PRESENT:   All the Justices

HONORABLE THOMAS J. KELLEY, JR.,
GENERAL DISTRICT COURT JUDGE
FOR ARLINGTON COUNTY
                                           OPINION BY
v.   Record No. 120579              JUSTICE DONALD W. LEMONS
                                        JANUARY 10, 2013
THEOPHANI K. STAMOS,
COMMONWEALTH'S ATTORNEY
FOR ARLINGTON COUNTY


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                   William T. Newman, Jr., Judge

      In this appeal, we consider whether the Circuit Court of

Arlington County ("circuit court") erred when it issued a writ

of mandamus against the Honorable Thomas J. Kelley, Jr. ("Judge

Kelley"), a general district court judge, directing Judge Kelley

to sentence a criminal defendant within twenty-one days of its

order on the charge of driving while intoxicated.

                     I. Facts and Proceedings

      On May 22, 2009, Alexander Nobles ("Nobles") pled guilty to

driving while intoxicated ("DWI") in violation of Code § 18.2-

266 before Judge Kelley in general district court.    The case was

continued until July 7, 2009, on which date Judge Kelley

continued the case until August 2, 2011, and required that

Nobles be of good behavior and complete an alcohol safety action

program and 200 hours of community service.     At the August 2,

2011 hearing, Judge Kelley found Nobles guilty of reckless

driving and fined him $250.
     The record does not contain sufficient evidence for us to

determine whether Judge Kelley found Nobles guilty of DWI at the

May 22, 2009 hearing.    On the warrant, the box located next to

the disposition of "guilty as charged" is marked, but that mark

is scratched through.    It is not possible for the Court to

determine from the record when those marks were made or whether

they reflect a certain disposition by Judge Kelley that was

later changed as opposed to a mistake by Judge Kelley that was

rectified.    The only disposition that is clearly marked

indicates Nobles was tried and found by Judge Kelly to be

"guilty of __" with the charge of "reckless driving" supplied by

Judge Kelley.

     The Commonwealth objected to Judge Kelley's decision to

find Nobles guilty of reckless driving instead of finding him

guilty and sentencing him for DWI, and filed a motion to

reconsider.    Judge Kelley held a hearing on the motion to

reconsider on August 31, 2011, but subsequently denied the

motion.

     Theophani K. Stamos ("Stamos"), the Chief Deputy

Commonwealth's Attorney, 1 filed a petition for a writ of mandamus

in the circuit court, seeking an order compelling Judge Kelley

to sentence Nobles on the charge of DWI.    Judge Kelley filed a


     1
         Stamos became the Commonwealth's Attorney on January 1,
2012.

                                  2
demurrer, and a hearing was held on the demurrer on December 19,

2011.    On January 6, 2012, the circuit court dismissed the

demurrer.    On January 17, 2012, the circuit court issued a writ

of mandamus, ordering Judge Kelley to sentence Nobles on the

charge of DWI within twenty-one days.

        Judge Kelley filed a motion for reconsideration and an

answer on January 26, 2012.    On February 6, 2012, the circuit

court sent a letter to the parties informing them that the

motion for reconsideration was denied.

        Judge Kelley then filed his petition for appeal with this

Court, and we granted an appeal on the following assignments of

error:

1.      The circuit court erred when it deprived the Hon. Thomas J.
        Kelley, Jr. of procedural due process by ruling on the
        petition without permitting him to answer the petition and
        without first conducting a hearing on the merits.

2.      The circuit court erred by not dismissing the petition on
        the grounds that the Chief Deputy Commonwealth's Attorney
        lacked standing to file the petition for writ of mandamus.

3.      The circuit court erred in granting the petition on the
        grounds that a writ of mandamus cannot be used to undo
        action that has already been taken.

4.      The circuit court erred by not dismissing the petition on
        the grounds that the Hon. Thomas J. Kelley, Jr. lacked
        subject matter jurisdiction to alter the order entered on
        August 2, 2011 because more than twenty-one days had
        elapsed since entry of the order.

5.      The circuit court erred in ordering the Hon. Thomas J.
        Kelley, Jr. to sentence Mr. Nobles for the charge of
        driving while intoxicated within twenty-one days of its
        order because the temporal requirement infringes upon the


                                   3
     Hon. Thomas J. Kelley's judicial discretion in imposing a
     sentence.

We also directed the parties to brief the following issue:

6.   Whether the defendant in the underlying criminal
     prosecution was a necessary party to the mandamus action in
     the circuit court.

