Opinion
47009 No. 1737-89-2
Decided March 12, 1991
(1) Appellate Review — De Novo Appeals — Standard. — No condition is imposed upon the exercise of the statutory right of appeal de novo other than the requirement that the appeal be made within ten days from the conviction in district court.
(2) Appellate Review — De Novo Appeals — Standard. — Code Sec. 16.1 — 135 does not impose a bonding condition upon a defendant's exercise of his right to trial de novo.
David W. Holland for appellant.
Michael T. Soberick, County Attorney, for appellee.
SUMMARY
Defendant was convicted in general district court of constructing a private road without a land use permit. On the day of his conviction, he noted his appeal to the circuit court. In the circuit court, the Commonwealth moved to dismiss the appeal, contending that an appeal bond had not been posted within the required time. The circuit court granted the motion to dismiss (Circuit Court of Middlesex County, John E. DeHardit, Judge).
The Court of Appeals reversed, holding that the Code does not impose a bonding condition upon the right to appeal de novo. Reversed and remanded.
OPINION
The right of an accused to appeal from the district court to the circuit court and obtain retrial of a misdemeanor charge pursuant to Code Sec. 16.1-132 is not dependent upon his posting an appeal bond.
John B. Hill was arrested on a criminal warrant charging that he did unlawfully "construct approximately one mile of private road, beginning at the Terminus of Route 601 and extending in an easterly direction, without first securing a land distrubing (sic) permit." He was released on a Virginia Uniform Summons whereby he agreed to appear in the General District Court of Middlesex County on March 20, 1989. On June 5, 1989, he was found guilty and was sentenced to pay a fine of $250. On that day he noted his appeal to the circuit court. On July 10, 1989 he executed a civil appeal bond in the penalty of $250, secured by a cash deposit. By its order of October 4, 1989, the trial court sustained the Commonwealth's motion "to dismiss the appeal on the grounds that the bond had not been posted within the required time."
(1) Code Sec. 16.1-132 provides:
Any person convicted in a district court of an offense not felonious shall have the right, at any time within ten days from such conviction, and whether or not such conviction was upon a plea of guilty, to appeal to the circuit court. There shall also be an appeal of right from any order or judgment of a district court forfeiting any recognizance or revoking any suspension of sentence.
This statute sets forth a statutory grant of a new trial. Harbaugh v. Commonwealth, 209 Va. 695, 698-99, 167 S.E.2d 329, 332 (1969). It thereby secures to one accused of a misdemeanor his right to a jury trial. Gaskill v. Commonwealth, 206 Va. 486, 490, 144 S.E.2d 293, 296 (1965). No condition is imposed upon the exercise of the statutory right other than the requirement that the appeal be made within ten days from conviction in the district court.
(2) Code Sec. 16.1-135 provides:
A person who has been convicted of an offense in a district court and who has noted an appeal, either at the time judgment is rendered or subsequent to its entry, shall be given credit for any bond that he may have posted in the court from which he appeals and shall be treated in accordance with the provisions of Sections 19.2-123 and 19.2-124. Any new bond which may be required for the release of such person pending the appeal shall be given before the judge or the clerk of the district court and treated in accordance with Sections 19.2-123 and 19.2-124; however, if the judge or clerk is not available to take the bond, the bond may be given before a magistrate of the jurisdiction. Whenever an appeal is taken and the ten-day period prescribed by Sec. 16.1-133 has expired the papers shall be promptly filed with the clerk of the circuit court.
This section authorizes the requirement of bail and describes the manner of taking and handling bail bonds. It does not require the accused to secure his release on bail, nor does it impose a bonding condition upon his exercise of his right to trial de novo.
When Hill noted his appeal from the district court to the circuit court he thereby perfected it. The judgment of the trial court dismissing the appeal is reversed and this case is remanded for trial de novo on the charges originally brought.
Reversed and remanded.
Baker, J., and Moon, J., concurred.