                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Beales and Senior Judge Annunziata
PUBLISHED


            Argued at Salem, Virginia


            DENNIS HOLLAND
                                                                                  OPINION BY
            v.     Record No. 0965-12-3                                    JUDGE ROBERT J. HUMPHREYS
                                                                                OCTOBER 22, 2013
            COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF HENRY COUNTY
                                            Martin F. Clark, Jr., Judge1

                           Perry H. Harrold for appellant.

                           Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T.
                           Cuccinelli, II, Attorney General, on brief), for appellee.


                   Dennis Holland (“Holland”) appeals the final order of Henry County Circuit Court

            (“circuit court”) ending the suspension on the execution of his sentence. Holland argues (1) that

            the circuit court erred because it no longer had jurisdiction over the case when it ended the

            suspension of his sentence, and (2) that the circuit court erred in failing to grant his motion for

            suspension or modification of his remaining one-and-a-half-year sentence pursuant to Code

            § 19.2-303. For the following reasons, we conclude that the jurisdiction of the circuit court was

            terminated, and its previous order suspending execution of Holland’s sentence voided by

            operation of law, upon Holland’s transfer to the custody of the Virginia Department of

            Corrections (DOC).




                   1
                      As noted infra, while Judge Clark entered the final order to which Holland assigns
            error, the Honorable David Williams entered the order staying execution of Holland’s sentence.
                                       I. BACKGROUND

       On appeal, we “‘consider the evidence and all reasonable inferences fairly deducible

therefrom in the light most favorable to the Commonwealth, the prevailing party at trial.’”

Crawford v. Commonwealth, 281 Va. 84, 97, 704 S.E.2d 107, 115 (2011) (quoting Bass v.

Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000)).

       In 1990, the circuit court convicted Holland of receiving stolen goods and sentenced him

to seven years in the penitentiary. Holland did not immediately serve this sentence because he

was serving time in federal custody. In 1999, Holland petitioned the circuit court for a reduction

of his sentence and the court amended his sentence to seven years in the Virginia DOC with six

years and six months suspended. While Holland was still serving his federal sentence, he

violated the terms of his probation, and on May 9, 2006, the circuit court revoked the suspension

of six years and six months of his sentence and sentenced him to serve one year and six months

of the sentence, with the remaining five years to run concurrently with the federal prison

sentence he was serving at the time.

       On November 2, 2011, the day before his release from federal prison and transfer to the

Virginia DOC, Holland petitioned the circuit court with a motion to suspend or modify his

remaining active state sentence of one year and six months pursuant to Code § 19.2-303. On

November 2, without holding an evidentiary hearing, Judge David Williams entered an order that

stated, “After review of the evidence and consideration of the Motion by the court, it is

ORDERED that said Motion for Suspension or Modification of Sentence Pursuant to Section

19.2-303 . . . is hereby granted; execution of sentence suspended pending full hearing on the

issue.” On November 3, 2011, Holland was released from federal custody and transferred to the

DOC.




                                               -2-
       On November 17, 2011, Holland was transported to the circuit court for a hearing

pursuant to the November 2 order. Judge Martin Clark, Jr. presided over the hearing, and

Holland presented evidence to support his motion. However, Holland argued that the November

2 order suspended his sentence and on November 3 the circuit court lost jurisdiction over the

matter pursuant to Code § 19.2-303 because Holland was transferred to the DOC; thus, Holland

argued, the November 2 order indefinitely suspended his sentence. Judge Clark determined that

the circuit court had jurisdiction to hear the case on November 17 because it acquired jurisdiction

before Holland was transferred to the custody of the DOC and the circuit court retained

jurisdiction to hear the case despite the fact that Holland was then in the custody of the DOC.

       The circuit court orally announced its decision at the conclusion of the November 17

hearing; it decided to vacate the suspension on Holland’s one-year-and-six-month sentence and

make the sentence active. However, the circuit court did not enter an order after the November

17 hearing.2 On December 21, 2011, Holland filed a motion to reconsider the circuit court’s

decision announced from the bench on November 17. The court heard the parties on the motion

on May 1, 2012, and it did not change its ruling. The circuit court’s order entered on May 24,

2012, but dated nunc pro tunc May 1, 2012, stated that,

               the Order of this Court signed on November 2, 2011 assumed
               jurisdiction of this case until its ultimate conclusion and allowed
               the Court to retain such jurisdiction until the final resolution of this
               matter by the Court, notwithstanding the defendant’s transfer to the
               Virginia Department of Corrections; and, in addition, this hearing
               came less than twenty-one days after the said prior order, bringing
               this within the time limits of Rule 1:1 of the Rules of Court; . . . .

