Kenneth Allen Green, Jr. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: January 23, 1996
• Docket: 2209942
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Elder Argued at Richmond, Virginia

KENNETH ALLEN GREEN, JR. MEMORANDUM OPINION * BY v. Record No. 2209-94-2 JUDGE LARRY G. ELDER JANUARY 23, 1996 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge

Anthony G. Spencer (Morchower, Luxton & Whaley, on briefs), for appellant.

Marla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Kenneth Allen Green, Jr. (appellant) appeals his conviction

for reckless driving in violation of Code § 46.2-852. Appellant

contends that he was entitled to a trial by jury, and the trial

court erred in ruling he waived this right. Because the trial

court did not ensure appellant knowingly, voluntarily, and

intelligently waived his right to a trial by jury, we reverse his

conviction.

On July 18, 1994, the General District Court of Chesterfield

County convicted appellant of reckless driving. Appellant

appealed his conviction to the circuit court. On October 5,

1994, appellant appeared in circuit court without an attorney and

requested his case be continued so that his counsel could be * Pursuant to Code § 17-116.010 this opinion is not designated for publication. present. The circuit court continued the case for two days,

until October 7, 1994. On October 6, 1994, appellant, by

counsel, filed a motion requesting another continuance and a

trial by jury. On October 7, 1994, the circuit court denied

appellant's motion for a continuance and found, "the defendant

waived his right to a trial by jury on October 5, 1994, as he

failed to request that his case be heard by a jury." (Emphasis

added.) The circuit court then heard evidence and found

appellant guilty of reckless driving and imposed a $150 fine. On

appeal, appellant contends, and the Commonwealth concedes, that

he had a right to a trial by jury. See Code §§ 46.2-868 and

18.2-11; McCormick v. City of Virginia Beach, 5 Va. App. 369,

372, 363 S.E.2d 124, 125 (1987). Well-settled principles guide

our analysis of whether the trial court erred in ruling that

appellant waived this right. While "[a]n accused may waive his

right to a jury in the trial court," federal and state

constitutional law dictate that "before waiver of a trial by jury

can be effective, the accused must give his express and

intelligent consent." Id. (citing Patton v. United States, 281

U.S. 276, 312 (1930), rev'd on other grounds; Williams v.

Florida, 399 U.S. 78 (1970)). Rule 3A:13(b) sets forth the

required procedure to validate a defendant's consent and to

effect a jury waiver in a trial court:

If an accused who has pleaded not guilty in a circuit court consents to a trial without a jury, the court may, with the concurrence of the Commonwealth's attorney, try the case without a jury. The court shall

-2- determine before trial that the accused's consent was voluntarily and intelligently given, and his consent and the concurrence of the court and the Commonwealth's attorney shall be entered of record.

(Emphasis added.) In this case, the trial court's order

specifically states, "the defendant waived his right to a trial

by jury on October 5, 1994, as he failed to request that his case

be heard by a jury."

We reject the Commonwealth's assertion that the record does

not provide this Court with the facts necessary to determine

whether appellant did or did not waive his right to a jury trial.

Although the record contains no transcript or statement of

facts, the trial court, in its order, clearly stated the reason

for its holding that appellant waived his right to a jury trial.

A court speaks through its written orders. Guba v.

Commonwealth, 9 Va. App. 114, 118, 383 S.E.2d 764, 767 (1989).

Any court subsequently required to review an order of another

court must presume that it is the final pronouncement on the

subject addressed therein. See Kern v. Commonwealth, 2 Va. App.

84, 88, 341 S.E.2d 397, 400 (1986). Here, the trial court's

order revealed that it erroneously failed to inquire whether

appellant voluntarily and intelligently consented to waive his

right to a trial by jury. Furthermore, appellant specifically

requested a trial by jury on October 6, 1994 and the record does

not show that appellant thereafter waived this right. See Rule

3A:13(b).

Accordingly, we reverse the conviction and remand for

-3- further proceedings if the Commonwealth be so advised.

Reversed and remanded.

-4-