Robert Edward Woody v. County of Amherst ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Petty and Alston
Argued by teleconference
ROBERT EDWARD WOODY
MEMORANDUM OPINION * BY
v. Record No. 2909-08-3 JUDGE ROSSIE D. ALSTON, JR.
JULY 20, 2010
COUNTY OF AMHERST
FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge
Joseph A. Sanzone (Sanzone & Baker, P.C., on brief), for
appellant.
(W. Lyle Carver, Assistant Commonwealth’s Attorney, on
brief), for appellee. Appellee submitting on brief.
Robert Edward Woody appeals his conviction for driving under the influence of alcohol.
Because he has not properly perfected his appeal to this Court, we dismiss the appeal.
I. BACKGROUND
A panel of this Court previously discussed the factual circumstances that resulted in
Woody’s arrest for driving under the influence in Woody v. Commonwealth, 53 Va. App. 188,
670 S.E.2d 39 (2008) (hereinafter “Woody I”). We will not restate those facts here; rather, we
will relate only those facts specifically relevant to the instant appeal.
On June 7, 2007, a deputy of the Amherst County’s Sheriff’s Department arrested Woody
for driving under the influence. 1 A warrant of arrest was issued by the Amherst County
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The deputy also charged appellant with refusing to take a blood test “in violation of
Section 18.2-268.3, Code of Virginia.” Appellant was tried and convicted of this offense. That
conviction is not the subject of this appeal.
magistrate on a preprinted form, which described the offense as a “Misdemeanor (Local)” and
identified the offense as a “violation of Section 18.2-266/9.1, Code or Ordinances of this city,
county or town.” 2 The General District Court of Amherst County heard Woody’s case, and
found him guilty of driving under the influence. Woody timely appealed his conviction to the
Circuit Court of Amherst County. After a bench trial, the trial court found Woody guilty of
driving while intoxicated on October 22, 2007. The sentencing order (hereinafter “October 22,
2007 order”) was styled, “County of Amherst v. Woody.” It stated that Woody was charged
with violating “Code Section 18.2-266, Local Ordinance,” and Woody was convicted for a
violation of Code § 18.2-266.
2
Section 9.1 of the Amherst County Code states in pertinent part:
Pursuant to the authority of Code of Virginia, § 46.2-1313
and Code of Virginia, § 1-13.39:2, all of the appropriate provisions
and requirements of the laws of the state contained in VA. Code
Ann. Title 46.2, in Article 9 of Chapter 11 of Title 16.1 of the
Code of Virginia (Code of Virginia, § 16.1-278 et seq.), and in
Article 2 of Chapter 7 of Title 18.2 of Code of Virginia (Code of
Virginia, § 18.2-266 et seq.), as in effect on July 1, 2006, and as
amended thereafter, except those provisions and requirements the
violation of which constitutes a felony, and except those provisions
and requirements which by their very nature can have no
application to or within the county, are hereby adopted and
incorporated in this chapter by reference and made applicable
within the county. Such incorporation by reference is specifically
intended to include future amendments to the state statutes cited
above.
* * * * * * *
It shall be unlawful for any person within the county to
violate or fail, neglect or refuse to comply with any provision of
said Code of Virginia which is adopted by this section; provided,
that in no event shall the penalty imposed for the violation of any
provision or requirement hereby adopted exceed the penalty
imposed for a similar offense under said Title 46.2, Article 9 of
Chapter 11 of Title 16.1 or Article 2 of Chapter 7 of Title 18.2 of
the Code of Virginia.
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Within 30 days of the entry of the October 22, 2007 order, Woody filed a notice of appeal
styled “Commonwealth of Virginia v. Robert Edward Woody” and naming the Commonwealth
of Virginia as the appellee. This Court granted Woody’s petition for appeal challenging the
sufficiency of the evidence on the driving under the influence charge. “Prior to oral argument,
[this Court] ordered counsel for both parties to submit supplemental briefs addressing the
following question: ‘Does this Court have jurisdiction to hear this appeal where (a) the final
order reflects that the prosecution was brought by the County under a local ordinance, and (b) the
notice of appeal identified the Commonwealth of Virginia and not the County of Amherst as the
appellee?’” Woody I, 53 Va. App. at 193, 670 S.E.2d at 42. Shortly thereafter, Woody filed a
“Motion for Permission to File a Motion to Correct a Clerical Error” in this Court, in which
Woody “move[d] for permission to file a Motion to Correct the style of Case Number
CR07013085-01 in Amherst Circuit Court from ‘County of Amherst v. Robert Edward Woody’
to ‘Commonwealth of Virginia v. Robert Edward Woody.’” 3 Woody asserted that the
Commonwealth did not object to the motion.
One month later, on October 26, 2008, this Court remanded the case to the trial court,
stating,
Because there is ambiguity as to whether the trial court found
appellant guilty of a violation of Section 18.2-266 of the Code of
Virginia or of Section 9.1 of the Amherst County Code
(incorporating Section 18.2-266)[,] we remand this to the trial
court for entry of a corrected order clearly showing whether it
convicted appellant for a violation of the Code of Virginia or of the
Amherst County Code.
On October 30, 2008, the trial court entered a corrected order (hereafter “October 30, 2008
order”) that clearly indicated that Woody was convicted of a violation of Amherst County Code
§ 9.1.
3
CR07013085-01 was the case number assigned to the instant case in the trial court.
