LINDA KAYE NELSON, S/K/A LINDA LAY NELSON, S/K/A LINDA KAY NELSON
COMMONWEALTH OF VIRGINIA
THE CIRCUIT COURT OF THE CITY OF STAUNTON Charles L.
Ricketts, III, Judge
Stephen B. Geiger, Assistant Public Defender, for appellant.
A. Curry, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Present: Judges Petty, Beales and Athey Argued at Lexington,
WILLIAM G. PETTY, JUDGE
Kaye Nelson appeals her conviction for felony embezzlement, a
violation of Code § 18.2-111. On appeal, Nelson asserts
that the trial court erred in ruling that it did not have
jurisdiction to consider her motions for a new trial and
thereby failing to order a new trial. Nelson further alleges that
the trial court erred in preventing allegedly hearsay
evidence from being admitted even though Nelson's counsel
withdrew the question before the trial court ruled on the
Commonwealth's motion. Because Nelson's counsel
conceded at trial all the issues she now wishes to raise on
appeal, we will not consider them. Accordingly, the decision
of the trial court is affirmed.
appeal, we review the evidence in the 'light most
favorable' to the Commonwealth, the prevailing party in
the trial court." Vasquez v. Commonwealth, 291
Va. 232, 236 (2016) (quoting Bowman v. Commonwealth,
290 Va. 492, 494 (2015)). "'Viewing the record
through this evidentiary prism requires us to "discard
the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences to be
drawn therefrom.'"" Commonwealth v.
Perkins, 295 Va. 323, 323-24 (2018) (quoting
Vasquez, 291 Va. at 236).
September 29, 2017, Nelson was convicted in a bench trial of
felony embezzlement. The conviction order was entered on
October 3, 2017. Nelson's counsel filed a motion to set
aside the verdict and grant a new trial on January 19, 2018,
on the basis of the court sustaining the Commonwealth's
objection to admission of allegedly hearsay statements of the
victim saying that the money was a gift. The Commonwealth
filed a motion in response, arguing that the trial court
lacked jurisdiction to consider Nelson's motion because
of Rules 1:1 and 3A:15.Although there is neither a transcript
of a hearing on this motion nor a response from Nelson to the
Commonwealth's answer in the record before us, the trial
court's letter opinion notes that the motion was denied
in light of Nelson's counsel's concession that the
court lacked jurisdiction to decide the motion. The order
signed by the trial court and prepared by the Commonwealth
notes that Nelson "conceded on April 17, 2018 that the
Court lacks the jurisdiction to grant the relief prayed
for." Nelson's counsel signed this order "Seen
September 4, 2018, Nelson's counsel filed a motion to
vacate the conviction and order a new trial based on an
alleged Brady violation. The Commonwealth filed a
motion in response, arguing again that the court lacked
jurisdiction to rule on the motion because of Rule 1:1-more
than twenty-one days had passed after the entry of the
conviction order. By order entered on October 11, 2018, the
trial court denied Nelson's motion without explanation.
Nelson was sentenced to ten years with nine years and six
months suspended on December 6, 2018.
argues that the trial court erred in denying her motions for
lack of jurisdiction. Although this does not end the
analysis, we agree.
question of whether a particular order is a final judgment is
a question of law that we review de novo.
Rusty's Welding Serv., Inc. v. Gibson, 29
Va.App. 119, 127 (1999) (en banc).
1:1 states in part: "All final judgments,
orders, and decrees, irrespective of terms of court, shall
remain under the control of the trial court and subject to be
modified, vacated, or suspended for twenty-one days after the
date of entry, and no longer." (Emphasis added). The
crux of the determination of finality is whether the entire