Com. v. Smith, 850655

• Decision Date: 27 November 1985
• Docket Number: No. 850655,850655
• Citation: 337 S.E.2d 278,230 Va. 354
• Parties: COMMONWEALTH of Virginia v. George Clinton SMITH. Record
• Court: Virginia Supreme Court

Page 278

337 S.E.2d 278

230 Va. 354

COMMONWEALTH of Virginia v. George Clinton SMITH.

Record No. 850655.

Supreme Court of Virginia.

Nov. 27, 1985.

Jerry P. Slonaker, Senior Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., Donald R. Curry, Asst. Atty. Gen., on brief), for appellant.

R. Richard Ryder, Richmond, for appellee.

Present: All the Justices.

COMPTON, Justice.

This is an appeal by the Commonwealth from an order of the Court of Appeals letting a prisoner to post-conviction bail.

On May 6, 1985, a jury in the Circuit Court of Montgomery County convicted appellee George Clinton Smith of conspiracy to possess cocaine with the intent to distribute. The trial judge sentenced defendant in accordance with the verdict to imprisonment for 40 years and a fine of $25,000.

Prior to trial, defendant had been admitted to bail on a bond of $150,000 with surety. Subsequent to conviction, counsel for the accused moved the trial court to permit his client to remain free "upon the same bond" pending appeal. After hearing argument of counsel, the trial judge denied the request.

On May 15, 1985, defendant, by counsel, filed a "Motion" in the Court of Appeals seeking "bond pending appeal." On the next day, counsel for defendant filed a notice of appeal in the intermediate appellate court to the conspiracy conviction. On June 24, 1985, a hearing on the bail motion was held by the Chief Judge of the Court of Appeals who, in an order entered on the same day, granted defendant's request. The court authorized a surety bond in the sum of $150,000 with specific conditions.

The Commonwealth then filed a motion requesting the Court of Appeals to reconsider its bail decision. This motion was overruled by the Chief Judge. Subsequently, the Commonwealth filed a timely notice of appeal and petition for appeal to the order granting bail. We awarded the Commonwealth this appeal in September.

At the threshold, we are confronted with a constitutional issue dealing with appeallate jurisdiction. The defendant contends that, under art. VI, § 1 of the Constitution of Virginia, which defines the jurisdiction of this Court, the Commonwealth has no right to appeal the Court of Appeals' decision allowing the defendant's release on bond.

As pertinent here, the foregoing section provides:

"The Supreme Court shall, by virtue of this Constitution, have original jurisdiction in cases of habeas corpus, mandamus, and prohibition and in matters of judicial censure, retirement, and removal under Section 10 of this Article. All other jurisdiction of the Supreme Court shall be appellate. Subject to such reasonable rules as may be prescribed as to the course of appeals and other procedural matters, the Supreme Court shall, by virtue of this Constitution, have appellate jurisdiction in cases involving the constitutionality of a law under this Constitution or the Constitution of the United States and in cases involving the life or liberty of any person.

"No appeal shall be allowed to the Commonwealth in a case involving the life or liberty of a person, except that an appeal by the Commonwealth may be allowed in any case involving the violation of a law relating to the State revenue.

"Subject to the foregoing limitations, the General Assembly shall have the power to determine the original and appellate jurisdiction of the courts of the Commonwealth." (Emphasis added).

The defendant argues that the Commonwealth's right of appeal in criminal cases is specifically limited by the Constitution to cases relating to the State revenue and, further, that statutory law places the same restrictions upon the Commonwealth's appeal prerogative.

The narrow question thus presented is whether the Commonwealth is allowed to appeal a judgment of the Court of Appeals admitting a convicted defendant to bail. We answer the query in the affirmative.

The analysis first must take into account the specific nature of a post-conviction bail proceeding and the extent of its link to the criminal prosecution itself. Upon close examination, several obvious aspects of the bail question point to the conclusion that the proceeding is somewhat separate and distinct from the main criminal prosecution. For example, the most striking factor differentiating the proceedings is that guilt or innocence of the accused is not at issue in the bail proceeding. Also, the ultimate burden of proof on entitlement to bail is upon the prisoner and not the Commonwealth. And, from a practical standpoint, appellate issues relating to bail routinely are handled separately from the issues in the criminal prosecution and often are the subject of separate petitions for appeal. Thus, a bail proceeding is not an integral part of the guilt-innocence determination. Rather, it is ancillary to the criminal prosecution.

