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July 17, 2001.

No. 3042-99-2

Ray Lloyd Powell,



Commonwealth of Virginia,


Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton,

Elder, Bray, Annunziata, Bumgardner, Humphreys
and Clements

Robert J. Wagner (Wagner & Wagner, on
brief), for appellant.

Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

By opinion dated November 28, 2000, a panel of
this Court reversed the judgment of the trial court and remanded
this case for a new trial. Powell v. Commonwealth, 34 Va.
App. 13, 537 S.E.2d 602 (2000). We stayed the mandate of that
decision and granted rehearing en banc. Upon
rehearing en banc, we withdraw the opinion
previously rendered on November 28, 2000, vacate the mandate
entered on that date, reverse the judgment of the trial court,
and remand this case to the trial court for a new trial, if the
Commonwealth be so advised.

The record before us discloses that the trial
court improperly curtailed the presentation of evidence and
argument, thereby denying the parties a fair trial and
forestalling the ends of justice. We do not address the
permissibility of the procedure undertaken by the trial court,
because that issue was not raised before the trial court and was
not presented or developed by the parties on appeal.


Benton, J., with whom Elder, J., joins,
concurring, in part, and dissenting, in part.

I concur in the part of the judgment reversing
the conviction, but I dissent from the part of the judgment
remanding the case for a new trial.

I would remand the case with instructions that
would give effect to the trial judge’s ruling when he took this
matter under advisement. At that time, he noted only the
following condition:

I’ll take the matter under advisement until
August 31st [of 1999]. If there are no other problems
between Mr. Powell and Ms. Heath, the matter can be dismissed.

The Commonwealth did not object to the trial
judge’s ruling and suggested no other conditions. Because Powell
complied with the conditions imposed by the trial judge when he
took the case under advisement, I would remand this case with
instructions to the trial judge to dismiss the prosecution. In
analogous cases, where judges have revoked the suspension of
sentences, both the Supreme Court and this Court have indicated
that judges must scrupulously honor the conditions they have
placed upon criminal defendants. See e.g. Griffin
v. Cunningham
, 205 Va. 349, 354, 136 S.E.2d 840, 844 (1964)
(noting that "when the accused has complied with conditions
specified, he has a right to rely upon them, and the suspension
will stand"); Dyke v. Commonwealth, 193 Va. 478, 483,
69 S.E.2d 483, 486 (1952) (holding that "[i]f the defendant
had kept [the] condition [of suspension], then the court was
bound by that condition"); Preston v. Commonwealth,
14 Va. App. 731, 419 S.E.2d 288 (1992) (holding that when the
evidence fails to prove a violation of the condition upon which
suspension was based, the trial judge abuses discretion by
revoking the suspension). I can find no reason why similar
limitations on a judge’s discretion should not exist here.


Humphreys, J., concurring.

I concur in the result in this matter for the
reasons stated in the order; however, I would address the issue
of the authority of the trial court to defer the finding and
judgment. It is true that the Commonwealth did not object to the
trial court’s decision to take the finding in this case under
advisement and to place the appellant on probation on terms and
conditions. Nevertheless, the failure to object is of no moment
and the issue may be decided by this Court if the judgment was
void, based upon the manner in which the trial court exercised
its jurisdiction.

The Supreme Court of Virginia has held

"it is essential to the validity of a
judgment or decree, that the court rendering it shall have
jurisdiction of both the subject matter and parties. But this is
not all, for both of these essentials may exist and still the
judgment or decree may be void, because the character of the
judgment was not such as the court had the power to render, or
because the mode of procedure employed by the court was such as
it might not lawfully adopt

Evans v. Smyth-Wythe Airport Commission,
255 Va. 69, 73, 495 S.E.2d 825, 828 (1998) (citations
omitted) (emphasis added). The Supreme Court has also noted that

