Present: All the Justices 

JEROME K. RAWLS 

 OPINION BY 

CHIEF JUSTICE LEROY R. HASSELL, SR. 

v. Record Nos. 081672 and 082369 September 18, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CAROLINE COUNTY 

Horace A. Revercomb, III, Judge 

I. 

 In this appeal, we consider whether a criminal defendant 

who was convicted of a felony and sentenced to a punishment in 

excess of a statutorily prescribed maximum range of punishment 

is entitled to a new sentencing hearing for that conviction. 

II. 

 In 1996, a jury in the Circuit Court of Caroline County 

convicted Jerome K. Rawls of the following crimes that he 

committed in April 1992: second degree murder, use of a firearm 

in the commission of murder, conspiracy to commit armed robbery, 

and attempted armed robbery. 

At the time Rawls committed his criminal offenses, Code 

§ 18.2-32 prescribed that “[a]ll murder other than capital 

murder and murder in the first degree is murder of the second 

degree and is punishable as a Class 3 felony.” This felony 

classification permitted a jury to fix a term of imprisonment of 

not less than five years imprisonment nor more than 20 years 
imprisonment and a fine of not more than $100,000. Effective 

July 1, 1993, the General Assembly amended Code § 18.2-32 and 

increased the range of punishment for second degree murder to 

not less than five years imprisonment nor more than 40 years 

imprisonment in a state correctional facility. During Rawls’ 

criminal trial, the Commonwealth and Rawls were under the 

mistaken impression that the amendments to Code § 18.2-32 were 

applicable and consequently the jury was incorrectly instructed 

that it could impose a specific term of imprisonment of not more 

than 40 years for the murder conviction. 

The jury fixed Rawls’ punishment as follows: 25 years 

imprisonment for the second degree murder conviction, two years 

imprisonment for use of a firearm in the commission of murder, 

five years imprisonment and a fine of $20,000 for attempted 

armed robbery, and five years imprisonment for conspiracy to 

commit armed robbery. The circuit court entered a judgment that 

confirmed the jury’s verdict. 

Rawls appealed the judgment of the circuit court to the 

Court of Appeals, which refused his appeal. Rawls v. 

Commonwealth, Record No. 1804-96-2 (Mar. 21, 1997). This Court 

denied Rawls’ appeal from the Court of Appeals. Rawls v. 

Commonwealth, Record No. 970775 (Aug. 4, 1997). Rawls did not 

challenge the length of his sentence in the Court of Appeals or 

this Court. 

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In May 2008, Rawls filed a pro se motion to vacate his 

conviction for murder because his 25 year sentence exceeded the 

statutorily prescribed maximum range of punishment set forth in 

Code § 18.2-32 as the statute existed in 1992, when Rawls 

committed his crimes. The Commonwealth did not respond to 

Rawls’ motion. The circuit court entered a judgment denying 

Rawls’ motion to vacate. Rawls appealed the circuit court’s 

judgment to this Court, and we appointed counsel for Rawls and 

granted his appeal. 

After Rawls had filed a petition for appeal in this Court, 

the Commonwealth filed its own motion to vacate in the circuit 

court styled, Commonwealth v. Rawls. The Commonwealth conceded 

in its motion that the jury had been improperly instructed 

regarding the range of punishment for second degree murder. The 

Commonwealth also acknowledged that at the time that Rawls 

committed the murder, the crime was punishable for a term of 

imprisonment not less than five years nor more than 20 years. 

The Commonwealth requested that the circuit court “vacate its 

Sentencing Order of July 10, 1996, and enter a new Order 

sentencing the defendant to a term of imprisonment of twenty 

years on his conviction of second degree murder.” 

The circuit court entered an order that stated in part: 

“This Court finds that the defendant was sentenced to serve 

25 years in prison for second-degree murder on July 10, 

1996, and that the sentence exceeded the range of 

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punishment prescribed by statute by five years. The Court 

hereby vacates its Sentencing Order of July 10, 1996, in 

this case and enters a new Order sentencing the defendant 

to a term of imprisonment of twenty years on his conviction 

of second-degree murder.” 