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This Court published Woody I on December 30, 2008. It dismissed Woody’s appeal of
the October 22, 2007 order on the grounds that this Court did not have jurisdiction over Amherst
County. Id. at 200, 670 S.E.2d at 45. This Court found:
Woody filed a notice of appeal within the mandatory thirty-day
time period, but he never named the County as a party-neither as
an appellant nor as an appellee. There is no doubt that the County
is an indispensable party. It is clear from the record and the trial
court’s October 30, 2008 order that the County was the prosecuting
authority for the driving while intoxicated charge. It is also clear
from the record that Woody named the Commonwealth of Virginia
as appellee in his notice of appeal, petition for appeal, and opening
brief of appellant. Further, in Woody’s certificate to his notice of
appeal, Woody specifically stated, “[t]he name of appellee is The
Commonwealth of Virginia.”
Id. at 197, 670 S.E.2d at 44. This Court found the County was an indispensable party to the
appeal, and thus this Court did not have jurisdiction over Amherst County due to Woody’s
“failure to comply with a requirement made mandatory by both statute and rule, and, more
importantly, . . . [its] failure to transfer jurisdiction over the indispensable party from the trial
court to the appellate court.” Id. at 199-200, 670 at 45 (citing Watkins v. Fairfax County Dep’t
of Family Servs., 42 Va. App. 760, 770-73, 595 S.E.2d 19, 24-26 (2004)) (internal quotation
marks omitted).
On November 26, 2008, before the publication of Woody I, appellant noted his appeal of
the October 30, 2008 order, arguing that the Commonwealth’s evidence was insufficient to prove
beyond a reasonable doubt that appellant was guilty of driving under the influence. This Court
granted the petition for appeal, and further directed the parties to brief the following question:
“Whether the October 30, 2008 order is an appealable final order.” The instant appeal followed.
II. ANALYSIS
Preliminarily, we must determine whether the October 30, 2008 order is a final
conviction order over which this Court has jurisdiction. Code § 17.1-406(A)(i) states that “[a]ny
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aggrieved party may present a petition for appeal to the Court of Appeals from any final
conviction in a circuit court.” (Emphasis added). The Supreme Court of Virginia has held that
“[t]he statutory language is restrictive, limiting the Court of Appeals’ appellate jurisdiction to
appeals from final criminal convictions and from action on motions filed and disposed of while
the trial court retains jurisdiction over the case.” Commonwealth v. Southerly, 262 Va. 294, 299,
551 S.E.2d 650, 653 (2001). Rule 5A:6(a) 4 provides the time frame in which the notice of
appeal to this Court must be filed:
No appeal shall be allowed unless, within 30 days after entry of
final judgment or other appealable order or decree, counsel files
with the clerk of the trial court a notice of appeal, and at the same
time mails or delivers a copy of such notice to all opposing counsel
and the clerk of the Court of Appeals.
Woody argues that the October 30, 2008 order was the final order in the criminal
prosecution below. Woody posits that the October 22, 2007 order left unsettled a vital question
as to the true parties to the prosecution; therefore, it could not be the final conviction order,
because “[a] decree is final only when the entire subject matter is disposed of and nothing left
save such ministerial acts as may be necessary to its complete enforcement.” Allen v. Parkey,
154 Va. 739, 749, 149 S.E. 615, 619 (1929) (citing Richardson v. Gardner, 128 Va. 676, 105
S.E. 225 (1920)). Woody asserts that the October 30, 2008 order accomplished more than the
correction of a clerical error; according to Woody, it changed the prosecuting party from the
Commonwealth to Amherst County, the pertinent criminal code from the Virginia Code to the
4
On January 1, 2009, and July 1, 2010, Rule 5A:6(a) was amended to read
No appeal shall be allowed unless, within 30 days after entry of
final judgment or other appealable order or decree, or within any
specified extension there of granted by this Court under Rule
5A:3(a), counsel files with the clerk of the trial court a notice of
appeal, and at the same time mails or delivers a copy of such notice
to all opposing counsel.
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Amherst County Code, and to whom Woody paid the costs and fines associated with his
conviction.
We disagree with Woody. In filing the motion for permission to correct a clerical error,
Woody conceded that he was seeking the correction of a scrivener’s error in the final order of the
case. Thus, this Court remanded the case to the trial court for the entry of a “corrected order
clearly showing whether it convicted appellant for a violation of the Code of Virginia or of the
Amherst County Code.” The October 30, 2008 order was entered pursuant to Code
§ 8.01-428(B), which provides:
Clerical mistakes in all judgments or other parts of the record and
errors therein arising from oversight or from an inadvertent
omission may be corrected by the court at any time on its own
initiative or upon the motion of any party and after such notice, as
the court may order. During the pendency of an appeal, such
mistakes may be corrected before the appeal is docketed in the
appellate court, and thereafter while the appeal is pending such
mistakes may be corrected with leave of the appellate court.
Code § 8.01-428(B) is a prescriptive statutory provision simply providing a mechanism to
correct non-substantive errors in the record. It neither enhances nor diminishes the jurisdiction
of this Court. Accordingly, the October 30, 2008 order merely corrected a clerical error and
clarified that Woody was convicted under the Amherst County Code in the October 22, 2007
order. As such, and as we found in Woody I, the October 22, 2007 order was the final
appealable conviction order in the case. Because Woody failed to file a timely notice of appeal
that named the proper prosecuting authority, we do not have jurisdiction over the appeal of
Woody’s conviction under Amherst County Code § 9.1. See Johnson v. Commonwealth, 1
Va. App. 510, 512, 339 S.E.2d 919, 920 (1986) (holding that “the failure to file a notice of
appeal with the clerk of the trial court within 30 days after entry of final judgment as required in
Rule 5A:6(a) is jurisdictional” (citing Williams v. Landon, 1 Va. App. 206, 336 S.E.2d 907(1985); cf. Vaughn v. Vaughn, 215 Va. 328, 329, 210 S.E.2d 140, 142 (1974))).
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III. CONCLUSION
Accordingly, we lack jurisdiction to consider the instant appeal, and must dismiss it.
Dismissed.
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