Triplett v. Com.
| Decision Date | 17 January 1972 |
| Citation | 186 S.E.2d 16,212 Va. 649 |
| Parties | Lonnie Lee TRIPLETT v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
John W. Parsons, Galax (Lorne R. Campbell, Independence, on brief), for plaintiff in error.
A. R. Woodroof, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
Lonnie Lee Triplett (defendant or Triplett), who waived a jury trial, was convicted by the trial court of a felony, operating a motor vehicle in violation of Code § 46.1--387.8 of the Virginia Habitual Offenders Act 1, and sentenced to a term of one year in the state penitentiary.
Triplett did not waive a preliminary hearing and one was not afforded him. He was tried by the court on a warrant. No indictment or presentment had been returned by the grand jury against Triplett and he had not waived indictment in writing.
The primary question here is whether a defendant, who has not waived such requirements and duly objects, can be put on trial for this violation where he has not receive a preliminary hearing after his arrest and has not been presented or indicted by a grand jury.
The Attorney General argues that neither a preliminary hearing nor an indictment was required to place the defendant on trial because of Code § 46.1--387.8 which provides, in part:
This argument overlooks, however, the clear mandate of both Code § 19.1--163.1 2, which sets forth when a preliminary hearing is required, and Code § 19.1--162 3, which requires an indictment or presentment or a written waiver thereof before a person shall be put on trial for a felony.
It is true that the requirement for a preliminary hearing under Code § 19.1--163.1 is not jurisdictional and constitutionally imposed but is only statutory and procedural. Webb v. Commonwealth, 204 Va. 24, 129 S.E.2d 22 (1963). Likewise, the requirement for indictment is not jurisdictional and constitutionally imposed but is only statutory and procedural. Henson v. Commonwealth, 208 Va. 120, 155 S.E.2d 346 (1967), Forester v. Commonwealth, 210 Va. 764, 173 S.E.2d 851 (1970).
But where, as here, the defendant insists upon his statutory rights to a preliminary hearing and indictment, we hold the failure of the trial court to adhere to those procedural requirements is reversible error.
Two other questions raised by the defendant require a brief recitation of some of the facts established by the evidence.
Triplett was arrested by a police officer who observed him drive his motor vehicle for a short distance along a secondary road and enter the driveway of his residence. The vehicle which the defendant was operating was a regular model half-ton pickup truck equipped with 'oversize tires with heavy treads' on the rear wheels. A trailer hitch of the type used to pull farm machinery and equipment was affixed to the rear of the truck. No license plates were displayed on the vehicle and the words 'Farm Use' were painted on each side of it. 4
The defendant, whose testimony in this respect was uncontroverted, testified that the truck was used exclusively for 'farm purposes' which included 'feeding cattle,' 'drawing and pulling logs for firewood and pulling a farm trailer and machinery.' Prior to his arrest the defendant had driven the truck from his residence to another location on his farm approximately 1/4 mile away where he fed his cattle. He was returning to his residence at the time of his arrest.
Defendant first argues that it was not unlawful for him to operate a 'farm use' vehicle since the operator of such a vehicle is not required to have an operator's or chauffeur's license. 5 This argument must fail, however, because the defendant, in July, 1969, had been adjudged an 'habitual offender' under the Virginia Habitual Offenders Act. 6 The order declaring him an habitual offender prohibited him from operating any motor vehicle on the highways of the state 7 and no license to operate a motor vehicle could be issued to him for at least ten years. 8 The single exemption from this prohibition is found in Code § 46.1--387.8 which provides '. . . (the) order shall not operate to prevent or prohibit such person from operating a farm tractor upon the highways when it is necessary to move such tractor from one tract of land used for agricultural purposes to another tract of land used for the same purposes, provided that the distance between the said tracts of land shall not exceed five miles . . ..'
The defendant's final contention is that the...
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Wright v. Com.
...hearing under Code § [19.2-218] is not jurisdictional and constitutionally imposed but is only statutory and procedural." Triplett, 212 Va. at 650, 186 S.E.2d at 17 (citing Webb, 204 Va. at 32, 129 S.E.2d at 28 ). Thus, while a trial court's refusal to grant an accused her preliminary hear......
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Brown v. Com. of Va.
...730, 204 S.E.2d 273, 276 (1974) (citing former Code § 19.1-162, the predecessor statute of Code § 19.2-217 ); Triplett v. Commonwealth, 212 Va. 649, 651, 186 S.E.2d 16, 17 (1972) ("[T]he requirement for indictment is not jurisdictional and constitutionally imposed but is only statutory and ......
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Hammer v. Commonwealth
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...be indicted is "not jurisdictional and constitutionally imposed but is only statutory and procedural." See Triplett v. Commonwealth, 212 Va. 649, 650, 186 S.E.2d 16, 17 (1972). Thus, it may be waived by the defendant. But, when a defendant insists upon his statutory right to an indictment, ......