                          II. Analysis

                      A. Standard of Review

     The issues whether 1) Stamos had standing to file the

petition for a writ of mandamus, 2) the August 2, 2011 order was

voidable, 3) mandamus lies and 4) Nobles was a necessary party

are all questions of law subject to de novo review upon appeal.

Moreau v. Fuller, 276 Va. 127, 133, 661 S.E.2d 841, 844-45

(2008).

                           B. Standing

     Stamos filed the petition for a writ of mandamus in her

individual capacity as Chief Deputy Commonwealth's Attorney.

Judge Kelley argues that the right to bring a mandamus action is

reserved for the Attorney General and the Commonwealth's

Attorney, and there is no authority for a Chief Deputy

Commonwealth's Attorney to bring a mandamus action.

     The general requirements of standing have often been

stated:

          The purpose of requiring standing is to make
     certain that a party who asserts a particular
     position has the legal right to do so and that
     his rights will be affected by the disposition of


                                4
       the case. Thus, a party claiming standing must
       demonstrate a personal stake in the outcome of
       the controversy.

Goldman v. Landsidle, 262 Va. 364, 371, 552 S.E.2d 67, 71 (2001)

(citations omitted).

       In Moreau, we held that a Commonwealth's Attorney had

standing to seek mandamus or prohibition in a matter involving

an ongoing criminal prosecution.         276 Va. at 135, 661 S.E.2d at

845.   The question presented in this appeal is whether that

authority extends to the Chief Deputy Commonwealth's Attorney.

       Code § 15.2-1627(B) states:

       The attorney for the Commonwealth and assistant
       attorney for the Commonwealth shall be a part of
       the department of law enforcement of the county
       or city in which he is elected or appointed, and
       shall have the duties and powers imposed upon him
       by general law, including the duty of prosecuting
       all warrants, indictments or informations
       charging a felony, and he may in his discretion,
       prosecute Class 1,2 and 3 misdemeanors, or any
       other violation, the conviction of which carries
       a penalty of confinement in jail, or a fine of
       $500 or more, or both such confinement and fine.
       He shall enforce all forfeitures, and carry out
       all duties imposed upon him by § 2.2-3126. He
       may enforce the provisions of subsection D of
       § 18.2-268.3.

       This statute plainly indicates that both the Commonwealth's

Attorney and his assistant "shall have the duties and powers

imposed upon him by general law . . . ."        It is clear from this

language that in this respect the assistant attorney has the

same powers and duties as the Commonwealth's Attorney.



                                     5
Accordingly, if the Commonwealth's Attorney had standing to file

a petition for a writ of mandamus in a particular matter, then

the Chief Deputy Commonwealth's Attorney would have the same

standing.

     Judge Kelley also argues that Stamos lacked standing to

file this mandamus action because there was "no ongoing criminal

prosecution."   Judge Kelley contends that the August 2, 2011

order became final after 21 days, and the petition for a writ of

mandamus was not filed until September 29, 2011.

     This petition for a writ of mandamus is unquestionably

related to a criminal prosecution.    The issue whether there is

still an "ongoing criminal prosecution" will be determined by

the outcome of this opinion.    Under such circumstances, this

petition for a writ of mandamus is so closely related to a

criminal prosecution that the Commonwealth's Attorney has

standing to file the petition.   Accordingly, the Chief Deputy

Commonwealth's Attorney had the same standing, and the circuit

court did not err in failing to dismiss the petition for a writ

of mandamus on that basis.

            C. Mandamus and Subject Matter Jurisdiction

     Stamos argues that convicting a defendant of a crime he was

not charged with, and which is not a lesser-included offense,

exceeded the authority of the court, is void ab initio, and

therefore a judicial nullity.    She contends that since a valid


                                  6
sentencing event has yet to occur in this matter, the general

district court retains subject-matter jurisdiction over this

ongoing criminal proceeding, and mandamus is an appropriate

remedy to compel a prospective sentencing event.

