*1 years after twenty more than arrearages spousal support having remarried.14 reasons, majority’s from the I dissent respectfully
For these
ruling.
of the trial court’s
affirmance
Richmond. June application majority’s construction 14. As I understand the arrearages judgment and had holding, sought a had she not Bennett remarried, obligation support to enforce the she could nevertheless seek having arrearage twenty years from remar- even after and collect the far. Bennett to extend that ried. I do not understand *2 Chittom, (Office S. Jane Appellate Defender of the Appel- Defender, briefs), late on for appellant. Anderson, III,
Robert H. Attorney Senior Assistant General (William Mims, General, C. Attorney brief), on for appellee. FRANK,
Present: PETTY, HUMPHREYS and JJ. HUMPHREYS, Judge.
BACKGROUND suppress,1 motion to of his trial court’s denial Following the (“Smith”) plead agreement into an entered David Smith As July sodomy on and forcible to abduction guilty right appeal Smith reserved agreement, part of filed both his timely motion. Smith denial of his trial court’s to file but failed appeal, for petition appeal notice of court hearing the trial suppression from his transcript required judgment, of final sixty days entry after within suppres- for Smith’s Consequently, Rule 5A:8. this Court. before hearing properly sion argued proper appeal, for Smith petition In his was under these circumstances apply Court to remedy for this an indispensable to file for failure appeal to dismiss the was fact, appeal petition before Smith’s transcript. *3 appeal his own motion to dismiss separate he filed a granted, that, suppression- absent the argued grounds. on those Smith to decide the lacked transcript, this Court hearing of this Court panel A three-judge of his appeal. merits to dismiss held his motion petition appeal, for granted Smith’s the to brief whether parties and instructed the abeyance, in timely indispens- file an for the failure to remedy appropriate the or dismiss appeal for deny petition is to transcript able appeal. remedy for a argues proper that response, Smith to dismiss transcript indispensable to file an
failure to that the failure contends the Commonwealth appeal while in denial of result simply should a sufficient record provide holding Court’s Given our appeal. petition a (2008), we Commonwealth, Jay v. of Rule provisions comply to failure hold Smith’s mandatory though non-jurisdictional, of a violation a 5A:8 is of appeals processing governing of the Rules requirement adequate present failure to in this Court. Smith’s suppress. motion to Judge heard the 1. James C. Hawks record to sufficient review the merits of the issues argu- ments he presents on brief question constitutes a waiver his presented and supporting argument. Accordingly, we deny Smith’s motion to dismiss affirm the decision of the trial court on that basis.
ANALYSIS onset, At the we note that this is more appeal than a bit peculiar in light the fact that Smith simultaneously filed in petition this Court a appeal both his convictions for abduc- tion sodomy and forcible a motion to dismiss that very appeal. Smith asserts that he did so in order attempt avail provisions § himself of the of Code He argues 19.2-321.1. that, if § Code applicable, may 19.2-321.1 him pursue allow a delayed and, thus, appeal overcome his failure to file the his suppression hearing part of the trial court record, he indispensable concedes is to our resolution of his appeal.2 merits of
Prior to
its decision
both our
Jay,
Supreme Court and
this Court have historically
appeals
dismissed
when the man-
datory requirements
to,
of the Rules have not been adhered
including those cases which a transcript,
indispensable to
issue,
resolution
not been
in the
had
filed
trial court.
See
Fearon v.
Va.
S.E.2d 921
(1970);
Crum
Udy,
(1966);
355 Commonwealth, 766, 11 v. Smith Va.App. 32 (1993); Price, Price v. (2000); 435 652 Va.App. Turner v.
(1986).
view,
of
rather
than
practice
dismissing,
In our
always been
non-compliant
appeal
for
has
denying,
petitions
very
petition process
since the
nature of the
problematic,
for
by
contemplates
petition
statute
unless the
mandated
in
other
any
is no need to act on it
granted,
is
there
appeal
certainly
It
true that
simply denying
petition.
than
the
is
way
granted,
certiorari
or for
has been
petition
appeal
once
unnecessary
is
because
petition
and in those cases where a
invariably
appeals
lies as a matter of
are almost
appeal
right,
when an
court lacks
over
appellate
dismissed
However,
jurisdictions,
matter or the
in
subject
parties.
other
true,
is not
of
necessarily
practice
the converse
at all
dismissing appeals
non-jurisdictional grounds
on
is not
Nevertheless, our
among our
courts.3
appellate
unusual
sister
Jay,
adopted
position
Court
a different
in
regard
binding
in this
final and
on this Court.
holding
both
Jay
“[b]y dismissing
clearer,
holding
hardly
The
be
could
denying
than
ren-
appeals,
Appeals
rather
5A:20(e)
requirements
jurisdictional.”
dered
517, 659
in
original).4
S.E.2d at 315
While
jurisdictions,
including
States
Appellate
3.
courts in
the United
other
moot,
Court,
routinely
appeals
dismiss
where:
the issue
here,
appeal
improvidently granted, or
is so
has been
as
the record
prevent
proper
incomplete
of the issue.
as
the Court’s
consideration
Me.,
FEC,
e.g.
