IN RE: COMMONWEALTH OF VIRGINIA
Record Nos. 080282 and 080283
Supreme Court of Virginia
June 4, 2009
CHIEF JUSTICE LEROY R. HASSELL, SR.
Present: All the Justices
UPON PETITIONS FOR A WRIT OF MANDAMUS AND A WRIT OF PROHIBITION1
I.
In this proceeding, which invokes this Court‘s original jurisdiction, we consider whether a writ of mandamus or a writ of prohibition lies to compel a circuit court, that had entered a final judgment in a capital murder proceeding, to vacate that judgment and conduct a hearing to determine whether a criminal defendant was mentally retarded when he robbed and murdered the victim.
II.
The underlying capital murder litigation that is the subject of this proceeding has a very long history that we will briefly summarize. In 1998, Daryl Renard Atkins was convicted in a jury trial of the capital murder of Eric Michael Nesbitt. Atkins was sentenced to death. This Court affirmed Atkins’ conviction for capital murder but vacated the
Upon remand, at the conclusion of a new penalty proceeding, a different jury fixed Atkins’ punishment at death. The circuit court imposed the death penalty in accordance with the jury verdict and this Court affirmed the conviction. Atkins v. Commonwealth, 260 Va. 375, 390, 534 S.E.2d 312, 321 (2000) (Hassell & Koontz, JJ., dissenting).
The Supreme Court held in Atkins v. Virginia, 536 U.S. 304, 321 (2002) that the Eighth Amendment to the
Upon remand, a jury found that Atkins is not mentally retarded and the circuit court reinstated Atkins’ sentence of death. On appeal, however, this Court reversed that judgment because error occurred during the proceeding to determine whether Atkins was mentally retarded. Atkins v. Commonwealth, 272 Va. 144, 161, 631 S.E.2d 93, 102 (2006).
The circuit court conducted an evidentiary hearing on Atkins’ motions to disqualify the Commonwealth‘s Attorney and to vacate the sentence of death. The motions claimed exculpatory evidence violations occurred under the rule of
During the sixteen-minute interval that was not recorded, the Commonwealth‘s Attorney, law enforcement officers, and Jones “acted out” the events related to the murder of Nesbitt. Jones’ initial version of the facts changed after the rehearsed and coached unrecorded reenactment of the murder.
The circuit court found that the Commonwealth‘s Attorney had “coached” Jones after the Commonwealth‘s Attorney realized that Jones’ initial version of the facts regarding the capital murder would be “problematic” to the Commonwealth. The
The circuit court stated in its final judgment order that:
“[T]he Office of the Commonwealth Attorney for York County and the City of Poquoson improperly suppressed exculpatory evidence from the August 6, 1997 interview of William Jones, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that the suppressed information probably would have affected the outcome of Daryl Atkins’ trial had it been revealed to Atkins’ counsel in 1998.”
At the conclusion of the two-day evidentiary hearing, the circuit court set aside Atkins’ sentence of death and imposed a sentence of life imprisonment without the possibility of parole “based on the newly discovered evidence of a Brady violation.”2
III.
A.
The Commonwealth asserts that mandamus is an appropriate remedy that the Commonwealth may utilize to compel Judge Shaw to vacate the circuit court‘s judgment, dated January 24, 2008, that set aside Atkins’ sentence of death and sentenced
The writ of mandamus is an extraordinary remedy and for that reason this Court has carefully scrutinized and imposed limitatiоns upon the use of this writ. This Court has consistently stated the following pertinent principles:
“A writ of mandamus is an extraordinary remedial process, which is not awarded as a matter of right but in the exercise of a sound judicial discretion. Due to the drastic character of the writ, the law has placed safeguards around it. Consideration should be had for the urgency which prompts an exercise of the discretion, the interests of the public and third persons, the results which would follow upon a refusal of the writ, as well as the promotion of substantial justice. In doubtful cases the writ will be denied, but [when] the right involved and the duty sought to be enforced are clear and certain and [when] there is no other available specific and adequate remedy the writ will issue.”
Gannon v. State Corp. Commission, 243 Va. 480, 482, 416 S.E.2d 446, 447 (1992) (quoting Richmond-Greyhound Lines v. Davis, 200 Va. 147, 151-52, 104 S.E.2d 813, 816 (1958)); accord Umstattd v. Centex Homes, 274 Va. 541, 545-46, 650 S.E.2d 527, 530 (2007); Hertz v. Times-World Corporation, 259 Va. 599, 607-08, 528 S.E.2d 458, 462-63 (2000); Williams v. Matthews, 248 Va. 277, 281, 448 S.E.2d 625, 627 (1994); Railroad Company v. Fugate, 206 Va. 159, 162, 142 S.E.2d 546, 548-49 (1965).
We stated, over 130 years ago, that:
Bowman v. Commonwealth, 248 Va. 130, 135, 445 S.E.2d 110, 112-
“In relation to courts and judicial officers, [mandamus] cannot be made to perform the functions of a writ of error or appeal, or other legal proceeding to review or correct errors, or to anticipate and forestall judicial action. It may be appropriately used and is often used to compel courts to act [when] they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel courts to hear and decide where they have jurisdiction, but not to pre-determine the decision to be made; to require them to proceed to judgment, but not to fix and prescribe the judgment to be rendered.”
Page v. Clopton, 71 Va. (30 Gratt.) 415, 418 (1878).
This Court also stated, over a century ago, that: “It is also well settled that mandamus does not lie to compel an officer to undo what he has done in the exercise of his judgment and discretion, and to do what he had already determined ought not to be dоne.” Thurston v. Hudgins, 93 Va. 780, 784, 20 S.E. 966, 968 (1895). We acknowledged this important precept in Board of Supervisors v. Combs, 160 Va. 487, 498, 169 S.E. 589, 593 (1933) and observed:
“Mandamus is prospective merely . . . . It is not a preventive remedy; its purpose and object is to command performance, not desistance, and is a compulsory as distinguished from a revisory writ; it lies to compel, not to revise or correct action, however erroneous it may have been, and is not like a writ of error or appeal, a remedy for erroneous decisions.”
160 Va. at 498, 169 S.E.2d at 593; see also Harrison v. Barksdale, 127 Va. 180, 188-89, 102 S.E. 789, 792 (1920). We restated this elemental precept in Richlands Medical Ass‘n v.
13 (1994).
Commonwealth, 230 Va. 384, 387, 337 S.E.2d 737, 740 (1985):
“[M]andamus is applied prospectively only; it will not be granted to undo an act already done.”
We recently repeated this principle when we stated in In re: Commonwealth‘s Attorney, 265 Va. 313, 319 n.4, 576 S.E.2d 458, 462 n.4 (2003) that “mandamus will [not] lie to undo acts already done.”
