PRESENT: All the Justices
COMMONWEALTH OF VIRGINIA
v. Record No. 022446 OPINION BY JUSTICE BARBARA MILANO KEENAN
September 12, 2003
GERARDO RAMOS DIAZ
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal involves a revocation of a suspended sentence
based on an offense that occurred after a conviction in the
general district court for which the suspended sentence was
imposed, but prior to the withdrawal of an appeal from that
conviction. We consider whether the Court of Appeals erred in
holding that the circuit court improperly revoked the suspended
sentence on the basis that the circuit court order, affirming
the conviction and sentence in the withdrawn appeal, "abrogated"
the district court's judgment.
On June 27, 2000, Gerardo R. Diaz was convicted in the
Fauquier County General District Court (the district court) of
the misdemeanor offense of driving after having been declared an
habitual offender, first offense, in violation of Code § 46.2-
357. The district court imposed a sentence of 90 days in jail,
with 70 days suspended conditioned on, among other things, Diaz
"being of good behavior." The court ordered Diaz to serve his
sentence on consecutive weekends, beginning July 7, 2000. While
attempting to drive home from the courthouse following his
conviction on June 27, 2000, Diaz was arrested on a felony
charge of driving after having been declared an habitual
offender, second or subsequent offense, in violation of Code
§ 46.2-357.
On July 5, 2000, Diaz noted an appeal from the district
court judgment to the Circuit Court of Fauquier County (the
circuit court), but withdrew his appeal on August 1, 2000. Code
§ 16.1-133, which provides for the withdrawal of an appeal from
a district court conviction, states in relevant part:
[A]ny person convicted in a general district court
. . . of an offense not felonious may, at any time
before the appeal is heard, withdraw an appeal which
has been noted, pay the fine and costs to such court,
and serve any sentence which has been imposed.
. . . If the appeal is withdrawn more than ten days
after conviction, the circuit court shall forthwith
enter an order affirming the judgment of the lower
court . . . .
Three days after Diaz withdrew his appeal, the circuit
court entered an order stating that the court "confirm[ed]" the
district court's judgment. The circuit court imposed the same
sentence that Diaz received in the district court, including the
partial suspension of sentence conditioned on his good behavior.
Diaz later pleaded guilty to the June 27, 2000 felony
offense and was sentenced to a term of imprisonment of one year
and two months. Thereafter, the circuit court ordered Diaz to
show cause why his suspended sentence on the misdemeanor
conviction should not be revoked.
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During a revocation hearing, Diaz argued that the circuit
court lacked authority to revoke his suspended sentence on the
misdemeanor conviction, contending that the period of his "good
behavior" did not begin until the circuit court affirmed the
district court judgment. The circuit court revoked the
suspended portion of Diaz's sentence on the misdemeanor
conviction and ordered him to serve 70 days in jail, the balance
of his original 90-day sentence.
Diaz appealed from this judgment to the Court of Appeals,
which reversed the circuit court's judgment. Diaz v.
Commonwealth, 38 Va. App. 713, 714, 718, 568 S.E.2d 401, 402-03
(2002). The Court stated:
[W]hen [an] appeal is withdrawn more than ten days
after the district court conviction, action by the
circuit court is required. Although the required
action is the affirmation of the district court
judgment, the action is nonetheless the judgment of
the circuit court. The judgment of the district court
is abrogated.
Id. at 717, 568 S.E.2d at 403. The Court concluded that Diaz's
appeal of the district court judgment on the misdemeanor
conviction suspended the operation of that judgment and that,
"[a]fter the expiration of ten days, the charge continued as an
open proceeding in the circuit court, subject to retrial de novo
. . . or withdrawal." Id. The Court held that the circuit
court order affirming the district court judgment "superseded
and abrogated" that judgment and, thus, that the sentence and
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partial suspension of sentence imposed by the district court
"were not in force" when Diaz committed the June 27, 2000 felony
offense. Id. at 717-18, 568 S.E.2d at 403.
On appeal to this Court, the Commonwealth argues that the
Court of Appeals erred in holding that the circuit court order
affirming the district court judgment abrogated that same
judgment. The Commonwealth asserts that under the plain
language of Code § 16.1-133, the circuit court's order merely
affirmed the district court's judgment, which was not annulled
because a trial de novo did not occur in the circuit court. The
Commonwealth contends that Diaz's period of good behavior on the
misdemeanor conviction began on June 27, 2000, the date of his
conviction in the district court, and that he committed the
felony offense while he was subject to a revocation of his
suspended sentence on the misdemeanor conviction.
In response, Diaz argues that he was not subject to a
revocation of the suspended sentence imposed by the district
court because his appeal to the circuit court suspended the
execution of that sentence. He further asserts that the circuit
court order affirming the district court judgment abrogated that
prior judgment. Thus, he contends that his period of good
behavior on the misdemeanor conviction did not begin until the
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circuit court entered its order affirming his conviction by the
district court. * We disagree with Diaz's arguments.