     The general powers of the judiciary in Virginia are

conferred by Article VI, Section 1 of the Constitution of

Virginia.    This section by itself confers jurisdiction upon the

Supreme Court of Virginia in certain matters and further states:

"Subject to the foregoing limitations, the General Assembly

shall have the power to determine the original and appellate

jurisdiction of the courts of the Commonwealth."    The concept of

jurisdiction defines power.    With regard to the Court of Appeals

of Virginia, the Circuit Courts and the General District and

Juvenile and Domestic Relations District Courts, the powers of

such courts are entirely prescribed by statute.

     An order of a court of the Commonwealth can be "void" by

operation of two concepts.    An order may be "void ab initio,"

meaning it was without effect from the moment it came into

existence.    In that respect it is "void."   Such a void order is

a nullity without force or effect and may be collaterally

challenged.   An order of a court may also be "voidable" if it

contains reversible error.    Singh v. Mooney, 261 Va. 48, 52, 541

S.E.2d 549, 551 (2001).    However, the order is not "void" until




                                  7
it is directly and successfully challenged.   Id. at 51, 541

S.E.2d at 551.

     Of critical distinction is the difference between a court

lacking jurisdiction to act upon a matter and the court, while

properly having jurisdiction, nonetheless erring in its

judgment.   In Singh, we held that:

     [a]n order is void ab initio if entered by a
     court in the absence of jurisdiction of the
     subject matter or over the parties, if the
     character of the order is such that the court had
     no power to render it, or if the mode of
     procedure used by the court was one that the
     court "could not lawfully adopt."

Id. at 51-52, 541 S.E.2d at 551 (internal citations

omitted)(holding that an order entered in violation of Rule 1:13

was voidable, not void ab initio).

     There is no dispute that in this case the general district

court had jurisdiction over the subject matter and the parties.

The remaining possibilities pursuant to Singh, depend upon

whether the court had the power to render the judgment being

collaterally attacked.

     In Rawls v. Commonwealth, 278 Va. 213, 683 S.E.2d 544

(2009), a case involving collateral attack after conviction, we

declared a sentence in excess of statutory limitations to be

void ab initio.   We stated that the "character of the judgment

was not such as the [C]ourt had the power to render."     Id. at

221, 683 S.E.2d at 549 (internal quotation marks omitted).     Of


                                 8
course, the reason the court did not have "power to render" was

because the General Assembly authorized a punishment for the

offense and the punishment imposed was in excess of the

authority granted by the General Assembly.   To restate the

obvious: the Constitution of Virginia authorized the General

Assembly to confer power upon the circuit courts.   The General

Assembly prescribed the applicable punishments for criminal

offenses.   The punishment imposed in Rawls exceeded the power

granted to the circuit court.

     Rawls quoted from a 19th century case involving liability

of a surety.    See Anthony v. Kasey, 83 Va. 338, 5 S.E. 176

(1887).    In that case the court repeatedly stated that Kasey,

the surety, had not been a party to the suit in question.

Nonetheless, the trial court proceeded upon a rule to show cause

against the surety after a deficiency had been determined upon

sale of property.   The manner in which the court proceeded "was

such a departure from the established mode of procedure as to

render the decree not only erroneous, but void."    Id. at 342, 5

S.E. at 178.   We stated with regard to sureties, "[t]heir

liability, if any, grows out of their undertaking as sureties on

the bond, and can be ascertained and enforced only by suit on

the bond in a common law court, where full opportunity for

making defense and the constitutional right of trial by jury can

be had."    Id. (quoting Thurman v. Morgan, 79 Va. 367, 372


                                  9
(1884)).   Clearly, the trial court had proceeded against Kasey

when he was not a party to the action, depriving him of his

constitutional and statutory right to a trial by jury.    The

trial court was without power to proceed in such a manner.

     In Evans v. Smith-Wythe Airport Commission, 255 Va. 69, 495

S.E.2d 825 (1998), we held that the circuit court's order

restricting the exercise of the power of eminent domain of an

airport authority was void ab initio because the circuit court

did not have the power to render a judgment which permitted a

governmental entity to relinquish the power or right of eminent

domain.    Id. at 74, 492 S.E.2d at 828.   In 1981, the Airport

Commission initiated condemnation proceedings against the

Evanses which subsequently resulted in an order reflecting a

settlement which purported to limit the Airport Commission's

right to initiate a condemnation action against the Evanses'

property as long as they or their children owned the property.

