Dirk Williams v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Felton, Judge Elder and Senior Judge Willis
Argued at Chesapeake, Virginia
DIRK WILLIAMS
MEMORANDUM OPINION* BY
v. 	Record No. 0823-10-1 	CHIEF JUDGE WALTER S. FELTON, JR.
NOVEMBER 29, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Mary Jane Hall, Judge
Andrew G. Wiggin (Andrew G. Wiggin, P.C., on briefs), for
appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Dirk Williams (“appellant”) was convicted by the Circuit Court of the City of Norfolk (“trial
court”) of malicious wounding, in violation of Code § 18.2-51, and use of a firearm in the
commission of malicious wounding, in violation of Code § 18.2-53.1. On appeal, appellant
contends that the trial court erred in ruling that it lacked jurisdiction to consider his motion to vacate
his convictions pursuant to Rule 1:1 and that it erred in finding that his convictions were not
obtained by extrinsic fraud or structural error. For the following reasons, we affirm the judgment of
the trial court.
Because the trial court did not enter an order suspending or vacating the final conviction
orders within the 21-day requirement of Rule 1:1, the trial court lost jurisdiction to vacate and
reconsider appellant’s convictions. See Rule 1:1 (“All final judgments, orders, and decrees . . . shall
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

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remain under the control of the trial court and subject to be modified, vacated, or suspended for
twenty-one days after the date of entry, and no longer.”).
Appellant also contends that the trial court erred in finding no extrinsic fraud or structural
error existed in appellant’s trial that would permit a collateral attack on its final conviction orders.
However, this Court did not acquire jurisdiction to address appellant’s assertion of extrinsic fraud
or structural error because appellant failed to timely file a notice of appeal from the August 13,
2010 order holding that there was no extrinsic fraud or structural error in appellant’s trial for
malicious wounding and use of a firearm in committing that felony. Rule 5A:6 (“[n]o appeal
shall be allowed unless, within 30 days after entry of final judgment or other appealable order or
decree . . . counsel files with the clerk of the trial court a notice of appeal . . .”).
Appellant’s reliance on Code § 8.01-428(D)1 as the basis of his motion to vacate the final
orders of his March 29, 2010 convictions constituted an independent action. Because appellant’s
motion to vacate his March 29, 2010 convictions constituted an independent action, appellant
was required to file a notice of appeal from the August 13, 2010 trial court order holding that no
extrinsic fraud or structural error existed to allow a collateral attack of the final orders.
Rule 5A:6. Accordingly, because appellant failed to note an appeal from the August 13, 2010
order, this Court did not acquire jurisdiction to determine whether the trial court erred in finding
no extrinsic fraud or structural error existed to allow collateral attack of the final orders.
For the foregoing reasons, we affirm the rulings of the trial court.
Affirmed.
1 Code § 8.01-428(D) authorizes circuit courts “to entertain at any time an independent
action to relieve a party from any judgment or proceeding, . . . or to set aside a judgment or
decree for fraud upon the court.”