Under basic principles of statutory construction, we must
determine the General Assembly's intent from the words contained
in a statute. Williams v. Commonwealth, 265 Va. 268, 271, 576
S.E.2d 468, 470 (2003); Thomas v. Commonwealth, 256 Va. 38, 41-
42, 501 S.E.2d 391, 393 (1998). When the language of a statute
is unambiguous, we are bound by the plain meaning of that
language and may not assign the words a construction that
amounts to holding that the General Assembly did not mean what
it actually stated. Williams, 265 Va. at 271, 576 S.E.2d at
470; Mozley v. Prestwould Bd. of Dirs., 264 Va. 549, 554, 570
S.E.2d 817, 820 (2002).
We conclude that the language of Code § 16.1-133 is
unambiguous and dictates that a district court judgment remains
valid when an appeal has been noted but has been withdrawn more
than ten days after the date of that judgment. Our conclusion
is based primarily on the General Assembly's use of the word
"affirming," which identifies the relationship between the final
*
Diaz does not contend here, nor did he contend in the
Court of Appeals, that the revocation proceedings should have
been initiated in the general district court, rather than in the
circuit court. Therefore, we are not presented with that issue
in this appeal but merely observe that the circuit court's order
affirming the district court judgment permitted the circuit
court to enforce the terms of its own judgment order.
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judgment orders of the district and circuit courts when an
appeal is withdrawn in the stated time period.
The word "affirm" is defined as "[t]o ratify, uphold,
approve." Black's Law Dictionary 59 (6th ed. 1990). By
requiring the circuit court to enter an order "affirming" the
district court judgment, the statutory language indicates that
the general district court judgment in the withdrawn appeal
remains in effect and is ratified by the circuit court order.
This interpretation is in accord with the general rule that
a de novo hearing on the merits of an appeal must actually begin
in the circuit court before a district court judgment is
annulled. We explained this principle in Commonwealth v.
Zamani, 256 Va. 391, 507 S.E.2d 608 (1998), in the context of
Code § 16.1-133.1, which provides a 60-day period for reopening
a case in a district court after entry of a judgment by that
court.
We held that during the 60-day period following entry of a
district court judgment, the district court retains jurisdiction
to reopen a case although a defendant has noted an appeal to the
circuit court, unless a de novo hearing on the merits of the
case has commenced in the circuit court. Zamani, 256 Va. at
397, 507 S.E.2d at 610. We emphasized that during this 60-day
period, a district court's jurisdiction is unaffected even when
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a circuit court summarily affirms the district court judgment
after an appeal is withdrawn under Code § 16.1-133. Id.
Based on the language of Code § 16.1-133 and our holding in
Zamani, we conclude that the district court judgment convicting
Diaz of the misdemeanor offense remained in effect throughout
the proceedings in this case. When Diaz noted his appeal from
the district court judgment, that judgment was stayed but
remained a valid judgment while the appeal was pending. Because
the circuit court order affirmed the district court judgment
upon Diaz's withdrawal of his appeal, the circuit court order
did not annul or abrogate the district court judgment but
ratified the conviction and sentence imposed by the district
court. Therefore, the original district court judgment remained
in effect after the circuit court entered the order affirming
that judgment under Code § 16.1-133.
Finally, we observe that we previously have stated that an
appeal to a circuit court from a district court judgment annuls
that prior judgment. See, e.g., Santen v. Tuthill, 265 Va. 492,
496, 578 S.E.2d 788, 791 (2003); Buck v. City of Danville, 213
Va. 387, 388, 192 S.E.2d 758, 759 (1972); Gaskill v.
Commonwealth, 206 Va. 486, 490-91, 144 S.E.2d 293, 296-97
(1965). However, in each of these decisions, our statement was
made concerning the process of appeals in which a trial de novo
has actually commenced in the circuit court on the merits of the
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case. We explained that in a trial de novo, the circuit court
disregards the judgment of the district court, hears the
evidence anew and may consider new evidence, and makes final
disposition of the case as if the case had not proceeded to
judgment in the district court. See Addison v. Salyer, 185 Va.
644, 650, 40 S.E.2d 260, 263 (1946); Malouf v. City of Roanoke,
177 Va. 846, 855, 13 S.E.2d 319, 322 (1941); Thomas Gemmell,
Inc. v. Svea Fire & Life Ins. Co., 166 Va. 95, 98, 184 S.E. 457,
458 (1936). Therefore, the annulment of the district court
judgment in such a situation occurs because a trial de novo has
commenced on the merits of the case, an event that did not occur
in Diaz's case.
For these reasons, we hold that the Court of Appeals erred
in concluding that the circuit court erroneously revoked the
suspended portion of Diaz's sentence on the misdemeanor
conviction. We will reverse the judgment of the Court of
Appeals and reinstate the revocation of Diaz's suspended
sentence in accordance with the judgment order of the circuit
court.
