Earl Bobby Walker v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia
EARL BOBBY WALKER
MEMORANDUM OPINION * BY
v. Record No. 1220-96-4 JUDGE NELSON T. OVERTON
JUNE 24, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
John R. Cullen, Judge
V. R. Shackelford, III (Shackelford,
Honenberger, Thomas, Willis & Gregg, P.L.C.,
on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Earl Bobby Walker was charged with attempted capital murder
and convicted by a jury of the lesser-included offense of assault
and battery. He appeals this conviction on the ground that he
was never arraigned on the indictment. We reverse and remand.
The parties are fully conversant with the record in the
cause, and because this memorandum opinion carries no
precedential value, no recitation of the facts is necessary.
Walker was indicted for abduction, rape, sodomy, and
attempted capital murder. Due to a series of continuances and
pretrial motions, Walker's arraignment on the attempted capital
murder charge was inadvertently omitted. At trial, Walker was
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
tried on all four indictments, including attempted capital
murder. He had not been arraigned and had not entered a plea.
"[U]pon a trial of any felony, there must be a plea by the
defendant." Crutchfield v. Commonwealth, 187 Va. 291, 296, 46
S.E.2d 340, 342 (1948). The accused must have the charge read to
him in open court and be asked to make a plea on that charge.
See Code § 19.2-254. If the defendant will not enter a plea, the
court must enter a plea of not guilty before the trial may
commence. See Code § 19.2-259. "Without a plea entered in
person by the accused, or by the court, there can be no trial of
a felony charge." Roach v. Commonwealth, 157 Va. 954, 960, 162
S.E. 50, 52 (1932). This requirement is "jurisdictional in
nature in the sense that without such a plea, 'there can be no
trial of a felony charge.'" Cassidy v. Commonwealth, 210 Va. 80,
82, 168 S.E. 125, 126 (1969) (quoting Roach, 157 Va. at 960, 162
S.E. at 52).
Walker was never arraigned and never entered a plea for
attempted capital murder. Without a plea, the trial for
attempted capital murder could not occur and was a nullity. His
conviction resulting from that charge must be reversed.
We reverse the conviction for assault and battery and remand
for further proceedings if the Commonwealth be so advised.
Reversed and remanded.
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