Home / Fulltext Opinions / Supreme Court of Virginia / COMMONWEALTH OF VA v. ZAMANI (59766)





November 6, 1998
Record No. 972645




Present: All the Justices

Resolution of the question presented in this
case requires an interpretation of Code Sect. 16.1-133, relating
to the withdrawal of appeals to circuit courts from judgments of
courts not of record,
[1] and Code Sect.
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 Sect. 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 If the appeal is withdrawn more than ten days after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 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 Sect. 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
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. 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
Sect. 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.
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
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 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 Sect. 16.1-133.1, not Sect. 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 Sect. 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 Sect. 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."
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., Sect. 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 Sect. 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 "? 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 Sect. 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, 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 Sect. 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 Sect. 16.1-133
speaks of an appeal being "heard," not
"tried," Code Sect. 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.
Furthermore, the Commonwealth’s position gives no effect to the
authority implicitly granted a district court by Code Sect.
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 the right,
within sixty days, to petition to reopen the case in the district
court. Neither [? 16.1-133 nor Sect. 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.

Zamani, 26 Va. App. at 63-64, 492 S.E.2d at 856-57
(footnote omitted).
Furthermore, the language in Code Sect. 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 Sect.
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."
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 Sect. 16.1-133.1 was not
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 Sect. 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
For the reasons assigned, we will affirm the judgment of the
Court of Appeals.


[1] Code Sect. 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.

[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 Sect.
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

[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.