Summons cannot be void ‘ab initio’

Where appellant argues his conviction for driving without a license was void ab initio because the summons failed to state an offense, the summons was not a court document and thus cannot be void ab initio.

“He also argued that his conviction in the circuit court for violating Code § 46.2-302 was void ab initio because the circuit court was without power to amend a void charging document. The circuit court denied his motion [to vacate his conviction.]”

Discussion

“Ellis argues that his conviction is void ab initio because it is based on a summons that is itself void ab initio. Ellis’s argument makes at least one crucial mistake – the summons is not an act of the court and thus cannot be void ab initio. …

“Ellis’s argument that the summons was void and could not be amended fails. …

“While a summons cannot be void ab initio, a charging document can be so defective as to violate the Constitution, in which case the final judgment will be void. …

“To avoid constitutional defectiveness, a charging document must give an accused ‘notice of the nature and character of the accusations against him so that he can prepare an adequate defense.’ …Where the error is a misrecital of applicable statutes or ordinances, the charging document is nevertheless valid if it puts the accused on notice of the ‘gravamen of the crime’ charged. …

“The summons incorrectly cites Ordinance § 26-8 as the local ordinance incorporating Code § 18.2-272. Although the summons cited the wrong ordinance number, § 26-8, there is a Newport News Ordinance, § 26-72,2 that legally incorporates Code § 18.2-272, meaning the city had the legal authority to charge Ellis under its existing ordinances.

“Both the Supreme Court and this Court have consistently held that a misrecital of a code provision in a charging document does not necessarily invalidate a conviction. …

“‘Gravamen’ means the ‘substantial point or essence’ of the crime. … [T]he summons plainly and clearly described the offense as ‘Driving Suspended DUI related.’ … [T]he charging document is required to give notice of the ‘nature and character,’ or gravamen, of the crime charged – not necessarily every particular. …

“Ellis was able to mount a defense to the crime charged and was able to negotiate a plea agreement that resulted in a conviction for a lesser offense. He had ample notice of the crime with which he was charged.

“Because Ellis had sufficient notice of the gravamen of the offense, the misrecital of the ordinance number did not render the summons ‘so defective as to be in violation of the Constitution.’ … Accordingly, the conviction is not void.”

Affirmed.

Ellis Jr. v. Commonwealth, Record No. 0818-21-1, July 19, 2022. CAV (AtLee Jr.) (Chaney dissenting) From the Circuit Court of the City of Newport News (Mills) Daniel B. Winegard for appellant. Tanner M. Russo, Jason S. Miyares for appellee. VLW 022-7-265, 18 pp. Unpublished opinion.