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Defendant moves this court to re-open his criminal case, to…

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Defendant moves this court to...

Defendant moves this court to re-open his criminal case, to dismiss Indictment No. 19531-05 and to vacate the sentence imposed, because this court lacked jurisdiction to punish him twice for the same offense.

Are there any cases which address this precise issue? The circuit court charged my friend with VA Code§18.2-53.1 (Use of firearm in the commission of a robbery)and the lesser included offense of §18.2-300(A) (Use of sawed-off shotgun in the commission of a crime of violence) and we are challenging the double jeopardy issue for lack of subject matter jurisdiction. Are there any cases (US Supreme Court or Virginia Supreme Court Cases) that have addressed this defense? or this situation?

The problem is that the dismissal of the lesser included offense is predicated on us proving that the court lacked jurisdiction to punish my friend twice for the same offense but I don't have any case law to support it. PLEASE HELP!!

Submitted: 10 years ago.Category: Criminal Law

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11/24/2009

Criminal Lawyer: TJ, Esq., Attorney replied 10 years ago

TJ, Esq., Attorney

Category: Criminal Law

Satisfied Customers: 14,394

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Hello and thank you for allowing me the opportunity to assist you.

Unfortunately, I don’t think you’re going to find what you’re looking for. 18.2-300(A) is not a lesser included offense of 18.2-53.1. A lesser included offense is a crime for which all of the elements necessary to impose liability are also elements found in a more serious crime. In order to be guilty of 18.2-300(A), your friend must have had a sawed-off shotgun. However, in order to be guilty of 18.2-53.1, a sawed-off shotgun is not necessary (the defendant could have used any firearm). Since a person could theoretically be guilty of 18.2-53.1, and not be guilty of 18.2-300(A), the latter is not a lesser included offense. Therefore, your friend can be charged with both crimes.

Have I satisfactorily addressed your concerns? If not, then please feel free to ask for clarification.

I regret that my answer is unfavorable, but please understand that it would be unfair to you (and unprofessional of me) to provide you with anything less than a truthful response. With that in mind, I hope that you found some value in my answer. If so, then please remember to click the green accept button so that I will receive credit and compensation for my time. Positive feedback is always appreciated as well. Thank you and good luck!

DISCLAIMER: Please be aware that only an attorney licensed in your state is authorized to advise you in legal matters, and that the limitations of this setting may prevent your legal issues from being thoroughly addressed. Accordingly, please understand that (1) by answering your question(s) I am not acting as your attorney, (2) my answer(s) should be construed as general information only, and (3) our discussion is not an adequate substitute for an in-person consultation with an attorney.

Customer reply replied 10 years ago

My mistake in typing...

Although there is no Virginia appellate decision addressing this precise issue, two circuit courts have held that §18.2-53.1, for double jeopardy purposes, “necessarily includes a sawed-off shotgun,” Commonwealth v. Thomas,XXXXX 382;XXXXX LEXIS 398 (J. Sachs, City of Norfolk 1988)(attached hereto); “[a] person cannot violate §18.2-300(A) without also violating §18.2-53.1. In every case, possession or use of a sawed-off shotgun in the commission of robbery constitutes a violation of §18.2-300(A) and §18.2-53.1.” Commonwealth v. Rader,XXXXX 211;XXXXX LEXIS 204 (J. Ledbetter, Spotsylvania County, 1998).

12. "’n situations . . . where a defendant is improperly convicted for a lesser included offense, the proper remedy is to vacate both the conviction and sentence on the included offense, leaving the conviction and sentence on the greater offense intact.’ United States v. Buckley, 586 F.2d 498, 505 (5th Cir. 1978), cert. denied, 440 U.S. 982 (1979).” Brown v. Commonwealth, 222 Va. 111, 116 (1981).

13. Judge Ledbetter correctly concluded that §18.2-53.1 was a lesser included offense of §18.2-300(A) and dismissed the lesser charge. Rader,XXXXX at 215. This decision is consistent with the Supreme Court holding in Brown v. Commonwealth, supra.

I don't need to prove the lesser included offense issue, because it has already been addressed. What I need to prove is that because the court found my friend guilty for both offenses and punished him accordingly, that they lacked jurisdiction to punish for both offenses because one is a lesser included offense of the other. Does that make sense?

