ANALYSIS OF MARCH 26, 2019 SUPREME COURT OPINION

(Posted March 26, 2020) We get one short opinion today from Ninth and Franklin, resolving a finality issue in a criminal appeal. The case is Akers v. Commonwealth.

Akers, having previously received a partially suspended sentence on drug charges, incurred new criminal convictions three years later. A circuit court judge determined to revoke the suspension and impose the remaining prison time on him. The court entered a sentencing order carrying that out.

Four months later, Akers moved the court to modify the sentence. He relied on Code §19.2-303, which provides a limited exception to the 21-day rule in Rule 1:1. That statute allows a trial court to modify a felony sentence at any time before the Department of Corrections takes custody of the prisoner. Akers was still in a local jail when he filed the motion.

The court scheduled a hearing for 2 ½ months later. Alas for Akers, the jail transferred him to the DoC a few days before that hearing date, so he was in prison when court convened. The trial court concluded that it accordingly was powerless to adjudicate the motion.

The Court of Appeals agreed, employing the plain language of the statute. Today the Supreme Court affirms. If Akers wanted to ensure continuing trial-court jurisdiction, he could have moved the circuit court to suspend the sentencing order, or to enter an order staying the transfer. Today’s opinion notes that if the court enters the latter kind of order, it’s the prisoner’s obligation to ensure that DoC knows about it. Presumably if the Department takes custody without knowing about such an order, the trial court still loses jurisdiction.