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Granted Appeal Summary

Case

JEREMY WAYNE AKERS v. COMMONWEALTH OF VIRGINIA (Record Number 190094)

From

The Court of Appeals of Virginia.

Counsel

Darrell W. Craft (Law Offices of Darrell Craft, P.C.) for appellant. Nathaniel S. Griffith (Office of the Commonwealth Attorney) for appellee.

Assignments of Error

1. The trial court abused its discretion by saying it had no jurisdiction to act under the \\u201cMotion for Modification of Sentence pursuant to \\xa7 19.2-3032 of the Code of Virginia and New Hearing\\u201d and by default, the Appellant, Mr. Akers, was sentenced to the remaining 2 years 6 months of incarceration in the Virginia Department of Corrections.

2. At oral argument and over the objection of counsel for Mr. Akers and Stokes v. Commonwealth, 61 Va. App. 388, Record No 0090-12-1, (2013), (Court of Appeals of Virginia, Chesapeake), the trial court ruled that it had no jurisdiction to act on the \\u201cMotion for Modification of Sentence pursuant to \\xa719.2-303 of the Code of Virginia and New Hearing\\u201d since the DOC had picked up the Appellant five (5) days prior to the hearing. Mr. Akers, through counsel, believes under these facts, with a court order, the trial court had jurisdiction to act.

3. At oral argument and over the objection of the Appellant, the trial court failed to hold that Appellant's procedure due process rights that were violated with no post deprivation remedy (As raised, but not acted on in Stokes v. Commonwealth, 61 Va. App. 388, Record No 009012-1, (2013), (Court of Appeals of Virginia, Chesapeake). Counsel specifically raised the issue of due process rights being violated and by doing so, argued that there was no post deprivation remedy once Mr. Akers was picked up by the DOC or some state employee. This issue left unresolved in Stokes, and which was given to the trial court to first consider, was clearly preserved for appeal.

4. At oral argument and over the objection of the Appellant, the trial court failed to recognized jurisdiction even though the act of picking up the Appellant by the DOC or some state employee violated the Appellant's rights pursuant to the 5th Amendment of The United States Constitution, the 8th Amendment of The United States Constitution, the 14th Amendment of The United States Constitution and Article I. Bill of Rights, Section 8, Criminal Prosecutions, of the Constitution of Virginia.

http://www.courts.state.va.us/courts/scv/appeals/190094.pdf

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