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Commonwealth v. Holtz8/20/1991
Lack of jurisdiction can be raised for the first time on appeal. A party cannot, by failing to challenge the court's jurisdiction, confer authority to decide an issue where no such power existed. See 11B Michie's Jurisprudence Jurisdiction § 20 (1986). Additionally, because the conviction judgments were facially sufficient, the trial court committed plain error in allowing the collateral attack. The record plainly shows that the trial court should have adjudged Holtz to be an habitual offender. Therefore, in my opinion, the issue would be required to be considered on appeal under the ends of justice exception. Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987) (where the record affirmatively shows a miscarriage of justice has occurred). Because the facts before the court are sufficient to enable this Court to attain the ends of justice, I would reverse and, pursuant to Code § 8.01-681, enter judgment in favor of the Commonwealth declaring Holtz to be an habitual offender.
Judges Footnotes
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