Present: All the Justices
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 972645 CHIEF JUSTICE HARRY L. CARRICO
November 6, 1998
DONESH R. ZAMANI
FROM THE COURT OF APPEALS OF VIRGINIA
Resolution of the question presented in this case
requires an interpretation of Code § 16.1-133, relating to
the withdrawal of appeals to circuit courts from judgments
of courts not of record, 1 and Code § 16.1-133.l, relating to
the reopening of cases in courts not of record. Finding
that the Court of Appeals correctly interpreted and applied
the Code sections, we will affirm its judgment.
Code § 16.1-133 provides that any person convicted in
a court not of record of an offense not felonious may, at
any time before an appeal is heard by the circuit court,
withdraw the appeal, pay the fine and costs, 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withdrawn more than ten days after conviction, the circuit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 and the clerk shall tax the costs as
provided by statute. Where the withdrawal occurs within
1
Code § 16.1-132 provides that any person convicted in a
district court of an offense not felonious shall have the
right within ten days from such conviction to appeal to the
circuit court.
ten days after conviction, no additional costs shall be
charged, and the judgment of the lower court shall be
affirmed without action by the circuit court.
Code § 16.1-133.1 provides that within sixty days from
the date of conviction of any person in a district court
for an offense not felonious, the case may be reopened by
the district court upon the application of such person for
good cause shown. If the case is reopened after the case
documents are filed with the circuit court, the clerk of
that court shall return such documents to the district
court in which the case originated.
The record shows that on March 21, 1996, the General
District Court of Rockingham County convicted Donesh R.
Zamani (Zamani) of two misdemeanor offenses of sexual
battery and sentenced him to jail terms of ninety days on
one offense and six months on the other. The court
suspended both terms, placed Zamani on probation, and
referred him for psychological evaluation. On the same
date, Zamani noted an appeal to the circuit court from both
convictions.
The notices of appeal signed by Zamani in district
court stated that his cases were scheduled to be called for
trial in the circuit court on April 8, 1996. On that date,
Zamani appeared in circuit court and waived trial by jury.
2
On motion of the Commonwealth, the court continued the
cases for trial on April 19, 1996.
On April 12, 1996, Zamani appeared in the general
district court, at which time that court reheard the cases,
took additional evidence, and entered an order finding
that, although the evidence was sufficient to convict
Zamani on both charges, there was sufficient cause to
withhold final adjudication of the matters. The court took
the cases under advisement for one year on condition that
Zamani be on probation during that time, complete
psychological counseling, and be of good behavior. The
order concluded with the statement that “[u]pon the
successful completion of the above conditions this matter
will be dismissed on April 19, 1997.”
On April 19, 1996, within the sixty-day period
prescribed by Code § 16.1-133.1, Zamani moved the circuit
court to withdraw his appeals. After oral argument, the
court ruled that, “[u]pon the transfer of the case to the
Circuit Court and the appearance of the parties thereon and
the passage of time for that[,] the Court feels that this
does divest the General District Court of jurisdiction in
the matter.” In a June 17, 1996 order, the circuit court
affirmed the district court’s sentences as originally
imposed on March 21, 1996.
3
Zamani appealed to the Court of Appeals and was
awarded an appeal. The Court of Appeals reversed the
judgment of the circuit court and remanded the case with
directions for the circuit court to “vacate its order
affirming the original district court judgments and for
entry of an order remanding the case to the district court
for entry of its order pursuant to the rehearing.” Zamani
v. Commonwealth, 26 Va. App. 59, 66, 492 S.E.2d 854, 858
(1997). We awarded the Commonwealth this appeal.
The Commonwealth recites on brief the principles that
apply to the construction of statutes. The primary
objective of statutory construction is to ascertain and
give effect to legislative intent. Turner v. Commonwealth,
226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). The plain,
obvious, and rational meaning of a statute is to be
preferred over any curious, narrow, or strained
construction. Id. A statute is not to be construed by
singling out a particular phrase; every part is presumed to
have some effect and is not to be disregarded unless
absolutely necessary. VEPCO v. Citizens for Safe Power,
222 Va. 866, 869, 284 S.E.2d 613, 615 (1981); Raven Coal
Corp. v. Absher, 153 Va. 332, 335, 149 S.E. 541, 542
(1929). And, when two statutes seemingly conflict, they
should be harmonized, if at all possible, to give effect to
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both. Board of Supervisors v. Marshall, 215 Va. 756, 761,
