Woody v. Com.

• Decision Date: 30 December 2008
• Docket Number: Record No. 2716-07-3.
• Citation: 670 S.E.2d 39,53 Va. App. 188
• Parties: Robert Edward WOODY v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

670 S.E.2d 39

53 Va. App. 188

Robert Edward WOODY v. COMMONWEALTH of Virginia.

Record No. 2716-07-3.

Court of Appeals of Virginia, Salem.

December 30, 2008.

Joseph A. Sanzone (Sanzone & Baker, on briefs), Lynchburg, for appellant.

Josephine F. Whalen, Assistant Attorney General (Robert F. McDonnell, Attorney General, on briefs), for appellee.

Present: FRANK, McCLANAHAN and PETTY, JJ.

WILLIAM G. PETTY, Judge.

Following a bench trial, Robert Edward Woody was convicted of driving while intoxicated in violation of Amherst County Code § 9.1 and refusal to submit to a breath or blood test in violation of Code § 18.2-268.3. Woody argues on appeal that the evidence was insufficient to convict him of driving while intoxicated. For the following reasons, we hold that we do not have jurisdiction to hear this appeal; therefore, we dismiss the appeal.

I. BACKGROUND

Investigator Jason Staton of the Amherst County Sheriff's Department observed Woody drive out of a parking lot and cross four lanes of traffic. Staton was forced to apply his brakes in order to avoid contact. Investigator Staton initiated his emergency lights and pulled Woody over into another parking lot. After approaching the vehicle and speaking to Woody, Staton could smell a strong odor of alcohol and a strong odor of burning marijuana within the vehicle. Staton also noticed Woody's "red glossy [sic] eyes."

Woody admitted to drinking one beer an hour before this traffic stop occurred. Staton directed Woody to perform several field sobriety tests. After observing Woody's performance, Staton arrested him for driving under the influence and advised him of his Miranda warnings and the Virginia implied consent law. Staton told Woody that he would have to take a blood test, and Woody refused.

Staton issued Woody a summons charging him with refusing to take a blood test "in violation of Section 18.2-268.3, Code of Virginia." A magistrate issued a warrant on the driving while intoxicated charge. The warrant recited that Woody was charged with a "Misdemeanor (Local)" and that Amherst County was the prosecuting entity. The warrant further alleged that Woody "did unlawfully in violation of Section 18.2-266/9.1, Code of Ordinances of this city, county or town" drive while intoxicated.¹

Woody was tried and convicted of both counts in the General District Court of Amherst County. Woody appealed his convictions to the Circuit Court of Amherst County and, on October 22, 2007, he was again convicted of both charges. On November 9, 2007, Woody filed a notice of appeal styled "Commonwealth of Virginia v. Robert Edward Woody" in the circuit court clerk's office. The notice of appeal named the Commonwealth of Virginia as the appellee. Woody then petitioned this Court to grant his appeal of both convictions.

We granted Woody's petition on the first question regarding the sufficiency of the evidence on the driving under the influence charge; however, we did not grant the petition on the second question presented concerning the refusal conviction because we lack jurisdiction.² Because of inconsistencies in the trial court's final order we directed the trial court to clarify whether Woody was convicted under Amherst County Code § 9.1 or Virginia Code § 18.2-266. By order dated October 30, 2008, the trial court clarified that "the defendant was convicted of driving while intoxicated, 1st [sic] offense, in violation of § 9.1 of the Amherst County Code." The trial court then entered a corrected conviction order clearly indicating that Woody was convicted of a violation of the County ordinance.

Prior to oral argument, we ordered counsel for both parties to submit supplemental briefs addressing the following question: "Does this Court have jurisdiction to hear this appeal where (a) the final order reflects that the prosecution was brought by the County under a local ordinance, and (b) the notice of appeal identified the Commonwealth of Virginia and not the County of Amherst as the appellee?" Thus, before we can reach the merits in this case, we must first determine that we have jurisdiction to adjudicate this appeal.

II. ANALYSIS

A.

The Commonwealth filed a supplemental brief arguing that we do not have jurisdiction to hear this matter because Woody did not join the County, an indispensable party, as a party to this appeal. The Commonwealth argues "where an appellant has failed to include an indispensable party in a timely filed notice of appeal, the appellate court is deprived of jurisdiction over the party and the appeal must be dismissed." Supp. Appellee's Br. at 4.³ Woody concedes that the County was neither named as an appellee nor included in the caption of his notice of appeal; however, he argues that Rule 5A:6 governing a notice of appeal is not jurisdictional and the "County of Amherst suffered no prejudice as the `proper' appellee." Supp. Appellant's Br. at 5. Woody reasons that "the attorney for the Commonwealth Attorney's office who prosecuted [him] received timely notice of the appeal pursuant to Rule 5A:6 and all filings since that time from both parties have referenced this case without any confusion as to what was being appealed." Id. For the following reasons, we conclude that we lack jurisdiction to adjudicate this appeal.