League
v.
See
Christian Civic
Inc.
549 U.S.
(2006)
moot);
(dismissing
Gilligan v.
as
S.Ct.
166 L.Ed.2d
Sweetenham,
(1972)
S.Ct.
31 L.Ed.2d
U.S.
moot);
dismissing
(noting probable jurisdiction,
see also United
but
Dula,
Cir.1993)
(5th
(dismissing defendant’s
Although a court confer jurisdic- whether has power have the to determine does tion. Gibson, v.
Gibson added).
(1988) (emphasis
are
courts of the Commonwealth
appellate
this issue.
on
confusing jurisprudence
in promulgating
alone
914, 157
443, 453, 124
S.Ct.
Ryan,
Kontrick v.
In
540 U.S.
(2004),
recog
States
L.Ed.2d 867
United
arena,
in
federal
confusion
that it has created similar
nized
indispensable to the determination
untimely-filed transcript
are
issue,
appeal").
question is waived on
this
Assem-
that the General
disagree
position of the dissent
6. We
with the
Virginia its
Supreme Court of
implicitly
bly
ceded to
has somehow
jurisdiction of the Commonwealth's
to create or limit
courts.
noting that it had been “less than
meticulous”
its use of the
term “jurisdictional”
to describe timeliness
requirements.
The Supreme Court then observed that
is axiomatic
“[i]t
court-prescribed rules of practice and procedure, as opposed
to statutory
do not create or
limits,
time
juris-
withdraw ...
diction.”
added).
Id.
Russell,
Again
Bowles
205, 210-12,
U.S.
2364-65,
127 S.Ct.
[although several of our recent decisions have undertaken
to clarify the distinction between claims-processing rules
jurisdictional rules,
none of them calls into
question
longstanding treatment of statutory time
for taking
limits
an appeal as jurisdictional.
Indeed,
those decisions have
recognized
also
significance of the fact that
a time limitation is set
a statute.
forth
(Emphasis
words,
other
the term “jurisdiction”
*7
refers to mandatory requirements prescribed by constitution
or statute as a prerequisite
to a court
taking a case for
resolution. What the United States Supreme Court charac-
terizes as “claim-processing” requirements relate to those non-
jurisdietional, but nonetheless mandatory, “procedural
rules
adopted by the Court for the orderly transaction of its busi-
ness” that are
jurisdictional.” Kontrick,
“not
This is precisely the situation represented in this case. No rule of court actually conveys, expands or restricts “jurisdiction” of the courts of the Commonwealth. The Rules of the Supreme of Virginia Court are promulgated under the statutory authority of that Court to “prescribe the forms of writs and make general regulations for the practice in all Commonwealth; courts prepare a system [] rules of practice and a system of pleading and the forms of process.” § Code 8.01-3. Perhaps our Supreme Court will at point some elect bring the same level of clarity to the term “jurisdiction” that the Supreme Court of the United States has Kontrick, in the federal meantime, arena but after to in Court referred Supreme in the exercise our engaging murky depths of the sea of Ghameshlouy “plumb[ing] ” hold S.E.2d at we ‘jurisdiction,’ suppression file the from his Smith’s failure to though nonethe- non-jurisdictional, was a violation of a hearing rule of mandatory, requirement less of a court.
Here, finds is “jurisdiction” the flavor of the dissent “authority by Rule 5A:8 is what it describes as implicated jurisdiction.” The uses this term as shorthand for dissent authority pro- limiting conclusion that a Court’s jurisdictional. definition The dissent’s by ceed to a decree dramatically “jurisdic- expand concept conclusion would simultaneously making amorphous tion” while it more than Moreover, ever. this conclusion would undermine the recent of our at least some meas- attempts bring Court long “jurisdictional” ure of order out of what has been chaos. Ghameshlouy, “ju- the term parsed “potential jurisdiction,” risdiction” into what termed as which encompassed:
subject
jurisdiction,
granted
matter
which is the authority
through
adjudicate
constitution or statute to
class of cases
controversies;
is,
jurisdiction,
authority
territorial
persons,
things,
over
or occurrences located
a defined
area;
jurisdiction,
notice
or effective notice to a
geographic
res;
in rem
and or if
of a
party
proceeding
seizure
which are demanded
other conditions
must exist
of fact
the unwritten or statute law as the
prerequisites
or decree
proceed
judgment
of the court
*8
jurisdiction”
which it described as the actual
“active
Ghameshlouy,
adjudicate
the merits.”
“power to
a case on
388-89,
(quoting
at 703
279 Va.
Bd. of
2)
Supervisors,
at 343-44 & n.
