Long v. Commonwealth

375 S.E.2d 368, 7 Va. App. 503, 5 Va. Law Rep. 1214, 1988 Va. App. LEXIS 134

• Court: Court of Appeals of Virginia
• Decided: December 20, 1988
• Docket: Record No. 1177-87-3
• Status: Published

Opinions

Opinion

PER CURIAM

James Jay Long petitioned this Court to reverse his convictions of assault and battery, in violation of Code § 18.2-57, and using abusive language, in violation of Code § 18.2-416. Because the petition for appeal was not filed with the Clerk of our Court in accordance with Rules 5A:3 and 5A:12, we dismiss.

Rule 5A: 12(a) states, in pertinent part: “When an appeal to the Court of Appeals does not lie as a matter of right, a petition for appeal must be filed with the clerk of the Court of Appeals not more than 40 days after the filing of the record with the Court of Appeals.” (emphasis added). See also Code § 17-116.05:3.

Rule 5A:3(a) states: “The times prescribed for filing the notice of appeal . . ., a petition for appeal . . ., a petition for rehearing . . ., and a request for rehearing en banc . . ., are mandatory.” In addition, Rule 5A:3(c) states:

Any document required to be filed with the clerk of the Court of Appeals, or filed in the office of the clerk of the Court of Appeals, shall be deemed to be timely filed if it is mailed postage prepaid to the clerk of the Court of Appeals by registered or certified mail and if the official receipt therefor be exhibited upon demand of the clerk or any party and it shows mailing within the prescribed time limits.

(emphasis added).

In the present case, the record was filed with the Court of Appeals on October 23, 1987. Therefore, the petition was due on December 2, 1987, and pursuant to Rule 5A:3(c), would have been considered timely filed if mailed postage prepaid by registered or certified mail on or before that date. The petition was mailed on December 2, 1987, and was received in the clerk’s office of the Court of Appeals on December 7. However, it was mailed by first class mail, not by registered or certified mail as required by the Rules of Court.

The language in Rules 5A:3 and 5A:12 is clear, unambiguous, and mandatory. As this Court stated in Mayo v. Dep’t of Commerce, 4 Va. App. 520, 522, 358 S.E.2d 759, 761 (1987):

[R]ules governing appeal procedures are mandatory and “compliance with them is necessary for the orderly, fair and expeditious administration of justice.” Failure to comply with the rules renders an appeal subject to dismissal.

(citations omitted).

In addition, the forty-day time limit in Rule 5A: 12(a) for filing a petition for appeal is a jurisdictional requirement. See Upshur v. Haynes Furniture Co., 228 Va. 595, 597, 324 S.E.2d 653, 654 (1985)(where the Supreme Court, in interpreting its own filing requirements stated: “The time for filing petitions for appeal fixed in Code § 8.01-671 and Rule 5:24 is jurisdictional”); see also Vaughn v. Vaughn, 215 Va. 328, 329, 210 S.E.2d 140, 142 (1974); Tharp v. Commonwealth, 211 Va. 1, 2, 175 S.E.2d 277, 278 (1970). The timely filing of a petition for appeal is not merely an administrative function, designed to facilitate matters in the clerk’s office of the Court of Appeals, as is the requirement for mailing a copy, not the original, of the notice of appeal to our clerk’s office. See Johnson v. Commonwealth, 1 Va. App. 510, 513, 339 S.E.2d 919, 920 (1986).

Likewise, Rule 5A:3(c) states that a petition “shall be deemed to be timely filed” if mailed by one of two prescribed methods. Since the Rule specifically lists the appropriate mailing methods, without mentioning first class mail as an alternative, we must presume that method is intended to be excluded. “If the language of a statute is plain and unambiguous and its meaning perfectly clear and definite, effect must be given to it regardless of what courts think of its wisdom or policy.” Temple v. City of Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944).

Finally, we note that although Rule 5A: 12(a) vests this Court with discretionary authority to grant a thirty-day extension of the filing deadline, no timely motion for such action was made in this case. As with motions to extend the time for filing transcripts, motions to extend the filing deadline for petitions must be filed, and granted, before the original deadline has passed. “Orders extending the time for filing must be prospective and not retrospective.” Jordan v. Price, 3 Va. App. 672, 673, 353 S.E.2d 168, 168 (1987).

Therefore, the petition is dismissed.

Dismissed.

Baker, J., Barrow, J., Cole, J., Coleman, J., Duff, J., Hodges, J., and Moon, J., concurred.