The circuit court declined to suspend or modify Holland’s remaining one-year-and-six-month

sentence. The court ordered “that the suspension of execution of the sentence ordered on



       2
          While there is an order in the record dated November 17, 2011, the record also reflects
that it was so dated through inadvertent clerical error.
                                                 -3-
November 2, 2011 is hereby ended and lifted as of November 3, 2011.” The circuit court

remanded Holland to the custody of the DOC to serve his term of incarceration.

                                           II. ANALYSIS

       Holland first asserts that the circuit court “committed reversible error in reversing the

[circuit court’s] ruling of November 2, 2011 which granted [Holland’s] motion to modify, reduce

or suspend his sentence on the 17th day of November 2011 because as of the aforesaid date the

[circuit court] no longer had jurisdiction in this cause of action.”

       Both parties agree that the circuit court was without jurisdiction to modify Holland’s

sentence pursuant to Code § 19.2-303 once he was transferred to the DOC on November 3, 2011.

Therefore, Holland argues, the November 2 order is effective and it suspends the execution of his

sentence even though the circuit court could not go forward with a full hearing as contemplated

in the order. This assignment of error raises issues of the circuit court’s jurisdiction and statutory

interpretation, therefore we review the judgment of the circuit court de novo. Williams v.

Williams, 61 Va. App. 170, 180, 734 S.E.2d 186, 190 (2012).

                                 A. The May 1, 2012 order is void

       Rule 1:1 states that, “All 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.”3 “Thus, once the


       3
          The circuit court stated that the November 17 hearing “came less than twenty-one days
after the said prior order, bringing this within the time limits of Rule 1:1 of the Rules of Court.”
The circuit court was incorrect on this point. First, Rule 1:1 applies to final orders and the
November 2 order was not a final order. See Rogers v. Commonwealth, 29 Va. App. 580,
588-89, 513 S.E.2d 876, 880 (1999) (trial judge’s order was only an interim decision and not a
final order under Rule 1:1 where it conditionally ordered defendant incarcerated until the court
had sufficient information to make a determination concerning alternative sentencing programs).
However, assuming arguendo that the November 2 order was a final order, it was not modified
by the November 17 hearing because the court did not issue a written order until May 1, 2012. A
court speaks only through its written orders. Clephas v. Clephas, 1 Va. App. 209, 211, 336
S.E.2d 897, 899 (1985). “A judgment occurs when a court directs the clerk to enter it on the
                                                  -4-
twenty-one-day time period following the entry of a final sentencing order has run without

modification, vacation, or suspension of that order, the trial court loses jurisdiction to disturb the

order, unless an exception to Rule 1:1 applies.” Patterson v. Commonwealth, 39 Va. App. 610,

614, 575 S.E.2d 583, 585 (2003). “‘Code § 19.2-303 is one of those exceptions.’” Neely v.

Commonwealth, 44 Va. App. 239, 241, 604 S.E.2d 733, 734 (2004) (en banc) (quoting Ziats v.

Commonwealth, 42 Va. App. 133, 138, 590 S.E.2d 117, 120 (2003)). Code § 19.2-303 states in

pertinent part:

                  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. The court may place the
                  person on probation for such time as the court shall determine.

Thus, the circuit court retains jurisdiction to consider modification of a sentence under Code

§ 19.2-303 “so long as [the defendant has] not been transferred to the Department of Corrections

at the time of the hearing.” Harris v. Commonwealth, 57 Va. App. 205, 216, 700 S.E.2d 475,

480 (2010).

       In Stokes v. Commonwealth, 61 Va. App. 388, 736 S.E.2d 330 (2013), the circuit court

ordered that the appellant remain incarcerated in the local jail until further order of the court so

that the court could address his motion seeking modification of his sentence pursuant to Code

§ 19.2-303 after a related appeal in the case was resolved. Id. at 391, 736 S.E.2d at 332. Despite

the circuit court’s order, the appellant was mistakenly transported to the DOC. Id. This Court

affirmed the circuit court’s ruling that it had no jurisdiction to modify the appellant’s sentence.

“When read in conjunction with Rule 1:1, Code § 19.2-303 establishes an absolute event, i.e., a



court’s order book, not when the court rules on a motion or directs counsel to prepare an order.”
Id.
                                               -5-
transfer to the Department of Corrections, when a trial court can no longer modify a sentence.”

