                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, McCullough and Senior Judge Clements
UNPUBLISHED


              Argued at Chesapeake, Virginia


              MAURICE ANTONIO HYMAN
                                                                            MEMORANDUM OPINION* BY
              v.      Record No. 1807-12-1                                JUDGE JEAN HARRISON CLEMENTS
                                                                                  OCTOBER 15, 2013
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                               Junius P. Fulton, III, Judge

                                David H. Moyer for appellant.

                                Leah A. Darron, Senior Assistant Attorney General (Kenneth T.
                                Cuccinelli, II, Attorney General, on brief), for appellee.


                      Maurice Antonio Hyman (appellant) appeals a 2012 judgment of the trial court entering

              findings of guilt and imposing mandatory sentences on two counts of use of a firearm in the

              commission of a felony that had been under advisement since 2006. On appeal, appellant contends

              (1) the trial court lost jurisdiction over both felony charges when a 2008 order failed to include

              reference to the charges; (2) the 2012 judgment is void because the trial court lacked authority to

              take the cases under advisement in 2006; and (3) the trial court erred in finding it did not have

              authority to continue to take the cases under advisement in 2012. For the reasons that follow, we

              affirm the trial court’s judgment and appellant’s convictions.

                                                         BACKGROUND

                      As the parties are fully conversant with the record in this case, and because this

              memorandum opinion carries no precedential value, this opinion recites only those facts and


                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.

          Appellant was tried, as an adult, for two counts of robbery and two counts of using a firearm

in the commission of those robberies, on July 5, 2005. The trial court found appellant guilty of all

four offenses. On February 13, 2006, the trial court entered an amended sentencing order that

(a) sentenced appellant to twenty years in the penitentiary, all suspended, on one count of robbery,

(b) committed him to the Department of Juvenile Justice as a serious offender for a period of seven

years or until he reached the age of twenty-one on the second robbery count, and (c) denied

appellant’s motion to reconsider the findings of guilt on the firearms charges, but vacated the

findings of guilt on the two firearm offenses, and took those matters under advisement. The

February 2006 order continued the firearms charges until January 25, 2008, for review. On January

25, 2008, the matter was again continued. On November 24, 2008, the trial court entered an order

admitting appellant to parole on the robbery charges, but did not address the firearm charges.

          Subsequently, appellant was convicted of new offenses and appeared before the trial court

for a probation violation hearing. Appellant argued at the hearing that the trial court lost jurisdiction

of the firearm charges by failing to address them in the November 2008 order and, alternatively, that

the trial court should continue to take the firearm offenses under advisement and not enter

judgments of guilt. The trial court rejected both arguments and entered findings of guilt on both

firearm charges and imposed the mandatory sentences by order dated September 27, 2012. This

appeal timely followed.

                         JURISDICTION TO IMPOSE FINDINGS OF GUILT

          Appellant contends the trial court lost jurisdiction to impose findings of guilt on the two

firearm offenses when it failed to reference the charges in the November 2008 order, thus rendering

the September 2012 order void. Appellant cited Walthall v. Commonwealth, 3 Va. App. 674,

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353 S.E.2d 169 (1987), for the proposition that “a court speaks only through its orders” and

“[a]bsent an order finding [one] guilty of a criminal offense, no valid criminal conviction was

obtained.” Id. at 679, 353 S.E.2d at 171. Appellant’s reliance on Walthall is misplaced.

        In Walthall, it was unclear whether the proceedings were criminal or civil in nature in a

child support action. The Court found that at its inception the case was civil and that the trial court

had not entered a finding of criminal guilt. Here, however, the cases were criminal in nature

without question. The record is clear that the trial court took the two offenses under advisement in

an attempt to prevent imposition of the mandatory sentences. The trial court denied appellant’s

motion to reconsider the judgments of guilt, but nevertheless vacated the findings of guilt, thereby

signaling the trial court did not take issue with the sufficiency of the evidence or application of the

law, but rather, as the parties agree, to give appellant some opportunity to avoid the mandatory

sentences.

        After taking the cases under advisement and continuing them, the trial court did not enter a

final order until September 2012. Rule 1:1, depriving a trial court of jurisdiction after twenty-one

days, applies only to matters that have been resolved by final order. Nothing in the November 2008

order, releasing appellant to probation, discharged appellant from his obligation to the trial court on

the firearm charges; the cases were still pending before the court. Because no final order had been

entered, and thus the cases were continued indefinitely, the trial court retained jurisdiction to render

final judgment. Accordingly, the trial court did not lose jurisdiction when it did not reference the

firearm charges in the November 2008 order.

                AUTHORITY TO TAKE CASES UNDER ADVISEMENT IN 2006

        Next, appellant argues the 2012 judgment of conviction and sentence is void because the

trial court did not have the authority to take the firearm cases under advisement in 2006. Appellant

concedes he failed to make this argument to the trial court, but argues the order was void ab initio

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because the trial court lacked subject matter jurisdiction which may be raised at any time. Subject

matter jurisdiction, however, is distinct from the authority to exercise subject matter jurisdiction.

                        The term jurisdiction embraces several concepts including
                subject matter jurisdiction, which is the authority granted through
                constitution or statute to adjudicate a class of cases or controversies
                ....

                        While [other] elements are necessary to enable a court to
                proceed to a valid judgment, there is a significant difference between
                subject matter jurisdiction and the other “jurisdictional” elements.
                Subject matter jurisdiction alone cannot be waived or conferred on
                the court by agreement of the parties. Lucas v. Biller, 204 Va. 309,
                313, 130 S.E.2d 582, 585 (1963). . . .