The dissent cites Rule 1:1 as an example of this concept of
“authority jurisdiction.”
certainly
We
must concede that as
in City
recently as its
v. Lummis Gin
decision
of Suffolk
Company,
(2009),
Furthermore, disagree we also with the dissent’s application of its concept “authority jurisdiction” of to Rule By way 5A:8. of analogy, seriously no one would that contend failure an appellant preserve an alleged by error complying with the contemporaneous objection requirements Rule 5A:18 deprives authority this Court of either the or ability decide the case on appeal—we simply may not be able to decide it on the merits where the record is silent the error was preserved for appeal. same is true here. The a failure of to file party transcript a our authority does not affect decide the case one whit. clearly authority We have the thus, dissent, even under analysis “jurisdiction” of the indeed, to do so and we our routinely obligation fulfill decide the appeals merits of when a transcript has not been filed, if the issue one that can be resolved without it. Since there is no precedent “jurisdictional” for a defect to operate selectively, seems axiomatic if to us that the failure to a file transcript denied this authority to exercise its appellate jurisdiction, necessarily this would every be true in case where the trial court record transcript, including lacked a those may require cases that not a transcript resolution of presented. above, the issue As noted Rules 5A:7 and 5A:8 have nothing whatsoever to do mandatory require- with the 5A:7(a)(7) ments for an “perfecting” appeal. Rule simply includes a the trial transcript definition of court record to be this considered Court on and Rule appeal, 5A:8 specifies that occurs when transcript this is filed in the office of the clerk of the trial court 60 days entry within after case, above, As on discussed the facts of this a distinction makes practical Jay only difference in Commonwealth because a holds that dismissal of a case constitutes determination that this Court lacks
jurisdiction. 5A:8 Rule 5A:7 nor Rule Neither judgment. of the final appeal. Appeals case on to decide a implicates record of the trial the contents of the upon are decided based of that court, degree completeness quality whatever the infirmity record, procedural merits or based on a either on the the merits.8 reaching this Court from prevents Jay that we the clear mandate Accordingly, given than on other may appeal not dismiss Rule 5A:8 comply failure to grounds, we hold that Smith’s non-jurisdictional requirement. rule constitutes a violation of suppression hearing, By filing appeal, of his indispensable Smith concedes is to the resolution adequate of an record to address deprived Smith this Court motion to deny he we Smith’s presents. the issue *11 waived, as underlying dismiss his treat issue appeal, affirm the trial court on that basis.
Affirmed.
PETTY, J., dissenting. question redefine the
Despite majority’s attempt us, make really simple: the issue is is a failure to quite before jurisdictional the record a transcript part indispensable a requires appeal? quarter defect that dismissal of the Over question answered that century ago, of a Court clear, language. The unambiguous, unequivocal said, must dismiss the writ as awarded. We improvidently [W]e jurisdictional nature take the occasion ... to reiterate appeal, to be a dismiss an there has 8. Since it is obvious that in order to dismiss, contemplates § a 17.1-407 us to and since Code case before process case is not further acted petition criminal cases in which the granted, appeal at least one upon by petition a for this Court unless position is that this consequence the dissent’s presumably unintended deny, every petition for required grant, be rather than Court would court as a been filed in the trial appeal has not in which considering prerequisite the case for later dismissal. for [former] 5:9 and to reemphasize the necessity of compliance with its mandatory requirements.
[*] [*] [*] % [*] [*] These are simple, easily understood provisions. rule But they jurisdictional, are and failure comply therewith will dismissal, ... result either before or appeal after awarded. We dislike dismissing appeals jurisdictional where, here, even we would affirm likely defects judgment of the trial court. Dismissal is especially unpalat- able, however, where the correctness of ruling below is apparent.
Towler v. 534-35, (1976) 120-21
In a sweeping departure
from this and other case law
acknowledging
rules,
nature of certain
majority proclaims that “a rule of
convey
court cannot
or limit
jurisdiction.”
Supra
at
693 S.E.2d at
Going
on to
explain why that statement
is consistent with the Supreme
holding
Court’s
contrary,
to the
the majority apologetically
notes that the Supreme Court’s “usage
‘jurisdictional’
[when
discussing these
is simply
rules]
another example of its use of
this term as inartful shorthand for what
in reality is more
”
accurately described as a mandatory ‘claims-processing rule.’
Supra
365 controlling precedent, we are bound to follow them. There- fore, I dissent.
Historically,
this Court has routinely dismissed cases for the
See Mitchell v.
failure to file an indispensable
transcript.9
O'Brien,
Smith v.
19, 2007);
No. 1548-06-4
Mar.
(Va.Ct.App.
Commonwealth,
Price v.
766,
Va.App.
(2000);
Price,
Clary v. Clary,
105,
17 Va.App.
(1993);
(1986). However,
since Jay
v.
(2008),
where this Court dismissed Jay, 5A:20(e). at 659 S.E.2d at an appropriate concluded that dismissal is The Id. jurisdictional. of a Rule is remedy only when the violation “[b]y 315. The Court stated that at 659 S.E.2d at denying dismissing the Court appeals, rather than 5A:20(e) jurisdic- of Rule Appeals requirements rendered the tional.” Id. held that it was original). The Court 5A:20(e) that Rule and concluded appeal error to dismiss that the suggest The Court went on jurisdictional. is not with that Rule is comply for the failure to appropriate remedy deny waived” and presented as question to “treat [the] or, appeal already if for had petition for petition appeal, Id. at In the S.E.2d at 317. affirm. granted, been Ap- “the Court of alternative, suggested also the Court petition ... to re-submit may require appellant peals or, strictly if ...” the failure opening brief appeal case on its decide the insignificant, to the Rule was adhere Id. merits. Jay was that only holding Court’s comply for failure to by dismissing erred Appeals
Court of
Jay,
then,
us not to
requires
Rule.14
non-jurisdictional
with a
27, 2009);
Dep’t
Tully
(Va.Ct.App. Jan.
v. Commonwealth
of Soc.
of Va.