Applying this fundamental principle of jurisprudence in the present proceeding, we hold that mandamus does not lie. The circuit court entered a final judgment in Atkins’ capital murder case on January 24, 2008. This final judgment is an act that the circuit court has performed and the Commonwealth seeks to use mandamus as a procedural mechanism to vacate or “undo” the circuit court‘s judgment. We hold that mandamus cannot be used by the Commonwealth or any other litigant to collaterally attack or vacate a final judgment entered by a circuit court upon the conclusion of a criminal proceeding.
B.
The Commonwealth contends that upon the entry of this Court‘s mandate, directing the circuit court to conduct an evidentiary hearing to determine whether Atkins is mentally retarded, the circuit court was required to conduct that hearing but lacked discretion to consider any other legal issues. We disagree with the Commonwealth.
This Court‘s mandate that remanded this proceeding to the circuit court for the mental retardation hearing did not divest the circuit court of its authority and discretion to consider legal issues that the Commonwealth and Atkins raised upon remand. We stated in Powell v. Commonwealth, 267 Va. 107, 128, 590 S.E.2d 537, 550 (2004): “[W]hile the directive of this Court‘s mandate binds the circuit court, that court is not thereby prohibited from acting on matters not constrained by the language of the mandate.” Additionally, the United States Supreme Court has stated: “While a mandate is controlling as to matters within its compass, on remand a lower court is free as to other issues.” Sprague v. Ticonic Nat‘l Bank, 307 U.S. 161, 168 (1939). We hold that a circuit court presiding during a remand of a capital murder proceeding retains authority and discretion to resolve legal issues that the litigants raise. A contrary holding would disrupt and impair the circuit court‘s authority to preside during a remand of a criminal proceeding.
Additionally, the Commonwealth‘s position that a circuit court upon a remand must only consider the issue that is the subject of the remand would prohibit a circuit court from determining legal issues that affect a litigant‘s right to an impartial and fair trial. For example, a defendant would not be allowed to assert during a remand, as Atkins did in his
The Commonwealth further suggests that the circuit court lacked subject matter jurisdiction to consider any issue other than the mental retardation hearing. The Commonwealth‘s argument suffers from a fundamental misunderstanding of the nature of a circuit court‘s subject matter jurisdiction. For example, we have stated:
“Subject matter jurisdiction refers to a court‘s power to adjudicate a class of cases or controversies, and this power must be granted through a constitution or statute. Subject matter jurisdiction cannot be waived or conferred on a court by the litigants and the lack of subject matter jurisdiction may be raised at any time.”
Jenkins v. Director, Va. Ctr. for Behav. Rehab., 271 Va. 4, 13, 624 S.E.2d 453, 458 (2006) (citations omitted); accord Nelson v. Warden, 262 Va. 276, 281, 552 S.E.2d 73, 75 (2001); Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990); Humphreys v. Commonwealth, 186 Va. 765, 772-73, 43 S.E.2d 890, 894 (1947); Farant
Without question, upon remand of Atkins’ criminal proceeding from this Court to the circuit court, that court had subject matter jurisdiction over the entire capital murder case. Subject matter jurisdiction is conferred by statute according to the subject of the case, in this instance capital murder, rather than according to a particular proceeding that may be one part of a capital murder case. See
C.
In the present mandamus proceeding, the Commonwealth asserts that the circuit court was without authority to consider any issue other than whether Atkins is mentally retarded. However, the Commonwealth‘s Attorney specifically asked the circuit court, during the remanded criminal proceeding, to rule on Atkins’ motion to disqualify the Commonwealth‘s Attorney because he allegedly created and procured perjured testimony in Atkins’ original trial. The Commonwealth‘s Attorney stated to the court:
“[T]he Commonwealth adamantly denies these allegations, but the reality is they have been made. They are very serious, and they go to the fitness of counsel. Should the Commonwealth have made similar allegations against defense counsel, it would be an issue of fitness of counsel to proceed, and I believe that‘s where we are, and I believe that the Court should have an evidentiary hearing on these allegations. The Court, I do not believe, has the jurisdiction to grant a new trial because of it, but the Court should, I think, resolve this issue before we proceed with the trial.
The Court: “Well, the resolution - I mean, you made that representation earlier I think to resolve it only to resolve it in favor of the Commonwealth, and I think to invite the Court tо resolve it you have to allow the Court, in an evidentiary proceeding, to go either way with it.
The Commonwealth‘s Attorney: “Absolutely.
The Court: “So -- and with all due respect to the Virginia Supreme Court, they have directed me back to the issue of mental retardation, and by that direction, I mean, that‘s the marching orders of the Court.
The Commonwealth‘s Attorney: “I understand that, Your Honor, but the question remains who are the parties going to be in that trial, and at this point, there is an allegation that‘s been made that clearly implicates fitness of counsel for the Commonwealth to proceed in that trial.”
We will not permit the Commonwealth to ask the circuit court during the remanded hearing on mental retardation to exercise discretion and rule upon other legal issues but, inconsistently, assert in the mandamus proceeding that the circuit court lacked legal authority to do so. The Commonwealth will not be allowed to
D.
We also note that
“After the consideration of the [post-sentence] report, and upon good cause shown, the court may set aside the sentence of death and impose a sentence of imprisonment for life. Notwithstanding any other provision of law, if the court sets aside the sentence of death and imposes a sentence of imprisonment for life, it shall include in the sentencing order an explanation for the reduction in the sentence.”
As we have stated above, the mandate that remanded this proceeding to the circuit court for the mental retardation hearing also “reversed and annulled” the final judgment in Atkins’ capital murder case and the circuit court was required to enter a judgment upon the conclusion of the capital murder proceedings. If we were
E.
We also reject the Commonwealth‘s contention that mandamus lies for yet another reason. The Commonwealth essentially seeks, using the guise of a mandamus proceeding, to appeal the circuit court‘s judgment that imposed upon Atkins the sentence of life imprisonment without parole. Pursuant to
F.
We reject the Commonwealth‘s assertion that this Court‘s decision in In re: Robert F. Horan, Jr., 271 Va. 258, 634 S.E.2d 675 (2006) requires that we grant the petition for writ of mandamus. In Horan, we considered whether a circuit court could enter a pre-trial order that prohibited the Commonwealth from seeking the death penalty in a capital murder proceeding that was pending in that circuit court. We granted the petition for а writ of mandamus on the very narrow basis that pursuant to Virginia‘s capital murder statutory scheme, the circuit court did not have authority to make a sentencing decision when ruling upon a pre-trial motion and, hence, the circuit court‘s action was not within its discretion.
Our decision in Horan is not controlling in this proceeding, which involves a final judgment that has been entered in a criminal proceeding. Our holding in Horan is limited to the unique procedural history in that case, which did not involve a collateral attack upon a final judgment in a criminal proceeding. Moreover, this Court did not consider or discuss in Horan whether the circuit court‘s order that prohibited the Commonwealth from seeking the death penalty was an act performed by the circuit court which could not be undone.
G.