                        Even more significant, the lack of subject matter jurisdiction
                can be raised at any time in the proceedings, even for the first time
                on appeal by the court sua sponte. Thacker v. Hubbard, 122 Va. 379,
                386, 94 S.E. 929, 930 (1918). In contrast, defects in the other
                jurisdictional elements generally will be considered waived unless
                raised in the pleadings filed with the trial court and properly
                preserved on appeal. Rule 5:25.

Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755-56 (1990). “All the circuit courts of

the Commonwealth ‘have original jurisdiction of all indictments for felonies and of presentments,

informations and indictments for misdemeanors.’” Porter v. Commonwealth, 276 Va. 203, 229,

661 S.E.2d 415, 427 (2008) (quoting Code § 17.1-513). Thus, the trial court had subject matter

jurisdiction to try the firearm charges. Any error with regard to the authority to enter the 2006 order

would be at most voidable and, therefore, waived if not raised to the trial court. Appellant failed to

argue this issue to the trial court and thus Rule 5A:18 bars our review of this assignment of error.

        Alternatively, appellant asks this Court to apply the ends of justice exception. In support of

this plea, appellant relies on his argument that the trial court lost jurisdiction twenty-one days after

the order was entered and that the trial court erroneously stated it had no authority to continue to

take the firearm charges under advisement. These grounds are unrelated to the assignment of error,

which attacks the trial court’s ability to take the cases under advisement in 2006. Further, although

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the trial court did not have authority to ultimately dismiss the cases as an act of leniency, see

Hernandez v. Commonwealth, 281 Va. 222, 707 S.E.2d 273 (2011), and Epps v. Commonwealth

59 Va. App. 71, 717 S.E.2d 151 (2011), it nevertheless had the authority to take the cases under

advisement in 2006 for legitimate purposes until it was ready to render a final disposition.

Appellant has failed to affirmatively show that a miscarriage of justice has occurred. “In order to

avail oneself of the [ends of justice] exception, a defendant must affirmatively show that a

miscarriage of justice has occurred, not that a miscarriage might have occurred.” Redman v.

Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). Accordingly, we will not

further consider this assignment of error.

      AUTHORITY TO CONTINUE TO TAKE CASES UNDER ADVISEMENT IN 2012

        Finally, appellant asserts that the trial court erred by finding it did not have the authority to

continue to take the firearm cases under advisement at the 2012 proceedings. The trial court stated,

                Back in . . . 2006, this Court took two offenses for use of a firearm in
                the commission of a felony, which required mandatory minimum
                incarcerations – three years and five years, respectively, took it [sic]
                under advisement. I made a finding that you were guilty, and then I
                vacated it to give you an opportunity.

                Even if you were here under circumstances in which you had not
                committed these new offenses, the fact remains the court lacks the
                jurisdiction, the authority to do that. There’s case law now which
                indicates, very clearly, the Court can’t do that, so I now have to
                correct that, and unfortunately, it means the mandatory minimum
                must be ordered in this case.

(Emphasis added.)

        “[O]nce a court has entered a judgment of conviction of a crime, the question of the penalty

to be imposed is entirely within the province of the legislature, and the court has no inherent

authority to depart from the range of punishment legislatively prescribed.” Hernandez, 281 Va. at

225, 707 S.E.2d at 275. “Until the court enters a written order finding the defendant guilty of a

crime, the court has the inherent authority to take the matter under advisement or to continue the
                                                   -5-
case for disposition at a later date.” Id. at 226, 707 S.E.2d at 275. However, “there exists no

‘common law power of a Virginia court to acquit a criminal defendant whose guilt has been proven

beyond a reasonable doubt.’” Epps, 59 Va. App. at 77, 717 S.E.2d at 154 (quoting Taylor v.

Commonwealth, 58 Va. App. 435, 447, 710 S.E.2d 518, 524 (2011)). “‘[A] Virginia court cannot

refuse to convict a guilty defendant merely because it questions the category of offense assigned by

the legislature, considers the range of statutory punishment too harsh, or believes certain guilty

offenders undeserving of a criminal conviction.’” Id. (quoting Taylor, 58 Va. App. at 442,

710 S.E.2d at 521). Indeed, the legislature has provided statutory authority in certain criminal

offenses for deferral of disposition, upon satisfying certain conditions, for later dismissal. See Code

§§ 18.2-57.3 (domestic assault and battery); 18.2-251 (illegal drug possession); 19.2-303.2

(misdemeanor property offenses). No such statutory framework exists for use of a firearm in the

commission of a felony, in violation of Code § 18.2-53.1.

        Here, the trial court indicated that its purpose in taking the matters under advisement in 2006

was to give appellant an “opportunity” to have the charges dismissed and avoid the mandatory

sentences. At the 2012 proceedings, the trial court recognized pursuant to the current case law it

had no authority to dismiss the charges. While the trial court could have taken the matter under

advisement for other purposes, not applicable herein, the trial court found no cause to take the cases

under advisement any longer and imposed the judgment of conviction and the mandatory sentences.

The trial court’s statement merely reflects that there was no reason to continue taking the matters

under advisement because it could not afford the “opportunity” it had originally intended. Such was

not error. Accordingly, the trial court did not err by finding it would not continue to take the cases

under advisement.




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                                            CONCLUSION

        The trial court maintained jurisdiction over the two firearm charges from 2006 to 2012, as

no final order had been entered. Further, it was not error for the trial court to decline appellant’s

request to continue to take the cases under advisement. Accordingly, we affirm the 2012 judgment

of conviction and sentence on the two counts of use of a firearm in the commission of felonies.


                                                                                               Affirmed.




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