Criminal Lawyer: TJ, Esq., Attorney replied 10 years ago

Okay, that makes more sense, though I’m not entirely convinced of that either (i.e. I’m not sure I agree with the court case that you quoted). The test is whether it is possible to be guilty of 18.2-300(A), and yet not be guilty of 18.2-53.1. What if your friend committed simple assault with a sawed-off shotgun? I don’t think he’d be guilty of 18.2-53.1 since simple assault isn’t listed in the statute. However, it does appear that under those circumstances, he would be guilty of 18.2-300(A), since that statute merely requires the actor to commit a crime of violence. Of course, he should But that’s beside the point since your friend should still make the argument. But he shouldn’t argue a lack of jurisdiction. Jurisdiction is not the issue … the issue is double jeopardy (which you also pointed out). Here’s a Virginia Supreme Court case on point:

As relevant here, the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution "guarantees protection... against multiple punishments for the same offense." Coleman v. Commonwealth, 261 Va. 196, 199, 539 S.E.2d 732, 733 (2001) (citing Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980)). "Virginia's constitutional guarantee against double jeopardy affords a defendant the same guarantees as the federal Double Jeopardy Clause." Stephens v. Commonwealth, 263 Va. 58, 62, 557 S.E.2d 227, 230 (2002). Thus, subjecting a defendant to cumulative punishments for the "same offense" violates both state and federal constitutional protections against double jeopardy. Cf. Hudgins v. Commonwealth, 43 Va.App. 219, 241, 597 S.E.2d 221, 232 (2004) (en banc) (holding that the defendant's prosecution for larceny of the victim's bicycle from his person following his acquittal for robbery of the same bicycle from the same victim violated Virginia and federal constitutional prohibitions against double jeopardy).

In a single-trial setting, the double jeopardy doctrine does not bar the imposition of consecutive sentences for two crimes arising out of the same criminal act "unless... the two punishments are ... for the same crime or one punishment is for a crime which is a lesser[-]included offense of the other." Coleman, 261 Va. at 200, 539 S.E.2d at 734; see also Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977) (holding that "the greater offense is... by definition the `same' for purposes of double jeopardy as any lesser offense included in it"). The test to be applied to determine whether the consecutive sentences are for the same or a lesser-included offense is "`whether each [charged offense] requires proof of a fact which the other does not.'" Coleman, 261 Va. at 200, 539 S.E.2d at 734 (emphasis added) (alteration in original) (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182); see Brown, 432 U.S. at 166, 97 S.Ct. at 2225 ("The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger ...."); cf. Taylor v. Commonwealth, 11 Va.App. 649, 652-53, 400 S.E.2d 794, 795-96 (1991) (holding that the determination whether a crime is a necessarily included lesser offense of another crime "is made by examining the elements of the crimes that must be proved in order to sustain a conviction"). "`This test emphasizes the elements of the two crimes. "If each requires proof of a fact that the other does not, the Blockburger test is satisfied. . . ."'" Harrison v. Commonwealth, 220 Va. 188, 193, 257 S.E.2d 777, 780 (1979) (quoting Brown, 432 U.S. at 166, 97 S.Ct. at 2226 (quoting Iannelli v. United States, 420 U.S. 770, 786 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616 (1975))). "f not, [the crimes] are the `same offense' and [the constitutional guarantee against] double jeopardy bars additional punishment. . . ." United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). "In applying the Blockburger test, we look at the offenses charged in the abstract, without referring to the particular facts of the case under review." Coleman, 261 Va. at 200, 539 S.E.2d at 734. Schwartz v. Com., 611 S.E.2d 631, 45 Va. App. 407 (Va, 2005).

So, what you can take from that case is that if the one crime is a lesser included offense, then double jeopardy applies, and punishing for both is unconstitutional. In the appeal, you’d quote that Virginia Supreme Court case.

Have I satisfactorily addressed your concerns? If not, then please feel free to ask for clarification.

If the information that I provided is helpful, then please remember to click the green accept button so that I will receive credit and compensation for my time. Positive feedback is always appreciated as well. Thank you and good luck!

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DISCLAIMER: Please be aware that only an attorney licensed in your state is authorized to advise you in legal matters, and that the limitations of this setting may prevent your legal issues from being thoroughly addressed. Accordingly, please understand that (1) by answering your question(s) I am not acting as your attorney, (2) my answer(s) should be construed as general information only, and (3) our discussion is not an adequate substitute for an in-person consultation with an attorney.

Customer reply replied 10 years ago

Ok, here is the problem and I guess I wasnt very clear. This case is from 1999 and my friend is incarcerated. His habeas petitions were denied, his lawyer did not bring this up on appeal. So now we have to challenge these punishments and get around the time bar.

