10.8 Motion to Vacate a Judgment as Void May Be Filed at Anytime

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

10.8 MOTION TO VACATE A JUDGMENT AS VOID MAY BE FILED AT ANYTIME

An order is void ab initio (meaning to be treated as void from the outset), rather than merely voidable, if "the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt." ¹⁶¹ "An order that is void ab initio is a complete nullity that may be impeached directly or collaterally by all persons, anywhere, at any time, or in any manner." ¹⁶² A sentencing order that purported to change a conviction from a felony to a misdemeanor was void ab initio. ¹⁶³ A sentence in excess of the statutory maximum was also void ab initio. ¹⁶⁴ A conviction for driving after being adjudged a habitual offender was void when the defendant was not properly served with the notice of the habitual offender hearing because a "court acquires no jurisdiction over the person of a defendant until process is served in the manner provided by statute, and a judgment entered by a court which lacks jurisdiction over a defendant is void as against that defendant." ¹⁶⁵ Further, "[a] court lacks jurisdiction to enter a criminal judgment if the judgment is predicated upon an unconstitutional or otherwise invalid statute or ordinance." ¹⁶⁶ But there is...