Freeman v. Com., 1279-90-1
| Citation | 14 Va.App. 126,414 S.E.2d 871 |
| Decision Date | 17 March 1992 |
| Docket Number | No. 1279-90-1,1279-90-1 |
| Parties | Jerome Lee FREEMAN v. COMMONWEALTH of Virginia. Record |
| Court | Court of Appeals of Virginia |
Lawrence L. Lieberman, Newport News, for appellant.
Virginia B. Theisen, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: BAKER, MOON and WILLIS, JJ.
On June 6, 1990, Jerome Lee Freeman, the appellant, was convicted in a bench trial of burglary in violation of Code § 18.2-91. On April 16, 1990, he had been tried for a misdemeanor charge of petit larceny arising from the same transaction. On appeal, Freeman contends (1) the prosecution for burglary in the circuit court was barred by double jeopardy, (2) the trial for burglary was a "successive prosecution", and (3) this court's ruling in Low v. Commonwealth, 11 Va.App. 48, 396 S.E.2d 383 (1990), controls this decision. We combine issues one and two. We find no error and affirm the judgment of the trial court.
On April 16, 1990, the appellant was tried in the juvenile and domestic relations district court for petit larceny of meats from his wife. He pleaded not guilty. The charge was "dismissed without prejudice." In the same proceeding, the juvenile and domestic relations court conducted a preliminary hearing on a warrant charging burglary arising out of the same occurrence. It certified the burglary charge to the grand jury, which returned the indictment upon which the appellant was tried on June 6, 1990 and found guilty.
The appellant made no motion to strike and presented no evidence at trial. Several days prior to sentencing, he moved to vacate the verdict on the ground of double jeopardy, alleging that the burglary prosecution was barred by the previous trial on the petit larceny charge. This appeal addresses the trial court's denial of that motion.
The appellant first contends that the burglary prosecution was barred by double jeopardy. Initially, the Commonwealth asserts that the appellant's double jeopardy claim is procedurally barred. It argues that this defense, being based upon a defect "in the institution of the prosecution or in the written charge upon which the accused is to be tried," must be raised at least seven days before the day fixed for trial. Rule 3A:9(b)(1). Failure to raise such a defense properly is a waiver.
Rule 3A:9(d) provides: "For good cause shown the court may grant relief from any waiver provided for in this Rule." The trial court held that under the circumstances of this case, the plea of double jeopardy should not be deemed waived. The record supports that holding. Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), was decided on May 29, 1990. The appellant was tried on June 6, 1990. To comply with Rule 3A:9, the appellant must have filed his motion by May 30, 1990, one day after the Grady decision. We affirm the trial court's finding that this time limitation is "good cause shown," and that the plea of double jeopardy is not procedurally barred.
The traditional test of double jeopardy is set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which states, "... the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304, 52 S.Ct. at 182. Applying this standard, the appellant's double jeopardy claim fails. The burglary and larceny charges each required proof of a fact not required for the other.
However, Blockburger is not the only test for double jeopardy. Grady, 110 S.Ct. at 2092. In Grady, the Supreme Court set forth a further standard for determining whether successive prosecutions are barred.
The Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.
Id. 110 S.Ct. at 2093. The appellant contends that to prove the intent...
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Davis v. Commonwealth of Va..
...with the misdemeanor resolved in general district court and the preliminary hearing waived on the felony); Freeman v. Commonwealth, 14 Va.App. 126, 128–29, 414 S.E.2d 871, 873 (1992) (misdemeanor and felony charges initiated at the same time, but out of necessity, the misdemeanor was conclu......
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Hall v. Commonwealth
...that the proceedings are concurrent, not successive, prosecutions." Id. at 595, 425 S.E.2d at 817 (citing Freeman v. Commonwealth, 14 Va. App. 126, 129, 414 S.E.2d 871, 873 (1992)). Under these principles, "where felony and misdemeanor charges . . . are heard simultaneously in a single proc......
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Tolson v. Commonwealth, Record No. 1367-04-2 (VA 4/19/2005), Record No. 1367-04-2.
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