                    COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia


DAYMON RUFFIN, S/K/A
 DAMION RUFFIN
                                                 OPINION BY
v.   Record No. 0063-00-2                 JUDGE ROBERT J. HUMPHREYS
                                                MARCH 6, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                     James F. D'Alton, Jr., Judge

            Mufeed W. Said, Assistant Public Defender
            (Office of the Public Defender, on brief),
            for appellant.

            Kathleen B. Martin, Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.


     The appellant, Daymon Ruffin, was convicted in his absence of

driving on a suspended driver's license with prior convictions and

sentenced to twelve months in jail.    On appeal, he contends that

the trial court erred in enforcing the jail sentence in his

absence.

                            I.   Background

     On July 24, 1999, Officers John McClellan and William

Bondenhamer, of the Petersburg Police Department, issued a summons

to Ruffin for driving on a suspended license with prior

convictions.   Ruffin was convicted in general district court and

appealed the decision to the circuit court.    Ruffin executed a
recognizance appeal bond which provided that if he failed to

appear for trial, he could be tried and convicted in his absence,

and would waive his right to a jury trial.

     Ruffin's case was set for a jury trial in circuit court on

December 30, 1999.       Ruffin was present in court the day the trial

date was set and had knowledge of the trial date.        However, Ruffin

did not appear for trial.         Consequently, the trial court released

the jury, issued a capias and tried Ruffin in his absence upon a

plea of not guilty.      The trial court convicted Ruffin and

proceeded to sentence him.         The following exchange occurred

between the court and Ruffin's counsel:

          [COUNSEL FOR APPELLANT]: Judge, I wasn't
          aware that the court could impose an active
          jail sentence without the defendant being
          here. Are we on sentencing now?

           *         *        *        *      *      *      *

          THE COURT: It's a misdemeanor. He can be
          tried in his absence. And I don't think
          there's any prohibition if he willfully
          absents himself, which it appears he's done,
          his bond indicates that he can be tried in
          his absence so there's no prohibition
          against sentencing him in his absence on a
          misdemeanor.

          [COUNSEL FOR APPELLANT]: Certainly, Judge,
          I wasn't aware of that. I would just note
          my exception to that.

The trial court then sentenced Ruffin to jail for a period of

twelve months.




                                     - 2 -
                          II.    Analysis

     Ruffin argues that the trial court incorrectly sentenced him

in his absence and bases his argument on Code § 19.2-237, which

provides the following:

          On any indictment or presentment for a
          misdemeanor, process shall be issued
          immediately. If the accused appear and
          plead to the charge, the trial shall proceed
          without delay, unless good cause for
          continuance be shown. If, in any
          misdemeanor case the accused fails to appear
          and plead, when required the court may
          either award a capias or proceed to trial in
          the same manner as if the accused had
          appeared, plead not guilty and waived trial
          by jury, provided, that the court shall not
          in any such case enforce a jail sentence.

(Emphasis added.)

     Conversely, the Commonwealth argues that Code § 19.2-258

applies to Ruffin's case and permits sentencing a convicted

misdemeanant in his absence.    That section provides:

          In all cases of a misdemeanor upon a plea of
          guilty, tendered in person by the accused or
          his counsel, the court shall hear and
          determine the case without the intervention
          of a jury. If the accused plead not guilty,
          in person or by his counsel, the court, in
          its discretion, with the concurrence of the
          accused and the attorney for the
          Commonwealth, may hear and determine the
          case without the intervention of a jury. In
          each instance the court shall have and
          exercise all the powers and duties vested in
          juries by any statute relating to crimes and
          punishments.

          When a person charged with a misdemeanor has
          been admitted to bail or released upon his
          own recognizance for his appearance before a
          court of record having jurisdiction of the

                                - 3 -
          case, for a hearing thereon and fails to
          appear in accordance with the condition of
          his bail or recognizance, he shall be deemed
          to have waived trial by a jury and the case
          may be heard in his absence as upon a plea
          of not guilty.

Code § 19.2-258.

     The Commonwealth argues that because Code § 19.2-258

addresses situations where defendants on recognizance bonds fail

to appear, and states that a "court shall have and exercise all

the powers and duties vested in juries by any statute relating

to crime and punishments," it applies to Ruffin and provides the

trial court with the authority to "punish" or enforce a jail

sentence upon him in his absence, despite the language in Code

§ 19.2-237 barring the enforcement of a jail sentence on

defendants tried in their absence on indictments or presentments
                                   1
for misdemeanors.   We disagree.

     Statutes cannot be read in a vacuum.   It is a well-settled

rule of statutory construction that "[i]f apparently conflicting

statutes can be harmonized and effect given to both of them,

they will be so construed."   Lake Monticello Owners' Assoc. v.