214 S.E.2d 146, 150 (1975).
The Commonwealth argues that while the Court of
Appeals “applied these fundamental tenets of statutory
construction to hold that § 16.1-133.1, not § 16.1-133,
governed this case,” the effect of the Court of Appeals’
decision was to contravene the “fundamental tenets,” ignore
“the unambiguous language of § 16.1-133,” and nullify the
provision of that Code section requiring a circuit court to
affirm the judgment of a district court when an appeal is
withdrawn more than ten days after conviction. The
Commonwealth maintains that, because Zamani did not
withdraw his appeal until more than ten days had elapsed
from the date of his conviction, Code § 16.1-133 “required
the circuit court to affirm the judgment [of the district
court] that had been the subject of the notice of appeal.” 2
2
The Commonwealth claims that its position was misstated by
the Court of Appeals when it said that “[u]nder the
Commonwealth’s approach, if an appeal is taken to the
circuit court, unless the petition to reopen is filed and
granted within ten days from the district court judgment,
the circuit court must affirm the district court’s judgment
if the appeal is withdrawn.” Zamani, 26 Va. App. at 64,
492 S.E.2d at 857. The Commonwealth avows that its
position in the Court of Appeals was, and is here, that “a
district court is free to reopen a case under § 16.1-133.1,
but only so long as the case has not been ‘heard’ in the
circuit court.” We will take the Commonwealth at its word.
5
The difficulty with the Commonwealth’s position is
that the position itself contravenes the “fundamental
tenets” the Commonwealth has endorsed as applicable to
statutory construction. The Commonwealth singles out a
particular provision of the statutes under review, i.e.,
§ 16.1-133’s provision that “the circuit court shall
forthwith enter an order affirming the judgment of the
lower court,” to the exclusion of other provisions equally
unambiguous, notably, the provision of Code § 16.1-133.1
that authorizes a district court to reopen a case within
sixty days of conviction.
The Commonwealth dismisses this latter provision with
the argument that Ҥ 16.1-133.1 does not apply to cases in
which the defendant goes forward with his appeal of his
convictions to the circuit court.” This argument, however,
also contravenes the “fundamental tenets” when it is
considered in context with the construction the
Commonwealth gives the term “heard,” as used in the
provision of Code § 16.1-133 which permits withdrawal of an
appeal “at any time before [it] is heard.”
The Commonwealth argues that Zamani’s appeal was heard
when he appeared in circuit court on April 8, 1996, waived
his right to a jury trial, and concurred in the
Commonwealth’s motion to continue the case to April 19,
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1996. The Commonwealth says that, upon such hearing, “the
district court’s jurisdiction terminated, and Zamani could
no longer withdraw his appeal, at least for purposes of
invoking § 16.1-133.1.”
To say the least, the Commonwealth’s construction of
the term “heard” is “curious, narrow, or strained.” See
Turner, 226 Va. at 459, 309 S.E.2d at 338. The incidents
of April 8, 1996, were merely procedural in nature and
preliminary to the hearing of Zamani’s appeal. While the
Commonwealth may be correct in saying that Code § 16.1-133
speaks of an appeal being “heard,” not “tried,” Code
§ 16.1-136, entitled “How appeal tried,” states that “[a]ny
appeal taken under the provisions of this chapter shall be
heard de novo . . . and shall be tried without formal
pleadings in writing.”
Obviously, something more than incidents like those of
April 8, 1996, is necessary before an appeal can be
considered as having been “heard.” We agree with the Court
of Appeals that “a de novo hearing on the merits” must
commence before the district court’s jurisdiction to reopen
a case is terminated. Zamani, 26 Va. App. at 65, 492
S.E.2d at 857. The incidents of April 8, 1996, did not
rise to the dignity of a de novo hearing on the merits.
7
Furthermore, the Commonwealth’s position gives no
effect to the authority implicitly granted a district court
by Code § 16.1-133.1, upon reopening a case, to modify or
reverse its original judgment. Surely, the General
Assembly did not intend that, after a case is reopened, a
district court’s authority to modify or reverse its
original judgment could be thwarted by a circuit court’s
summary affirmance of the judgment because an appeal is
withdrawn more than ten days after conviction.
