                       COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia


DAYOMIC JACKIE SMITH

v.   Record No. 0220-99-2

COMMONWEALTH OF VIRGINIA                       OPINION BY
                                          JUDGE LARRY G. ELDER
DAYOMIC JACKIE SMITH                          JULY 11, 2000

v.   Record No. 1341-99-2

COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    William R. Shelton, Judge

          Amy M. Curtis (John A. Rockecharlie; Bowen,
          Bryant, Champlin & Carr, on brief), for
          appellant.

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


     Dayomic Jackie Smith (appellant) appeals from his jury

trial convictions for two counts of attempted rape and one count

each of rape and object sexual penetration.   On appeal, he

contends the trial court erroneously (1) overruled his objection

to the Commonwealth's repeated references to facts not in

evidence and in refusing his request for a curative instruction

regarding same; (2) concluded the evidence was sufficient to

support his convictions; and (3) denied his motion for a new

trial based on after-discovered evidence.   The Commonwealth
contends that appellant's new trial motion was jurisdictionally

barred because it was filed more than twenty-one days after

entry of the final sentencing order and that the record is

otherwise inadequate to permit appellate review because

appellant failed timely to file the transcripts of the

proceedings in the trial court.    We dismiss the appeal on issues

(1) and (2) because we hold the transcripts were not timely

filed and were indispensable to the appeal.    We also dismiss the

appeal of issue (3), based on the denial of appellant's new

trial motion, because the motion was untimely and the trial

court lacked jurisdiction to consider it.     Therefore, we dismiss

the appeals in their entirety, allowing the convictions to

stand.

                                  I.

                         PROCEDURAL HISTORY

     Appellant was convicted of two counts of attempted rape and

one count each of rape and object sexual penetration in a jury

trial on July 9, 1998.   On January 25, 1999, the trial court

sentenced appellant to serve a total of sixteen years on all

four counts.   On January 26, 1999, appellant represented that

"final judgment was entered on January 25, 1999," and he filed

his notice of appeal of that judgment to the Court of Appeals.

At that time, appellant's sentence had been orally pronounced,

but no final order had been entered.



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     On February 16, 1999, appellant moved the trial court to

modify his sentence and requested a hearing.   The court set the

motion for hearing on April 29, 1999.   On February 24, 1999, the

trial court granted appellant's "motion to suspend execution of

sentence."

     The record reflects no further proceedings or filings until

March 15, 1999.   On that date, the trial court entered a

"Sentencing Order" based on a "Hearing Date" of January 25,

1999, and sentenced appellant to serve a total of sixteen years

in accordance with the jury's verdict of July 9, 1998.   Although

the order reflected a hearing date of January 25, 1999, the

order was dated March 15, 1999, and did not expressly purport to

be entered nunc pro tunc.   The March 15 order made no mention of

appellant's pending motion to modify the sentence pronounced at

the hearing of January 25, 1999.   The order contained no

endorsements, no indication that it was seen by counsel for

either party and no direction to the clerk to mail a copy to

either party.   Also on March 15, the court entered orders

setting appellant's appeal bond and denying motions for a lie

detector test and the preparation of the trial transcripts.    The

trial court entered no other orders in the twenty-one days after

March 15, 1999, and never entered any order purporting to

vacate, modify or suspend execution of the sentence imposed

March 15, 1999.



                               - 3 -
     On March 31, 1999, appellant moved the court to allow him

to substitute counsel, representing that he had retained counsel

to represent him.   Retained counsel subsequently filed a motion

for a new trial, alleging that one of the victims recanted her

testimony after trial.   The April 29, 1999 hearing date for the

motion to modify was continued to June 7, 1999.   On that date,

the trial court heard and denied appellant's motion for a new

trial.   At the conclusion of that hearing, counsel for appellant

indicated that he wished to withdraw the motion for modification

of sentence previously filed by appellant's court-appointed

counsel.   In withdrawing that motion, retained counsel indicated

his belief that the trial court had "entered the final order

. . . imposing sentence" in "January of . . . '99" and had

subsequently entered an order "suspend[ing] the proceeding"

based on appellant's motion for modification.   Appellant noted

his intent to appeal and asked the trial court to rescind the

order of suspension to permit him to do so and to start "the

clock . . . tick[ing] again on the appeal."

