COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Annunziata and Bumgardner 

Argued at Salem, Virginia 

TRACY MARICE PENN 

 OPINION BY 

v. Record No. 0321-99-3 JUDGE ROSEMARIE ANNUNZIATA 

 MAY 2, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE 

Charles M. Stone, Judge 

Vikram Kapil, Assistant Public Defender 

(Office of the Public Defender, on brief), 

for appellant. 

Amy L. Marshall, Assistant Attorney General 

(Mark L. Earley, Attorney General; 

Jeffrey S. Shapiro, Assistant Attorney 

General, on brief), for appellee. 

Tracy Marice Penn appeals his conviction of felonious 

possession of a controlled substance while an inmate of a state 

correctional facility in violation of Code § 53.1-203(6). Penn 

argues (1) that the circuit court erred in deeming him to be a 

"prisoner" within the meaning of the statute, and (2) that the 

court erroneously founded its jurisdiction to try his case on 

Code § 53.1-205. We disagree and affirm. 

BACKGROUND

On January 10, 1998, Penn was arrested for public 

drunkenness. He was charged under Code § 18.2-388 and placed in 

an "isolation cell" at the Martinsville City Jail, a local 
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detention facility. While Penn was being held in the cell, 

Sergeant John Robertson observed Penn attempting to hide a small 

cellophane bag in the front of his pants. Robertson then 

searched Penn and found the bag secreted in Penn's groin. The 

bag contained a green leafy substance, later determined to be 

marijuana. Penn was charged under Code § 53.1-203(6) with 

possession of marijuana by an inmate. Sgt. Robertson testified 

that persons held on charges of public intoxication usually are 

kept in custody until they become sober, at which time they are 

released upon posting a personal recognizance bond. Bond was 

set the morning following Penn's arrest for public drunkenness, 

and, upon posting bond, Penn was released pending trial on that 

charge. 

At Penn's bench trial for felony possession of marijuana, 

Penn argued that the charge should be dismissed on two grounds: 

1) the evidence failed to establish that Penn was a "prisoner" 

within the meaning of Code § 53.1-203(6); and 2) the court 

lacked jurisdiction to try the matter under Code § 53.1-205, 

because that statute limits the court's jurisdiction to persons 

confined in "state correctional" facilities, and the 

Martinsville City Jail did not qualify as such. 

The court rejected these arguments and proceeded to trial 

of the case. At the conclusion of the evidentiary phase of the 

trial, Penn moved to strike the Commonwealth's evidence on the 
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ground that the evidence failed to prove he was a "prisoner" 

within the meaning of the statute. In denying the motion, the 

court declined to read Code § 53.1-203(6) in the narrow fashion 

urged by Penn, and found that Penn was a "prisoner" within the 

intent of the statute. Penn was found guilty as charged, and he 

was sentenced to thirty days in jail, suspended on condition of 

six months supervised probation. Penn noted his appeal to this 

Court. 

MEANING OF "PRISONER" IN CODE § 53.1-203(6)

Penn argues that his detention in the Martinsville City 

Jail was not an "imprisonment" within the intent of Code 

§ 53.1-203(6), but was, rather, merely a "detention" until he 

was sober enough to be released. On that ground, he contends he 

should have been convicted only of the misdemeanor offense of 

unlawful possession of marijuana in violation of Code 

§ 18.2-250.1(A).1 This contention is without merit. 

Code § 53.1-203 states, in pertinent part: 

It shall be unlawful for a prisoner in a 

state, local or community correctional 

facility . . . to . . . Procure, sell, 

secrete or have in his possession a 

controlled substance classified in Schedule 

III of the Drug Control Act . . . or 

marijuana. 

 1

 The statute reads: "It is unlawful for any person 

knowingly or intentionally to possess marijuana . . . . Any 

person who violates this section shall be guilty of a 

misdemeanor, and shall be confined in jail not more than thirty 

days . . . ." 
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The issue on appeal presents a question of statutory 

interpretation, which "is the prerogative of the judiciary." 

