[Posted August 28, 2015] The Supreme Court of Virginia recently handed down an unpublished order that highlights the danger inherent in orders that suspend final judgments. The case is Umana-Barrera v. Commonwealth, and came down on August 21.

The defendant pleaded guilty to rape and got 15 years of active prison time. Shortly after he was sentenced, he began to think better of the decision to plead, so he consulted another lawyer. That lawyer sought an order suspending the sentence, to allow him to brief and argue a motion to withdraw the plea.

The trial court entered a series of orders doing just that, before eventually denying the motion. The defendant appealed to the CAV, which originally found that the suspension had lapsed due to the delayed entry of an order. But the defendant asked that court to remand the case to allow him to seek correction of clerical mistakes in the orders. Without objection from the Commonwealth, the CAV remanded the case for that purpose.

The trial judge obliged, entering two orders nunc pro tunc. One clarified that one of its original orders had mistakenly omitted a specific ruling on one of the suspension requests. The case then made its way back to the CAV, which held the time for appealing to have expired anyway.

Against this dizzying procedural background, the justices granted a writ, and that resulted in last week’s unpublished order. The justices are agreed upon the outcome – the defendant loses because his time ran out – though they disagree on how to get there. In order to analyze the case, I’ll set out the dates of the relevant orders and hearings. This is a little complicated, but I’ll try to make it clear.

January 2, 2013 – The trial court enters the original sentencing order, calling for 15 years in prison. Under Rule 1:1, the court automatically retained jurisdiction for another 21 days, or until January 23.

January 23, 2013 – On the last possible day, the court enters an order suspending the January 2 order for 30 days. That gives the trial court another 51 days of control over the case (30+21) so now the court will lose authority to act on March 15.

February 12, 2013 – The court enters an unopposed order that extends the suspension for another ten days. Now we’re up to a drop-dead date of March 25.

February 21, 2013 – The court convenes a hearing on the motion to withdraw the plea. There’s no ruling that day, but the court orally announces that it’s adding another 30 days to the suspension, presumably taking us to April 24. Unfortunately:

March 27, 2013 – The court finally gets around to entering an order that memorializes its February 21 rulings. That order recites the 30-day extension.

Now, why did I add the adverb a couple of entries above? Because circuit courts, being of record, “speak through their orders.” Even though the judge announced the new 30 days, and even though (as I assume) a court reporter took that down, the added suspension isn’t effective until the judge puts pen to paper. In my humble legal opinion, the trial court lost jurisdiction to do anything in the case – anything – when the sun rose on March 26. It had a deadline, self-imposed, of March 25 to enter that order, and when that date passed, so did the trial court’s power over the case.

Of course, that didn’t stop further proceedings:

April 15, 2013 – An abortive hearing takes place in which, “due to a miscommunication,” the defense wasn’t ready to go forward. Everyone agrees to continue the matter, and this conversation ensues:

THE COURT: All right. Let’s go ahead and set a date, then, to do this. You need a month out?

[COUNSEL]: That would be fine, Your Honor. Of course, I would need another order.


Do you know what kind of order he’s referring to? Well, so do I; he needs another order suspending the final judgment. But look what happens:

April 22, 2013 – The judge signs a “clerk’s form order” that continues the case until May 30. Guess what? The order says nothing at all about a suspension of finality. I assume that’s because the clerk, and not counsel for the parties, prepared it. I’m not criticizing the clerk; I’m just recognizing that the clerk won’t know, the way the lawyers will, what’s necessary in the order.

May 30, 2013 – The court conducts a substantive hearing on the motion and presumably denies it. There’s one last event here, anticlimactic as it is:

June 6, 2013 – The court enters an order denying the motion.

As I mention above, the CAV remanded to allow a nunc pro tunc correction of the April 22 order, so that it will expressly rule on (and grant) the implicit request for another suspension. The trial judge complied, entering an order that specified another 60 days, tacked onto the original 30-day suspension. (Note that that 60 days takes us to mid-May, when you add in the 21 days under Rule 1:1.) It also revised the March 27 order, marking it “nunc pro tunc February 21.”

