section 8.01-428 correct a clerical error in Virginia

2021Generally, a clerical error under Code § 8.01-428(B) can be described as a “scrivener’s” error or “similar errors in the record, which are demonstrably contradicted by all other documents,” and cause the record to fail to “speak the truth.” Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 283 (2002).

2012In analyzing whether Code § 8.01-428(B) applied, this Court explained that Code § 8.01-428(B) only applies to clerical mistakes, and that a party's failure to follow a Rule of Court, " does not constitute a clerical error contemplated by Code § 8.01-428(B). " Id. at 283, 568 S.E.2d at 673 (emphasis added).

2020See Minor, 66 Va. App. at 741-42 (holding that an order entered to correct a clerical error pursuant to Code § 8.01-428 is deemed to have been entered as of the date of the original order because correcting the error does “not vest [a circuit] court with jurisdiction to do anything else regarding the case”). - 14 - Cooks largely conceded that they had not raised one, noting that the thrust of their initial challenge was that the circuit court had “misapplied” the adoption statutes.9 Such an argument goes to whether the circuit court committed error in granting the adoption in August 2017, not

2017See Minor, 66 Va. App. at 740-41 , 791 S.E.2d at 763 .

2015Zhou v. Zhou, 38 Va. App. 126, 134-35 (2002) (referring to School Bd. of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550,555 (1989) (erroneous information that final order had not been entered conveyed over the telephone by an employee of the Clerk’s Office to counsel is not a clerical error under Va. Code § 8.01-428(B)).

2002See School Bd. of Lynchburg, 237 Va. 550 , 379 S.E.2d 319 (erroneous information that final order had not been entered conveyed over the telephone by an employee of the Clerk’s Office to counsel is not a clerical error under Code § 8.01-428(B)); see generally Hickson v. Hickson, 34 Va.App. 246 , 540 S.E.2d 508 (2001).

2024Accordingly, we remand the case to correct the scrivener’s error under Code § 8.01-428(B). -4- ANALYSIS “The ‘ends of justice’ exception to Rule 5A:18 is ‘narrow and is to be used sparingly.’” Melick v. Commonwealth, 69 Va. App. 122, 146 (2018) (quoting Pearce v. Commonwealth, 53 Va. App. 113, 123 (2008)).

2024Whether to apply the ends of justice exception involves two questions: “(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends of justice provision would result in a grave injustice.” Commonwealth v. Bass, 292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)).

2024Accordingly, we remand the case to correct the scrivener’s error under Code § 8.01-428(B). -4- ANALYSIS “The ‘ends of justice’ exception to Rule 5A:18 is ‘narrow and is to be used sparingly.’” Melick v. Commonwealth, 69 Va. App. 122, 146 (2018) (quoting Pearce v. Commonwealth, 53 Va. App. 113, 123 (2008)).

2024Clerical Errors Correctible on Remand Based on the record, as well as the complexity of this multi-count and multi-party case, this Court finds that the above anomalies in the August 24 final order are clerical errors subject to correction under Code § 8.01-428(B).13 “[I]t is well settled law in Virginia that a ‘court speaks through its orders and those orders are presumed to accurately reflect what transpired.’” Rubino v. Rubino, 64 Va. App. 256, 265 (2015) (quoting McBride v. Commonwealth, 24 Va. App. 30, 35 (1997)).

2024Whether to apply the ends of justice exception involves two questions: “(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends of justice provision would result in a grave injustice.” Commonwealth v. Bass, 292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)).

2024Clerical Errors Correctible on Remand Based on the record, as well as the complexity of this multi-count and multi-party case, this Court finds that the above anomalies in the August 24 final order are clerical errors subject to correction under Code § 8.01-428(B).13 “[I]t is well settled law in Virginia that a ‘court speaks through its orders and those orders are presumed to accurately reflect what transpired.’” Rubino v. Rubino, 64 Va. App. 256, 265 (2015) (quoting McBride v. Commonwealth, 24 Va. App. 30, 35 (1997)).

2023See Nelson v. Commonwealth, 12 Va. App. 835, 839-40 (1991) (holding that a misstatement on the record by the trial court regarding the length of incarceration a defendant was ordered to serve was a clerical mistake correctable under Code § 8.01-428(B)).