The Commonwealth argues, however, that the General
Assembly did intend something different. The Commonwealth
says that “the legislature intended a procedure where
Zamani had two procedural alternatives — i.e., to seek a
reopening of his case in the district court within the 60
days after conviction, or to appeal the case to the circuit
court for a de novo trial.” Zamani “was not entitled,” the
Commonwealth maintains, “to a third option, whereby he
could reopen the case in the district court and then, if
unhappy with the result, resurrect his appeal to the
circuit court.”
We disagree with the Commonwealth. As the Court of
Appeals stated in its opinion in Zamani:
[T]he General Assembly intended to make fully
available to a person convicted of a misdemeanor . . .
both the right to seek review by a de novo appeal and
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the right, within sixty days, to petition to reopen
the case in the district court. Neither [§ 16.1-133
nor § 16.1-133.1] contains language indicating that
the exercise of one right limits or precludes the
exercise of the other. Thus, the two statutes must be
construed in a manner that affords a convicted person
the full opportunity to employ both post-trial
procedures to the extent that the exercise of one does
not conflict with the exercise of the other.[ 3 ]
Zamani, 26 Va. App. at 63-64, 492 S.E.2d at 856-57
(footnote omitted).
Furthermore, the language in Code § 16.1-133.1 itself
demonstrates the clear legislative intent that a defendant
may pursue both an appeal to circuit court and an
application for reopening in district court. The final
sentence of Code § 16.1-133.1 states: “If the case is
reopened after the case documents have been filed with the
circuit court, the clerk of the circuit court shall return
the case documents to the district court in which the case
was originally tried.”
3
The Commonwealth states that Zamani’s exercise of his
right to reopen his case in district court did conflict
with the exercise of his right to appeal to circuit court.
“[I]ndeed,” the Commonwealth argues, “the Court of Appeals
permitted Zamani to divest the circuit court of
jurisdiction after the case had been heard in that court.”
While this argument seems to miss the point, Zamani’s
appeal, as we demonstrated supra, had not been “heard” in
circuit court when the district court reopened the case
and, in any event, we do not understand from the
Commonwealth’s argument how Zamani’s exercise of one right
is supposed to have conflicted with the exercise of the
other.
9
This is legislative recognition of the propriety of
the coexistence of an appeal in circuit court and a
reopened case in district court, without any requirement
that one be considered as exclusive of the other or that
the filing for one precede the filing for the other. It is
also legislative recognition that, although the clerk of
the circuit court is required to return the case documents
to the district court upon that court’s reopening of a
case, an appeal would remain pending in circuit court,
albeit in a state of suspense, until withdrawn or decided.
Finally, the Commonwealth points out that this Court
has previously held that an appeal of a district court
judgment to a circuit court “is in effect a statutory grant
of a new trial, which annuls the judgment of the inferior
court as completely as if there had been no previous
trial.” Buck v. City of Danville, 213 Va. 387, 388, 192
S.E.2d 758, 759 (1972). The Commonwealth also reminds us
that we have said that the effect of an appeal to circuit
court is not only to annul the district court judgment but
also to deprive the district court of further jurisdiction.
Malouf v. City of Roanoke, 177 Va. 846, 855, 13 S.E.2d 319,
322 (1941).
It must be noted, however, that Malouf was decided in
1941 and Buck in 1972, while Code § 16.1-133.1 was not
10
enacted until 1973, effective as of July 1 of that year.
1973 Va. Acts ch. 440. The Code section was not considered
in Buck and Malouf, and what was said there does not affect
the conclusion we reach here.
By like token, Greene v. Greene, 223 Va. 210, 288
S.E.2d 447 (1982), cited by the Commonwealth, is
inapposite. There, we held that a circuit court could not
modify a child support order while an appeal from the order
was pending in this Court. We said that “[t]he orderly
administration of justice demands that when an appellate
court acquires jurisdiction over the parties involved in
litigation and the subject matter of their controversy, the
jurisdiction of the trial court from which the appeal was
taken must cease.” Id. at 212, 288 S.E.2d at 448. But, as
the Court of Appeals observed, “[n]o statute similar to
Code § 16.1-133.1 exists for cases appealed from the
circuit court to the Supreme Court or the Court of
Appeals.” Zamani, 26 Va. App. at 65, 492 S.E.2d at 857.
For the reasons assigned, we will affirm the judgment
of the Court of Appeals.
Affirmed.
11