Stacy Myers v. Commonwealth of Virginia ( 1998 )


Menu:
  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Baker, Willis and Overton
    Argued at Norfolk, Virginia
    STACY MYERS
    OPINION BY
    v.           Record No. 1536-97-1       JUDGE JERE M. H. WILLIS, JR.
    FEBRUARY 17, 1998
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
    Walter J. Ford, Judge
    Charles E. Haden (Timothy G. Clancy; Cumming,
    Hatchett & Jordan, on brief), for appellant.
    Robert H. Anderson, III, Assistant Attorney
    General (Richard Cullen, Attorney General, on
    brief), for appellee.
    Stacy Myers contends that the evidence fails to support her
    conviction of second-degree murder.    The Commonwealth has moved
    to dismiss this appeal, arguing that it has been heretofore
    concluded.    We grant the Commonwealth's motion and dismiss this
    appeal.
    On February 3, 1992, a grand jury indicted Myers for murder,
    Code § 18.2-32, and felony child neglect, Code § 18.2-371.1.    The
    charges stemmed from the death of Myers' newborn infant daughter
    on October 25, 1991.    The charges were tried at a bench trial on
    April 22, 1992.     The trial court ruled orally:
    I think she's guilty of the charge of
    the felony murder. Not -- not first degree.
    I don't think there's -- Commonwealth
    established first degree murder in the case,
    but I do think it's second degree. And I
    find her guilty.
    The conviction order, entered April 22, 1992, and the sentencing
    order, entered August 19, 1992, recited that Myers was convicted
    of second-degree murder, in violation of Code § 18.2-32.     The
    child neglect charge was dismissed.
    Myers appealed her 1992 conviction, contending that the
    evidence failed to support a conviction for felony murder under
    Code § 18.2-33.   In an unpublished opinion, a panel of this Court
    reversed the conviction, holding that the evidence failed to
    support a conviction of second-degree murder.     Myers v.
    Commonwealth, Record No. 1780-92-1 (Va. Ct. App. July 26, 1994).
    Upon rehearing en banc, we affirmed the conviction in an
    unpublished opinion.    Myers v. Commonwealth, Record No. 1780-92-1
    (Va. Ct. App. May 16, 1995) (en banc).     We held that Myers was
    precluded from appellate relief, because she had failed to
    challenge her conviction for second-degree murder under Code
    § 18.2-32, the statute under which she had been charged and
    convicted.   See Rule 5A:12(c).    The Supreme Court denied Myers'
    petition for appeal from our decision.     Myers v. Commonwealth,
    Record No. 951094 (Va. Oct. 25, 1995).
    On May 29, 1997, Myers moved the trial court to correct the
    conviction and sentencing orders pursuant to Code § 8.01-428(B)
    to reflect that she had been convicted under Code § 18.2-33, not
    under Code § 18.2-32.   On June 13, 1997, the trial court granted
    the motion and ordered:
    That Defendant's conviction order
    entered April 22, 1992 and sentencing order
    entered August 22, 1992, be, and hereby are,
    corrected pursuant to Va. Code § 8.01-428(B)
    to reflect that the Defendant STACY MYERS was
    - 2 -
    convicted under Va. Code § 18.2-33, not Va.
    Code § 18.2-32.
    From the June 13, 1997 order, Myers initiated this appeal on
    the erroneous assumption that the 1997 order vacated the 1992
    orders and created a new final order from which her conviction
    could be appealed.
    Rule 1:1 provides that:
    All final judgments, orders, and
    decrees, irrespective of terms of court,
    shall remain under the control of the trial
    court and subject to be modified, vacated, or
    suspended for twenty-one days after the date
    of entry, and no longer.
    No action was taken to modify, vacate, or suspend the 1992 orders
    within the prescribed twenty-one day period following their
    entry.    Thereafter, those orders became final and the trial court
    lost jurisdiction to review the conviction.     See Hirschkop v.
    Commonwealth, 
