Commonwealth of Virginia v. Luther George Berry, III, 1350172

Background

On April 24, 2015, Berry (passenger) was in a vehicle stopped for a cracked windshield; officers removed and searched him and found suspected cocaine. He was indicted for possession with intent to distribute.
Berry filed two motions to suppress alleging the stop and search were unlawful; at the May 24, 2017 suppression hearing he limited the challenge to the validity of the traffic stop.
The circuit court found the stop unlawful, granted the motion to suppress, and (by order entered June 8, 2017) also dismissed the charge, although Berry had not requested dismissal.
The Commonwealth filed a timely notice of appeal (June 14, 2017) from the June 8 order and simultaneously moved in circuit court to modify the order to delete the dismissal language; Berry’s suppression ruling remained intact.
The circuit court vacated the dismissal language by order entered August 3, 2017 (confirming the suppression ruling). The Commonwealth’s earlier appeal of the June 8 order was dismissed by this Court for failure to timely file a petition for appeal.
The Court of Appeals held that the Commonwealth had only one statutory pretrial appeal of the suppression ruling and, having abandoned its timely appeal of the June 8 order, the Commonwealth’s appeal from the August 3 order was not properly before the court; the appeal was dismissed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the circuit court had authority to enter the Aug. 3, 2017 order vacating dismissal language	Commonwealth: court could reconsider and correct the June 8 order	Berry: (implicitly) June 8 order was final and untouchable after Rule 1:1 period	Court: circuit court had authority because Commonwealth’s timely notice of appeal tolled Rule 1:1 under Code § 19.2-400, and the court could rule on motion to reconsider
Whether the Commonwealth may appeal the Aug. 3, 2017 order suppressing evidence	Commonwealth: Aug. 3 order granting suppression is appealable under Code § 19.2-398(A)(2)	Berry: Commonwealth already appealed the suppression ruling (June 8 order); may not get a second appeal	Court: Commonwealth is limited to one pretrial appeal of a suppression ruling; its timely appeal from June 8 was its sole appeal, so the Aug. 3 appeal is improper
Effect of filing notice of appeal on Rule 1:1 time period	Commonwealth: notice of appeal suspends the order and tolls Rule 1:1 under Code § 19.2-400	Berry: (implicit) Rule 1:1 had run making June 8 final absent timely reconsideration	Court: notice of appeal did suspend/toll Rule 1:1; circuit court retained jurisdiction to consider the motion to modify
Whether the Commonwealth can abandon an initial appeal and file a new one after circuit court modification	Commonwealth: its later appeal should be allowed from the modified order	Berry: abandoning initial appeal foreclosed a later appeal on same suppression ruling	Court: abandonment of the first appeal (failure to prosecute) exhausted the Commonwealth’s single statutory right to appeal that suppression ruling; second appeal dismissed

Key Cases Cited

Minor v. Commonwealth, 66 Va. App. 728, 791 S.E.2d 757 (Va. Ct. App. 2016) (absence of a valid underlying order leaves nothing to review)
Wilson v. Commonwealth, 67 Va. App. 82, 793 S.E.2d 15 (Va. Ct. App. 2016) (a court speaks through its orders)
Daniels v. Truck & Equip. Corp., 205 Va. 579, 139 S.E.2d 31 (Va. 1964) (definition of a final order)
West v. Commonwealth, 16 Va. App. 679, 432 S.E.2d 730 (Va. Ct. App. 1993) (Code § 19.2-400 does not preclude circuit court from reconsidering an order while appeal pending)
Sch. Bd. v. Caudill Rowlett Scott, Inc., 237 Va. 550, 379 S.E.2d 319 (Va. 1989) (post-judgment motions do not toll Rule 1:1)
Prekker v. Commonwealth, 66 Va. App. 103, 782 S.E.2d 604 (Va. Ct. App. 2016) (interpanel accord doctrine)
Cuccinelli v. Rector & Visitors of the Univ. of Virginia, 283 Va. 420, 722 S.E.2d 626 (Va. 2012) (statutory construction—ascertain legislative intent)
Commonwealth v. Hawkins, 10 Va. App. 41, 390 S.E.2d 3 (Va. Ct. App. 1990) (Commonwealth’s right to pretrial appeal is in derogation of general rule; must be strictly construed)
Otey v. Commonwealth, 61 Va. App. 346, 735 S.E.2d 255 (Va. Ct. App. 2012) (unpublished opinions may be cited for persuasive value)