COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Overton
Argued at Alexandria, Virginia
PARADICE CARNELL JACKSON, II, F/K/A
JAMES DARRAH
MEMORANDUM OPINION * BY
v. Record No. 1675-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 29, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Ann Hunter Simpson, Judge
Robert B. Goodall (Goodall & Bittinger, P.C.,
on brief), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Jerry W. Kilgore, Attorney
General, on brief), for appellee.
Paradice Carnell Jackson, II (appellant) was convicted in a
jury trial of two counts of breaking and entering and two counts
of petit larceny, third or subsequent offense, and sentenced to
a total term in prison of twenty years. On appeal, appellant
contends the trial court erred: (1) in denying him his
statutory right to a speedy trial; (2) in giving jury
instructions on the felony of petit larceny, third or subsequent
offense; (3) allowing him to appear at trial in a jail
"jumpsuit"; and (4) failing to answer the jury's inquiry as to
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
whether his sentences would run consecutively or concurrently.
We hold that issues 3 and 4 are procedurally barred by Rule
5A:18 and that the ends of justice exception does not apply to
relieve appellant from the requirement to properly object at
trial. 1 For the reasons that follow we affirm on the remaining
issues.
I. Speedy Trial
On April 3, 2000, a grand jury indicted appellant on two
counts of feloniously breaking and entering a dwelling house
with intent to commit larceny in violation of Code § 18.2-91,
one count of grand larceny in violation of Code § 18.2-95,
indictment CR00000232-02 (02), and one count of "unlawfully and
feloniously" taking property having a value of less than $200,
in violation of Code § 18.2-95, indictment CR00000232-03 (03).
Appellant was arrested on a capias on May 4, 2000 and held
continuously in custody thereafter. On May 25, 2000, the trial
court scheduled a jury trial for August 9, 2000 and ordered
discovery, returnable fourteen days before the date of trial.
On August 4, 2000 appellant's attorney filed a motion to
suppress based on the Commonwealth's failure to properly comply
with discovery. On August 9, 2000, the scheduled trial date,
appellant moved for a continuance based on the Commonwealth's
failure to file timely discovery responses. The appellate
1
See also Estelle, Corrections Director v. Williams, 425
U.S. 501 (1976).
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record does not address the motion to suppress on the alleged
discovery violation. Instead, the trial court's order recites
that "[u]pon motion of the defendant, such motion being granted
without objection from the Attorney for the Commonwealth, it is
ordered that this case is continued to October 12, 2000."
On September 25, 2000, the public defender moved for leave
to withdraw as counsel because he had a conflict of interest. A
codefendant who was to be a witness at appellant's trial was
also represented by the Public Defender's Office, albeit on an
unrelated charge. On September 29, 2000 the trial court entered
an order allowing the public defender to withdraw and appointed
new counsel for appellant. 2 The trial court kept the case
docketed for a jury trial on October 12, 2000 at appellant's
request. On October 6, 2000, the trial court granted
appellant's new counsel's motion to continue the jury trial from
October 12, 2000 to December 21, 2000. Appellant's trial began
on December 21, 2000 but ended in a mistrial. Before the jury
was empanelled appellant's attorney noted that the Commonwealth
earlier failed to comply with a discovery order that required a
continuance "so that compliance could be found." The trial
court then rescheduled the case to April 12, 2001.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
2
That counsel had a scheduling conflict; therefore, the
trial court appointed Margaret Hyland on October 2, 2000.
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the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
Appellant first contends that the continuance he requested
on August 9, 2000 should properly be charged to the
Commonwealth. The crux of appellant's argument is that because
the Commonwealth failed to timely provide discovery, the
Commonwealth necessitated the continuance and the time should
not be allocated to him. His claim is without merit.
Code § 19.2-243 provides, in pertinent part, that:
[When an indictment is found against an
accused] if he is held continuously in
custody thereafter, [he] shall be forever
discharged from prosecution for such offense
if no trial is commenced in the circuit
court within five months from the date such
probable cause was found . . . .
This statutory requirement, however, may be waived. Heath v.
Commonwealth, 261 Va. 389, 393, 541 S.E.2d 906, 908 (2001). In
addition, the statute includes several tolling provisions for
the five-month deadline.
The provisions of this section shall not
apply to such period of time as the failure
to try the accused was caused:
* * * * * * *
4. By continuance granted on the motion of
the accused or his counsel, or by
concurrence of the accused or his counsel in
such a motion by the attorney for the
Commonwealth, or by the failure of the
accused or his counsel to make a timely
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objection to such a motion by the attorney
for the Commonwealth, or by reason of his
escaping from jail or failing to appear
according to his recognizance . . . .
Code § 19.2-243. "When a defendant requests, agrees to, or
acquiesces in an order that effectively continues a case, the
five-month speedy trial period of Code § 19.2-243 is tolled
during the time reasonably specified by the court to carry out
the terms of its order." Heath, 261 Va. at 393, 541 S.E.2d at
908 (citations omitted).
In the instant case, defense counsel moved for a
continuance on the initial trial date, August 9, 2000. The
Commonwealth's attorney stated, "Judge, just so the record is
clear on this, what I think we need to make sure we put on the
record, is that there's a defense motion for continuance and the
Commonwealth is concurring." Defense counsel replied "That's
fine." Because no objection was made to the request for a
continuance and, because appellant failed to request that the
continuance be charged to the Commonwealth or put on evidence of
the Commonwealth's bad faith, the continuance was properly
charged to appellant. See Robinson v. Commonwealth, 28 Va. App.
