COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Fitzpatrick 

Argued at Alexandria, Virginia 

JOHN W. LYLES, JR. 

v. Record No. 1650-94-4 OPINION BY 

 JUDGE JOHANNA L. FITZPATRICK 

COMMONWEALTH OF VIRGINIA OCTOBER 24, 1995 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jack B. Stevens, Judge 

 Francis G. McBride for appellant. 

 Michael T. Judge, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 John W. Lyles, Jr. (appellant) appeals his bench trial 

convictions of reckless driving and disregarding a police signal 

to stop in violation of Code §§ 46.2-852 and 46.2-817 

respectively. The sole issue raised is whether the trial court 

erred in continuing the hearing after jeopardy attached so that 

appellant could retain an attorney. Finding no error, we affirm. 

 Under well established principles, we state the facts in the 

light most favorable to the prevailing party below, in this case 

the Commonwealth.1

 See Martin v. Commonwealth, 4 Va. App. 438, 

443, 358 S.E.2d 415, 418 (1987). On October 31, 1993, Trooper 

Ingham of the Virginia State Police was patrolling Interstate 495 

and saw appellant's vehicle in the middle lane moving at what 

appeared to be a high rate of speed. He initially paced 

 

 1The record in this case was a written statement of facts 

pursuant to Rule 5A:8(c). 
 2 

appellant's car at eighty-five miles-per-hour and activated his 

emergency equipment. Appellant did not respond and increased his 

speed to approximately 103 miles-per-hour. Appellant exited onto 

Gallows Road and stopped for a traffic light. Trooper Ingham 

pulled in front of appellant's car. When asked why he failed to 

stop, appellant "responded that he was in a hurry to relieve the 

doctor covering for him at the hospital." 

 On the original trial date, June 16, 1994, appellant waived 

counsel, was arraigned on the charges, and entered pleas of not 

guilty. The Commonwealth called its first witness, Trooper 

Ingham, and he identified himself and began his testimony. The 

trial judge interrupted and asked the Commonwealth's attorney 

whether under the circumstances described by the trooper the 

Commonwealth was willing to waive any possible jail sentence. 

The Commonwealth's attorney responded that he would not, and the 

trial judge then advised the parties that he would continue the 

matter until July 7, 1994, to give appellant an opportunity to 

retain counsel. The case was later continued from July 7 to July 

28 at appellant's request. 

 On the morning of the resumption of trial, the case was 

initially assigned to another judge but was transferred to the 

original trial judge. The same judge heard the proceedings on 

June 16, 1994, and the resumed trial on July 28, 1994. 

Appellant's motion to dismiss based on double jeopardy was 

denied. When the trial resumed, the trial court did not arraign 
 3 

appellant a second time, and appellant did not enter pleas to the 

charges. The Commonwealth recalled Trooper Ingham as its first 

witness, and he continued his testimony. Appellant was found 

guilty on both charges. 

 Appellant argues that the trial court's continuance of the 

trial was in effect a termination or "complete discontinuance" of 

the earlier proceedings without the consent of the accused and 

thus barred any later trial. In his motion to dismiss, he relied 

on Webb v. Hutto, 564 F. Supp. 405 (W.D. Va. 1982), a case 

reversed on appeal. See 720 F.2d 375 (4th Cir. 1983), cert. 

denied, 465 U.S. 1080 (1984). 

 "Whether to grant or deny a continuance of a trial is a 

matter that lies within the sound discretion of a trial court, 

and its ruling will not be reversed on appeal unless it is 

plainly wrong." Cardwell v. Commonwealth, 248 Va. 501, 508, 450 

S.E.2d 146, 151 (1994), cert. denied, 115 S. Ct. 1826 (1995). A 

trial court is not prevented from granting an appropriate 

continuance even after jeopardy has attached and the trial has 

begun. See Bennett v. Commonwealth, 236 Va. 448, 459-62, 374 

S.E.2d 303, 310-12 (1988), cert. denied, 490 U.S. 1028 (1989). 

 In Bennett, a capital murder case, an issue arose midtrial 

whether Mary Bennett, the central witness for the prosecution, 

was married to Bennett or to another man, and thus whether her 

testimony should be excluded as privileged under Code 

§ 19.2-271.2. 236 Va. at 454-55, 374 S.E.2d at 308. During the 
 4 

trial, the Commonwealth was surprised when Bennett introduced 

into evidence a California order that validated his marriage to 

Mary. The Commonwealth asked for and was granted a continuance. 

 Bennett objected strenuously, arguing that a continuance would 

deprive him of a part of his defense, the ability to surprise the 

Commonwealth, and that it would violate his constitutional 

rights. Id. at 459-60, 374 S.E.2d at 311. The Supreme Court 

held that Bennett had no "right of surprise," stating that: 

 The aim of trials is to find the truth. . . . 

All the rules of decorum, ethics, and 

procedure are meant to aid the truth-finding 

process. Ambush, trickery, stealth, 

gamesmanship, one-upmanship, surprise have no 

legitimate role to play in a properly 

conducted trial. 

