Commonwealth v. Zamani

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withdrawn more than ten days after conviction, the circuit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

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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