Dorsey v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia

LEROY DORSEY
OPINION BY
v. Record No. 1543-98-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 4, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge

Mark A. Rothe for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Leroy Dorsey (appellant) was convicted in a jury trial of

robbery, in violation of Code § 18.2-58, and the use of a

firearm in the commission of robbery, in violation of Code

§ 18.2-53.1. On appeal, he contends that: (1) his conviction

violated the Double Jeopardy Clause of the United States

Constitution; (2) he was denied due process when the trial court

revoked his bail; (3) the trial court erroneously failed to

defer to previous judicial determinations admitting him to bail;

and (4) the trial court lacked authority to order his bail

revoked. For the following reasons, we affirm.
 I. Background

On August 7, 1997, appellant was arrested for robbing Danny

Neil and later released by a magistrate on $10,000 bail, which,

on August 11, 1997, was reduced to $3,000. Only one robbery

charge was certified to the grand jury and appellant's bail was

continued. On September 15, the grand jury, indicted appellant

on the robbery charge and returned a direct indictment for using

a firearm in the commission of the robbery.

On October 10, 1997, the Commonwealth filed a motion to

join the trials of appellant and his codefendant, Alfred Dearing

(Dearing). At the joinder hearing on October 23, 1997, the

Commonwealth presented evidence that appellant had participated

with Dearing in two armed robberies on or about August 7, 1997,

including the one with which appellant was charged. According

to Detective Paul Larson, appellant "came from Maryland to

Virginia to commit a robbery with his cousin." Larson testified

as follows:

A. . . . He told us that earlier before the
robbery in Arlington that they had done
another robbery or had another incident. I
couldn't identify exactly where. But
through a report in Alexandria, an earlier
robbery happened in Alexandria with the same
circumstances.

Q. And with respect to the robbery that
occurred in Arlington, what did the
defendant Mr. Dorsey tell you what [sic]
happened in that robbery?

A. He said that they had driven up next to
the victim who was walking down Kenmore

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 Street, the 1900 block of Kenmore Street,
where Mr. Dearing pointed the gun at the
victim and demanded money.

The victim didn't have any, so they
ended up taking a gold chain from around the
victim's neck and then leaving the scene.

* * * * * * *

Q. At the time that the Arlington robbery
occurred, did Mr. Dorsey tell you where he
was in the car?

A. Yes. He said he was the driver of the
car.

After argument by both parties, the trial court granted the

Commonwealth's request for a joint trial. Additionally, the

trial court, sua sponte, revoked appellant's bail, explaining:

I think [appellant and Dearing] are a danger
to this community. And I am presuming them
to be innocent. The jury can find them
innocent or not guilty. But on the evidence
that I heard, riding around and pointing a
gun, they are a danger. More than once in
fact.

(Emphasis added). The following week, appellant filed a "Notice

and Motion to Re-Admit Defendant to Bail" and requested a

hearing on the motion. At the October 27, 1997 bail hearing,

the Commonwealth noted that appellant had not been arraigned on

the firearm charge for which he had been directly indicted. The

Commonwealth asked that no bail be set for that charge. The

trial court agreed, denied the motion for bail on the firearm

charge, and denied the motion to re-admit appellant to bail on

the robbery charge, stating:

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 Counsel, I don't have any problem with
either of the defendant's [sic] appearance
in court. They're here when they're
supposed to be.

My problem is the danger they represent
to the community. And I have ample evidence
brought to my attention as a result of the
[joinder] hearing that they are a danger.

Now, if able counsel, and I have no
doubt that they can certainly try and may be
successful, can convince a jury that they
didn't do it, that's fine. But that's for
[defense counsel] to deal with the jury.

But insofar as I'm concerned, my
responsibility, in part, is to decide
whether or not these two individuals
represent a clear, present danger to this
community. And I say they do.

Now, if the jury says they're not
guilty, fine. But until that happens,
they're not going to be riding around out on
the street, pull up to people and pulling
guns and robbing. No way.

(Emphasis added).

On January 15, 1998, approximately two and one-half months

after the bond hearing, appellant filed a motion to recuse the

trial judge, arguing that "impartiality in this case could be

called into question, given [the trial court's] statement that

. . . [appellant] was a danger to the community." The trial

court denied the motion to recuse, stating:

[The motion denying bail] was made
because in this Court's opinion, these two
individuals represented a danger to the
community. If they're acquitted, I
apologize. But I'm not going to run the
risk that [the defendants are] going to go

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 out and hurt somebody pending the trial.
And that's that.

