Commonwealth v. Diaz

585 S.E.2d 552, 266 Va. 260, 2003 Va. LEXIS 90
CourtSupreme Court of Virginia
DecidedSeptember 12, 2003
DocketRecord 022446
StatusPublished
Cited by29 cases

This text of 585 S.E.2d 552 (Commonwealth v. Diaz) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Diaz, 585 S.E.2d 552, 266 Va. 260, 2003 Va. LEXIS 90 (Va. 2003).

Opinions

JUSTICE KEENAN

delivered the opinion of the Court.

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revoked the suspended sentence on the basis that the circuit court order, affirming the conviction and sentence in the withdrawn appeal, “abrogated” the district court’s judgment.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 [263]*263habitual 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 If the appeal is withdrawn more than ten days after conviction, the circuit court shall forthwith enter an order affirming the judgment of the lower court ....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:

[Wjhen [an] appeal is withdrawn more than ten days after the district court conviction, action by the circuit court is required. [264]*264Although 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, “[ajfter 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.

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Bluebook (online)
585 S.E.2d 552, 266 Va. 260, 2003 Va. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-diaz-va-2003.