COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Bumgardner 

Argued at Richmond, Virginia 

EARNEST EUGENE WEESE, S/K/A 

 ERNEST EUGENE WEESE 

 OPINION BY 

v. Record No. 1712-98-4 JUDGE SAM W. COLEMAN III 

 AUGUST 24, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

LeRoy F. Millette, Jr., Judge 

Joseph W. Kaestner (J. Paul Walla; Kaestner, 

Pitney and Jones, P.C.; Ashton, Walla 

& Associates, P.C., on briefs), for 

appellant. 

Steven A. Witmer, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Earnest Eugene Weese, a seventeen-year-old juvenile, pled 

guilty in circuit court to aggravated sexual battery pursuant to a 

plea agreement. The circuit court, hearing the case de novo on 

appeal from the juvenile and domestic relations district court, 

found Weese to be delinquent and committed him to an indefinite 

term with the Department of Juvenile Justice. After turning 

eighteen, Weese moved the circuit court to "amend the charge," in 

accordance with the plea agreement, from aggravated sexual battery 

to indecent exposure. Weese also moved the circuit court to 

vacate the conviction and dismiss the petition on the ground that 

the circuit court had lacked jurisdiction to enter the conviction 
order. Weese appeals the circuit court's denial of both motions. 

We hold that the circuit court had jurisdiction to enter the 

conviction and that the circuit court did not err in denying the 

motion to amend the charge against Weese. Accordingly, we affirm 

the rulings and judgment of the trial court. 

I. BACKGROUND

 The Commonwealth charged Weese in juvenile court with 

forcible sodomy against a child less than thirteen years of age. 

After pleading guilty pursuant to a plea agreement to aggravated 

sexual battery, Weese appealed the conviction to the circuit court 

for a trial de novo. Eventually, Weese pled guilty in circuit 

court to aggravated sexual battery pursuant to a second plea 

agreement. Among the conditions of the plea agreement, "[i]t was 

stated by the Commonwealth for the record, if the defendant has no 

further violations prior to his eighteenth (18th) birthday they 

will amend the charge to indecent exposure a misdemeanor." The 

court accepted the plea, found Weese guilty of aggravated sexual 

battery and, as a delinquent, committed him for an indeterminate 

period to the Department of Juvenile Justice. 

 In the juvenile court proceeding, Weese's legal guardian 

received notice of the proceeding in accordance with the 

requirement of Code § 16.1-263 and she attended the juvenile court 

proceeding. However, after Weese's appeal to the circuit court, 

the guardian received no additional notice of and did not attend 

the adjudicatory proceeding at which Weese entered into the plea 

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agreement and pled guilty. Weese's guardian received notice of 

and attended the dispositional hearing at which the court 

sentenced Weese to an indeterminate commitment with the 

Department of Juvenile Justice. 

 More than one year after entry of the final commitment order, 

Weese moved the circuit court to enforce the plea agreement by 

"amending the charge" to indecent exposure. Although the 

commitment order was final, by requesting amendment of the charge, 

Weese endeavored to reduce the offense to a misdemeanor for which 

his maximum term of commitment would have been twelve months, 

rather than an indeterminate delinquency commitment. 

Additionally, and for the first time, Weese moved to vacate the 

conviction and dismiss the petition on the ground that the circuit 

court lacked jurisdiction because Weese's guardian received no 

notice of the circuit court adjudicatory proceeding. Weese 

asserted that notice of the circuit court proceedings was 

mandatory and jurisdictional under Code § 16.1-263. 

 The circuit court denied both motions, finding that the 

juvenile court only had authority to enforce the plea agreement 

while the defendant was a juvenile and because Weese had waited 

until after his eighteenth birthday to seek enforcement of the 

plea agreement, the court had no authority to do so. The circuit 

court also found that its proceedings did not violate the notice 

requirements of Code § 16.1-263 and upheld the delinquency 

conviction and indeterminate commitment. 

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II. ANALYSIS

A. Notice

 Weese contends that the circuit court erred when it tried 

Weese without giving notice of the adjudicatory hearing to Susan 

Atkins, his legal guardian who stood in loco parentis, as required 

by either Code § 16.1-263(A) or (B). 

 Initially, we must determine whether Weese is barred by Rule 

1:1 from challenging the circuit court's jurisdiction more than 

twenty-one days after the final commitment order and whether it is 

proper to do so merely by filing a motion to set aside a 

conviction in the circuit court. Weese raised no objection at 

trial to the Commonwealth's failure to notify Atkins of the 

proceedings pending against him in the circuit court. In fact, 

Weese first presented the argument to the circuit court over one 

year after the court had entered the final commitment order. He 

raised the issue by filing a motion to set aside the conviction. 

