COURT OF APPEALS OF VIRGINIA 

Present: Judges Alston, McCullough and Senior Judge Clements 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION*

 BY 

v. Record No. 0741-13-3 JUDGE STEPHEN R. McCULLOUGH 

 SEPTEMBER 10, 2013 

SHANNON SMITH MITCHELL 

FROM THE CIRCUIT COURT OF FRANKLIN COUNTY 

William N. Alexander, II, Judge 

 Alice T. Armstrong, Assistant Attorney General II (Kenneth T. 

Cuccinelli, II, Attorney General, on briefs), for appellant. 

 Melissa P. Keen (Furrow & Keen, P.C., on brief), for appellee. 

In this pretrial appeal, the Commonwealth challenges the trial court’s order granting 

suppression of evidence seized from the defendant. We also ordered the parties to brief the 

question of whether the Commonwealth’s appeal was timely filed. We conclude that the 

Commonwealth’s appeal is properly before us. We further reverse the order of suppression and 

remand the case for further proceedings. 

BACKGROUND 

Kevin Glenn Bowling, a loss prevention associate at a Wal-Mart store in Roanoke 

County, observed the appellee, Shannon Smith Mitchell, place items of clothing in her cart. At a 

separate location in the store, Mitchell removed the hangers from the clothing and placed the 

clothing in her purse. Before leaving, Mitchell paid for a small item but did not pay for the 

clothing concealed in her purse. Bowling approached Mitchell in the parking lot and asked about 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

UNPUBLISHED 
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the merchandise, but she ignored him. She climbed into the passenger seat of a truck, and the 

vehicle drove away. Bowling obtained a description and a license plate number for the truck. 

He then called the police. 

Corporal Terry Scott Dameron, with the Franklin County Sheriff’s Office, observed a 

suspect vehicle matching a description he had received earlier from his dispatcher. He stopped 

the vehicle and asked Mitchell whether there was anything stolen in the vehicle. She handed him 

a bag containing some clothing. Mitchell stated that she had stolen the items from Wal-Mart, but 

that she would go back and pay for them. After she handed him the bag, he asked her if there 

was anything else illegal in the vehicle, such as guns or drugs. Mitchell stated that there was a 

“crack stem” in her purse. She retrieved it and handed it over to Corporal Dameron. Mitchell 

indicated that she used it to smoke crack cocaine. Corporal Dameron seized her purse and found 

additional incriminating evidence suggestive of drug use. He placed her under arrest for 

possession of cocaine. 

Mitchell was charged in Franklin County with possession of cocaine. She moved to 

suppress the evidence, arguing that the stop was not supported by reasonable suspicion and, 

further, that the statements she made were obtained in violation of her Fifth Amendment rights. 

On February 20, 2013, the trial court held a hearing on the motion. At the conclusion of 

the hearing, the court ordered the parties to file briefs setting forth their respective positions. A 

transcript of the hearing was filed in the trial court on February 28, 2013. The record does not 

reveal who filed this transcript. 

On March 28, 2013, the trial court issued a detailed memorandum opinion. The court 

first held that the stop was reasonable because it was based on reasonable articulable suspicion. 

Second, the court held that after Mitchell admitted to stealing the clothes and handed the clothing 

to the officer, she was in custody for Miranda purposes. Mitchell’s subsequent statements about 
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a crack stem in her purse were made while she was in custody and without the benefit of 

Miranda warnings. The court ruled that “[a]ll statements made by Mitchell and evidence of other 

crimes found after she admitted the thefts from Wal-Mart should be excluded.” The court 

declined to apply the doctrine of inevitable discovery. The court reasoned that had the defendant 

been arrested on some other charge, such as possession of stolen property, “inevitably the 

contents [of her purse] would have been found during the processing.” However, the court 

found, she was not taken for processing on any charge except the possession of cocaine. The 

court then issued an order on April 9, 2013, granting Mitchell’s motion to suppress. 

On April 4, 2013, the Commonwealth filed a motion to reconsider. The court denied that 

motion on April 12, 2013. The Commonwealth filed its notice of appeal four days later, on April 

16, 2013, and filed a notice of filing of transcript on the same date. The Commonwealth filed its 

petition for appeal on April 30, 2013. 