Id. at 71, 495 S.E.2d at 826.   In 1996, the Airport Commission

initiated a declaratory judgment action alleging that the order

entered in the condemnation proceeding was void ab initio.        Id.

at 71, 495 S.E.2d at 827.   In this respect, the second action

was a collateral challenge to the order in the first action.

The character of the first judgment was not such that the court

had the power to render, because the power of eminent domain is

an inalienable attribute of sovereignty, and the court acted


                                 10
outside the scope of Code § 25-46.34(e) when it divested the

Airport Commission of the power or right of eminent domain given

to it by the General Assembly.    Id. at 73, 495 S.E.2d at 827.

       Burrell v. Commonwealth, 283 Va. 474, 722 S.E.2d 272

(2012), is the most recent case in which we have found that a

court rendered a judgment it did not have the power to render,

and that the judgment was therefore void ab initio.    In Burrell,

the circuit court order contained a provision stating that the

court would reduce the defendant's conviction from a felony to a

misdemeanor following the defendant's incarceration and

successful completion of probation.    Id. at 476, 722 S.E.2d at

272.

       The circuit court ruled that Code § 19.2-303 gave it

jurisdiction to change the offense of conviction in the

sentencing order after the court had lost jurisdiction to modify

the sentencing order pursuant to Rule 1:1.    Id. at 479, 722

S.E.2d at 274.   That statute, however, did not authorize the

circuit court to reduce a conviction from a felony to a

misdemeanor after a defendant had served the active portion of a

sentence.   Rather, it authorized the circuit court to "suspend

or otherwise modify the unserved portion of such a sentence."

Id.    We held that the circuit court did not have the power to

render a judgment reducing Burrell's conviction from a felony to

a misdemeanor more than five years after the entry of the


                                 11
sentencing order, and the order was therefore void ab initio. 2

Id. at 480, 722 S.E.2d at 275.

     In the cases analyzed above, the court orders were void ab

initio because the courts did not have the power to render the

judgments at issue.    In this case, however, Judge Kelley did

have such power as a general district court judge to render the

judgment at issue.

         The case was begun in a normal manner not unlike thousands

of cases brought in the Commonwealth every year.    We are aware

that warrants are routinely amended, particularly in the general

district courts.    The power to do this is plainly evident in

Code § 16.1-129.2, which provides in pertinent part:

     Upon the trial of a warrant, the court may, upon
     its own motion or upon the request either of the
     attorney for the prosecution or for the accused,
     amend the form of the warrant in any respect in
     which it appears to be defective. But when the
     warrant is so defective in form that it does not
     substantially appear from the same what is the
     offense with which the accused is charged, or
     even when it is not so seriously defective, the
     judge of the court having examined on oath the
     original complainant, if there be one, or if he
     sees good reason to believe that an offense has
     been committed, then without examination of
     witnesses, may issue under his own hand his
     warrant reciting the offense and requiring the
     defendant in the original warrant to be arrested
     and brought before him. Upon the arrest of the
     defendant on the new warrant and his production
     or appearance in court the trial shall proceed

     2
       Burrell, long after the 21-day period prescribed in Rule
1:1 had made the conviction order final, sought to collaterally
attack the order in this proceeding.

                                  12
     upon the new warrant. When there is an amendment
     of the original warrant the trial shall proceed
     on the amended warrant. But whether the warrant
     is amended or a new warrant is issued, the court
     before proceeding to trial on the same may grant
     a continuance to the prosecution or to the
     defendant upon such terms as to costs as may be
     proper under the circumstances of the case;
     provided, however, that if the warrant be amended
     or if a new warrant be issued after any evidence
     has been heard, the accused shall be entitled to
     a continuance as a matter of right.

Code § 16.1-129.2 (emphasis added).

     Stamos argues that the doctrine of separation of powers

does not permit the court to do exactly what is permitted by

Code § 16.1-129.2.   The record in this case does not

specifically reference the basis for Judge Kelley's ruling.

However, this statute clearly demonstrates that the power to

amend warrants and even issue a new warrant is vested in the

general district court judge.   The issue is not whether the

court had the power to do so.   It did.   The issue is whether the

court erred when it did so.

     The dissent maintains that once a plea of guilty is

accepted by the court, it is the equivalent of a conviction for

that offense, and imposition of punishment is then authorized.

