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EVERETT v. COMMONWEALTH




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EVERETT

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Clements

Argued at Alexandria, Virginia

Record No. 3036-01-4

YOUNG UK EVERETT

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE JEAN HARRISON CLEMENTS

NOVEMBER 12, 2003

FROM THE CIRCUIT COURT OF STAFFORD COUNTY

Ann Hunter Simpson, Judge

Benjamin H. Woodbridge, Jr. (Woodbridge, Ventura & Kelly,
P.C.,

on brief), for appellant.

Virginia B. Theisen, Assistant Attorney General (Jerry W.
Kilgore,

Attorney General, on brief), for appellee.

Young Uk Everett appeals from the trial court’s order of
October 11, 2001, granting the

Commonwealth’s motion to nolle prosequi the misdemeanor
charge of reckless driving to which

she had pled guilty at arraignment. On appeal, Everett contends
the trial court erred in not

accepting her guilty plea to the reckless driving charge.
Lacking jurisdiction to entertain this

appeal because no final order of conviction has been entered in
this case, we dismiss this appeal.

As the parties are fully conversant with the record in this
case, and because this

memorandum opinion carries no precedential value, this opinion
recites only those facts and

incidents of the proceedings as are necessary to the parties’
understanding of the disposition of this

appeal.

I. BACKGROUND

At arraignment on July 19, 2001, Everett stood charged with, inter
alia
, driving under the

influence, third or subsequent offense within ten years, a
felony, and reckless driving, a

misdemeanor. Both charges arose from the same driving incident,
alleged to have occurred on

February 18, 2001. When asked to enter pleas to the charges,
Everett pled "not guilty" to the

driving under the influence charge and "guilty" to the
reckless driving charge. The Commonwealth

immediately asked the trial court not to accept Everett’s
guilty plea to the reckless driving charge

and to set both charges for trial. Everett argued she had a
right to plead guilty to the reckless driving

charge and stipulated that she was guilty of conduct that
constituted reckless driving. She further

argued the Commonwealth should not have charged her with both
offenses, knowing that a

conviction on one offense precluded conviction on the other.
Taking the matter under advisement,

the trial court continued the case until August 6, 2001.

At the hearing on August 6, 2001, the Commonwealth moved to nolle
prosequi
the reckless

driving charge. The Commonwealth argued Everett should not be
permitted to plead guilty to

reckless driving in order to bar prosecution on the more serious
charge of driving under the

influence, third or subsequent offense within ten years. The
trial court declined to accept Everett’s

guilty plea or grant the Commonwealth’s motion to nolle
prosequi
at that point and took both

matters under advisement.

On October 4, 2001, the trial court issued a letter opinion
granting the Commonwealth’s

motion to nolle prosequi the reckless driving charge.
Having granted the Commonwealth’s motion,

the court found it unnecessary to rule on the underlying issue
of whether it was required to accept

Everett’s guilty plea to the reckless driving charge tendered
at the arraignment. The court’s ruling

was memorialized in an order entered October 11, 2001.

This appeal followed.

II. ANALYSIS

Appealing from the trial court’s October 11, 2001 order,
Everett contends the trial court

erred in failing to accept her guilty plea to the reckless
driving charge. However, because we

lack jurisdiction to consider Everett’s challenge, we must
dismiss this appeal.

"The Court of Appeals of Virginia is a court of limited
jurisdiction. Unless a statute

confers jurisdiction in this Court, we are without power to
review an appeal." Canova Elec.

Contracting, Inc. v. LMI Ins. Co., 22 Va. App. 595, 600, 471
S.E.2d 827, 830 (1996) (citation

omitted). Code ? 17.1-406(A)(i) grants us appellate
jurisdiction over "any final conviction in a

circuit court of a traffic infraction or a crime, except where a
sentence of death has been

imposed." (Emphasis added.)

In this case, Everett has not been convicted of any offense. No
final order of conviction

has been entered. Indeed, the trial court’s ruling in the
interlocutory order from which Everett

appeals is "but an antecedent incident to the trial of the
indictment[s] against [her], and is in no

sense the pronouncement of a final judgment." Sturgill v.
Commonwealth, 175 Va. 584, 588, 7

S.E.2d 141, 142 (1940). Consequently, this appeal is premature
and we lack jurisdiction to

entertain it. See Harris v. Commonwealth, 258 Va. 576, 582 n.4,
520 S.E.2d 825, 828 n.4 (1999)

(holding that, "[a]t the time the motion for nolle
prosequi
was granted, [the appellant] was not an

‘aggrieved party . . . [petitioning] from [a] final conviction
in a circuit court of a traffic infraction

or a crime’" and, thus, "had no right to petition
the Court of Appeals for a review of the trial

court’s action at that time" (quoting Code ? 17.1-406
(emphasis added))).

Accordingly, we dismiss the appeal without prejudice.

Dismissed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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