ANALYSIS 

I. TIMELINESS OF THE COMMONWEALTH’S APPEAL

As a preliminary matter, this Court directed the parties to brief the following question: 

In a case where, as here, (i) the transcript was filed prior to the 

entry of the order being appealed, (ii) a notice of filing transcript 

was filed after the entry of the order being appealed, and (iii) the 

petition for appeal was filed within 14 days of filing the post-order 

notice but not within 14 days of filing the pre-order transcript, has 

the Commonwealth filed a timely petition for appeal? 

Several considerations guide our reading of the applicable statutes. First, because the 

right to appeal by the Commonwealth is in derogation of the general prohibition against appeals 

by the Commonwealth, this right “must be strictly construed against the state and limited in 

application to cases falling clearly within the language of the statute.” Commonwealth v. 

Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5 (1990) (citations omitted). At the same time, we 

will not construe a statute in a manner that “leads to absurd results.” Bowling v. 
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Commonwealth, 51 Va. App. 102, 109, 654 S.E.2d 354, 358 (2007) (citation omitted). In 

addition, “[i]t is a cardinal rule of construction that statutes dealing with a specific subject must 

be construed together in order to arrive at the object sought to be accomplished.” Prillaman v. 

Commonwealth, 199 Va. 401, 406, 100 S.E.2d 4, 8 (1957). The object of all of these canons of 

statutory construction “is to ascertain and give effect to legislative intent.” Turner v. 

Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). 

 Code § 19.2-402(B) provides that “[t]he petition for a pretrial appeal shall be filed with 

the clerk of the Court of Appeals not more than 14 days after the date that the transcript . . . is 

filed.” Read in isolation, this provision would require us to dismiss this appeal: the transcript 

was filed on February 28, 2013, and the petition for appeal was filed in our Court on April 30, 

2013, more than 14 days after the transcript was filed. The issue, however, is not so simple. At 

the time the transcript was filed, the court had not even ruled on the motion to suppress. The 

court did not rule on the suppression motion until April 9, 2013, more than 14 days after the 

transcript was filed. It is not clear how the Commonwealth can file a petition for appeal from a 

ruling that has not even occurred. 

Code § 19.2-405 provides an important clue concerning the General Assembly’s intent 

with regard to the filing of the transcript. Code § 19.2-405 provides that “[t]he transcript or 

written statement of facts shall be filed by the Commonwealth with the clerk of the circuit court 

from which the appeal is being taken, within 25 days following entry of the order of the circuit 

court.” (Emphasis added). It is thus plain that the General Assembly contemplated, logically 

enough, that the transcript in a pretrial appeal filed by the Commonwealth would be filed after 

the entry of an order granting suppression. Here, the transcript was filed before the court ruled. 

The question is how to apply Code § 19.2-402(B) when the sequence of events contemplated by 

the General Assembly has not occurred. A strict, literal reading of the 14-day transcript filing 
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requirement of Code § 19.2-402(B) would lead to absurd results. It would serve no purpose to 

require the Commonwealth to go through the meaningless exercise of filing a second, identical 

transcript.1 

In addition, we note the purpose behind the strict timelines governing pretrial appeals 

filed by the Commonwealth. A defendant who succeeds in suppressing evidence often is 

incarcerated. Even if he is not, the pending prosecution constitutes an omnipresent and 

disruptive concern. As for the victims of crime who need redress, a long delay ill serves their 

interests. The expedited deadlines governing pretrial appeals allow for the prompt determination 

of whether a prosecution can effectively move forward or whether a defendant should be 

released. The point of these statutory deadlines, however, is not formality for formality’s sake.2 

Finally, the General Assembly has chosen to provide those who represent the people of 

the Commonwealth with a limited right to appeal. We decline to read the Code in a way that 

pointlessly frustrates this policy objective. 

 1

 It is also worth noting that a transcript is not necessary for the appellate court to acquire 

jurisdiction over an appeal. Smith v. Commonwealth, 281 Va. 464, 470, 706 S.E.2d 889, 893 

(2011). It is possible that there might be no transcript at all, for example where a case proceeds 

on stipulations or turns on a pure legal question. 