The argument for double jeopardy purposes is:

Virginia Code §18.2-300(A)

Virginia Code §18.2-53.1

1. A. Possession . . . of a “sawed-off” shotgun

2. In the perpetration or attempted perpetration of a crime of violence is a class 2 felony.

3. Robbery, burglary and aggravated malicious wounding are all crimes of violence³

1. It shall be unlawful for any person to use any shotgun

2. In a threatening manner while committing or attempting to commit

3. Robbery or burglary or aggravated malicious wounding

They are essentially the same. Since he was convicted on both charges the lesser included should be vacated. His charges are as follows. He recieved one gun charge for each felony conviction, burglary, robbery and malicious wounding.

10531-00	§18.2-90	Statutory burglary	10 years - all suspended
10531-01	§18.2-53.1	Use of firearm - aggravated malicious wounding	3 years
10531-02		charge apparently dismissed
10531-03	§18.2-53.1	Use of firearm - statutory burglary	5 years
10531-04	§18.2-58 & §18.2-26	Attempted robbery - robbery	5 years - 3 suspended
10531-05	§18.2-53.1	Use of firearm - robbery	5 years
10531-06	§18.2-300	Use of sawed-off shotgun - act of violence	40 years - all suspended
10531-07	§18.2-422	Wear mask in public	5 years - all suspended
10531-08	§18.2-51.2	Aggravated malicious wounding	10 years - 7 suspended

Challenging the lack of jurisdiction of the court seems to be the only way for us to get around the time bar. But the issue of subject matter jurisdiction needs to be addressed in order to have the case looked at and the sentence vacated.

Sentencing Result

83 years - 65 years suspended = actual sentence to serve of 18 years

Criminal Lawyer: TJ, Esq., Attorney replied 10 years ago

Hi again. What exactly is your legal question for me? Are you just asking for case law with regard to subject matter jurisdiction? I'm not following that argument. Even if the court violated your friend's Constitutional rights against double jeopardy, I don't think there would be a subject matter jurisdiction issue. How could there be? That implies that it's possible for a court to violate a defendant's Constitutional rights if it does have subject matter jurisdiction. Again, I'm just not following that argument.

Customer reply replied 10 years ago

The argument is that if a punishment is unconstitutional from the beginning then the court does not have the authority to impose such a punishment.

The best kind of case I can find is Ex Parte Yarbrough, 110 U.S. 651, 654 (1884) ("If the law which defines the offense and prescribes its punishment is void, the court was without jurisdiction and the prisoner must be discharged."

So, I am asking for case law that supports this. I think that the issue of jurisdiction can go both ways. I'm not trying to be combative, but I need to figure out the best way to argue this.

Criminal Lawyer: TJ, Esq., Attorney replied 10 years ago

Hmmmm, that case about jurisdiction is not really on point. It states "If the law ... is void, the court was without jurisdiction and the prisoner must be discharged." In your friend's case, the law is not void. The application of the law may be unconstitutional, but the law itself is fine.

I'm going to open this up to other attorneys, however, in the hopes that somebody else can find useful case law.

Criminal Lawyer: Michael J, Esq., Lawyer replied 10 years ago

Michael J, Esq., Lawyer

Category: Criminal Law

Satisfied Customers: 3,598

Experience: Licensed attorney experienced in criminal matters, having represented hundreds of clients with every misdemeanor and felony imaginable.

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Hello -

I see your previous expert has opted out, so I will be happy to assist you.

I think you are making this more complicated than it actually is.

Let me explain double jeopardy.

The guarantee against double jeopardy guarantees a person the right not to be convicted for the same crime twice. To be the "different" crimes, the court has held that each charge must have one mutually exclusive element. For example:

Charge 1: Elements A, B, C, and D
Charge 2: Elements, A, B, C, D, and E

Obviously, Charge 1 is a lesser charge, because it contains all the elements Charge 2 contains.

Now:

Charge 1: Elements A, B, C, and D,
Charge 2: Elements, A, B, C, and E

As you can see, these are "similar" charges, but each has a separate element than the other (D and E). These are two "separate" charges for Double Jeopardy purposes.

Now, onto this specific case:

Virginia Code 18.2 - 300 Elements:

A. Perpetration of crime
B. POSSESSION of a "sawed off" shotgun

Virginia Code 18.2 -53.1 Elements

A. Perpetration of a crime
C. USE of ANY shotgun,
D. In a threatening manner

As you can see, while simiilar, these two charges each have exclusive elements. They are not lesser included charges. Virginia Code 300 is attempting to punish criminals who simply possess a "sawed off" shotgun in the commission of a crime, because these is an illegal modified weapon and they have an interest in punishing criminals for possessing these types of weapons.