As we stated earlier, however, the record does not support

Stamos' contention that Nobles' guilty plea was ever accepted by

Judge Kelley.   If Judge Kelley never found Nobles guilty of DWI,




                                13
Judge Kelley retained the authority to amend the warrant as

provided in Code § 16.1-129.2.

     The general district court has jurisdiction over the

offense of reckless driving (Code § 16.1-123.1(1)(b)); the

defendant was before the court; Judge Kelley did not sentence

Nobles beyond the statutory range.    While Judge Kelley had the

jurisdiction to amend the warrant, he may have erred in the

manner in which he did so.   We have previously stated: "A

challenge to an order based on a trial court's misapplication of

statute generally raises a question of court error, not a

question of the court's jurisdiction."   Hicks v. Mellis, 275 Va.

213, 219, 657 S.E.2d 142, 145 (2008).    Accordingly, the August

2, 2011 order was not void ab initio.

     The August 2, 2011 order became final after 21 days in

accordance with Rule 1:1.    Judge Kelley has lost subject matter

jurisdiction to modify the August 2, 2011 order.   Additionally,

mandamus is not the appropriate remedy here, as "[m]andamus is

applied prospectively only; it will not be granted to undo an

act already done."   In re Commonwealth, 278 Va. 1, 9, 677 S.E.2d

236, 239 (2009).   Because the August 2, 2011 order is final and

can no longer be undone, the circuit court erred when it issued

a writ of mandamus against Judge Kelley.

     In light of our holding that mandamus does not lie, we need

not address the issues raised in assignments of error 1 and 5


                                 14
regarding whether Kelley's procedural due process rights were

violated in the circuit court or whether the circuit court erred

in imposing a temporal requirement of twenty-one days in the

writ of mandamus.

                         D. Necessary Parties

        Although Nobles may be indirectly affected by the outcome

of this appeal, he is not a necessary party to the appeal.       This

Court has previously ruled on the merits of petitions of

mandamus and prohibition where the underlying case was criminal

in nature and the defendant in the underlying case was not made

a party.    See, e.g., In re Commonwealth, 278 Va. 1, 677 S.E.2d

236 (2009); Moreau v. Fuller, 276 Va. 127, 661 S.E.2d 841

(2008); In re Horan, 271 Va. 258, 634 S.E.2d 675 (2006).

        A mandamus proceeding is properly directed against the

person or body who may be compelled to perform a ministerial

duty.    See Moreau, 276 Va. at 135, 661 S.E.2d at 845-46.

Because a defendant in an underlying case would have no right to

prevent a judge from performing a ministerial act, the

defendant's presence in cases adjudicating writs of mandamus or

prohibition is not required.

                            III. Conclusion

        We hold that the circuit court did not err in its

determination that Stamos had standing to file the petition for

a writ of mandamus.    However, we hold that the circuit court


                                  15
erred in issuing a writ of mandamus ordering Judge Kelley to

sentence Nobles on the charge of DWI.

     Accordingly, we will reverse the order of the circuit court

and dismiss the petition for a writ of mandamus.

                                   Reversed and petition dismissed.



JUSTICE McCLANAHAN, dissenting.

     Simply dismissing the constitutional doctrine of separation

of powers, the majority concludes Judge Kelley possessed

statutory authority to exercise acts within the inherent power

of the executive branch.   Under the majority's rationale, then,

the separation of powers doctrine has no application to lower

courts because the Constitution of Virginia confers power upon

the General Assembly to determine the jurisdiction of the lower

courts.   Yet this proposition runs counter to fundamental

constitutional principles that guide our three separate branches

of government and ignores the distinction between judicial power

and jurisdiction.

     The majority's analysis stems from its misconception that

the General Assembly, rather than the Constitution of Virginia,

vests the lower courts with their judicial power.   Article VI,

Section 1 provides that "[t]he judicial power of the

Commonwealth shall be vested in a Supreme Court and in such

other courts of original or appellate jurisdiction subordinate


                                  16
to the Supreme Court as the General Assembly may from time to

time establish."   Although the General Assembly is given "the

power to determine the original and appellate jurisdiction of

the courts of the Commonwealth," the concepts of judicial power

and jurisdiction are not the same.    Va. Const. art. VI, § 1.

