COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Overton
Argued at Alexandria, Virginia
MARIO REYNALDO SALVATIERRA
OPINION BY
v. Record No. 1233-00-4 JUDGE NELSON T. OVERTON
MAY 15, 2001
CITY OF FALLS CHURCH
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge
Mark D. Seidelson for appellant.
Ray B. Thorpe, Jr., City Attorney, for
appellee.
Appellant, a juvenile, was committed to the Department of
Juvenile Justice (DJJ) for his failure to complete a residential
treatment program. Appellant has been released from DJJ and now
resides in foster care. On appeal, appellant argues that (1) this
appeal is justiciable despite the fact that he was paroled from
the custody of DJJ, (2) Code § 16.1-278.8 bars the commitment of a
juvenile absent a finding of delinquency on either a felony or a
second Class 1 misdemeanor, (3) a juvenile probation violation
does not constitute a new Class 1 misdemeanor, (4) Code § 16.1-227
does not confer upon the juvenile and domestic relations district
(JDR) court sentencing powers greater than those expressly granted
by the statute, and (5) the commitment of a juvenile to DJJ for a
probation violation without a predicate delinquency finding on
either a felony or a second Class 1 misdemeanor exceeds the
jurisdictional authority of the JDR court. We agree that the
issue is justiciable and that a juvenile probation violation does
not constitute a Class 1 misdemeanor; therefore, we reverse.
BACKGROUND
Appellant was a ward of the Fairfax County Department of
Human Services and was found delinquent with respect to one
misdemeanor assault and battery. Appellant ran away from a
treatment facility and was committed to DJJ for this violation.
Appellant remained in the custody of DJJ for ninety days and was
released to Timber Ridge, a residential treatment facility.
Appellant did not return to Timber Ridge from a furlough and, at a
violation hearing, appellant admitted he violated the rules of the
facility. At the violation hearing, appellant contended that the
original commitment to DJJ and, therefore, the parole was void
because the JDR court lacked jurisdiction to impose a commitment
absent a finding of delinquency on either a felony or a second
Class 1 misdemeanor. Because the JDR court sent appellant back to
Timber Ridge, appellant did not appeal the question of whether the
original commitment order was void. Approximately ten days later,
appellant was discharged from Timber Ridge for a physical
confrontation with a peer, which resulted in a new violation of
his parole. The JDR court re-committed appellant to DJJ.
Subsequently, appellant was paroled from DJJ and now resides in
foster care.
- 2 -
MOOTNESS ISSUE
Appellee filed a motion to dismiss and argues that because
appellant is no longer committed to DJJ, the issues on appeal are
moot. Appellee further contends there is no reasonable
expectation that appellant will be subjected to the same action
because Code § 16.1-278.8(A)(14) was amended, effective July 1,
2000. The amended statute permits commitment to DJJ if a juvenile
has previously been adjudicated delinquent on three occasions for
offenses that would be a Class 1 misdemeanor if committed by an
adult. The prior statute only required one prior Class 1
misdemeanor.
Appellant argues that the purpose of the appeal is not
limited to his being released from DJJ, but is to further relieve
him of his parole status. Appellant also argues that he could be
re-committed to DJJ in the event of another violation of
probation. Appellant further argues that the amendment to the
statute does not affect his status as a parolee and does not
relieve him of the burden of facing possible subsequent
commitments for future violations of supervision.
"'The duty of this court . . . is to decide actual
controversies by a judgment which can be carried into effect,
and not to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which
cannot affect the matter in issue in the case before it.'"
Hankins v. Town of Virginia Beach, 182 Va. 642, 644, 29 S.E.2d
- 3 -
831, 832 (1944) (citation omitted). However, "jurisdiction is
not necessarily defeated simply because the order attacked has
expired, if the underlying dispute between the parties is one
'capable of repetition, yet evading review.'" Globe Newspaper
Co. v. Superior Court, 457 U.S. 596, 603 (1982) (citation
omitted).
Appellee agrees that the duration of appellant's commitment
to DJJ was too short to fully litigate the issues through an
appeal. Because appellant is on parole from DJJ, he is subject
to re-commitment based upon a new offense and the issues in his
appeal are capable of repetition but evade review. We agree
with appellant that the issues on appeal are justiciable.
THE DISPOSITION STATUTE AND A PROBATION VIOLATION
The circuit court judge found that appellant violated the
terms of his parole when he did not complete the program at
Timber Ridge and committed appellant to DJJ.
When appellant was committed to DJJ, Code
§ 16.1-278.8(A)(14) provided the following disposition for a
juvenile found to be delinquent:
Commit the juvenile to the Department of
Juvenile Justice, but only if he is older
than ten years of age and the current
offense is (i) an offense which would be a
felony if committed by an adult or, (ii) an
offense which would be a Class 1 misdemeanor
if committed by an adult and the juvenile
has previously been found to be delinquent
based on an offense which would be either a
felony or Class 1 misdemeanor if committed
by an adult.
- 4 -
Appellant contends he was never convicted of a felony or a
second Class 1 misdemeanor and that the JDR court did not have
the authority to commit him to DJJ. Appellant argues that a
probation violation is not a primary offense, but a derivative
offense, and is not, therefore, a Class 1 misdemeanor.
Appellee contends the issue is not whether a probation
violation is a Class 1 misdemeanor, but whether the facts of the
current offense would constitute a Class 1 misdemeanor.
Appellee argues that appellant was discharged from Timber Ridge
because he assaulted one of his peers, which would have been an
assault and battery if committed by an adult.
"Generally, the words and phrases used in a statute should
be given their ordinary and usually accepted meaning unless a
different intention is fairly manifest." Woolfolk v.
Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530, 534 (1994).
"When a juvenile is found to be delinquent, the juvenile
court or the circuit court has several available options with
regard to making 'orders of disposition for [the juvenile’s]
supervision, care and rehabilitation.'" Commonwealth v.
Chatman, 260 Va. 562, 570, 538 S.E.2d 304, 308 (2000) (citation
omitted). Code § 16.1-278.8(A)(14) permits a juvenile to be
committed to DJJ for "an offense" which would be a felony or a
Class 1 misdemeanor if committed by an adult and the juvenile
has previously been found to be delinquent based on such
offenses. In order to constitute a Class 1 misdemeanor, an
- 5 -
offense must be punishable, if committed by an adult, by up to
twelve months in jail and a fine of not more than $2,500. Code
§ 18.2-11(a). The word "offense" is defined, "a violation of
the law; a crime, often a minor one." Black's Law Dictionary
1108 7th ed. (1999). As used in Code § 16.1-278.8(A)(14)(ii),
the requirement that the offense "be a Class 1 misdemeanor if
committed by an adult" describes a type of offense that the
juvenile must commit for purposes of distinguishing it from
greater or lesser offenses. Because the plain language of Code
§ 16.1-278.8(A)(14) bars commitment of a juvenile absent a
delinquency finding on either a felony or a second Class 1
misdemeanor, a probation violation was insufficient under these
facts to commit appellant to DJJ. We, therefore, reverse the
trial court and remand this case for further proceedings if the
appellee be so advised.
Because we find that a probation violation was insufficient
to commit appellant to DJJ pursuant to Code § 16.1-278.8(A)(14),
we need not address appellant's arguments that Code § 16.1-227
does not confer sentencing powers greater than those expressly
granted by the statute and that appellant's commitment to DJJ
absent a predicate delinquency finding exceeds jurisdictional
authority.
Reversed and remanded.
- 6 -