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WHITNEY v. COMMONWEALTH


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WHITNEY

v.

COMMONWEALTH


MAY 1, 2001

Record No. 0835-00-1

Present: Judges Annunziata, Bumgardner and
Clements

Argued at Alexandria, Virginia

CHARLES WHITNEY, S/K/A

CHARLES ALBERT WHITNEY

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY

Westbrook J. Parker, Judge


MEMORANDUM OPINION[1] BY JUDGE RUDOLPH BUMGARDNER, III

Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on briefs), for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on brief), for
appellee.

Charles Albert Whitney appeals the revocation
of the suspended sentence he received in 1994 when a juvenile. He
contends the order of conviction was void because the juvenile
and domestic relations district court failed to notify his father
as required by Code ? 16.1-263. We agree and reverse.

The Commonwealth charged the defendant, then a
juvenile, with distribution of cocaine on June 6, 1993. The
petition identified his mother and his father but listed their
addresses as "unknown at intake." Neither the mother
nor the father received notice of the transfer hearing, though
the mother attended. The transfer order noted the defendant
"is not living with his parents and their addresses are
unknown." The trial court convicted the defendant and
sentenced him on June 14, 1994 to ten years incarceration with
five years suspended. The trial court later revoked the suspended
sentence on April 4, 2000 because the defendant violated the
terms of his probation.

When the juvenile court fails to provide notice
to a defendant’s parents, the circuit court lacks jurisdiction to
try the juvenile defendant as an adult because the transfer is
ineffectual. David Allen Moore v. Commonwealth, 259 Va.
431, 437, 527 S.E.2d 406, 409 (2000). Code ? 16.1-263(E)
[2]
defines the exception to the requirement for notice. Notice is
not required "when the trial judge has certified on the
record that the identity of a parent is not reasonably
ascertainable." Baker v Commonwealth, 28 Va. App.
306, 312, 505 S.E.2d 394, 397 (1998), aff’d, 258 Va. 1,
516 S.E.2d 219 (1999).

The Commonwealth contends a return of service
marked "address unknown" met the statutory exception
that the father’s

identity was not "reasonably
ascertainable." However, not knowing the address of an
identified person is different from not knowing the identity of
the person. The record identifies the defendant’s parents by
name. The identity of the father was ascertained; only his
whereabouts were unknown.

The defendant’s father did not receive notice,
and the trial court did not certify on the record an exception
permitted by Code ? 16.1-263(E). The conviction was void. Duong
v. Commonwealth
, 34 Va. App. 424, 428, 542 S.E.2d 47, 49
(2001). Accordingly, we reverse the imposition of the balance of
the sentence imposed. This decision makes the other assignment of
error moot.

Reversed.

FOOTNOTES:

[1] Pursuant to Code
? 17.1-413, this opinion is not designated for publication.

[2] Notification "shall [not] be required if the judge
shall certify on the record that (i) the identity of a parent or
guardian is not reasonably ascertainable or (ii) in cases in
which it is alleged that a juvenile has committed a delinquent
act, crime, status offense or traffic infraction or is in need of
services or supervision, the location, or in the case of a parent
or guardian located outside of the Commonwealth the location or
mailing address, of a parent or guardian is not reasonably
ascertainable." Code ? 16.1-263(E).

 

 

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