Anthony Andre’s Mackey v. Commonwealth of Virginia, an unpublished opinion of the Court of Appeals released on January 26, 2021 deserves a brief mention in this space because it is a classic example of a failure to take not of what is a final order can result in the appellate court being unable to reach the merits of the case. In this instance, the issue is what constitutes the final order in a criminal trial — the sentencing order or a subsequent order entered addressing a motion for reconsideration that was pending at the time the sentencing order was entered.
Experienced attorneys have already guessed that the answer depends on the wording of the sentencing order, or more specifically the absence of wording in that order. The absent words would have indicated that the order was suspended or would not become final until the motion for reconsideration had been dealt with. In the absence of those words, the order was final on its face.
Less experienced, and a few more experienced hands, will now have jumped to the conclusion that this is Rule 1:1 problem, assuming that the circuit court waited to act on the motion for reconsideration until after the 21st day following judgment and that the appeal related to some ruling thereon which was void for want of jurisdiction. This is half right. The judge did enter the order denying the motion for reconsideration outside the 21 days, but the appeal did not relate to that ruling, or at least if it did in any part, that was not the reason the appeal could not be addressed on the merits.
Instead, Mackey’s counsel, assuming that the void order on the reconsideration was the final order, timed his filing of the transcript on that date, not the date of the order. Rule 5A:8. He actually got the transcript filed early by his reckoning, but alas it was not timely when the proper final order date was more than a month prior. But wait, isn’t there a provision for having the Court of Appeals accept untimely transcripts “for good cause shown” and aren’t such motions typically granted? Yes, there is, and yes, they are and probably would be in this case as the transcripts were less than two weeks late and clearly everyone in the trial court thought the matter was still properly before the court at the time the reconsideration was ruled on. The problem is, of course, that Mackey’s counsel did not file such motion.
But wait! Isn’t Mackey still entitled to a delayed appeal where the fault lay with his counsel? Yes, and the Court of Appeals said as much in a parting footnote. So why not just give Mackey his appeal now? Because that’s not the way things are done — the Courts do not reward errant counsel, no matter how reasonable that error might seem (and this, IMHO, was not that reasonable — the rules on finality in criminal cases are well established, hence the Court of Appeals’ decision not to publish this opinion). If Mackey’s counsel knows which side of the bread the butter goes on, he has already contacted a reliable colleague to apply for the delayed appeal and sought the advice of an attorney experienced in Professional Responsibility matters.