As we have previously stated, in part III, section A of this opinion, a purpose of the writ of mandamus, which is an extraordinary remedy, is the promotion of substantial justice. See Gannon, 243 Va. at 482, 416 S.E.2d at 447; Railroad Company, 206 Va. at 162, 142 S.E.2d at 548; Richmond-Greyhound Lines, 200 Va. at 151-52, 104 S.E.2d at 816. The promotion of substantial justice has served as a prerequisite to the issuance of a writ of mandamus in this Commonwealth for almost 200 years. For example, we stated in Commonwealth v. Justices of Fairfax County Court, 4 Va. (2 Va. Cas.) 9, 13 (1815) (emphasis in original omitted; other emphasis added):
“A mandamus is a prerogative writ; to the aid of which the subject is entitled upon a proper case previously shewn to the satisfaction of the Court.
The original nature of the writ, and the end for which it was framed, direct upon what occasions it shall be used. It was introduced to prevent disorder from a failure of justice, and defect of police. Therefore, it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.”
In the present proceeding, clearly, the issuance of a writ of mandamus would not prevent “disorder from a failure of justice.” Id. A critical issue during the trial of Atkins’ capital murder case was whether Atkins or his accomplice, Jones, was the triggerman who fired the gun that killed the victim. Based upon the facts in this record, only the triggerman could be subject to a sentence of death. Atkins claimed that the accomplice was the triggerman but the accomplice countered that Atkins was the triggerman.
Based upon the record before this Court, including the circuit court‘s final judgment, the circuit court had no confidence in the integrity of the judicial process and the jury verdict that resulted in Atkins’ sentence of death. The circuit court found that the Commonwealth‘s Attorney had “coached” the accomplice who was involved in the murder after the Commonwealth‘s Attorney realized that the accomplice would have testified about facts that would have been “problematic” to the Commonwealth‘s case.
The circuit court found that the accomplice “changed his story . . . [h]e modified his story,” and, the circuit court held that information that the Commonwealth suppressed “probably would have affected the outcome of Daryl Atkins’ trial.” Simply stated, the coached accomplice may very well have “changed his story” in order to escape the possibility of a sentence of death. Therefore, issuance of a writ of mandamus would not prevent a failure of justice but merely would serve to ignore the reality of the present case that justice was not served by the Commonwealth‘s deliberate use of “coached” testimony.
H.
The dissent, relying principally upon this Court‘s decisions in Horan, 271 Va. 258, 634 S.E.2d 675, In re: Morrissey, 246 Va. 333, 433 S.E.2d 918 (1993), Davis v. Sexton, 211 Va. 410, 177 S.E.2d 524 (1970), Kirk v. Carter, 202 Va. 335, 117 S.E.2d 135 (1960), Richardson v. Farrar, 88 Va. 760, 15 S.E. 117 (1892), Wilder v. Kelley, 88 Va. 274, 13 S.E. 483 (1891), Kent, Paine & Co. v. Dickinson, 66 Va. (25 Gratt.) 817 (1875), and Cowan v. Fulton, 64 Va. (23 Gratt.) 579 (1873), argues that these cases support a conclusion that a writ of mandamus lies to compel a circuit court to vacate a
Our decisions in Horan, Morrissey, Davis, Kirk, Richardson, Wilder, Kent, Paine & Co., and Cowan, do not involve final judgments entered in criminal proceedings. As we have discussed in part III, sections C, D, and E of this opinion, there are numerous substantive reasons why the Commonwealth should not be allowed to use a mandamus proceeding to invalidate a final judgment in a criminal case. And, our decision in Horan is not pertinent to our resolution of this proceeding for the reasons stated in part III, section F of this opinion.
Our decision in In re: Commonwealth of Virginia, 229 Va. 159, 326 S.E.2d 695 (1985) is consistent with our holding today. Contrary to the dissent‘s assertion, our decision to grant the writ of mandamus in In re: Commonwealth of Virginia, did not have the effect of invalidating a final judgment in a criminal case. In In re: Commonwealth, the circuit court withheld imposition of sentence for a defendant‘s firearm conviction “until September 26, 1985, a period of Twelve (12) months, upon the conditions that [the defendant]: (1) keep the peace and be of good behavior and obey all laws, (2) continue with psychiatric care and treatment with reports to the
The order that withheld imposition of sentence upon the firearm conviction was not a final judgment entered at the conclusion of a criminal case. Pursuant to the specific terms of the order, the defendant would have been required to return to the circuit court after a period of twelve months and the court would then have to decide whether to impose a sentence for the firearm violation. Indeed, the very reason that the Commonwealth filed a petition for a writ of mandamus in In re: Commonwealth was to compel the circuit court to enter a judgment that sentenced the defendant in accordance with the criminal firearm statute. See id. at 160-61, 326 S.E.2d at 696.
IV.
The Commonwealth also asserts that this Court should grant the Commonwealth‘s petition for a writ of prohibition. The Commonwealth argues that the circuit court exceeded the jurisdictional limits of this Court‘s 2006 mandate which states: “[T]he case is remanded to the . . . circuit court for a new proceeding . . . to determine whether [Atkins] is mentally retarded.”
We do not consider the Commonwealth‘s argument because prohibition clearly does not lie for a reason that the Commonwealth does not mention. We have stated:
“The writ of prohibition, as its name imports, is one which commands the person to whom it is directed not to do something which . . . the court is informed he is about to do. If the thing be already done, it is manifest the writ of prohibition cannot undo it, for that would require an affirmative act; and the only effect of a writ of prohibition is to suspend all action, and to prevent any further proceeding in the prohibited direction.”
In re: Dept. of Corrections, 222 Va. 454, 461, 281 S.E.2d 857, 861 (1981) (quoting United States v. Hoffman, 71 U.S. (4 Wall.) 158, 161-62 (1867)). And, as we recently stated in In re: Commonwealth‘s Attorney, 265 Va. at 319 n.4, 576 S.E.2d at 462 n.4, “prohibition . . . will [not] lie to undo acts already done.” The circuit court in this case has entered a final judgment in Atkins’ capital murder proceeding which is an act “already done” and a petition for a writ of prohibition cannot be used to vacate or “undo” that final judgment.
V.
For the forgoing reasons, we will dismiss the Commonwealth‘s petition for writ of mandamus and petition for writ of prohibition.
Record No. 080282 – Petition dismissed.
Record No. 080283 – Petition dismissed.
JUSTICE KINSER, with whom JUSTICE LEMONS joins, dissenting.
For the same reason, the majority likewise holds that a writ of prohibition does not lie. As with mandamus, this Court has issued a writ of prohibition on several occasions when the writ undid an act already done. Moreover, in the unique circumstances of this case, the Circuit Court exceeded its jurisdiction when it entered the order setting aside a death sentence. Contrary to the majority, I would issue a writ of mandamus and a writ of prohibition. Thus, I respectfully dissent.