"The power under the constitution [is] judicial; the mode of

exerting it [is] prescribed by law in regulating the

jurisdiction.    Clothed by the constitution with all judicial

power, vested by law with the jurisdiction to exercise it, the

obligation upon the Judges to perform the duties, is complete."

Sharpe v. Robertson, 46 Va. (5 Gratt.) 518, 633 (1849).     In

other words, the judicial power of the lower courts is not

"entirely prescribed by statute."     Rather, the Constitution of

Virginia vests judicial power in the courts; the General

Assembly, however, is only empowered to determine the

jurisdiction of the courts, i.e., the mode of exercising that

judicial power.

     The controlling issue in this case is not whether Judge

Kelley exceeded his jurisdiction or any statutory authority he

had to act in the underlying criminal proceedings, but whether

he exceeded his constitutional power in refusing to enter

judgment on the offense charged by the Commonwealth and, sua

sponte, charging a new offense of an entirely different nature

and character.    The General Assembly cannot confer executive


                                 17
power upon the courts by a grant of statutory authority.    See In

re Phillips, 265 Va. 81, 86, 574 S.E.2d 270, 273 (2003) ("The

General Assembly's power under Article VI, § 1 [of the

Constitution of Virginia] to enact legislation fixing the

original jurisdiction of circuit courts is subject to the

separation of powers mandate of Article III, § 1.")

     In our system of government all power and authority
     are derived from the people. They have seen fit by
     organic law to distribute the powers of government
     among three great co-ordinate departments – the
     executive, the legislative, and the judicial. The
     Constitution of the State, which is the law to all,
     declares, in the seventh section of the first article,
     that "the legislative, executive, and judicial powers
     should be separate and distinct." This is a quotation
     from the Bill of Rights, an instrument which should
     never be mentioned save with the reverence due to the
     great charters of our liberties. Of such importance
     is this principle deemed that it is repeated, and
     constitutes a distinct article, which declares that
     "the legislative, executive, and judiciary departments
     shall be separate and distinct, so that neither
     exercise the powers properly belonging to either of
     the others; nor shall any person exercise the power of
     more than one of them at the same time, except as
     hereinafter provided."

Carter v. Commonwealth, 96 Va. 791, 812, 32 S.E. 780, 784

(1899) (quoting former Va. Const. art. II (1870)).    The

separation of powers doctrine, currently embodied in

Article I, Section 5, and Article III, Section 1, is no

less important today and applies to all branches of the

government including the lower courts within our judicial

branch.



                               18
     The record establishes that Judge Kelley declined, over the

Commonwealth's objection, to render judgment on the charge for

driving while intoxicated.   Instead, Judge Kelley sua sponte

entered a judgment of guilty on a charge of reckless driving – a

charge never made by the commonwealth attorney and a charge that

is not a lesser included offense of driving while intoxicated.

See Spickard v. City of Lynchburg, 174 Va. 502, 505-06, 6 S.E.2d

610, 611-12 (1940) (court properly refused instruction on

reckless driving as lesser-included offense since crime of

reckless driving and that of driving while intoxicated are

distinct offenses established by different evidence).   Thus,

Nobles could not be convicted by Judge Kelley of the offense of

reckless driving.   See, e.g., Commonwealth v. Dalton, 259 Va.

249, 255, 524 S.E.2d 860, 863 (2000) ("[B]efore a defendant can

be tried and convicted of [an offense], he must be charged with

that offense.").

     Commonwealth's Attorneys, not courts, are vested with the

discretion to charge under applicable criminal statutes.    Thus,

Judge Kelley could not try and convict Nobles of the reckless

driving offense.

     "[I]t is well established that the choice of
     offenses for which a criminal defendant will be
     charged is within the discretion of the
     Commonwealth's Attorney." Kauffmann v.
     Commonwealth, 8 Va. App. 400, 410, 382 S.E.2d 279,
     284 (1989). Indeed, "the institution of criminal
     charges, as well as their order and timing, are


                                19
     matters of prosecutorial discretion." Bradshaw v.
     Commonwealth, 228 Va. 484, 492, 323 S.E.2d 567, 572
     (1984).

