Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nelson v. Commonwealth

Court of Appeals of Virginia

January 7, 2020

LINDA KAYE NELSON, S/K/A LINDA LAY NELSON, S/K/A LINDA KAY NELSON
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON Charles L. Ricketts, III, Judge

          Stephen B. Geiger, Assistant Public Defender, for appellant.

          Liam A. Curry, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, Beales and Athey Argued at Lexington, Virginia

          OPINION

          WILLIAM G. PETTY, JUDGE

         Linda 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.[1] 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.

         I. BACKGROUND

         "On 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).

         On 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.[2]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 and agreed."

         On 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.[3]

         II. ANALYSIS

         A. Rule 1:1

         Nelson argues that the trial court erred in denying her motions for lack of jurisdiction. Although this does not end the analysis, we agree.

         The 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).

         Rule 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 action ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.