VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 8th day of
June, 2007.
Ellis Lorenzo Miles, Appellant,
against Record No. 052568
Circuit Court No. LS-1979-1
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing
By order entered on November 28, 2006, this Court awarded
the Commonwealth a rehearing pursuant to the provisions of Rule
5:39(e). Upon consideration of the record, the briefs
originally filed by the parties, the petition for rehearing
filed by the Commonwealth, and the argument of the parties, the
Court concludes that the judgment of this Court and opinion
issued on September 15, 2006 should not be set aside and should
stand as issued. Accordingly, the judgment appealed from is
reversed and the Commonwealth’s petition filed pursuant to
former Code § 37.1-70.6 is dismissed with prejudice.
This order shall be published in the Virginia Reports and
shall be certified to the Circuit Court of the City of Richmond.
_________________________
JUSTICE KINSER, with whom JUSTICE LEMONS joins, concurring.
While I agree with the majority that the Court arrived at
the proper result in its decision in Miles v. Commonwealth, 272
Va. 302, 634 S.E.2d 330 (2006), I write separately because, in
my view, the rationale underlying that opinion is overbroad and
unnecessary to dispose of the issues presented in this case.
The Commonwealth’s own witness, Dr. Christine A. Nogues,
testified that Ellis Lorenzo Miles’ score on the Rapid Risk
Assessment for Sex Offender Recidivism (RRASOR) was inaccurately
calculated as four instead of three. At oral argument before
this Court, the Commonwealth conceded that, if Miles had
initially received a score of three on the RRASOR, the
Commonwealth would not have forwarded his name to the Commitment
Review Committee pursuant to former Code § 37.2-903(C) and would
not have initiated any further proceedings under the Sexually
Violent Predators Act (the Act), against Miles.
Since Miles has a substantial liberty interest at stake,
see Townes v. Commonwealth, 269 Va. 234, 240, 609 S.E.2d 1, 4
(2005), in my view, the Commonwealth should not be allowed to
proceed with its petition to have Miles declared a sexually
violent predator under the Act when its own expert witness
admitted the initial scoring that caused Miles name to be
forwarded to the Commitment Review Committee for further
assessment was inaccurate. That reason alone requires dismissal
of the Commonwealth’s petition. Thus, it is not necessary for
the majority to decide whether a “correctly computed score” is a
“condition precedent” to initiating proceedings under the Act to
have an inmate declared a sexually violent predator. The
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majority’s rationale will encourage a battle between expert
witnesses with regard to whether an inmate received “a correctly
computed score” and in turn, whether proceedings under the Act
should ever have been commenced against a particular inmate.
“An appellate court decides cases ‘on the best and narrowest
ground available.’ ” Luginbyhl v. Commonwealth, 48 Va. App. 58,
64, 628 S.E.2d 74, 77 (2006) (quoting Air Courier Conference v.
American Postal Workers Union, 498 U.S. 517, 531 (1991)
(Stevens, J., concurring)).
For these reasons, I respectfully concur.
A Copy,
Teste:
Patricia L. Harrington, Clerk
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