06 April 2010

Appeals Accepted by the
Virginia Supreme Court March 2010

Case followed by the assignment of error(s):

Sidney Jr. v. Commonwealth, No. 092313:

1. The Court of Appeals erred by upholding the trial court's refusal to suppress the evidence where the petitioner was detained without probable cause or a reasonable suspicion in violation of his rights under the Fourth Amendment of the U.S. Constitution and comparable parts of the Virginia Constitution, and where the evidence was obtained as a result of this detention.
2. The Court of Appeals erred by concluding that the anonymous tip and dispatch to police supported the seizure of the petitioner, where the tip and dispatched information were not from an informant whose reliability was established and the information provided in the tip was not predictive and was otherwise insufficient to support the seizure of the petitioner.
3. The Court of Appeals erred by concluding that the tip and dispatch information supported the seizure of the petitioner where the mere fact that a warrant was on file for Allen Sidney did not make the otherwise unreliable tip reliable enough to support the seizure of petitioner under the circumstances of this case.

Perry v. Commonwealth, No. 092418:

1. The Circuit Court erred in denying Appellant’s motion to suppress evidence obtained in violation of his constitutional rights.
2. The Court of Appeals erred by considering a new justification for the illegal search, which was never presented to the trial court.
3. The Court of Appeals erred in finding that Trooper Weidhaas had probable cause to arrest Appellant at the time of the illegal search.

Bennett v. Commonwealth, 092085:

1. The appellate court erred in finding the Commonwealth had proven at least one prior firearms conviction thereby imposing a sentence on the firearms charges of three and five years, respectively.

McGhee v. Commonwealth, No. 091274:

1. The Court of Appeals erred in ruling that the trial court did not err in denying the motion to suppress the evidence because there was no probable cause for arrest and because the search of the car was invalid.

Commonwealth v. Moirris, No. 092163:

1. The Trial Court erred in its decision finding authority to apply the Writ of Coram Vobis, or alternatively the Writ of Audita Querela, as an appropriate remedy.
2. The Trial Court erred in granting Appellee relief under the Writ of Coram Vobis.

Bly v. Commonwealth, No. 092064:

ERROR: The trial court erred in not granting the defendant a new trial when it was discovered that exculpatory evidence was not disclosed to the defendant prior to trial.

CROSS ERROR: The Court of Appeals, although correctly finding no prejudice as a result of the non-disclosure, erred by failing to also find that Bly did not establish the second requirement of the Brady test: that the non-disclosed information either was itself admissible evidence or would have led to evidence that was.

Carroll v. Commonwealth, No. 091987:

1. The Court of Appeals erred in finding that, at the close of the evidence at appellant’s revocation hearing, appellant did not argue that the trial court could not find him in violation of probation because of the terms of any plea agreement.
2. The Court of Appeals erred in holding that it could not consider the plea agreement terms of appellant’s Alford plea as a basis for reversal of the trial court’s revocation, because appellant did not ask the Court of Appeals to consider whether the trial court’s decision finding that appellant was in violation of his probation was a breach of the terms of the plea agreement between appellant and the Commonwealth.
3. The Court of Appeals erred, based upon the facts of this case, in affirming the Court’s revocation of appellant’s probation because appellant refused to accept responsibility in sex-offender treatment by admitting to rape based upon his Alford plea as a matter of law.
4. The Court of Appeals erred in holding that the trial court did not abuse its discretion in denying appellant’s request to consider a reasonable alternative treatment modality, such as individual sex-offender therapy, in lieu of probation revocation coupled with the condition of successfully completing the same program from which appellant was terminated.

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