Reversed and final judgment.
JUSTICE KOONTZ, dissenting.
I respectfully dissent. In my view, the Court of Appeals
in this case reached the right result in reversing the judgment
of the Fauquier County Circuit Court, but its legal analysis was
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flawed. The majority here correctly addresses that flawed
analysis, but nevertheless reaches the wrong result in
permitting the judgment of the circuit court to stand. For the
reasons that follow, I would affirm the judgment of the Court of
Appeals.
The facts, as recited by the majority, are undisputed and
need not be repeated here. The gist of the legal analysis
applied by the Court of Appeals to those facts is that the order
of a circuit court that affirms the judgment of a district court
when an appeal is withdrawn more than ten days after conviction
pursuant to Code § 16.1-133 “supersedes and abrogates the
district court judgment from which the appeal is taken.” Diaz
v. Commonwealth, 38 Va. App. 713, 716, 568 S.E.2d 401, 403
(2002). The Commonwealth eloquently highlights the flaw in this
analysis when it now asserts that Code § 16.1-133 does not
contemplate a judgment of the circuit court that affirms a
district judgment and also abrogates the same judgment.
In pertinent part, Code § 16.1-133 provides that, when an
appeal is withdrawn more than ten days after a conviction in the
district court, the “circuit court shall forthwith enter an
order affirming the judgment of the lower court.” This
statutory language could not be more clear. The majority
correctly refutes the analysis of the Court of Appeals that the
judgment of the circuit court abrogates the judgment of the
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lower court and correctly concludes that the circuit court’s
order “ratifies” the judgment of the district court.
The analysis of the present case, however, should not end
with the conclusion that under Code § 16.1-133 the result of the
circuit court’s order is the ratification of the district court
order. This case presents a procedural tangle left unresolved
by that conclusion. The question remains whether the circuit
court or the district court was the proper court to consider
subsequent violations of the conditions of the suspended
sentence imposed by the judgment of the district court that had
been so affirmed or ratified.
Code § 19.2-303 authorizes “the court” after conviction,
among other things, to suspend a sentence and, in addition, to
place the accused on probation under conditions as the court
determines. Code § 19.2-306(A) then appropriately authorizes
“the court” to revoke the suspension of sentence “for any cause
the court deems sufficient that occurred at any time within the
probation period, or if none, within the period of suspension
fixed by the court.” Beyond question, in conjunction with each
other, these statutes contemplate the action of one court and
not two separate courts. Stated differently, “the court” that
imposes a suspended sentence and a period of probation under
Code § 19.2-303 is “the court” authorized under Code § 19.2-306
to revoke that suspended sentence.
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In the present case, the majority permits the circuit court
to revoke the suspended sentence which, along with a period of
probation, was imposed upon Gerardo Ramos Diaz by the Fauquier
County General District Court on June 27, 2000, based upon the
conclusion that the district court’s judgment “remained in
effect after the [Circuit Court of Fauquier County] entered the
order [of August 1, 2000] affirming that judgment under Code
§ 16.1-133,” and the violation occurred on June 27, 2000. On
the other hand, the Court of Appeals concluded that because the
district court’s judgment was abrogated, the violation did not
occur within the period of suspension or probation imposed by
the circuit court on August 1, 2000 and, thus, the circuit court
erred in revoking the suspended sentence in question. In this
context, while I agree with the majority that the order of the
circuit court did not abrogate the judgment of the district
court, it must necessarily follow that the circuit court was
thereafter without jurisdiction under Code § 16.1-306 to revoke
the suspended sentence imposed by the district court because it
was the judgment of the district court that formed the basis of
the revocation proceeding. In short, the Commonwealth simply
initiated the show cause proceeding in the wrong court in this
particular case.
Finally, the argument can be made that Diaz did not raise
the issue of the circuit court’s jurisdiction. Indeed such may
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be the case. However, this is of no moment because we have
repeatedly held that the lack of subject matter jurisdiction may
be raised at any time, even by this Court sua sponte. See,
e.g., Earley v. Landsidle, 257 Va. 365, 371, 514 S.E.2d 153, 156
(1999); Garrett v. Majied, 252 Va. 46, 48, 471 S.E.2d 479, 480
(1996); Thacker v. Hubard, 122 Va. 379, 386, 94 S.E. 929, 930
(1918). Here, the only matter before the circuit court on
August 1, 2000 was to “forthwith enter an order affirming the
judgment of the lower court” pursuant to Code § 16.1-133. Upon
entry of that order, the judgment of the district court was
ratified. Thereafter, there was no statutory authority for the
circuit court to conduct a show cause proceeding against Diaz to
enforce the district court order.
For these reasons, I would hold that the Court of Appeals
reached the right result in reversing the judgment of the
circuit court.
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