Our jurisprudence relating to a notice of appeal to this Court and the failure to join an indispensable party is well settled. Code § 17.1-407 prescribes "[t]he notice of appeal in all cases within the jurisdiction of the court shall be filed with the clerk of the trial court ... and a copy of such notice shall be mailed or delivered to all opposing counsel and parties not represented by counsel ...." (Emphasis added). Further, "[t]he notice of appeal to the Court of Appeals shall be filed in every case within the court's appellate jurisdiction as provided in [Code] § 8.01-675.3." Code § 17.1-408 (emphasis added). Code § 8.01-675.3, in turn, requires that "a notice of appeal ... shall be filed within 30 days from the date of any final judgment order, decree or conviction." (Emphasis added).

Pursuant to its authority under Code § 8.01-3, our Supreme Court essentially incorporated all of these statutory requirements and promulgated Rule 5A:6:

(a) Timeliness. — No appeal shall be allowed unless, within 30 days after entry of final judgment ..., counsel files with the clerk of the trial court a notice of appeal, and at the same time mails or delivers a copy of such notice to all opposing counsel and the clerk of the Court of Appeals.

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(d) Certificate. — The appellant shall include with the notice of appeal a certificate stating:

(1) the names and addresses of all appellants and appellees, the names, addresses, and telephone numbers of counsel for each party, and the address and telephone number of any party not represented by counsel.

(Emphasis added). We have, on several occasions, characterized this requirement as "mandatory." E.g., Watkins v. Fairfax County Dep't of Family Services, 42 Va.App. 760, 774, 595 S.E.2d 19, 26 (2004).⁴ If the notice of appeal is not filed within 30 days, "the notice is `ineffective' and the appeal is never properly perfected." Id. (quoting Zion Church Designers & Builders v. McDonald, 18 Va.App. 580, 583, 445 S.E.2d 704, 706 (1994) (recognizing that the time requirement is jurisdictional)).

B.

The notice of appeal is an important aspect of appellate litigation for several reasons. First, it initiates the appeal.⁵ Second, it gives notice to the parties that the litigation is not yet over and the victory in the lower court may be short-lived.⁶ Third, it transfers jurisdiction of the case from the circuit court to the appellate court. Id. at 772, 595 S.E.2d at 25. And fourth, and most important for this case, it joins the indispensable and necessary parties to the appeal and subjects them to the authority of the appellate court. Id. at 774, 595 S.E.2d at 26; Zion, 18 Va.App. at 584, 445 S.E.2d at 706.

"The Supreme Court of Virginia has used the terms `indispensable parties' and `necessary parties' synonymously." Watkins, 42 Va.App. at 765, 595 S.E.2d at 22 (citing Asch v. Friends of the Community of Mount Vernon Yacht Club, 251 Va. 89, 90-91, 465 S.E.2d 817, 818 (1996)). Accordingly, our Supreme Court has defined the terms broadly:

Where an individual is in the actual enjoyment of the subject matter, or has an interest in it, either in possession or expectancy, which is likely either to be defeated or diminished by the [appellant's] claim, in such case he has an immediate interest in resisting the demand, and all persons who have such immediate interests are necessary parties to the suit.

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[An indispensable party's] interest in the subject matter of the suit, and in the relief sought, [is] so bound up with that of the other parties, that [its] legal presence as parties to the proceeding is an absolute necessity, without which the court cannot proceed. In such cases the court refuses to entertain the suit, when these parties cannot be subjected to its jurisdiction.

Asch, 251 Va. at 90-91, 465 S.E.2d at 818 (internal quotation marks and citations omitted).

In this case, Woody filed a notice of appeal within the mandatory thirty-day time period, but he never named the County as a party— neither as an appellant nor as an appellee. There is no doubt that the County is an indispensable party. It is clear from the record and the trial court's October 30, 2008 order that the County was the prosecuting authority for the driving while intoxicated charge. It is also clear from the record that Woody named the Commonwealth of Virginia as appellee in his notice of appeal, petition for appeal, and opening brief of appellant. Further, in Woody's certificate to his notice of appeal, Woody specifically stated, "[t]he name of appellee is The Commonwealth of Virginia."

The County obviously has a strong interest in prosecuting crimes such as driving while intoxicated because these violations...