Id. at 394, 736 S.E.2d at 333. In writing Code § 19.2-303, the legislature “clearly limits the

authority of the trial court to [modify a sentence]. The statute contains no exceptions.” Id. at

398, 736 S.E.2d 335 (suggesting, for example, that the legislature could have chosen to add a

“manifest injustice” exception or added “lawfully” as a modifier of “transferred,” but it did not

do so). “[T]he operative date in question is when the court makes its ruling, not when the motion

is filed, and not when the matter initially comes before the court.” Id. at 395, 736 S.E.2d at 334.

        The Virginia Supreme Court has concluded that when reading Rule 1:1 with Code

§ 53-272 (the predecessor to Code § 19.2-303), “‘after the expiration of 21 days from the

sentencing order if the prisoner has been committed and delivered to the penitentiary and no

order had been entered within 21 days after final judgment suspending the sentence, the trial

court has no further authority to suspend the sentence.’” Virginia Dept. of Corrections v.

Crowley, 227 Va. 254, 259, 316 S.E.2d 439, 441 (1984) (quoting In Re: Dept. of Corrections,

222 Va. 454, 463, 281 S.E.2d 857, 862 (1981)). Thus, the circuit court in this case erred in

finding that it had retained jurisdiction over Holland’s motion to modify his sentence pursuant to

Code § 19.2-303 after Holland entered the DOC.

        We note that a court “always has jurisdiction to determine its own jurisdiction.” Lewis v.

C.J. Langenfelder & Son Jr., Inc., 266 Va. 513, 516, 587 S.E.2d 697, 699 (2003); see also United

States v. Ruiz, 536 U.S. 622, 628 (2002). Therefore, while a court may not be able to adjudicate

the merits of a case, it can at least properly enter an order saying that it lacks jurisdiction to do

so. However, in this case the circuit court erroneously concluded that it did have jurisdiction to

address the merits of Holland’s motion.

        Because Holland had been transferred to the custody of the DOC, the circuit court lacked

jurisdiction to modify Holland’s sentence and the May 1, 2012 order was void ab initio.

                                                 -6-
                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.

Kelley v. Stamos, 285 Va. 68, 75, 737 S.E.2d 218, 221 (2013). “The distinction between an

action of the court that is void ab initio rather than merely voidable is that the former involves

the underlying authority of a court to act on a matter whereas the latter involves actions taken by

a court which are in error.” Singh v. Mooney, 261 Va. 48, 51, 541 S.E.2d 549, 551 (2001)

(emphasis added). “An 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. “The lack of jurisdiction to enter an order

under any of these circumstances renders the order a complete nullity.” Id. at 52, 541 S.E.2d at

551. In the present case, the circuit court lacked jurisdiction to entertain Holland’s motion for

modification after his transfer to the DOC on November 3, 2011; hence, the May 1, 2012 order is

void ab initio for lack of jurisdiction.

                     B. The November 2 order was voided by operation of law

        We now turn to the effect of the conditional November 2 order, suspending Holland’s

sentence pending a full hearing on the issue of whether his sentence should be modified. If a

circuit court acts pursuant to Rule 1:1, within twenty-one days of the final sentencing order, it is

not necessary to determine whether the court has jurisdiction under Code § 19.2-303. See In Re:

Dept. of Corrections, 222 Va. at 463, 281 S.E.2d at 862. In this case, the final order entered

fixing Holland’s sentence is dated May 9, 2006. Clearly, by November 2, 2011, more than

twenty-one days had passed since the entry of that order and the circuit court had lost jurisdiction

                                                 -7-
to modify Holland’s sentence pursuant to Rule 1:1. Therefore, on November 2, 2011, Code

§ 19.2-303 provided the only possible authority for the circuit court to modify Holland’s

sentence:

                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.

        Our precedent is clear that “Code § 19.2-303 gives trial courts jurisdiction over ‘all

felony convictions provided the defendant has not been sent to the Department of Corrections.’”

Wilson v. Commonwealth, 54 Va. App. 631, 640, 681 S.E.2d 74, 79 (2009) (quoting Esparza v.

Commonwealth, 29 Va. App. 600, 605, 513 S.E.2d 885, 887 (1999)). In Wilson, the appellant

had not been transferred to the DOC, but the trial court found that it did not have jurisdiction to

modify her sentence; this Court found the trial court erred in its determination. Id. The

Commonwealth argued that the trial court did not have jurisdiction to adjudicate Wilson’s

motion under Code § 19.2-303 because her claims were not compatible with the public interest

and did not constitute circumstances in mitigation of the offense. Id. at 640, 681 S.E.2d at 78.

This Court held that “the Commonwealth’s argument, while relevant to the question of whether

the relief sought should be granted, is irrelevant to the question of the trial court’s jurisdiction.”

