Buck v. City of Danville
| Decision Date | 27 November 1972 |
| Citation | 192 S.E.2d 758,213 Va. 387 |
| Parties | Clarence James BUCK v. CITY OF DANVILLE. |
| Court | Virginia Supreme Court |
Herman G. Koplen, Danville, for plaintiff in error.
William H. Fuller, III, Commonwealth's Atty. for City of Danville, for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN, and POFF, JJ.
I'ANSON, Justice.
Clarence James Buck, defendant, was tried in the Municipal Court of the City of Danville on a warrant charging him with operating a motor vehicle while under the influence of alcohol in violation of a city ordinance, and he was convicted of the lesser and included offense of impaired driving. He appealed his conviction to the Corporation Court of Danville, and upon his trial in that court was convicted, over his objection, of driving under the influence of intoxicants. We granted defendant a writ of error to the judgment.
The only issue presented on this appeal is: May one who was tried in a court not of record on a warrant charging him with driving under the influence of alcohol, and who was convicted of the lesser included offense of impaired driving, be tried and convicted of driving under the influence of intoxicants on an appeal of his conviction to the corporation court?
Code § 16.1--132, as amended, 1960 Repl. Vol., grants to any person Convicted in a court not of record of any offense not felonious the right to an appeal from Such conviction to a court of record; and Code § 16.1--136, as amended, provides that such appeal shall be heard De novo in a court of record.
The Municipal Court had exclusive original jurisdiction to try defendant on the warrant which charged operating a motor vehicle while under the influence of alcohol and under the provision of the city's ordinance, which paralleled Code § 18.1--56.1, 1 to find defendant guilty of either driving under the influence or impaired driving, the lesser included offense. Thus defendant, in his trial in Municipal Court, was put in jeopardy by the charge of driving under the influence in a court of competent jurisdiction, and when the court convicted him of the lesser included offense of impaired driving he was acquitted of the driving under the influence of alcohol charge.
An appeal under Code § 16.1--132 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, and it is reversible error to mention such judgment of conviction in a trial of the case on appeal. Harbaugh v. Commonwealth, 209 Va. 695, 698--699, 167 S.E.2d 329, 332 (1969); Gaskill v. Commonwealth, 206 Va. 486, 490, 144 S.E.2d 293, 296 (1965). But that does not mean that when a warrant charges an accused with an offense of several grades, and on his trial in a court not of record he is acquitted of the greater offense and convicted of the lesser included offense, on appeal from that conviction he is placed in the same position as to the offense of which he was acquitted as if no trial had been had.
In Peak v. Commonwealth, 171 Va. 535, 541, 199 S.E. 473, 476 (1938), we said:
To hold that defendant's appeal of the judgment of conviction places him in the same position as to the offense of which he was acquitted as if no trial had been had would be in conflict with Article I, § 8, of the Constitution of Virginia, which reads in part as follows:
'He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers * * * nor be put twice in jeopardy for the same offense.'
See also, Strickbine v. State, 201 Ark. 1031, 1035, 148 S.W.2d 180, 182 (1941).
In Bass v. Commonwealth, 209 Va. 422, 425, 164 S.E.2d 667, 670 (1968), defendant was convicted of impaired driving in the county court under a warrant charging driving under the influence of alcohol. We held that it was proper for the defendant, on appeal to the circuit court, to be tried on the impaired driving charge.
For the reasons stated, the judgment of the court below is reversed and set aside, and the case is remanded for a new trial on the charge of impaired driving.
Reversed and remanded.
I disagree with the conclusion reached by the majority.
For many years Virginia has had a two-tier system for adjudicating less serious criminal cases. These crimes, classified generally under state law as misdemeanors, are charged and tried in our county and municipal courts where a defendant may choose to have a trial or to plead guilty. If convicted after a trial on a plea of not guilty, or if convicted on a plea of guilty, a defendant has an absolute right to a trial de novo in a court of record so long as he indicates such a decision within the statutory time. This right to a new trial does not involve error in the inferior court proceeding. It is not a review of a case previously tried. The Virginia law contemplates that the slate will be wiped clean. Both prosecution and defense begin anew. The judgment of the inferior court is a nullity. The case is recorded exactly as if it had been brought in the court of record in the first instance, and a convicted defendant may seek review in this court in the same manner as a person tried initially in the court of record. In Virginia there is no appellate review of an inferior court ruling. The defendant's recourse is a trial de novo. This is an option which the defendant has, and which the Commonwealth does not have.
In Johnson v. Commonwealth, 212 Va. 579, 585--586, 186 S.E.2d 53, 58 (1972), cert. den. 407 U.S. 925, 92 S.Ct. 2458, 32 L.Ed.2d 812 (1972), we said:
'In these cases, the defendants' appeal to the circuit court was not predicated or dependent on error in the trial in the county court. In fact, their appeal to the circuit court was not an appeal in the usual sense of the word. Rather, the defendants' 'appeal' was an exercise of the unqualified right to a trial de novo, which gave them a second full opportunity for acquittal.
'To view the Virginia procedure as forcing an accused to lose the 'benefit' of the county court sentence and as 'chilling' his right to appeal begs the point. The State could constitutionally afford an accused the right to only one original trial. One trial in the circuit court would satisfy all constitutional guarantees.
The observations we make as to the effect of Virginia Code § 16.1--132 are virtually the same...
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