I respectfully dissent. I do not agree that the circuit court abused its discretion in denying the defendant's motion for a jury trial made at the very moment his trial was to begin and after he had voluntarily waived his right to such a trial. True, this was the waiver of a cornerstone right, but the courts uphold waivers of such rights every day. To me, this is more a case of a defendant trying to play fast and loose with the court system in order to delay being tried than it is a case of an abuse of judicial discretion. I would affirm the judgment of the circuit court.The next was by a Judge on the Court of Appeals. In an opinion which is complex enough that I had to read it four times, the Judge complains about how the Virginia Supreme flouts its own ruling on the subject of jurisdiction.
Cokes Jr v. Commonwealth
Notably, in concluding in Jay that a dismissal rendered a rule violation jurisdictional, the Supreme Court expressly stated that “to hold otherwise would mean that, if an appellant did not list cases alphabetically in the table of citations as required by Rule 5A:20(a), dismissal of the appeal would be mandated as a jurisdictional matter.” Jay, 275 Va. at 520, 659 S.E.2d at 317. Yet curiously on April 30, 2010, the Supreme Court of Virginia adopted comprehensive amendments to its Rules which, contrary to the holding in Jay, permit, and in some cases require the dismissal of a petition for appeal for failure to comply with various Rules including, among other things, the failure to file a compliant table of contents or authorities. See Rule 5A:26 (“If an appellant fails to file a brief in compliance with these Rules, the Court of Appeals may dismiss the appeal.”); see also e.g. Rule 5A:12(c)(1)(ii) (“If the assignments of error are insufficient or otherwise fail to comply with the requirements of this Rule, the petition for appeal shall be dismissed.”) (Amendments to Part 5A of the Rules of the Supreme Court of Virginia adopted April 30, 2010 and effective July 1, 2010) (emphasis added). Since Jay expressly holds that deficient briefs and other rule violations which are readily curable are not jurisdictional and, thus, ought not result in dismissal of an appeal, the plain language in the amended Rules would seem to be in clear conflict with the holding of Jay and, thus, it may well be that when effective, these amended Rules will have the effect of overruling Jay. However, that is a decision for another day.Wow. I thought the only people who called out appellate opinion writers were smug, overconfident, self-important blawgers. ;-)
Smith v. Commonwealth