Sims Wholesale Co., Inc. v. Brown-Forman Corp., 251 Va. 398, 

404, 468 S.E.2d 905, 908 (1996). As such, it presents a 

question of law, which we review de novo. See Rusty's Welding 

Service, Inc. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 

259 (1999) (en banc). In construing the language of a statute, 

we "'"must take the words as written"' . . . and give them their 

plain meaning." Krampen v. Commonwealth, 29 Va. App. 163, 167, 

510 S.E.2d 276, 278 (1999) (quoting Adkins v. Commonwealth, 27 

Va. App. 166, 169, 497 S.E.2d 896, 897 (1998) (quoting Birdsong 

Peanut Co. v. Cowling, 8 Va. App. 274, 277, 381 S.E.2d 24, 26 

(1989))). 

"Prisoner" generally is defined as "[a] person who has been 

apprehended by a law-enforcement officer and is in custody, 

regardless of whether the person has yet been put in prison." 

Black's Law Dictionary 1213 (7th ed. 1999); see Mabe v. 

Commonwealth, 14 Va. App. 439, 440-41, 417 S.E.2d 899, 900 

(1992) (Code § 53.1-203's reference to "prisoner in a . . . 

correctional facility" refers to individual's status as one 

lawfully in custody, and appellant who fled custody while on 

work release from county jail was "in every sense a prisoner in 

a correctional facility"); see also Rollin M. Perkins & Ronald 

N. Boyce, Criminal Law 566 (3d ed. 1982) (one is a prisoner 
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because he is "in the custody of any person who had lawfully 

arrested him"). Code § 53.1-203(6) uses the word "prisoner" in 

this general sense, supplying no specific definition for the 

term. Because "[i]n construing the language of a statute, the 

Court 'must take the words as written' . . . and give them their 

plain meaning," Krampen, 29 Va. App. at 167, 510 S.E.2d at 278 

(citation omitted), we find that Penn was a prisoner within the 

meaning of Code § 53.1-203(6) and that the statute applies in 

this case. 

Penn's reliance on Mabe is misplaced; indeed, Mabe supports 

the result reached here. Mabe concerned an inmate of the 

Washington County Jail who was assigned to work outside the jail 

at a senior citizens' center. After working at the center for 

four or five hours, Mabe escaped and was recaptured two days 

later. Mabe argued that his conviction under Code § 53.1-203(1) 

was improper, because the statute stated that it was unlawful 

for a prisoner to "[e]scape from a correctional facility or from 

any person in charge of such prisoner," and he was neither "in" 

a correctional facility at the time of his escape, nor in the 

charge of a correctional officer, as required under the statute. 

We upheld his conviction, holding that the term "in" did not 

narrow the ambit of the statute to prisoners physically inside 

correctional facilities. See Mabe, 14 Va. App. at 440-41, 417 

S.E.2d at 900. The statute "refers to the status of the escapee 
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[as a prisoner], not to the circumstances of escape." Id. at 

441, 417 S.E.2d at 900. 

We also find no merit in Penn's further argument that under 

Code § 18.2-3882 he was merely a detainee for detoxification, 

that he was thus free to leave upon becoming sober, and that 

therefore he was not imprisoned. Contrary to Penn's argument 

that he was placed in a detention cell for the sole purpose of 

becoming sober and being subsequently released, the record 

reveals that he was arrested on a charge of public drunkenness 

and was held in jail pending his posting of a recognizance bond. 

Because Penn was arrested under the statute, he cannot claim to 

have been free to leave at any time. His argument on this 

ground thus fails. In short, Penn was a prisoner within the 

meaning of Code § 53.1-203(6), and was subject to prosecution 

under that statute. 

JURISDICTION OF THE TRIAL COURT

Penn further contends that even if he were a "prisoner" 

within the intent of Code § 53.1-203(6), the circuit court 

 2

 The statute reads: 

If any person . . . is intoxicated in public 

. . . he shall be deemed guilty of a Class 4 

misdemeanor. In any area in which there is 

a court-approved detoxification center a law 

enforcement officer may authorize the 

transportation . . . of public inebriates to 

such detoxification center in lieu of 

arrest; however, no person shall be 

involuntarily detained in such center. 
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lacked jurisdiction to hear and adjudicate his case because the 

explicit terms of Code § 53.1-2053 grant jurisdiction only over 

persons confined in state correctional facilities. Penn argues 

that the holding cell in the Martinsville jail is a "local 

detention facility," not a "state correctional facility." 

Although he concedes that Code § 53.1-203, which prohibits 

possession of marijuana by "prisoners," refers to "state, local, 

or community correctional facilit[ies]," he argues that if the 

legislature intended the jurisdiction conferred in Code 

§ 53.1-205 to be coterminous with the prohibitions of Code 

§ 53.1-203, the statute must state so expressly. Because it 

does not, he argues the circuit court lacked jurisdiction over 

his case. We disagree. 

