Summary
holding trial court retained jurisdiction for nearly four years in which to modify defendant's sentence pursuant to Code § 19.2-303
Summary of this case from Askew v. CommonwealthOpinion
Record No. 051000.
January 13, 2006.
Present: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and Agee, JJ., and Russell, S.J.
Defendant was convicted for possession of cocaine and sentenced to two years in prison, but the entire sentence was suspended and he was placed on supervised probation. While on probation, defendant was arrested on unrelated federal charges and his Virginia probation officer initiated revocation proceedings. Defendant pled guilty to the federal charges and was sentenced to confinement in a federal prison. Thereafter, the circuit court revoked his suspended sentence and ordered the original two-year sentence to be served, to run "consecutively with all other sentences." Almost four years later defendant, still in federal custody, moved in the circuit court for modification of his two-year sentence, but that court ruled that it had no jurisdiction to consider the motion because of the time limitation imposed by Rule 1:1. A divided Court of Appeals held en banc that the circuit court retained jurisdiction to entertain the defendant's motion under the terms of Code § 19.2-303 and remanded the case. The Commonwealth appeals.
1. On the single question presented by this appeal, the Court of Appeals correctly concluded that the circuit court had jurisdiction under Code § 19.2-303 to rule on the defendant's motion to modify his sentence, where more than 21 days had elapsed since the sentencing order but at all relevant times the defendant was confined in the federal penal system. For the reasons set forth in the majority opinion of the panel of the Court of Appeals, Neely v. Commonwealth, 44 Va. App. 239, 604 S.E.2d 733 (2004), the judgment of that court is affirmed.
Appeal from a judgment of the Court of Appeals of Virginia. Affirmed.
Robert H. Anderson, III, Senior Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on briefs), for appellant.
Gregory B. Turpin for appellee.
Demetrius L. Neely was convicted, on his guilty plea, of possession of cocaine in the Circuit Court of the City of Portsmouth on December 1, 1997. The circuit court imposed a sentence of two years in prison, but suspended the entire sentence and ordered supervised probation. While on probation, Neely was arrested on unrelated federal charges and his probation officer initiated revocation proceedings. Neely pled guilty to the federal charges and was sentenced to confinement in a federal correctional institution. Thereafter, the circuit court revoked his suspended sentence and ordered his original two-year sentence to be served, to run "consecutively with all other sentences."
Almost four years later, Neely, still in federal custody, filed a motion in the circuit court seeking a modification of his two-year sentence, claiming that a detainer placed against him by the Virginia authorities interfered with his release from federal custody. The circuit court ruled that it had no jurisdiction to consider Neely's motion because of the time limitation imposed by Rule 1:1.
Neely appealed to the Court of Appeals. A divided panel, by a published opinion, held that the circuit court retained jurisdiction to entertain Neely's motion pursuant to Code § 19.2-303, reversed the order of the circuit court and remanded the case. Neely v. Commonwealth, 44 Va. App. 239, 604 S.E.2d 733 (2004). In pertinent part, the Court of Appeals concluded that
Code § 19.2-303 plainly and unambiguously provides the trial judge with jurisdiction to consider Neely's motion, and it needs no interpretative construction.
We have no basis upon which to conclude that the legislature did not mean what it unambiguously wrote in Code § 19.2-303. If a defendant has not been transferred to the custody of the Department after conviction, the passage of time is not a factor that impacts upon the trial judge's jurisdiction to exercise his statutory grant of power under Code § 19.2-303. See Robertson v. Superintendent of the Wise Corr. Unit, 248 Va. 232, 234-35, 445 S.E.2d 116, 117 (1994) (noting that the trial judge retained jurisdiction after the defendant had not been transferred to the Department after twelve months). The legislative authority to consider the motion is not time-based but, rather, is statutorily defeated only by the transfer of the defendant to the Department. Although the legislature could have chosen a different policy, clearly it did not do so.
Neely, 44 Va. App. at 243-44, 604 S.E.2d at 735.
The Attorney General filed a petition for a stay and a rehearing en banc, which the Court of Appeals granted. Neely v. Commonwealth, 44 Va. App. 535, 605 S.E.2d 777 (2004). Upon a rehearing en banc, the Court of Appeals, by order, affirmed the majority opinion of the panel, reversed the order of the circuit court and remanded the case. Neely v. Commonwealth, 45 Va. App. 399, 611 S.E.2d 627 (2005). We granted the Commonwealth an appeal.
The appeal presents a single question: "Did the circuit court correctly rule that it did not have jurisdiction under Virginia Code § 19.2-303 to rule on the defendant's motion to modify his sentence, even though at all relevant times the defendant was confined in the federal penal system?" We have considered this question and find no error in the judgment of the Court of Appeals. For the reasons set forth in the majority opinion of the panel of the Court of Appeals, Neely v. Commonwealth, 44 Va. App. 239, 604 S.E.2d 733 (2004), we will affirm the judgment of that court.
Affirmed.