     On June 14, 1999, appellant's retained counsel filed

appellant's second notice of appeal and indicated therein a

desire to appeal the denial of the new trial motion, as well.

     Subsequently, on July 9, 1999, the trial court entered an

order reflecting its June 7, 1999 denial of the motion for a new

trial and appellant's request to withdraw his motion to modify

the sentence.   The order indicated a hearing date of June 7,

                               - 4 -
1999, but again did not indicate an intent to enter the order

nunc pro tunc to that date.     The order did not repeat the

sentence previously pronounced and did not expressly reinstate

any prior orders or rulings.    The trial court entered an

"Amended" order on July 14, 1999.       Except for the "Amended"

notation, the order appears identical to the one entered July 7,

1999.

        Appellant filed the transcript of the July 9, 1998 trial on

June 15, 1999; filed the transcript of the January 25, 1999

sentencing hearing on June 9, 1999; and filed the transcript of

the June 7, 1999 motions hearing on June 24, 1999.

                                  II.

                               ANALYSIS

        Rule 5A:8 provides that "[t]he transcript of any proceeding

is part of the record when it is filed in the office of the

clerk of the trial court within 60 days after entry of the final

judgment."    We have established a firm policy concerning the

filing of transcripts:    "If . . . the transcript is

indispensable to the determination of the case, then the

requirements for making the transcript a part of the record on

appeal must be strictly adhered to.       This Court has no authority

to make exceptions to the filing requirements set out in the

Rules."     Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d

400, 402 (1986).    In determining the date of entry of a final

order, we note "[a] court speaks only through its orders,"

                                 - 5 -
Cunningham v. Commonwealth, 205 Va. 205, 208, 135 S.E.2d 770,

773 (1964), and "orders speak as of the day they were entered,"

Vick v. Commonwealth, 201 Va. 474, 476, 111 S.E.2d 824, 826

(1960).   We "'presume that the order, as the final pronouncement

on the subject, rather than a transcript that may be flawed by

omissions, accurately reflects what transpired.'"    Kern v.

Commonwealth, 2 Va. App. 84, 88, 341 S.E.2d 397, 400 (1986)

(citation omitted).

     Here, the March 15, 1999 sentencing order constituted a

"final judgment" unless, within twenty-one days of entry, the

court entered an order vacating or suspending the sentencing

order.    See D'Alessandro v. Commonwealth, 15 Va. App. 163, 167,

423 S.E.2d 199, 201 (1992); Rule 1:1.   The March 15 order was

not entered nunc pro tunc to January 25, the date of the court's

ruling from the bench.   Therefore, to the extent that the

court's February 24 order suspending execution of the sentence

had any effect, it was effectively countermanded by the March 15

order.    Moreover, despite its apparent intention to keep the

matter within its jurisdiction, the trial court did not

thereafter, within twenty-one days, enter an order suspending or

vacating the order of March 15, 1999.   Therefore, the March 15,

1999 order constituted a final judgment, and the transcripts

from the trial and sentencing hearing, which were filed more

than sixty days after entry of final judgment, were not properly

made part of the record.

                                - 6 -
     The trial transcript is indispensable to addressing

appellant's arguments that the prosecutor's references during

voir dire and rebuttal argument to facts not in evidence

constituted reversible error and that the evidence was

insufficient as a matter of law to sustain his convictions.      "If

we determine that the transcript is indispensable and is not a

part of the record before us for review, we must dismiss the

appeal on the ground that the record on appeal is insufficient

to fairly and accurately determine the issues presented."

Turner, 2 Va. App. at 99, 341 S.E.2d at 402.    Accordingly, we

dismiss the appeal as to these issues.

     Appellant claims the order of March 15, 1999 was not a

valid final order because he received no notice of its entry.

