837 S.E.2d 60
Va. Ct. App.2020Background
- Linda Kaye Nelson was convicted in a bench trial of felony embezzlement (verdict 9/29/2017; conviction order 10/3/2017).
- Before sentencing, Nelson’s counsel filed post-conviction motions for a new trial (arguing hearsay exclusion and a Brady violation).
- The Commonwealth responded that the trial court lacked jurisdiction under Va. Sup. Ct. Rule 1:1 (21-day control period); Nelson’s counsel conceded lack of jurisdiction at the trial level.
- The trial court denied the motions based on the parties’ concessions; Nelson was later sentenced (final order dated 12/6/2018).
- On appeal, the Court of Appeals held the October 3 order was not final for Rule 1:1 purposes (because sentencing had not occurred), but refused to consider the merits because Nelson had approbated and reprobated by conceding lack of jurisdiction below; the hearsay claim was unpreserved because Nelson withdrew the question at trial.
- The conviction was affirmed; the case was remanded only to correct a clerical date error in the sentencing order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court lacked jurisdiction under Rule 1:1 to entertain post-conviction motions after the October 3 conviction order | Nelson: October 3 conviction order was final; trial court erred in denying motions for lack of jurisdiction | Commonwealth: Rule 1:1 barred relief because more than 21 days had elapsed after entry of the final order | Court: October 3 order was not final (sentencing remained); trial court erred in concluding it lacked jurisdiction |
| Whether Nelson may obtain relief on appeal despite her counsel’s concession below (approbate and reprobate) | Nelson: Trial court erred and appellate court should review merits | Commonwealth: Nelson agreed below she lacked jurisdiction; she cannot now take a contrary position | Court: Approbate and reprobate doctrine bars Nelson from reversing the position her counsel took below; merits not reached |
| Whether the "ends of justice" exception (Rule 5A:18) allows review despite procedural bars | Nelson: Exception should apply to reach meritorious claims | Commonwealth: Doctrine of approbation/reprobation precludes the exception | Court: Ends-of-justice exception does not overcome approbate/reprobate; exception inapplicable |
| Whether the trial court abused discretion by sustaining Commonwealth hearsay objection | Nelson: Trial court misapplied hearsay rule and excluded exculpatory statements | Commonwealth: Counsel withdrew the question; no ruling preserved | Court: Claim unpreserved because defense counsel withdrew question before a ruling; appellate review denied |
Key Cases Cited
- Lewis v. Commonwealth, 295 Va. 454 (2018) (Rule 1:1 control period runs from entry of final judgment; sentencing is final judgment)
- Burrell v. Commonwealth, 283 Va. 474 (2012) (sentencing order treated as final judgment in criminal case)
- Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119 (1999) (en banc) (standard of review for finality is de novo)
- Rowe v. Commonwealth, 277 Va. 495 (2009) (approbate and reprobate doctrine precludes inconsistent litigation positions)
- Cangiano v. LSH Bldg. Co., 271 Va. 171 (2006) (explaining limits on taking inconsistent positions)
- Alford v. Commonwealth, 56 Va. App. 706 (2010) (ends-of-justice exception does not override approbate-reprobate)
- Lenz v. Commonwealth, 261 Va. 451 (2001) (errors not preserved where counsel withdraws question and then assigns error on appeal)
- Neal v. Commonwealth, 15 Va. App. 416 (1992) (preservation rule requires alerting trial judge to possible error so corrective action is possible)