DOES NOTING AN APPEAL DIVEST THE TRIAL COURT OF
[Posted May 1, 2015] I occasionally get calls from lawyers wanting to know about the premise that once you file a notice of appeal, the trial court can’t act anymore. The most recent of these calls came this morning, and since it’s been a repeat topic, I figured I should discuss it here.
MAYBE YES; MAYBE NO
The short-form answer is, it’s complicated. This is a tale with plot twists and a jurisdictional conundrum at the end. It’s not as sexy as Fifty Shades of Writs – I’m still working on the manuscript for that one, so you’ll have to be patient – but it’s a fascinating story for those of us who follow these things closely.
Let’s start with our old pal, Rule 1:1, which provides that a trial court can suspend, modify, or vacate its orders until 21 days after entry of final judgment, and not afterward. That being said, there are specific provisions in the Code that allow trial courts to do things after that 21-day deadline passes. For example – and this was the issue that prompted this morning’s inquiry – Code §19.2-303 allows a trial court in a criminal case to modify a sentencing order at any time while the defendant is still in local custody:
If a person is sentenced to jail upon conviction of a misdemeanor or a felony, the court may, at any time before the sentence has been completely served, suspend the unserved portion of any such sentence, place the person on probation for such time as the court shall determine, or otherwise modify the sentence imposed.
If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine.
The trial court can also enter orders to enforce its judgment, as long as the appellant hasn’t filed a suspending bond. And by rule, the court can entertain requests from the parties relating to the contents of the record of the case. Rules 5:10(b) and 5A:7(b) each provide: “If disagreement arises as to the contents of any part of the record, the matter shall, in the first instance, be submitted to and decided by the trial court.”
Trial courts also get to sign written statements in lieu of transcripts and rule on objections relating to transcripts, all without regard to the 21-day limit. Rules 5:11(e) and (g) apply in the SCV and 5A:8(c) and (d) apply in the CAV. And domestic-relations lawyers know that the courts can modify support awards based on changes of circumstances, even years after the divorce decree.
So where does this divesting-of-jurisdiction stuff arise? For that, we go back to 1981, and Lamb v. Commonwealth, 222 Va. 161. Lamb involved a correction to a transcript, but for some reason, nobody invoked Rule 5:11(g). In that case, the court reporter prepared a transcript that included a clear and meaningful error. “The question is whether Rule 5:11 provides the exclusive procedure for correcting errors, such as the one in this case.” 222 Va. at 164.
The defendant noted an appeal, and later filed a petition for appeal. A couple of weeks after that, the Commonwealth noticed the typo and wanted it corrected. Disdaining (or maybe not knowing about) Rule 5:11, the prosecutor filed a motion under Code §8.01-428 seeking correction of a clerical error. The trial court conducted a hearing and decided to make the correction about four weeks after the petition for appeal had landed in the clerk’s office.
On appeal, the defendant challenged the trial court’s action, arguing that under the statute, the lower court could only act “before the appeal is docketed in the appellate court.” 222 Va. at 165. (That provision survives today.) He argued that the trial court hadn’t obtained leave from the appellate court to make the correction, so it was void.
The justices observed that “[A]n appeal is docketed upon receipt of the petition for appeal in the Clerk’s Office of our Court.” Id. So technically, the defendant was right; “since the appeal in the present case was docketed before the error was discovered, correction can be made only with leave of this court.” Id.
So the defendant wins, right? Well, no; the court finds a way to affirm this action anyway. Its opinion retroactively grants the trial court leave, so the ruling is affirmed.
This holding’s nexus with divestment of jurisdiction became clear the next year, in a per curiam order in Greene v. Greene, 223 Va. 210 (1982).Greene is a domestic-relations appeal in which the trial court entered a final decree on March 9, 1981. Wife noted an appeal and timely filed a petition for appeal on June 1.