I’ll jump to the Supreme Court’s analysis of this matter, and then I’ll add my sense of things. A majority of the justices – we can’t know exactly who wrote the order, because unpubs don’t tell us that – find that the lawyer’s implicit request for another suspension (“Of course, I would need another order”) is close enough, especially viewed in context. It also agrees that the trial court had the power to “correct” its April 22 order by adding the missing language about suspension, and the ability to retroactively extend the deadline by making the March 27 order nunc pro tunc.

But the majority finds that the court lost control over the case in mid-May, so the hearing at the end of that month, and the subsequent order, were nullities. It therefore affirms the convictions.

Justice Kelsey, joined by Justice McClanahan, concurs in the outcome but insists that the majority took the wrong route. The concurrence would hold that the vague statement, “Of course, I’ll need another order,” wasn’t enough to put the issue of a suspension into play. And that, in turn, meant that the trial court’s nunc pro tunc order actually changed – not corrected – the court’s actions in that hearing. These backward-looking orders are intended only to correct errors in orders, so that the record will “speak the truth” about what actually happened. They aren’t appropriate vehicles to reopen the case generally so the court can take up and decide a new matter.

This, you will readily agree, is a tangled mess of dates, hearings, and orders. But here’s my sense: I tend to disfavor procedural waivers where it’s a close call. Here, I would agree with the majority that the lawyer’s request, in context, would be sufficient to convey to the judge that what he wanted was a suspending order.

But I’ve read this opinion twice, and I don’t see that anyone has addressed what I believe is the case-dispositive problem: the trial court didn’t have the power to enter an order on March 27, because no written suspending order was in place at that time. The last one had expired two days earlier. And entering an order nunc pro tunc can’t retroactively revive the trial court’s jurisdiction over the matter, a fact that the majority points out and the concurrence doesn’t challenge.

Here’s the danger that ignoring this problem poses. Let’s assume that a trial court does have the power, by a nunc pro tunc order, to change the date of entry on an order back to the date the court announces its ruling in open court. I believe that’s quite wrong; but let’s walk down this path together and see where it leads.

Let us imagine, then, that on February 21, a judge renders (announces orally) his final ruling in a civil case: “I order final judgment for the defendant.” He enters a final judgment order on March 27, carrying out that ruling. He then decides to make the order nunc pro tunc, back to February 21.

Now, Rule 1:1 specifically defines the date of entry of an order as the date the judge signs his name to it. But if he can effectively back-date it? Let’s go back to my fictional civil case. The unlucky plaintiff now learns to his chagrin that his 30-day period for noting an appeal has already expired. It expired before the judge ever entered the judgment order. He can’t appeal, because of that nunc pro tunc order.

Every appellate lawyer and jurist I know would agree that this can’t happen; a judge can’t change the date on which he signs a paper by a subsequent nunc pro tunc order, thereby depriving the losing litigant of an opportunity to appeal. So how is this case different?

It isn’t. The Supreme Court decided this very issue, right down to the oral announcement of judgment within the suspension period and entry of the order afterward, in Wagner v. Shird, 257 Va. 584 (1999). In that one, the judge announced his ruling at the conclusion of a hearing that took place on the last day of the suspension period. The opposing lawyer stated in open court that he agreed to an extension of the suspension. But the court didn’t enter the order until two months later, with this result:

While the circuit court may have rendered its judgment on Shird’s motion for remittitur at the conclusion of the hearing on February 24, 1998, it did not enter that judgment until April 21, 1998. At that time, the court no longer had jurisdiction over the action because the 30-day stay of the January 6th final order had expired and the court had not entered another order extending the length of the stay. Thus, the April 21st order was a nullity.

In the end, I agree with both the majority and the concurrence on the outcome of the appeal. But I believe that the judgment was final well before the dates the two opinions discuss.

The lesson of this case should be obvious: don’t play around with suspension orders. If you’re really going to undertake post-judgment remedies, seek an order that suspends finality “until further order of the court.” If you can’t get the court to agree to such language, you need to stay on top of the expiration dates, and act well before they expire. Additionally, when you come to a hearing that’s on the last day of the suspension period, or even in the last week of it, bring a proposed order with you that you can hand up, so the judge can sign it that day. An order that’s signed after the court loses control of the case is too late.