Id. at 460-61, 374 S.E.2d at 311. 

 The Supreme Court also held that the fact that the jury had 

been impaneled did not invalidate the continuance and relied upon 

the Fourth Circuit Court of Appeals decision in Webb, 720 F.2d 

375. In Webb, the Fourth Circuit upheld a five-day continuance 

so that the prosecution could subpoena key witnesses. 720 F.2d 

at 380. The Fourth Circuit stated that: 

 [I]mmediately before and immediately after 

the swearing of the first witness in a nonjury trial the difference is, in many 

respects, miniscule. The simple, yet to us 

controlling, consideration is that the 

accused must be placed in jeopardy twice for 

double jeopardy to exist. It happens when 

the second event involves a completely new 

beginning, i.e., when the second proceeding 

takes place before a new trier of fact, . . . 

or the same judge starting with a clean 

slate. It simply does not occur when the 

very same proceeding continues on after a 
 5 

brief postponement before the first and only 

trier of fact . . . .

Id. at 379 (citation omitted) (emphasis added). The Court in 

Bennett noted that, "even though the new witnesses [in Webb] 

helped convict the accused, the Fourth Circuit said there was a 

'total lack of prejudice to the defendant.'" 236 Va. at 462, 374 

S.E.2d at 312 (quoting Webb, 720 F.2d at 378). 

 We hold that the rationale of Bennett and Webb is equally 

applicable to the instant case. The trial court's order of 

August 18, 1994 indicates why the court continued the trial: 

 During the Commonwealth's Attorney['s] 

case in chief, the Court inquired of the 

Commonwealth's Attorney if the Commonwealth 

would be willing to waive jail time for the 

Defendant. The Commonwealth's Attorney 

advised the Court that the Commonwealth would 

not waive jail time for the Defendant. 

 The Court then inquired of the Defendant 

why he did not have legal counsel. The Court 

stopped all proceedings in this case and 

advised the Defendant to seek Counsel. 

Unlike the continuances in Bennett and Webb, the continuance in 

this case was for the benefit of appellant rather than the 

Commonwealth. Appellant does not contend that the brief 

continuance prejudiced him in any way, and no evidence in the 

record demonstrates prejudice. On the contrary, the trial court 

continued the case specifically to allow appellant to retain an 

attorney to protect his interests. In fact, on July 7, 

appellant's counsel requested an additional continuance to have 

the trial heard on a date acceptable to his schedule. When the 
 6 

trial resumed on July 28, 1994, the same judge heard the case who 

had initially heard it on June 16, 1994. Appellant was not 

re-arraigned and did not enter pleas to the charges.2

 The 

Commonwealth called Trooper Ingham as its witness and continued 

with his testimony. Additionally, the court orders and statement 

of facts show no contemporaneous objection by appellant to the 

continuance. Under the facts of this case, we find no abuse of 

discretion in the trial court's granting of a continuance from 

June 16, 1994 to July 7, 1994 to allow appellant to obtain 

counsel. As in Webb, "[b]y granting the continuance, the state 

trial court showed that it was 'scrupulously interested in 

insuring that justice be done.'" Bennett, 236 Va. at 462, 374 

S.E.2d at 312 (quoting Webb, 720 F.2d at 381). 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed. 

 

 2As the dissent notes, the final order of July 28, 1994 

indicated that appellant was arraigned on the warrant and pled 

not guilty. However, the written statement of facts does not 

reflect that appellant was re-arraigned and shows a resumption of 

the trial with Trooper Ingham's testimony. We rely on the 

written statement of facts. 
 7 

Benton, J., dissenting. 

 The record reflects that on June 16, 1994, after John W. 

Lyles, Jr., was "arraigned upon the warrant and . . . entered a 

plea of not guilty," the trial began. The record reflects that 

Lyles was not represented by counsel, and the record does not 

reflect that Lyles waived his right to counsel. During the 

testimony of the prosecutor's first witness, the charging police 

officer, the trial judge learned that the prosecutor would 

request a sentence of incarceration for Lyles, and the trial 

judge stopped the proceedings. The trial judge "advised [Lyles] 

to seek counsel" and "ordered that this case be continued to July 

7, 1994 . . . for trial." 

 On July 28, 1994, the rescheduled trial date, the case was 

assigned to another judge for trial. After that judge read 

Lyles' motion to dismiss and plea of former jeopardy, that judge 

referred the case to the trial judge who originally commenced the 

case and stopped the proceedings. 

 When the original trial judge received the case, he denied 

Lyles' motion to dismiss and plea of former jeopardy. After a 

prosecutor was summoned to try the case, the prosecutor informed 

the trial judge that he was not familiar with the case. The 

trial judge recessed the proceeding to allow the prosecutor, who 

was not the same prosecutor who commenced the case on June 16, 

1994, to have a short time to interview the charging police 

officer and prepare for trial. When the prosecutor was ready to 
 8 

 

begin, Lyles was again arraigned upon the same warrant, and he 

pled not guilty.3

 The prosecutor began anew the presentation of 

 3The order memorializing the events of June 16, 1994 states 

in pertinent part as follows: 

 On [June] 16, 1994, the Commonwealth's 

Attorney and the Defendant, John W. Lyles, 

Jr., appeared before this Court. The 

Defendant appeared while on bond. 

