PRESENT: Carrico, C.J., Lacy, Hassell, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.
PHILLIP WEATHERS OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 010471 November 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this criminal appeal, the sole question is whether the
Court of Appeals of Virginia correctly affirmed a trial court's
action in admitting evidence of defendant's prior convictions.
Indicted in the Circuit Court of Fairfax County for
distribution of cocaine, defendant Phillip Weathers was found
guilty by a jury. The bifurcated trial proceeded immediately to
the sentencing phase. During that phase, over defendant's
objection, the trial court admitted evidence of defendant's
three prior felony convictions.
Subsequently, confirming the jury's verdict of guilty, the
trial court sentenced defendant to 11 years confinement with
three years suspended. Upon appeal, the Court of Appeals
affirmed the conviction in an unpublished opinion. Weathers v.
Commonwealth, Record No. 0987-00-4 (Jan. 30, 2001). We awarded
defendant this appeal, limited to consideration of the foregoing
question.
Code § 19.2-295.1 states in pertinent part:
"The Commonwealth shall provide to the defendant fourteen
days prior to trial notice of its intention to introduce
evidence of the defendant's prior criminal convictions
. . . Prior to commencement of the trial, the Commonwealth
shall provide to the defendant photocopies of certified
copies of the defendant's prior criminal convictions which
it intends to introduce at sentencing."
In the present case, more than 14 days prior to trial, the
prosecution notified defendant of its intention to introduce
evidence of defendant's three prior criminal convictions.
During the guilt phase of the trial, and after the jury had
begun deliberations, the prosecutor provided defendant with
photocopies of certified copies of the prior convictions, which
eventually were received in evidence.
On appeal, defendant concedes that the prosecutor complied
with the statutory 14-day notice requirement. He contends,
however, that the prosecutor failed to comply strictly with the
statutory copying requirement because he was not furnished with
the photocopies "prior to commencement of trial." Therefore,
defendant argues, evidence of his prior convictions should not
have been admitted, and the Court of Appeals erred in affirming
the trial court's action. We do not agree.
The Court of Appeals ruled that defendant was given "proper
notice" of the prosecutor's intention to rely on the prior
convictions at sentencing, and that defendant failed to show his
ability to dispute these convictions "was prejudiced." Slip op.
at 7. Continuing, the court said that because the prosecutor
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"substantially complied" with Code § 19.2-295.1 and defendant
had "sufficient notice," the trial court correctly admitted the
convictions into evidence at sentencing. Id.
The Court of Appeals relied upon its decision in Lebedun v.
Commonwealth, 27 Va. App. 697, 501 S.E.2d 427 (1998). In that
case, the court said that the foregoing statute is "procedural
in nature" and "does not convey any substantive right." Id. at
717, 501 S.E.2d at 437. Citing Commonwealth v. Rafferty, 241
Va. 319, 324, 402 S.E.2d 17, 20 (1991), the court determined
that the statute's notice provisions are "merely directory," and
precise compliance was not essential to the validity of the
proceedings. Lebedun, 27 Va. App. at 717, 501 S.E.2d at 437.
As the Attorney General argues, the General Assembly has
acquiesced in the 1998 Lebedun decision because it amended the
statute in 2001 (Acts 2001, ch. 389) but did not abrogate the
Lebedun holding. When the General Assembly acts in an area in
which one of its appellate courts already has spoken, it is
presumed to know the law as the court has stated it and to
acquiesce therein, and if the legislature intends to countermand
such appellate decision it must do so explicitly. See Pitts v.
United States of America, 242 Va. 254, 261 n.2, 408 S.E.2d 901,
905 n.2 (1991).
Accordingly, we hold that, although the statute means what
it says and its directions should be followed, there has been
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substantial compliance with it in this case, and evidence of the
prior convictions was properly admitted, there having been no
showing of prejudice to the defendant. Indeed, defense counsel
stated to the trial court when the issue was being discussed,
"I'm conceding that it didn't prejudice the Defendant. I'm just
relying on the statute."
Consequently, the Court of Appeals did not err and its
judgment will be
Affirmed.
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