Virginia Code part 53.1 is a more general statute that prohibits the USE of a ANY shotgun in the commissio of a crime. This is a statute meant to punish the actual use of a weapon on the crime, and not possession of the shotgun itself.

As you can see, because each has exclusive elements, these are two separate charges and may be charged accordingly. This is why the lawyer did not bring it up on appeal, because it does not invoke double jeopardy.

I'm sorry if this isn't what you wanted to hear, but it's the law.

Take care..

If my answer was helpful, please click ACCEPT so i may be compensated for my time. If you are not satisfied with the Answer, please feel free not to Accept, and post a follow up question so I may be able to clarify my Answer. My goal is to provide an outstanding Answer, so give me a chance.

Regards,

Michael

Customer reply replied 10 years ago

I'm sorry, this isn't helpful. My question is not a double jeopardy question. And regardless of this particular explanation for my purposes and by the opinion of two circuit court judges and in the case of the district attorney who reviewed these are the same for double jeopardy purposes. One deals with any firearm which necessarily includes sawed off shotguns and rifles, and the other deals with shotguns specifically. There was one incident, one gun, but there are three separate and distinct firearms charges in addidion to the charges listed above.

18.2-53.1. Use or display of firearm in committing 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.

§ 18.2-300. Possession or use of "sawed-off" shotgun or rifle.

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.

B. Possession or use of a "sawed-off" shotgun or "sawed-off" rifle for any other purpose, except as permitted by this article and official use by those persons permitted possession by § 18.2-303, is a Class 4 felony.

My question is about jurisdiction.

Criminal Lawyer: Michael J, Esq., Lawyer replied 10 years ago

I'm sorry, but there is no jurisdictional question regarding whether the State was able to charge him with both felonies. Subject matter jurisdiction is satisfied. The charges were not unconstitutional with regards XXXXX XXXXX jeopardy because they have separate elements. Again, there is no jurisdictional issue.

I'm sorry if this isn't what you wanted to hear.

If my answer was helpful, please click ACCEPT so i may be compensated for my time. If you are not satisfied with the Answer, please feel free not to Accept, and post a follow up question so I may be able to clarify my Answer. My goal is to provide an outstanding Answer, so give me a chance.

Regards,

Michael

Customer reply replied 10 years ago

§ 18.2-300(A) Possession or use of "sawed-off" shotgun or rifle.

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.

You can automatically be convicted of 18.2-52.1 if you are convicted of 18.2-53.1. All of the elements of this "possession or use of a sawed off shotgun int he commission of crime of violence" are contained in the former. You need no additional elements to convict on 53.1.

So, my question again has nothing to do with double jeopardy. Because according to the Virginia same elements test these statutes are the same for double jeopardy purposes.

two circuit courts have held that §18.2-53.1, for double jeopardy purposes, “necessarily includes a sawed-off shotgun,” Commonwealth v. Thomas,XXXXX 382;XXXXX LEXIS 398 (J. Sachs, City of Norfolk 1988)(attached hereto); “[a] person cannot violate §18.2-300(A) without also violating §18.2-53.1. In every case, possession or use of a sawed-off shotgun in the commission of robbery constitutes a violation of §18.2-300(A) and §18.2-53.1.” Commonwealth v. Rader,XXXXX 211;XXXXX LEXIS 204 (J. Ledbetter, Spotsylvania County, 1998).

So, again my question is, if a court does not have the constitutional right to punish a person for two offenses, and the court DOES infact punish someone, how can you raise the issue after appeals are exhausted. If the punishment is VOID then does that mean the court lacked the authority, or jurisdiction to impose the punishment in the first place.

Criminal Lawyer: Michael J, Esq., Lawyer replied 10 years ago

I don't agree with the assessment, but I'll answer your specific question....

"if a court does not have the constitutional right to punish a person for two offenses, and the court DOES infact punish someone, how can you raise the issue after appeals are exhausted."

The answer is that you can't. This is a double jeapardy issue. This is not a jurisdiction issue. If you believe that Double Jeopardy should have been triggered, your remedy is to appeal the decision. If your appeals have been exhausted, you can move to vacate the judgement due to the Constitutional issue. That is your only option.

If my answer was helpful, please click ACCEPT so i may be compensated for my time. If you are not satisfied with the Answer, please feel free not to Accept, and post a follow up question so I may be able to clarify my Answer. My goal is to provide an outstanding Answer, so give me a chance.

Regards,

Michael

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