 This preliminary issue is controlled by the Supreme Court's 

decision in Matthews v. Commonwealth, 216 Va. 358, 359, 218 S.E.2d 

538, 540 (1975), which held that notwithstanding Rule 1:1, when a 

defendant moves a trial court to set aside a void judgment more 

than twenty-one days after its entry, the trial court has 

jurisdiction to vacate that judgment and the Court further held 

that filing a motion to set aside is a proper method for doing so. 

Thus, unless the failure to follow Code § 16.1-263 rendered the 

circuit court without jurisdiction to convict Weese, Rule 1:1 bars 

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our review of this issue. However, if the trial court lacked 

jurisdiction, then Weese's conviction would be void ab initio, 

permitting Weese to challenge it at any time in an appropriate 

proceeding. Accordingly, the jurisdictional issue was properly 

before the circuit court by motion. Therefore, we must determine 

whether the failure to notify Atkins, Weese's guardian, deprived 

the circuit court of jurisdiction to convict Weese. 

 Code § 16.1-263(A) states that "[a]fter a petition is filed 

the court shall direct the issuance of summonses . . . to the 

parents, guardian, legal custodian, or other person standing in 

loco parentis, and such other persons as appear to the court to be 

proper or necessary parties to the proceedings." Code 

§ 16.1-263(B) further provides that notice "of subsequent 

proceedings shall be provided to all parties in interest." 

 We have held that "compliance with [Code §§ 16.1-263 and 

16.1-264] relating to procedures for instituting proceedings 

against juveniles, are mandatory and jurisdictional. The failure 

to strictly follow the notice procedures contained in the Code 

[deny the defendant] a substantive right and the constitutional 

guarantee of due process." Karim v. Commonwealth, 22 Va. App. 

767, 779, 473 S.E.2d 103, 108-09 (1996) (en banc). Thus, we have 

held that where a juvenile court conducts a delinquency proceeding 

without notifying parents, or the person in loco parentis, a 

conviction order resulting from the proceedings is void. See

Baker v. Commonwealth, 28 Va. App. 306, 314-15, 504 S.E.2d 394, 

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398-99 (1998), affirmed per curiam, 258 Va. 1, ___ S.E.2d ___ 

(1999); Williams v. Commonwealth, 26 Va. App. 776, 781-82, 497 

S.E.2d 156, 159 (1998); Karim, 22 Va. App. at 779-80, 473 S.E.2d 

at 108-09; see also, Jones v. Commonwealth, 213 Va. 425, 427-28, 

192 S.E.2d 775, 777 (1972) (finding that the failure of a Court of 

Hustings to notify a juvenile's parents rendered that court's 

judgment void); Peyton v. French, 207 Va. 73, 79-80, 147 S.E.2d 

739, 743-44 (1966) (involving former Code sections requiring 

notice in juvenile hearings). Where the void juvenile court order 

purported to transfer jurisdiction over the juvenile to a circuit 

court, the resulting orders from the circuit court, which is 

without jurisdiction, are void. See e.g. Karim, 22 Va. App. at 

779-80, 473 S.E.2d at 108-09. To satisfy the constitutional due 

process and jurisdictional notice requirements of Code § 16.1-263 

and vest the juvenile court with jurisdiction, the juvenile 

court's record must establish that the required parties received 

proper notice of the proceedings. See id.

 Weese does not argue that the juvenile court failed to notify 

Atkins, Weese's guardian. The juvenile court served Atkins with a 

summons, and she attended the juvenile court hearings. Instead, 

Weese argues that the failure of the circuit court to serve notice 

upon Atkins violated the mandate of Code § 16.1-263 and without 

such notice in the de novo proceeding, the circuit court lacked 

jurisdiction to hear the petition. 

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 As previously noted, the notice requirement of Code 

§ 16.1-263(A), as it applies to the initiation of delinquency 

proceedings and petitions against a juvenile, is mandatory and 

jurisdictional. See id. Weese contends the language of Code 

§ 16.1-263(A) has the same jurisdictional significance to a 

juvenile petition heard de novo in the circuit court. In 

addition, Weese claims the circuit court violated the mandate of 

Code § 16.1-263(B) requiring that notice "of subsequent 

proceedings . . . be provided to all parties in interest" which, 

Weese asserts, is also mandatory and jurisdictional. 

 Code § 16.1-263(A) is mandatory and jurisdictional, and in 

order to satisfy constitutional due process requirements, the 

court must notify a juvenile's guardian prior to the hearing of 

the nature of the charges against the juvenile and when and where 

the petition and charges are to be heard. 

 An elementary and fundamental 

requirement of due process in any proceeding 

which is to be accorded finality is notice 

reasonably calculated, under all the 

circumstances, to apprise interested parties 

of the pendency of the action and afford 

them the opportunity to present their 

objections. The notice must be of such a 

nature as reasonably to convey the required 

information. 