     1
       As a preliminary matter, the Commonwealth argues Rule
5A:18 bars Ruffin from arguing on appeal that the trial court
erred in imposing the sentence because Ruffin's counsel failed
to state the grounds for his objection. However, we conclude
from the transcript that he specifically objected to the
sentencing in Ruffin's absence and the trial judge considered
and ruled on the objection. Therefore, Rule 5A:18 does not bar
our review of the merits of this appeal. See Elkins v.
Commonwealth, 30 Va. App. 460, 465, 517 S.E.2d 728, 731 (1999);
Wright v. Commonwealth, 4 Va. App. 303, 305, 357 S.E.2d 547, 549
(1987).

                               - 4 -
Lake, 250 Va. 565, 570, 463 S.E.2d 652, 655 (1995).    We do not

read the statutes to be in conflict.   The two statutes can be

easily "harmonized."

     The issue of whether Code § 19.2-258 provides trial courts

with the authority to enforce a jail sentence upon defendants

who have been released on recognizance bonds, or admitted to

bail, but have failed to appear for trial, is easily disposed of

by a close reading of Code § 19.2-258.   The statute does not

address a court's power to enforce a jail sentence in a

defendant's absence, whereas Code § 19.2-237 does.    Instead,

Code § 19.2-258 merely provides trial courts with the "powers"

"vested in juries by any statute relating to . . . punishments"

when a defendant fails to appear under the appropriate

circumstances.   (Emphasis added.)

                Virginia law has historically
          maintained a clear distinction between the
          roles played by judge and jury in criminal
          sentencing. Under the statutory scheme, the
          jury determines the guilt or innocence of
          the accused. If the jury finds that he is
          guilty, it then "ascertains" or "fixes" the
          maximum punishment . . . . After
          conviction, . . . the court may suspend
          imposition of sentence or suspend the
          sentence in whole or part.

          [Thus,] the punishment as fixed by the jury
          is not final or absolute, since its finding
          on the proper punishment is subject to
          suspension by the trial judge . . . . This
          procedure makes the jury's finding little
          more than an advisory opinion or first-step
          decision.



                               - 5 -
Batts v. Commonwealth, 30 Va. App. 1, 15-16, 515 S.E.2d 307,

314-15 (1999) (citations omitted).       Accordingly, the statute

relied upon by the Commonwealth does not address the trial

court's authority to enforce a jail sentence.      In comparison,

Code § 19.2-237 specifically bars a trial court from enforcing a

jail sentence upon a defendant tried in his or her absence on a

misdemeanor.

     In addition, we have recognized the legislature's intent to

protect "important policy considerations which suggest that the

system of justice would be better served by delaying the

imposition of sentence" in cases where the defendant has been

tried in his absence. 2   Head v. Commonwealth, 3 Va. App. 163,

172, 348 S.E.2d 423, 429 (1986), overruled on other grounds by

Cruz v. Commonwealth, 24 Va. App. 454, 482 S.E.2d 880 (1997) (en

banc).   The legislature provided for these concerns by enacting

Code § 19.2-237, which applies only to indictments and

presentments for misdemeanors.    We have previously held that

these protections apply to felony cases, as well as

misdemeanors.   Head, 3 Va. App. at 173, 348 S.E.2d at 429-30.



     2
       Although not an issue on appeal, we note that Code
§ 19.2-237 uses the word "enforce" rather than "impose." The
common meaning of the term "enforce" is "to put in force; to
cause to take effect." Webster's Third New International
Dictionary 751 (1993). The common meaning of "impose" is "to
cause to be burdened." Id. at 1136. We find no distinction of
substance between a court imposing a jail sentence and enforcing
a jail sentence. See Hohman v. Commonwealth, 96 Vap Unp
0815954(a) (1996), aff'd, 255 Va. 3, 493 S.E.2d 886 (1997).

                                 - 6 -
We see no reason why they should not also apply to misdemeanors

tried on a warrant or summons.

     Were we to adopt the position urged on us by the

Commonwealth, we would have the anomalous situation where, under

the plain language of Code § 19.2-237 and our holding in Head, a

court could not enforce a jail sentence on a defendant who failed

to appear and enter a plea on an indictment for a felony or

misdemeanor, but would be permitted to do so in a trial de novo

appeal of a misdemeanor on a warrant or summons where the

defendant likewise failed to appear.

     We, therefore, hold that if a defendant charged with a

misdemeanor fails to appear for trial, the trial court may elect

to (1) issue a capias for failure to appear and continue further

proceedings or (2) proceed to trial in the defendant's absence and

if convicted, sentence the defendant, but in that event and

pursuant to Code § 19.2-237, such sentence may not include an

unsuspended jail sentence.   Accordingly, we reverse the trial

court's decision in this regard and remand for proceedings

consistent with this decision.

                                            Reversed and remanded.




                                 - 7 -