2020As the Supreme Court has explained, “[t]he validity of a judgment based upon a challenge to the application of a statute raises a question of trial error, and not a question of jurisdiction.” Parrish v. Jessee, 250 Va. 514, 521 (1995) (citing Pflaster v. Town of Berryville, 157 Va. 859, 864 (1931)); see also Hicks ex rel.

2020As the Supreme Court has explained, “[t]he validity of a judgment based upon a challenge to the application of a statute raises a question of trial error, and not a question of jurisdiction.” Parrish v. Jessee, 250 Va. 514, 521 (1995) (citing Pflaster v. Town of Berryville, 157 Va. 859, 864 (1931)); see also Hicks ex rel.

2017A. THE EVIDENCE WAS SUFFICIENT TO ESTABLISH THAT BOYKINS INITIATED THE GUNFIGHT AND SHOT THE VICTIM When considering the sufficiency of the evidence on appeal, we “presume the judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99 , 570 S.E.2d 875, 876-77 (2002); see also McGee v. Commonwealth, 25 Va. App. 193, 197-98 , 487 S.E.2d 259, 261 (1997) (en banc).

2017A. THE EVIDENCE WAS SUFFICIENT TO ESTABLISH THAT BOYKINS INITIATED THE GUNFIGHT AND SHOT THE VICTIM When considering the sufficiency of the evidence on appeal, we “presume the judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99 , 570 S.E.2d 875, 876-77 (2002); see also McGee v. Commonwealth, 25 Va. App. 193, 197-98 , 487 S.E.2d 259, 261 (1997) (en banc).

2017A. THE EVIDENCE WAS SUFFICIENT TO ESTABLISH THAT BOYKINS INITIATED THE GUNFIGHT AND SHOT THE VICTIM When considering the sufficiency of the evidence on appeal, we “presume the judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99 , 570 S.E.2d 875, 876-77 (2002); see also McGee v. Commonwealth, 25 Va. App. 193, 197-98 , 487 S.E.2d 259, 261 (1997) (en banc).

2017A. THE EVIDENCE WAS SUFFICIENT TO ESTABLISH THAT BOYKINS INITIATED THE GUNFIGHT AND SHOT THE VICTIM When considering the sufficiency of the evidence on appeal, we “presume the judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99 , 570 S.E.2d 875, 876-77 (2002); see also McGee v. Commonwealth, 25 Va. App. 193, 197-98 , 487 S.E.2d 259, 261 (1997) (en banc).

2016See Dorn, 222 Va. at 291 , 279 S.E.2d at 394 (recognizing that a “mutually unintended drafting error” could be corrected under the clerical error provision of Code § 8.01-428(B)).

2016See Dorn, 222 Va. at 291 , 279 S.E.2d at 394 (recognizing that a “mutually unintended drafting error” could be corrected under the clerical error provision of Code § 8.01-428(B)).

2015“Rather, a filing error committed by the Clerk’s Office, which affects notice to the parties and their right to appeal, comes directly within the purview of Va. Code § 8.01-428(C).” Zhou, 38 Va. App. at 135 .

2015Zhou v. Zhou, 38 Va. App. 126, 134-35 (2002) (referring to School Bd. of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550,555 (1989) (erroneous information that final order had not been entered conveyed over the telephone by an employee of the Clerk’s Office to counsel is not a clerical error under Va. Code § 8.01-428(B)).

2005See, e.g., Davis v. Mullins, 251 Va. 141 , 149, 466 S.E.2d 90 , 94 (1996) (A court's authority to correct a clerical error under Code § 8.01-428(B) should be narrowly construed and applied.).

2005See, e.g., Davis v. Mullins, 251 Va. 141 , 149, 466 S.E.2d 90 , 94 (1996) (A court's authority to correct a clerical error under Code § 8.01-428(B) should be narrowly construed and applied.).

2002See School Bd. of Lynchburg, 237 Va. 550 , 379 S.E.2d 319 (erroneous information that final order had not been entered conveyed over the telephone by an employee of the Clerk’s Office to counsel is not a clerical error under Code § 8.01-428(B)); see generally Hickson v. Hickson, 34 Va.App. 246 , 540 S.E.2d 508 (2001).

2002See School Bd. of Lynchburg, 237 Va. 550 , 379 S.E.2d 319 (erroneous information that final order had not been entered conveyed over the telephone by an employee of the Clerk’s Office to counsel is not a clerical error under Code § 8.01-428(B)); see generally Hickson v. Hickson, 34 Va.App. 246 , 540 S.E.2d 508 (2001).