At the January 15, 1998 motions hearing, appellant also filed a

"Plea of Former Jeopardy," arguing that revocation of his bail

violated due process and that trial on these charges violated

the double jeopardy prohibition. The trial court denied

appellant's double jeopardy challenge.

Appellant appealed neither the denial of bail on the

firearm charge nor the revocation of his bail on the robbery

charge. Appellant was tried by jury and convicted of robbery

and the use of a firearm in the commission of the robbery.

II. Double Jeopardy

Appellant contends he was subjected to multiple punishments

in violation of the Double Jeopardy Clause of the Fifth

Amendment. He argues that the revocation of his bail

constituted "punishment" and, thus, his subsequent trial on the

substantive charges was constitutionally impermissible. We

disagree.

The Fifth Amendment to the United States Constitution

states that no "person [shall] be subject for the same offence

to be twice put in jeopardy of life or limb." U.S. Const.

amend. V. The Double Jeopardy Clause provides three distinct

protections: "It protects against a second prosecution for the

same offense after acquittal. It protects against a second

prosecution for the same offense after conviction. And it

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protects against multiple punishments for the same offense."

North Carolina v. Pearce, 305 U.S. 711, 717 (1969); see Shears

v. Commonwealth, 23 Va. App. 394, 400, 477 S.E.2d 309, 312

(1996). By its terms, the Double Jeopardy Clause "applies only

if there has been some event . . . which terminates the original

jeopardy." Richardson v. United States, 468 U.S. 317, 325

(1984). It is the third prong of this doctrine upon which

appellant relies.

In Hudson v. United States, 522 U.S. 93 (1997), the United

States Supreme Court explained that "the Double Jeopardy Clause

does not prohibit the imposition of any additional sanction that

could, in common parlance, be described as punishment." Id. at

98-99 (internal quotations and citations omitted). "The Clause

protects only against the imposition of multiple criminal

punishments for the same offense, and then only when such occurs

in successive proceedings." Id. at 99 (citations omitted).

Whether a particular punishment is criminal
or civil is, at least initially, a matter of
statutory construction. A court must first
ask whether the legislature, in establishing
the penalizing mechanism, indicated either
expressly or impliedly a preference for one
label or the other. Even in those cases
where the legislature has indicated an
intention to establish a civil penalty, we
have inquired further whether the statutory
scheme was so punitive either in purpose or
effect, as to transfor[m] what was clearly
intended as a civil remedy into a criminal
penalty.

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Id. (internal quotations and citations omitted). See United

States v. Ward, 448 U.S. 242, 248-49 (1980); Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 168-69 (1963); see also Ingram

v. Commonwealth, 29 Va. App. 759, 763-64, 514 S.E.2d 792, 794-95

(1999).

The Court in Hudson outlined the following "useful

guideposts" in determining whether a punishment is criminal:

(1) [w]hether the sanction involves an
affirmative disability or restraint; (2)
whether it has historically been regarded as
a punishment; (3) whether it comes into play
only on a finding of scienter; (4) whether
its operation will promote the traditional
aims of punishment-retribution and
deterrence; (5) whether the behavior to
which it applies is already a crime; (6)
whether an alternative purpose to which it
may rationally be connected is assignable
for it; and (7) whether it appears excessive
in relation to the alternative purpose
assigned.

Hudson, 522 U.S. at 99 (quoting Kennedy, 372 U.S. at 168-69)

(internal quotations omitted). As the Court emphasized,

however, "these factors must be considered in relation to the

statute on its face, and only the clearest proof will suffice to

override legislative intent and transform what has been

denominated a civil remedy into a criminal penalty." Id. at 100

(internal quotations and citations omitted).

In the instant case, appellant contends that under the

tests enunciated in Kennedy and Hudson the revocation of his

bail served as punishment for the crimes charged, as opposed to

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any regulatory function of the Commonwealth. He argues that

"[i]mprisonment involves an affirmative restraint and

deprivation of those fundamental rights which ha[ve] been

traditionally considered as punishment." Because the trial

court was not justified in revoking his bail, appellant

concludes, the revocation was an impermissible punishment in

violation of the Double Jeopardy Clause.