Before explaining why I conclude mandamus and prohibition lie in this case, I find it necessary to summarize the procedural history culminating in this Court‘s two separate mandates ordering the Circuit Court to conduct a hearing to determine whether Daryl Renard Atkins is mentally retarded. After a jury trial in the Circuit Court, Atkins was sentenced to death for the murder of Eric Michael Nesbitt during the commission of robbery. This Court affirmed the judgment of conviction but vacated the sentence of death and remanded the case to the Circuit Court for a new sentencing hearing. Atkins v. Commonwealth, 257 Va. 160, 180, 510 S.E.2d 445, 457 (1999) (Atkins I). At the re-sentencing proceeding, a different jury imposed the death penalty, and the Circuit Court sentenced Atkins in accordance with the jury‘s verdict. Upon appeal to this Court, we upheld the Circuit Court‘s judgment and sentence of death. Atkins v. Commonwealth, 260 Va. 375, 379, 534 S.E.2d 312, 314 (2000) (Atkins II).
The United States Supreme Court subsequently granted Atkins a writ of certiorari on the sole issue “[w]hether the execution of mentally retarded individuals convicted of capital crimes violates the Eighth Amendment[.]” Atkins v. Virginia, 534 U.S. 809, 809 (2001). In its decision, the United States Supreme Court held that the execution of
In accordance with emergency legislation enacted by the General Assembly to establish procedures for determining whether a defendant convicted of capital murder is mentally retarded, see
We awarded Atkins an appeal and reversed the Circuit Court‘s judgment. Atkins v. Commonwealth, 272 Va. 144, 158, 631 S.E.2d 93, 100 (2006) (Atkins V). We then remanded the
Subsequent to the remand in Atkins V, Atkins filed a “Motion to Impose Life Sentence Based Upon Newly-Discovered Evidence of Brady and Napue Violations.” The Circuit Court entered an order certifying an interlocutory appeal pursuant to
This Court entered an order refusing the interlocutory appeal on the basis that
The [C]ircuit [C]ourt is directed to proceed with this criminal case. Such proceeding is confined to the terms of the mandate issued by the
Court on October 18, 2006 remanding this case to the [C]ircuit [C]ourt for a jury determination of whether Atkins is mentally retarded.
(Emphasis added.). The order also summarily dismissed Atkins’ petition for a writ of mandamus.
Instead of conducting the mandated hearing to determine whether Atkins is mentally retarded, the Circuit Court granted Atkins’ motion, finding the Commonwealth had withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Relying on the provisions of
This procedural history brings us to the present proceedings. After the Circuit Court refused to conduct the hearing to determine whether Atkins is mentally retarded, the Commonwealth filed separate petitions seeking a writ of mandamus and a writ of prohibition. I will address each of these extraordinary writs separately.
II. MANDAMUS
In its petition for a writ of mandamus, the Commonwealth requested that mandamus be issued compelling the Circuit Court to conduct a hearing to determine whether Atkins is mentally retarded in accordance with this Court‘s mandates. The issue in this case is whether a writ of mandamus lies to compel the
“Before a writ of mandamus may issue there must be a clear right in the petitioner to the relief sought, there must be a legal duty on the part of the respondent to perform the act which the petitioner seeks to compel, and there must be no adequate remedy at law.” Board of County Supervisors v. Hylton Enterprises, Inc., 216 Va. 582, 584, 221 S.E.2d 534, 536 (1976) (citing Richmond-Greyhound Lines v. Davis, 200 Va. 147, 152, 104 S.E.2d 813, 817 (1958)). “[Mandamus] was introduced to prevent disorder from a failure of justice, and defect of police. Therefore, it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.” Commonwealth v. Justices of Fairfax County Court, 4 Va. (2 Va. Cas.) 9, 13 (1815) (internal quotation marks omitted)
” ‘Mandamus is an extraordinary remedy employed to compel a public official to perform a purely ministerial duty imposed upon him by law.’ ” In re: Horan, 271 Va. 258, 258, 634 S.E.2d 675, 676 (2006) (quoting Richlands Med. Ass‘n v. Commonwealth, 230 Va. 384, 386, 337 S.E.2d 737, 739 (1985)); accord Griffin v. Board of Supervisors, 203 Va. 321, 328, 124 S.E.2d 227, 233 (1962). “A ministerial act is an act that one performs in obedience to a legal mandate and in a prescribed manner, without regard to his own judgment as to the propriety of the act to be done.” City of Richmond v. Hayes, 212 Va. 428, 429, 184 S.E.2d 784, 785 (1971) (citing Dovel v. Bertram, 184 Va. 19, 22, 34 S.E.2d 369, 370 (1945)); accord In re: Horan, 271 Va. at 258-59, 634 S.E.2d at 676; Richlands Med. Ass‘n, 230 Va. at 386, 337 S.E.2d at 739.
Specifically with regard to mandamus directed to an inferior court, we have previously explained that
mandamus may be appropriately used and is often used to compel courts to act where they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel courts to hear and decide where they have jurisdiction, but not to pre-determine the decision to be made; to require them to proceed to judgment, but not to fix and prescribe the judgment to be rendered.
Whether a writ of mandamus should issue in this case is inextricably linked to this Court‘s mandates directing the Circuit Court to conduct the hearing to determine whether Atkins is mentally retarded. Pursuant to what we recognize as the “mandate rule,” a “trial judge is bound by a decision and mandate from [an appellate court], unless [the court] acted outside [its] jurisdiction. A trial court has no discretion to disregard [a] lawful mandate.”1 Powell v. Commonwealth, 267 Va. 107, 127, 590 S.E.2d 537, 549 (2004) (alterations in original) (emphasis added); see also United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (“[I]t is indisputable that a lower court generally is bound to carry the mandate of the upper court into execution and [may] not consider the questions which the mandate laid at rest. [The “mandate rule“] compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court. . . . Thus, when [an appellate] court remands for further proceedings, a [lower] court must . . . implement both the letter and spirit
Pursuant to our mandates, the Circuit Court had no discretion to refuse to conduct the mental retardation hearing; the duty of the Circuit Court to do so was purely ministerial. See Wilder, 88 Va. at 282, 13 S.E. at 485 (“When a mandate goes down from the appellate tribunal to the inferior tribunal, whose action has been reviewed and reversed, there is no discretion; . . . and the simple province of the inferior tribunal is to obey the command of the superior.“). Furthermore, the Commonwealth could not appeal the Circuit Court‘s refusal to conduct the hearing and thus has no adequate remedy at law.2 See In re: Horan, 271 Va.
