Kenneth Allen Green, Jr. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia
KENNETH ALLEN GREEN, JR.
MEMORANDUM OPINION * BY
v. Record No. 2209-94-2 JUDGE LARRY G. ELDER
JANUARY 23, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Anthony G. Spencer (Morchower, Luxton & Whaley,
on briefs), for appellant.
Marla Graff Decker, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Kenneth Allen Green, Jr. (appellant) appeals his conviction
for reckless driving in violation of Code § 46.2-852. Appellant
contends that he was entitled to a trial by jury, and the trial
court erred in ruling he waived this right. Because the trial
court did not ensure appellant knowingly, voluntarily, and
intelligently waived his right to a trial by jury, we reverse his
conviction.
On July 18, 1994, the General District Court of Chesterfield
County convicted appellant of reckless driving. Appellant
appealed his conviction to the circuit court. On October 5,
1994, appellant appeared in circuit court without an attorney and
requested his case be continued so that his counsel could be
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
present. The circuit court continued the case for two days,
until October 7, 1994. On October 6, 1994, appellant, by
counsel, filed a motion requesting another continuance and a
trial by jury. On October 7, 1994, the circuit court denied
appellant's motion for a continuance and found, "the defendant
waived his right to a trial by jury on October 5, 1994, as he
failed to request that his case be heard by a jury." (Emphasis
added.) The circuit court then heard evidence and found
appellant guilty of reckless driving and imposed a $150 fine. On
appeal, appellant contends, and the Commonwealth concedes, that
he had a right to a trial by jury. See Code §§ 46.2-868 and
18.2-11; McCormick v. City of Virginia Beach, 5 Va. App. 369,
372, 363 S.E.2d 124, 125 (1987). Well-settled principles guide
our analysis of whether the trial court erred in ruling that
appellant waived this right. While "[a]n accused may waive his
right to a jury in the trial court," federal and state
constitutional law dictate that "before waiver of a trial by jury
can be effective, the accused must give his express and
intelligent consent." Id. (citing Patton v. United States, 281
U.S. 276, 312 (1930), rev'd on other grounds; Williams v.
Florida, 399 U.S. 78 (1970)). Rule 3A:13(b) sets forth the
required procedure to validate a defendant's consent and to
effect a jury waiver in a trial court:
If an accused who has pleaded not guilty in a
circuit court consents to a trial without a jury, the
court may, with the concurrence of the Commonwealth's
attorney, try the case without a jury. The court shall
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determine before trial that the accused's consent was
voluntarily and intelligently given, and his consent
and the concurrence of the court and the Commonwealth's
attorney shall be entered of record.
(Emphasis added.) In this case, the trial court's order
specifically states, "the defendant waived his right to a trial
by jury on October 5, 1994, as he failed to request that his case
be heard by a jury."
We reject the Commonwealth's assertion that the record does
not provide this Court with the facts necessary to determine
whether appellant did or did not waive his right to a jury trial.
Although the record contains no transcript or statement of
facts, the trial court, in its order, clearly stated the reason
for its holding that appellant waived his right to a jury trial.
A court speaks through its written orders. Guba v.
Commonwealth, 9 Va. App. 114, 118, 383 S.E.2d 764, 767 (1989).
Any court subsequently required to review an order of another
court must presume that it is the final pronouncement on the
subject addressed therein. See Kern v. Commonwealth, 2 Va. App.
84, 88, 341 S.E.2d 397, 400 (1986). Here, the trial court's
order revealed that it erroneously failed to inquire whether
appellant voluntarily and intelligently consented to waive his
right to a trial by jury. Furthermore, appellant specifically
requested a trial by jury on October 6, 1994 and the record does
not show that appellant thereafter waived this right. See Rule
3A:13(b).
Accordingly, we reverse the conviction and remand for
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further proceedings if the Commonwealth be so advised.
Reversed and remanded.
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