yes; circuit court had authority to correct and include Missing Transcript. |
| Whether Rule 5A:8(a) deadline governs inclusion of Missing Transcript | Belew: § 8.01-428(B) overrides Rule 5A:8(a) for clerical corrections. | Commonwealth: 5A:8(a) governs timing; omission not corrected under § 8.01-428(B). | No; correction supersedes 5A:8(a) here; Missing Transcript considered. |
| Whether Belew’s failure to timely notice the omission bars review | Belew relied on clerical error; not abandonment of appeal. | Missed transcript should have been noticed and extended under Rule 5A:8(a). | Court reversed and remanded; omitted transcript to be reviewed on merits. |
Key Cases Cited
- Lamb v. Commonwealth, 222 Va. 161 (1981) (clerical corrections may cover oversights; docketing concept discussed)
- Cutshaw v. Cutshaw, 220 Va. 638 (1979) (ministerial omissions may be corrected; nunc pro tunc concept discussed)
- Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279 (2002) (limits on applying § 8.01-428(B) to Rule-of-Court failures)
- LaCava v. Commonwealth, 283 Va. 465 (2012) (statutory extensions for timing matters; plain language of Rule 5A:8(a))
- Morgan v. Russrand Triangle Assocs., L.L.C., 270 Va. 21 (2005) (affirmative acts of counsel not protected by § 8.01-428(B)")
- White v. Morano, 249 Va. 27 (1995) (appellant’s duty to provide adequate record; noncompliance affects review)