                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia


MICHAEL JOSEPH STATON
                                         MEMORANDUM OPINION * BY
v.   Record No. 2055-01-4                 JUDGE LARRY G. ELDER
                                             DECEMBER 11, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                    Ann Hunter Simpson, Judge

          Cary S. Greenberg (Edward S. Rosenthal; A.
          Lewis Lowery, Jr.; Rich Greenberg Rosenthal &
          Costle, LLP; Rinehart, Lowery, Strentz &
          Butler, P.L.C., on briefs), for appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     Michael Joseph Staton (appellant) appeals from a decision

of the Stafford County Circuit Court (trial court) denying his

motion for bail pending appeal of his convictions for two counts

of indecent liberties in violation of Code § 18.2-370.1, two

counts of aggravated sexual assault in violation of Code

§ 18.2-67.3, and one count of object sexual penetration in

violation of Code § 18.2-67.2.   We hold that Code § 19.2-319

gives a court broad discretion in determining whether and under

what circumstances to grant bail pending appeal and that the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
trial court erred in concluding it lacked authority to condition

appellant's release on bail, inter alia, on his participation in

an electronic home monitoring program.   Thus, we reverse the

trial court's denial of appellant's bail request and remand for

further proceedings consistent with this opinion. 1

     "Code § 19.2-319 is the statutory basis upon which the

trial court entertains requests for the granting of

post-conviction bail."   Dowell v. Commonwealth, 6 Va. App. 225,

228, 367 S.E.2d 742, 744 (1988).   Determining whether a

defendant should be released on bail pending the appeal of a

felony conviction "requires the trial court to consider

questions essential to all bail decisions -- whether the

defendant will appear for hearing or at such other time and

place as may be directed and whether the defendant's liberty

will constitute an unreasonable danger to himself and the

public."   Id. at 229, 367 S.E.2d at 744.   "This statutory grant

of power . . . 'contemplates that it will be exercised with a

reasonable discretion, and unless it appears . . . that such

discretion has been abused, the appellate court should not

disturb the action of the trial court.'"    Id. (quoting




     1
       Although we reverse and remand, we note that the trial
court is not bound by its initial determination to grant bail
conditioned upon electronic home monitoring and remains free to
determine anew whether appellant's release is appropriate under
Dowell v. Commonwealth, 6 Va. App. 225, 229, 367 S.E.2d 742, 744
(1988).

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Commonwealth v. Smith, 230 Va. 354, 362, 337 S.E.2d 278, 282-83

(1985)).

     Here, although it was within the trial court's discretion

to reconsider its earlier bail determination and to conclude

that appellant's release on any terms constituted an

unreasonable danger to the public, the court erroneously

concluded that Code § 53.1-131.2 prevented it from requiring

participation in an electronic home monitoring program as a

condition of bail.    Code § 53.1-131.2 covers a trial court's use

of a home/electronic incarceration program only as a condition

of bail "pending trial" and "as a condition of probation."       It

does not address the circumstances under which a trial court may

use electronic home monitoring as a condition of bail pending

appeal.    Thus, the provisions of that code section prohibiting

the use of home monitoring for individuals convicted of

particular categories of crimes do not apply, and the trial

court had broad discretion under Code § 19.2-319 to condition

appellant's release pending appeal on any combination of

conditions it thought necessary and appropriate to satisfy the

Dowell concerns.     See 6 Va. App. at 229, 367 S.E.2d at 744.

Such conditions may include electronic home monitoring if a

satisfactory program is available that addresses the trial

judge's concerns.

     For these reasons, we hold the trial court erroneously

concluded that it could not employ electronic home monitoring as

                                 - 3 -
a condition of bail pending appeal, and we remand for the trial

court to consider anew whether appellant's release is

appropriate under Dowell if subject to this condition or any

others, alone or in combination.

                                           Reversed and remanded.




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