Tuesday, October 21, 2014
What happens if the clerk refuses to certify the record on appeal
In Ford v. Com., the Court of Appeals in an unpublished opinion by Senior Judge Clements, joined by Judges Frank and Beales, addressed the appellant's appellate issues arising out of the Circuit Court clerk's refusal to certify the record. The clerk sent the record to the Court of Appeals but with a disclaimer that she did not know whether the documents that she sent were accurate and complete. The appellant claimed that because the clerk could not certify the record, he was denied due process, and therefore the case should be retried or dismissed. The Court rejected the appellant's claims, because he made no attempt in the trial court or the court of appeals to have the problems with the record corrected, noting that the Circuit Court had jurisdiction to fix problems with the record up until the time when the appeal was docketed in the Court of Appeals. The Court also noted somewhat ominously in a footnote that "any future failure to certify the record on the basis that the clerk did not maintain the record could result in contempt proceedings against the clerk," citing Va. Code 17.1-242 as amended in 2014 and a Virginia Supreme Court case from 1780, Com. v. Beckley.