Jacks v. Commonwealth, Record No. 0833-20-3, 74 Va. App. 783 (May 17, 2022) (en banc)

Facts. On March 16, 2020, the Supreme Court of Virginia issued its first judicial emergency order related to the COVID-19 pandemic, which tolled certain deadlines. The same day, Clifton Jacks was convicted in GDC for driving while intoxicated. Jacks noted his appeal to circuit court outside the Code § 16.1‑132’s ten-day deadline, so the circuit court.

Issue. (1) Whether Code § 16.1‑132’s ten-day deadline is a “case-related deadline” that was tolled by the Supreme Court’s COVID-19 emergency orders. (2) Whether Code § 8.01‑384(A)’s exception to the contemporaneous rule applied.

Holding. (1) Code § 16.1‑132’s ten-day appeal window is a “case-related deadline.” (2) Jacks had no opportunity to make his tolling argument before the dismissal was entered, so he is not barred from making that argument on appeal under Code § 8.01‑384(A).

Notes. (1) Jacks’ prosecution for driving under the influence was a “case,” the statutory ten-day appeal window was a “deadline,” and it “related” to the case because it restricted how long Jacks had to note his appeal. (2) Code § 8.01‑384(A) creates an exception to the contemporaneous objection rule. It states that “if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him…on appeal.” Here, the circuit court dismissed Jacks’ appeal sua sponte, without a hearing, and outside the presence of him or his counsel, giving him no opportunity to object. The plain language of the statute states that a failure to object “shall not thereafter prejudice” a litigant on appeal, so Jacks was not required to file any post-judgment motions to preserve his argument for appeal.

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