Written Orders Matter, Busted Orders Can be Fixed, Counting Votes on Appeal Can be Tricky

If you enjoy a little appellate litigation geekery, Watts v. Commonwealth, from the Court of Appeals of Virginia, is a treat of a case. It’s got technical rules governing the difference between a trial court’s oral rulings and its written orders. It’s got good discussion of when courts can amend their orders nunc pro tunc (i.e., after the fact).  It’s got not one, not two, but three opinions from the en banc court that you have to cobble together to figure out who won on which issues. 

In other words, it’s the whole package. Along the way, there are important lessons for practitioners. 

What Happened?

Some of you may have glossed over Watts because it’s a criminal case having to do with probation violations. But there’s lots of good practice advice and appellate process discussion in criminal cases. Watts is one of those.

The issue in Watts is a little technical, but here’s the guts of the issue.  Mr. Watts was on probation for malicious wounding and gun charges. At one of the hearings on his probation, the trial judge orally told Mr. Watts to comply with certain probation rules related to gangs. But that oral ruling, “didn’t find its way into the [the Court’s] written order.” Notwithstanding that omission, Mr. Watts’s probation officer imposed gang-related restrictions on Mr. Watts. 

So why does it matter whether it was the trial judge or the probation officer who ordered the gang-related restrictions? Well, if Mr. Watts violated the court’s direct order, then he was at risk of having years of penitentiary time imposed on him for the violation. If, though, Mr. Watts only violated his probation officer’s instructions, that was a “technical violation” with a maximum punishment of 14 days in jail. 

The trial judge held that the oral ruling on gang-related restrictions operated as part of its written probation order and sentenced Watts to three years in prison. For Mr. Watts, the difference between violating a court restriction and probation officer instruction was about two years and fifty weeks of time behind bars.

Does the Court’s Written Order or Its Oral Ruling Control?

So, was the trial judge’s oral instruction from the bench that Mr. Watts obey gang-related probation limitations an actual order of the Court? No, said the Court of Appeals.

Judge Chaney, writing for a six-judge plurality of the 16 judges sitting when the Court met en banc, ruled that courts speak through their written orders. In this case, the gang-related restrictions on Mr. Watts were not stated in the trial judge’s written order. 

The trial judge’s written order that Mr. Watts was required to obey his probation officer’s rules and requirements did not have the effect of “incorporat[ing] by reference” the probation officer’s instructions. That’s because the gang-related instructions from the probation officer to Mr. Watts did not exist at the time of the Court’s written probation order.  Non-existent instructions can’t be incorporated by reference. In short, the six-judge plurality said that when it comes to written court orders, the words on the page matter and the as yet unwritten words and oral edicts don’t.

Judge Raphael wrote a separate concurrence that commanded five votes. In that opinion, Judge Raphael agreed with Judge Chaney that Mr. Watts’s gang-related restrictions were not part of the trial judge’s probation order. 

With the Chaney opinion’s six votes, coupled with the Raphael opinion’s five votes, a total of 11 votes out of 16 concluded that the trial judge made a mistake and Mr. Watts was guilty only of a technical violation.

Congratulations, Mr. Watts? Not so fast.

Can a Broken Written Order be Fixed?

Since the trial judge made a mistake in sentencing Mr. Watts, the Court of Appeals determined to remand the case back to the trial judge for a new sentencing. Judge Chaney, again writing for only six members of the Court of Appeals, concluded that on remand the trial judge may not amend its earlier probation order to include the gang-related restrictions. 

The Chaney plurality concluded that the time for amending the probation order expired 21 days after it was entered. The order couldn’t be amended to correct an oversight or a clerical error, after the fact, to make the gang-related restriction applicable to Mr. Watts’s violations.  The Chaney plurality concluded that the trial judge does not have the power to make a substantive, legal change to its probation order like including insertion of new gang-related instructions in an old probation order. 

Reasoned Judge Chaney: “Th[e] power to amend clerical errors [in orders] does not extend to looking back to a years-old order and make it seem that the court took action that, with the benefit of hindsight, the trial court wished it had taken.”

But, Judge Raphael, writing for a separate lineup of five judges, disagreed.  He concluded that, on remand, the trial judge may consider whether the reason the gang-related restrictions were left out of the probation order was because of “oversight or inadvertent omission” or “clerical mistake.” Virginia law permits courts to correct, nunc pro tunc or “now for then,” these sorts of mistakes even after time limits for judgments to become final have passed.

Judge Raphael reasoned that these sorts of error corrections are part of courts’ “’inherent power … upon any competent evidence, to make the record ‘speak the truth.’’”  The trial judge stated, orally, that he wanted gang-related restrictions to be part of Mr. Watts’s probation requirements.  On remand, that judge should be allowed to consider amending his prior probation order to correct the omission of those requirements. 

So, for those of you keeping score at home, that’s 11 votes (Chaney opinion plus Raphael opinion) to say that the trial judge’s oral ruling was not part of its written order and therefore not a lawful basis for a probation violation.  But, there’s five votes (Raphael) that would allow amending the old probation order nunc pro tunc and six votes (Chaney) that would prohibit an amendment.

Mr. Watts Snatches Defeat from the Jaws of Victory.

That leaves us with the last opinion in the case: Judge Fulton’s “dissent[] from the decision to reverse and remand, but concurring in the decision to remand with instructions to consider whether clerical error exists.” You don’t see opinions labeled like that every day.

In this opinion Judge Fulton, writing for a different slate of five judges, reasoned that the trial judge could construe his own orders. Relying on a case from the West Virginia Supreme Court, Judge Fulton would have permitted the trial judge to interpret his probation order in Mr. Watts’s case by considering the transcript of the earlier oral ruling as “part[] of the record.” For that reason, Judge Fulton would have ruled that the trial judge did not err at all in finding that the Court, not just the probation officer, imposed the gang-related restrictions. 

But that portion of Judge Fulton’s opinion only garnered five votes out of 16. That part was, therefore, a dissent. 

That same opinion, though, joined Judge Raphael’s concurrence that permits the trial judge to consider, on remand, a nunc pro tunc amendment to the probation order.

So, with the benefit of Judge Fulton’s opinion, there are 10 votes to allow possible amendment, nunc pro tunc, of the probation order on remand. Those votes mean that the trial judge may consider whether the old probation order should be fixed to include the judge’s oral ruling that Mr. Watts’s probation includes gang-related restrictions.

Final Score:

11 votes to reverse the trial judge because he improperly considered an oral ruling as part of a written order.

10 votes to allow the trial judge to consider, on remand, fixing, nunc pro tunc, the years’ old problem with its earlier written order.

What does this mean for Mr. Watts? If I were a betting man, I might wager that,after the paperwork gets tidied, Mr. Watts is likely to receive the same sentence of incarceration the second go around that he got on the first.

For practitioners, though, the lessons are pretty clear:

• Courts speak through their orders. Make sure the orders that you worked hard to win say what you want them to say or you will regret the fights you have about them in the future.
• It’s possible to fix a broken order, even after the time limits to do so have run. But it’s hard and it’s not a good time.
• When you’re trying to figure out if you won or lost your appeal, count all the votes from all the opinions!

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If you have any questions about this post or other appellate issues, please contact Cullen Seltzer at (804)783-7235 or CSeltzer@sandsanderson.com .