Tuesday 17th 

 July, 2001. 

Ray Lloyd Powell, Appellant, 

 against Record No. 3042-99-2 

 Circuit Court No. CR98-3610 

Commonwealth of Virginia, Appellee. 

Upon a Rehearing En Banc 

 Before Chief Judge Fitzpatrick, Judges Benton, Willis, 

 Elder, Bray, Annunziata, Bumgardner, Humphreys and Clements 

 Robert J. Wagner (Wagner & Wagner, on 

brief), for appellant. 

 Shelly R. James, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

brief), for appellee. 

By opinion dated November 28, 2000, a panel of this Court 

reversed the judgment of the trial court and remanded this case for a 

new trial. Powell v. Commonwealth, 34 Va. App. 13, 537 S.E.2d 602 

(2000). We stayed the mandate of that decision and granted rehearing 

en banc. Upon rehearing en banc, we withdraw the opinion previously 

rendered on November 28, 2000, vacate the mandate entered on that 

date, reverse the judgment of the trial court, and remand this case 

to the trial court for a new trial, if the Commonwealth be so 

advised. 

The record before us discloses that the trial court 

improperly curtailed the presentation of evidence and argument, 
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thereby denying the parties a fair trial and forestalling the ends of 

justice. We do not address the permissibility of the procedure 

undertaken by the trial court, because that issue was not raised 

before the trial court and was not presented or developed by the 

parties on appeal. 

______________________ 

Benton, J., with whom Elder, J., joins, concurring, in part, and 

 dissenting, in part. 

 I concur in the part of the judgment reversing the 

conviction, but I dissent from the part of the judgment remanding the 

case for a new trial. 

 I would remand the case with instructions that would give 

effect to the trial judge's ruling when he took this matter under 

advisement. At that time, he noted only the following condition: 

I'll take the matter under advisement until 

August 31st [of 1999]. If there are no other 

problems between Mr. Powell and Ms. Heath, the 

matter can be dismissed. 

The Commonwealth did not object to the trial judge's ruling and 

suggested no other conditions. Because Powell complied with the 

conditions imposed by the trial judge when he took the case under 

advisement, I would remand this case with instructions to the trial 

judge to dismiss the prosecution. In analogous cases, where judges 

have revoked the suspension of sentences, both the Supreme Court and 

this Court have indicated that judges must scrupulously honor the 

conditions they have placed upon criminal defendants. See e.g.

Griffin v. Cunningham, 205 Va. 349, 354, 136 S.E.2d 840, 844 (1964) 
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(noting that "when the accused has complied with conditions 

specified, he has a right to rely upon them, and the suspension will 

stand"); Dyke v. Commonwealth, 193 Va. 478, 483, 69 S.E.2d 483, 486 

(1952) (holding that "[i]f the defendant had kept [the] condition [of 

suspension], then the court was bound by that condition"); Preston v. 

Commonwealth, 14 Va. App. 731, 419 S.E.2d 288 (1992) (holding that 

when the evidence fails to prove a violation of the condition upon 

which suspension was based, the trial judge abuses discretion by 

revoking the suspension). I can find no reason why similar 

limitations on a judge's discretion should not exist here. 

______________________ 

Humphreys, J., concurring. 

 I concur in the result in this matter for the reasons 

stated in the order; however, I would address the issue of the 

authority of the trial court to defer the finding and judgment. It 

is true that the Commonwealth did not object to the trial court's 

decision to take the finding in this case under advisement and to 

place the appellant on probation on terms and conditions. 

Nevertheless, the failure to object is of no moment and the issue may 

be decided by this Court if the judgment was void, based upon the 

manner in which the trial court exercised its jurisdiction. 

 The Supreme Court of Virginia has held 

"it is essential to the validity of a judgment or 

decree, that the court rendering it shall have 

jurisdiction of both the subject matter and 

parties. But this is not all, for both of these 

essentials may exist and still the judgment or 
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decree may be void, because the character of the 

judgment was not such as the court had the power 

to render, or because the mode of procedure 

employed by the court was such as it might not 

lawfully adopt." 

