Com. v. Diaz, Record No. 022446.

• Decision Date: 12 September 2003
• Docket Number: Record No. 022446.
• Citation: 585 S.E.2d 552,266 Va. 260
• Parties: COMMONWEALTH of Virginia, v. Gerardo Ramos DIAZ.
• Court: Virginia Supreme Court

585 S.E.2d 552

266 Va. 260

COMMONWEALTH of Virginia, v. Gerardo Ramos DIAZ.

Record No. 022446.

Supreme Court of Virginia.

September 12, 2003.

Michael T. Judge, Assistant Attorney General (Jerry W, Kilgore, Attorney General, on briefs), for appellant.

Phillip B. Leiser, Falls Church (Seth I. Howard; Leiser & Associates, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice BARBARA MILANO KEENAN.

This appeal involves a revocation of a suspended sentence based on an offense that occurred after a conviction in the general district court for which the suspended sentence was imposed, but prior to the withdrawal of an appeal from that conviction. We consider whether the Court of Appeals erred in holding that the circuit court improperly revoked the suspended sentence, on the basis that the circuit court order, affirming the conviction and sentence in the withdrawn appeal, "abrogated" the district court's judgment.

On June 27, 2000, Gerardo R. Diaz was convicted in the Fauquier County General District Court (the district court) of the misdemeanor offense of driving after having been declared an habitual offender, first offense, in violation of Code § 46.2-357. The district court imposed a sentence of 90 days in jail, with 70 days suspended conditioned on, among other things, Diaz "being of good behavior." The court ordered Diaz to serve his sentence on consecutive weekends, beginning July 7, 2000. While attempting to drive home from the courthouse following his conviction on June 27, 2000, Diaz was arrested on a felony charge of driving after having been declared an habitual offender, second or subsequent offense, in violation of Code § 46.2-357.

On July 5, 2000, Diaz noted an appeal from the district court judgment to the Circuit Court of Fauquier County (the circuit court), but withdrew his appeal on August 1, 2000. Code § 16.1-133, which provides for the withdrawal of an appeal from a district court conviction, states in relevant part:

[A]ny person convicted in a general district court ... of an offense not felonious may, at any time before the appeal is heard, withdraw an appeal which has been noted, pay the fine and costs to such court, 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....

Three days after Diaz withdrew his appeal, the circuit court entered an order stating that the court "confirm[ed]" the district court's judgment. The circuit court imposed the same sentence that Diaz received in the district court, including the partial suspension of sentence conditioned on his good behavior.

Diaz later pleaded guilty to the June 27, 2000 felony offense and was sentenced to a term of imprisonment of one year and two months. Thereafter, the circuit court ordered Diaz to show cause why his suspended sentence on the misdemeanor conviction should not be revoked.

During a revocation hearing, Diaz argued that the circuit court lacked authority to revoke his suspended sentence on the misdemeanor conviction, contending that the period of his "good behavior" did not begin until the circuit court affirmed the district court judgment. The circuit court revoked the suspended portion of Diaz's sentence on the misdemeanor conviction and ordered him to serve 70 days in jail, the balance of his original 90-day sentence.

Diaz appealed from this judgment to the Court of Appeals, which reversed the circuit court's judgment. Diaz v. Commonwealth, 38 Va.App. 713, 714, 718, 568 S.E.2d 401, 402-03 (2002). The Court stated:

[W]hen [an] appeal is withdrawn more than ten days after the district court conviction, action by the circuit court is required. Although the required action is the affirmation of the district court judgment, the action is nonetheless the judgment of the circuit court. The judgment of the district court is abrogated.

Id. at 717, 568 S.E.2d at 403. The Court concluded that Diaz's appeal of the district court judgment on the misdemeanor conviction suspended the operation of that judgment and that, "[a]fter the expiration of ten days, the charge continued as an open proceeding in the circuit court, subject to retrial de novo ... or withdrawal." Id. The Court held that the circuit court order affirming the district court judgment "superseded and abrogated" that judgment and, thus, that the sentence and partial suspension of sentence imposed by the district court "were not in force" when Diaz committed the June 27, 2000 felony offense. Id. at 717-18, 568 S.E.2d at 403.

