Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and 

Lemons, JJ., and Carrico,1 S.J. 

IN RE: COMMONWEALTH’S ATTORNEY 

FOR THE CITY OF ROANOKE 

 OPINION BY 

Record Nos. 021441 and 021442 JUSTICE CYNTHIA D. KINSER 

 February 28, 2003 

ON ORIGINAL PETITIONS FOR 

WRITS OF PROHIBITION AND MANDAMUS 

 These cases are before the Court on two petitions for 

writs of prohibition and/or mandamus filed by the 

petitioner, Donald S. Caldwell, Commonwealth’s Attorney for 

the City of Roanoke, and directed to the Honorable James R. 

Swanson, Judge of the Circuit Court for the City of 

Roanoke. The Commonwealth’s Attorney is proceeding under 

this Court’s original jurisdiction pursuant to Article VI, 

§ 1 of the Constitution of Virginia and Code § 17.1-309. 

This Court consolidated the petitions for purposes of 

argument and opinion. The underlying facts and proceedings 

of each case are similar and are not disputed. Because 

neither prohibition nor mandamus lies in the context 

presented, we will dismiss both petitions. 

I. FACTS AND PROCEEDINGS 

A. RECORD NO. 021441 

___________________ 1

 Chief Justice Carrico presided and participated in 

the hearing and decision of this case prior to the 

effective date of his retirement on January 31, 2003. 
 Kian Keith Putbrese was arrested for stealing a 

television valued in excess of $200 from a retail 

department store and charged with grand larceny in 

violation of Code § 18.2-95. Putbrese waived a preliminary 

hearing and was subsequently indicted for grand larceny. 

 On February 13, 2002, Putbrese entered a guilty plea 

to the charge. After hearing a summary of the evidence, 

Judge Swanson withheld an adjudication of guilt and took 

acceptance of the guilty plea under advisement pending 

receipt of a pre-sentence report. 

 After review of the pre-sentence report at the 

subsequent sentencing hearing, Judge Swanson continued to 

take the finding of guilt under advisement. But, he placed 

Putbrese on supervised probation for a period of three 

years and, as conditions of probation, required Putbrese 

to: (1) continue in counseling and therapy; (2) perform 200 

hours of community service; (3) seek and maintain full-time 

employment; (4) remain drug and alcohol free; (5) be of 

good behavior; and (6) enter into and complete any 

substance abuse treatment required by the probation 

officer. 

 The Commonwealth’s Attorney then moved the circuit 

court to reconsider its decision taking the finding of 

____________________ 

2
guilt under advisement and to enter an order finding 

Putbrese guilty according to his plea and the evidence. 

After considering arguments, Judge Swanson denied the 

motion. 

The Commonwealth’s Attorney subsequently filed the 

petition for a writ of prohibition and/or mandamus 

presently before us. He asks this Court: (1) to prohibit 

Judge Swanson “from continuing the findings of guilt under 

advisement;” (2) to order him to vacate the order which 

“ ‘withholds [his] findings as to the sufficiency of 

evidence and takes . . . under advisement’ the finding of 

guilt therein, but nonetheless adjudicates a ‘punishment’ 

including supervised probation, community service, and 

continued counseling;” and (3) to order Judge Swanson “to 

proceed to enter a judgment of guilt and, thereafter, to 

proceed to sentencing in accordance with the statutory and 

case laws of the Commonwealth.” 

B. RECORD NO. 021442 

 Alison M. Boyd was arrested for stealing clothing 

valued at more than $200 from a retail department store. 

Boyd waived a preliminary hearing, and a grand jury 

subsequently indicted her for grand larceny in violation of 

Code § 18.2-95. 

3
 On February 4, 2002, Boyd pled guilty to the charge. 

After hearing a summary of the evidence, the circuit court 

“found that the plea was knowingly and intelligently 

entered and supported by the evidence and . . . that the 

evidence is sufficient to find the defendant guilty.” 

However, the court withheld a finding of guilt and took the 

matter under advisement until a pre-sentence report could 

be prepared. 

 After receiving the pre-sentence report at the 

subsequent sentencing hearing, Judge Swanson withheld a 

finding as to the sufficiency of evidence and took that 

matter under advisement.2 However, Judge Swanson placed 

Boyd under the supervision of a probation officer upon the 

conditions that Boyd: (1) be of good behavior for a minimum 

period of 12 months; (2) serve one day in jail; (3) 

complete 200 hours of community service within 12 months; 

and (4) continue in counseling and follow all treatment 

recommendations. Judge Swanson also set the case for 

“review” on October 9, 2002. 

