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Commonwealth v. Burns7/30/1990
CHIEF JUSTICE CARRICO delivered the opinion of the Court.
As pertinent here, Code § 18.2-255.2, the so-called "Drug-Free Zone Act," makes it a separate felony, with additional punishment, for any person to distribute cocaine upon public property within 1,000 feet of any elementary, middle, or high school. The question for decision is whether considerations of due process bar the application of Code § 18.2-255.2 to a sale of cocaine made within the prescribed distance when school is not in session and no children are present.
The defendant, Frances Burns, was charged in the first count of a two-count indictment with distributing cocaine in violation of Code § 18.2-248 and in the second count with distributing the same substance "upon public property within 1000 feet of the property of a parochial elementary school" in violation of Code § 18.2-255.2. Burns entered a plea of guilty to distributing cocaine
in violation of Code § 18.2-248, as charged in the first count, and that count is not before us in this appeal.
Prior to trial, Burns moved to dismiss the second count on the ground that Code § 18.2-255.2 violated her rights to due process and equal protection. On January 8, 1990, finding "the 1,000 foot extension unconstitutional as applied" to Burns, the trial court dismissed the charge of violating Code § 18.2-255.2.
Pursuant to Code § 19.2-398, the Commonwealth appealed the dismissal to the Court of Appeals. On March 13, 1990, that court granted the Commonwealth an appeal. The Commonwealth then suggested to this Court that the case should be certified for review pursuant to Code §§ 19.2-407 and 17-116.06 (A) and (B) (1).
In suggesting that this Court should certify the case for review, the Attorney General argued that a truly definitive ruling cannot be obtained in the Court of Appeals because that court does not treat a decision by one of its panels as binding upon another panel which later confronts the same question. See Vescuso v. Commonwealth, 4 Va. App. 32, 38 n.3, 354 S.E.2d 68, 71 n.3 (1987). The Court of Appeals recognizes that its practice departs from generally accepted principles of stare decisis. See Walters v. Commonwealth,
8 Va. App. 262, 265 n.2, 379 S.E.2d 749, 751 n.2 (1989). Apparently, the court considers that because Code § 17-116.02 (C) requires each panel to hear and determine, "independently of the others," the matters it is assigned, the principles of stare decisis do not apply. See id. at 265, 379 S.E.2d at 751.
It does not follow, however, that because panels must act independently of one another, their decisions are not subject to the rule of stare decisis. As used in Code § 17-116.02 (C), acting independently merely means that each panel must decide on its own the cases it hears, not that it is free from traditional rules of decision, such as stare decisis.
Applying the rule of stare decisis in the Court of Appeals would not mean that a panel decision, no matter how wrong, would be forever binding. If there is "flagrant error or mistake" in a panel decision, see Selected Risks Insurance Co. v. Dean, 233 Va. 260, 265, 355 S.E.2d 579, 581 (1987),
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