2104-08-4,
Serv.,
Enforcement,
WL
Support
No.
Div.
Child
16, 2008).
(Va.Ct.App. Dec.
clearer,
hardly
holding
Jay
be
majority
could
"[t]he
14. The
states that
Appeals
denying
appeals,
dismissing
the Court
'[b]y
rather than
”
5A:20(e)
Supra
jurisdictional.’
requirements of Rule
rendered the
hardly
holding
be
agree
Jay's
could
at 767. I
assume
non-jurisdictional,
that all rules are
majority
does,
clearly
but to “adhere to this
juris-
distinction between
*14
non-jurisdictional
dictional and
requirements____”
rule
518,
Va. at
Like the
I
majority,
begin with the recognition
‘juris-
that
”
diction is a
too many, meanings.’ Ghamesh-
many,
word of
louy,
The term embraces concepts several including subject jurisdiction, matter authority granted is the through constitution or statute adjudicate a class of cases controversies; or jurisdiction, is, territorial authority over persons, or things, occurrences located in a defined area; geographic jurisdiction, notice or effective notice to a res; party if is in rem seizure of a proceeding and clearer, context, opinion reading holding but entire Court's simply Appeals dismissing that the Court of erred in for a violation of a non-jurisdictional Supreme holding entirely rule. The Court’s rests on 5A:20(e) contrast, jurisdictional. conclusion that Rule is not below, noted repeatedly consistently Court has held remedy that Rule 5A:8 is and the for a violation is Jay holding dismissal. Had the Court intended the overturn this long-standing precedent, explicitly I believe it would have done so. other must exist which are demanded
“the conditions offact unwritten law as prerequisites or statute of or decree.” proceed judgment court of Francis, added) Corp. Farant Inv. (quoting Id. (1924)); 427-28, Gham- 122 S.E. accord to each (referring S.E.2d at 703 eshlouy, Va. of a court’s of above as element type listed ” “ Bd. v. Bd. jurisdiction’ (quoting Supervisors ‘active 336, 343-44, 374, 379 Zoning Appeals, (2006))). “jurisdic- types The distinctions between these far more an academic because tion” are than exercise certain differences Court has mandated practical them. among adjudicate upon ... a case power
“Jurisdiction
is the
Bd.
dispose
justice may require.”
of it as
merits
*15
(quoting
626
at 378
Va. at
Supervisors,
(1920))
Sydnor,
126 Va.
S.E.
Shelton
(alterations
parsed
has
original).
The
Court
active
“jurisdiction”
concepts:
and
potential
term
into two
388-89,
at
at
689 S.E.2d
jurisdiction. Ghameshlouy,
subject
jurisdiction,
Potential
jurisdiction
702-03.
matter
by
“is
to
constitution
authority granted
[the court]
which
over a
class of
or controversies
specified
or statute
cases
However, potential
...”15 Id. at
at 702.
to
power
provide
alone is insufficient to
a court
jurisdiction
jurisdiction”
"potential
of sub-
majority
consists
15. The
contends
jurisdiction,
jurisdiction,
jurisdiction, and
ject
notice
matter
territorial
357-59,
How-
authority jurisdiction. Supra at
Neither
has
party
argued
subject
that we lack
matter
jurisdiction, and it would
certainly be futile exercise to do so.
Our
grants
Assembly
Constitution
the General
power
“the
original
determine the
and appellate jurisdiction of the courts
Const,
VI,
And,
§
Commonwealth.”
1.
Va.
art.
Assembly
General
exercised this
en-
power by
constitutional
§ 17.1-406(A)(i),
acting Code
clearly grants
this
Court appellate subject matter jurisdiction over
final
“any
conviction in a circuit court of a traffic infraction or a
therefore,
crime----” Unquestionably,
subject
this
has
jurisdiction
matter
appeal.
over this
I
like
am not
Ghameshlouy,
concerned with our
potential jurisdiction,
jurisdiction, or,
which is subject matter
the statutory
subject
of this Court to
consider
appeal.
matter
689 S.E.2d at
Nor
am I concerned with our personal jurisdiction over the parties.
however,
Subject
matter
personal jurisdiction,
*16
varying
purpose
pro-
these conditions
or
with the character
ceeding.
may
by
These conditions of fact
be
either
the
demanded
law,
principles
by
settled
the
of
unwritten
the mandate of the
statute law.”
are, indeed,
requisites
upon
There
four
to
court
essential
confer
a
classed, (1)
jurisdiction,”
may
juris-
potential
"active
which
be thus
diction, (2)
(3)
jurisdiction,
jurisdiction
territorial
actual
of the sub-
rem,
ject-matter
proceeding
proper
where the
is in
and also of the
(4)
parties
personal,
proceeding
where the
is
and
the other conditions
by
of fact must exist which are
unwritten or
demanded
the
statute
prerequisites
authority
proceed
law as the
of
of
to
to
the
the court
judgment or decree.
