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Myers v. Commonwealth

Court of Appeals of Virginia

May 16, 1995

STACY MYERS
v.
COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Walter J. Ford, Judge

J. Ashton Wray, Jr., for appellant.

Robert H. Anderson, III, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: Chief Judge Moon, Judges Barrow, [*] Benton, Koontz, Willis, Elder, Bray and Fitzpatrick Argued at Richmond, Virginia

MEMORANDUM OPINION[**]

RICHARD S. BRAY, JUDGE

On July 26, 1994, a panel of this Court, in an unpublished memorandum opinion, reversed and remanded defendant's conviction for second-degree murder. We subsequently granted the Commonwealth's petition for rehearing en banc and stayed the mandate of the opinion. Upon rehearing en banc, we affirm the judgment of the trial court and vacate the mandate of the panel opinion.

The parties are fully conversant with the record, and a recitation of the facts is unnecessary to this memorandum opinion.

The order of conviction recites that defendant was convicted of "murder - 2nd degree, as charged in the indictment. . . ." The referenced indictment alleged that defendant "did unlawfully and feloniously kill and murder . .., in violation of Section 18.2-32. . . ." However, in defendant's petition for appeal, she framed the sole "[q]uestion [p]resented as '[w]hether the evidence was sufficient as a matter of law to support a finding of felony murder; to wit: murder in the second degree, '" a violation of Code § 18.2-33. See Rule 5A:12(c). Cf. Rule 5:17(c).

A recital of proceedings in a judicial order is an "absolute verity . . . ." Where a defendant does not object to the accuracy of an order within 21 days after its entry, an appellate court may "presume that the order, as the final pronouncement on the subject, . . . accurately reflects what transpired."

Kern v. Commonwealth, 2 Va.App. 84, 88, 341 S.E.2d 397, 400 (1986) (citations omitted). The final order of the trial court in this instance convicted defendant for a violation of Code § 18.2-32, the offense at indictment. With certain statutory exceptions not applicable here, felony murder is a violation of Code § 18.2-33 and, consistent with her petition for appeal, appellant's brief and argument addresses only that offense. Although a violation of Code § 18.2-33 constitutes murder in the second degree, it is a crime separate and distinct from that proscribed by Code § 18.2-32. Therefore, no challenge to appellant's conviction for a violation of Code § 18.2-32 was appealed to this Court, and the issue may not be undertaken at this juncture. Rule 5A:12(c). Cf. Hamilton Dev. Co. v. Broad Rock Club, Inc., 248 Va. 40, 44, 445 S.E.2d 140, 143 (1994).

Accordingly, for the reasons stated, we affirm the judgment of the trial court.

Affirmed.

Barrow, J., with whom Moon, C. J, and Elder, J, join, ...


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