Ellis v. Commonwealth, Record No. 0818-21-1, 75 Va. App. 162 (July 19, 2022)

Facts. Samuel Ellis was issued a Virginia Uniform Summons, which charged him with “Driving Suspended DUI Related” in violation of Code § 18.2‑272 and “Newport News Ordinance § 26-8.” 

The officer checked the box indicating that Ellis was being charged with a city offense. Ellis was convicted in GDC, and, as customary, the conviction order was written on the left and bottom portions of the summons.” Ellis appealed to circuit court, where he agreed to plead to an amended count of “Driving under Suspension: Failure to Maintain Insurance” in violation of Code § 46.2‑302. The circuit court accepted the plea and noted the amendment. One month later, Ellis filed a motion to vacate his conviction. He argued that since Newport News Ordinance § 26-8 does not incorporate Title 18.2 of the Virginia Code, the summons failed to state an offense and was therefore void ab initio.

Issue. Whether a summons that incorrectly cites a code or ordinance section is void.

Holding. A summons cannot be void ab initio, and this one was not so defective to as to render the final judgment void.

Notes. A summons cannot be void ab initio because it is not an act of court. It can, however, be so defective as to violate the Constitution, in which case the final judgment, not the summons is void. Though Newport News Ordinance § 26-8 does not incorporate Title 18.2, Newport News Ordinance § 26-72 does. An incorrect code or ordinance citation will not render a summons invalid “when the defendant plainly had notice of the true nature of the charge against” them. Here, the original charge against Ellis was clear from the code section and title.

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