COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Humphreys, Malveaux and Senior Judge Frank Argued at Newport News, Virginia
JUSTIN SETH RILEY MEMORANDUM OPINION* BY v. Record No. 0405-17-1 JUDGE ROBERT P. FRANK DECEMBER 27, 2017 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Leslie L. Lilley, Judge
William H. O’Brien (Doummar & O’Brien, on brief), for appellant.
Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Justin Seth Riley, appellant, was convicted, in a bench trial, of driving under the
influence, in violation of Code § 18.2-266. On appeal, appellant challenges the trial court’s
denial of his motion to suppress the evidence derived from his traffic stop. For the reasons
stated, we dismiss the appeal.
PROCEDURAL BACKGROUND
Initially, appellant filed a motion to suppress the evidence derived from the traffic stop.
The court denied that motion. Thereafter, appellant entered a plea of guilty to the charge. The
court found appellant guilty and sentenced him by order entered November 3, 2016. On
November 16, 2016, appellant filed a motion to reopen, contending the Commonwealth agreed to
allow him to file a conditional plea of guilty to preserve his right to appeal the suppression issue.
On November 17, 2016, the court, with the Commonwealth’s concurrence, ordered the case be
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. reopened and placed back on the docket on December 8, 2016. On December 20, 2016, the court
allowed appellant’s original guilty plea to be amended to a conditional plea and ordered the
original sentence re-imposed. The execution of the sentence was ordered stayed during the
pendency of the appeal. Appellant’s notice of appeal was filed January 19, 2017 in the trial
court.
ANALYSIS
Before we address the merits of appellant’s motion to suppress, we must first resolve the
Commonwealth’s contention that the trial court had no authority to grant appellant’s motion to
amend his earlier guilty plea to a conditional plea of guilty, in that the motion had to be acted on
within twenty-one days after the entry of the final judgment order.1 See Rule 1:1; Hackett v.
Commonwealth, 293 Va. 392, 399, 799 S.E.2d 501, 505 (2017) (holding that Rule 1:1 limits a
trial court’s authority to alter a final order, absent some other statute or rule, to twenty-one days
following the date of entry of the order). Furthermore, “[t]he running of the twenty-one-day time
period prescribed by Rule 1:1 may be interrupted only by the entry, within the twenty-one-day
period, of an order modifying, vacating, or suspending the final judgment order.” Hackett, 293
Va. at 399, 799 S.E.2d at 505 (emphasis added) (quoting Super Fresh Food Mkts. of Va., Inc. v.
Ruffin, 263 Va. 555, 560, 561 S.E.2d 734, 737 (2002)).
Our review of whether the trial court retained jurisdiction over the case to allow it to
consider appellant’s motion to amend his guilty plea involves the interpretation of the Rules of
the Supreme Court of Virginia. Thus, it poses a question of law that we review de novo. See
LaCava v. Commonwealth, 283 Va. 465, 470-71, 722 S.E.2d 838, 840 (2012). “[W]e have
jurisdiction to consider this appeal only if the trial court had jurisdiction to entertain the
1 The twenty-one-day time period expired on November 28, 2016. The twenty-first day was November 24, 2016, which was a legal holiday, and the next day the court was open was Monday, November 28, 2016. -2- underlying motion.” Minor v. Commonwealth, 66 Va. App. 728, 738, 791 S.E.2d 757, 762
(2016) (dismissing appeal because trial court no longer had jurisdiction over the case when it
considered defendant’s motion to withdraw his guilty pleas). We find here that the trial court did
not have such jurisdiction.
The very narrow issue before us is whether the final sentencing order, entered November
3, 2016, or any other order entered within twenty-one days therefrom, “clearly and expressly
modified, vacated or suspended the final judgment.” Super Fresh, 263 Va. at 563, 561 S.E.2d at
739. We must consider whether the language of the order of November 17, 2016, which
“ADJUDGED, ORDERED and DECREED that the case be reopened and placed back on the
docket on December 8, 2016,” complied with the requirements of Rule1:1. Stated differently,
the question is whether the trial court still had control over the final judgment of November 3,
2016 when it modified that order on December 20, 2016, amending appellant’s plea.
