                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Annunziata
Argued at Richmond, Virginia


CHARLES MAYLAND LIMBRICK
                                         MEMORANDUM OPINION * BY
v.   Record No. 2568-99-2               JUDGE SAM W. COLEMAN III
                                            DECEMBER 12, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                William H. Ledbetter, Jr., Judge

          Michael R. McCarthy (Jarrell, Hicks, Sasser &
          McCarthy, P.C., on brief), for appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Charles Mayland Limbrick was indicted and tried for

statutory burglary in violation of Code § 18.2-91 and grand

larceny in violation of Code § 18.2-95 for his part in breaking

and entering seventeen manufactured mobile homes.   The mobile

homes were on display and serving as models on a mobile home

sales lot located in Spotsylvania County.   Limbrick stole

appliances and furniture from nine of the homes.    Following a

jury trial, while the jury was deliberating, but before

returning its verdicts, Limbrick pled guilty to single counts of


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
statutory burglary and grand larceny, and the court accepted his

guilty pleas pursuant to the holding in North Carolina v.

Alford, 400 U.S. 25 (1970).   On appeal of the statutory burglary

conviction, Limbrick attempts to raise two issues:   (1) whether

the trial court erred, prior to his pleading guilty, in denying

his motion to strike the evidence as to statutory burglary

because the Commonwealth failed to prove that the mobile homes

were permanently affixed to realty, and (2) whether the trial

court erred, prior to his pleading guilty, in refusing to

instruct the jury that, as to statutory burglary, they must find

the mobile homes were permanently affixed to the realty.

     Because a defendant who has entered an Alford plea may, on

appeal, only challenge the jurisdiction of the trial court,

Perry v. Commonwealth, 33 Va. App. 410, 412-13, 533 S.E.2d 651,

653 (2000), the dispositive issue is whether Limbrick's two

questions presented on appeal raise a jurisdictional issue.   We

find that neither of the two questions raises a jurisdictional

issue, but rather raises questions of alleged trial error.

Because Limbrick waived his right to appeal any claims of trial

error by pleading guilty, we dismiss the appeal and we do not

decide whether the trial judge correctly construed the elemental

requirements of Code § 18.2-91 or correctly instructed the jury

as to the elements of the offense.




                               - 2 -
                        PROCEDURAL BACKGROUND

     At trial, Limbrick pled not guilty to one count of

statutory burglary and one count of grand larceny and elected to

be tried by a jury.    At the close of the Commonwealth's case,

Limbrick moved to strike the evidence as to the burglary charge,

arguing that in order to be convicted of a violation of Code

§ 18.2-91, the Commonwealth must prove that the manufactured

mobile homes were affixed to the realty and the Commonwealth had

failed to prove that fact.   The trial judge denied the motion,

ruling that the 1985 amendment to Code § 18.2-90, by

specifically designating "manufactured home" as a structure

subject to burglary, abolished the requirement that a

manufactured home be affixed to realty in order to constitute a

violation under Code § 18.2-91.   In accordance with that same

ruling, the trial judge denied Limbrick's proffered jury

instruction on statutory burglary that contained a requirement

that the "manufactured home" must be permanently affixed to

realty in order to be the subject of statutory burglary.

     After Limbrick entered his Alford plea, but prior to

sentencing, he filed a motion to set aside the statutory

burglary conviction.   The trial court denied the motion, finding

that Limbrick's plea "was accepted by the Court" and that the

plea barred his "ability to raise this or any non-jurisdictional

issue."   Thereafter, the trial court sentenced Limbrick and

entered the conviction order.

                                - 3 -
                              ANALYSIS

                 Under an Alford plea, a defendant
            maintains innocence while entering a plea of
            guilty because the defendant concludes that
            his interests require entry of a guilty plea
            and the record before the court contains
            strong evidence of actual guilt . . . .
            Guilty pleas must be rooted in fact before
            they may be accepted. Accordingly, courts
            treat Alford pleas as having the same
            preclusive effect as a guilty plea.

Perry, 33 Va. App. at 412, 533 S.E.2d at 652-53 (citations

omitted).   A voluntary and intelligent plea of guilty "is a

waiver of all defenses other than those jurisdictional . . . .

Where a conviction is rendered upon such a plea and the

punishment fixed by law is in fact imposed in a proceeding free

of jurisdictional defect, there is nothing to appeal."      Dowell

v. Commonwealth, 12 Va. App. 1145, 1148, 408 S.E.2d 263, 265

(1991) (internal quotation and citation omitted), aff'd on reh'g

en banc, 14 Va. App. 58, 414 S.E.2d 440 (1992); see also Clauson

v. Commonwealth, 29 Va. App. 282, 294, 511 S.E.2d 449, 455

(1999) (holding that a plea of nolo contendere, like a guilty

plea, constitutes a waiver of the right to appeal all

non-jurisdictional issues).