2

 The dissent, citing cases, notes that “in countless cases, this Court has dismissed appeals 

for failure to comply with the strict letter of the statutes or rules governing appeals.” Those cases 

are irrelevant to the specific issue before us. We have not interpreted appellate rules and statutes 

with unmitigated harshness toward either defendants or the Commonwealth. See, e.g., Whitt v. 

Commonwealth, 61 Va. App. 637, 739 S.E.2d 254 (2013) (holding that the harsh remedy of 

dismissal was unwarranted and allowing appellants to amend an assignment of error to bring it 

into conformity with the rules of court); Chatman v. Commonwealth, 61 Va. App. 618, 739 

S.E.2d 245 (2013) (refusing to dismiss an appeal because the appellant initially failed to set forth 

alongside the assignment of error the specific place in the transcript where the issue was 

preserved). Whether dismissal is warranted, including in appeals brought by the 

Commonwealth, depends on the statute or rule at issue. Compare Commonwealth v. Hackett, 

2008 Va. App. LEXIS 120 (Va. Ct. App. Mar. 11, 2008) (unpublished) (holding that the 

Commonwealth’s failure to make the certification under Code § 19.2-400 was not a jurisdictional 

defect requiring dismissal), with Commonwealth v. Hawkins, 10 Va. App. 41, 390 S.E.2d 3 

(1990) (dismissing appeal because outside the scope of appeals permitted by Code 

§ 19.2-398(2)).
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We hold that a transcript is timely filed for purposes of Code § 19.2-405 when it is filed 

before the entry of the order appealed from. We further hold that when the transcript is filed 

early in pretrial appeals filed by the Commonwealth, the petition for appeal is timely filed if it is 

filed within 14 days of the filing of the notice of appeal. This conclusion accords with Rule 

5A:8(b)(1), which provides as a default rule in ordinary appeals that when the transcript is filed 

before the order that is being appealed, the filing deadlines are triggered by the filing of the 

notice of appeal. The Commonwealth filed its petition for appeal within 14 days of the filing of 

the notice of appeal, and, therefore, the appeal is properly before us.3

 

II. THE TRIAL COURT ERRED IN SUPPRESSING THE PHYSICAL EVIDENCE SEIZED FROM THE DEFENDANT. 

 The Commonwealth does not appeal the trial court’s suppression of the defendant’s 

statements. It does, however, contend that the trial court erred in refusing to apply the doctrine of 

inevitable discovery with regard to the physical evidence seized from the defendant.4

 Although we 

will “defer to the trial court’s factual findings unless plainly wrong or without evidence to support 

them,” we will “review the ultimate question of law, the application of the inevitable discovery 

 3

 We acknowledge that Code § 19.2-405 does not expressly address the effect of an early 

transcript filing. Saunders v. Commonwealth, 12 Va. App. 154, 402 S.E.2d 708 (1991), is 

instructive in this regard. In Saunders, we held that a prematurely filed notice of appeal was 

timely. At the time Saunders was decided, our rule governing the filing of a notice of appeal did 

not contain the language currently found in Rule 5A:6(a), that “[a] notice of appeal filed after the 

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.” Saunders indicates that premature filings do not 

necessarily compel dismissal, even when the language of the applicable rule does not address the 

impact of the premature filing. Saunders, 12 Va. App. at 154, 402 S.E.2d at 708. 

4

 We note that the exclusionary rule does not apply to physical evidence discovered as a 

result of a Miranda violation. United States v. Patane, 542 U.S. 630, 634, 644-45 (2004) 

(plurality and concurring opinions). “In short, the privilege against self-incrimination is simply 

‘not concerned with nontestimonial evidence.’” Rowley v. Commonwealth, 48 Va. App. 181, 

183, 629 S.E.2d 188, 189 (2006) (quoting Oregon v. Elstad, 470 U.S. 298, 304 (1985)). The 

Commonwealth did not argue this point at trial. Accordingly, we do not address it here. 
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doctrine, de novo.” Copeland v. Commonwealth, 42 Va. App. 424, 437, 592 S.E.2d 391, 397 

(2004). 

Even though the police may have illegally seized evidence, the suppression remedy should 

not be applied when that evidence would inevitably have been discovered. Nix v. Williams, 467 

U.S. 431, 444 (1984). The United States Supreme Court has explained that the premise behind the 

application of the exclusionary rule is that “the challenged evidence is in some sense the product of 

illegal governmental activity.” Id. (quoting United States v. Crews, 445 U.S. 463, 471 (1980)). “If 

the prosecution can establish by a preponderance of the evidence that the information ultimately 

or inevitably would have been discovered by lawful means . . . then the deterrence rationale has 

so little basis that the evidence should be received.” Id. 

When relying on the doctrine of inevitable discovery, the Commonwealth must show, 

first, a reasonable probability that the evidence in question would have been discovered by 

lawful means but for the police misconduct and, second, that the leads making the discovery 

inevitable were possessed by the police at the time of the misconduct. Commonwealth v. Jones, 

267 Va. 532, 536-37, 593 S.E.2d 204, 207 (2004). 

The trial court found that “had [Mitchell] been arrested on some other charge such as 

possession of stolen property in Franklin County, and taken to the Franklin County Sheriff’s office 

for processing, inevitably the contents [of her purse] would have been found during the processing.” 

The court reasoned, however, that the inevitable discovery rule did not apply because Mitchell was 

not, in fact, arrested for possession of stolen property. 

Under our precedent, it is “legally irrelevant” that Mitchell was arrested for a particular 

crime if the officer had probable cause to arrest her for a different crime. See Slayton v. 

Commonwealth, 41 Va. App. 101, 110, 582 S.E.2d 448, 452 (2003). Indisputably, the officer here 

had probable cause to arrest Mitchell for stealing merchandise from Wal-Mart. Probable cause to 
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arrest provides the officer with the authority to search incident to arrest. See United States v. 

Robinson, 414 U.S. 218, 224 (1973). The search may take place before or after the arrest. 

Italiano v. Commonwealth, 214 Va. 334, 336, 200 S.E.2d 526, 528 (1973). Corporal Dameron 

had a right to search her as soon as he had probable cause to arrest. The record establishes by a 

preponderance of the evidence a reasonable probability that the evidence in question would have 

been discovered by lawful means but for the police misconduct and that the leads making the 

discovery inevitable were possessed by the police at the time of the misconduct.5 

CONCLUSION 

 We reverse the judgment of the trial court suppressing the physical evidence seized from 

the defendant, and we remand the case for further proceedings. 

Reversed and remanded. 

 5

 Neither party, either in the trial court or on appeal, made any mention of Code § 19.2-74 

and what impact this statute might have on the Fourth Amendment inevitable discovery analysis 

in a situation like this one. Accordingly, we will not address the issue. 
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Alston, J., dissenting. 

 I respectfully dissent from the majority’s holding that the Commonwealth timely filed its 

petition for appeal in this case. Under the plain language of Code §§ 19.2-402(B) and -405, the 

Commonwealth’s filing of its petition for appeal was not timely.6 

 Code § 19.2-402(B) sets forth certain procedural requirements that the Commonwealth’s 

petition for a pretrial appeal must meet. It states, in pertinent part: 

The petition for a pretrial appeal shall be filed with the clerk of the 

Court of Appeals not more than 14 days after the date that the 

transcript or written statement of facts is filed, or if there are 

objections thereto, within 14 days after the judge signs the 

transcript or written statement. 

Code § 19.2-402(B). In order for this Court to acquire jurisdiction over a criminal appeal, the 

petitioner must file a timely petition. Long v. Commonwealth, 7 Va. App. 503, 506, 375 S.E.2d 

368, 369 (1988) (en banc) (decided in the context of the 40-day limit for filing a petition for 

appeal under Rule 5A:12(a)). 

Additionally, Code § 19.2-405 sets forth certain requirements for the filing of the 

transcript or written statement of facts in a pretrial appeal. It provides, in pertinent part, “The 

transcript or written statement of facts shall be filed by the Commonwealth with the clerk of the 

circuit court from which the appeal is being taken, within 25 days following entry of the order of 

the circuit court.” Code § 19.2-405. 

 To determine whether the Commonwealth’s petition for appeal was timely filed in this 

case, we must interpret Code §§ 19.2-402(B) and -405. “The primary objective of statutory 

construction is to determine legislative intent. In determining that intent, words are to be given 

their ordinary meaning, unless it is apparent that the legislative intent is otherwise.” Phelps v. 

 6

 Because I would hold that the Commonwealth’s petition for appeal was not timely filed, 

I would not reach the merits of this case. As a result, I express no opinion on the majority’s 

holding in Part II of its analysis. 
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Commonwealth, 275 Va. 139, 142, 654 S.E.2d 926, 927 (2008) (citations omitted). “We must 

also assume that the legislature chose, with care, the words it used when it enacted the relevant 

statute.” Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990). 

Virginia appellate courts have 

repeatedly . . . stated the principles of statutory construction that 

apply when a statute . . . is clear and unambiguous. In such 

circumstances, a court may look only to the words of the statute to 

determine its meaning. The intention of the legislature must be 

determined from those words, unless a literal construction would 

result in a manifest absurdity. Thus, when the legislature has used 

words of a clear and definite meaning, the courts cannot place on 

them a construction that amounts to holding that the legislature did 

not intend what it actually has expressed. 

Hubbard v. Henrico Ltd. P’ship, 255 Va. 335, 339, 497 S.E.2d 335, 337 (1998) (citations 

omitted), quoted in Paugh v. Henrico Area Mental Health & Dev. Servs., 286 Va. 85, 89, 743 

S.E.2d 277, 279 (2013). 

In addition, as the majority correctly states, because Commonwealth’s pretrial appeals are 

“in derogation of the general constitutional prohibition against appeals by the Commonwealth,” 

the statutes governing such appeals “‘must be strictly construed against the state and limited in 

application to cases falling clearly within the language of the statute.’” Commonwealth v. 

Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5 (1990) (quoting Crews v. Commonwealth, 3 

Va. App. 531, 536, 352 S.E.2d 1, 3 (1987)). However, while the majority notes this principle, it 

does not apply it in interpreting Code §§ 19.2-402(B) and -405. 

In my view, the concept of strict construction imposes a duty to limit or restrict judicial 

interpretation. Strict construction requires this Court to apply the text of a statute only as it is 

written. Once we identify a clear meaning of the text of the statute, no further analysis of the 

statute under consideration is required. Thus, we are bound to avoid drawing inferences from the 

statute and focus only on the text itself. 
- 11 - 

 Applying these principles, I would hold that the Commonwealth’s petition for appeal was 

not timely filed under Code § 19.2-402(B). In the case at bar, the transcript of the hearing on the 

motion to suppress was filed on February 28, 2013. The Commonwealth did not file its petition 

for appeal until April 30, 2013, well beyond fourteen days after the transcript was filed. The 

plain language of Code § 19.2-402(B) provides that the petition for appeal “shall be filed with 

the clerk of the Court of Appeals not more than 14 days after the date that the transcript or 

written statement of facts is filed.” The statute is unambiguous. It also makes no exception for a 

situation where the transcript is filed before the entry of the trial court’s order. Thus, under the 

plain language of the statute and construing the statute strictly against the Commonwealth, as we 

must, I would hold that the petition for appeal must be filed no more than fourteen days after the 

date that the transcript or written statement of facts is filed, without exception. 

The majority declines to interpret the statute according to its plain language because 

doing so, the majority believes, would result in an absurdity. I disagree. Citing to the general 

principle that a court should not construe a statute in a manner that “‘leads to absurd results,’” 

Bowling v. Commonwealth, 51 Va. App. 102, 109, 654 S.E.2d 354, 358 (2007) (quoting Auer v. 

Commonwealth, 46 Va. App. 637, 651, 621 S.E.2d 140, 147 (2005)), the majority cobbles 

together a very cogent and sound process to allow the Commonwealth to save its appeal. 

Respectfully, however, I suggest that “absurdity” does not inquire as to what may be more 

efficient or productive; rather, our goal in construing statutes is to “ascertain and give effect to 

legislative intent.” Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). I 

submit that the legislative intent of Code § 19.2-398 was to give the Commonwealth the 

decidedly unique ability to appeal certain trial court rulings in a criminal case, and, if the 

Commonwealth fulfills its obligations under the statutes governing Commonwealth’s pretrial 

appeals, there is no absurdity in the process created by the legislature. 
- 12 - 

More specifically, if the Commonwealth had merely complied with the statutory scheme 

created by the General Assembly to govern Commonwealth’s pretrial appeals in the instant case, 

the Commonwealth would have been able to file its petition for appeal in compliance with the 

statutes, and no absurdity would result. As noted earlier, Code § 19.2-405 provides, “The 

transcript or written statement of facts shall be filed by the Commonwealth with the clerk of the 

circuit court from which the appeal is being taken, within 25 days following entry of the order of 

the circuit court.” (Emphasis added). Thus, the plain language of Code § 19.2-405 provides that 

the transcript should be filed after the trial court enters its order. See Merriam-Webster’s 

Collegiate Dictionary 486 (11th ed.) (defining “follow” as “to go, proceed or come after” and 

“following” as “subsequent to”). Code § 19.2-405 also places the burden on the Commonwealth 

to file the transcript or written statement of facts. With this duty comes the responsibility to 

ensure that the transcript is timely filed, in accordance with Code § 19.2-405.7

 

I appreciate that the Commonwealth finds itself in a difficult position in this case because 

it failed to comply with Code § 19.2-405, and, therefore, the fourteen-day period for filing the 

petition for appeal found in Code § 19.2-402(B) ran before the trial court entered its order. 

 7

 This Court has often emphasized the duty of appellants to comply with all of the 

requirements for the filing of the transcript, even in difficult circumstances, outside the context 

of Commonwealth’s pretrial appeals. See, e.g., Friel v. Commonwealth, No. 1346-10-2, 2011 

Va. App. LEXIS 217 (Va. Ct. App. June 28, 2011) (affirming appellant’s conviction pursuant to 

Rule 5A:8 where appellant failed to file a complete transcript because, “whether due to human 

error or equipment failure, a portion of appellant’s trial was not recorded and, thus, could not be 

transcribed by the court reporter,” and “[a]lthough nothing in the record indicate[d] this failure 

was attributable to appellant, he nevertheless bore the burden of presenting on appeal a record of 

the trial court proceedings sufficiently complete to allow [the Court] to determine whether the 

trial court erred in the manner he claims”); Doggett v. Commonwealth, No. 1522-04-2, 2005 

Va. App. LEXIS 405 (Va. Ct. App. Oct. 11, 2005) (affirming appellant’s conviction pursuant to 

Rule 5A:8 where appellant failed to file a complete transcript because “[d]ue to a malfunctioning 

recording device, the testimony of [three witnesses] were not recorded and are therefore not in 

the record,” and “[a]lthough appellant was not responsible for the tape malfunction, he is 

responsible for providing the Court with a narrative statement or statement of facts in the event a 

complete transcript is unavailable”). 
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However, “difficulty is not absurdity.” Bonner v. Commonwealth, 62 Va. App. 206, 216, 745 

S.E.2d 162, 167 (2013) (en banc). Again, if the Commonwealth had merely complied with Code 

§ 19.2-405, the difficulty in this case would have never arisen. And in my view, difficulty does 

not provide legal justification for intervention. The role of the judiciary in construing statutes is 

to ascertain and apply legislative intent, not to rewrite a statute through judicial interpretation. 

Moreover, the concept of “unmitigated harshness” referenced by the majority must be viewed in 

the eye of the beholder, and I take no position on it. I am simply suggesting that the Court 

follow the well-established rule to interpret the statutes according to their plain and unambiguous 

language. 

Furthermore, and with respect, the majority makes the bold assertion, without citation to 

any authority whatsoever, that a transcript is timely filed for purposes of Code § 19.2-405 when 

it is filed before the entry of the order appealed from, a holding that directly contravenes the 

plain language of Code § 19.2-405.8 In passing, the majority acknowledges the 

Commonwealth’s responsibility for filing the transcript but does not hold it accountable for the 

existence of the filed transcript in this case; instead, the majority simply notes that the record 

does not indicate how the transcript was filed. Simply acknowledging the Commonwealth’s 

statutory duties for filing the transcript without holding the Commonwealth responsible for the 

filing of the transcript in this case abrogates the Commonwealth’s express obligations under 

Code § 19.2-405. 

The General Assembly could have included a provision in the nature of a savings clause 

in Code § 19.2-402(B) that allowed the fourteen-day time period to run from the filing of the 

notice of appeal in cases where the transcript is filed before the entry of the trial court’s order. It 

 8

 In addition, the majority does not address Code § 19.2-405’s requirement that the 

Commonwealth file the transcript. In this case, the record does not reveal who filed the transcript 

on February 28, 2013. 
- 14 - 

did not. Courts cannot “add language to the statute the General Assembly has not seen fit to 

include.” Holsapple v. Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003). 

“[N]or are they ‘permitted to accomplish the same result by judicial interpretation.’” Burlile v. 

Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001) (quoting Harbor Cruises, Inc. v. 

Commonwealth, 217 Va. 458, 461, 230 S.E.2d 248, 250 (1976)). 

The Commonwealth should not benefit from its failure to comply with Code § 19.2-405 

through a novel interpretation of the statutory scheme that renders the transcript and petition for 

appeal timely filed in this case. There is no absurdity in applying the plain language of Code 

§ 19.2-402(B) when the Commonwealth complies with all of the statutory provisions governing 

Commonwealth’s pretrial appeals, including Code § 19.2-405. To suggest otherwise would be to 

suggest that the particularized and unambiguous language of the statute was meant to mean 

something other than what the legislature prescribed. 

Finally, I note that in a plethora of cases, this Court has dismissed appeals for failure to 

comply with the strict letter of the statutes or rules governing appeals. See, e.g., Evans v. 

Commonwealth, 61 Va. App. 339, 735 S.E.2d 252 (2012) (dismissing appellant’s appeal 

pursuant to Rule 5A:6 where appellant attempted to appeal his perjury conviction but identified 

the conviction he was appealing by the wrong case file number); Woody v. Commonwealth, 53 

Va. App. 188, 670 S.E.2d 39 (2008) (dismissing appellant’s appeal where he was convicted of 

violating a County DUI ordinance but filed a notice of appeal on November 9, 2007, naming the 

Commonwealth of Virginia as appellee, not the County, and the trial court entered an order on 

October 30, 2008, in response to an order from this Court, clarifying that appellant was convicted 

of violating the County DUI ordinance, not Code § 18.2-266)9

; Haywood v. Commonwealth, 15 

 9

 This Court also dismissed the same appellant’s appeal when he attempted to appeal the 

trial court’s October 30, 2008 order, holding that it was not the final appealable conviction order 

in the case. Woody v. Cnty. of Amherst, No. 2909-08-3, 2010 Va. App. LEXIS 286 

(Va. Ct. App. July 20, 2010). 
- 15 - 

Va. App. 297, 423 S.E.2d 202 (1992) (en banc) (dismissing the petitioner’s petition for appeal 

pursuant to Rule 5A:12 where the petition was due on December 2, 1991, petitioner mailed the 

petition by priority mail on November 27, 1991, the United States Postal Service erroneously 

delivered the petition to the United States Court of Appeals for the Fourth Circuit, and this 

Court’s clerk’s office received the petition on December 3, 1991); Anderson v. Commonwealth, 

13 Va. App. 506, 413 S.E.2d 75 (1992) (dismissing an appeal pursuant to Rule 5A:8 because the 

written statement of facts, endorsed by the Commonwealth’s attorney and appellant’s counsel 

and signed by the trial judge, did not contain a notation showing that it was filed in the office of 

the clerk of the trial court within fifty-five days after entry of judgment); Long, 7 Va. App. 503, 

375 S.E.2d 368 (dismissing petitioner’s petition for appeal because it was mailed by first class 

mail on the day it was due, rather than by registered or certified mail). 

Here, the Commonwealth failed to comply with Code §§ 19.2-402(B) and -405. I would 

not construe these statutes other than by their plain language in order to render the 

Commonwealth’s petition for appeal timely filed. Accordingly, I dissent from the majority’s 

holding that the Commonwealth’s petition for appeal was timely filed.