Misael Rolando Hernandez v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff
MISAEL ROLANDO HERNANDEZ
MEMORANDUM OPINION * BY
v. Record No. 2304-97-4 JUDGE NELSON T. OVERTON
OCTOBER 6, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
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.
1
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.
Nelson, 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
5A:8(b).
Defendant contends the trial court should not have imposed
the sentence because it was without jurisdiction to do so. The
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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
provided.
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(1992).
Dismissed.
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