COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Hodges Argued at Richmond, Virginia

THOMAS A. CHILTON, JR. MEMORANDUM OPINION * BY v. Record No. 0789-02-2 J UDGE WILLIAM H. HODGES JANUARY 28, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF HANOVER COUNTY Wiley R. Wright, Jr., Judge Designate Matthew P. Geary for appellant. Donald E. Jeffrey, III, Assistant Attorney Gene ral (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Thomas Chilton, appellant, contends the trial court erred in ruling that it did not have jurisdiction to reconsider his se ntence. We disagree and affirm the ruling of the trial court. Background On December 14, 1999, a jury returned verdicts finding Chilton guilty of robbery, use of a firearm in the commission of a robbery and enteri ng a banking house armed with a deadly weapon. On February 15, 2000, the tria l court sentenced Chilton to “[i] ncarceration with the Virginia Department of Corrections.” On July 31, 2000, Chilton filed a petition in this Court appea ling those convictions. Chilton v. Commonwealth, Record No . 0442-00-2 (Va. Ct. App.). He argu ed that the trial court erroneously instructed the jury and that there was insuffi cient evidence to suppor t the use of a firearm conviction.

* Pursuant to Code § 17.1- 413, this opinion is not designated for publication.- 2 - By letter dated August 25, 2000, and filed in the tria l court on August 31, 2000, Chilton informed the clerk of the tr ial court that he had “been transferred from the Pamunkey Regional Jail to Dillwyn Correctional Center , P.O. Box 670, Dillwyn, VA 23936.” (Emphasis added.) An order dated and ente red on August 31, 2000 reflected that Chilton moved the trial court for post-conviction bail and “t o allow him to remain in the Pamunkey Regional Jail during his appeal.” The trial co urt noted that Chilton “ has already been transferred to the Department of Corrections .” (Emphasis added.) Noneth eless, it granted Chilton’s moti on that he be “returned to the Pamunkey Regional Jail.” In a handwritten letter dated Octo ber 1, 2000, and filed in th e trial court on October 10, 2000, Chilton advi sed the clerk of the trial co urt that he had been “trans ferred back to the Pamunkey Regional Jail.” In that letter, Chilton re quested a copy of hi s sentencing order. On October 19, 2000, a judge of this Court granted in pa rt and denied in part Chilton’s petition for appeal. Chilton requested a three-ju dge review pursuant to Code § 17.1-407(D), and on January 17, 2001, the th ree-judge panel denied the issues that were brought before it. On June 22, 2001, while his appe al was pending before this C ourt, Chilton filed in the trial

court a pro semotion for a new tr ial based on after-discovered evidence. On August 13, 2001, the trial court appointed Matthew P. Geary, Esq., to represent Chilton. By unpublished opinion dated August 28, 2001, a panel of this Court affirmed the convictions for robbery and entering a banking hous e and reversed the use of a firearm conviction. On September 24, 20 01, Chilton filed in the trial court a pro semotion, seeking a new trial or sentence reduction. On th at same date, Chilton’s appointed counse l (Mr. Geary), filed a supplemental motion for a new tr ial or for sentence reduction. Chilton cited Code § 19.2-303 in support of his motion to re duce or modify his sentence.- 3 - On October 23, 2001, Chilton fi led a motion to re cuse the trial judg e from hearing the motion for new trial or reduction in sentence. Ju dge Alderman granted that motion on November 9, 2001. On November 15, 2001 , Judge Revercomb ordered that Chilton remain at the Pamunkey Regional Jail “through the completion of these matters on De cember 20, 2001.” By order dated December 20, 20 01, Judge Revercomb “found it would be inappropriate for [him] to hear these matters” and requested th e Supreme Court appoint a judge “to hear these matters.” The trial court orde red that Chilton “remain at the Pamunkey Regional Jail.” On February 4, 2002, Judge Wright heard Chilton’s motion for a new trial or reconsideration of sentence. “A fter hearing argument of counsel, the Co urt [found], pursuant to Rule 1:1, it is without juri sdiction to entertain the Defendant’s Motion for New Trial.” On February 7, 2002, Chilton filed a pro se motion for the trial court “to issue an order for him to stay at the Pam unkey Regional Jail and not be transf erred to the Virginia Department of Corrections until final adjudication of a motion to set aside this Cour t’s ruling of Feb. 4, 2002 which will be filed sh ortly by counsel in this Court.” On February 11, 2002, Chilton filed a pro semotion to set asid e the trial court’s jurisdictional ruling. On February 12, 2002, Chilton’s court-appointed attorney file d a motion to reconsider the trial court’s February 4, 20 02 ruling, attaching a copy of Chilton’s previously filed pro semotion. Discussion Rule 1:1, provides in pertinent part: All final judgments, orders, and de crees, irrespective of terms of court, shall remain under the contro l of the trial court and subject to be modified, vacated, or suspe nded for twenty-one days after the date of entry, and no longer.- 4 - Code § 19.2-303 provides an exception to Rule 1:1 under certain limited circumstances, as follows: If a person has been sentenced for a felony to the Department of Corrections but has not actually be en transferred to a receiving unit of the Department, the court whic h heard the case, if it appears compatible with the public intere st and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, su spend or otherwise modify the unserved portion of such a sentence. “By its express terms, Code § 19.2-303 permits th e trial court . . . to retain jurisdiction beyond the twenty-one-day limit of Rule 1:1 to ‘suspend or otherwise modify the unserved portion of such a sentence’” only if the defendant “‘has not actua lly been transferred’” to the Department of Corrections. Patterson v. Commonwealth, 39 Va. App. 610, 617, 575 S.E.2d 583, 586 (2003) (quoting Code § 19.2-303). Chilton was sentenced for a felony on February 15, 2000, and was thereafter transferred to the Department of Corrections. In his le tter filed on August 31, 2000, Ch ilton advised the trial court he had been transferred to a Departmentof Corrections facility. Chilton’s August 2000 transfer to the Department of Corrections dive sted the trial court of its authority under Code § 19.2-303 to retain jurisd iction over the case. See Russnak v. Commonwealth , 10 Va. App. 317, 324, 392 S.E.2d 491, 495 (1990). Because the trial court no longer had jurisdiction over Chilton’s case, its August 31, 2000 order and all subsequent orders were void. See Rook v. Rook , 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987); Virginia Dept. of Correcti ons v. Crowley, 227 Va. 254, 264, 316 S.E.2d 439, 444 (1984). Thus, in its February 4, 2002 order, the trial court properly found it no longer retained jurisdiction over the matter pursuant to Rule 1:1. The effect of the trial cour t’s ruling was to implicitly nullify and hold as void all the orders issued subsequent to August 2000 . See Crowley , 227 Va. at 260, 316 S.E.2d at 442 (noting Court’s express holdin g that Rule 1:1 is not a limitation- 5 - on power and authority of trial co urts to vacate void orders). Because the trial court lacked jurisdiction to entertain arguments or issue orders after Chilton’ s transfer to the Department of Corrections, other than those addr essing lack of jurisdiction, the tr ial court did not err in ruling it was without jurisdiction. Affirmed.