Barrett v. Commonwealth, 268 Va. 170, 178, 597 S.E.2d 104, 107-

08 (2004) (quoting Barrett v. Commonwealth, 41 Va. App. 377,

391, 585 S.E.2d 355, 362 (2003)).    " 'A prosecutor has the

discretion to decide under which of several applicable statutes

the charges shall be instituted.' "    In re Horan, 271 Va. 258,

264, 634 S.E.2d 675, 679 (2006) (quoting Hensley v. City of

Norfolk, 216 Va. 369, 373, 218 S.E.2d 735, 739 (1975)).     The

"'conduct of a prosecution on behalf of the people by the

prosecutor is an executive act' " and " 'prosecutorial

discretion is an inherent executive power.' "    Id. at 263-64,

634 S.E.2d at 679 (quoting Genesee Prosecutor v. Genesee

Circuit Court, 194 N.W.2d 693, 698 (Mich. 1972) and Polikov v.

Neth, 699 N.W.2d 802, 808 (Neb. 2005)).

     The legislative, executive, and judicial branches of

government "shall be separate and distinct" and no one branch

can "exercise the powers properly belonging to the others."

Va. Const. art. III, § 1.   We have observed the importance of

recognizing the "roles that are uniquely allocated to the

[three branches of government]" in determining "what is within

the inherent authority of the judiciary and what may be beyond

its boundaries."   Moreau v. Fuller, 276 Va. 127, 136-37, 661

S.E.2d 841, 846 (2008).   When a "defendant has been duly


                                20
indicted for an offense found to be within [a] statute, and the

proper authorities seek to proceed with the prosecution, the

court cannot refuse to try the case in the constitutional

method because it desires to let the defendant go free."

Sorrells v. United States, 287 U.S. 435, 450 (1932).    Doing so

"is inconsistent with the Constitution, since its exercise in

the very nature of things amounts to a refusal by the judicial

power to perform a duty resting upon it and, as a consequence

thereof, to an interference with both the legislative and

executive authority as fixed by the Constitution."     Ex parte

United States, 242 U.S. 27, 51-52 (1916).

     The Commonwealth charged Nobles with driving while

intoxicated in violation of Code § 18.2-266 and not reckless

driving.   It did not seek to amend or reduce the charge for

driving while intoxicated.   Judge Kelley's refusal to enter

judgment on the charge of driving while intoxicated and

substitution, sua sponte, of a charge for reckless driving and

entry of judgment thereon was without constitutional authority.

It infringed upon the executive power properly belonging to the

Commonwealth's Attorney to decide which charges to institute

against Nobles. 1


     1
       Code § 16.1-129.2 governs the "[p]rocedure" to be followed
by the trial court "when [a] warrant [is] defective" and permits
the trial court to amend the form of the warrant or issue a new
warrant under specified conditions when the warrant is defective

                                21
     Article VI, § 1 of the Constitution of Virginia confers

"judicial power" upon the courts, and Article III, § 1 prohibits

the exercise of executive power by the courts.   Where, as here,

a trial court has exceeded the scope of its constitutional

authority by exercising "power[] [that] properly belong[s]" to

the executive department, we need look no further than the

Constitution of Virginia to conclude its exercise of such power

is of no effect.   Lacking the power to institute the charge of

reckless driving and enter judgment thereon, Judge Kelley's

order of August 2, 2011, finding Nobles guilty of reckless

driving and imposing a fine of $250 was "void ab initio because

'the character of the judgment was not such as [Judge Kelley]

had the power to render.' "   Rawls v. Commonwealth, 278 Va. 213,


in form. This statute has no application to this case since
Judge Kelley did not amend or issue a new warrant to correct a
warrant that was defective in form. In fact, there is no claim
advanced here that the warrant was defective in form or that an
amended or new warrant was issued for this or any other reason.
Furthermore, this statute does not even purport to confer
special jurisdiction or power upon trial courts to choose the
offense for which a criminal defendant will be charged – the
statute only delineates the procedure governing defective
warrants. A statutory construction that suggests Code § 16.1-
129.2 granted power to Judge Kelley to refuse to enter judgment
on the offense charged in the warrant and substitute an offense
of a different nature and character violates the separation of
powers doctrine. See In re Phillips, 265 Va. at 86, 574 S.E.2d
at 273 ("The General Assembly's power under Article VI, § 1 [of
the Constitution of Virginia] to enact legislation fixing the
original jurisdiction of circuit courts is subject to the
separation of powers mandate of Article III, § 1."). Thus, the
majority's strained construction of Code § 16.1-129.2 only begs
the question of whether Judge Kelley had the constitutional
authority, in the first place, to exercise executive power.

