James Marlon Winn, IV v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia
JAMES MARLON WINN, IV
MEMORANDUM OPINION * BY
v. Record No. 0996-98-2 JUDGE JOSEPH E. BAKER
MAY 18, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Esther J. Windmueller for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
James Marlon Winn, IV (appellant) appeals from an order of
the Circuit Court of the City of Richmond (trial court) requiring
that he post $1,000 of a $10,000 "appeal" bond in cash. 1
Appellant is indigent. At oral argument, appellant conceded the
trial court's authority to set reasonable post-conviction bail,
including requiring a cash "freedom" bond to secure the bail. See
Code § 19.2-319. Likewise, the Commonwealth conceded that the
trial court could not require appellant to post a cash appeal
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
1
Appellant's petition for appeal of the underlying criminal
conviction was denied by this Court and is currently pending
before the Virginia Supreme Court.
bond. See Code §§ 19.2-322.1 and 8.01-676.1(K). 2 Thus, the sole
question for appeal is whether the trial court was setting an
appeal bond or a "freedom" bond.
At the April 8, 1998 hearing, to refresh the judge's memory
of what had happened, counsel for appellant advised the court that
"[a]n appeal bond [had been] set in the amount of $10,000; $2,000
of which was to be cash." The trial court did not question or
correct counsel's use of the term "appeal bond." Counsel for
appellant also referred to Code § 8.01-676.1, which solely
addresses appeal bonds, without comment from the court. Finally,
the trial court's April 8, 1998 order provides: "An appeal bond
is set at $10,000, with surety, $1,000 of said bond to be posted
in cash." 3
"A court speaks through its written orders." Robinson v.
Commonwealth, 28 Va. App. 148, 155, 502 S.E.2d 704, 708 (1998).
While the April 8 hearing record is somewhat ambiguous, the trial
court, perhaps unintentionally, entered an order expressly setting
a cash "appeal bond." Because appellant was indigent, this was
prohibited by statute. 4 Accordingly, the trial court's decision
2
Code § 8.01-676.1(K) provides that "[n]o person who is an
indigent shall be required to post security for an appeal bond."
3
The trial court agreed to reduce the cash portion from
$2,000 to $1,000.
4
We do not address appellant's claim, raised for the first
time on appeal, that the trial court's ruling violated his
Eighth Amendment rights. See Rule 5A:18.
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is reversed, and the matter is remanded to the trial court with
instructions to take all necessary steps consistent with this
opinion.
Reversed and remanded.
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