The trial court's revocation of his bail was not an

adjudication of guilt on the offenses charged in the

indictments, but rather was a finding of probable cause to

believe that appellant's freedom posed a threat to the

community. More importantly, this pretrial detention did not

constitute "punishment." See United States v. Salerno, 481 U.S.

739, 746-48 (1987); Schall v. Martin, 467 U.S. 253, 268-74

(1984); Bell v. Wolfish, 441 U.S. 520, 535-37 (1979). For

example, in Salerno the United States Supreme Court held that

pretrial detention, based upon evidence that the accused

presents a threat of danger to the public, "falls on the

regulatory side of the dichotomy." 481 U.S. at 747. The Court

wrote:

As an initial matter, the mere fact
that a person is detained does not
inexorably lead to the conclusion that the
government has imposed punishment. . . .
Congress did not formulate the pretrial
detention provisions as punishment for
dangerous individuals. Congress instead
perceived pretrial detention as a potential
solution to a pressing societal problem.

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 There is no doubt that preventing danger to
the community is a legitimate regulatory
goal.

Id. at 746-47 (emphasis added). See also United States v.

Grisanti, 4 F.3d 173, 175 (2d Cir. 1993) (holding that since a

bail revocation hearing was not "'essentially criminal,'" and

pretrial detention did not constitute punishment, the defendant

was not twice put in jeopardy).

Our conclusion that revocation of appellant's bail was not

punitive is buttressed by an analysis of Code § 19.2-120, which

provides that a defendant has a statutory right to bail "unless

there is probable cause to believe that: (1) He will not appear

for trial or hearing or at such other time and place as may be

directed, or (2) His liberty will constitute an unreasonable

danger to himself or the public." (Emphasis added). This

provision allowing pretrial detention is not punishment in the

usual sense; it serves a regulatory function, the protection of

the public, rather than a criminal function, punishment. See

Salerno, 481 U.S. at 747 (holding that the pretrial detention of

a dangerous individual is a legitimate regulatory goal); see

also State v. Pennington, 952 S.W.2d 420, 423 (Tenn. 1997)

(holding that the pretrial detention policy "was intended, at

least in part, to protect the public from individuals who had

been arrested on suspicion of driving under the influence. This

is a remedial purpose, not a punitive one . . . .").

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 Appellant's reliance on Bitter v. United States, 389 U.S.

15 (1967) (per curiam), is also misplaced. In Bitter, the

Supreme Court held that the trial court's revocation of bail,

made without a hearing or any explanation of reasons by the

trial judge, had the "appearance and effect of punishment." Id.

at 16. In Bitter, at the conclusion of the government's case,

the defendant sought leave of court to go to his office to

gather additional evidence for his defense. Although the

defendant promptly appeared at every session of the trial, he

was thirty-seven minutes late returning from the recess. The

trial court revoked the defendant's bail for the remainder of

the trial. See id. at 15-16.

On appeal, the United States Supreme Court reversed the

defendant's convictions because the revocation of his bail "was

unjustified" and "it constituted an unwarranted burden upon

defendant and his counsel in the conduct of the case." Id. at

16.

The record in this case shows only a single,
brief incident of tardiness, resulting in
commitment of the defendant to custody for
the balance of the trial in a jail 40 miles
distant from the courtroom. In these
circumstances, the trial judge's order of
commitment, made without hearing or
statement of reasons, had the appearance and
effect of punishment rather than of an order
designed solely to facilitate the trial.
Punishment may not be so inflicted.

Id. (emphasis added).

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 In the instant case, the trial court, after hearing

evidence, clearly explained its reason for revoking appellant's

bail, i.e., the danger he and his codefendant posed to the

community. One week after revocation of his bail, appellant was

again afforded the opportunity to present evidence on his behalf

and the trial court again found that the codefendants "represent

a clear, present danger to this community. . . . [T]hey're not

going to be riding around out on the street, pull up to people

and pulling guns and robbing." 1

In sum, we hold that the pretrial detention of appellant,

the revocation of his bail on the robbery charge and setting no

bail on the firearm charge did not bar the Commonwealth's

prosecution for the offenses charged in the indictments.

