Timmy Brown v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia
TIMMY BROWN
MEMORANDUM OPINION * BY
v. Record No. 1596-02-1 JUDGE JERE M. H. WILLIS, JR.
MARCH 18, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Louis R. Lerner, Judge
Terry N. Grinnalds for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Timmy Brown was convicted in a bench trial of possession of
marijuana. On appeal, he contends (1) that the trial court
erred by denying his motion to suppress, and (2) that the
evidence is insufficient to support his conviction. The
Commonwealth has filed a motion to dismiss, arguing that because
Brown has not been sentenced in the trial court, there is no
final order upon which to base this appeal. We agree and
dismiss the appeal.
BACKGROUND
On September 20, 2001, Brown was convicted in the Hampton
Juvenile and Domestic Relations District Court of possession of
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
marijuana. Because he had moved to Newport News, his case was
transferred to the juvenile and domestic relations court of that
jurisdiction, where final disposition occurred on January 10,
2002. He moved back to Hampton and appealed his conviction to the
trial court, which found him guilty and, in its March 14, 2002
conviction order, "transferred [the] matter to the Hampton
Juvenile and Domestic Relations District Court for final
disposition." Brown appeals from that order.
Analysis
Code § 17.1-406 provides, in pertinent part, that "[a]ny
aggrieved party may present a petition for appeal to the Court
of Appeals from . . . any final conviction in a circuit court of
a traffic infraction or a crime, except where a sentence of
death has been imposed." (Emphasis added.)
It is well settled that in the absence
of statute the pronouncement of sentence is
a prerequisite to the finality of a
judgment. Consequently, where an appeal is
limited to a final judgment, an order
wherein the pronouncement of sentence is
suspended is ordinarily not appealable.
Fuller v. Commonwealth, 189 Va. 327, 330, 53 S.E.2d 26, 27
(1949). The trial court convicted appellant but did not
pronounce sentence. Instead, it transferred the case back to
the juvenile court.
In pertinent part, Code § 16.1-297 provides:
Upon the rendition of final judgment upon an
appeal from the juvenile and domestic
relations district court, the circuit court
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shall cause a copy of its judgment to be
filed with the juvenile court within
twenty-one days of entry of its order, which
shall thereupon become the judgment of the
juvenile court. . . . [T]he circuit court
may remand the child or adult to the
jurisdiction of the juvenile court for its
supervision and care, under the terms of its
order or judgment, and thereafter such child
or adult shall be and remain under the
jurisdiction of the juvenile court in the
same manner as if such court had rendered
the judgment in the first instance.
Because the trial court failed to render a final judgment, it
transferred the case to the juvenile court prematurely.
Likewise, this appeal is premature. Therefore, we dismiss the
appeal without prejudice and remand the case to the trial court.
Dismissed.
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