                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Humphreys and Senior Judge Willis
Argued at Chesapeake, Virginia


RONNIE SHERROD MONK
                                                                MEMORANDUM OPINION* BY
v.      Record No. 1022-06-1                                   JUDGE ROBERT J. HUMPHREYS
                                                                     OCTOBER 9, 2007
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                 Randall D. Smith, Judge

                  Kathleen A. Ortiz, Public Defender (Office of the Public Defender,
                  on brief), for appellant.

                  Leah A. Darron, Senior Assistant Attorney General (Robert F.
                  McDonnell, Attorney General, on brief), for appellee.


        Ronnie Sherrod Monk (“Monk”) appeals the denial of his motion to reconsider the

sentence imposed for his robbery conviction of April 14, 2006. On appeal, Monk contends that

the trial court erred in denying his motion to reconsider based solely on jurisdictional grounds.

Specifically, Monk contends that his filing of a notice of appeal did not divest the trial court of

jurisdiction to modify his sentence. However, Monk’s argument presupposes that the trial court

would have otherwise had jurisdiction to modify his sentence. Because Monk failed to prove

jurisdiction, regardless of the filing of the notice of appeal, we hold that the trial court did not err

in denying his motion. Accordingly, we affirm the trial court.




        ∗
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                            ANALYSIS

       According to Rule 1:1 of the Rules of the Supreme Court of Virginia, “[a]ll 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.” Expiration of the twenty-one-day time limitation divests the trial

court of jurisdiction, and orders entered in violation of Rule 1:1 are void. See Smith v.

Commonwealth, 32 Va. App. 766, 775, 531 S.E.2d 11, 16 (2000). However, Rule 1:1 is subject

to certain limited exceptions, including Code § 19.2-303. Ziats v. Commonwealth, 42 Va. App.

133, 138, 590 S.E.2d 117, 120 (2003).

       Code § 19.2-303 states, in pertinent part, that

               If a person has been sentenced for a felony to the Department of
               Corrections but has not actually been transferred to a receiving unit
               of the Department, the court which heard the case, if it appears
               compatible with the public interest and there are circumstances in
               mitigation of the offense, may, at any time before the person is
               transferred to the Department, suspend or otherwise modify the
               unserved portion of such a sentence.

Code § 19.2-303 “invests courts with discretionary authority to modify a sentence

post-conviction in all felony cases, including those in which the defendant has been sentenced

pursuant to a plea agreement[,] so long as the defendant is in the local jail and has not been

delivered to the Department of Corrections.” Esparza v. Commonwealth, 29 Va. App. 600, 608,

513 S.E.2d 885, 889 (1999). In other words, “[o]nce the defendant has been transferred to the

[Department of Corrections] and twenty-one days have passed since the court’s last order, the

court can no longer modify a sentence.” Ziats, 42 Va. App. at 139, 590 S.E.2d at 120.

       In order for the trial court to modify a sentence, it is the defendant’s burden to prove

jurisdiction, specifically that either twenty-one days have not yet elapsed, or that the defendant

has not yet been transferred to the Department of Corrections. See id. (holding that when faced
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with a silent record as to the defendant’s custody status, the trial court did not have jurisdiction to

modify a sentencing order); see also D’Alessandro v. Commonwealth, 15 Va. App. 163, 167,

423 S.E.2d 199, 201 (1992) (declining to find that the trial court had jurisdiction to modify a

sentencing order under Code § 19.2-303 where the record was silent on the defendant’s custodial

location).

       In this case, Monk’s motion to reconsider his sentence was filed well in excess of

twenty-one days from the entry of the final order. Thus, it became Monk’s burden to prove that

the trial court had jurisdiction to modify his sentence, pursuant to Code § 19.2-303. Said

differently, Monk had to present the trial court with evidence that he had not yet been transferred

to the Department of Corrections. Monk’s motion requested the court to reconsider his sentence

because 1) he does not have a criminal history, and he believes the sentence to be excessive;

2) he has aspirations of entering the military; 3) he helps take care of his girlfriend and her four

children who need his income for support; and 4) there were circumstances not properly

conveyed to the sentencing judge, who had not presided over Monk’s trial. However, the motion

and the record are silent regarding whether Monk had, at the time of the filing of the motion,

been transferred to the Department of Corrections. Thus, Monk failed to provide the court with

any evidence from which it could determine that it had jurisdiction to modify his sentence,

pursuant to Code § 19.2-303.

       Monk’s argument that the trial court retains jurisdiction to modify a sentence even after

the filing of a notice of appeal presupposes that the trial court would have had jurisdiction absent

the notice of appeal. Here, the evidence establishes that the trial court did not have jurisdiction

regardless of whether Monk filed a notice of appeal. As a result, we need not address whether

the filing of the notice of appeal alone divested the trial court of jurisdiction to modify the



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sentence. Accordingly, we hold that the trial court did not err in denying Monk’s motion to

reconsider his sentence.

                                         CONCLUSION

       For the foregoing reasons, we affirm the decision of the trial court.

                                                                                 Affirmed.




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