News & Insights

Case Brief: Jacks v. Commonwealth, Record No. 0833-20-3, 74 Va. App. 783 (May 17, 2022) (en banc)

Case Briefs

February 27, 2023

Facts. On March 16, 2020, the Supreme Court of Virginia issued its first judicial emergency order related to the COVID-19 pandemic, which tolled certain deadlines. The same day, Clifton Jacks was convicted in GDC for driving while intoxicated. Jacks noted his appeal to circuit court outside the Code § 16.1‑132’s ten-day deadline, so the circuit court.

Issue. (1) Whether Code § 16.1‑132’s ten-day deadline is a “case-related deadline” that was tolled by the Supreme Court’s COVID-19 emergency orders. (2) Whether Code § 8.01‑384(A)’s exception to the contemporaneous rule applied.

Holding. (1) Code § 16.1‑132’s ten-day appeal window is a “case-related deadline.” (2) Jacks had no opportunity to make his tolling argument before the dismissal was entered, so he is not barred from making that argument on appeal under Code § 8.01‑384(A).

Notes. (1) Jacks’ prosecution for driving under the influence was a “case,” the statutory ten-day appeal window was a “deadline,” and it “related” to the case because it restricted how long Jacks had to note his appeal. (2) Code § 8.01‑384(A) creates an exception to the contemporaneous objection rule. It states that “if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him…on appeal.” Here, the circuit court dismissed Jacks’ appeal sua sponte, without a hearing, and outside the presence of him or his counsel, giving him no opportunity to object. The plain language of the statute states that a failure to object “shall not thereafter prejudice” a litigant on appeal, so Jacks was not required to file any post-judgment motions to preserve his argument for appeal.

Read the opinion.

Cross-posted on Juli Porto's Virginia Appellate Law Blog.

Related Attorneys