Additionally, we find that the revocation of bail was based upon

the trial court's specific finding that appellant posed a threat

to the community and it did not serve as a punishment for the

substantive crimes. These facts do not present a case involving

1
In this regard, appellant contends that the revocation
was equivalent to a conviction, in part, because the trial
court stated that appellant would have to prove his innocence
before he was released. Despite this misstatement by the
court, it acknowledged that appellant was presumed innocent,
and it properly instructed the jury on the burden of proof at
trial. "The presumption of innocence is a doctrine that
allocates the burden of proof in criminal trials . . . . But
it has no application to a determination of the rights of a
pretrial detainee during confinement." Wolfish, 441 U.S. at
533 (emphasis added). Accordingly, appellant's argument is
without merit.

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"multiple punishments" prohibited by the Double Jeopardy Clause

and, therefore, we find no error.

III. Due Process

Appellant next contends the revocation of his bail violated

his substantive due process rights under the Fourteenth

Amendment because the revocation was not "rationally related to

a legitimate nonpunitive government purpose" and, in the

alternative, because the revocation was "excessive in relation

to that purpose." He also maintains that "[d]epriving a person

of physical liberty without procedural due process and without

according him the rights guaranteed by the constitution,

including notice, confrontation, and trial by jury, is a

sanction which is punitive in nature." We disagree.

The due process clauses of the Federal and Virginia

Constitutions provide that no person shall be deprived of life,

liberty, or property without due process of law. See U.S.

Const. amend. XIV, § 1; Va. Const. art. I, § 11.

"'[S]ubstantive due process' prevents the government from

engaging in conduct that 'shocks the conscience,' or interferes

with rights 'implicit in the concept of ordered liberty.'"

Salerno, 481 U.S. at 746 (citations omitted). "When government

action depriving a person of life, liberty, or property survives

substantive due process scrutiny, it must still be implemented

in a fair manner. This requirement has traditionally been

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referred to as 'procedural' due process." Id. (citations

omitted).

In Salerno, the defendants challenged the constitutionality

of the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. (1982

ed., Supp. III), which allowed arrestees to be held without bail

if the government established that no release conditions would

ensure the public's safety. See id. at 741. Rejecting the

defendants' argument that this form of pretrial detention

constituted impermissible punishment, the Supreme Court held

that pretrial detention under the Act was not penal, but rather

was regulatory and had the reasonable goal of preventing

dangerous defendants from committing crimes while free on bail.

See id. at 746-47. "[T]he mere fact that a person is detained

does not inexorably lead to the conclusion that the government

has imposed punishment." Id. at 746. Rather, the reviewing

court must look to legislative intent to determine whether the

statute authorizing pretrial detention is designed to be

punitive or regulatory. See id. at 747. And "[t]here is no

doubt that preventing danger to the community is a legitimate

regulatory goal." Id.

Applying these principles to the instant case, we hold that

the revocation of appellant's bail violated neither his

substantive nor procedural due process rights. Code § 19.2-120

provides that an accused shall be released on bail pending

trial, unless the trial court finds probable cause to believe

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that the accused is either a threat to abscond, or his or her

release poses an unreasonable danger to the community.

Additionally, "bail can be revoked based upon such a finding [of

probable cause]." Heacock v. Commonwealth, 228 Va. 235, 240,

321 S.E.2d 645, 648 (1984). Like the Bail Reform Act at issue

in Salerno, Code § 19.2-120 is regulatory, not penal, and

provides for pretrial detention only if the accused is a threat

to abscond or poses a risk to the safety of the community. The

trial court found, based on evidence presented at the joinder

hearing, that appellant posed a danger to the community.

Accordingly, appellant's pretrial detention did not violate his

substantive due process rights. See Salerno, 481 U.S. at 747-48

(holding that pretrial detention for "future dangerousness"

constituted permissible regulation that did not violate

substantive due process); Schall, 467 U.S. at 268-70 (holding

that preventive detention of juveniles served legitimate state

objective and was not denial of due process).

Moreover, appellant's pretrial detention did not violate

his procedural due process rights. "Procedural due process

rules are meant to protect persons not from the deprivation, but

from the mistaken or unjustified deprivation of life, liberty,

or property," Carey v. Piphus, 435 U.S. 247, 259 (1978), and the

rules "guarantee[ ] that a person shall have reasonable notice

and opportunity to be heard before any binding order can be made

affecting the person's rights to liberty or property." McManama

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v. Plunck, 250 Va. 27, 34, 458 S.E.2d 759, 763 (1995) (emphasis

added). "Due process is a flexible concept, and the procedural

protections required in a certain instance vary according to the

circumstances of the particular case." Jackson v. W., 14 Va.