Rawls objected to this order and asserted, among other things, 

that he was entitled to a new sentencing hearing for the murder 

conviction. We granted Rawls an appeal from this judgment and 

we consolidated both appeals. 

III. 

Rawls contends that the portion of his sentence that 

exceeds the statutorily prescribed maximum punishment is invalid 

and void. Continuing, Rawls argues that at a minimum he is 

entitled to a new sentencing hearing on the second degree murder 

conviction because the circuit court’s judgment that merely 

deleted the excess punishment resulted in the imposition of a 

sentence that contained “a speculative element.” 

Responding, the Commonwealth claims that Rawls has 

procedurally defaulted his claims. The Commonwealth also 

asserts that Rawls is not entitled to a new sentencing hearing 

and that the circuit court’s order that reduced the excessive 

portion of Rawls’ sentence is appropriate and consistent with 

this Court’s jurisprudence. Additionally, the Commonwealth 

argues that the circuit court’s decision to reduce the excessive 

portion of Rawls’ sentence and enter a judgment for the maximum 

sentence permitted when Rawls committed the murder did not 

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involve speculation. We disagree with the Commonwealth’s 

contentions. 

 We reject the Commonwealth’s argument that Rawls has 

defaulted his claims procedurally. Rawls filed a motion to 

vacate his sentence on the basis that the sentence for the 

murder conviction was void because it exceeded the statutory 

range provided by law. This Court has recognized that a motion 

to vacate is an appropriate procedural device to challenge a 

void conviction. See Williams v. Commonwealth, 263 Va. 189, 

189, 557 S.E.2d 233, 233 (2002); Commonwealth v. Southerly, 262 

Va. 294, 299, 551 S.E.2d 650, 653 (2001). Additionally, we 

stated in Virginia Dept. Corr. v. Crowley, 227 Va. 254, 261, 316 

S.E.2d 439, 443 (1984) that “[w]ant of subject-matter 

jurisdiction may be raised by motion.” Accord Nolde Bros. v. 

Chalkey, 184 Va. 553, 561, 35 S.E.2d 827, 830 (1945), aff’d on

other grounds sub nom. Feitig v. Chalkey, 185 Va. 96, 107, 38 

S.E.2d 73, 78 (1946); Thacker v. Hubard, 122 Va. 379, 386, 94 

S.E. 929, 930 (1918). A circuit court may correct a void or 

unlawful sentence at any time. Powell v. Commonwealth, 182 Va. 

327, 340, 28 S.E.2d 687, 692 (1944). 

We note that the Commonwealth’s remaining procedural 

arguments are without merit. Thus, we will consider the 

litigants’ substantive arguments. 

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As Rawls and the Commonwealth recognize, this Court has 

held that “[a] sentence in excess of that prescribed by law is 

not void ab initio because of the excess, but is good in so far 

as the power of the court extends, and is invalid only as to the 

excess.” Royster v. Smith, 195 Va. 228, 236, 77 S.E.2d 855, 859 

(1953); accord Charles v. Commonwealth, 270 Va. 14, 20, 613 

S.E.2d 432, 435 (2005); Crutchfield v. Commonwealth, 187 Va. 

291, 297-98, 46 S.E.2d 340, 343 (1948). Additionally, we stated 

in Powell, 182 Va. at 340, 28 S.E. at 692: “The authorities are 

unanimous in the view that a court may impose a valid sentence 

in substitution for one that is void, even though the execution 

of the void sentence has commenced. . . . The invalidity of the 

judgment does not affect the validity of the verdict.” 

Our determinations, whether a defendant who has been 

sentenced in excess of the statutorily prescribed range of 

punishment is entitled to a new sentencing hearing, have not 

been uniform. In many instances, our jurisprudence requires a 

court to speculate regarding how a jury would have fixed a 

defendant’s punishment had the jury been properly instructed or 

had the jury properly applied a correct instruction. 

