COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

DAYOMIC JACKIE SMITH 

 

v. Record No. 0220-99-2 

 

COMMONWEALTH OF VIRGINIA OPINION BY 

 JUDGE LARRY G. ELDER 

DAYOMIC JACKIE SMITH JULY 11, 2000 

v. Record No. 1341-99-2 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Amy M. Curtis (John A. Rockecharlie; Bowen, 

Bryant, Champlin & Carr, on brief), for 

appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Dayomic Jackie Smith (appellant) appeals from his jury 

trial convictions for two counts of attempted rape and one count 

each of rape and object sexual penetration. On appeal, he 

contends the trial court erroneously (1) overruled his objection 

to the Commonwealth's repeated references to facts not in 

evidence and in refusing his request for a curative instruction 

regarding same; (2) concluded the evidence was sufficient to 

support his convictions; and (3) denied his motion for a new 

trial based on after-discovered evidence. The Commonwealth 
contends that appellant's new trial motion was jurisdictionally 

barred because it was filed more than twenty-one days after 

entry of the final sentencing order and that the record is 

otherwise inadequate to permit appellate review because 

appellant failed timely to file the transcripts of the 

proceedings in the trial court. We dismiss the appeal on issues 

(1) and (2) because we hold the transcripts were not timely 

filed and were indispensable to the appeal. We also dismiss the 

appeal of issue (3), based on the denial of appellant's new 

trial motion, because the motion was untimely and the trial 

court lacked jurisdiction to consider it. Therefore, we dismiss 

the appeals in their entirety, allowing the convictions to 

stand. 

I. 

PROCEDURAL HISTORY 

 Appellant was convicted of two counts of attempted rape and 

one count each of rape and object sexual penetration in a jury 

trial on July 9, 1998. On January 25, 1999, the trial court 

sentenced appellant to serve a total of sixteen years on all 

four counts. On January 26, 1999, appellant represented that 

"final judgment was entered on January 25, 1999," and he filed 

his notice of appeal of that judgment to the Court of Appeals. 

At that time, appellant's sentence had been orally pronounced, 

but no final order had been entered. 

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 On February 16, 1999, appellant moved the trial court to 

modify his sentence and requested a hearing. The court set the 

motion for hearing on April 29, 1999. On February 24, 1999, the 

trial court granted appellant's "motion to suspend execution of 

sentence." 

 The record reflects no further proceedings or filings until 

March 15, 1999. On that date, the trial court entered a 

"Sentencing Order" based on a "Hearing Date" of January 25, 

1999, and sentenced appellant to serve a total of sixteen years 

in accordance with the jury's verdict of July 9, 1998. Although 

the order reflected a hearing date of January 25, 1999, the 

order was dated March 15, 1999, and did not expressly purport to 

be entered nunc pro tunc. The March 15 order made no mention of 

appellant's pending motion to modify the sentence pronounced at 

the hearing of January 25, 1999. The order contained no 

endorsements, no indication that it was seen by counsel for 

either party and no direction to the clerk to mail a copy to 

either party. Also on March 15, the court entered orders 

setting appellant's appeal bond and denying motions for a lie 

detector test and the preparation of the trial transcripts. The 

trial court entered no other orders in the twenty-one days after 

March 15, 1999, and never entered any order purporting to 

vacate, modify or suspend execution of the sentence imposed 

March 15, 1999. 

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 On March 31, 1999, appellant moved the court to allow him 

to substitute counsel, representing that he had retained counsel 

to represent him. Retained counsel subsequently filed a motion 

for a new trial, alleging that one of the victims recanted her 

testimony after trial. The April 29, 1999 hearing date for the 

motion to modify was continued to June 7, 1999. On that date, 

the trial court heard and denied appellant's motion for a new 

trial. At the conclusion of that hearing, counsel for appellant 

indicated that he wished to withdraw the motion for modification 

of sentence previously filed by appellant's court-appointed 

counsel. In withdrawing that motion, retained counsel indicated 

his belief that the trial court had "entered the final order 

. . . imposing sentence" in "January of . . . '99" and had 

subsequently entered an order "suspend[ing] the proceeding" 

based on appellant's motion for modification. Appellant noted 

his intent to appeal and asked the trial court to rescind the 

order of suspension to permit him to do so and to start "the 

clock . . . tick[ing] again on the appeal." 