App. 391, 411, 419 S.E.2d 385, 397 (1992).

In the instant case, when the trial court made its initial,

sua sponte ruling to revoke appellant's bail, appellant did not

object. Moreover, although appellant was afforded an

opportunity to present evidence on his behalf at the hearing to

reinstate bail, he chose not to present any evidence at that

time. The Commonwealth urged the trial court to deny the motion

to re-admit appellant to bail on the robbery charge and asked

the trial court to deny bail on the firearm charge. Appellant

relied upon his oral argument offered to the trial court. Most

importantly, appellant had the opportunity and statutory right

to appeal the trial court's decision but chose not to do so.

See Code § 19.2-124 (allowing the right to appeal a denial of

bail). We hold that under these circumstances, appellant

received all the process he was due. See Schall, 467 U.S. at

277 (holding that "notice, a hearing, and a statement of facts

and reasons [for detention]" are constitutionally adequate

procedures under the Due Process Clause).

IV. REVOCATION OF BAIL

Finally, appellant contends the trial court erred by

failing to defer to previous determinations admitting him to

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bail. Specifically, he argues the initial determinations by

other "judicial officers" to set bail were findings that he did

not present a danger to society. According to appellant, these

findings "are entitled to the highest degree of deference" and

the decisions admitting him to bail are "binding on other judges

of the same jurisdiction under the law of the case doctrine."

Applying this rationale, appellant concludes the trial court

lacked the authority to order the revocation of his bail. We

disagree.

The Supreme Court of Virginia has held that bail can be

revoked upon a finding of probable cause to believe that, among

other things, the accused is a danger to society. See Heacock,

228 Va. at 240, 321 S.E.2d at 648. "If an application for bail,

i.e., release from custody, can be denied upon a finding of

probable cause to believe that the accused will not appear or

will constitute an unreasonable danger while at liberty, bail

can be revoked upon such a finding." Id. (emphasis added).

Additionally, in considering terms of bail, the Code mandates

that the trial court consider the nature and circumstances of

the crime, the weight of the evidence, whether a firearm was

used, and any other relevant circumstances. See Code

§ 19.2-121. 2

2
Code § 19.2-121 provides:

If the person is admitted to bail, the terms
thereof shall be such as, in the judgment of

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 In the instant case, the trial court revoked appellant's

bail after hearing unrebutted evidence that, in a single night,

appellant participated in two robberies in which a firearm was

used. The joinder hearing was the first occasion of record at

which any "judicial officer" heard that appellant admitted: (1)

planning to come to Virginia to commit robbery; (2) committing

another robbery earlier in Alexandria; and (3) driving the

vehicle from which his codefendant pointed a gun at their

victims while robbing them. The record contains no evidence

any official granting or reconsidering the
same, will be reasonably fixed to assure the
appearance of the accused and to assure his
good behavior pending trial. The judicial
officer shall take into account (i) the
nature and circumstances of the offense;
(ii) whether a firearm is alleged to have
been used in the offense; (iii) the weight
of the evidence; (iv) the financial
resources of the accused or juvenile and his
ability to pay bond; (v) the character of
the accused or juvenile including his family
ties, employment or involvement in
education; (vi) his length of residence in
the community; (vii) his record of
convictions; (viii) his appearance at court
proceedings or flight to avoid prosecution
or failure to appear at court proceedings;
(ix) whether the person is likely to
obstruct or attempt to obstruct justice, or
threaten, injure, or intimidate, or attempt
to threaten, injure, or intimidate a
prospective witness, juror, or victim; and
(x) any other information available which
the court considers relevant to the
determination of whether the accused or
juvenile is unlikely to appear for court
proceedings.

