The ends of justice require reversing the appellant’s conviction for failure to appear, even though she didn’t raise an ends-of-justice argument either to the trial court or on appeal.
Code § 19.2-128 does not apply to revocation proceedings, so it was error to convict her under that statute for failing to appear on a revocation return date. Although the appellant didn’t argue in the trial court that § 19.2-128 was inapplicable, her conviction for conduct not proscribed by the statute under which she was charged meets the ends-of-justice exception of Rule 5A:18.
The appellant didn’t ask the court to apply the ends-of-justice exception on appeal, and the court has repeatedly refused consider the exception sua sponte. In this case, however, the Commonwealth acknowledged both in briefing and at oral argument that this court could apply the statute under the ends-of-justice exception. The Commonwealth’s raising the exception is sufficient to allow the court to apply it.
Reversed and final judgment.