Rule 1:1 addresses the finality of judgments and provides the following, in pertinent part:
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. . . . The date of entry of any final judgment, order, or decree shall be the date the judgment, order, or decree is signed by the judge.
“[U]nless an order vacating or modifying a final judgment is entered before the expiration of 21
days, the final judgment is no longer under the control of the trial court.” In Re: Dept. of
Corrections, 222 Va. 454, 464, 281 S.E.2d 857, 862-63 (1981); Lyle and Allen v. Ekleberry, 209
Va. 349, 350-51, 164 S.E.2d 586, 587 (1968). “Neither the filing of post-trial or post-judgment
motions, nor the court’s taking such motions under consideration, nor the pendency of such
motions on the twenty-first day after final judgment is sufficient to toll or extend the running of
the 21-day period prescribed by Rule 1:1 . . . .” Davis v. Mullins, 251 Va. 141, 148-49, 466
-3- S.E.2d 90, 94 (1996) (quoting School Bd. of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va.
550, 556, 379 S.E.2d 319, 323 (1989)).
“[Rule 1:1] requires that the trial court enter an order that expressly modifies, vacates, or
suspends the judgment.” Super Fresh, 263 Va. at 563, 561 S.E.2d at 734. Absent an express
order, “the case will no longer be under the control of the trial court when the original
twenty-one-day time period has run.” Id.; see Godfrey v. Williams, 217 Va. 845, 845-46, 234
S.E.2d 301, 301-02 (1977). Any action taken after the time expires “is a nullity.” Minor, 66
Va. App. at 739-40, 791 S.E.2d at 762.
“Black’s Law Dictionary defines ‘express’ as ‘clear,’ ‘definite,’ ‘plain,’ ‘explicit,’
‘direct,’ ‘unmistakable.’” Hardesty v. Hardesty, 40 Va. App. 663, 674, 581 S.E.2d 213, 219
(2003) (quoting Black’s Law Dictionary 580 (6th ed. 1990)). See Richmond v. Sutherland, 114
Va. 688, 697, 77 S.E. 470, 473 (1913) (“Bouvier’s Law Dictionary gives the definition of
‘express’ as ‘stated or declared as opposed to implied; that which is made known and not left to
implication.’”).
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COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Humphreys, Malveaux and Senior Judge Frank Argued at Newport News, Virginia
JUSTIN SETH RILEY MEMORANDUM OPINION* BY v. Record No. 0405-17-1 JUDGE ROBERT P. FRANK DECEMBER 27, 2017 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Leslie L. Lilley, Judge
William H. O’Brien (Doummar & O’Brien, on brief), for appellant.
Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Justin Seth Riley, appellant, was convicted, in a bench trial, of driving under the
influence, in violation of Code § 18.2-266. On appeal, appellant challenges the trial court’s
denial of his motion to suppress the evidence derived from his traffic stop. For the reasons
stated, we dismiss the appeal.
PROCEDURAL BACKGROUND
Initially, appellant filed a motion to suppress the evidence derived from the traffic stop.
The court denied that motion. Thereafter, appellant entered a plea of guilty to the charge. The
court found appellant guilty and sentenced him by order entered November 3, 2016. On
November 16, 2016, appellant filed a motion to reopen, contending the Commonwealth agreed to
allow him to file a conditional plea of guilty to preserve his right to appeal the suppression issue.
On November 17, 2016, the court, with the Commonwealth’s concurrence, ordered the case be
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. reopened and placed back on the docket on December 8, 2016. On December 20, 2016, the court
allowed appellant’s original guilty plea to be amended to a conditional plea and ordered the
original sentence re-imposed. The execution of the sentence was ordered stayed during the
pendency of the appeal. Appellant’s notice of appeal was filed January 19, 2017 in the trial
court.
ANALYSIS
Before we address the merits of appellant’s motion to suppress, we must first resolve the
Commonwealth’s contention that the trial court had no authority to grant appellant’s motion to
amend his earlier guilty plea to a conditional plea of guilty, in that the motion had to be acted on
within twenty-one days after the entry of the final judgment order.1 See Rule 1:1; Hackett v.