     Limbrick attempts to frame his claims as raising

jurisdictional issues by asserting that he entered an Alford

plea only after the trial court refused to properly instruct the

jury regarding the applicable law defining the basic elements of

the offense of statutory burglary.      He reasons that his plea was


                                - 4 -
not a knowing and voluntary plea because he entered it only

because the trial court had "misinformed [him] regarding the

law" and the elements of the offense to which he pled guilty.

     "The term 'subject matter jurisdiction' refers to the power

granted to the courts by constitution or statute to hear specified

classes of cases."   Moore v. Commonwealth, 259 Va. 405, 409, 527

S.E.2d 415, 417 (2000) (citation omitted).   There is a

distinction, however, between subject matter jurisdiction and the

authority of a court to exercise that power in a particular case.

See Moore v. Commonwealth, 259 Va. 431, 437, 527 S.E.2d 406, 409

(2000).

          [Subject matter jurisdiction] cannot be
          waived and any judgment rendered without it
          is void ab initio. Moreover, lack of
          subject matter jurisdiction "may be raised
          at any time, in any manner, before any
          court, or by the court itself." In
          contrast, "[a] court's authority to exercise
          its subject matter jurisdiction over a case
          may be restricted by a failure to comply
          with statutory requirements that are
          mandatory in nature and, thus, are
          prerequisite to a court's lawful exercise of
          that jurisdiction."

Id. (citations omitted).

     Code § 17.1-513 provides that the circuit courts "shall

. . . have original jurisdiction of all indictments for felonies

and of presentments, informations and indictments for

misdemeanors."   Here, it is clear that the circuit court had

subject matter jurisdiction over the charged offense, a

violation of Code § 18.2-91.   In this case, we also find that

                               - 5 -
the court had authority to exercise that jurisdiction.

Moreover, we find unavailing any argument that the circuit court

lacked authority to exercise that jurisdiction in the present

case because the elements the Commonwealth was required to prove

did not constitute an offense under the statute.

     Here, Limbrick was charged with a violation of Code

§ 18.2-91, statutory burglary, and he was informed of the

elements the Commonwealth was required to prove in order to

sustain a conviction.   To the extent the trial court may have

erroneously interpreted the statutory elements of the offense,

such an error may provide a basis to appeal, but such an error

does not divest the court of jurisdiction.     See generally

Jimenez v. Commonwealth, 241 Va. 244, 250-51, 402 S.E.2d 678,

680-81 (1991) (holding that the court's failure to inform the

jury of a material element of the offense charged and the

failure of the Commonwealth to produce evidence relating to that

element was reversible error).     See also Campbell v.

Commonwealth, 14 Va. App. 988, 991-95, 421 S.E.2d 652, 654-56

(1992) (en banc) (holding that failure of the trial court to

instruct the jury as to an essential element of the offense was

a trial court error that could be considered on appeal for "good

cause" despite the fact that no contemporaneous objection was

made as required by Rule 5A:18), aff'd in part on other grounds,

246 Va. 174, 431 S.E.2d 648 (1993).



                                 - 6 -
     Limbrick entered an Alford plea as to one count of statutory

burglary in order to be sentenced by the trial judge and to avoid

the possibility that the jury would impose a harsher sentence.

After obtaining the benefit of entering a guilty plea, Limbrick

now seeks to challenge on appeal those trial court rulings and

alleged errors that occurred during the jury trial proceedings

which were superceded by the guilty plea.   "Where a conviction is

rendered upon . . . a [guilty] plea and the punishment fixed by

law is in fact imposed in a proceeding free of jurisdictional

defect, there is nothing to appeal."    Peyton v. King, 210 Va. 194,

196-97, 169 S.E.2d 569, 571 (1969).    Because Limbrick voluntarily

and knowingly entered an Alford plea, he is precluded from

challenging the alleged trial errors.    See generally Allen v.

Commonwealth, 27 Va. App. 726, 732, 501 S.E.2d 441, 444 (1998)

(finding that defendant, who amended his plea during trial after

he testified, does not waive any trial rights, but rather fully

exercises them).   The proper avenue for Limbrick to have

challenged the alleged trial errors would have been to proceed

with trial, obtain verdicts from the jury, and challenge the

alleged errors on appeal.

     Limbrick entered his Alford plea knowingly, voluntarily,

and intelligently.   Before entering his plea, Limbrick was

informed by the trial judge of the elements of the offense under

Code § 18.2-91, as construed by the judge, that the Commonwealth

was required to prove and of the evidence against him.      That

                               - 7 -
became the law of the case.    If the trial court erred by failing

to properly instruct the jury or by erroneously construing the

elements of the offense as defined by Code §§ 18.2-90 and

18.2-91, Limbrick's remedy was to proceed to final judgment and

appeal the trial court's ruling.   By pleading guilty under

Alford, Limbrick waived his right to challenge whether the trial

court erroneously instructed the jury and misinformed him as to

the elements of the offense.   Accordingly, we decline to consider

these non-jurisdictional issues on appeal.

     We, therefore, dismiss the appeal.

                                                  Appeal dismissed.




                                - 8 -