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that any other "judicial officer" had knowledge that a firearm

had been used. 3

Although appellant's bail was initially set at $10,000, and

was later reduced to $3,000, we cannot infer from the record

before us that another "judicial officer," knowing all the

facts, found that appellant was not dangerous. The trial judge

had the authority and duty to revoke appellant's bail if

evidence presented to him established that appellant posed a

danger to the community. Based upon such a finding, the trial

court did so. 4

Nonetheless, relying on federal cases applying federal law,

appellant argues that "a judge has no authority to reconsider,

disturb, modify, or vacate another judge's pretrial detention

absent clear error of law or significant change in

3
In his brief, appellant contends "the only evidence
presented and considered by the court related to the charges of
robbery made against him, which had also been considered by those
preceeding [sic] judicial officers." (Emphasis added). He also
argues the magistrate who set the initial $10,000 bail and the
general district court judge who reduced his bail to $3,000
determined that he was not a danger to society. Appellant
concedes these facts are "outside the record" and there is no
preliminary hearing transcript in this case. Accordingly, we are
unable to determine what evidence of dangerousness, if any, was
presented to those judicial officers.
4
Contrary to appellant's argument, the law of the case
doctrine does not apply in this context. "'A trial court is
empowered to change a legal determination as long as it retains
jurisdiction over the proceedings before it.'" Bottoms v.
Commonwealth, 22 Va. App. 378, 384, 470 S.E.2d 153, 156 (1996)
(holding that the trial judge was not bound by another judge's
ruling on the defendant's earlier motion in limine) (citation
omitted).

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circumstances." See United States v. Rouleau, 673 F. Supp. 57

(D. Mass. 1987); United States v. Thomas, 667 F. Supp. 727 (D.

Or. 1987); United States v. Logan, 613 F. Supp. 1227 (D. Mont.

1985). Appellant's reliance on those cases is misplaced. The

pretrial detention procedures used by the federal district

courts in those cases involved the Bail Reform Act of 1984,

which is inapplicable to the instant case. See Rouleau, 673 F.

Supp. at 58; Thomas, 667 F. Supp. at 728; Logan, 613 F. Supp. at

1228. More importantly, even the federal cases cited by

appellant recognized that a detention order may be amended if

"the underlying factual circumstances have changed in some

significant way." Rouleau, 673 F. Supp. at 59; see Logan, 613

F. Supp. at 1228 (holding that on a motion to reconsider

determination of another district judge denying bail pending

trial, second district judge may not disturb the determination

absent "clear error of law" or "changed circumstances" warrant

reconsideration of the findings); see also United States v.

Gallo, 653 F. Supp. 320, 327 (E.D.N.Y. 1986) ("Where

significantly changed circumstances raise a new issue of law,

and additional evidence is proffered, a judicial officer has

inherent power to reconsider his or her own order.").

It was not until after the trial court learned that a

firearm had been used in the robbery, and after the grand jury

directly indicted appellant for the use of a firearm in the

commission of that robbery, did the trial court revoke

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appellant's bail on the robbery charge and deny bail on the

firearm charge. Appellant had a clear remedy, a statutory

right, to contest the revocation of his bail as provided by Code

§ 19.2-124. "If a judicial officer denies bail to a person,

requires excessive bond, or fixes unreasonable terms of

recognizance . . ., the person may appeal therefrom successively

to the next higher court or judge thereof, up to and including

the Supreme Court of Virginia or a justice thereof permitted by

law." Code § 19.2-124; see also Stack v. Boyle, 342 U.S. 1, 6

(1951) ("The proper procedure for challenging bail as unlawfully

fixed is by a motion for reduction of bail and appeal to the

Court of Appeals from an order denying such motion.").

In the instant case, the trial court revoked appellant's

bail at the joinder hearing on October 23, 1997, and denied

appellant's motion to re-admit bail following a hearing on

October 27, 1997. Although appellant noted an exception to the

trial court's order, he did not appeal that decision pursuant to

Code § 19.2-124. Instead, he remained incarcerated for two

months pending trial before filing his "Plea of Former

Jeopardy." By that time, appellant had already been convicted

of the Alexandria robbery and firearm charges, which enabled the

Commonwealth to present these prior convictions to the jury at

the sentencing phase and to seek an enhanced punishment on the

firearm conviction. Appellant's challenge to the present

convictions, after failing to appeal the trial court's decision

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revoking bail on the robbery charge and denying bail on the

firearm charge, is without merit. See Eagleston v.

Commonwealth, 18 Va. App. 469, 471-72, 445 S.E.2d 161, 163

(1994). 5

The trial court's decision sua sponte to revoke appellant's

bail does not mandate a different conclusion. Ordinarily, the

Commonwealth initiates the revocation under Code § 19.2-132.

