John Dobbs Bellinger v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
JOHN DOBBS BELLINGER OPINION BY
v. 	Record No. 0845-95-1 	JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 19, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Jr., Judge
Gerard T. Schafer (J. Russell Fentress, IV;
Schafer & Russo; Goss, Meier, Fentress &
Gutterman, on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
John Dobbs Bellinger was convicted in a bifurcated jury
trial of voluntary manslaughter and was sentenced in accordance
with the jury's verdict to serve ten years in the penitentiary.
On appeal, he contends that the trial court erred in admitting
into evidence, at the sentencing phase of his trial, three
disposition records for bad check offenses, because they did not
constitute "record[s] of conviction[s]" admissible under Code
§ 19.2-295.1. 	We reverse the judgment of the trial court and
remand the case for resentencing.
Code § 19.2-295.1 provides in pertinent part,
In cases of trial by jury, upon a finding
that the defendant is guilty of a felony, a
separate proceeding limited to the
ascertainment of punishment shall be held as
soon as practicable before the same jury. 	At
such proceeding, the Commonwealth shall
present the defendant's prior criminal
convictions by certified, attested or

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exemplified copies of the record of
conviction . . . ."
At the sentencing phase of Bellinger's trial, the trial
court admitted into evidence three documents, which the
Commonwealth contended were prior orders of conviction. 	Each
document was on a form designated "FORM DC-316 12/82 (114 2-102
4/84)." 	Each document set forth on its first page a warrant of
arrest charging Bellinger with a criminal bad check violation,
Code § 18.2-181, Bellinger's personal description, and an
executed form noting his arrest. 	The second page of each
document set forth a form whereon could be noted the incidents of
trial and disposition of the charge. 	The form provided a place
for the trial judge's signature. 	Specifically provided on that
form were places to note the presence or absence of the accused,
his plea, the presence of counsel for the Commonwealth and the
accused, disposition of the charge and the sentence imposed upon
a finding of guilt (fine, incarceration, probation, etc.). 	On
each of the documents tendered by the Commonwealth, all of the
listed items were left blank. 	None of the documents was signed
or dated by the trial judge. 	To the right of each form trial
order was a monetary listing. 	This listing on each document
showed a fine, items of cost, and a total. 	At the foot of each
monetary listing was a block noted, "date paid." 	Each block had
a date noted and to the right of each block was a receipt number.
The monetary itemizations were not signed.
Attached to each warrant form was a copy of a check

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appearing to relate to the charge. 	Attached also to each warrant
was a "misdemeanor cover sheet" containing a printed form whereon
were notations relating to bail and continuances. 	On each form,
at the place provided for "final disposition," is the stamped
notation, "NO. 	JAIL 19.2-160." 	On each misdemeanor cover sheet,
at the place provided for "Presiding Judge:" appear the printed
initials, "RLS."
The record contains no other notation of disposition and no
formal order of conviction with respect to any of the three
charges.
Code § 16.1-129 permits a criminal charge to be tried on a
warrant in a court not of record. 	However, neither that code
section nor Chapter 7 of Title 16.1 (Code § 16.1-123.1, et seq.)
provides the manner in which judgments thus rendered are to be
memorialized. 	For those requirements we look to Title 19.2,
which governs criminal procedure generally in the courts of the
Commonwealth. 	See the definition of "court" set forth in Code
Section 19.2-5.
Code § 19.2-307 sets forth the required contents of a
judgment order in a criminal trial, as follows:
The judgment order shall set forth the plea,
the verdict or findings and the adjudication
and sentence, whether or not the case was
tried by jury, and if not, whether the
consent of the accused was concurred in by
the court and the attorney for the
Commonwealth. 	If the accused is found not
guilty, or for any other reason is entitled
to be discharged, judgment shall be entered
accordingly.

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The provisions relating to trial by jury are not applicable
to district court proceedings. 	However, the other findings
required by Code § 19.2-307 are mandatory. 	The documents
submitted in Bellinger's trial as orders of conviction failed, in
every respect, to satisfy those requirements.
Expressing doubt as to the sufficiency of the tendered
documents to constitute "record[s] of conviction[s]," the trial
court concluded that they were, nevertheless, evidence of
convictions and admitted them on that basis. 	Pursuing this
argument, the Commonwealth contends that the notation of a fine
and costs and of a "date paid" in each monetary listing is
evidence of a conviction and of the imposition of a fine. 	We
find this argument unpersuasive. 	The record does not disclose
the authorship of the notations, whether they were made by a
person authorized to do so, or whether they were made as a result
of a rendered judgment or merely in anticipation of judgment.
Furthermore, even if the notation of a fine and costs is
suggestive of a conviction, it remains nonetheless silent as to
the nature of that conviction.
Code § 19.2-295.1 provides for the admissibility of
"record[s] of conviction[s]," not records of accusation. 	The
documents received in this case were no more than the latter.
The judgment of the trial court is reversed, and this case
is remanded to it for resentencing.
Reversed and remanded.