Commonwealth v. Southerly, 262 Va. 294

Summary

The Supreme Court of Virginia held that a post-conviction motion to vacate a criminal judgment based on an alleged lack of jurisdiction, filed after the conviction became final, is civil in nature. Accordingly, the Court of Appeals lacked jurisdiction over the appeal, but the matter should be transferred to the Supreme Court under Code § 8.01-677.1. The court reversed and remanded without deciding whether notice to the defendant’s biological father was required.

Holdings

1. When a motion to vacate is filed after a criminal conviction has become final and seeks a declaration that the trial court lacked jurisdiction to enter the conviction, the motion and any appeal from its denial are civil in nature rather than criminal.
2. The Court of Appeals lacked jurisdiction because Code § 17.1-406(A) limits its criminal appellate jurisdiction to appeals from final criminal convictions and from action on motions filed and disposed of while the trial court retains jurisdiction over the case.
3. The appeal should not be dismissed; under Code § 8.01-677.1, the Court of Appeals should transfer the appeal to the Supreme Court because the appeal was otherwise proper and timely but filed in the wrong appellate court.

Questions Presented

1. Whether the Court of Appeals of Virginia had jurisdiction to hear an appeal from the denial of a motion to vacate a criminal conviction when the motion was filed after the conviction had become final and sought a declaration that the trial court lacked jurisdiction.
2. Whether the Court of Appeals' decision should be treated as a nullity and the appeal transferred to the Supreme Court of Virginia under Code § 8.01-677.1.
3. Whether notice to Southerly's biological father was unnecessary under the juvenile-notice statutes.

Disposition

reversed_and_remanded