PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell and Kelsey, JJ., and
Russell, S.J.

ELISEO GRANADO, JR.
                                                                      OPINION BY
v. Record No. 150936                                         JUSTICE S. BERNARD GOODWYN
                                                                    September 8, 2016
COMMONWEALTH OF VIRGINIA


                         FROM THE COURT OF APPEALS OF VIRGINIA

          In this appeal, we consider whether the Court of Appeals erred in denying a petition for

appeal on the basis that there was no timely written statement of facts in lieu of a transcript in the

record.

                                            BACKGROUND

          Eliseo Granado, Jr. (Granado) was convicted of driving a motor vehicle while intoxicated

in violation of Code § 18.2-266 in the Circuit Court of the City of Chesapeake. The circuit court

entered its order on June 24, 2014. On July 18, 2014, Granado filed a notice of appeal to the

Court of Appeals of Virginia.

          On August 18, 2014, the deadline for filing a written statement of facts pursuant to Rule

5A:8(c), Granado filed a proposed written statement of facts in the clerk’s office of the circuit

court. On August 20, 2014, a revised version of the proposed statement of facts signed by

Granado’s counsel and signed “Seen and agreed” by the Commonwealth was submitted to the

circuit court, and it was signed by the circuit court judge on August 22, 2014. The circuit court

clerk’s office did not include the original proposed written statement of facts filed on August 18,

2014, which had not been signed by the circuit court judge, in the contents of the record

submitted to the Court of Appeals.
        On February 6, 2015, the Court of Appeals entered a per curiam order noting that the

statement of facts contained in the record was apparently submitted to the circuit court on August

20, 2014, and entered by the circuit court on August 22, 2014, although pursuant to Rule

5A:8(c), the statement of facts was due to be filed by August 18, 2014. Thus, it concluded that

the statement of facts was not timely filed and was not part of the record to be considered on

appeal. In its order, the Court of Appeals held that because there was no timely filed transcript

or written statement of facts in the record, the record was insufficient to address the assignments

of error raised by Granado, and it denied Granado’s petition for appeal.

        Subsequently, on February 9, 2015, the circuit court clerk’s office transmitted an

amended record, which included the proposed statement of facts filed on August 18, 2014, to the

Court of Appeals. On February 19, 2015, Granado filed a demand for review by a three-judge

panel, notified the Court of Appeals of the new document in the amended record certified by the

circuit court clerk, and argued that the newly included document proved that his statement of

facts was timely filed. He also argued that the circuit court’s failure to send the unsigned August

18, 2014 statement of facts to the Court of Appeals in the originally forwarded record was not a

valid basis for denial.

        On May 14, 2015, a three-judge panel of the Court of Appeals denied Granado’s petition

for appeal for the same reasons as it stated in the February 6, 2015 per curiam order. Granado

appealed to this Court, and we granted the following assignment of error:

        The Court of Appeals of Virginia erred when it denied the Petition for Appeal
        without reaching the merits of the issues raised in the Petition, because the Court
        of Appeals incorrectly ruled that Granado’s Statement of Facts was not part of the
        record.




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                                              ANALYSIS

        Granado argues that the Court of Appeals erred by denying his petition for appeal on the

basis that the record was insufficient for it to evaluate his assignments of error. He claims that

the Court of Appeals based its decision on the erroneous conclusion that no statement of facts

had been timely submitted to the circuit court, and thus, the signed statement of facts in the case

file was not properly part of the record. He also contends that the original version of the

statement of facts filed on August 18, 2014 was properly added to the contents of the case record

by an amendment to the record certified by the circuit court clerk, and it should have been

considered by the three-judge panel as proof that a statement of facts was timely filed within the

period prescribed by Rule 5A:8(c). Further, he notes that the August 20, 2014 version of the

statement of facts was signed by the circuit court judge, certifying compliance with Rule 5A:8.

        The Commonwealth claims that the Court of Appeals properly denied the appeal because

Granado failed to include a timely filed statement of facts in the record, based upon the contents

of the record as originally certified by the clerk of the circuit court. It adds that the clerk of the

circuit court was not allowed to amend the record on appeal to add the proposed written

statement of facts filed with the circuit court on August 18, 2014, without the Court of Appeals

awarding a writ of certiorari that ordered the circuit court to forward the missing document.

        Granado’s appeal concerns the interpretation of the Rules of this Court, so we review the

Court of Appeals’ decision de novo. LaCava v. Commonwealth, 283 Va. 465, 469-70, 722

S.E.2d 838, 840 (2012).

        Rule 5A:7(a)(1) states, in relevant part, that the record on appeal from a trial court should

contain “the documents and exhibits filed or lodged in the office of the clerk of the trial court.”

Rule 5A:7(a)(7) states that the record on appeal should include the transcript of any proceeding



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or “a written statement of facts, testimony, and other incidents of the case when made a part of

the record as provided in Rule 5A:8.”