 The Commonwealth’s Attorney then moved the court to 

reconsider its decision and enter a judgment finding Boyd 

___________________ 2

 That order was inconsistent with the prior one where 

a different judge of the circuit court found the evidence 

sufficient to find Boyd guilty but withheld the finding of 

guilt. 

4
guilty according to her plea and the evidence. Judge 

Swanson denied the motion. 

 The Commonwealth’s Attorney subsequently filed the 

petition for a writ of prohibition and/or mandamus that is 

pending before us. In that petition, the Commonwealth’s 

Attorney asks for the same relief that he requested in the 

Putbrese matter. 

II. ANALYSIS 

A. WRIT OF PROHIBITON 

 The law concerning a writ of prohibition is wellestablished. Oxenham v. J.S.M., 256 Va. 180, 183, 501 

S.E.2d 765, 767 (1998). “A writ of prohibition is an 

extraordinary remedy employed ‘to redress the grievance 

growing out of an encroachment of jurisdiction.’ ” Elliott 

v. Great Atlantic Management Co., Inc., 236 Va. 334, 338, 

374 S.E.2d 27, 29 (1988) (quoting James v. Stokes, 77 Va. 

225, 229 (1883)). The writ does not lie to correct error 

but only to prevent exercise of the jurisdiction of the 

court by the judge to whom it is directed when the judge 

either has no jurisdiction or is exceeding his/her 

jurisdiction. In re Department of Corrections, 222 Va. 

454, 461, 281 S.E.2d 857, 861 (1981); Grief v. Kegley, 115 

Va. 552, 557, 79 S.E. 1062, 1064 (1913). 

____________________ 

5
 Jurisdiction is “the power to adjudicate a case upon 

the merits and dispose of it as justice may require.” 

County School Bd. of Tazewell County v. Snead, 198 Va. 100, 

104-05, 92 S.E.2d 497, 501 (1956) (quoting Southern Sand 

and Gravel Co., Inc. v. Massaponax Sand and Gravel Corp., 

145 Va. 317, 331-32, 133 S.E. 812, 816 (1926) (Burks, J., 

concurring)). Prohibition will not lie “[i]f the court or 

judge has jurisdiction to enter any order in the proceeding 

sought to be prohibited.” Grief, 115 Va. at 557, 79 S.E. 

at 1064. Thus, a writ of prohibition will not lie against 

Judge Swanson if he had jurisdiction to adjudicate and to 

enter any order in the proceedings involving the felony 

charges against Putbrese and Boyd. See Oxenham, 256 Va. at 

184, 501 S.E.2d at 767. 

 Circuit courts “have original jurisdiction of all 

indictments for felonies and of presentments, informations 

and indictments for misdemeanors.” Code § 17.1-513. Here, 

both defendants were charged with grand larceny, a felony 

carrying a maximum penalty of not more than 20 years in a 

state correctional facility. Code § 18.2-95. Accordingly, 

Judge Swanson had jurisdiction to adjudicate both criminal 

cases and to enter orders therein. Therefore, a writ of 

prohibition does not lie, and we will dismiss both 

petitions. Cf. Department of Corrections, 222 Va. at 463, 

6
466, 281 S.E.2d at 862, 864 (awarding writ prohibiting 

trial judge from entering any order on motions to suspend 

balance of sentences of two defendants because court no 

longer had jurisdiction to act on the motions). 

B. WRIT OF MANDAMUS 

 “Mandamus is an extraordinary remedy that may be used 

‘to compel performance of a purely ministerial duty, but it 

does not lie to compel the performance of a discretionary 

duty.’ ” Ancient Art Tattoo Studio, Ltd. v. City of 

Virginia Beach, 263 Va. 593, 597, 561 S.E.2d 690, 692 

(2002) (quoting Board of County Supervisors v. Hylton 

Enters., Inc., 216 Va. 582, 584, 221 S.E.2d 534, 536 

(1976)). “A ministerial act is ‘one which a person 

performs in a given state of facts and prescribed manner in 

obedience to the mandate of legal authority without regard 

to, or the exercise of, his own judgment upon the propriety 

of the act being done.’ ” Richlands Medical Ass’n. v. 

Commonwealth of Virginia, 230 Va. 384, 386, 337 S.E.2d 737, 

739 (1985) (quoting Dovel v. Bertram, 184 Va. 19, 22, 34 

S.E.2d 369, 370 (1945)). However, when the act to be 

performed involves the exercise of judgment or discretion 

on the part of the court or judge, it becomes a judicial 

act and mandamus will not lie. Dovel, 184 Va. at 22, 34 

7
S.E. at 370. As we stated in Page v. Clopton, 71 Va. (30 

Gratt.) 415, 418 (1878): 

[Mandamus] may be appropriately used and is often 

used to compel courts to act where they refuse to 

act and ought to act, but not to direct and 

control the judicial discretion to be exercised 

in the performance of the act to be done; to 

compel courts to hear and decide where they have 

jurisdiction, but not to pre-determine the 

decision to be made; to require them to proceed 

to judgment, but not to fix and prescribe the 

judgment to be rendered. 

