COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Overton 

Argued at Norfolk, Virginia 

STACY MYERS 

 OPINION BY 

v. Record No. 1536-97-1 JUDGE JERE M. H. WILLIS, JR. 

 FEBRUARY 17, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Walter J. Ford, Judge 

 Charles E. Haden (Timothy G. Clancy; Cumming, 

Hatchett & Jordan, on brief), for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 Stacy Myers contends that the evidence fails to support her 

conviction of second-degree murder. The Commonwealth has moved 

to dismiss this appeal, arguing that it has been heretofore 

concluded. We grant the Commonwealth's motion and dismiss this 

appeal. 

 On February 3, 1992, a grand jury indicted Myers for murder, 

Code § 18.2-32, and felony child neglect, Code § 18.2-371.1. The 

charges stemmed from the death of Myers' newborn infant daughter 

on October 25, 1991. The charges were tried at a bench trial on 

April 22, 1992. The trial court ruled orally: 

 I think she's guilty of the charge of 

the felony murder. Not -- not first degree. 

 I don't think there's -- Commonwealth 

established first degree murder in the case, 

but I do think it's second degree. And I 

find her guilty. 

The conviction order, entered April 22, 1992, and the sentencing 
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order, entered August 19, 1992, recited that Myers was convicted 

of second-degree murder, in violation of Code § 18.2-32. The 

child neglect charge was dismissed. 

 Myers appealed her 1992 conviction, contending that the 

evidence failed to support a conviction for felony murder under 

Code § 18.2-33. In an unpublished opinion, a panel of this Court 

reversed the conviction, holding that the evidence failed to 

support a conviction of second-degree murder. Myers v. 

Commonwealth, Record No. 1780-92-1 (Va. Ct. App. July 26, 1994). 

 Upon rehearing en banc, we affirmed the conviction in an 

unpublished opinion. Myers v. Commonwealth, Record No. 1780-92-1 

(Va. Ct. App. May 16, 1995) (en banc). We held that Myers was 

precluded from appellate relief, because she had failed to 

challenge her conviction for second-degree murder under Code 

§ 18.2-32, the statute under which she had been charged and 

convicted. See Rule 5A:12(c). The Supreme Court denied Myers' 

petition for appeal from our decision. Myers v. Commonwealth, 

Record No. 951094 (Va. Oct. 25, 1995). 

 On May 29, 1997, Myers moved the trial court to correct the 

conviction and sentencing orders pursuant to Code § 8.01-428(B) 

to reflect that she had been convicted under Code § 18.2-33, not 

under Code § 18.2-32. On June 13, 1997, the trial court granted 

the motion and ordered: 

 That Defendant's conviction order 

entered April 22, 1992 and sentencing order 

entered August 22, 1992, be, and hereby are, 

corrected pursuant to Va. Code § 8.01-428(B) 

to reflect that the Defendant STACY MYERS was 
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convicted under Va. Code § 18.2-33, not Va. 

Code § 18.2-32. 

 From the June 13, 1997 order, Myers initiated this appeal on 

the erroneous assumption that the 1997 order vacated the 1992 

orders and created a new final order from which her conviction 

could be appealed. 

 Rule 1:1 provides that: 

 All final judgments, orders, and 

decrees, irrespective of terms of court, 

shall remain under the control of the trial 

court and subject to be modified, vacated, or 

suspended for twenty-one days after the date 

of entry, and no longer. 

No action was taken to modify, vacate, or suspend the 1992 orders 

within the prescribed twenty-one day period following their 

entry. Thereafter, those orders became final and the trial court 

lost jurisdiction to review the conviction. See Hirschkop v. 

Commonwealth, 209 Va. 678, 166 S.E.2d 322 (1969); School Bd. of 

Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550, 379 S.E.2d 

319 (1989); Davis v. Mullins, 251 Va. 141, 148-49, 466 S.E.2d 90, 

94 (1996). Myers' conviction was subsequently affirmed by this 

Court, and the Supreme Court refused her petition for appeal. 

Her conviction thus became final and unassailable on direct 

appeal. 

 Although divested of jurisdiction, a "trial court has the 

inherent power, independent of statutory authority, to correct 

errors in the record so as to cause its acts and proceedings to 

be set forth correctly." Davis, 251 Va. at 149, 466 S.E.2d at 94 
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(citing Council v. Commonwealth, 198 Va. 288, 292, 94 S.E.2d 245, 

248 (1956)). In addition, Code § 8.01-428(B) provides that: 

 Clerical mistakes in all judgments or other 

parts of the record and errors therein 

arising from oversight or from an inadvertent 

omission may be corrected by the court at any 

time on its own initiative or upon the motion 

of any party and after such notice, as the 

court may order. 

See also Code § 8.01-429 (providing appellate courts 

corresponding authority). 

 Code § 8.01-428(B) did not invest the trial court with 

authority, by entry of the June 13, 1997 order, to substitute a 

conviction under Code § 18.2-33 for Myers' final conviction under 

Code § 18.2-32. The trial court was not authorized to reconsider 

the merits of Myers' conviction. It was not authorized to vacate 

a judgment that had become final. It was not authorized to enter 

a new judgment that was not underlain by an appropriate charge, 

process, plea, or authorized manner of disposition. 

 The trial court purported to exercise the discretionary 

power conferred upon it by Code § 8.01-428(B) to correct 

"clerical mistakes arising from oversight or from an inadvertent 

omission." Thus, the 1997 order could effect only a mere 

clerical "correction," amending the record to make it "speak the 

truth." See Council, 198 Va. at 292-93, 94 S.E.2d at 248. The 

post-appeal "correction" of the 1992 orders could not modify or 

vacate the conviction. Modification or vacation would have 

required reacquisition by the trial court of jurisdiction over 
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the underlying subject matter -- an impermissible action barred 

by Rule 1:1. See Dixon v. Pugh, 244 Va. 539, 543, 423 S.E.2d 

169, 171 (1992); Davis, 251 Va. at 149-50, 466 S.E.2d at 95. 

 This holding is consonant with the narrow construction and 

application afforded a trial court's power to amend and correct a 

record. See Council, 198 Va. at 292, 94 S.E.2d at 248; McEwen 

Lumber Co. v. Lipscomb Bros. Lumber Co., 234 Va. 243, 247, 360 

S.E.2d 845, 848 (1987). 

 To permit a trial court, either under 

the statute or by its inherent power, to 

consider at any time what judgment it might 

have rendered while it still retained 

jurisdiction over a case and then to enter 

that judgment nunc pro tunc would render 

meaningless the mandate of Rule 1:1 and would 

do great harm to the certainty and stability 

that the finality of judgments brings. 

Davis, 251 Va. at 150, 466 S.E.2d at 94. 

 Because the 1997 correction order could not change the 

specific crime of which Myers was convicted, it was a nullity. 

Thus, it was not an order from which an appeal to challenge her 

1992 conviction may be sought anew. Consequently, we cannot 

decide the merits of this appeal.1

 The Commonwealth's motion is 

granted, and the appeal is dismissed. 

 Dismissed.

 

 1Myers was sentenced to ten years imprisonment. Conviction 

of second-degree murder under Code § 18.2-32 carries a sentence 

of five to forty years. Conviction of murder under Code 

§ 18.2-33 is punishable as a Class 3 felony, carrying a sentence 

of five to twenty years. Myers' sentence fell within the 

punishment scope of both statutes.