News & Insights
the Supreme Court Saves a Litigant from Immediate Appellate Death by Reversing a Summary Dismissal from the Court of Appeals
Thomas v. Commonwealth, Record No. 230759 (Va. Sept. 19, 2024)
On August 1, 2022, Taron Jerrell Thomas was convicted of several serious crimes. He was sentenced on April 6, 2023, and the sentencing order was issued on May 9, 2023. Two days later, on May 11, the trial court issued a stay of the sentencing order for 120 days “to give the defense adequate time to file proper appeal paperwork.” Thomas filed his notice of appeal on August 3, 2023. The Court of Appeals summarily dismissed the appeal because the notice was not timely filed. Thomas appealed.
The Supreme Court reversed the Court of Appeals and found that the notice had been timely filed. Under Rule 1:1, all final judgments (a sentencing order is generally a final judgment) “remain under the control of the trial court and may be modified, vacated, or suspended for twenty-one days after the date of entry…[b]ut notwithstanding the finality of the judgment, in a criminal case the trial court may postpone execution of the sentence in order to give the accused an opportunity to apply for a writ of error[.]” Here, the trial court had suspended the May 9 order in compliance with Rule 1:1, making the date of entry of the final order September 6, 2023. Though Thomas filed his notice in August before the judgment became final, Rule 5A:6 provides that a notice filed “after the trial court announces a decision or ruling—but before the entry of such judgment or order—is treated as filed on the date of and after the entry.” Thus, Thomas had timely filed his notice.
In a recent article, I discuss the nuances of final orders for purposes of appeal: https://virginiaappeals.org/2023/05/17/when-is-a-final-order-final/