COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia
GERARDO RAMOS DIAZ
OPINION BY
v. Record No. 1374-01-4 JUDGE JERE M. H. WILLIS, JR.
AUGUST 20, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Carleton Penn, Judge Designate
Seth I. Howard, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
On appeal from the revocation of the suspension of sentence
in his misdemeanor habitual offender case, Gerardo Diaz contends
that the trial court erred (1) in holding that he committed a
further violation within the period of suspension; and (2) in
holding that a circuit court sentencing order pursuant to Code
§ 16.1-133 relates back to the district court conviction date.
For the following reasons, we reverse the judgment of the trial
court.
I. BACKGROUND
On June 27, 2000, Diaz was convicted in the district court
of driving after having been declared an habitual offender
(first offense-misdemeanor) and was sentenced to serve ninety
days in jail, with seventy days suspended on condition of his
good behavior. He was ordered to begin serving his active jail
sentence on July 7, 2000. He timely noted an appeal. See Code
§ 16.1-132.
Also on June 27, 2000, after the conclusion of the district
court proceedings, Diaz was again arrested for driving a motor
vehicle after having been declared an habitual offender
(second/subsequent offense-felony).
On August 1, 2000, Diaz withdrew the appeal of his June 27,
2000 conviction. See Code § 16.1-133. The circuit court
entered an order "confirm[ing] [sic] the judgment of the General
District Court" and imposing the sentence assessed in the
district court. Diaz was ordered to remain on general good
behavior and to report to the Fauquier County Adult Detention
Center to begin serving his sentence on August 4, 2000.
On November 7, 2000, Diaz pleaded guilty to the June 27,
2000 felony habitual offender violation. He was convicted and
sentenced to serve one year and two months in prison. On April
13, 2001, the trial court held that Diaz's June 27, 2000 offense
violated the terms of his June 27, 2000 suspended sentence in
the misdemeanor habitual offender case. It revoked the
suspension and ordered him to serve the suspended seventy days.
II. ANALYSIS
A court may revoke a suspension of sentence for sufficient
cause occurring during the period of suspension. Code
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§ 19.2-306. Diaz contends that his June 27, 2000 felony
habitual offender violation did not occur within the suspension
period of his June 27, 2000 misdemeanor conviction. He argues
that his appeal of that conviction suspended the order of
conviction and sentence. He further argues that the trial
court's August 1, 2000 order, confirming the district court's
judgment, was effective August 1, 2000, and operated from that
date. Thus, he argues, no suspension of sentence was in effect
when he was arrested on June 27, 2000.
Citing Code § 16.1-133.1, the Commonwealth argues that
jurisdiction in the general district court continues post
judgment for sixty days or until a de novo trial on the merits
is commenced in the circuit court. Thus, the Commonwealth
argues, Diaz's appeal did not suspend the effective operability
of his June 27, 2000 order of conviction. We agree with Diaz.
This case does not involve the reopening of a case in the
district court. It involves only the effect of an appeal taken
pursuant to Code § 16.1-132.
Code § 16.1-132 provides:
Any person convicted in a district court of
an offense not felonious shall have the
right, at any time within ten days from such
conviction, and whether or not such
conviction was on a plea of guilty, to
appeal to the circuit court. . . .
Code § 16.1-136 provides:
Any appeal taken under the provisions of
[Code § 16.1-132] shall be heard de novo in
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the appellate court and shall be tried
without formal pleadings in writing; and,
except in the case of an appeal from any
order or judgment of a court not of record
forfeiting any recognizance or revoking any
suspension of sentence, the accused shall be
entitled to trial by a jury in the same
manner as if he had been indicted for the
offense in the circuit court.
Thus, the judgment of the circuit court on appeal supersedes and
abrogates the district court judgment from which the appeal is
taken.
Code § 16.1-133 provides:
[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.
A person withdrawing an appeal shall give
written notice of withdrawal to the court
and counsel for the prosecution prior to the
hearing date of the appeal. 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 and the clerk
shall tax the costs as provided by statute.
Fines and costs shall be collected by the
circuit court and all papers shall be
retained in the circuit court clerk's
office.
Where the withdrawal is within ten days
after conviction, no additional costs shall
be charged, and the judgment of the lower
court shall be imposed without further
action of the circuit court.
Thus, when an appeal is withdrawn within ten days of the
district court conviction, the withdrawal nullifies the appeal
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and reinstates the district court judgment. However, when the
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. See
Zamani v. Commonwealth, 26 Va. App. 59, 62, 492 S.E.2d 854, 856
(1997), aff'd sub nom, 256 Va. 391, 507 S.E.2d 608 (1998). 1
Diaz's appeal of his June 27, 2000 district court
conviction suspended the operation of that judgment. After the
expiration of ten days, the charge continued as an open
proceeding in the circuit court, subject to retrial de novo
pursuant to Code § 16.1-136 or withdrawal pursuant to the second
paragraph of Code § 16.1-133. Diaz pursued the latter course
and, in compliance with the statute, the trial court entered its
August 1, 2000 order, affirming the district court judgment and
imposing the sentence imposed by the district court. That order
was the order of the circuit court, effective from the date of
its entry, August 1, 2000. It superseded and abrogated the
district court's June 27, 2000 order. Thus, the sentence and
1
Zamani recognized and reaffirms the foregoing general
rule, see Buck v. City of Danville, 213 Va. 387, 388, 192 S.E.2d
758, 759 (1972), but held that rule to be subject to the
authority of a district court, under appropriate circumstances,
to reopen the case pursuant to Code § 16.1-133.1, a circumstance
not involved in this case.
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suspension of sentence imposed by the June 27, 2000 order were
not in force when Diaz was arrested on June 27, 2000.
The judgment of the trial court is reversed, and the
proceeding against Diaz is ordered dismissed.
Reversed and dismissed.
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