COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Senior Judge Hodges 

Argued at Alexandria, Virginia 

BRIAN M. McHUGH 

 MEMORANDUM OPINION* BY 

v. Record No. 0184-96-4 JUDGE WILLIAM H. HODGES 

 APRIL 22, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Paul F. Sheridan, Judge 

 James E. Pinkowski (Charles E. Collins; 

Pinkowski and Flanders, on briefs), for 

appellant. 

 Steven A. Witmer, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Brian M. McHugh (appellant) was convicted of assault and 

battery. He alleges on appeal that the trial court erred in 

failing to properly instruct the jury on the element of the 

intent necessary for a conviction for assault and battery, and 

that the evidence was insufficient to sustain his conviction. 

Because the trial court lacked jurisdiction to consider these 

issues, which were raised only in appellant's post-trial motion 

to set aside the verdict, we dismiss the appeal. 

 I. 

 Appellant was tried by jury on November 28 and 29, 1995. 

The jury found appellant guilty of assault and battery and 

recommended a fine of $1,500. The trial judge sentenced 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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appellant in accordance with the jury verdict. The trial court 

entered the final judgment order on December 18, 1995. 

 Neither the trial order nor the final order, each entered on 

December 18, 1995, indicates that appellant made a motion to 

strike the evidence or a motion to set aside the verdict at his 

jury trial. Appellant filed a written statement of facts in lieu 

of a transcript of the proceedings. The written statement of 

facts does not recite that a motion to strike the evidence or 

motion to set aside the verdict was made at trial. 

 Appellant filed a written motion to set aside the verdict 

and supporting memorandum on January 3, 1996. In that written 

motion, he raised the issues he currently seeks to raise on 

appeal, that is, whether the court erred in not instructing the 

jury on the element of intent, and whether the evidence was 

insufficient to sustain his conviction for assault and battery. 

 The motion to set aside the verdict was filed within 

twenty-one days of the final judgment order. However, prior to 

the expiration of the twenty-one day period, the trial court did 

not vacate, modify, or suspend its judgment in order to retain 

jurisdiction. In School Bd. of Lynchburg v. Caudill Rowlett 

Scott, Inc., 237 Va. 550, 379 S.E.2d 319 (1989), the Supreme 

Court of Virginia held: 

 Neither the filing of post-trial or 

post-judgment motions, nor the court's 

taking such motions under consideration, 

nor the pendency of such motions on the 

twenty-first day after final judgment, is 

sufficient to toll or extend the running of 

the 21-day period prescribed by Rule 1:1 
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. . . . The running of time under [Rule 1:1] 

may be interrupted only by the entry, within 

the 21-day period after final judgment, of an 

order suspending or vacating the final order. 

Id. at 556, 379 S.E.2d at 323 (citations omitted). See In re 

Commonwealth Dep't of Corrections, 222 Va. 454, 464, 281 S.E.2d 

857, 862-63 (1981) ("unless an order vacating or modifying a 

final judgment is entered before the expiration of 21 days, the 

final judgment is no longer under the control of the trial 

court"). Accordingly, in this case, the trial court, pursuant to 

Rule 1:1, was divested of jurisdiction after January 8, 1996. 

Argument on the motion to set aside the verdict was heard after 

that date, on February 2, 1996, and the trial court entered an 

order denying the motion on February 20, 1996. 

 The record recites that the only time the issues raised on 

appeal were presented to the trial court was in the post-trial 

motion to set aside the verdict. Because the trial court lacked 

jurisdiction to consider appellant's motion to set aside the 

verdict after the twenty-one day period expired, its ruling on 

the motion was a nullity and review by this Court is barred on 

the issues flowing from its denial of the motion. See Lewis v. 

Commonwealth, 18 Va. App. 5, 9, 441 S.E.2d 47, 49 (1994). 

 Accordingly, the appeal is dismissed. 

 Dismissed.