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Granado v. Commonwealth

Supreme Court of Virginia

September 8, 2016

ELISEO GRANADO, JR.
v.
COMMONWEALTH OF VIRGINIA

         FROM THE COURT OF APPEALS OF VIRGINIA

          PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell and Kelsey, JJ., and Russell, S.J.

          OPINION

          S. BERNARD GOODWYN JUSTICE.

         In this appeal, we consider whether the Court of Appeals erred in denying a petition for appeal on the basis that there was no timely written statement of facts in lieu of a transcript in the record.

         Background

         Eliseo Granado, Jr. (Granado) was convicted of driving a motor vehicle while intoxicated in violation of Code § 18.2-266 in the Circuit Court of the City of Chesapeake. The circuit court entered its order on June 24, 2014. On July 18, 2014, Granado filed a notice of appeal to the Court of Appeals of Virginia.

         On August 18, 2014, the deadline for filing a written statement of facts pursuant to Rule 5A:8(c), Granado filed a proposed written statement of facts in the clerk's office of the circuit court. On August 20, 2014, a revised version of the proposed statement of facts signed by Granado's counsel and signed "Seen and agreed" by the Commonwealth was submitted to the circuit court, and it was signed by the circuit court judge on August 22, 2014. The circuit court clerk's office did not include the original proposed written statement of facts filed on August 18, 2014, which had not been signed by the circuit court judge, in the contents of the record submitted to the Court of Appeals.

         On February 6, 2015, the Court of Appeals entered a per curiam order noting that the statement of facts contained in the record was apparently submitted to the circuit court on August 20, 2014, and entered by the circuit court on August 22, 2014, although pursuant to Rule 5A:8(c), the statement of facts was due to be filed by August 18, 2014. Thus, it concluded that the statement of facts was not timely filed and was not part of the record to be considered on appeal. In its order, the Court of Appeals held that because there was no timely filed transcript or written statement of facts in the record, the record was insufficient to address the assignments of error raised by Granado, and it denied Granado's petition for appeal.

         Subsequently, on February 9, 2015, the circuit court clerk's office transmitted an amended record, which included the proposed statement of facts filed on August 18, 2014, to the Court of Appeals. On February 19, 2015, Granado filed a demand for review by a three-judge panel, notified the Court of Appeals of the new document in the amended record certified by the circuit court clerk, and argued that the newly included document proved that his statement of facts was timely filed. He also argued that the circuit court's failure to send the unsigned August 18, 2014 statement of facts to the Court of Appeals in the originally forwarded record was not a valid basis for denial.

         On May 14, 2015, a three-judge panel of the Court of Appeals denied Granado's petition for appeal for the same reasons as it stated in the February 6, 2015 per curiam order. Granado appealed to this Court, and we granted the following assignment of error:

The Court of Appeals of Virginia erred when it denied the Petition for Appeal without reaching the merits of the issues raised in the Petition, because the Court of Appeals incorrectly ruled that Granado's Statement of Facts was not part of the record.

         Analysis

         Granado argues that the Court of Appeals erred by denying his petition for appeal on the basis that the record was insufficient for it to evaluate his assignments of error. He claims that the Court of Appeals based its decision on the erroneous conclusion that no statement of facts had been timely submitted to the circuit court, and thus, the signed statement of facts in the case file was not properly part of the record. He also contends that the original version of the statement of facts filed on August 18, 2014 was properly added to the contents of the case record by an amendment to the record certified by the circuit court clerk, and it should have been considered by the three-judge panel as proof that a statement of facts was timely filed within the period prescribed by Rule 5A:8(c). Further, he notes that the August 20, 2014 version of the statement of facts was signed by the circuit court judge, certifying compliance with Rule 5A:8.

         The Commonwealth claims that the Court of Appeals properly denied the appeal because Granado failed to include a timely filed statement of facts in the record, based upon the contents of the record as originally certified by the clerk of the circuit court. It adds that the clerk of the circuit court was not allowed to amend the record on appeal to add the proposed written statement of facts filed with the circuit court on August 18, 2014, ...


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