With this background in mind, we examine the pertinent constitutional language. The crucial provision proscribes an appeal by the Commonwealth "in a case involving the life or liberty of a person," other than a prosecution for the "violation of a law relating to the State revenue." While it is true that a bail proceeding involves the "liberty" of the prisoner in the sense that his freedom of movement as a member of society is being restricted, nevertheless, the word "liberty" must be interpreted in the light of its context. Smyth v. Godwin, 188 Va. 753, 760-61, 51 S.E.2d 230, 233, cert. denied, 337 U.S. 946, 69 S.Ct. 1503, 93 L.Ed. 1748 (1949). "Ordinarily, 'a case involving the life or liberty of a person' connotes a criminal prosecution, a proceeding in which the conviction of an accused may result in a sentence of death or imprisonment, that is, a judgment directly depriving him of his life or liberty." Id. at 761, 51 S.E.2d at 233 (emphasis added). An adverse judgment in a bail proceeding instituted to obtain the prisoner's release from custody pending appeal, certainly does not deprive such prisoner of his life. Similarly, an adverse decision in such a proceeding does not deprive a prisoner of his "liberty," in the context of the constitutional provision, when that term is understood in the sense that his freedom has been curtailed permanently in a criminal prosecution.

An examination of the historical origin of the language under consideration makes it clearer that the constitutional limitation on the Commonwealth's right of appeal was not designed to apply to bail proceedings. The language, appearing as a part of a Virginia constitution for the first time in the Constitution of 1902, was drafted in order to express, in the fundamental written law of Virginia, the accepted common-law doctrine of former jeopardy. Commonwealth v. Perrow, 124 Va. 805, 809-11, 97 S.E. 820, 821-22 (1919). "[T]he provision prohibiting the allowance of an appeal to the Commonwealth in a case 'involving the life or liberty of a person' was inserted in the Constitution to insure that in a criminal prosecution, where a man's guilt or innocence of the charge made against him is at issue, he may not 'be put twice in jeopardy for the same offense.' " Smyth, 188 Va. at 763-64, 51 S.E.2d at 235 (emphasis added).

No question of former jeopardy is involved in this proceeding. The Commonwealth is not appealing the judgment of conviction in the criminal prosecution for conspiracy. A reversal of the judgment directing that the prisoner be admitted to bail will in no way subject the convicted felon to being put twice in jeopardy for the same offense. See Virginia Department of Corrections v. Crowley, 227 Va. 254, 262-63, 316 S.E.2d 439, 443 (1984). Cf. City of Roanoke v. Donckers, 187 Va. 491, 47 S.E.2d 440 (1948); Commonwealth v. Willcox, 111 Va. 849, 69 S.E. 1027 (1911). Thus, there is no constitutional prohibition against the Commonwealth's appeal in this proceeding.

The question then becomes whether such appeal is authorized by statute. Code § 17-116.08 provides:

"Except where the decision of the Court of Appeals is made final under § 17-116.07, any party aggrieved by a final decision of the Court of Appeals may petition the Supreme Court for an appeal. The Commonwealth, or any county, city, or town, may also petition the Supreme Court for review pursuant to § 19.2-317. The granting of such petitions shall be in the discretion of the Supreme Court."

In the first sentence of the statute, the Commonwealth certainly qualifies as "any party"; likewise, the Commonwealth is "aggrieved." Also, the decision in a bail proceeding is not among those decisions of the Court of Appeals accorded finality under § 17-116.07. ^* In the second sentence of § 17-116.08, the Commonwealth is "also" accorded the right to appeal to this Court pursuant to § 19.2-317.

Section 19.2-317 provides in pertinent part that "A. A writ of error shall lie in a criminal case to the judgment of a circuit court or the judge thereof, from the Court of Appeals as provided in § 17-116.05:1. It shall lie in any such case for the accused and if the case is for the violation of any law relating to the state revenue, it shall lie also for the Commonwealth."

Clearly, then, the Commonwealth is accorded the right of appeal in a proper case under the first sentence of § 17-116.08. Reading the second sentence of § 17-116.08 with the second sentence of § 19.2-317, we conclude that the Commonwealth is "also" assured, consistent with the constitutional provision, supra, of the right to appeal to this Court adverse judgments in prosecutions for the violation of any law relating to the state revenue, even though in criminal prosecutions generally, according to § 19.2-317, "the accused" only may appeal to this Court. For example, as the Attorney General points out, in a misdemeanor case involving the state revenue where no incarceration had been imposed, the decision of the Court of Appeals would be final and not appealable under the first sentence of § 17-116.08 and subsection (A)(1) of § 17- 116.07. But the second sentences of § 17-116.08 and § 19.2-317(...