subject: Virginia Beach DUI Driving Under Influence 18.2-266 Lawyer [print this page] Virginia Beach DUI Driving Under Influence 18.2-266 Lawyer
Roberson v. Commonwealth, 689 S.E.2d 706
Defendant argued that his conviction was obtained under and state statute, and thus, the notice of appeal properly named the Commonwealth as the appellee. The Court held that the controlling documents for determining what entity served as the prosecuting authority in a criminal trial are the instrument, that is the summons, warrant, or indictment, under which the charge is brought and the orders of conviction and sentencing that conclude the trial. Proper jurisdictional analysis initially involves a determination whether a timely notice of appeal, a mandatory prerequisite to an appellate court acquiring jurisdiction, adequately identifies the case to be appealed. Any defect in the notice of appeal that does not touch on its timeliness or the identity of the case to be appealed is procedural only. Thus, the failure to identify a necessary appellee in the notice of appeal is subject to being waived by subsequent actions of the unnamed appellee participating on the merits of the appeal if the appellant properly asserts the waiver when an objection is subsequently raised.
While it is true that the order of conviction did not refer to the local ordinance, it is clear from the context in which the case was prosecuted that the reference to Code 18.2-266 in that order identifies that statute as being incorporated into the Virginia Beach City Code by VBCC 21-1, rather than indicating that the case was tried under Code 18.2-266. The record in this case establishes that Roberson was charged and convicted for DUI pursuant to VBCC 21-1. Accordingly, the Supreme Court ruled that the Court of Appeals did not err in finding that the City, not the Commonwealth, was the prosecuting authority on the DUI charge in the circuit court and, thus, was the necessary party to be identified in Roberson's notice of appeal as the appellee.
