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.
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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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