On appeal to this Court, the Commonwealth argues that the Court of Appeals erred in holding that the circuit court order affirming the district court judgment abrogated that same judgment. The Commonwealth asserts that under the plain language of Code § 16.1-133, the circuit court's order merely affirmed the district court's judgment, which was not annulled because a trial de novo did not occur in the circuit court. The Commonwealth contends that Diaz's period of good behavior on the misdemeanor conviction began on June 27, 2000, the date of his conviction in the district court, and that he committed the felony offense while he was subject to a revocation of his suspended sentence on the misdemeanor conviction.

In response, Diaz argues that he was not subject to a revocation of the suspended sentence imposed by the district court because his appeal to the circuit court suspended the execution of that sentence. He further asserts that the circuit court order affirming the district court judgment abrogated that prior judgment. Thus, he contends that his period of good behavior on the misdemeanor conviction did not begin until the circuit court entered its order affirming his conviction by the district court.¹ We disagree with Diaz's arguments.

Under basic principles of statutory construction, we must determine the General Assembly's intent from the words contained in a statute. Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003); Thomas v. Commonwealth, 256 Va. 38, 41-42, 501 S.E.2d 391, 393 (1998). When the language of a statute is unambiguous, we are bound by the plain meaning of that language and may not assign the words a construction that amounts to holding that the General Assembly did not mean what it actually stated. Williams, 265 Va. at 271, 576 S.E.2d at 470; Mozley v. Prestwould Bd. of Dirs., 264 Va. 549, 554, 570 S.E.2d 817, 820 (2002).

We conclude that the language of Code 16.1-133 is unambiguous and dictates that a district court judgment remains valid when an appeal has been noted but has been withdrawn more than ten days after the date of that judgment. Our conclusion is based primarily on the General Assembly's use of the word "affirming," which identifies the relationship between the final judgment orders of the district and circuit courts when an appeal is withdrawn in the stated time period.

The word "affirm" is defined as "[t]o ratify, uphold, approve." Black's Law Dictionary 59 (6th ed.1990). By requiring the circuit court to enter an order "affirming" the district court judgment, the statutory language indicates that the general district court judgment in the withdrawn appeal remains in effect and is ratified by the circuit court order.

This interpretation is in accord with the general rule that a de novo hearing on the merits of an appeal must actually begin in the circuit court before a district court judgment is annulled. We explained this principle in Commonwealth v. Zamani, 256 Va. 391, 507 S.E.2d 608 (1998), in the context of Code § 16.1-133.1, which provides a 60-day period for reopening a case in a district court after entry of a judgment by that court.

We held that during the 60-day period following entry of a district court judgment, the district court retains jurisdiction to reopen a case although a defendant has noted an appeal to the circuit court, unless a de novo hearing on the merits of the case has commenced in the circuit court. Zamani, 256 Va. at 397, 507 S.E.2d at 610. We emphasized that during this 60-day period, a district court's jurisdiction is unaffected even when a circuit court summarily affirms the district court judgment after an appeal is withdrawn under Code § 16.1-133. Id.

Based on the language of Code § 16.1-133 and our holding in Zamani, we conclude that the district court judgment convicting Diaz of the misdemeanor offense remained in effect throughout the proceedings in this case. When Diaz noted his appeal from the district court judgment, that judgment was stayed but remained a valid judgment while the appeal was pending. Because the circuit court order affirmed the district court judgment upon Diaz's withdrawal of his appeal, the circuit court order did not annul or abrogate the district court judgment but ratified the conviction and sentence imposed by the district court. Therefore, the original district court judgment remained in effect after the circuit court entered the order affirming that judgment under Code § 16.1-133.

Finally, we observe that we previously have stated that an appeal to a circuit court from a district court judgment annuls that prior judgment. See, e.g., Santen v. Tuthill, 265 Va. 492, 496, 578 S.E.2d 788, 791 (2003)

; Buck v. City of Danville, 213 Va. 387, 388, 192 S.E.2d 758, 759 (1972); Gaskill v. Commonwealth, 206 Va. 486, 490-91, 144 S.E.2d 293, 296-97 (1965). However, in each of these decisions, our statement was made concerning the process of appeals in which a trial de novo has actually commenced in the circuit court on the merits of the case....