    209 Va. 678
    , 
    166 S.E.2d 322
     (1969); School Bd. of
    Lynchburg v. Caudill Rowlett Scott, Inc., 
    237 Va. 550
    , 
    379 S.E.2d 319
     (1989); Davis v. Mullins, 
    251 Va. 141
    , 148-49, 
    466 S.E.2d 90
    ,
    94 (1996).    Myers' conviction was subsequently affirmed by this
    Court, and the Supreme Court refused her petition for appeal.
    Her conviction thus became final and unassailable on direct
    appeal.
    Although divested of jurisdiction, a "trial court has the
    inherent power, independent of statutory authority, to correct
    errors in the record so as to cause its acts and proceedings to
    be set forth correctly."     Davis, 251 Va. at 149, 466 S.E.2d at 94
    - 3 -
    (citing Council v. Commonwealth, 
    198 Va. 288
    , 292, 
    94 S.E.2d 245
    ,
    248 (1956)). In addition, Code § 8.01-428(B) provides that:
    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.
    See also Code § 8.01-429 (providing appellate courts
    corresponding authority).
    Code § 8.01-428(B) did not invest the trial court with
    authority, by entry of the June 13, 1997 order, to substitute a
    conviction under Code § 18.2-33 for Myers' final conviction under
    Code § 18.2-32.   The trial court was not authorized to reconsider
    the merits of Myers' conviction.    It was not authorized to vacate
    a judgment that had become final.   It was not authorized to enter
    a new judgment that was not underlain by an appropriate charge,
    process, plea, or authorized manner of disposition.
    The trial court purported to exercise the discretionary
    power conferred upon it by Code § 8.01-428(B) to correct
    "clerical mistakes arising from oversight or from an inadvertent
    omission."   Thus, the 1997 order could effect only a mere
    clerical "correction," amending the record to make it "speak the
    truth."   See Council, 198 Va. at 292-93, 94 S.E.2d at 248.    The
    post-appeal "correction" of the 1992 orders could not modify or
    vacate the conviction.   Modification or vacation would have
    required reacquisition by the trial court of jurisdiction over
    - 4 -
    the underlying subject matter -- an impermissible action barred
    by Rule 1:1.   See Dixon v. Pugh, 
    244 Va. 539
    , 543, 
    423 S.E.2d 169
    , 171 (1992); Davis, 251 Va. at 149-50, 466 S.E.2d at 95.
    This holding is consonant with the narrow construction and
    application afforded a trial court's power to amend and correct a
    record.   See Council, 198 Va. at 292, 94 S.E.2d at 248; McEwen
    Lumber Co. v. Lipscomb Bros. Lumber Co., 
    234 Va. 243
    , 247, 
    360 S.E.2d 845
    , 848 (1987).
    To permit a trial court, either under
    the statute or by its inherent power, to
    consider at any time what judgment it might
    have rendered while it still retained
    jurisdiction over a case and then to enter
    that judgment nunc pro tunc would render
    meaningless the mandate of Rule 1:1 and would
    do great harm to the certainty and stability
    that the finality of judgments brings.
    Davis, 251 Va. at 150, 466 S.E.2d at 94.
    Because the 1997 correction order could not change the
    specific crime of which Myers was convicted, it was a nullity.
    Thus, it was not an order from which an appeal to challenge her
    1992 conviction may be sought anew.      Consequently, we cannot
    1
    decide the merits of this appeal.       The Commonwealth's motion is
    granted, and the appeal is dismissed.
    Dismissed.
    1
    Myers was sentenced to ten years imprisonment. Conviction
    of second-degree murder under Code § 18.2-32 carries a sentence
    of five to forty years. Conviction of murder under Code
    § 18.2-33 is punishable as a Class 3 felony, carrying a sentence
    of five to twenty years. Myers' sentence fell within the
    punishment scope of both statutes.
    - 5 -
    

Document Info

Docket Number: 1536971

Judges: Baker, Willis, Overton

Filed Date: 2/17/1998

Precedential Status: Precedential

Modified Date: 11/15/2024