On August 30, with the appeal pending, the trial court entered an order that modified the previous final decree. During the oral argument on the appeal, Husband’s lawyer posited that the August order made the appeal moot. The justices disagreed, in the language that first expressed the divestment doctrine:
The orderly administration of justice demands that when an appellate court acquires jurisdiction over the parties involved in litigation and the subject matter of their controversy, the jurisdiction of the trial court from which the appeal was taken must cease. We acquired jurisdiction over this matter when Mrs. Greene’s petition for appeal was filed and docketed in the Clerk’s Office of this Court, and thereafter corrections and alterations could be made only with leave of this Court. Lamb v. Commonwealth, 222 Va. 161, 165, 279 S.E.2d 389, 392 (1981).
That seems clear enough: Once you file a petition for appeal – not a notice of appeal – the appellate court has jurisdiction and, except for those exceptions noted in the statutes and the rules, the trial court loses it. But this doctrine hadn’t yet finished evolving.
Based on my research, the justices have cited this particular holding in Greene just three times. The first of those, and the only one where the holding is material to this discussion, was the death-sentence review in Walton v. Commonwealth, 256 Va. 85 (1998). There, a defendant had been sentenced to death by a judge, sitting without a jury, on the trial court’s finding of future dangerousness. The court made no finding of vileness in its sentencing order.
After oral argument in the Supreme Court, the Commonwealth forwarded to the justices a nunc pro tunc order entered by the trial court on a date that appears to approximate the date of that oral argument. The order added a finding of vileness. The justices rejected this order because the trial court no longer had jurisdiction to enter it. But the Supreme Court’s language contains an important departure from the holding in Greene: “We do not consider this purported order because the trial court was divested of jurisdiction once the defendant filed his notices of appeal.” [Emphasis supplied.]
Thus, by the language of Greene, the trial court loses jurisdiction only when the appellant files a petition – presumably about three months after final judgment. But in Walton, without explanation, the court has moved that transition date up to the filing of the notice, which is no later than 30 days after judgment.
Was this an oversight? We probably can’t know, because the author of the Walton opinion is Justice Hassell, who died four years ago. That being said, I strongly suspect that it was a mistake. The court took pains to set out its definition of the docketing process in Lamb and Greene, and expressly defined it as the date of filing of the petition, not the notice. If the court meant to make a significant change of course in Walton, I think it would have mentioned that fact, and explained the reason for its departure from its previous express holding.
The Court of Appeals, meanwhile, has picked up on the earlier transition date and has run with it. The court’s jurisprudence consistently holds that once the appellant notes an appeal, the trial court cannot act, except where expressly authorized to do so. This fact is probably consistent with the CAV’s practice, since unlike the SCV, that court dockets its appeals as soon as it receives a notice (no more than 30 days after final judgment). And while appeals to the CAV require filing the notice of appeal in the appellate court as well as the trial court, in the Supreme Court you file the notice only in the trial court. The SCV Clerk has no idea that you’ve filed anything until the record arrives, something beyond 70 days later.
Now, here’s the real problem with this situation. Suppose the trial court enters final judgment on the first day of the month. Under Rule 1:1 it can vacate the order until the 22nd, right? But suppose the appellant, being highly allergic to deadlines – as I am – decides to go ahead and file the notice of appeal on the 6th.
If I’m reading these cases right, then the filing of that notice causes those last 16 days of trial-court authority to vanish; it can’t do anything except those limited matters that are set out in the statutory and rules exceptions,even if it finds a compelling reason to do so. Under this interpretation, the trial court has to back off.
No one has asked for my view of the wisdom of this rule, but in my opinion, two things are in order. First, the Supreme Court should go back to the original rule announced by the per curiam order in Greene: If the appellant pursues the appeal by filing a petition, then the trial court thereafter has to get leave from the appellate court in order to act. Second, if the Court of Appeals doesn’t use the same rule – which I think it probably should – then at a minimum, it should hold that Rule 1:1 takes precedence over this early-transition rule, so the trial court retains the full 21 days in which to act.