 On June 14, 1999, appellant's retained counsel filed 

appellant's second notice of appeal and indicated therein a 

desire to appeal the denial of the new trial motion, as well. 

 Subsequently, on July 9, 1999, the trial court entered an 

order reflecting its June 7, 1999 denial of the motion for a new 

trial and appellant's request to withdraw his motion to modify 

the sentence. The order indicated a hearing date of June 7, 

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1999, but again did not indicate an intent to enter the order 

nunc pro tunc to that date. The order did not repeat the 

sentence previously pronounced and did not expressly reinstate 

any prior orders or rulings. The trial court entered an 

"Amended" order on July 14, 1999. Except for the "Amended" 

notation, the order appears identical to the one entered July 7, 

1999. 

 Appellant filed the transcript of the July 9, 1998 trial on 

June 15, 1999; filed the transcript of the January 25, 1999 

sentencing hearing on June 9, 1999; and filed the transcript of 

the June 7, 1999 motions hearing on June 24, 1999. 

II. 

ANALYSIS 

 Rule 5A:8 provides that "[t]he transcript of any proceeding 

is part of the record when it is filed in the office of the 

clerk of the trial court within 60 days after entry of the final 

judgment." We have established a firm policy concerning the 

filing of transcripts: "If . . . the transcript is 

indispensable to the determination of the case, then the 

requirements for making the transcript a part of the record on 

appeal must be strictly adhered to. This Court has no authority 

to make exceptions to the filing requirements set out in the 

Rules." Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 

400, 402 (1986). In determining the date of entry of a final 

order, we note "[a] court speaks only through its orders," 

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Cunningham v. Commonwealth, 205 Va. 205, 208, 135 S.E.2d 770, 

773 (1964), and "orders speak as of the day they were entered," 

Vick v. Commonwealth, 201 Va. 474, 476, 111 S.E.2d 824, 826 

(1960). We "'presume that the order, as the final pronouncement 

on the subject, rather than a transcript that may be flawed by 

omissions, accurately reflects what transpired.'" Kern v. 

Commonwealth, 2 Va. App. 84, 88, 341 S.E.2d 397, 400 (1986) 

(citation omitted). 

 Here, the March 15, 1999 sentencing order constituted a 

"final judgment" unless, within twenty-one days of entry, the 

court entered an order vacating or suspending the sentencing 

order. See D'Alessandro v. Commonwealth, 15 Va. App. 163, 167, 

423 S.E.2d 199, 201 (1992); Rule 1:1. The March 15 order was 

not entered nunc pro tunc to January 25, the date of the court's 

ruling from the bench. Therefore, to the extent that the 

court's February 24 order suspending execution of the sentence 

had any effect, it was effectively countermanded by the March 15 

order. Moreover, despite its apparent intention to keep the 

matter within its jurisdiction, the trial court did not 

thereafter, within twenty-one days, enter an order suspending or 

vacating the order of March 15, 1999. Therefore, the March 15, 

1999 order constituted a final judgment, and the transcripts 

from the trial and sentencing hearing, which were filed more 

than sixty days after entry of final judgment, were not properly 

made part of the record. 

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 The trial transcript is indispensable to addressing 

appellant's arguments that the prosecutor's references during 

voir dire and rebuttal argument to facts not in evidence 

constituted reversible error and that the evidence was 

insufficient as a matter of law to sustain his convictions. "If 

we determine that the transcript is indispensable and is not a 

part of the record before us for review, we must dismiss the 

appeal on the ground that the record on appeal is insufficient 

to fairly and accurately determine the issues presented." 

Turner, 2 Va. App. at 99, 341 S.E.2d at 402. Accordingly, we 

dismiss the appeal as to these issues. 

 Appellant claims the order of March 15, 1999 was not a 

valid final order because he received no notice of its entry. 