Id. at 640, 681 S.E.2d at 78-79. This Court held that the trial court erred in holding that it did not

have jurisdiction, however, the error was harmless because Wilson failed to present evidence that

would have justified a modification or suspension of her sentence under Code § 19.2-303. Id. at

640-41, 681 S.E.2d at 79.

        The Wilson Court relied on Esparza, where the Commonwealth similarly argued that the

trial court had no jurisdiction to entertain the motion to modify a sentence pursuant to Code

                                                 -8-
§ 19.2-303 because the modification of a sentence imposed pursuant to a plea agreement was

incompatible with the public interest and the defendant had failed to show circumstances in

mitigation of his offense. Esparza, 29 Va. App. at 607, 513 S.E.2d at 889. This Court held that

the Commonwealth’s arguments were “inapposite to the issue presented,” because the arguments

address “the merits of the motion and not the jurisdictional arguments appellant presents.” Id.

This Court held “that Code § 19.2-303 reflects the legislature’s intent to provide for review and

suspension of sentences imposed for all felony convictions provided the defendant has not been

sent to the Department of Corrections.” Id. at 605, 513 S.E.2d at 887.

       Thus, on November 2 the circuit court had jurisdiction to entertain Holland’s motion and

modify his sentence. Therefore, the circuit court’s order was not void ab initio, as the

Commonwealth argues. However, while a circuit court has jurisdiction to consider suspension

or modification of a sentence for a defendant who has not yet been transferred to the custody of

the DOC, the statute is equally clear that no actual suspension or modification of a sentence may

take place until the other statutory requirements have been met. In addition to permitting the

exercise of jurisdiction over a defendant who has not yet been transferred to the custody of the

DOC, Code § 19.2-303 clearly requires that before a sentence may actually be suspended or

modified, the circuit court also find (1) that suspending or modifying the unserved portion of the

sentence would be compatible with the public interest, and (2) that there are circumstances in

mitigation of the offense. In this case, when the circuit court entered the November 2 order

suspending Holland’s sentence pending a hearing, it had not heard any evidence of the parties to

allow it to determine that there were circumstances in mitigation of the offense and that the

suspension it ordered would be compatible with the public interest. The record is clear that the

circuit court was only presented with a motion prior to suspending Holland’s sentence, and the

record equally reflects that no evidence regarding mitigation of the offense or regarding how the

                                               -9-
public interest would be served by a sentence modification was presented or stipulated to.

Allegations in a motion are allegations only and not evidence. Gilliland v. Singleton, 204 Va.

115, 122, 129 S.E.2d 641, 646 (1963). Without a hearing on the motion or a stipulation by the

parties, the circuit court could not and did not satisfy the two latter requirements of Code

§ 19.2-303 when it suspended execution of the sentence pending a “full hearing on the issue.”

       Holland argues that by issuing the order the circuit court implicitly found that the

suspension of Holland’s sentence was compatible with the public interest and that there were

circumstances in mitigation of the offense. We reject Holland’s argument. The circuit court

would not have made the November 2 order conditional and called for a full hearing on the issue

if it had already “implicitly” made the required findings. Therefore, we hold that the circuit

court erred in suspending Holland’s sentence on November 2, 2011 because it ordered the

suspension without making the findings required by Code § 19.2-303 that a suspension or

modification be compatible with the public interest and that there be circumstances in mitigation

of the offense. Once Holland was transferred to the custody of the DOC, the circuit court lost

jurisdiction to hold any such hearing on his motion. Without the required evidentiary findings by

the circuit court supported by evidence in the record sufficient to satisfy the requirements of

Code § 19.2-303, the November 2 order was voided by operation of law when Holland’s transfer

to the custody of the DOC occurred.

       Having concluded that the circuit court had no jurisdiction to consider Holland’s motion

after his transfer to the DOC on November 3, 2011, we need not reach Holland’s second

assignment of error, that the circuit court abused its discretion in failing to grant his motion for

suspension or modification of his sentence after the November 17 hearing.




                                                - 10 -
                                      III. CONCLUSION

       In summary, for the foregoing reasons, we hold that the May 1, 2012 order was void ab

initio for lack of jurisdiction, and the November 2, 2011 order was voided by operation of law

when Holland was transferred to the custody of the DOC. Thus, the May 9, 2006 sentencing

order stands as the effective order regarding Holland’s sentence. Therefore, we affirm the result,

if not the methodology behind the circuit court’s judgment in reinstating Holland’s original

sentence.

                                                                                        Affirmed.




                                              - 11 -
