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. 

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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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