427-28,
added).
Corp.,
(emphasis
Farant Inv.
do
388-89,
Ghameshlouy,
the
This exercise matter Nel- jurisdictional concept. different completely distinct and Warden, (2001); see 276, 281, v. 552 S.E.2d son Va. 95, 98-99, 691 v. Mohamed 56 Va.App. also (2010). as commonly It “is described those 514-15 S.E.2d demanded fact must exist which are [that] ‘conditions of authority prerequisites statute law as the unwritten or of ” Mohamed, the court to judgment or decree.’ proceed to of Porter, (quoting at 276 Va. at at added). 426) subject Unlike 228, 661 at (emphasis S.E.2d or stat- jurisdiction, originates a constitution matter a majority attempts to draw a distinction between court’s 16. "authority” According majority, "authority." to the "power” and Thus, majority “power” that "a jurisdictional, but is not. states ’ depends upon ‘power actually a case to reach the merits of court’s imposed requirements any mandatory party's compliance and all (emphasis Supra at at 769-70 by the of court.” rules and, added). jurisprudence support this distinction in our I see no further, above, "jurisdiction” Court defined noted upon adjudicate Supervisors power a case the merits as "the to Board of dispose justice may require.” 626 S.E.2d at it as of Shelton, 85) (quoting Va. at 102 S.E. at power adjudicate an overall a case on the merits as I view a court’s including potential description concept jurisdiction both adjudicate a case on jurisdiction. for a court to in order active notice, matter, territorial, merits, subject court have must then, "authority” logically, is a jurisdiction. It follows "power” proceed the merits. required on element a court’s "authority” proceed judgment or limits a court’s Where rule decree, adjudicate "power” the case on the merits. has the court no description Court’s with the This seems to be consistent Porter, Supervisors, Nelson Ghameshlouy, Board of 73, Warden, (2001), etc. *17 ute, these conditions of fact often from “the arise unwritten or the statute law.” Id. fact a The that rule falls within this “authority jurisdiction” opposed “subject jurisdic- matter tion” not jurisdictional. does mean that the rule not On the a contrary, rule limits this Court’s to proceed to a by jurisdictional. decree is definition
Our delegated Supreme Constitution has to our specifically “authority Court the make governing rules the course appeals and the in practice procedures to be used the courts the but shall such rules not be in shall, conflict with the law as same general the from time to Const, time, by be established Assembly.” the General Thus, §VI, art. 5. the provides Constitution for both the Supreme Court and the Assembly promulgate General rules to govern such, the courts of the Commonwealth. As Supreme Court in engages quasi-legislative function promulgating these much rules in the way same that an agency quasi-legislative executive exercises in pro- function mulgating rules regulations pursuant Virginia Administrative Process Act. to the extent Supreme Court’s rules do conflict with those established by the General Assembly, those rules carry the force and effect of law. Assembly laws, General has general enacted numerous
and the Rules Supreme are Court consistent with those See § laws. Code But, 17.1-100 through 17.1-629. of legislation absence Assembly, from the General respon- sibility “making for governing rules appeals” course of predominantly Indeed, rests with the Supreme Court. Assembly General has delegated Supreme also to our Court the authority to “make general regulations for the practice Commonwealth,” all courts including system “a of rules 8.01-3(A). of practice----”17 § Code delegation This rule- making authority is addition to the consti- Court’s Assembly specifically, delegated More the General prescribe responsibility publish [t]he [the to] governing practice, procedure, processes initial rules and internal *18 Assembly disagrees If the General authority. tutional rules, time, by from time to the enact- “may, one of these law, by general modify, any adopted” of a or annul rules ment Const, 8.01—3(D); § see the Code also Va. Court. Smith, 13, VI, 5; 18, 263 § v. 557 art. Commonwealth Va. (2002) 223, Assembly that General (stating “[t]he S.E.2d 226 3A:6(b)” § by enacting Code 18.2- implicitly has modified Rule 31(8)). and the General Essentially, both the Constitution the delegated authority to Su- Assembly rulemaking have it to limit the preme Court and has allowed act in courts to certain situations. cannot, any court in contends that rule of majority However,
circumstance, jurisdiction. denying or limit convey has on the jurisdictional character never been based rule jurisdictional. a rule can never be assumption erroneous that 424, 416, Crutchfield, v. 265 See Water Control Bd. Va. State (2003). Indeed, in our 762, juris- 578 no decision S.E.2d 766 majority’s premise.” has established the “basic prudence ever Rather, precise has on the lan- analysis always the centered Id. In question. the rule in State Water guage specific of Board, Rule 2A:4 concluded that Control the language the of in the because of “absence the This view such a result.” Id. reinforces compelling jurisdiction language a Court if the rule can limit the of that a in rule such a result. compels the jurisdiction Rule 1:1 limits the circuit court’s example,
For orders, and decrees judgments, final prescribing “[a]ll court and ... under the control of trial shall remain modified, vacated, twenty-one suspended be subject Recently, longer.” and no days entry, after date 1:1 are provisions “the of Rule Supreme Court stated that stability certainty mandatory order assure has brings. judgment a final finality judgments Once speedy, Appeals designed just, achieve the Court of litigation consistent with inexpensive disposition in that court of all uniformity the law of the justice and maintain ends of Commonwealth. § Code 17.1-403.