In an analogous case, as I initially pointed out, we have previously issued a writ of mandamus compelling a circuit court to comply with a mandate from this Court. In Wilder, a circuit court judge, who was the respondent in the mandamus proceeding, refused to grant an injunction. 88 Va. at 275, 13 S.E. at 483. Acting pursuant to former
The petitioners, who obtained the injunction in this Court, sought a writ of mandamus to compel the circuit court judge to “enter and enforce the order . . . of the appellate judge.” Id. The question before us was “whether mandamus [was] the proper remedy to compel this judge to obey the law, or if he may annul the ordеr, and by dilatory orders and continuances, under the guise of exercising judicial
The respondent in Wilder argued that mandamus did not lie to correct his erroneous judicial acts. Id. at 277, 13 S.E. at 484. We disagreed, however, and stated:
The general rule on this subject is that, if the inferior tribunal or corporate body has a discretion and exercises it, this discretion cannot be controlled by mandamus; but if the inferior tribunal refuse when the law requires them to act, and the party has no other adequate legal remedy, and when, in justice, there ought to be one, mandamus will lie to set them in motion to compel action, and, in proper cases, the court will settle the legal principle which should govern, but without controlling the discretion of the subordinate jurisdiction.
In deciding to issue a writ of mandamus as requested by the petitioners, we held:
When a mandate goes down from the appellate tribunal to the inferior tribunal, whose action has been reviewed and reversed, there is no discretion; that has been exercised, and in the exercise been exhausted, so far as it is established by the law; and the simple province of the inferior tribunal is to obey the command of the superior.
. . . .
It is settled law that when this order from an appellate court or an appellate judge, made in review of the order of an inferior court, comes down, the lower court must enter and enforce it. It is an order in his court in the latter case, and it is an order in his court in the former case; but it is there in each case for him to enter and obey. He may not set aside and annul it upon any pretext
whatever. That may be done in a proper case by the Court of Appeals when, in the latter case, it reaches that tribunal; but it is not the province of the lower court to do this. Being, then, a matter of plain duty, and in no wise dependent upon any discretion of any sort, it must be entered and enforced as made, and mandamus will lie to enforce the performance of this plain legal duty.
Id. at 282-83, 13 S.E. at 485-86. As in Wilder, mandamus should issue in the case before us to ensure that the Circuit Court obeys the mandates from this Court.
The majority, however, holds that it is inappropriate to issue a writ of mandamus in the present case because to do so would undo an act already done. According to the majority, mandamus would compel the Circuit Court to vacate its order setting aside Atkins’ death sentence and imposing a life sentence without the possibility of parole. It is correct that a writ of mandamus “will not be granted to undo an act already done.” Richlands Med. Ass‘n, 230 Va. at 387, 337 S.E.2d at 740. In my view, the majority merely recites this principle and then applies it in the case before us without actually examining the facts, not only of the cases upon which the majority relies, but also of the numerous cases in which this Court‘s issuance of a writ of mandamus either directly compelled an act to be undone or had the incidental effect of undoing an act already done even though the writ itself did not specifically do so.
While I disagree with the majority‘s application today of the principle that mandamus does not lie to undo an act already done, if the majority is correct in refusing to issue a writ of mandamus in this case, then we should not have
The holdings in In re: Horan and Wilder are not the only instances in which this Court‘s issuance of a writ of mandamus had the incidental effect of undoing an act already done. In Town of Front Royal v. Front Royal & Warren County Industrial Park Corporation, 248 Va. 581, 449 S.E.2d 794 (1994), we considered “whether mandamus [was] a proper remedy in an action to compel a municipality to comply with terms for provision of sewer services in a decree previously entered by
In rejecting that argument, this Court stated:
Here, . . . the Town is required, by the 1978 court decree, to perform a prospective non-discretionary act. The trial court‘s order issuing the writ of mandamus compels the Town to comply with that decree. We also observe, as the trial court found, that [the petitioner] has met each requirement necessary for the issuance of the writ.
Id. at 587, 449 S.E.2d at 798. Despite the fact that issuing the writ of mandamus meant the Town had to reverse its rejection of the petitioner‘s application for sewer service, this Court, nevertheless, affirmed the trial court‘s judgment. Id. The petitioner had a clear right to the relief sought in its petition for a writ of mandamus, the annexation court‘s 1978 decree imposed a ministerial duty on the Town to
In my view, the same rationale applies in the case before us. The Commonwealth has a clear right to have the Circuit Court conduct the hearing to determine whether Atkins is mentally retarded. This Court‘s mandates imposed a ministerial duty on the part of the Circuit Court to conduct that hearing. And, the Commonwealth has no adequate remedy at law.
The decisions in In re: Horan and Town of Front Royal are not anomalies in our jurisprudence. In numerous other decisions by this Court, the issuance of a writ of mandamus had the incidental effect of undoing an act already done although the writ itself did not directly compel such action. See, e.g., Howell v. Catterall, 212 Va. 525, 186 S.E.2d 28 (1972) (issuing writ of mandamus compelling the State Corporation Commission to grant petitioner a continuance, thereby effectively undoing the Commission‘s order denying petitioner a continuance); Planning Comm‘n v. Berman, 211 Va. 774, 180 S.E.2d 670 (1971) (affirming issuance of writ of mandamus to compel approval of site plan and issuance of building permits, thereby undoing a planning commission‘s previous disapproval of the site plan); Davis v. Sexton, 211 Va. 410, 177 S.E.2d 524 (1970) (issuing writ of mandamus
Moreover, there are instances in which we have actually issued a writ of mandamus that directly compelled an act already done to be undone. See, e.g., In re: Morrissey, 246 Va. 333, 334, 433 S.E.2d 918, 919 (1993) (issuing writ of mandamus to reinstate a public officeholder wrongly deprived of his office and “requiring that the court‘s [order removing the public officer] be annulled“); In re: Commonwealth‘s
In contrast to these cases, the decision in Morrissette v. McGinniss, 246 Va. 378, 436 S.E.2d 433 (1993), provides an example of when this Court affirmed a trial court‘s judgment denying a writ of mandamus because the writ, if issued, would have had the effect of undoing an act already done. There, the petition for mandamus asked the trial court to order a county‘s general registrar to amend and correct a certification in order to show that the required number of voters had indeed signed petitions for a referendum. Id. at 381, 436 S.E.2d at 435. The general registrar had already certified that the petitions did not satisfy the requirements for a referendum. Id. at 380, 435 S.E.2d at 434. The petition for mandamus also asked the trial court to order the county board of supervisors to hold a referendum on the subject at issue despite the fact that the county board had already refused to do so and had enacted an ordinance creating a county service authority for the purpose of constructing and operating facilities for “a water supply, treatment, and distribution system, . . . a sewagе collection, disposal and
In affirming the trial court‘s judgment refusing to issue a writ of mandamus, we stated:
[The petitioner] seeks to use mandamus to revise or correct the allegedly erroneous action of the [general registrar], the [county board of supervisors], and the State Corporation Commission. He charges the [general registrar] with failing to properly certify the validity of the petitions; he charges the [county board] with unlawfully refusing to call for a referendum. Those acts had been performed at the time the mandamus petition was filed and could not be undone by mandamus. [The petitioner] should have taken prompt action immediately after the public hearing to seek judicial review of those allegedly erroneous actions.
Id. at 382, 436 S.E.2d at 435.
