Dowell v. Com., 1567-87-2
| Decision Date | 03 May 1988 |
| Docket Number | No. 1567-87-2,1567-87-2 |
| Citation | 6 Va.App. 225,367 S.E.2d 742 |
| Parties | Franklin Marshall DOWELL v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Court of Appeals |
Robert H. Blodinger, Charlottesville, for appellant.
Lindsay G. Dorrier, Jr., Commonwealth's Atty., for appellee.
Present: BENTON, BAKER and COLE, JJ.
Franklin Marshall Dowell appeals from the order of the Circuit Court of Albemarle County denying bail during the appeal of his abduction and trespass convictions. Marshall was sentenced to ten years imprisonment, with five years suspended, on the abduction conviction and to twelve months in jail on the trespass conviction. Upon review of the record and in consideration of the arguments of counsel for Dowell and the Commonwealth, we conclude that the trial judge abused his discretion by giving primary consideration to insubstantial factors in deciding the bail question.
The trial judge determined that Dowell's "well-being" was the primary factor in his decision to deny bail. He expressed his concern regarding Dowell as follows:
There's a lack of continuity which can be very damaging to the defendant when he is called upon after having been convicted and sentenced and then again released on bond to have to be brought back in to serve his sentence. It's a terrible thing to have to readjust his life, when an appeal if unsuccessful would simply call upon him to serve his sentence later when he's gotten his affairs in a state that would be very damaging by being disrupted again. At the stage where he was committed to jail, the Court considered this a case which obviously would require the imposition of jail time, and any delay would actually work to the detriment of the defendant, and particularly in light of the fact that a good bit of it, if not all of it, could be served in a local jail facility rather than in the state penitentiary system, taking into account his age. All of that has been involved in the Court's disposition of the case. It would be very unsettling for him a year from now or six months from now to be disrupted in his lifestyle and have to go back in and serve a sentence which if the Court found on appeal should be affirmed, whereas the appeal could be processed, he would have the jail time to be facing, the Court having reduced the felony in the breaking and entering down to a trespass case, would seem to me to be less damaging to the defendant to face the jail time now and let the appeal be processed, and for that reason the Court thinks it would be an advantage to let the defendant serve it here, rather than to pick it up six months or however long it might be from now, and simply to deal with what would be a final sentence. The Court could no longer have any control over it. It would simply be an order issued to pick the defendant up, have him incarcerated to serve his sentence. That has come up in many instances, and it can be a hardship, a definite hardship, where a young person has in a sense had his hopes raised to think that he's ready to go about his life in a different fashion, only to be disrupted to serve a sentence later. All of that leads the Court to deny bond, and after having the defendant of course convicted, that is not unusual for the defendant to be placed in custody to start serving his sentence.
He further added:
I'm thinking of the defendant's well-being mostly. It's not a question of his being such a threat, but you do have to take into account the effect on the victim, and I did hear from her some rather distressing reactions, although that's--as I indicated to her, it's not altogether the defendant's doing. That's part of the subjective reaction that she's had, but it's very understandable, so that in effect her peace of mind is at stake, as well as the defendant's well-being, and all those led the Court to deny bond then and the same reasons cause the Court to again deny it.
We do not express any criticism of the trial judge's obvious concern for the well being of the defendant and the peace of mind of the victim; however, we conclude that those factors standing alone and as articulated by the trial judge provide an insufficient foundation to support the denial of bail.
Code § 19.2-319 is the statutory basis upon which the trial court entertains...
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