Where the conditions of bail have been determined in an initial

appearance before a judicial officer, bail may not be revoked

unless the Commonwealth presents evidence that: (1) the person

"violated a term or condition of his release, or is convicted of

or arrested for a felony or misdemeanor"; or (2) "that incorrect

or incomplete information . . . was relied upon by the court or

magistrate establishing initial bond." Code § 19.2-132(B).

However, nothing in Code § 19.2-132 prohibits or limits a trial

court in an appropriate case from revoking the defendant's bail

sua sponte upon learning information that establishes probable

cause to believe the defendant is a danger to society. Cf. Code

5
Appellant's argument that Code § 19.2-124 only applies to
the initial determination of bail, and not to the revocation of
bail, is without merit. Here, appellant was denied bail on the
firearm charge, which was subject to appeal under Code
§ 19.2-124. Additionally, the decision revoking bail on the
robbery charge had the same effect as a denial of bail and
became appealable at that time. Cf. Heacock, 228 Va. at 240,
321 S.E.2d at 648 (holding the denial of bail and the revocation
of bail to the same standard of proof).

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§ 19.2-132(B) (court may revoke bail based upon "incomplete

information" relevant to establishing the initial bond).

In sum, we conclude that the trial judge had the authority

to revoke appellant's bail upon his finding, based on evidence

heard ore tenus, that appellant posed an unreasonable threat to

the community. The trial judge did not abuse his discretion.

See Fisher v. Commonwealth, 236 Va. 403, 411, 374 S.E.2d 46, 51

(1988).

For the foregoing reasons, appellant's convictions are

affirmed.

Affirmed.

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Benton, J., concurring.

I concur in Parts I, II, and III of the majority opinion

and in the judgment affirming the convictions. I do not join in

Part IV.

In Virginia, the procedures for determining whether to

grant or revoke bail are statutory. See Code §§ 19.2-119

- 19.2-152.4. Those statutes do not permit a trial judge sua

sponte and without prior notice to revoke bail of a person

previously admitted to bail.

Although the bail statutes have been substantially revised

after the proceeding in this case, the following statute was

applicable at that time:

A. Although a party has been admitted to
bail, if the amount of any bond is
subsequently deemed insufficient, or the
security taken inadequate, the attorney for
the Commonwealth of the county or city in
which the accused or juvenile taken into
custody pursuant to § 16.1-246 is held for
trial may, on reasonable notice to the
accused or juvenile and to any surety on the
bond of such accused or juvenile, move the
court, or the appropriate judicial officer
to increase the amount of such bond. The
court may, in accordance with subsection B,
grant such motion and may require new or
additional sureties therefor, or both. Any
surety in a bond for the appearance of such
party may take from his principal collateral
or other security to indemnify such surety
against liability. The failure to notify
the surety will not prohibit the court from
proceeding with the bond hearing.

B. Subsequent to an initial appearance
before any judicial officer where the
conditions of bail have been determined, no

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 accused or juvenile, after having been
released on a bond, shall be subject to a
motion to increase such bond unless (i) the
accused or juvenile has violated a term or
condition of his release, or is convicted of
or arrested for a felony or misdemeanor, or
(ii) the attorney for the Commonwealth
presents evidence that incorrect or
incomplete information regarding the
accused's or juvenile's family ties,
employment, financial resources, length of
residence in the community, record of
convictions, record of appearance at court
proceedings or flight to avoid prosecution
or failure to appear at court proceedings,
or other information relevant to the bond
determination was relied upon by the court
or magistrate establishing initial bond.

Code § 19.2-132. This statute, which requires reasonable notice

to the accused to change bail, necessarily requires the same

notice before bail may be revoked.

Leroy Dorsey and an accomplice were arrested August 7,

1997, and charged with a robbery in Arlington and a robbery in

Alexandria. After Dorsey gave a statement to the police, a

magistrate in Arlington admitted him to bail. Following a

hearing four days later, a general district court judge reduced

the amount of the bail. Later, at the preliminary hearing, the

general district court judge certified the robbery charge to the

grand jury and continued Dorsey's bail. The prosecutors sought

and received from the grand jury indictments charging Dorsey

with robbery and use of a firearm in the commission of that

robbery. At a hearing following the issuance of the

indictments, the prosecutors appeared before a circuit court

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judge, obtained a date for a hearing, and made no motion to

increase or revoke Dorsey's bail. On October 14, 1997, the

Commonwealth appeared before the same judge concerning a motion

in this case. The judge granted a continuance and ordered that

Dorsey's "Bond is continued."