[t]he distinction between an action of the
court that is void ab initio rather than
merely voidable is that the former involves the underlying
authority of a court to act on a matter whereas the latter
involves actions taken by a court which are in error. An order is
void ab initio if entered by a court in the
absence of jurisdiction of the subject matter or over the
parties, if the character of the order is such that the court had
no power to render it, or if the mode of procedure used by the
court was one that the court could "not lawfully
adopt." The lack of jurisdiction to enter an order under any
of these circumstances renders the order a complete nullity and
it may be "impeached directly or collaterally by all
persons, anywhere, at any time, or in any manner

Singh v. Mooney, 261 Va. 48,
51-52, 541 S.E.2d 549, 551 (2001) (citations omitted) (emphasis

Certainly our Supreme Court could not have
intended words of such clear and strong import to serve as
precedent in only select matters. Indeed, I would consider this
case to involve the paradigmatic situation that the Court
intended to address. Here, the record very clearly demonstrates
that the trial court reached its ultimate determination by way of
a mode of procedure that the trial court had no authority to
lawfully adopt. As the Commonwealth conceded at oral argument,
under the circumstances of this case, there is simply no
statutory authority pursuant to which the trial court could have
lawfully deferred a finding or judgment.

As a rule, trial courts may not dismiss
criminal charges on grounds other than the legal or factual
merits. Holden v. Commonwealth, 26 Va. App. 403, 407, 494
S.E.2d 892, 895 (1998). However, the General Assembly has in some
instances given trial courts explicit authority to defer a
finding of guilt, notwithstanding the fact that evidence was
presented proving guilt beyond a reasonable doubt.

"When a legislative enactment limits the
manner in which something may be done, the enactment also evinces
the intent that it shall not be done another way." Grigg
v. Commonwealth
, 224 Va. 356, 364, 297 S.E.2d 799, 803
(1982). See also Commonwealth v. Brown, 259 Va.
697, 704-05, 529 S.E.2d 96, 100 (2000). Except in those instances
where the General Assembly has expressly authorized a trial court
to defer a finding of guilt even though the proof has established
the guilt of the defendant beyond a reasonable doubt, trial
courts may not defer a factual finding of guilt or acquittal or a
judgment of guilt or acquittal.

Thus, since the trial court utilized an
unlawful mode of procedure, it lacked the requisite jurisdiction
to enter the final order under these circumstances. In light of
this, the order of the court was rendered "a complete
nullity" which may be impeached at "any time," and
"in any manner," irrespective of whether the issue had
been properly raised and/or preserved by the parties. Singh,
261 Va. at 52, 541 S.E.2d at 551.

Accordingly, I would decide the issue and hold
that the judgment of the trial court was void because it lacked
the statutory authority to defer a finding and judgment for the
purpose of placing the appellant on terms and conditions.
Therefore, the trial court lacked jurisdiction to enter the
resulting final order.


Accordingly, we withdraw the opinion previously
rendered on November 28, 2000, vacate the mandate entered on that
date, reverse the judgment of the trial court, and remand this
case to the trial court for a new trial, if the Commonwealth be
so advised.

It is ordered that the trial court allow
counsel for the appellant a total fee of $925 for services
rendered the appellant on this appeal, in addition to counsel’s
costs and necessary direct out-of-pocket expenses.

This order shall be published and certified to
the trial court.

A Copy,


Cynthia L. McCoy, Clerk


Deputy Clerk


[1] See, e.g., Code ?? 18.2-57.3 (assault
and battery against a family or household member); 18.2-61
(marital rape); 18.2-67.1 (marital forcible sodomy); 18.2-67.2
(marital object sexual penetration); 18.2-67.2:1 (marital assault
and battery); 18.2-138.1 (malicious damage to public property);
18.2-251 (possession of controlled substances or marijuana); and
19.2-303.2 (certain property crimes constituting misdemeanors).

[2] There seems little dispute about this point. The
Commonwealth conceded on brief and in argument that trial courts
lack the authority to defer findings or judgments of guilt in the
absence of express statutory authority to do so, and the
appellant conceded in argument that he could find no case
authority to the contrary.