In Commonwealth v. Morris, the Supreme Court of Virginia properly decided that the writs of coram vobis and audita querela may not be used to modify a final criminal conviction order more than twenty-one days after its entry. The court decided the inapplicability of coram vobis under Virginia Code § 8.01-677 and its own precedent. It decided the inapplicability of audita querela under the English common law, citing cases from 1670, 1701, and 1792. In the course of the opinion it conflated Virginia Code §§ 1-200 and 1-201 and held in dictum that Virginia’s adoption of the common law of England “ends in 1607 . . . . From that time forward, the common law we recognize is that which has developed in Virginia.” This was dictum because the opinion holds the common law of England on the use of the writ of audita querela was the same before and after 1607. Your author submits this dictum is erroneous considering the years of decision of the English cases cited, the plain meaning of the two applicable statutes, and the court’s own precedent.
August 15, 2014