The prosecutor filed a motion to join the trials of Dorsey

and the accomplice. At a hearing on that motion, the trial

judge, who was not the same circuit court judge that earlier

continued Dorsey's bail, granted the Commonwealth's joinder

motion. After setting the joined cases for a jury trial, the

trial judge sua sponte revoked Dorsey's bail. The prosecutor

had not requested this revocation.

Although I agree with the majority opinion that Dorsey's

counsel did not object when the trial judge sua sponte revoked

Dorsey's bail and that Dorsey failed to appeal that action

pursuant to Code § 19.2-124, I cannot join in an opinion

condoning the trial judge's action. "When government action

depriving a person of . . . liberty survives substantive due

process scrutiny, it must still be implemented in a fair

manner." United States v. Salerno, 481 U.S. 739, 746 (1987).

Our statutory bail procedures are designed to guarantee

reasonable notice and an opportunity to be heard so that bail

decisions do not result in mistaken, unjustifiable, and

arbitrary deprivations.

- 25 -
 The statute places upon the prosecutor the burden to

initiate actions to revoke bail upon notice to the accused. In

this case, however, the trial judge acted on his own initiative.

To sanction this deviation from the statutory procedure invites

arbitrary and capricious results because any judge who is so

inclined can now revoke bail at any hearing based solely on his

or her subjective belief that another judge, who had previously

admitted an accused to bail, acted wrongly. "[W]e must assume

that 'the legislature chose, with care, the words it used when

it enacted the relevant statute, and we are bound by those words

as we interpret the statute.'" City of Virginia Beach v. ESG

Enters., Inc., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992)

(citation omitted). 6

6
The current statute explicitly addresses revocation and
would bar this type of revocation. In pertinent part, it provides
as follows:

Subsequent to an initial appearance before
any judicial officer where the conditions of
bail have been determined, no person, after
having been released on a bond, shall be
subject to a motion to . . . revoke bail
unless (i) the person has violated a term or
condition of his release, or is convicted of
or arrested for a felony or misdemeanor, or
(ii) the attorney for the Commonwealth
presents evidence that incorrect or
incomplete information . . . was relied upon
by the court or magistrate establishing
initial bond.

Code § 19.2-132(B) (emphasis added).

- 26 -
 The record contains no evidence to support the assertion

that the joinder hearing was the first occasion at which any

"judicial officer" heard the facts concerning the robbery. The

record does establish, however, that at 2:15 a.m., immediately

after his arrest at 1:40 a.m., Dorsey gave a complete statement

to the police concerning the armed robberies. Thus, it is

likely that both the magistrate, who initially set bail at

5:12 a.m. on August 7, and the judge, who found probable cause

on September 10, 1997, and re-admitted Dorsey to bail, heard the

report of the police. In any event, before he sua sponte

revoked Dorsey's bail, the trial judge made no inquiry

concerning the basis upon which those other judges admitted

Dorsey to bail. He had no knowledge whether the magistrate and

the two judges who admitted Dorsey to bail were aware of the

particular circumstances of the offenses. He merely made a de

novo decision to revoke Dorsey's bail. That ruling, made

without notice or hearing, was arbitrary and "had the appearance

. . . of punishment." Bitter v. United States, 389 U.S. 15, 17

(1967).

Once a bail decision has been made, neither the accused nor

the prosecutor is statutorily entitled to have the issue of bail

revisited de novo whenever another judge hears a motion or is

assigned to determine some aspect of the case. See Code

§ 19.2-132(B). Parties are not entitled to "shop" for a judge

until that party finds one who will consider de novo the bail

- 27 -
issue and grant relief. Likewise, the statute does not

authorize each judge who is assigned a motion in a case to

reconsider sua sponte the issue of bail de novo.

Without sanctioning the trial judge's actions, I would hold

that Dorsey neither objected nor appealed when the trial judge

sua sponte revoked his bail. See Rule 5A:18; Code § 19.2-124.

Furthermore, the "ends of justice" exception to Rule 5A:18 is of

no avail to Dorsey because the record establishes that on

October 27, 1997, four days after the judge revoked bail, a

hearing was held to determine whether to re-admit Dorsey to

bail. When the trial judge refused to do so, no appeal was

filed.

For these reasons, I would affirm the convictions.

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