Present: All the Justices 

COMMONWEALTH OF VIRGINIA 

 OPINION BY 

v. Record No. 972645 CHIEF JUSTICE HARRY L. CARRICO

 November 6, 1998 

DONESH R. ZAMANI 

FROM THE COURT OF APPEALS OF VIRGINIA 

 Resolution of the question presented in this case 

requires an interpretation of Code § 16.1-133, relating to 

the withdrawal of appeals to circuit courts from judgments 

of courts not of record,1 and Code § 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 § 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withdrawn more than ten days after conviction, the circuit 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 

 

1 Code § 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. 
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 § 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 

convictions. 

 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. 

2
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 § 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. 

3
 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 appeal. 

 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 

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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 § 16.1-133.1, not § 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 § 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 § 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.”2

 

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 § 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 word. 

5
 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., 

§ 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 § 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 § 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, 

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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 § 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 § 16.1-133 

speaks of an appeal being “heard,” not “tried,” Code 

§ 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. 

7
 Furthermore, the Commonwealth’s position gives no 

effect to the authority implicitly granted a district court 

by Code § 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 

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the right, within sixty days, to petition to reopen 

the case in the district court. Neither [§ 16.1-133 

nor § 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.[3] 

Zamani, 26 Va. App. at 63-64, 492 S.E.2d at 856-57 

(footnote omitted). 

 Furthermore, the language in Code § 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 § 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.” 

 

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. 

9
 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 § 16.1-133.1 was not 

10
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 § 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 857. 

 For the reasons assigned, we will affirm the judgment 

of the Court of Appeals. 

Affirmed. 

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