373
day
been
and the
twenty-one
period
entered
time
Rule 1:1
trial
expired,
has
court is thereafter without
City
v. Lummis
Company,
Gin
case.”
278
Va.
of Suffolk
270,
(2009)
Fresh
276,
549,
(citing Super
Food
S.E.2d
552
683
Ruffin,
(2002));
Markets v.
accord
555, 561
263 Va.
S.E.2d 734
Re:
38,
Virginia,
Commonwealth
1,
S.E.2d
236,
(2009); Upper Occoquan
Auth. v. Blake
Sewage
255-56
Co.,
Constr.
41, 60,
10,
(2008);
v.
275 Va.
Safrin
Inc.,
Pumps
Travaini
412, 418,
352,
269 Va.
USA
James,
(2005);
James ex rel. Duncan v.
263 Va.
Markets,
Super
Fresh
(2002);
Food
S.E.2d
738-39;
Singh Mooney,
Va. at
The majority disregards line long by of cases simply calling the Supreme Court’s use the word “jurisdiction” an “inartful shorthand for what more accurately is described as rule’____” 360, Supra mandatory at ‘claims-processing 693 S.E.2d majority at 770. The in lengthy continues footnote to recognize perceives “facially what prece- irreconcilable Law Supreme dent from our Black’s Dictio- by citing Court” nary Supreme and two of Virginia Court cases18 that stand is, for the proposition; same that that to failure file an indispensable transcript Supra jurisdictional. at 360-61 n. 7, 693 at 770 presuming n. 7. In the Supreme Court has “taken steps refining concept juris- toward diction,” id., majority ju- the broad ignores definition Dudley majority Corp., 18. The Drug cites to both v. Florence 204 Va. 533, 465, 535, (1963), Towler, 535, 132 S.E.2d 467 Va. at 221 216 facially any S.E.2d at 121. Neither of these cases irreconcilable precedent majority I that the cites nor that can find. Indeed, and Porter. Ghameshlouy set out in risdiction ju- Rule 1:1 is proposition reinforced the Supreme Court “the circuit it stated that Ghameshlouy when risdictional beyond days extends over the case jurisdiction court’s at 703 689 S.E.2d 279 Va. at entry of the final order.” 1:1) added). (emphasis (citing Rule 1:1 is not Nonetheless, concludes that majority term in use of that Court’s “Rule it states footnote was inartful when Ghameshlouy rather limits the ‘jurisdiction,’ but 1:1 not limit a court’s does modify its court, already jurisdiction, has of a power at 360 entry.” Supra days than 21 after final order more However, original). (emphasis at 770 n. n. “ includes ‘other above, active a court’s as stated by the are demanded fact must exist which [that] conditions of authority prerequisites law as the unwritten or statute ” Porter, 276 or decree.’ judgment proceed the court to Corp., Inv. Farant (quoting 661 S.E.2d at atVa. 144) “These 427-28, 122 S.E. at Va. at factors, including various fact’ can be affected ‘conditions of Mohamed, of time.” passage ... Cook v. (citing
S.E.2d at (1970)). must exist the fact that Clearly, proceed the trial court’s prerequisite as a occurred the modification decree is whether judgment or *20 Thus, the final order. entry of the days after within jurisdictional.19 Rule 1:1 is I reach is that conclusion can only Nelson, 278, 262 Va. at Further, to both majority cites Commonwealth, 259 Va. 74, David Moore v. at 552 S.E.2d (2000), that our 406, as evidence 527 S.E.2d concept to steps refin[e] has “taken ” con- claim20that was involved a Baker Nelson ‘jurisdiction.’ Moreover, modifica- fact that the majority does not address the vacation, twenty-one-day tion, suspension order after that of a final or 261-62, at 443. period Crowley, 227 Va. at is void. Baker, from Commonwealth that arises 20. A Baker claim is one curiam), (1999) 1, aff'g v. Common- (per Baker S.E.2d 219 trolled by the rule established one year earlier in In Moore. Moore, the Court held that the statute limited the trial court’s authority to proceed 440, to judgment. 259 Va. at at 411. Because the limitation on the court’s authority limited jurisdiction, the Court held that the failure comply Nelson, rendered the judgment void. Id. the Supreme Court admitted its error in Moore and concluded that “the statutory requirement of parents notice to jurisdic- was not nature, tional but procedural in that a failure notify parents could be waived a object, failure to and correspondingly, that a comply failure to requirement with the rendered subse- quent convictions voidable and not void.” 262 Va. at S.E.2d at 77. Essentially, the Supreme Court concluded that the statute did not limit the trial court’s proceed all, judgment but merely rather imposes procedural Thus, requirement. the notice requirement jurisdic- was not tional.
