Robert Dale Webb v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia
ROBERT DALE WEBB
MEMORANDUM OPINION * BY
v. Record No. 2705-95-2 JUDGE NELSON T. OVERTON
FEBRUARY 11, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
briefs), for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Robert Dale Webb was convicted in a bench trial on two
counts of sodomy against a minor child and two counts of
aggravated sexual battery. He appeals on the ground that the
trial court erred by denying his motion for a jury trial. We
agree and reverse his convictions.
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.
From the preliminary hearing in late February 1995 to the
ultimate trial on August 31, 1995, Webb had approximately ten
appearances before the court, either in person or by counsel. In
early appearances, Webb's counsel represented to the court that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Webb was not asking for a jury trial and she later confirmed that
it was to be a non-jury trial. Assuming arguendo that counsel's
statements constituted a knowing and voluntary waiver, but see
Carney v. Cochran, 369 U.S. 506, 516 (1962), Webb withdrew that
waiver at a hearing on May 10. At that time, the judge accepted
that withdrawal, and stated that the court would not waive a jury
either. See Thomas v. Commonwealth, 218 Va. 553, 555, 238 S.E.2d
834, 835 (1977) (stating that permission to withdraw a waiver of
jury trial is within the discretion of the court).
Webb did not personally appear after that date. The record
indicates no subsequent waiver of his right to a jury in any
form. Any off-the-record agreements that the Commonwealth and
counsel for the defense made cannot bind the defendant to a
waiver. Even if it existed in fact, such a situation would not
be a knowing and voluntary waiver. See Carney, 369 U.S. at 516.
Denying the defendant's motion for a jury trial on August 31 was
thus reversible error.
When a defendant succeeds in persuading a court to set aside
his conviction, the government may retry that defendant, unless
the conviction was reversed because of the insufficiency of the
evidence. See Karim v. Commonwealth, 21 Va. App. 652, 669, 466
S.E.2d 772, 780-81 (1996); see also North Carolina v. Pearce, 395
U.S. 711, 719-20 (1969). We therefore remand the case to be
retried if the Commonwealth be so advised.
Reversed and remanded.
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