Opinion
Record No. 1240-91-4
February 2, 1993
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY PORTER R. GRAVES, JR., JUDGE
William H. Logan (Logan Logan, on brief), for appellant.
Thomas D. Bagwell, Senior Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Barrow, Benton and Coleman
Argued at Alexandria, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
This appeal from a conviction of driving under the influence of alcohol challenges the authority of the trial court (1) to allow the Commonwealth to amend a summons, and (2) to try the defendant on the summons instead of on a warrant. We hold that both actions were within the trial court's discretion and affirm the conviction.
AMENDMENT
A trial court "may permit [the] amendment of [any] indictment, presentment or information" to correct defects in form "provided the amendment does not change the nature or character of the offense charged." Code § 19.2-231. This provision is remedial in nature and is designed to avoid unnecessary delay in the criminal justice process. The provision should be construed liberally as long as the amendment does not change the nature or character of the offense charged.Willis v. Commonwealth, 10 Va. App. 430, 437, 393 S.E.2d 405, 408 (1990).
On appeal from the district court, a circuit court also has the power to amend a defective warrant. Code § 16.1-137. This power also extends to a summons. See Code § 16.1-129. If a warrant charges a defendant under an improper or invalid county or municipal ordinance, the circuit court may amend it to charge the defendant under the relevant state statute. See Robinson v. Commonwealth, 206 Va. 766, 769, 146 S.E.2d 197, 200 (1966).
Both the arrest warrant and the summons charged this defendant with violating Harrisonburg city ordinance 13-1-3 and Code § 18.2-266, each of which is a misdemeanor. The defendant was convicted on the summons in general district court and appealed. On appeal, the circuit court granted the Commonwealth's motion to amend the summons to delete the reference to the Harrisonburg city ordinance. We hold that this action was proper, as the amendment did not change the nature or character of the offense charged.
USE OF SUMMONS
Misdemeanor prosecutions may be initiated by either a warrant or a summons. A magistrate or other issuing authority may issue a summons instead of a warrant in misdemeanor cases. Code § 19.2-73; Commonwealth v. Rafferty, 241 Va. 319, 324, 402 S.E.2d 17, 20 (1991). More than one warrant or summons may be issued on the same complaint. Rules 3A:4(a), 7C:3(b).
Formal written pleadings are not required in trial de novo in circuit courts. Code § 16.1-136. A person charged with a misdemeanor may be tried on a warrant or a summons. Code § 16.1-129. In addition, where both a summons and a warrant are issued charging the same offense, the trial may be conducted on the summons and the warrant is unnecessary. Badalson v. Lamb, 195 Va. 1018, 1022, 81 S.E.2d 750, 752 (1954); Tate v. Lamb, 195 Va. 1005, 1010, 81 S.E.2d 743, 746 (1954). Therefore, the trial court did not err in allowing the Commonwealth to proceed upon the summons rather than the warrant.
For these reasons, the judgment of conviction is affirmed.
Affirmed.