He fails, however, to cite any rule or case law entitling him to

such notice.   Rule 1:13, applicable to both civil and criminal

proceedings, requires service of orders and decrees on all

counsel who have not endorsed them.    However, "the mere fact

that an order may have been entered without endorsement of [or

direct notice to] counsel of record does not automatically

render it void."   Davis v. Mullins, 251 Va. 141, 147, 466 S.E.2d

90, 94 (1996).   Rule 1:13 specifically provides that compliance

with the rule "may be modified or dispensed with by the court in

its discretion."   The Supreme Court has explained that, under

Rule 1:13, applied "daily in civil and criminal cases,"



                               - 7 -
            [n]otice or endorsement is unnecessary
            [where] counsel are present in court when
            the ruling is made orally and are fully
            aware of the court's decision; preparation
            and entry of an order in standard form is
            all that remains to be done to end the case
            in the trial court. Indeed, prompt
            disposition of the business of the trial
            courts would be jeopardized if Rule 1:13
            were interpreted to require notice or
            endorsement under these circumstances;
            counsel of record have the duty and
            responsibility to examine the public record
            and to determine the date of entry of such
            orders.

Smith v. Stanaway, 242 Va. 286, 289, 410 S.E.2d 610, 612 (1991)

(emphasis added); see id. (distinguishing prior cases construing

Rule 1:13 or its predecessor, in which court took action which

could not have been anticipated by counsel without providing

notice of same); see also Mullins, 251 Va. at 147-48, 466 S.E.2d

at 93 (unanimously applying Stanaway).

     In appellant's case, at the completion of the January 25,

1999 sentencing hearing, preparation of the order memorializing

that hearing was all that remained to be done until appellant

filed first a notice of appeal and then a motion to modify his

sentence.   When appellant's counsel filed the notice of appeal,

he merely assumed without checking the trial court's record that

the court had already entered the final order memorializing its

January 25, 1999 bench ruling.    In fact, the court had not yet

entered that order and did not do so until March 15, 1999.

Under the rationale of Stanaway, appellant's counsel had a duty

to determine the date of entry of that order because he was

                                 - 8 -
present for the court's oral ruling and at the time of the

hearing, entry of the order was all that remained to be done.

Because the issue involves jurisdiction, which cannot be

conferred by agreement, the mere fact that the parties and the

court proceeded as if the court had jurisdiction more than

twenty-one days after March 15, 1999 did not act to confer

jurisdiction on the court.   See Morrison v. Bestler, 239 Va.

166, 169-70, 387 S.E.2d 753, 755 (1990) (parties cannot confer

subject matter jurisdiction on court by agreement or waiver).

In the absence of the actual vacation of the March 15, 1999

order, the court lost jurisdiction, and the period for filing of

transcripts ran from March 15, 1999.     See Mullins, 251 Va. at

150, 466 S.E.2d at 95 ("While the delay in recording [the 1982]

order and the subsequent proceeding before the trial court in

1983 may suggest that the parties and the court treated the 1982

order as having been vacated, nothing in the record suggests

that an order doing so was in fact entered.    Accordingly, the

1983 order was a nullity . . . .").

     We also dismiss appellant's claim that the trial court

erred in denying his new trial motion.    The trial court had no

jurisdiction to consider the motion.   Upon entering the

March 15, 1999 sentencing order, the trial court retained

jurisdiction for a period of twenty-one days, during which time

the court could grant appellant a new trial or enter an order

suspending final judgment.   The trial court took no action until

                               - 9 -
July 9, 1999, when it entered an order denying the motion for a

new trial.

     "In order to toll the time limitation[] of Rule 1:1 . . .

it is not sufficient for the trial judge merely to express a

desire to consider the action or take the issue under

advisement; rather, the trial judge must issue an order

modifying, vacating or suspending the sentence within twenty-one

days of the entry of sentence."     D'Alessandro, 15 Va. App. at

167, 423 S.E.2d at 201.

     Because more than twenty-one days passed without the

court's entering an order suspending final judgment, the trial

court lost jurisdiction to hear the motion for a new trial, and

the July 9 and July 14, 1999 orders were void.     See Rule 1:1.

     For these reasons, we dismiss the appeals, thereby allowing

appellant's convictions to stand.

                                           Record No. 0220-99-2

                                                        Dismissed.

                                           Record No. 1341-99-2

                                                        Dismissed.




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