The majority overlooks the Supreme Court’s discussion of
the language used in
specific statute,
dispositive
was
in
discussion,
that case.
In that
the Supreme Court acknowl-
edged that
in
the General Assembly removed language
from the statute
essentially
jurisdictional:
made it
“in no
case shall the hearing proceed until the
parent
parents of
...
child
have been notified.” Id. at
wealth,
(1998)
(holding
Thus, legal a unwilling I am to cast off such well-established jurisdiction over a trial court is divested of principle that the days. This limitation on the circuit twenty-one case after statutory no solely court’s is rule-based and has result, I “basic disagree majority’s foundation. As a limit a ... a court cannot create or premise rule of at 770. jurisdiction____” Supra at court’s hand, impera- to the case at it is Applying principles these jurisdictional nature of Rule 5A:8 is not tive to note that the and our Su- impression. an of first Both this Court issue repeatedly held that failure to file preme Court have in the dismissal of an transcript will result indispensable Drug Corporation, v. Florence appeal. Dudley (1963), 533, 535,132 tendered appellant 466-67 days sixty-day after the to the trial court six transcript 3(e) (f), 5:1, § was the forth in Rule and deadline set current Rules 5:11 and to former Rule 5:9 and precursor before the Court. transcript properly was not 5A:8.21 (f) 3(e) 5:1, mandatory § that “Rule and The Court stated 5:1, 3(e) (f) § to Rules 5:11 and 5A:8 in that 21. Rule and is similar making transcript of facts a provides procedure a or a statement a 5:1, 3(e) (f) provides § part as follows: of the record. Rule (e) hearing testimony of the trial or and other incidents Oral facts, by reporter, any statement of testimo- written transcribed part record when ny the case become or other incidents of clerk, signed transcript at the if the or statement delivered judge parties within 60 for all and tendered to end counsel days judgment. It signed by judge after final days and within certify on it the clerk who shall be forthwith delivered to the shall date he receives it. (f) signed by all counsel for transcript or statement not Such a clerk, if it is parties part the record when delivered to becomes by him days signed at the end judge within 60 tendered to the judgment. forthwith delivered days It shall be within 70 after final certify he receives it. Counsel on it the date the clerk who shall give opposing counsel tendering shall or statement tendering place of it and the time and written notice of reasonable original copy of it. or a true opportunity to examine the reasonable *22 jurisdictional a failure to with it is fatal to an comply and and added). Id. at 535, 132 The (emphasis S.E.2d at 467 appeal.” “plaintiff flagrantly that the has violated Court reasoned 3(e) (f)” 5:1, § of Rule and that mandatory requirements the Rule is fatal compliance a lack with “[s]uch added). Id. of this The Court (emphasis Court.” the writ of then sustained the defendant’s motion dismiss Id. error and dismissed writ.22 Towler, Similarly, appellant transcript in filed the with however, notice, court; accompany “any he failed to service, service,” which was acceptance certificate of Towler, 534, 221 by former Rule 5:9. 216 at required of the S.E.2d at 120. Our Court stated that because 5:9, appellant’s transcript failure abide former Rule Id. Then, not made of the stated part was record. Court transcript indispensable disposition was of the issues before it and concluded that it “must dismiss the writ added). Id. as The improvidently granted.” (emphasis stated: take the occasion ... to reiterate the
[w]e
nature
the necessi-
reemphasize
Rule 5:9 and to
[former]
do this
ty
compliance
mandatory provisions.
with its
We
because we have
far
of this
many
observed
too
violations
rule;
and we lament
the numerous instances
which we
have been forced to dismiss
failure to
appeals
because of
the rule’s requirements.
observe
added).
Id. at
534,
explain-
But
comply
failure to
therewith
dismissal,
result,
case,
will
present
either before
535,
or after appeal
Id. at
is awarded.”
at 121
This Court has also enunciated
principles
these
repeatedly
Smith,
See
throughout
its jurisprudence.
When, however,
may
the issues on appeal
be decided with
(i.e.
out the transcript
is not
transcript
indispensable),
absence does not limit our
to decide those issues
that do not
a
require
transcript.
have recognized
We
there
no
in
is mandate
our Rules that requires
party
either
file a transcript,
6 Va.App.
Wolfe
314,
(1988),
371 S.E.2d
absence
filing
“[t]he
or late
...
transcript
nothing
jurisdiction.”
does
to diminish our
Turner,
99,
“The is limited to the court’s review of the case appellate that an Turner, at at Va.App. record on appeal.” when, in the absence of transcript indispensable 402. A is degree necessary to the “complete the record is not transcript, id., the merits of the adjudicate appeal,” “determine id., appellate or resolution of allegations,” “permit appellant’s 5A:8(b). Thus, transcript it is clear that if the issues.” Rule “any assignments of error affected indispensable, then 5A:8(b) (empha- not be considered.” Rule the omission shall sis Turner, transcript
In
determined that
was
this Court
“no
but
indispensable and concluded
there was
alternative
mandatory rule
comply
to dismiss the case for failure to
Turner,
at 402.
provisions.”
