Wright v. Com., 0118-86-3

Decision Date16 June 1987
Docket NumberNo. 0118-86-3,0118-86-3
Citation357 S.E.2d 547,4 Va.App. 303
PartiesMillard McCutchan WRIGHT v. COMMONWEALTH of Virginia. Record
CourtVirginia Court of Appeals

R. Creigh Deeds, Warm Springs, for appellant.

W. Mark Dunn, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BENTON and COLEMAN, JJ.

BENTON, Judge.

Millard McCutchan Wright was convicted of two counts of driving a motor vehicle under a revoked or suspended license in violation of Code § 46.1-350 and contends on this appeal that he was denied his right to trial by jury. We agree; therefore, we reverse the convictions and remand for a new trial.

In March 1985, Wright was stopped by a state police officer in Highland County for a routine license check and was ticketed for driving while his license was suspended. Two hours later, he was stopped by a second state police officer and ticketed for the same offense.

Wright was convicted in the general district court on both counts of driving under a revoked or suspended license. After Wright noted an appeal to the circuit court, he was advised by letters from the clerk of the circuit court that his trials were scheduled for October 11, 1985. On October 11, 1985, he appeared for trial, was advised of his right to be represented by an attorney, and was appointed an attorney after executing an affidavit of indigency. The record does not reflect whether the attorney was present at the time of appointment. Also on October 11, a new trial date was set for November 14, 1985. Subsequent to October 11, Wright and his court-appointed attorney were advised by letters from the clerk that the trial was scheduled for November 14.

Immediately prior to trial on November 14, Wright's attorney made a motion in chambers that the case be tried by a jury. During the in camera discussion on the motion it was disclosed that Wright "was first advised of his right to a trial by jury on October 21, 1985, by his court-appointed attorney." Wright's attorney stated that it was his impression, after discussing the pros and cons of a jury trial with Wright, that the case would be tried by the judge rather than by a jury. It was also disclosed that two days prior to trial Wright again discussed the possibility of trial by jury with his attorney; however, no firm decision was reached. The court denied the motion for trial by jury.

Wright entered pleas of not guilty and was convicted on both counts of driving while his license to drive was suspended. On one count he was fined $100, sentenced to ten days in jail, ordered to pay $112.50 costs, and had his license suspended for ninety days; on the other count he was fined $100, sentenced to thirty days in jail, to run concurrent with the previous sentence, ordered to pay $112.50 costs, and had his license suspended for six months.

Wright contends that he was deprived of his right to be tried by a jury in contravention of statutory and constitutional guarantees. In rebuttal, the Commonwealth contends that Wright failed to make a reasonably specific objection at trial and, further, that Wright consented to a bench trial and waived his right to be tried by a jury. We conclude from the written statement of facts, filed in accordance with Rule 5A:8, that Wright specifically requested a jury trial and that the trial judge considered and ruled on the question. Therefore, Rule 5A:18 does not bar our review of the merits of this appeal.

Wright was subject to the following penalties for violations of Code § 46.1-350:

Any person violating this section shall for the first offense be confined in jail not less than 10 days nor more than 6 months; and may in addition be fined not less than $100 nor more than $200; and for the second or any subsequent offense be confined in jail not less than 2 months nor more than 1 year; and may in addition be fined not less than $200 nor more than $1,000.

Code § 46.1-387(a) makes a violation of Code § 46.1-350 a misdemeanor. 1

Article I, Section 8, of the Constitution of Virginia guarantees "[t]hat in criminal prosecutions, a man hath a right to ... a speedy and public trial, by an impartial jury of his vicinage." This constitutional guarantee "unquestionably ... applies to misdemeanors as well as to felonies." Bowen v. Commonwealth, 132 Va. 598, 603, 111 S.E. 131, 132 (1922).

The Commonwealth asserts that Wright waived his right to a jury. The statement of facts, however, does not support that conclusion. Where, as here, the Commonwealth asserts that an accused "elected a bench trial," there must be a showing of some deliberate action by the accused indicating an election to forego his right to a jury trial. "[I]t is ... necessary that this consent be in some manner made manifest. Something more than simple silence must appear." Boaze v. Commonwealth, 165 Va. 786, 792, 183 S.E. 263, 265 (1936). The record must indicate that the accused made a knowing, intelligent and voluntary waiver of the right to trial by jury. See Rule 3A:13(b); 2 see also Carter v. Commonwealth, 2 Va.App. 392, 398-99, 345 S.E.2d 5, 9 (1986). We can find nothing in this record indicating that Wright waived his right to a jury trial in accordance with these principles.

There is no indication that the trial court required Wright at any time prior to the trial date to elect either trial by jury or trial by the bench. Subsequent to Wright's appeal from the convictions in general district court, a letter from the clerk notified him of the October 11 trial date, but the letter neither informed him of his right to a jury trial nor required him to decide whether he desired a jury or bench trial.

The written statement of facts recites, in part, as follows Wright appeared on that date [October 11, 1985] and requested court appointed counsel. Upon the proper showing of indigency, counsel was appointed, and a new trial date was set for November 14, 1985, without a jury.

Immediately prior to trial on November 14, 1985, counsel for the defendant made a motion in chambers that the case be tried before a jury. During a discussion in the chambers, it was disclosed that Mr. Wright was first advised of his right to a trial by jury on October 21, 1985, by his court appointed counsel.

The recitation that the trial court on October 11 set a new trial date "for November 14, 1985, without a jury" is insufficient, standing alone, to establish that on October 11 Wright was informed of his right to a jury trial, see Part III A, Rules of the Supreme Court of Virginia (Appendix) Form 7, and elected a bench trial. Absent evidence in the record that Wright was informed of his right to a jury trial and that he in fact chose a bench trial, the recitation in the statement of facts that the trial was set "without a jury" fails to establish that Wright made a voluntary and intelligent choice to forego trial by jury.

Moreover, the cited passage from the record clearly states that Wright "was first advised of his right to a trial by jury on October 21, 1985" (emphasis added) when he initially met with his counsel and "discussed the pros and cons of a bench trial as opposed to a jury trial." To conclude from the statement of facts that Wright knowingly and intelligently waived his right to a jury trial on October...

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    • United States
    • Virginia Court of Appeals
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  • Ohree v. Com.
    • United States
    • Virginia Court of Appeals
    • January 13, 1998
    ...indicate that the accused made a knowing, intelligent and voluntary waiver of the right to trial by jury." Wright v. Commonwealth, 4 Va.App. 303, 306, 357 S.E.2d 547, 549 (1987). When asked if she wanted to be tried by the judge or a jury, Ohree consented specifically to a bench trial. As n......
  • Jiddou v. Commonwealth
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    • Virginia Court of Appeals
    • December 27, 2019
    ...right and the attorney for the Commonwealth and the trial court concur in the decision to forego a jury trial. Wright v. Commonwealth, 4 Va. App. 303, 309, 357 S.E.2d 547 (1987). Nonetheless, a defendant has no constitutional right to a bench trial. O’Dell v. Commonwealth, 234 Va. 672, 689,......
  • Richardson v. Commonwealth
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    ...v. Commonwealth , 198 Va. 505, 507-08, 95 S.E.2d 177, 178-79 (1956) (same).This Court similarly observed in Wright v. Commonwealth , 4 Va.App. 303, 308, 357 S.E.2d 547, 550 (1987), that the trial court's failure to enter the accused's consent and the required concurrences in the record was ......
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