700 S.E.2d 475
Va. Ct. App.2010Background
- Harris pleaded guilty to credit card theft and the trial court imposed a five-year sentence with four years suspended for five years; a prior five-year embezzlement sentence was revoked and four years re-suspended for five years, yielding a two-year cumulative term.
- On June 10 and June 25, 2009, Harris filed notices of appeal to the Court of Appeals for the embezzlement and credit card theft cases, respectively.
- On August 18, 2009, Harris moved in the trial court for reconsideration of the sentences on the basis of eligibility for an in-house treatment program and custody status.
- On November 10, 2009, the Commonwealth moved to dismiss for lack of jurisdiction, and Harris’s counsel opposed the motion; Harris remained in local jail at that time.
- On December 4, 2009, the trial court dismissed the motion for lack of jurisdiction; on December 30, 2009, this Court denied Harris’s petitions for appeal; Harris timely appealed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had jurisdiction to hear a motion for reconsideration under Code § 19.2-303. | Harris—has not been transferred to DOC, so §19.2-303 preserves jurisdiction. | Court lacked jurisdiction once appeals were taken to this Court. | Circuit court retained jurisdiction under §19.2-303; reversal and remand. |
| Whether Harris’s custody status affected the §19.2-303 jurisdictional analysis. | Harris remained in local jail, not in DOC custody. | Custody status unclear; appellant has burden to prove jurisdiction. | Record supports lack of transfer to DOC; jurisdiction exists for hearing. |
| Whether the trial court’s ruling on lack of jurisdiction was harmless error. | Had the court entertained the motion, modification could have been warranted. | No evidence on merits was presented; cannot assess potential modification. | Harmless error; remand for merits consideration. |
Key Cases Cited
- D'Alessandro v. Commonwealth, 15 Va.App. 163, 423 S.E.2d 202 (1992) (Code §19.2-303 relief when not yet transferred to DOC)
- Ziats v. Commonwealth, 42 Va.App. 133, 590 S.E.2d 117 (2003) (custody status governs jurisdiction to modify under §19.2-303)
- Stamper v. Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985) (remand for modification under §19.2-303 despite pending appeals)
- Wilson v. Commonwealth, 54 Va.App. 631, 681 S.E.2d 74 (2009) (Rule 1:1 and §19.2-303 interplay on post-judgment modification)
- Whittaker v. Commonwealth, 217 Va. 966, 234 S.E.2d 79 (1977) (proffered facts may support jurisdictional rulings)
- Bloom v. Commonwealth, 262 Va. 814, 554 S.E.2d 84 (2001) (use of unchallenged proffers to determine facts)