 Here, the Commonwealth’s Attorney asks us to direct 

Judge Swanson to enter judgments of guilt in both criminal 

cases. The Commonwealth’s Attorney argues that, once the 

defendants entered guilty pleas, the circuit court had 

“nothing to do” except enter judgment and fix punishment. 

According to the Commonwealth’s Attorney, there is no 

authority, statutory or otherwise, allowing a circuit court 

to defer or take under advisement a finding of guilt after 

a defendant pleads guilty to the felony of grand larceny. 

Recognizing that some criminal statutes affirmatively 

authorize a trial court to defer a finding of guilt even 

when the evidence presented establishes a defendant’s 

guilt, the Commonwealth’s Attorney asserts that Code 

§ 18.2-95, under which both Putbrese and Boyd were charged, 

8
contains no such provision.3 Finally, the Commonwealth’s 

Attorney claims that Judge Swanson’s decision to defer 

findings of guilt in these two cases “creates an injustice 

for the law-abiding citizens of the Commonwealth, fails to 

provide for a finality of litigation, and undermines the 

public confidence in the neutrality of the judiciary.” 

We do not reach the merits of these arguments because 

a writ of mandamus does not lie in the context presented 

here. The Commonwealth’s Attorney asks us to control Judge 

Swanson’s exercise of judicial discretion by prescribing 

the precise judgment to be entered, a judgment of guilt. 

However, a judgment is a court’s determination of the 

rights of the parties upon matters submitted to it in a 

proceeding. Rollins v. Bazile, 205 Va. 613, 617, 139 

___________________ 3

 In the petitions for a writ of prohibition and/or 

mandamus, the Commonwealth’s Attorney did not raise the 

issue whether a court may order probation in the absence of 

a conviction. See Code § 19.2-303 (court may order 

probation “[a]fter conviction”). Instead, the 

Commonwealth’s Attorney complains only about Judge 

Swanson’s decision to take the finding of guilt under 

advisement in both criminal cases. However, the 

Commonwealth’s Attorney correctly notes that certain 

criminal statutes do contain explicit authority for a trial 

court to place a defendant on probation without first 

entering a judgment of guilt. See, e.g., Code §§ 18.2-251 

(possession of controlled substances); -57.3 (assault and 

battery against a family member); -61(D) (marital rape); -

67.1(D) (marital forcible sodomy); -67.2(D) (marital object 

sexual penetration); -67.2:1(C)(marital sexual assault); -

138.1(B) (malicious damage to public or private 

9
S.E.2d 114, 117 (1964). “The rendition of a judgment is 

the judicial act of the court.” Id. Requiring a court or 

judge to enter a certain judgment unquestionably infringes 

upon the exercise of judicial discretion. Mandamus does 

not lie “to fix and prescribe the judgment to be rendered.” 

Page, 71 Va. at 418. Thus, we will dismiss the petitions 

for a writ of mandamus. 

However, the Commonwealth’s Attorney points out that 

this Court has previously granted a writ of mandamus when a 

trial court withheld imposition of a mandatory sentence 

upon a defendant’s conviction for use of a firearm in the 

commission of a felony. In re Commonwealth’s Attorney for 

Chesterfield County, 229 Va. 159, 163, 326 S.E.2d 695, 698 

(1985). There, we construed the statutory language stating 

that the sentence “shall not be suspended” to mean that the 

trial judge could not either delay imposition of the 

mandatory sentence or stay its execution. Id. However, 

that decision is not dispositive here because we 

specifically noted that the respondent there did not 

challenge mandamus procedurally but merely argued that the 

requested relief should be denied. Id. at 161 n.2, 326 

S.E.2d at 696 n.2. 

____________________ 

facilities); and Code § 19.2-303.2 (property crimes 

constituting misdemeanors). 

10
CONCLUSION 

 For the reasons stated, the petitions for a writ of 

prohibition and/or mandamus are dismissed.4

Record No. 021441 – Dismissed.

Record No. 021442 – Dismissed.

___________________ 4

 We also note that neither prohibition nor mandamus 

will lie to undo acts already done. In re Department of 

Corrections, 222 Va. at 461, 281 S.E.2d at 861 

(prohibition); Richlands Medical, 230 Va. at 387, 337 

S.E.2d at 740 (mandamus). The acts about which the 

Commonwealth’s Attorney complains, taking the findings of 

guilt under advisement, have already taken place. 

11