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HOHMAN v. COMMONWEALTH OF VIRGINIA (59956)


HOHMAN v. COMMONWEALTH OF
VIRGINIA


In the Supreme Court of Virginia
Held at the Supreme Court Building in the City of Richmond
On Friday, the 14th day of November, 1997.

Record No. 970464
Court of Appeals No. 0815-95-4

Thomas Franklin Hohman, Appellant,

against

Commonwealth of Virginia, Appellee.


Upon an appeal from a judgment rendered by the Court of
Appeals of Virginia on the 31st day of December, 1996.

Upon consideration of the record, briefs, and argument of
counsel, the Court is of opinion that there is no error in the
judgment appealed from. Accordingly, for the reasons stated in
the memorandum opinion of the Court of Appeals, dated December
31, 1996, the judgment is affirmed. The appellant shall pay to
the Commonwealth of Virginia thirty dollars damages.

It is ordered that the Circuit Court of Stafford County allow
counsel for the appellant a fee of $625 for services rendered the
appellant on this appeal, in addition to counsel’s costs and
necessary direct out-of-pocket expenses.

The Commonwealth shall recover of the appellant the amount
paid court-appointed counsel to represent him in this proceeding,
counsel’s costs and necessary direct out-of-pocket expenses, and
the fees and costs to be assessed by the clerk of this Court and
the clerk of the court below.

Justice Koontz took no part in the consideration of this case.

________________________

JUSTICE KEENAN, with whom JUSTICE LACY joins, dissenting:

I would hold that the language of Code ? 19.2-237 is
unambiguous and prohibits a trial court from enforcing a jail
sentence in a misdemeanor case in which the defendant has failed
to appear and plead. The manifest purpose of this provision is to
permit the court to hear and dispose of misdemeanor cases without
impairing any defendant’s liberty interests.

If the trial court wishes to retain the discretion to impose a
jail sentence on an absent defendant charged with a misdemeanor,
the court may issue a capias for the defendant’s arrest and have
him brought before the court to enter a plea to the charge and be
tried. In the present case, the trial court erred because it
imposed a jail sentence on the defendant when he had not appeared
for trial, had not entered a plea to the charge, and had not
waived his right to trial by jury. The imposition of this
sentence violated the clear statutory mandate that when a court
tries an absent defendant charged with a misdemeanor "in the
same manner as if [the defendant] had appeared, plead not guilty
and waived trial by jury, . . . the court shall not in
any such case enforce a jail sentence." Code ? 19.2-237. Therefore,
I would reverse the trial court’s judgment and remand the case
for imposition of a sentence that conforms with this statutory
restriction.

This order shall be certified to the Court of Appeals of
Virginia and to the Circuit Court of Stafford County and shall be
published in the Virginia Reports.

A Copy,

Teste:

David B. Beach, Clerk

Costs due the Commonwealth
by appellant in Supreme
Court of Virginia:

Attorneys’ fees: $925.00 plus their
costs and expenses

Teste:

Clerk

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