148, 502 S.E.2d 704 (1998) (a continuance granted on defendant's
motion is chargable to defendant); Taylor v. Commonwealth, 4
Va. App. 45, 354 S.E.2d 74 (1987) (absent a showing of bad faith
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by the Commonwealth, continuances requested by defendant will
not be charged to the Commonwealth). 3
Next, appellant argues that it was error to allow his
attorney to withdraw less than two weeks before the scheduled
jury trial on October 12, 2000. Appellant contends that the
trial court was plainly wrong in allowing the withdrawal because
that inevitably meant that his speedy trial rights would be
violated.
"A trial court's determination whether to allow counsel to
withdraw depends upon the circumstances of each case and lies
within the court's sound discretion." Shearer v. Commonwealth,
9 Va. App. 394, 401, 388 S.E.2d 828, 831 (1990). Appellant did
not object when the trial court granted the public defender's
motion to withdraw nor did new defense counsel raise the matter
at trial. Accordingly, Rule 5A:18 bars our consideration of
this issue.
Additionally, the trial court granted appellant's request
to maintain October 12, 2000 as the trial date. Specifically,
when appellant advised the court, "I prefer not to waive speedy
trial," at the time the public defender was relieved of his
representation, the trial court ruled, "Then the matter will
remain docketed for a jury trial on October 12, 2000, at
3
The time period between the December 21, 2000 mistrial and
the retrial on April 12, 2000 is not at issue. See Fisher v.
Commonwealth, 26 Va. App. 788, 792-93, 497 S.E.2d 162, 164
(1998).
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10:00 a.m." That date was continued at the request of new
defense counsel. "[B]ecause the continuance was necessary to
enable replacement counsel for the defendant to prepare the
defense, the continuance was attributable to the defense."
Shearer, 9 Va. App. at 402, 388 S.E.2d at 832. We hold that
because appellant requested the continuances at issue and did
not object to the substitution of counsel, there was no speedy
trial violation.
II. Felony Larceny Convictions
Appellant next contends that deficiencies in the two
indictments charging him with the grand larceny offenses require
reversal of these convictions.
Appellant first argues that indictment 03, which charged
appellant with "unlawfully and feloniously" stealing property
with a value of less than $200, was ambiguous because it charged
a violation of Code § 18.2-95 that was committed "feloniously"
and failed to give him proper notice of the crime charged.
Thus, it was error to permit the jury to convict him of a felony
when he was indicted for a misdemeanor.
The indictment or information shall be a
plain, concise and definite written
statement, (1) naming the accused, (2)
describing the offense charged, (3)
identifying the county, city, or town in
which the accused committed the offense, and
(4) reciting that the accused committed the
offense on or about a certain date. In
describing the offense, the indictment or
information may use the name given to the
offense by the common law, or the indictment
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or information may state so much of the
common law or statutory definition of the
offense as is sufficient to advise what
offense is charged.
Code § 19.2-220.
Indictment 03 clearly and unambiguously charged appellant
with a "felonious" taking. Furthermore, the trial court
expressly discussed indictment 03 with counsel at the April 12,
2001 trial. The trial court noted that during a pretrial
conference, defense counsel and the Commonwealth's attorney
"advised me that the Court orders have previously listed
[indictment 03] as a misdemeanor offense, but it is, in fact, a
felony offense, third or subsequent offense of petty larceny, is
that correct?" After the Commonwealth's attorney stated that
she felt no need to further amend the indictment, appellant's
counsel stated "I was aware of that. Mr. Jackson personally
objects to the amendment, but I have explained to him the basis
for the amendment exists, in fact, the indictment already says
unlawfully and feloniously." The trial court then ordered the
clerk to include in her order language that "corrects all prior
orders that erroneously refer to indictment [03] as a
misdemeanor charge."
"This was not a case of a defendant who had no idea what to
expect when he came to court." Buchanan v. Commonwealth, 238
Va. 389, 398, 384 S.E.2d 757, 763 (1989). To the contrary, the
record makes clear that counsel understood the true nature of
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the charge and acquiesced in the amendment. "The trial
proceeded from that point on the amended indictment, and this
with the full knowledge of all parties involved. The
instructions granted were consistent with the allegations of the
amended indictment and the evidence thereon." Edwards v.
Commonwealth, 218 Va. 994, 1003, 243 S.E.2d 834, 839 (1978).
Next, appellant contends that his conviction under
indictment 02, petit larceny, third or subsequent offense, was
erroneous because this indictment did not identify the offense
as a petit larceny, third or subsequent offense. This
contention is without merit. Indictment 02 charges appellant
with the felony of grand larceny pursuant to Code § 18.2-95.
The trial court partially granted appellant's motion to strike
and reduced the charge to the lesser-included offense of petit
larceny because the Commonwealth failed to prove that the value
of the goods stolen was greater than $200. However, counsel
noted that the reduction to petit larceny did not change the
felonious nature of the charge because it remained a "third or
subsequent offense."
I was under the belief that having agreed
that there was enough to sustain felony
petty [sic] for the other charge, that the
amendment of the grand larceny to petty
[sic] would have remained as a felony
. . . . Although if the Court wishes to
change it to a misdemeanor, I certainly
won't object, but having not objected to the
previous stipulation, I don't believe I have
the authority to object at this point.
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The charge was submitted to the jury without objection as a
felony, third or subsequent offense. Appellant is barred from
now contesting the same issues he agreed to at trial. See Rule
5A:18; Luck v. Commonwealth, 30 Va. App. 36, 46, 515 S.E.2d 325,
329 (1999). We therefore affirm the trial court.
Affirmed.
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