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Ferrell v. Commonwealth12/11/1990
es within thirty minutes of each other at three convenience stores in the same area by the same two people driving the same car).
The majority does not attempt to define the meaning of Rules 3A:10(b) and 3A:6(b); it concludes instead that the issue is whether the trial court abused its discretion and that it did not. It relies, understandably, on language appearing in Cheng v. Commonwealth, 240 Va. 26, 33-34, 393 S.E.2d 599, 603 (1990).
The majority's reliance on Cheng is, in my opinion, misplaced. In Cheng, the Supreme Court refers to Rules 3A:10(b) and 3A:6(b) to define when a trial court may require an accused to be tried at one time for multiple offenses pending against him. However, immediately following that reference, it concludes that "whether different offenses should be tried separately is a matter that rests within the sound discretion of a trial court." Id. at 33-34, 393 S.E.2d at 603 (emphasis added). In support of this proposition it cites two decisions based on the law as it existed prior to the adoption of Rule 3A:10.
Rule 3A:10 gives a trial court absolute discretion to try an accused separately for different offenses, but carefully limits the trial court's discretion to try an accused at one time for more than one offense. By saying that the trial court "may direct that an accused be tried at one time for all offenses," (emphasis added) the rule permits a trial court to try an accused separately for different
offenses even if the offenses meet the requirements that would permit him to be tried for multiple offenses at one time. However, the rule limits the trial court's discretion to try an accused for multiple offenses at one time to those occasions where "justice does not require separate trials and (i) the offenses meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth's attorney consent thereto." Therefore, where an accused is to be tried separately for multiple offenses, the trial court has absolute discretion. Where, however, the accused is to be tried at one time for multiple offenses, the discretion is appropriately circumscribed by Rule of Court.
The language in Cheng correctly states that the decision to try different offenses "separately is a matter that rests within the sound discretion of the trial court" (emphasis added). This language, however, cannot be read to refer to the decision to order the offenses to be tried together for, to so hold, would conflict with the plain language of Rules 3A:10(b) and 3A:6(b). The decision to order the joint trial of multiple offenses is, by Rules of Court, not a matter committed solely to the exercise of the trial court's sound discretion. The trial court's discretion is exercised with reference to whether the offenses meet the requirements of Rule 3A:6(b) and, if so, whether the ends of justice nonetheless require separate trials. The policy considerations reflected in Rules 3A:10(b) and 3A:6(b) are important to the administration of criminal justice in Virginia because they implement the fundamental precept that "like cases be treated alike." If a trial court's discretion to try an accused at one time for multiple offenses is limited by Rule 3A:10(b) uniformity is encouraged, but, if the trial court's discretion is absolute, disparity will follow.
For the reasons stated, I conclude that the requirements of Rule 3A:6(b), and also, there
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