                                22
221, 683 S.E.2d 544, 549 (2009) (quoting Anthony v. Kasey, 83

Va. 338, 340, 5 S.E. 176, 177 (1887)); accord Evans v. Smyth-

Wythe Airport Comm'n, 255 Va. 69, 73, 495 S.E.2d 825, 828

(1998).   An order that is void ab initio is "a complete nullity"

and therefore, has no force and effect.     Singh v. Mooney, 261

Va. 48, 52, 541 S.E.2d 549, 551 (2001). 2

     Having found that Judge Kelley did not have the

constitutional power to refuse disposition of the charge of

driving while intoxicated and to institute the charge of

reckless driving, I would hold that Stamos is entitled to a writ

of mandamus compelling Judge Kelley to take action in the

underlying prosecution of Nobles. 3   "The office of the writ of

mandamus is to compel corporations, inferior courts and officers

to perform some particular duty incumbent upon them, and which

is imperative in its nature."   Page v. Clopton, 71 Va. (30


     2
       The majority distinguishes cases in which the court orders
were void ab initio because the courts exceeded the scope of
power conferred upon them by the General Assembly. See Rawls,
278 Va. at 221, 683 S.E.2d at 549; Evans, 255 Va. at 73-74, 495
S.E.2d at 827-28; Burrell v. Commonwealth, 283 Va. 474, 480-81,
722 S.E.2d 272, 275 (2012). Thus, under the majority's
rationale, while the order of a court exceeding the scope of its
statutory authority may be void ab initio, the order of a court
exceeding its constitutional power is mere error unless the
General Assembly has enacted legislation reiterating this scope
of power.
     3
       Because I would hold that Judge Kelley's order is void ab
initio, I would further hold that the charge of driving while
intoxicated is still pending and Judge Kelley has not lost
subject matter jurisdiction over the underlying criminal
proceedings.

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Gratt.) 415, 417 (1878).   With regard to inferior courts in

particular, the remedy of 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.

Id. at 418.

     When the action of a court is "a simple refusal to
     hear and decide the case; and this [C]ourt having
     held that no appeal lies from such refusal, it is
     exactly the case to which the highly remedial writ
     of mandamus is most frequently applied, in order to
     prevent a defect or failure of justice."

In re Horan, 271 Va. at 260, 634 S.E.2d at 677 (quoting Cowan v.

Fulton, 64 Va. (23 Gratt.) 579, 584 (1873)).   See, e.g., Page,

71 Va. (30 Gratt.) at 428 ("If a judge . . . refuses to sign a

proper bill, or to proceed to settle the matter of a bill

objected to, he may, in either case, be compelled by mandamus to

act" (emphasis removed)); Kent, Pain & Co. v. Dickinson, 66 Va.

(25 Gratt.) 817, 823 (1875) ("It is well settled that

applications for a mandamus to a subordinate court are warranted

by the principles and usages of law in cases where the

subordinate court having jurisdiction of a case refuses to hear

and decide the controversy.").




                                 24
     Applying these principles, therefore, Stamos was entitled

to a writ of mandamus compelling Judge Kelley to enter judgment

on the charge of driving while intoxicated.   Although Nobles

entered a guilty plea to that charge as noted by Judge Kelley on

the warrant, Judge Kelley did not enter judgment on that plea as

he was required to do.   See Code § 19.2-258 ("In all cases of a

misdemeanor upon a plea of guilty, tendered in person by the

accused or his counsel, the court shall hear and determine the

case without the intervention of a jury.").   Judge Kelley's

refusal to adjudicate the case undermined the "roles that are

uniquely allocated to the [three branches of government]."

Moreau, 276 Va. at 136, 661 S.E.2d at 846.    See Ex parte United

States, 242 U.S. at 42 ("[T]he possession by the judicial

department of power to permanently refuse to enforce a law would

result in the destruction of the conceded powers of the other

departments and hence leave no law to be enforced.").

     Since there had been no disposition on the charge of

driving while intoxicated when the circuit court entered its

order, however, I would remand this case and instruct the

circuit court to issue a writ of mandamus directing Judge Kelley

to rule upon the charge of driving while intoxicated in

violation of Code § 18.2-266, and to impose sentencing as

required by law.




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