Unfortunately, these cases demonstrate that our jurisprudence is less than consistent in terms of when we use the principle that mandamus does not lie to undo an act already done as the basis for refusing to issue a writ of mandamus. The majority describes this principle as a “fundamental principle of jurisprudence.” Whether it is or not, even the cases upon which the majority relies do nothing to explain or resolve the inconsistent results I find in our jurisprudence.
On appeal, the decision turned “upon the question whether the duties imposed upon an oyster inspector by the provisions of the Code [were] purely ministerial in their nature, or [were] duties neсessarily calling for the exercise of judgment and discretion in their performance.” Id. at 783, 20 S.E. at 967. This Court concluded that an oyster inspector‘s statutory duties were “quasi judicial in their nature, requiring the exercise of judgment and discretion in their performance,” and mandamus was therefore not appropriate. Id. at 784, 20 S.E. at 968.
We also recognized that the oyster inspector had already exercised his discretion in assigning a certain 20 acres to two individuals for the purpose of planting oysters or shells. Thus, “[t]he object of the petitioner . . . was not only to compel the inspector to undo what he had done, but to compel him to do a specific act without reference to the opinion of the inspector upon the subject.” Id. We then stated, “It is
Next, in Board of Supervisors v. Combs, 160 Va. 487, 169 S.E. 589 (1933), the Board of Supervisors of Amherst County sought a writ of mandamus directing the state comptroller and the Board of Supervisors of Campbell County “in the future to distribute the tax derived from motor vehicle fuel, in accordance with the said acts of 1930, page 42, ch. 45; that Amherst [C]ounty be given credit for one-half of the population of the [C]ity of Lynchburg as provided for in said acts, and in keeping with all other provisions thereof, and that said petitionees pay to Amherst [C]ounty all back pay or arrears in said tax, to which it is entitled had the law been so observed as it should have been, and deduct or credit the future payments to Campbell [C]ounty until the fund is
As to the state comptroller, we noted not only that he had already distributed all the revenues apportionable among the counties under the 1930 act but also that the authority vested in the state comptroller had been withdrawn by subsequent legislation that became effective prior to this Court‘s hearing the petition for mandamus. Id. at 494-95, 169 S.E. at 591-92. We concluded that mandamus did not lie against the state comptroller because there was no longer a fund from which he could make future distributions and because the authority vested in the state comptroller had been withdrawn. Id. at 495, 169 S.E. at 592. Thus, we held that “[i]n view of the . . . facts and the change in the law relating to the subject, it is obvious that the writ of mandamus prayed for by the petitioner would, if awarded, be unavailing and wholly nugatory.” Id. at 496, 169 S.E. at 592. “[T]o warrant the court in granting the writ against a public officer such a state of facts must be presented as to show that the relator has a clear right to the performance of the
As to the petitioner‘s request that the state comptroller and Campbell County be directed to pay Amherst County “all back pay or arrears in said tax to which it is entitled had the law . . . been observed as it should have been,” id. at 497-98, 169 S.E. at 593, we likewise concluded that mandamus did not lie. To issue mandamus as the petitioner requested would have specifically directed the state comptroller to undo his distribution of the tax revenues derived from motor vehicle fuel. We stated:
A mandamus is always granted to compel the performance of some duty which has not been done . . . . It is not granted to undo an act already done. The court will not allow the validity of the act to be tried in this way. We grant it, said Lord Campbell, when that has not been done which a statute orders to be done; but not for the purpose of undoing what has been done.
Id. at 498, 169 S.E. at 593 (citing Harrison, 127 Va. 180, 102 S.E. 789 (internal quotation marks omitted)).
The quote from Lord Campbell relied upon in Combs comes from the case of Ex parte Nash, 15 Q.B. 92 (1850). There, the petitioner requested a writ of mandamus to compel a railway company to take its seal off the register of shareholders. Id. at 92. Prior to ruling, Lord Campbell stated to counsel
We grant [mandamus] when that has not been done which a statute orders to be done; but not for the purpose of undoing what has been done. We may, upon an application for a mandamus, entertain the question whether a corporation, not having affixed its seal, be bound to do so; but not the question whether, when they have affixed it, they have been right in doing so. I cannot give countenance to the practice of trying in this form questions whether an act professedly done in pursuance of a statute was really justified by the statute.
Id. at 95-96; see also In re: Horan, 271 Va. at 264, 634 S.E.2d at 679; 2 T.C. Spelling, A Treatise on Injunctions and Extraordinary Remedies, § 1436, at 1256-57 (1901) (“Mandamus does not lie to compel a party holding an official position to reverse a decision already rendered in the exercise of discretionary powers. In other words, what has been already done, however erroneously, cannot be undone by this remedy.“).6
The case of In re: Commonwealth‘s Attorney, 265 Va. 313, 315, 576 S.E.2d 458, 460 (2003), involved two petitions for writs of mandamus requesting this Court, among other things, to direct a circuit court judge to vacate particular orders and proceed to enter judgments of guilt. We did not issue mandamus because the petitioner was asking us to control a judge‘s exercise of judicial discretion. Id. at 319, 576 S.E.2d at 462. In a footnote, we also stated that the actions of the circuit court judge at which the requested mandamus was
Finally, in contrast to those four cases, we were confronted in Harrison with the question: “If the position of the petitioners were well taken, and it was the duty of the respondent to have entered a contrary order from that which he did enter, would mandamus lie to compel him to do so?” 127 Va. at 187, 102 S.E. at 791. We answered the question in the affirmative and stated:
It is true that mandamus will not lie unless the respondent is in possession of the authority to perform the act sought at the time the writ is asked to be issued; but the mere fact that he has done something contrary to his duty does not of itself deprive the respondent of the authority later to reverse such action and perform his duty aright.
Despite the divergent application of the principle that mandamus does not lie to undo an act already done, I do, however, find consistency in the cases in which we have considered whether to issue a writ of mandamus to an inferior court. In In re: Horan, In re: Morrissey, In re: Commonwealth‘s Attorney for Chesterfield County, Davis, Kirk, Richardson, Wilder, Blackwell, Kent, Cowan, and Smith, we issued (or affirmed the issuance of) writs of mandamus that either directly or implicitly undid an act that had been done. In other words, we did not refuse to issue mandamus because it
In sum, I conclude that the jurisprudence of this Court does not support the majority‘s refusal to issue a writ of mandamus directing the Circuit Court to conduct a hearing to determine whether Atkins is mentally retarded. The majority applies the principle that mandamus does not lie to undo an act already done as though this Court had never deviated from a constant use of the principle to refuse to issue mandamus anytime doing so would either directly or implicitly undo an act already done. But, as I have demonstrated, we have not been consistent, except with regard to issuing mandamus to
There can be no question, and the majority does not suggest otherwise, that our mandates to the Circuit Court left no room for the exercise of discretion as to whether to conduct the mental retardation hearing. We directed the Circuit Court to do so, but it refused to obey our mandates. But see Strayer, 83 Va. at 717, 3 S.E. at 374 (holding the circuit court “must obey” this Court‘s mandate). We have held that “[mandamus] may be appropriately used and is often used to compel courts to act where they refuse to act and ought to act.” Page, 71 Va. (30 Gratt.) at 418; accord In re: Horan, 271 Va. at 259, 634 S.E.2d at 676.