       Rule 5A:8(c) provides the requirements for a party to enter into the record a written

statement of facts in lieu of a transcript to provide an authoritative account of the events at trial

for the Court of Appeals’ review. It states, in relevant part:

       A written statement of facts, testimony, and other incidents of the case becomes a
       part of the record when:

           (1) within 55 days after entry of judgment a copy of such statement is filed in
               the office of the clerk of the trial court. . . . ; and

           (2) the statement is signed by the trial judge and filed in the office of the clerk
               of the trial court.

       Rule 5A:8(d) provides, in relevant part, “At any time while the record remains in the

office of the clerk of the trial court, the trial judge may, after notice to counsel and hearing,

correct the transcript or written statement.”

       The initial record before the Court of Appeals included the document filed on August 20,

2014, which was signed by the circuit court judge, but not the version of it filed on August 18,

2014, which was not signed by the circuit court judge. After rendering its first denial of

Granado’s petition for appeal, the Court of Appeals received an amended record that contained

the August 18, 2014 version of the statement of facts. The amended record was received before

the three-judge panel proceeding.

       Because the August 18, 2014 version of the statement of facts was filed with the circuit

court clerk, it was properly contained within the record. Rule 5A:7(a)(1) provides that the record

on appeal from a circuit court to the Court of Appeals should contain “the documents and

exhibits filed or lodged in the office of the clerk of the trial court.” The fact that this document

was never signed by the circuit court judge prevents it from being considered as an authoritative

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account of the events at trial in lieu of a transcript, but it does not prevent it from being contained

within the record transmitted by the clerk of court.

       Further, while the Court of Appeals did not award a writ of certiorari pursuant to Code

§ 8.01-675.4 ordering the circuit court to transfer the proposed written statement of facts filed by

Granado on August 18, 2014, no such writ was required because such writs are only necessary

after a petition for appeal has been granted. Code § 8.01-675.4 provides, “The [Court of

Appeals] may, in any case, after reasonable notice to counsel in the appellate court, award a writ

of certiorari to the clerk of the trial court and have brought before it, when part of a record is

omitted, the whole or any part of such record.” In Godfrey v. Commonwealth, 227 Va. 460, 465,

317 S.E.2d 781, 784 (1984), while evaluating the companion statute to Code § 8.01-675.4 that

addresses writs of certiorari in appeals to this Court, we held, “After the record has been

transmitted to this Court pursuant to Rule 5:15 and an appeal has been granted, the record on

appeal cannot be enlarged except by our award of a writ of certiorari under Code § 8.01-673.”

(Emphasis added.) Thus, a writ of certiorari is necessary for this Court to request materials

missing from the record only after a petition for appeal has been granted.

Because the language in Code §§ 8.01-673 and 8.01-675.4 is substantively the same, the

ruling from Godfrey informs the proper interpretation of Code § 8.01-675.4. See, e.g.,

Lahey v. Johnson, 283 Va. 225, 231, 720 S.E.2d 534, 537 (2012) “Because [the two

statutes at issue] clearly address the same subject matter, we construe them together

under the ‘in pari materia’ canon of construction.” (quoting Evans v. Evans, 280 Va. 76,

83 n.2, 695 S.E.2d 173, 176 n.2 (2010)).

       Because Granado’s appeal had not yet been granted, the Court of Appeals was not

required to award a writ of certiorari before it could consider the contents of the amended record



                                                   5
certified by the clerk of the circuit court, which included the proposed written statement of facts

filed on August 18, 2014.

       A trial judge has the power to correct a written statement at any time while it remains in

the office of the clerk after notifying counsel and providing an opportunity for a hearing. Rule

5A:8(d). Thus, as long as a proposed written statement of facts was timely filed and the notice

and hearing requirements are satisfied, this correction power allows a trial court to enter a

revised version of a timely filed statement of facts.

       The August 20, 2014 version of the statement of facts amounted to a request that the

circuit court correct the version filed on August 18, 2014, after it was reviewed and amended to

the satisfaction of the Commonwealth. The amended statement of facts was seen and agreed to

by both parties, so both parties had notice of the proposed change and, because there was no

disagreement with the version signed by the judge, there was no need for a hearing. The circuit

court exercised its power to correct the proposed statements of facts filed on August 18, 2014 by

signing the August 20, 2014 version.

       Therefore, the statement of facts signed by the circuit court judge was timely filed in the

circuit court, complied with the requirements of Rule 5A:8, and was properly part of the record

as an authoritative account of the events that occurred at trial in lieu of a transcript. The Court of

Appeals erred by ruling that there was no such statement of facts in the record for its

consideration.

                                            CONCLUSION

       In summary, for the reasons stated, we will reverse the Court of Appeals’ decision and

remand the case to the Court of Appeals with the direction that it review Granado’s petition for




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appeal considering the statement of facts entered by the circuit court on August 22, 2014 as a

timely and authoritative written statement of facts in lieu of a transcript.

                                                                               Reversed and remanded.




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