Va.App. at
We
Anderson,
at
Va.App.
reached the same conclusion
“[bjecause
at
where we said
the statement of
indispensable
question
facts is
to a determination
contrast,
presented,
appeal.”
we must dismiss the
howev-
er, we reached the merits in
because “the
present-
issue
Wolfe
ed ...
of resolution
capable
transcript.”
[was]
without
Wolfe, 6
Contrary majority’s position, Supreme to the Towler, Fearon, opinion Jay nothing does overturn Smith, Anderson, Williams, Bunton, Crum, Dudley, Clary, Turner, post-Jay or Barrett. our Holley, While Jordan^ dismissing from application may changed of Rule 5A:8 have issue, our does affirming by jurisprudence cases affected Indeed, just year, Supreme last our support practice. order,23 Court, in held that this Court did not unpublished Castle, (2002), 23. Sheets Supreme Court stated: in dismissing err an appeal ground “on the or written statement of ‘indispensable facts was to a determina- ”24 O’Brien, tion of the questions presented.’ Mitchell v. No. (Va. 2009). Feb.
Further,
I note several
important distinctions between
First,
Rules 5A:20 and
5A:20,
5A:8.
unlike Rule
Rule 5A:8
expressly limits our authority to act.
the appellant
“When
fails to ensure that the record contains transcripts or a written
statement of facts necessary
permit
resolution
appellate
issues, any
the omission shall
assignments
by
error affected
not be considered.” Rule 5A:8 (emphasis
Rule 5A:20
merely states that
opening
“the
brief of appellant shall con
items,
tain” a list of
a phrase that does not limit our authority
proceed
Second,
judgment
decree.
a violation of Rule
5A:8,
5A:20,
unlike a violation of Rule
cannot be corrected or
overlooked.
Once
time limit for
filing
transcript with
the trial court has
expired,
cannot thereafter be extended.
Jordan,
S.E.2d 168.25 The Supreme Court
exception
procedural
With the
of cases with
defects and the limited
appellate
by
number of
Supreme
cases for which
review the
Court of
Virginia
dependent upon
question
"a substantial constitutional
as a
significant precedential
determinative issue or matters of
value”
(Code
-411),
§§ 17.1-410
petition
appeal
of a
refusal
constitutes a decision on the merits.
And,
merits”—including
a “decision on the
petition
the denial of a
value,
appeal—has precedential
long
grounds upon
as "the
the refusal is based are discernible from the four comers of the Court’s
411-12,
order.” Id. at
precedent. My opinion here is buttressed the fact that our dismissal of the O’Brien, 19, 2007), case (Va.Ct.App. in Mitchell v. No. 1548-06-4 Mar. pre-Jay unpublished was and the Court’s order was released O’Brien, (Va. 13, 2009). post-Jay, Mitchell v. No. 072633 Feb. majority argument 25. The jurisdic- also raises the that Rule 5A:18 is not support argument tional in jurisdic- order to that Rule 5A:8 is not jurisdictional. tional. Of course Rule 5A:18 is not It contains an "ends justice” exception, something jurisdiction- that is inconsistent with a *25 Jay address a could take actions to noted 5A:20, an to refile requiring appellant of Rule such as violation are available No such corrective measures a defective brief. indispensable transcript. a failure to file an to address Thus, indispensable transcript is I would hold that when record, this Court lacks both part not made to address the issues raised. There- ability and the that, fore, transcript indispensable, I if the is would conclude is dismiss- remedy failing transcript to file such proper Thus, fate of this particular al. to determine whether dismissal, affirmance, reversal, I next would appeal is tran- untimely-filed suppression-hearing decide whether decide this case. script indispensable ability is to our only presented that Smith raises on the merits question his judge denying of this case is whether the trial erred suppress motion to an out-of-court identification because the unduly suggestive. circumstances were Smith’s motion to neutral, argued he and unbiased suppress complete, “that not to the victim” photographic lineups provided alleged were and he notice that he would “move to exclude all gave identify- ing subsequent evidence from admission into evidence at his only regarding trial.” That is the information the record simply the victim’s identification of Smith. The record includ- indictment, typical ed the court documents such as the motion order, suppress, plea agreement, sentencing conviction or- dismiss, der, appeal, notice of Smith’s motion to and the from the In the absence of the transcript sentencing hearing. is suppression-hearing transcript, complete the record degree necessary adjudicate and determine appeal Therefore, I would appellant’s allegations. the merits of the indispens- conclude that the suppression-hearing question presented. able to the resolution of Smith’s thereby I allow- Accordingly, appeal, would dismiss Smith’s to stand. ing his convictions 5A:8, however, mandatory, provides requirement. for no
al logic argument. exception. to see the in that I fail