Unlike thе majority, I cannot sanction the Circuit Court‘s refusal to perform its duty to “implement both the letter and spirit” of our mandates. Bell, 5 F.3d at 66. As we said many years ago, “mandamus is always granted to compel
I do emphasize, however, that alleged Brady violations are routinely the subject of petitions for writs of habeas corpus. See, e.g., Elliot v. Warden, 274 Va. 598, 598-99, 652 S.E.2d 465, 471-72 (2007); Muhammad v. Warden, 274 Va. 3, 3-13, 646 S.E.2d 182, 186-91 (2007); Lovitt v. Warden, 266 Va. 216, 223-24, 243-47, 585 S.E.2d 801, 805, 817-19 (2003). Given the procedural status of Atkins’ capital murder case, a petition for a writ of habeas corpus is the appropriate vehicle to address the merits of Atkins’ motion alleging Brady violations by the Commonwealth.
In addition to the petition for a writ of mandamus, the Commonwealth also filed a petition seeking a writ of prohibition. The Commonwealth asked that the Circuit Court be prohibited “from enforcing [its] January 24, 2008, pre-trial order . . . reducing the sentence of death imposed by the jury” in Atkins’ capital murder case and “from entering any order in [that] case reducing the death sentence without a jury determination of mental retardation.” Because the Circuit Court exceeded its jurisdiction when it entertained Atkins‘s Brady motion and then entered the order setting aside his death sentence, thereby rendering the order void ab initio, I would issue the writ of prohibition as prayed for by the Commonwealth.
“The office of a writ of prohibition is . . . to prevent the exercise of jurisdiction of the court by the judge to whom it is directed, either where he has no jurisdiction at all, or is exceeding his jurisdiction.” Rollins v. Bazile, 205 Va. 613, 616, 139 S.E.2d 114, 117 (1964); see also Burch v. Hardwicke, 64 Va. (23 Gratt.) 51, 59 (1873) (“A [writ of] prohibition is a proper remedy to restrain an inferior court from acting in a matter of which it has no jurisdiction, or from exceeding the bounds of its jurisdiction.“). “Although jurisdiction of the person, or of the subject matter, may have
Although this Court has never addressed the issue, various other courts have found that a writ of prohibition is a proper remedy to compel an inferior court to comply with a superior court‘s mandates. See, e.g., Harbel Oil Co. v. Superior Court, 345 P.2d 427, 429 (Ariz. 1959) (recognizing that a writ of prohibition is the appropriate remedy when a trial court refuses to obey the mandate of an appellate court “since the trial court‘s jurisdiction on remand is delimited by the terms of the mandate“); Arkansas Baptist Coll. v. Dodge, 74 S.W.2d 645, 646 (Ark. 1934) (making temporary writ of prohibition “perpetual” because chancery court failed to follow appellate court‘s mandate); Butler v. Superior Court, 128 Cal. Rptr. 2d 403, 405 (Cal. Ct. App. 2002) (“When an appellate court‘s reversal is accompanied by directions requiring specific proceedings on remand, those directions are binding on the trial court and must be followed. Any material variance from the directions is unauthorized and void” and
A writ of prohibition is to prevent the exercise of jurisdiction when the judge to whom it is directed either has no jurisdiction or is exceeding his jurisdiction. Rollins, 205 Va. at 616, 139 S.E.2d at 117. Thus, the dispositive question for purposes of issuing a writ of prohibition in this case is whether, upon remand from this Court, the Circuit Court had jurisdiction to conduct any proceedings other than the mental retardation hearing. I conclude that the Circuit Court did not because its jurisdiction at that time was circumscribed by the provisions of
In the case before us, there is no question that, prior to this Court‘s remand for the sole purpose of conducting the mental retardation hearing, the time limitations in both
Notwithstanding any other provision of law, any person under sentence of death whose sentence became final in the circuit court before April 29, 2003, and who desires to have a claim of his mental retardation presented to the Supreme Court, shall do so by one of the following methоds: (i) . . . if his direct appeal is pending in the Supreme Court, he shall file a supplemental assignment of error and brief containing his claim of mental retardation . . . . The Supreme Court shall consider a claim raised under this section and if it determines that the claim is not frivolous, it shall remand the claim to the circuit court for a determination of mental retardation; otherwise the Supreme Court shall dismiss the petition. The provisions of
§§ 19.2-264.3:1.1 and19.2-264.3:1.2 shall govern a determination of mental retardation made pursuant tothis section. If the claim is before the Supreme Court on direct appeal and is remanded to the circuit court and the case wherein the sentence of death was imposed was tried by a jury, the circuit court shall empanel a new jury for the sole purpose of making a determination of mental retardation.
(Emphases added.). In accordance with the provisions of
Thus, but for the enactment of
The Circuit Court itself questioned whether it had jurisdiction to adjudicate Atkins’ motion alleging Brady violations when it certified an interlocutory appeal pursuant to
Since the Circuit Court exceeded its jurisdiction by adjudicating Atkins’ Brady motion when Atkins’ capital murder case was remanded pursuant to the limited jurisdiction conferred by
Further, it is well-settled that a judgment that is void ab initio “may be ‘impeached directly or collaterally by all persons, anywhere, at any time, or in any manner.’ ” Singh, 261 Va. at 52, 541 S.E.2d at 551 (quoting Barnes v. American Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925) (emphasis added)); see also Hicks v. Mellis, 275 Va. 213, 219, Shird, 257 Va. 584, 588, 514 S.E.2d 613, 615 (1999); Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755 (1990).
This Court‘s decision in State Farm Mutual Automobile Insurance Company v. Remley, 270 Va. 209, 618 S.E.2d 316 (2005), directly supports my conclusion that the Circuit Court exceeded its jurisdiction when it decided any issue other than whether Atkins is mentally retarded. In that case, the plaintiff, Christine B. Remley, оbtained a default judgment against the defendant, Craig Griffin. Id. at 213, 618 S.E.2d at 317. The circuit court, however, erroneously stated in its default judgment order “that judgment be and hereby is granted to the plaintiff, Craig Griffin, and against the defendant.” Id.
Relying on
This Court affirmed the circuit court‘s judgment denying the motion to set aside the default judgment. We gave these reasons for our decision:
We disagree with [the insurer‘s] contention that the circuit court reacquired jurisdiction over all issues relating to plaintiff‘s motion for judgment when the circuit court entered the order of correction . . . . We hold that when a circuit court exercises jurisdiction pursuant to
Code § 8.01-428 , such jurisdiction is limited to the specific subjects set forth in paragraphs (A), (B), (C), or (D) ofCode § 8.01-428 . Once a court obtains jurisdiction pursuant toCode § 8.01-428 , the court is not authorized to consider any issues that are not specifically set forth in this statute.