Although Penn is correct that Code § 53.1-205 applies only 

to prisoners in state correctional facilities, he misconstrues 

the statute as conferring jurisdiction. "'Jurisdiction' means 

the power of a court to hear and determine a cause, which power 

is conferred by a constitution or by statute, or both." 

Erickson-Dickson v. Erickson-Dickson, 12 Va. App. 381, 388, 404 

S.E.2d 388, 392 (1991) (citation omitted). Although the summary 

 3

 The statute states: "Jurisdiction for trial of prisoners; 

nature of proceedings. Subject to the provisions of §§ 53.1-203 

and 53.1-204, the jurisdiction, proceedings, trial and judgment 

in a criminal proceeding against a person confined in a state 

correctional facility shall be as is provided for in other cases 

of criminal prosecution." 
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title of Code § 53.1-205 is "Jurisdiction for trial of 

prisoners," this statute, like its predecessor, former Code 

§ 53-295, may be construed as "a venue statute, not limiting the 

general criminal jurisdiction conferred upon [the] circuit 

courts by" Code §§ 17.1-513 and 19.2-239. Brown v. 

Commonwealth, 215 Va. 143, 147, 207 S.E.2d 833, 836 (1974). As 

the Supreme Court has observed, the "use of the word 

'jurisdiction' in the summary title [of a statute] is not 

controlling. The summary title is not part of the body of the 

statute, and in the proper context, the word 'jurisdiction' may 

be used to mean venue." Id. at 146, 207 S.E.2d at 836 (citing 

County School Bd. v. Snead, 198 Va. 100, 106-07, 92 S.E.2d 497, 

503 (1956)). Code § 53.1-205 presents such a context. Code 

§ 53.1-205 provides that "the jurisdiction, proceedings, trial, 

and judgment in a criminal proceeding against a person confined 

in a state correctional facility shall be as is provided for in 

other cases of criminal prosecution." It does not, in itself, 

establish jurisdiction to try the offense or issue in this case, 

and by its own terms makes plain that a criminal proceeding 

against a person confined in a state correctional facility shall 

be governed by the same statutory rules "as [are] provided for 

in other cases of criminal prosecution." See id. (holding that 

former Code § 53-295 did not expressly limit jurisdiction in 

prosecutions of state prisoners). 
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Statutes governing "other cases of criminal prosecution" 

include those establishing jurisdiction. Code § 17.1-513 

establishes the general jurisdiction of the circuit courts. It 

provides that "[t]hey shall . . . have original jurisdiction of 

all indictments for felonies and of presentments, informations 

and indictments for misdemeanors." See Owusu v. Commonwealth, 

11 Va. App. 671, 673, 401 S.E.2d 431, 431 (1991) (former Code 

§ 17-123 (predecessor to Code § 17.1-513) provided the circuit 

courts with jurisdiction over all felonies committed in the 

Commonwealth). Code § 19.2-239 provides that "[t]he circuit 

courts . . . shall have exclusive original jurisdiction for the 

trial of all presentments, indictments and informations for 

offenses committed within their respective circuits." See

Curtis v. Commonwealth, 13 Va. App. 622, 629, 414 S.E.2d 421, 

425 (1992) (en banc) (Code § 19.2-239 limits circuit courts' 

jurisdiction to the trial of all presentments, indictments and 

informations for offenses committed within their respective 

circuits). It follows that, as held in Brown, 215 Va. at 147, 

207 S.E.2d at 836, Code § 53.1-205 establishes the locus or 

venue of proceedings, the jurisdiction "to hear and determine 

the cause" being granted by Code §§ 17.1-513 and 19.2-239.4

 4

 Because Penn limited his claim of error to the issue of 

jurisdiction, the question of whether venue was proper was 

waived and will not be addressed in this opinion. See Brown, 

215 Va. at 147, 207 S.E.2d at 837. 
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In this case, the Circuit Court of the City of Martinsville 

had original and exclusive jurisdiction to try Penn pursuant to 

Code §§ 17.1-513 and 19.2-239. Penn was tried in that court, 

the site of the charged offense as well as the location in which 

he was detained. In sum, Penn's claim that the court lacked 

jurisdiction to try the matter is without merit, and we affirm 

his conviction. 

 Affirmed.