 The Defendant was arraigned upon the 

warrant and the Defendant entered a plea of 

not guilty. The Court proceeded to hear and 

to determine the case without the 

intervention of a jury, trial by jury having 

been waived to which the Attorney for the 

Commonwealth consented and the Court 

concurred. 

 The Court then proceeded to hear all of 

the evidence presented on behalf of the 

Commonwealth. 

 During the Commonwealth's Attorney case in 

chief, the Court inquired of the 

Commonwealth's Attorney if the Commonwealth 

would be willing to waive jail time for the 

Defendant. The Commonwealth's Attorney 

advised the Court that the Commonwealth would 

not waive jail time for the Defendant. 

 The Court then inquired of the Defendant 

why he did not have legal counsel. The Court 

stopped all proceedings in this case and 

advised the Defendant to seek Counsel. 

(Emphasis added). 

 The final order states in pertinent part as follows: 

 On July 28, 1994, the Commonwealth's 

Attorney, the Defendant, John W. Lyles, Jr., 

and Francis McBride, Counsel for the 

Defendant, appeared before this Court. The 

Defendant appeared while on bond. 

 Counsel for the Defendant motioned the 

Court to dismiss the charges against the 
 9 

evidence in its case-in-chief. 

 Nothing in the record supports the trial judge's ruling that 

the July 28, 1994, trial was a continuation of the first, 

terminated proceeding. 

 The simple, yet . . . controlling, 

consideration is that the accused must be 

placed in jeopardy twice for double jeopardy 

to exist. It happens when the second event 

involves a completely new beginning, i.e., when the second proceeding takes place before

a new trier of fact, whether that be a 

different judge or jury, or the same judge 

starting with a clean slate. 

Webb v. Hutto, 720 F.2d 375, 379 (4th Cir. 1983) (emphasis 

added), cert. denied, 465 U.S. 1080 (1984). The facts prove a 

new beginning of Lyles' trial. 

 On July 28, 1994, when the case was assigned to be re-heard, 

a new judge was scheduled to try the case. When the new judge 

declined to hear the case and sent it back to the original trial 

judge, a new prosecutor was assigned to try the case. Lyles was 

 

Defendant, which motion the Court denied. 

 The Defendant was arraigned upon the 

warrant and the Defendant entered a plea of 

not guilty. The Court proceeded to hear and 

to determine the case without the 

intervention of a jury, trial by jury having 

been waived, to which the Attorney for the 

Commonwealth consented and the Court 

concurred. 

(Emphasis added). 

 From the recitals in these two orders, I believe the 

conclusion is manifest that Lyles was arraigned both on June 16 

and July 28. 
 10 

re-arraigned on the same charges. The new prosecutor then began 

the Commonwealth's case-in-chief anew. 

 The result, not the simple use of the terminology 

"continuance," is the controlling factor. "If what occurred 

indeed amounted to a beginning over, rather than a progression 

from the point at which the case had been suspended, calling it a 

continuation when actually it was a complete retrial would not 

enable the prosecution to escape the stricture against double 

jeopardy." Id. at 380. The record in this case indisputably 

proved that a complete retrial occurred. 

 Jeopardy attached on June 16, 1994, when the trial judge 

began to hear evidence in the prosecution's case-in-chief. See

Greenwalt v. Commonwealth, 224 Va. 498, 500-01, 297 S.E.2d 709, 

710 (1982). After jeopardy attached, Lyles "possessed a valued 

right to have the judge decide his case [in] that [proceeding], 

based upon the proof [that] the Commonwealth could adduce [at 

that proceeding]." Harris v. Young, 607 F.2d 1081, 1086 (4th 

Cir. 1979), cert. denied, 444 U.S. 1025 (1980). Lyles could not 

be deprived of that right without a "manifest necessity." 

Arizona v. Washington, 434 U.S. 497, 505 (1978). However, the 

termination of the case on June 16 was made for the benefit of 

the prosecutor, who indicated that he intended to ask the judge 

to imprison Lyles. Although that request posed a dilemma for the 

judge because Lyles was uncounseled, see Argersinger v. Hamlin, 

407 U.S. 25 (1972), the dilemma was neither created by Lyles nor 
 11 

resolved in a way that benefitted him. "[E]very judge [should] 

know when the trial . . . starts that no imprisonment may be 

imposed, even though local law permits it, unless the accused is 

represented by counsel." Id. at 40. When the trial judge sua

sponte terminated the June 16 trial, the trial judge did so 

without "manifest necessity." See Harris, 607 F.2d at 1084. 

Thus, the subsequent conviction that occurred on July 28, 1994, 

is barred by the prohibition against double jeopardy. See id. at 

1087. 

 Accordingly, I would reverse the conviction.