Commonwealth, 293 Va. 392, 399, 799 S.E.2d 501, 505 (2017) (holding that Rule 1:1 limits a
trial court’s authority to alter a final order, absent some other statute or rule, to twenty-one days
following the date of entry of the order). Furthermore, “[t]he running of the twenty-one-day time
period prescribed by Rule 1:1 may be interrupted only by the entry, within the twenty-one-day
period, of an order modifying, vacating, or suspending the final judgment order.” Hackett, 293
Va. at 399, 799 S.E.2d at 505 (emphasis added) (quoting Super Fresh Food Mkts. of Va., Inc. v.
Ruffin, 263 Va. 555, 560, 561 S.E.2d 734, 737 (2002)).
Our review of whether the trial court retained jurisdiction over the case to allow it to
consider appellant’s motion to amend his guilty plea involves the interpretation of the Rules of
the Supreme Court of Virginia. Thus, it poses a question of law that we review de novo. See
LaCava v. Commonwealth, 283 Va. 465, 470-71, 722 S.E.2d 838, 840 (2012). “[W]e have
jurisdiction to consider this appeal only if the trial court had jurisdiction to entertain the
1 The twenty-one-day time period expired on November 28, 2016. The twenty-first day was November 24, 2016, which was a legal holiday, and the next day the court was open was Monday, November 28, 2016. -2- underlying motion.” Minor v. Commonwealth, 66 Va. App. 728, 738, 791 S.E.2d 757, 762
(2016) (dismissing appeal because trial court no longer had jurisdiction over the case when it
considered defendant’s motion to withdraw his guilty pleas). We find here that the trial court did
not have such jurisdiction.
The very narrow issue before us is whether the final sentencing order, entered November
3, 2016, or any other order entered within twenty-one days therefrom, “clearly and expressly
modified, vacated or suspended the final judgment.” Super Fresh, 263 Va. at 563, 561 S.E.2d at
739. We must consider whether the language of the order of November 17, 2016, which
“ADJUDGED, ORDERED and DECREED that the case be reopened and placed back on the
docket on December 8, 2016,” complied with the requirements of Rule1:1. Stated differently,
the question is whether the trial court still had control over the final judgment of November 3,
2016 when it modified that order on December 20, 2016, amending appellant’s plea.
Rule 1:1 addresses the finality of judgments and provides the following, in pertinent part:
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. . . . The date of entry of any final judgment, order, or decree shall be the date the judgment, order, or decree is signed by the judge.
“[U]nless an order vacating or modifying a final judgment is entered before the expiration of 21
days, the final judgment is no longer under the control of the trial court.” In Re: Dept. of
Corrections, 222 Va. 454, 464, 281 S.E.2d 857, 862-63 (1981); Lyle and Allen v. Ekleberry, 209
Va. 349, 350-51, 164 S.E.2d 586, 587 (1968). “Neither the filing of post-trial or post-judgment
motions, nor the court’s taking such motions under consideration, nor the pendency of such
motions on the twenty-first day after final judgment is sufficient to toll or extend the running of
the 21-day period prescribed by Rule 1:1 . . . .” Davis v. Mullins, 251 Va. 141, 148-49, 466
-3- S.E.2d 90, 94 (1996) (quoting School Bd. of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va.
550, 556, 379 S.E.2d 319, 323 (1989)).
“[Rule 1:1] requires that the trial court enter an order that expressly modifies, vacates, or
suspends the judgment.” Super Fresh, 263 Va. at 563, 561 S.E.2d at 734. Absent an express
order, “the case will no longer be under the control of the trial court when the original
twenty-one-day time period has run.” Id.; see Godfrey v. Williams, 217 Va. 845, 845-46, 234
S.E.2d 301, 301-02 (1977). Any action taken after the time expires “is a nullity.” Minor, 66
Va. App. at 739-40, 791 S.E.2d at 762.