He fails, however, to cite any rule or case law entitling him to 

such notice. Rule 1:13, applicable to both civil and criminal 

proceedings, requires service of orders and decrees on all 

counsel who have not endorsed them. However, "the mere fact 

that an order may have been entered without endorsement of [or 

direct notice to] counsel of record does not automatically 

render it void." Davis v. Mullins, 251 Va. 141, 147, 466 S.E.2d 

90, 94 (1996). Rule 1:13 specifically provides that compliance 

with the rule "may be modified or dispensed with by the court in 

its discretion." The Supreme Court has explained that, under 

Rule 1:13, applied "daily in civil and criminal cases," 

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[n]otice or endorsement is unnecessary 

[where] counsel are present in court when 

the ruling is made orally and are fully 

aware of the court's decision; preparation 

and entry of an order in standard form is 

all that remains to be done to end the case 

in the trial court. Indeed, prompt 

disposition of the business of the trial 

courts would be jeopardized if Rule 1:13 

were interpreted to require notice or 

endorsement under these circumstances; 

counsel of record have the duty and 

responsibility to examine the public record 

and to determine the date of entry of such 

orders. 

Smith v. Stanaway, 242 Va. 286, 289, 410 S.E.2d 610, 612 (1991) 

(emphasis added); see id. (distinguishing prior cases construing 

Rule 1:13 or its predecessor, in which court took action which 

could not have been anticipated by counsel without providing 

notice of same); see also Mullins, 251 Va. at 147-48, 466 S.E.2d 

at 93 (unanimously applying Stanaway). 

 In appellant's case, at the completion of the January 25, 

1999 sentencing hearing, preparation of the order memorializing 

that hearing was all that remained to be done until appellant 

filed first a notice of appeal and then a motion to modify his 

sentence. When appellant's counsel filed the notice of appeal, 

he merely assumed without checking the trial court's record that 

the court had already entered the final order memorializing its 

January 25, 1999 bench ruling. In fact, the court had not yet 

entered that order and did not do so until March 15, 1999. 

Under the rationale of Stanaway, appellant's counsel had a duty 

to determine the date of entry of that order because he was 

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present for the court's oral ruling and at the time of the 

hearing, entry of the order was all that remained to be done. 

Because the issue involves jurisdiction, which cannot be 

conferred by agreement, the mere fact that the parties and the 

court proceeded as if the court had jurisdiction more than 

twenty-one days after March 15, 1999 did not act to confer 

jurisdiction on the court. See Morrison v. Bestler, 239 Va. 

166, 169-70, 387 S.E.2d 753, 755 (1990) (parties cannot confer 

subject matter jurisdiction on court by agreement or waiver). 

In the absence of the actual vacation of the March 15, 1999 

order, the court lost jurisdiction, and the period for filing of 

transcripts ran from March 15, 1999. See Mullins, 251 Va. at 

150, 466 S.E.2d at 95 ("While the delay in recording [the 1982] 

order and the subsequent proceeding before the trial court in 

1983 may suggest that the parties and the court treated the 1982 

order as having been vacated, nothing in the record suggests 

that an order doing so was in fact entered. Accordingly, the 

1983 order was a nullity . . . ."). 

 We also dismiss appellant's claim that the trial court 

erred in denying his new trial motion. The trial court had no 

jurisdiction to consider the motion. Upon entering the 

March 15, 1999 sentencing order, the trial court retained 

jurisdiction for a period of twenty-one days, during which time 

the court could grant appellant a new trial or enter an order 

suspending final judgment. The trial court took no action until 

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July 9, 1999, when it entered an order denying the motion for a 

new trial. 

 "In order to toll the time limitation[] of Rule 1:1 . . . 

it is not sufficient for the trial judge merely to express a 

desire to consider the action or take the issue under 

advisement; rather, the trial judge must issue an order 

modifying, vacating or suspending the sentence within twenty-one 

days of the entry of sentence." D'Alessandro, 15 Va. App. at 

167, 423 S.E.2d at 201. 

 Because more than twenty-one days passed without the 

court's entering an order suspending final judgment, the trial 

court lost jurisdiction to hear the motion for a new trial, and 

the July 9 and July 14, 1999 orders were void. See Rule 1:1. 

 For these reasons, we dismiss the appeals, thereby allowing 

appellant's convictions to stand. 

 Record No. 0220-99-2

 Dismissed.

 Record No. 1341-99-2

 Dismissed.

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