In Hodges v. Commonwealth, 213 Va. 316, 191 S.E.2d 794 

(1972), we considered the appropriate punishment to be imposed 

upon a defendant who had been sentenced to death but the 

judgment of death was invalidated by the Supreme Court’s 

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decision in Furman v. Georgia, 408 U.S. 238 (1972). The Supreme 

Court held in Furman that state statutes which authorized 

discretionary imposition of the death penalty offend the Eighth 

and Fourteenth Amendments to the Federal Constitution. 

Rejecting the Commonwealth’s suggestion in Hodges that this 

Court fix the defendant’s punishment, we stated: 

“Under the Constitution of Virginia the right to trial 

by jury in criminal cases is guaranteed. Va. Const. Art. 

I, § 8. Moreover, [when] a criminal case is tried by a 

jury the punishment shall be ascertained by it. Code 

§ 19.1-291, -292. Here the jury fixed [the defendant’s] 

punishment for the . . . murder at the maximum permitted at 

the time of trial. Nevertheless, it would be sheer 

speculation for us to conclude that, if death had not then 

been a permissible punishment, the jury would have fixed 

the punishment at life imprisonment. The jury might well 

have agreed upon 99 years, as it did for [another] murder 

[that the defendant had committed].” 

Hodges, 213 Va. at 320-21, 191 S.E.2d at 797. This Court 

remanded the case to the circuit court for a new trial on the 

issue of punishment only for the capital murder conviction. Id.

at 321, 191 S.E.2d at 798. 

In Huggins v. Commonwealth, 213 Va. 327, 191 S.E.2d 734 

(1972), this Court again considered the appropriate punishment 

for a defendant whose punishment had been fixed at death by a 

jury and the punishment was invalidated by Furman v. Georgia, 

supra. This Court remanded the case to the circuit court for a 

new trial on the issue of punishment. We stated that in 

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Virginia, a defendant’s right of trial by jury includes a jury’s 

determination of guilt and the corresponding penalty. 

In Deagle v. Commonwealth, 214 Va. 304, 199 S.E.2d 509 

(1973), we considered whether a defendant who had been sentenced 

in excess of the statutorily prescribed range of punishment was 

entitled to a new sentencing hearing. In Deagle, a jury had 

four statutorily prescribed sentencing alternatives available to 

it when the jury considered a defendant’s punishment and the 

jury fixed two punishments that were incompatible. The jury 

imposed a punishment of ten years in the penitentiary and a fine 

of $1,000. Under the relevant statutes, however, the jury could 

have imposed a ten year penitentiary sentence upon the 

defendant, or the jury could have fixed the punishment at a fine 

of $1,000, but the jury could not impose both punishments. When 

the circuit court realized that the jury had improperly fixed 

the defendant’s punishment beyond the statutory range of 

punishment, the circuit court deleted the fine, thereby 

rendering the sentence consistent with the prescribed range of 

punishment. 

This Court rejected the defendant’s request for a new 

sentencing hearing, stating: 

“From the verdicts we know that the jury intended that 

[the defendant] be sentenced to serve ten years in the 

penitentiary on each indictment. We also know that the 

jury wanted [the defendant] to pay a fine of $1,000 on each 

indictment. 

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“Common sense and reason dictate that the jury, if it 

had been required to choose between the two punishments it 

fixed, would have imposed the greater, the penitentiary 

sentence, and not the lesser, the fine. 

“For this reason we find no error by the trial court 

in deleting the fines and imposing the penitentiary 

sentences for we perceive no possible prejudice to the 

defendant from this action.” 

Deagle, 214 Va. at 306, 199 S.E.2d at 511. 

In Waller v. Commonwealth, 192 Va. 83, 89, 63 S.E.2d 713, 

717 (1951), we considered an appeal filed by a defendant who had 

been convicted and subsequently sentenced by a jury in excess of 

the statutory range of punishment. In contrast to Deagle, in 

Waller we granted the defendant a new trial. Additionally, in 

Jones v. Commonwealth, 61 Va. (20 Gratt.) 848, 858-59 (1871), we 

awarded a defendant a new trial when the jury fixed the 

defendant’s punishment below the statutorily prescribed 

mandatory minimum punishment. 