“Black’s Law Dictionary defines ‘express’ as ‘clear,’ ‘definite,’ ‘plain,’ ‘explicit,’
‘direct,’ ‘unmistakable.’” Hardesty v. Hardesty, 40 Va. App. 663, 674, 581 S.E.2d 213, 219
(2003) (quoting Black’s Law Dictionary 580 (6th ed. 1990)). See Richmond v. Sutherland, 114
Va. 688, 697, 77 S.E. 470, 473 (1913) (“Bouvier’s Law Dictionary gives the definition of
‘express’ as ‘stated or declared as opposed to implied; that which is made known and not left to
implication.’”).
None of the trial court’s orders in this case clearly suspended or vacated the final
judgment order of November 3, 2016. Whatever the trial court intended to do is not relevant
because a court speaks only through its written orders. In The Berean Law Group, P.C. v. Cox,
259 Va. 622, 528 S.E.2d 108 (2000), the trial judge had agreed orally during a telephone
conference to extend the time in which the plaintiff could file an amended motion for judgment
beyond the date specified in the written order. The plaintiff, however, failed to submit a timely
written order suspending, modifying or vacating the order sustaining the demurrers. The
Supreme Court of Virginia held that the trial court no longer had control of the final order when
it entered the written order granting plaintiff’s motion for nonsuit. Id. at 627-28, 528 S.E.2d at
111-12. See Wagner v. Shird, 257 Va. 584, 588, 514 S.E.2d 613, 615 (1999) (holding that any
-4- oral understanding between counsel and the trial court extending time for counsel to file
supplemental pleading was not relevant, as “a court speaks only through its written orders” as of
the day of entry); Davis, 251 Va. at 149, 466 S.E.2d at 94 (holding that an order entered in 1982
in a property dispute remained in effect, despite the entry of subsequent orders, because the
record contained no order suspending or vacating the 1982 order within twenty-one days of its
entry, and after that date, Rule l:1 divested the trial court of its jurisdiction “and every action of
the court thereafter to alter or vacate [the 1982] order, including the entry of the 1983 order, was
a nullity”).
Once a sentence is imposed, it may be modified only as permitted by law. Rule 1:1
permits modification, but the strictures of Rule 1:1 are applied “rigorously,” subject to only a
few exceptions, none of which are pertinent to appellant’s case. Commonwealth v. Morris, 281
Va. 70, 77, 705 S.E.2d 503, 506 (2011) (quoting McEwen Lumber Co. v. Lipscomb Bros.
Lumber Co., 234 Va. 243, 247, 360 S.E.2d 845, 848 (1987)). Thus, the trial court was without
authority to “enter[] a second sentencing order altering an original sentencing order that has
become final.” Id. (quoting Charles v. Commonwealth, 270 Va. 14, 19, 613 S.E.2d 432, 434
(2005)). Accordingly, we conclude that the trial court did not have jurisdiction to amend
appellant’s initial plea of guilty to a conditional plea on December 20, 2016. See Minor, 66
Va. App. at 742, 791 S.E.2d at 763-64.
Appellant’s original plea is operative and precludes him from appealing his suppression
claim. See Smith v. Commonwealth, 59 Va. App. 710, 725, 722 S.E.2d 310, 317 (2012)
(“Where a conviction is rendered upon a voluntary and intelligent guilty plea and a punishment
fixed by law is in fact imposed in a proceeding free of jurisdictional defect, there is nothing to
appeal.”). Nothing in this record suggests that appellant’s guilty plea was not made voluntarily
-5- and intelligently.2 See Bousley v. United States, 523 U.S. 614, 618 (1998) (stating defendant’s
“plea of guilty is constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent’”
(quoting Brady v. United States, 397 U.S. 742, 748 (1970))). Thus, appellant waived his right to
contest the denial of his motion to suppress. See Hill v. Commonwealth, 47 Va. App. 667, 676,
626 S.E.2d 459, 464 (2000).
For the foregoing reasons, the trial court lacked jurisdiction to reopen the case to amend
appellant’s guilty plea. We therefore lack any basis to consider an appeal regarding the denial of
appellant’s suppression motion. Accordingly, we dismiss the appeal. See Minor, 66 Va. App. at
742-43, 791 S.E.2d at 764.
Dismissed.
2 The statement of facts includes only limited information regarding the suppression motion and does not address the later proceedings pertaining to appellant’s efforts to change his plea. -6-