Dale Smith, a/k/a Dale C. Smith, Jr. v. Commonwealth of Virginia
1097154
| Va. Ct. App. | Nov 15, 2016Background
- In June 2014 Smith was sentenced for grand larceny to five years, with 4.5 years suspended, and five years’ supervised probation.
- On April 13, 2015 the court imposed the previously suspended sentence after Smith pleaded guilty to violating probation; Smith filed a notice of appeal on April 16, 2015.
- Defense counsel filed a motion to withdraw as counsel (Apr. 17) and Smith filed a motion to withdraw his guilty plea (Apr. 28), both within 21 days of the April 13 order.
- The trial court on May 4 suspended execution of the sentencing order (tolled Rule 1:1) and scheduled a hearing, but on June 9 ruled it lacked jurisdiction because the notice of appeal had been filed earlier.
- The Court of Appeals reversed, holding the trial court retained 21-day jurisdiction to consider motions to withdraw a plea or withdraw counsel despite a notice of appeal, and remanded for a hearing.
Issues
| Issue | Smith's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether filing a notice of appeal divested the trial court of jurisdiction to hear a motion to withdraw a guilty plea (filed within 21 days) | A notice of appeal does not deprive the trial court of its 21-day statutory/Rule 1:1 jurisdiction to consider a motion to withdraw a plea | The notice of appeal divested the trial court of jurisdiction to hear the motion | Court held trial court erred: filing a notice of appeal did not divest the trial court of its 21-day jurisdiction to hear the motion (remanded for hearing) |
Key Cases Cited
- Brown v. Commonwealth, 57 Va. App. 381 (Va. Ct. App. 2010) (standard of review: deference to trial court fact findings; legal questions reviewed de novo)
- Sink v. Commonwealth, 28 Va. App. 655 (Va. Ct. App. 1998) (appellate review standard cited)
- Correll v. Commonwealth, 42 Va. App. 311 (Va. Ct. App. 2004) (arguments must be raised with specificity at trial to be preserved on appeal)
- Granado v. Commonwealth, 790 S.E.2d 233 (Va. 2016) (trial court may retain limited jurisdiction to make certain post-judgment corrections despite an appeal)