                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Senior Judge Coleman ∗
Argued at Richmond, Virginia


DALL REYNOLDS
                                          MEMORANDUM OPINION ∗∗ BY
v.   Record No. 3012-99-2                  JUDGE LARRY G. ELDER
                                             JANUARY 16, 2001
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF ESSEX COUNTY
                    Joseph E. Spruill, Jr., Judge

          David B. Hargett (Morrissey & Hershner, PLC,
          on brief), for appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Mark L. Earley, Attorney
          General, on brief), for appellee.


     Dall Reynolds (appellant) appeals from his four bench trial

convictions for distribution of marijuana.    On appeal, he

contends the trial court erred in failing to permit him to

withdraw his guilty pleas.    The Commonwealth contends this issue

is not properly before us on appeal because appellant did not

obtain a stay of the sentencing order or a ruling on his motion

to withdraw the guilty pleas prior to the expiration of


     ∗
       Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
twenty-one days following entry of the sentencing order.   We

agree with the Commonwealth and dismiss this appeal.

                                I.

                            BACKGROUND

     Appellant was indicted on numerous charges of distributing

marijuana to minors.   He pled guilty to four counts of

distribution in exchange for the Commonwealth's agreement to

dispose of the remaining charges by nolle prosequi.    Following

preparation of a pre-sentence report, the trial court sentenced

appellant to serve fifty years in prison, with forty years

suspended, on each of the four convictions.   On November 22,

1999, the trial court entered the sentencing order.

     On December 8, 1999, appellant filed a motion asking the

trial court to stay or suspend execution of the final order and

attached a draft stay order to his request.   Appellant indicated

that a motion to withdraw his guilty pleas would accompany the

motion to stay and draft order and that all documents would be

transmitted to the court by both facsimile and overnight mail.

Appellant informed the court he sought the stay because the

court would lose jurisdiction over the matter under Rule 1:1 on

December 13, 1999, and appellant had been unable to obtain a

date for a hearing on the motion to withdraw his guilty pleas

until at least December 22, 1999.

     Although appellant's motion to stay and draft order appear

to have been filed on December 8, 1999, while the trial court

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retained jurisdiction over the matter, it is unclear from the

record whether the motion to withdraw the guilty pleas was filed

before or after December 13, 1999, the date on which the trial

court lost jurisdiction to modify, vacate or suspend the

sentencing order. 1   The record on appeal also contains no

indication that the trial court acted on appellant's motion to

stay or motion to withdraw his guilty pleas prior to its loss of

jurisdiction on December 13, 1999.

     On December 20, 1999, appellant noted an appeal to this

Court.

                                 II.

                              ANALYSIS

     Appellant's sole contention before us on appeal is that the

trial court committed reversible error in failing to permit him

to withdraw his guilty pleas.    Pursuant to Rule 1:1, we hold

that appellant's failure to obtain a ruling on this motion

requires dismissal of the appeal.




     1
       The certificate of service attached to the motion to
withdraw indicates that appellant mailed a copy of the motion to
the Commonwealth's attorney on December 8, 1999. It does not
indicate whether the motion was also filed in the trial court on
the same date. The motion contained in the court's file bears
no notation indicating the date of filing. A cover sheet which
was provided by the trial court with the record on appeal but is
not a formal part of the record indicates that the motion was
not filed until February 28, 2000. We assume without deciding,
for purposes of this appeal only, that appellant's motion to
withdraw his guilty pleas was timely filed.


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     Rule 1:1 provides, in relevant part, that "[a]ll final

judgments, order, and decrees . . . 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."

                "Neither the filing of post-trial or
           post-judgment motions, nor the court's
           taking such motions under consideration, nor
           the pendency of such motions on the
           twenty-first day after final judgment is
           sufficient to toll or extend the running of
           the 21-day period prescribed by Rule 1:1
           . . . . The running of the time . . . may
           be interrupted only by the entry, within the
           21-day period after final judgment, of an
           order suspending or vacating the final
           order."

D'Alessandro v. Commonwealth, 15 Va. App. 163, 166-67, 423

S.E.2d 199, 201 (1992) (quoting Sch. Bd. of Lynchburg v. Caudill

Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d 319, 323

(1989) (citations omitted)).

     Thus, assuming without deciding that appellant timely filed

the motion to withdraw his guilty pleas, the mere pendency of

the motions to stay and to withdraw on the twenty-first day

following entry of the sentencing order did nothing to extend

the trial court's jurisdiction.    Further, appellant assigns

error only to the trial court's "failing to permit [him] to

withdraw his pleas of guilty."    Because appellant failed to

obtain a ruling on the merits of the motion to withdraw his

guilty pleas, we have nothing to review on appeal.


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     Appellant contends the trial court's failure to rule on the

motions must be considered tantamount to a denial of the motions

on the merits for purposes of appeal.    Otherwise, he argues, the

circuit court would be "unduly empower[ed] . . . with the option

to not rule on post-trial motions as a means to forever bar the

Defendant from seeking further review of the merits of [such]

post-trial motions."   Because appellant was not without a remedy

when the trial court failed timely to act on his motions, we

disagree.

     As the expiration of the twenty-one day period approached,

it was appellant's duty either to obtain a ruling from the trial

court on one or both motions or to take some action to get the

trial court to act on the motion or motions in a timely fashion.

Although the trial court had discretion in determining how to

rule on appellant's motions, it lacked discretion in deciding

whether to rule on the motions.     The trial court could have

granted the stay and ruled on the merits of the motion to

withdraw the guilty pleas at a later time, granted the motion to

withdraw, or denied the stay based on a determination that the

motion to withdraw lacked merit.    If the trial court had taken

any of these actions in a timely fashion appellant's right to

appeal would have been preserved.    In the absence of such

action, however, the record contains no ruling on the merits of

appellant's motion, and we have nothing to review on appeal.



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For these reasons, we dismiss appellant's appeal.

                                           Appeal dismissed.




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