                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia


GERARDO RAMOS DIAZ
                                                  OPINION BY
v.   Record No. 1374-01-4                JUDGE JERE M. H. WILLIS, JR.
                                                 AUGUST 20, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                 Carleton Penn, Judge Designate

          Seth I. Howard, Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

          Michael T. Judge, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.

     On appeal from the revocation of the suspension of sentence

in his misdemeanor habitual offender case, Gerardo Diaz contends

that the trial court erred (1) in holding that he committed a

further violation within the period of suspension; and (2) in

holding that a circuit court sentencing order pursuant to Code

§ 16.1-133 relates back to the district court conviction date.

For the following reasons, we reverse the judgment of the trial

court.

                            I.   BACKGROUND

     On June 27, 2000, Diaz was convicted in the district court

of driving after having been declared an habitual offender

(first offense-misdemeanor) and was sentenced to serve ninety
days in jail, with seventy days suspended on condition of his

good behavior.    He was ordered to begin serving his active jail

sentence on July 7, 2000.   He timely noted an appeal.         See Code

§ 16.1-132.

     Also on June 27, 2000, after the conclusion of the district

court proceedings, Diaz was again arrested for driving a motor

vehicle after having been declared an habitual offender

(second/subsequent offense-felony).

     On August 1, 2000, Diaz withdrew the appeal of his June 27,

2000 conviction.    See Code § 16.1-133.      The circuit court

entered an order "confirm[ing] [sic] the judgment of the General

District Court" and imposing the sentence assessed in the

district court.    Diaz was ordered to remain on general good

behavior and to report to the Fauquier County Adult Detention

Center to begin serving his sentence on August 4, 2000.

     On November 7, 2000, Diaz pleaded guilty to the June 27,

2000 felony habitual offender violation.       He was convicted and

sentenced to serve one year and two months in prison.         On April

13, 2001, the trial court held that Diaz's June 27, 2000 offense

violated the terms of his June 27, 2000 suspended sentence in

the misdemeanor habitual offender case.       It revoked the

suspension and ordered him to serve the suspended seventy days.

                            II.    ANALYSIS

     A court may revoke a suspension of sentence for sufficient

cause occurring during the period of suspension.       Code

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§ 19.2-306.    Diaz contends that his June 27, 2000 felony

habitual offender violation did not occur within the suspension

period of his June 27, 2000 misdemeanor conviction.         He argues

that his appeal of that conviction suspended the order of

conviction and sentence.    He further argues that the trial

court's August 1, 2000 order, confirming the district court's

judgment, was effective August 1, 2000, and operated from that

date.    Thus, he argues, no suspension of sentence was in effect

when he was arrested on June 27, 2000.

        Citing Code § 16.1-133.1, the Commonwealth argues that

jurisdiction in the general district court continues post

judgment for sixty days or until a de novo trial on the merits

is commenced in the circuit court.          Thus, the Commonwealth

argues, Diaz's appeal did not suspend the effective operability

of his June 27, 2000 order of conviction.         We agree with Diaz.

This case does not involve the reopening of a case in the

district court.    It involves only the effect of an appeal taken

pursuant to Code § 16.1-132.

        Code § 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 on a plea of guilty, to
             appeal to the circuit court. . . .

        Code § 16.1-136 provides:

             Any appeal taken under the provisions of
             [Code § 16.1-132] shall be heard de novo in

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          the appellate court and shall be tried
          without formal pleadings in writing; and,
          except in the case of an appeal from any
          order or judgment of a court not of record
          forfeiting any recognizance or revoking any
          suspension of sentence, the accused shall be
          entitled to trial by a jury in the same
          manner as if he had been indicted for the
          offense in the circuit court.

Thus, the judgment of the circuit court on appeal supersedes and

abrogates the district court judgment from which the appeal is

taken.

     Code § 16.1-133 provides:

          [A]ny person convicted in a general district
          court . . . of an offense not felonious may,
          at any time before the appeal is heard,
          withdraw an appeal which has been noted, pay
          the fine and costs to such court, and serve
          any sentence which has been imposed.

          A person withdrawing an appeal shall give
          written notice of withdrawal to the court
          and counsel for the prosecution prior to the
          hearing date of the appeal. 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.
          Fines and costs shall be collected by the
          circuit court and all papers shall be
          retained in the circuit court clerk's
          office.

          Where the withdrawal is within ten days
          after conviction, no additional costs shall
          be charged, and the judgment of the lower
          court shall be imposed without further
          action of the circuit court.

Thus, when an appeal is withdrawn within ten days of the

district court conviction, the withdrawal nullifies the appeal



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and reinstates the district court judgment.   However, when the

appeal is withdrawn more than ten days after the district court

conviction, action by the circuit court is required.   Although

the required action is the affirmation of the district court

judgment, the action is nonetheless the judgment of the circuit

court.   The judgment of the district court is abrogated.   See

Zamani v. Commonwealth, 26 Va. App. 59, 62, 492 S.E.2d 854, 856

(1997), aff'd sub nom, 256 Va. 391, 507 S.E.2d 608 (1998). 1

     Diaz's appeal of his June 27, 2000 district court

conviction suspended the operation of that judgment.   After the

expiration of ten days, the charge continued as an open

proceeding in the circuit court, subject to retrial de novo

pursuant to Code § 16.1-136 or withdrawal pursuant to the second

paragraph of Code § 16.1-133.   Diaz pursued the latter course

and, in compliance with the statute, the trial court entered its

August 1, 2000 order, affirming the district court judgment and

imposing the sentence imposed by the district court.   That order

was the order of the circuit court, effective from the date of

its entry, August 1, 2000.   It superseded and abrogated the

district court's June 27, 2000 order.   Thus, the sentence and


     1
       Zamani recognized and reaffirms the foregoing general
rule, see Buck v. City of Danville, 213 Va. 387, 388, 192 S.E.2d
758, 759 (1972), but held that rule to be subject to the
authority of a district court, under appropriate circumstances,
to reopen the case pursuant to Code § 16.1-133.1, a circumstance
not involved in this case.



                                - 5 -
suspension of sentence imposed by the June 27, 2000 order were

not in force when Diaz was arrested on June 27, 2000.

     The judgment of the trial court is reversed, and the

proceeding against Diaz is ordered dismissed.

                                        Reversed and dismissed.




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