Revisiting my past posts. Our lawyer submitted a motion to…

A. Possession or use of a "sawed-off" shotgun or "sawed-off" rifle in the perpetration or attempted perpetration of a crime of violence is a Class 2 felony.

It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit murder, rape, forcible sodomy, inanimate or animate object sexual penetration as defined in § 18.2-67.2, robbery, carjacking, burglary, malicious wounding as defined in § 18.2-51, malicious bodily injury to a law-enforcement officer as defined in § 18.2-51.1, aggravated malicious wounding as defined in § 18.2-51.2, malicious wounding by mob as defined in § 18.2-41 or abduction. Violation of this section shall constitute a separate and distinct felony and any person found guilty thereof shall be sentenced to a mandatory minimum term of imprisonment of three years for a first conviction, and to a mandatory minimum term of five years for a second or subsequent conviction under the provisions of this section. Such punishment shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony.

Correct me if I'm wrong but to determine whether two offenses are different, you see whether one offense requires proof of an additional fact which the other does not, even though some of the same facts may be necessary to prove both. So basically, all firearms are included in the greater, and sawed off shotguns are a firearm. But all firearms are not sawed off shotguns, so the element that separates one from the other is the fact that one is a sawed off shot gun, a particular type of firearm.

I guess my question is how can we make this more clear? You've seen what we've written up and I didn't know lesser included offenses were disputable. I also didnt know that you could offer a settlement that isn't in line with Virginia law. We are going back to the CA with more information and I know that part of this is political as it would look bad to release a convicted felon early only to have it come back and bite you. Let me know what you think and again I appreciate your help beyond words. As I said before if this pans out he will be home in January after 11 long years so we are getting anxious and the CA's recognition of the issue has only made it that much more stressful.