Misael Rolando Hernandez v. Commonwealth ( 1998 )

  •                      COURT OF APPEALS OF VIRGINIA
    Present:   Judges Bray, Overton and Senior Judge Duff
                                              MEMORANDUM OPINION * BY
    v.           Record No. 2304-97-4        JUDGE NELSON T. OVERTON
                                                 OCTOBER 6, 1998
                         William T. Newman, Jr., Judge
                 (James E. Sullivan, on briefs), for
                 appellant. Appellant submitting on brief.
                 (Mark L. Earley, Attorney General; Eugene
                 Murphy, Assistant Attorney General, on
                 brief), for appellee. 1 Appellee submitting
                 on brief.
         Misael Rolando Hernandez (defendant) appeals the revocation
    of his suspended sentence by the Circuit Court of the County of
    Arlington.     He contends on appeal that the circuit court was
    without jurisdiction to revoke the suspension because more than
    one year had passed from the end of the suspension period.
    Because we find that the record is incomplete, we cannot address
    defendant's assignments of error.     For that reason, we dismiss
    his appeal.
         On April 15, 1994, defendant was convicted of carrying a
    concealed weapon, in violation of Code § 18.2-308.     He was
    sentenced to pay a one hundred dollar fine, but the sentence was
          Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
          Because both parties waived oral argument the case has been
    decided on the basis of their briefs and the record.
    suspended for one year on the condition that he complete 40 hours
    of community service.   The Commonwealth contends that because
    defendant failed to complete community service, an order to show
    cause was issued on July 25, 1994.      The Commonwealth further
    contends a capias was issued on August 8, 1994.     The Commonwealth
    suggests, without evidence, that neither service was completed
    because the defendant had absconded from the jurisdiction.      On
    May 6, 1997, the General District Court of Arlington County
    revoked the suspended sentence and ordered him to pay the one
    hundred dollar fine.    The order was appealed to the circuit
    court, which affirmed it.
         "An appellant who seeks the reversal of a decree on the
    ground that it is contrary to the law and the evidence has the
    primary responsibility of presenting to this court, as a part of
    the printed record, the evidence introduced in the lower court,
    or so much thereof as is necessary and sufficient for us to give
    full consideration to the assignment of error."      Lawrence v.
    200 Va. 597
    , 599, 
    106 S.E.2d 618
    , 620 (1959) (citations
    omitted).   "When the appellant fails to ensure that the record
    contains transcripts or a written statement of facts necessary to
    permit resolution of appellate issues, any assignments of error
    affected by such omission shall not be considered."     Rule
         Defendant contends the trial court should not have imposed
    the sentence because it was without jurisdiction to do so.      The
                                    - 2 -
    record, however, is missing several important pieces of
    information critical to our determination of this issue.    No
    transcript of the revocation hearing was provided.    No copies of
    the capias or notice to show cause were provided.    No transcript
    or statement of facts addressing the Commonwealth's attempts to
    serve defendant or defendant's attempts to avoid service were
         In short, the record is so wholly inadequate that meaningful
    appellate review is impossible.   Because we cannot accept an
    appeal with such glaring factual deficiencies, we dismiss it.
    See Anderson v. Commonwealth, 
    13 Va. App. 506
    413 S.E.2d 75
                                  - 3 -

Document Info

DocketNumber: 2304974

Filed Date: 10/6/1998

Precedential Status: Non-Precedential

Modified Date: 10/30/2014