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 

314-15 (1950) (citations omitted). 

 In the context of juvenile delinquency hearings, the United 

States Supreme Court has held that due process requires written 

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notice to a child's parent or guardian of the charge pending 

against his or her ward at the earliest practicable time. See

In Re Gault, 387 U.S. 1, 33 (1967). Due process "does not allow 

a hearing to be held in which a youth's freedom and his parents' 

right to his custody are at stake without giving [the parents] 

timely notice, in advance of the hearing, of the specific issues 

that they must meet." Id. at 33-34. 

 We find that the constitutional and jurisdictional notice 

requirements were satisfied by notifying Atkins of the pendency 

of the petition and hearing in the juvenile court. For 

jurisdictional purposes, due process does not require the 

circuit court to give Atkins notice after Weese appealed the 

petition from the juvenile court. Just as with civil or 

misdemeanor appeals from a general district court, no new 

process or warrant need issue merely because the parties are 

entitled to a de novo hearing. The initial pleadings and notice 

given in the district court satisfy the constitutional and 

jurisdictional notice requirements even though the case may be 

heard de novo in the circuit court. Although Code § 16.1-263(A) 

and (B) require a summons and additional notice of the 

"subsequent" proceedings in the circuit court, we find that the 

additional notice is not constitutionally required and is not 

jurisdictional. Therefore, so long as Atkins received notice of 

the nature of the petition and a summons indicating the time, 

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date, and place of the initial hearing, the constitutional and 

jurisdictional notice requirements were satisfied. 

 Because Atkins received notice of the original proceedings, 

she had the opportunity, following Weese's appeal, to appear and 

be involved in subsequent proceedings, including the de novo

hearings in the circuit court. Although Code § 16.1-263(B) may 

require additional notice of "subsequent proceedings" where 

necessary to inform the parent or guardian of such proceedings, 

failure to give such notice does not divest the court of 

jurisdiction, even though the omission may have been reversible 

error had the issue been appealed. Accordingly, we find that 

the notice Atkins received satisfied due process requirements 

for a de novo trial in the circuit court. The failure to give 

other statutory notice that may have been required by Code 

§ 16.1-263 did not divest the circuit court of jurisdiction and, 

accordingly, we are procedurally barred by Rule 1:1 from 

addressing it. 

B. Plea Agreement

 Over a year after the circuit court entered the final 

commitment order, Weese unsuccessfully moved the circuit court 

to amend the charge against him from aggravated sexual battery 

to indecent exposure in compliance with the plea agreement. 

Because the circuit court lacked jurisdiction to amend the 

charge after Weese had been found guilty of aggravated sexual 

battery and committed to the Department of Juvenile Justice, the 

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circuit court did not err in denying the motion to amend the 

charge. 

 A trial court's final judgment remains under the control of 

the court for twenty-one days after its entry; after twenty-one 

days, the trial court loses jurisdiction to suspend, modify, set 

aside, or vacate its judgment. See Rule 1:1; Virginia Dept. of 

Corrections v. Crowley, 227 Va. 254, 264, 316 S.E.2d 439, 444 

(1984) (finding that twenty-one days from the entry of the final 

order and after the defendant had been transferred to the 

penitentiary, a trial court had no authority to suspend 

sentences). Furthermore, a trial court's order purporting to 

extend its jurisdiction over a case past the twenty-one days is 

ineffectual. See Godfrey v. Williams, 217 Va. 845, 846, 234 

S.E.2d 301, 302 (1977). 

 Here, the defendant asked the trial court, in accordance 

with the terms of a plea agreement, to modify or amend the 

charge against him more than twenty-one days after the final 

judgment and after the defendant had been committed to the 

Department of Juvenile Justice. The court's jurisdiction to 

amend the charge and dispose of the case on an amended charge 

expired twenty-one days from entry of the final judgment order 

as provided by Rule 1:1. The Commonwealth and defendant could 

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not by agreement extend that time.1 Furthermore, the fact that 

the trial court memorialized the plea agreement in the final 

order had no effect on the application of Rule 1:1 and did not 

extend the trial court's authority to modify the charge against 

Weese. Accordingly, the trial court did not err in denying 

Weese's motion to enforce the plea agreement. 

 Finding no error, we affirm the circuit court's order. 

Affirmed.

 1

 In the trial court, the appellant sought to enforce the 

plea agreement; he did not seek alternate relief in the event 

the plea agreement was unenforceable. Although the trial court 

was procedurally barred by Rule 1:1 from modifying the final 

conviction order and thereby enforcing the plea agreement, we do 

not address what alternate avenues of relief might be available 

to appellant for the Commonwealth's alleged breach of the plea 

agreement. 

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