COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia
CHARLES WHITNEY, S/K/A
CHARLES ALBERT WHITNEY
MEMORANDUM OPINION * BY
v. Record No. 0835-00-1 JUDGE RUDOLPH BUMGARDNER, III
MAY 1, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Westbrook J. Parker, Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on briefs), for
appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Charles Albert Whitney appeals the revocation of the
suspended sentence he received in 1994 when a juvenile. He
contends the order of conviction was void because the juvenile
and domestic relations district court failed to notify his
father as required by Code § 16.1-263. We agree and reverse.
The Commonwealth charged the defendant, then a juvenile,
with distribution of cocaine on June 6, 1993. The petition
identified his mother and his father but listed their addresses
as "unknown at intake." Neither the mother nor the father
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
received notice of the transfer hearing, though the mother
attended. The transfer order noted the defendant "is not living
with his parents and their addresses are unknown." The trial
court convicted the defendant and sentenced him on June 14, 1994
to ten years incarceration with five years suspended. The trial
court later revoked the suspended sentence on April 4, 2000
because the defendant violated the terms of his probation.
When the juvenile court fails to provide notice to a
defendant's parents, the circuit court lacks jurisdiction to try
the juvenile defendant as an adult because the transfer is
ineffectual. David Allen Moore v. Commonwealth, 259 Va. 431,
437, 527 S.E.2d 406, 409 (2000). Code § 16.1-263(E) 1 defines the
exception to the requirement for notice. Notice is not required
"when the trial judge has certified on the record that the
identity of a parent is not reasonably ascertainable." Baker v
Commonwealth, 28 Va. App. 306, 312, 505 S.E.2d 394, 397 (1998),
aff'd, 258 Va. 1, 516 S.E.2d 219 (1999).
The Commonwealth contends a return of service marked
"address unknown" met the statutory exception that the father's
1
Notification "shall [not] be required if the judge shall
certify on the record that (i) the identity of a parent or
guardian is not reasonably ascertainable or (ii) in cases in
which it is alleged that a juvenile has committed a delinquent
act, crime, status offense or traffic infraction or is in need
of services or supervision, the location, or in the case of a
parent or guardian located outside of the Commonwealth the
location or mailing address, of a parent or guardian is not
reasonably ascertainable." Code § 16.1-263(E).
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identity was not "reasonably ascertainable." However, not
knowing the address of an identified person is different from
not knowing the identity of the person. The record identifies
the defendant's parents by name. The identity of the father was
ascertained; only his whereabouts were unknown.
The defendant's father did not receive notice, and the
trial court did not certify on the record an exception permitted
by Code § 16.1-263(E). The conviction was void. Duong v.
Commonwealth, 34 Va. App. 424, 428, 542 S.E.2d 47, 49 (2001).
Accordingly, we reverse the imposition of the balance of the
sentence imposed. This decision makes the other assignment of
error moot.
Reversed.
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