Id. at 221, 618 S.E.2d at 322 (emphasis added).
Similarly, once the Circuit Court at issue reacquired jurisdiction of Atkins’ capital murder case under
This Court has affirmed the issuance of a writ of prohibition to prevent a trial court from granting a new trial after the expiration of the statutory period during which the trial court retained jurisdiction to do so. Burroughs v. Taylor, 90 Va. 55, 56, 17 S.E. 745, 746 (1893). This Court has likewise issued a writ of prohibition to prevent a circuit court from entertaining motions to reconsider sentencing orders after the expiration of the 21-day period provided in Rule 1:1 and after the defendants were transferred to the Department of Corrections. In re: Dep‘t of Corrs., 222 Va. 454, 466, 281 S.E.2d 857, 864 (1981). Thus, I conclude that a writ of prohibition as requested by the Commonwealth should be issued.
Citing this latter case, the majority, however, holds that a writ of prohibition does not lie in this case because it would undo an act already done. In that case, five co-defendants were convicted for various drug offenses and sentenced to terms in the penitentiary. Id. at 457, 281
Subsequently, the circuit court, in three separate orders entered on different dates, directed that three of the defendants be released from custody, suspended the remainder of the term of incarceration of each, and placed those three defendants on probation for the balance of their original sentences. Id. At the time the orders releasing the three defendants from the penitentiary were entered, they had been incarcerated for periods ranging from three and one-half months to one year. Id. The circuit court, however, took no action on the motions filed by the other two defendants. Id.
The Department of Corrections filed a petition for a writ of prohibition in this Court alleging that the circuit court “did not vacate or suspend the judgments of conviction prior to the expiration of 21 days or delivery of the defendants to
With regard to the two defendants whose motions the circuit court had yet to decide, this Court held that because the circuit court had not modified, vacated, or suspended the final sentencing orders within 21-days of entry or before those defendants had been transferred to the penitentiary, the circuit court “no longer [had] jurisdiction to act on the [pending] motions to suspend.” Id. at 465, 281 S.E.2d at 863. Thus, we “award[ed] a writ prohibiting the trial judge or any other judge of the [circuit] court from entering any orders on the motions to suspend the balance of the sentences of [the two defendants].” Id. at 466, 281 S.E.2d at 864.
With regard to the three defendants who had already been released from the penitentiary, we denied the writ of prohibition, stating, “In each case, the release is an accomplished fact; thus, the time for challenging such
The writ of prohibition, as its name imports, is one whiсh commands the person to whom it is directed not to do something which, by the suggestion of the relator, the court is informed he is about to do. If the thing be already done, it is manifest the writ of prohibition cannot undo it, for that would require an affirmative act; and the only effect of a writ of prohibition is to suspend all action, and to prevent any further proceeding in the prohibited direction.
Id. (quoting United States v. Hoffman, 71 U.S. (4 Wall.) 158, 161-62 (1866)).
It appears that In re: Department of Corrections is the only case in which we have refused to issue a writ of prohibition on the basis that doing so would undo an act already done.15 In examining the Court‘s opinion, I find that the release of the three defendants was the “accomplished fact” cited by the Court as the act that would be undone by issuing a writ of prohibition, as opposed to the circuit court‘s three orders releasing the defendants from custody and suspending the remainder of their terms of incarceration. Id. at 461, 281 S.E.2d at 861.
In contrast to the decision in In re: Department of Corrections, this Court has, on several occasions, issued a writ of prohibition notwithstanding the fact that it would undo an act already done. See, e.g., Charlottesville Newspapers, Inc. v. Berry, 215 Va. 116, 118, 206 S.E.2d 267, 268 (1974) (issuing writ of prohibition preventing enforcement of order denying public access to pleadings in civil actions
As with writs of mandamus, it appears that our cases are at odds regarding when a writ of prohibition should not issue because it would undo an act already done. I recognize that the cases I cited in the prior paragraph preceded our decision in In re: Department of Corrections, but, in the latter case, we did not state that we were adopting for the first time in the Commonwealth the rule that prohibition does not lie to undo an act already done. Clearly, this rule had been part of the common law for many years as reflected by the quote in In re: Department of Corrections from the 1866 decision in
There is, however, a basis upon which our cases can be hаrmonized. In those cases where a writ of prohibition was issued, the act that either directly or indirectly was undone by the writ was an order of an inferior court. As I pointed out previously, the Court in In re: Department of Corrections concluded that the act that would be undone by a writ of prohibition was the “accomplished fact” of three defendants’ release from the penitentiary. 222 Va. at 461, 281 S.E.2d at 861. The Court did not mention the circuit court‘s three orders, already entered, as the act that would be undone.
The distinction I draw is substantiated by the rationale used in In re: Department of Corrections: ” ‘If the thing be already done, it is manifest the writ of prohibition cannot undo it, for that would require an affirmative act.’ ” 222 Va. at 461, 281 S.E.2d at 861 (emphasis added) (quoting Hoffman 71 U.S. (4 Wall.) at 162). Obviously, in In re: Department of Corrections, it would have required an “affirmative act” to return those three defendants to confinement in the penitentiary. Here, however, the Commonwealth requests in its petition for a writ of prohibition that the Circuit Court be prohibited from enforcing its order reducing Atkins’ sentence to life
Finally, as I previously explained, the Circuit Court‘s order setting aside Atkins’ sentence of death and sentencing him to life imprisonment is a nullity and without force and effect. As such, the order, void from the outset, is treated as if it had never been entered in the first instance. See Berry v. F&S Fin. Mktg., 271 Va. 329, 333, 626 S.E.2d 821, 823 (2006). It is anomalous, to say the least, that a writ of prohibition under these circumstances would be undoing an act that was, in effect, never done in the first place.
IV. CONCLUSION
In order to prevent a failure of justice, I would grant both a writ of mandamus and a writ of prohibition to compel the Circuit Court of York County to conduct the mandated hearing to determine whether Atkins is mentally retarded and to prohibit the Circuit Court from enforcing its order setting
Notes
Id. at 264, 316 S.E.2d at 444.because the orders releasing the [three defendants] and suspending their sentences were entered after the 21-day limitation in Rule 1:1 had expired and the [three defendants] had been transferred to the penitentiary, those orders were void for lack of jurisdiction and the [circuit] court erred in dismissing the motions to vacate. Hence, we will reverse the several judgments and enter a final judgment in each case vacating the void order. If, upon entry of our mandates, the Attorney General, acting as attorney for the Commonwealth, for the Department of Corrections, and for the warden of the institution in which the [three defendants] were incarcerated, so elects, he may initiate the process required to return the [three defendants] to custody to serve the sentences originally imposed.