Steve Whitt v. Commonwealth of Virginia
739 S.E.2d 254
Va. Ct. App.2013Background
- Whitt was convicted of two counts of attempted capital murder of a law enforcement officer.
- Whitt filed a petition for appeal with a single, vague assignment of error asserting insufficiency of the evidence.
- Commonwealth moved to dismiss for inadequate assignment; Whitt sought leave to amend to a more specific assignment.
- The Court initially granted relief and then en banc considered whether amendment is permissible and whether active jurisdiction exists.
- Rule 5A:12(c)(1)(ii) requires a precise assignment; the panel adopted amendment to address sufficiency of intent and overt action.
- Whitt’s amended merits argument contends the evidence supports intent and an overt act beyond mere preparation; standard of review is as stated by Virginia cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether amendment of a defective assignment is permissible | Whitt | Commonwealth | Yes, amendable under common law power and Rule 5A:12 |
| Whether amendment complies with Rule 5A:12(c)(1) and does not broaden the issue | Whitt | Commonwealth | Amendment permitted; does not broaden the original issue |
| Whether the evidence is sufficient to prove intent and an overt act | Whitt | Commonwealth | Evidence sufficient to show intent and overt act; conviction affirmed |
| What is the court’s approach to active jurisdiction post-amendment | Whitt | Commonwealth | Court retains active jurisdiction to address merits after permissible amendment |
Key Cases Cited
- Worley v. Mathieson Alkali Works, 119 Va. 862 (Va. 1916) (petition is a pleading; amendable pleadings)
- National Mechanics’ Bank v. Schmelz National Bank, 136 Va. 33 (Va. 1923) (assignment of errors akin to pleadings)
- First National Bank of Richmond v. Trigg Co., 106 Va. 327 (Va. 1907) (assignment of errors functions as pleading)
- Davis v. Commonwealth, 282 Va. 339 (Va. 2011) (defective assignments and active jurisdiction discussed (per curiam))
- Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279 (Va. 2002) (notice of appeal invalid if not signed; distinguishes amendable defects)
- Hamilton Dev. Co. v. Broad Rock Club, Inc., 248 Va. 40 (Va. 1994) (rewording assignment limited to not enlarging the issue)