As our jurisprudence demonstrates, we have not acted 

uniformly when determining whether a defendant, who received an 

improper sentence, was entitled to a new sentencing hearing. 

For example, if as in Huggins and Hodges, this Court believed 

that upon retrial a jury may impose a punishment less than the 

maximum allowable, this Court concluded that a circuit court 

could only speculate regarding the punishment that a jury might 

fix and thus the defendants received a new sentencing hearing. 

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However, if as in Deagle, a jury imposed two punishments that 

are not both statutorily authorized, one punishment which is a 

fine and the other punishment a lengthy penitentiary term, this 

Court concluded that the jury intended to impose the harsher 

punishment and the elimination by a circuit court of the excess 

punishment did not involve speculation. We also observe that 

the Court of Appeals has held that if a jury imposes a 

punishment that it thinks is the maximum allowable by statute 

but the actual statutorily prescribed maximum punishment is 

less, the elimination of the excess punishment and the 

imposition of the legally permissible lesser maximum punishment 

would not involve speculation because presumably the jury 

intended to fix the greater punishment. Dargan v. Commonwealth, 

27 Va. App. 495, 497-99, 500 S.E.2d 228, 229-30 (1998). 

Thus, our jurisprudence permits a court to improperly 

instruct a jury regarding the statutorily permissible range of 

punishment and subsequently correct a defendant’s sentence, 

thereby depriving that defendant of his right to be sentenced by 

a jury. This practice diminishes a criminal defendant’s right 

to a jury trial. 

 As illustrated by the facts in Rawls’ case, even though the 

jury was improperly instructed that it could fix Rawls’ 

punishment at a maximum of 40 years imprisonment, the jury fixed 

his punishment at 25 years imprisonment which is five-eighths of 

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what the jury thought was the maximum punishment. Can we infer 

with any confidence that had the jury been properly instructed 

that the maximum punishment it could impose upon Rawls for the 

second degree murder conviction was 20 years imprisonment the 

jury would have fixed his punishment at 13 years imprisonment, 

which is approximately five-eighths of 20 years? Absolutely 

not. Such inference would require that this Court engage in 

sheer speculation. 

Today we adopt the following rule that is designed to 

ensure that all criminal defendants whose punishments have been 

fixed in violation of the statutorily prescribed ranges are 

treated uniformly without any speculation. We hold that a 

sentence imposed in violation of a prescribed statutory range of 

punishment is void ab initio because “the character of the 

judgment was not such as the [C]ourt had the power to render.” 

Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177 (1887); 

accord Evans v. Smyth-Wythe Airport Common, 255 Va. 69, 73, 495 

S.E.2d 825, 828 (1998). Thus, a criminal defendant in that 

situation is entitled to a new sentencing hearing. This common 

law rule of jurisprudence will eliminate the need for courts to 

resort to speculation when determining how a jury would have 

sentenced a criminal defendant had the jury been properly 

instructed or had the jury properly followed correct 

instructions. Applying this rule to Rawls, we hold that he is 

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entitled to a new sentencing hearing on his second degree murder 

conviction and that the circuit court erred by reducing his 

second degree murder conviction to a sentence of 20 years 

imprisonment. 

 We will decline Rawls’ request for a new sentencing hearing 

on his remaining convictions. Rawls did not raise this issue in 

the circuit court and we decline to invoke the ends of justice 

exception contained in Rule 5:25. The jury was properly 

instructed on Rawls’ other convictions and the jury sentenced 

him within the statutorily prescribed ranges of punishment for 

those convictions. 

 Accordingly, we will deny Rawls’ request to vacate his 

convictions with the exception of his second degree murder 

conviction. Rawls’ second degree murder conviction will remain 

intact; we will vacate the sentence of 20 years imprisonment; 

and we will remand this conviction to the circuit court for a 

new sentencing hearing. 

Affirmed in part,

reversed in part,

 and remanded.

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