Evans v. Smyth-Wythe Airport Commission, 255 Va. 69, 73, 495 S.E.2d 

825, 828 (1998) (citations omitted) (emphasis added). The Supreme 

Court has also noted that 

[t]he distinction between an action of the court 

that is void ab initio rather than merely 

voidable is that the former involves the 

underlying authority of a court to act on a 

matter whereas the latter involves actions taken 

by a court which are in error. An order is void 

ab initio if entered by a court in the absence of 

jurisdiction of the subject matter or over the 

parties, if the character of the order is such 

that the court had no power to render it, or if 

the mode of procedure used by the court was one 

that the court could "not lawfully adopt." The 

lack of jurisdiction to enter an order under any 

of these circumstances renders the order a 

complete nullity and it may be "impeached 

directly or collaterally by all persons, 

anywhere, at any time, or in any manner." 

Singh v. Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001) 

(citations omitted) (emphasis added). 

 Certainly our Supreme Court could not have intended words 

of such clear and strong import to serve as precedent in only select 

matters. Indeed, I would consider this case to involve the 

paradigmatic situation that the Court intended to address. Here, the 

record very clearly demonstrates that the trial court reached its 

ultimate determination by way of a mode of procedure that the trial 

court had no authority to lawfully adopt. As the Commonwealth 

conceded at oral argument, under the circumstances of this case, 
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there is simply no statutory authority pursuant to which the trial 

court could have lawfully deferred a finding or judgment. 

 As a rule, trial courts may not dismiss criminal charges on 

grounds other than the legal or factual merits. Holden v. 

Commonwealth, 26 Va. App. 403, 407, 494 S.E.2d 892, 895 (1998). 

However, the General Assembly has in some instances given trial 

courts explicit authority to defer a finding of guilt, 

notwithstanding the fact that evidence was presented proving guilt 

beyond a reasonable doubt.1

 "When a legislative enactment limits the manner in which 

something may be done, the enactment also evinces the intent that it 

shall not be done another way." Grigg v. Commonwealth, 224 Va. 356, 

364, 297 S.E.2d 799, 803 (1982). See also Commonwealth v. Brown, 259 

Va. 697, 704-05, 529 S.E.2d 96, 100 (2000). Except in those 

instances where the General Assembly has expressly authorized a trial 

court to defer a finding of guilt even though the proof has 

established the guilt of the defendant beyond a reasonable doubt, 

trial courts may not defer a factual finding of guilt or acquittal or 

a judgment of guilt or acquittal.2

 1 See, e.g., Code §§ 18.2-57.3 (assault and battery against a 

family or household member); 18.2-61 (marital rape); 18.2-67.1 

(marital forcible sodomy); 18.2-67.2 (marital object sexual 

penetration); 18.2-67.2:1 (marital assault and battery); 18.2-138.1 

(malicious damage to public property); 18.2-251 (possession of 

controlled substances or marijuana); and 19.2-303.2 (certain property 

crimes constituting misdemeanors). 

2

 There seems little dispute about this point. The Commonwealth 

conceded on brief and in argument that trial courts lack the 
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 Thus, since the trial court utilized an unlawful mode of 

procedure, it lacked the requisite jurisdiction to enter the final 

order under these circumstances. In light of this, the order of the 

court was rendered "a complete nullity" which may be impeached at 

"any time," and "in any manner," irrespective of whether the issue 

had been properly raised and/or preserved by the parties. Singh, 261 

Va. at 52, 541 S.E.2d at 551. 

 Accordingly, I would decide the issue and hold that the 

judgment of the trial court was void because it lacked the statutory 

authority to defer a finding and judgment for the purpose of placing 

the appellant on terms and conditions. Therefore, the trial court 

lacked jurisdiction to enter the resulting final order. 

______________________ 

Accordingly, we withdraw the opinion previously rendered on 

November 28, 2000, vacate the mandate entered on that date, reverse 

the judgment of the trial court, and remand this case to the trial 

court for a new trial, if the Commonwealth be so advised. 

It is ordered that the trial court allow counsel for the 

appellant a total fee of $925 for services rendered the appellant on 

this appeal, in addition to counsel's costs and necessary direct 

out-of-pocket expenses. 

 

authority to defer findings or judgments of guilt in the absence of 

express statutory authority to do so, and the appellant conceded in 

argument that he could find no case authority to the contrary. 
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This order shall be published and certified to the trial 

court. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk