COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, McClanahan and Senior Judge Coleman 

Argued at Salem, Virginia 

KELLY JEAN FULLER 

 MEMORANDUM OPINION∗

 BY 

v. Record No. 2289-04-3 JUDGE ELIZABETH A. McCLANAHAN 

 MAY 23, 2006 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF RUSSELL COUNTY 

Charles H. Smith, Jr., Judge Designate 

Nicholas B. Compton (Compton & Compton, P.C., on brief), for 

appellant. 

Virginia B. Theisen, Assistant Attorney General (Judith Williams 

Jagdmann, Attorney General, on brief), for appellee. 

On November 4, 2004, the trial court entered an order convicting Kelly Jean Fuller of 

various drug-related offenses and felony child neglect. On appeal, Fuller contends the trial court 

erred in denying her motion to suppress evidence she alleges was obtained in violation of her 

Fourth and Fifth Amendment rights. Fuller’s filing of the transcript of the pre-trial suppression 

hearing was, however, untimely. As this transcript is indispensable to the determination of the 

case, we must dismiss the appeal. 

I. Procedural Background 

At the suppression hearing on June 25, 2004, Fuller moved to suppress evidence she 

alleged was obtained in violation of her Fourth and Fifth Amendment rights. Judge Michael L. 

Moore, who presided over the suppression hearing, denied the motion. At trial on August 17, 

 ∗

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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2004, Fuller renewed her motion to suppress. The trial judge, Judge Charles H. Smith, Jr., 

denied Fuller’s renewed motion by relying on the prior decision of the court. 

Fuller appealed to this Court arguing the circuit court erred in denying her motion to 

suppress. However, the transcript of the suppression hearing was not timely filed. On February 

10, 2005, this Court entered a show cause order requesting Fuller to explain why this appeal 

should not be dismissed. The order mandated that Fuller “explain why the questions can be 

decided without reference to [the transcript of the motion to suppress hearing].” On March 21, 

2005, Fuller responded to the show cause order stating that the testimony presented at the 

suppression hearing was identical to the testimony presented at trial. 

II. Analysis 

 “[O]n appeal the judgment of the lower court is presumed to be correct and the burden is 

on the appellant to present to us a sufficient record from which we can determine whether the 

lower court has erred in the respect complained of.” Justis v. Young, 202 Va. 631, 632, 119 

S.E.2d 255, 256-57 (1961). “An appellate court must dispose of the case upon the record and 

cannot base its decision upon appellant’s petition or brief, or statements of counsel in open court. 

We may act only upon facts contained in the record.” Smith v. Commonwealth, 16 Va. App. 

630, 635, 432 S.E.2d 2, 6 (1993). 

 The record confirms that Fuller’s filing of the transcript of the suppression hearing was 

untimely, and this Court did not grant an extension of time for filing.1

 “When the appellant fails 

to ensure that the record contains transcripts or a written statement of facts necessary to permit 

 1

 Rule 5A:8(a) provides: 

Transcript. The transcript of any proceeding is a part of the record 

when it is filed in the office of the clerk of the trial court within 60 

days after entry of the final judgment. Upon a written motion filed 

within 60 days after entry of the final judgment, a judge of the 

Court of Appeals may extend this time for good cause shown. 
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resolution of appellate issues, any assignments of error affected by such omission shall not be 

considered.” Rule 5A:8(b). “If . . . the transcript is indispensable to the determination of the 

case, then the requirements for making the transcript a part of the record on appeal must be 

strictly adhered to. This Court has no authority to make exceptions to the filing requirements set 

out in the Rules.” Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986). 

See, e.g., Smith v. Commonwealth, 32 Va. App. 766, 771-72, 531 S.E.2d 11, 14 (2000) 

(dismissing appeal as to issues where transcript is indispensable and not part of record on 

review); Goodpasture v. Goodpasture, 7 Va. App. 55, 57, 371 S.E.2d 845, 846 (1988) (absence 

of transcript that is indispensable to determination of entire appeal is jurisdictional defect that 

requires dismissal of the appeal). 

Fuller indicates that the transcript of the suppression hearing was identical to the trial 

transcript, therefore, this Court has before it all of the evidence necessary to determine whether 

the trial judge erred by denying her motion to suppress. However, when Fuller attempted to 

revisit the denial of her motion to suppress, the trial judge stated, “[t]his court would not be 

inclined to substitute its judgment for that of the [judge who ruled on the motion], so that ruling 

will stand . . . .” To determine whether Fuller’s factual representations about the suppression 

hearing are accurate or if her claims have legal merit, we necessarily have to consult the 

transcript of the suppression hearing, particularly since the trial judge summarily relied on the 

initial judge’s ruling on the motion to suppress.2

 We are, however, precluded from doing so, as 

the transcript of the suppression hearing was not timely filed. 

Without reference to the untimely-filed transcript of the suppression hearing, we are 

unable to ascertain the parties’ arguments, the facts and evidence presented, the basis of the 

 2

 Indeed, Fuller acknowledged this in her motion to strike when she indicated that the 

trial court “didn’t hear” the motion to suppress, and instead, simply enforced the initial judge’s 

ruling on the motion. 
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judge’s ruling, and whether the evidence presented supports the denial of the motion to suppress. 

Therefore, the transcript is indispensable to our determination of this case. “If we determine that 

the transcript is indispensable and is not a part of the record before us on review, we must 

dismiss the appeal on the ground that the record on appeal is insufficient to fairly and accurately 

determine the issues presented.” Turner, 2 Va. App. at 99, 341 S.E.2d at 402. “If an insufficient 

record is furnished, the judgment appealed from will be affirmed.” White v. Morano, 249 Va. 

27, 30, 452 S.E.2d 856, 858 (1995). Based on the record before us, we are unable to review 

Fuller’s claim that the trial court erred in denying her motion to suppress. 

III. Conclusion 

Accordingly, we must dismiss the appeal for failure to comply with the mandatory 

provisions of Rule 5A:8, thereby allowing Fuller’s convictions to stand. See Turner, 2 Va. App. 

at 100, 341 S.E.2d at 402. 

 Dismissed.