Wrong Test Used for Employee Count

DMV Transcript Proved Status Indefinite

By Deborah Elkins
Published: December 16, 2011
Tags: Judge Robert P. Frank, Traffic Offenses, Virginia Court of Appeals

The commonwealth’s failure to produce defendant’s 1997 habitual offender declaration does not entitle him to reversal of his bench trial conviction for second offense driving as a habitual offender, the Court of Appeals says; a Department of Motor Vehicles (DMV) transcript proved defendant’s status was indefinite and defendant admittedly knew he needed to petition the [...]

Double Jeopardy No Bar to Explosives Charges

By Deborah Elkins
Published: December 16, 2011
Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals

Defendant’s guilty plea to two misdemeanor city ordinance violations does not bar later bench trial convictions for felony possession of explosives and component materials under Va. Code § 18.2-85, the Court of Appeals says; the evidence was sufficient to prove defendant guilty of the felony explosives offenses and neither Va. Code § 19.2-294 nor double [...]

Real Gun Required for Felon Possession

By Deborah Elkins
Published: December 16, 2011
Tags: Criminal, Judge William G. Petty, Virginia Court of Appeals

The Court of Appeals reverses defendant’s conviction for felon possession of a firearm; Va. § 18.2-308.2 requires evidence of an object created to expel projectiles by explosion and the witness testimony here is insufficient. Defendant, a convicted felon, was convicted of attempted robbery and possession of a firearm by a felon. At trial, a restaurant [...]

Marijuana Odor Provides Probable Cause

By Deborah Elkins
Published: December 16, 2011
Tags: Criminal, Judge Robert J. Humphreys, Virginia Court of Appeals

Defendant is not entitled to reversal of his convictions for felony possession of oxycodone and misdemeanor possession of marijuana based on the failure of police to obtain a warrant before searching his person, the Court of Appeals says; the smell of marijuana emanating from defendant’s residence provided police probable cause to obtain a warrant to [...]

Intoxicated Defendant’s Resistance Unlawful

By Deborah Elkins
Published: December 16, 2011
Tags: Criminal, Judge Larry G. Elder, Virginia Court of Appeals

Defendant is not entitled to reversal of his jury trial convictions for resisting arrest and assault and battery of a police officer, the Court of Appeals says; defendant’s noncompliance with the officer’s warning to remain inside to defuse potential domestic violence provided exigent circumstances to enter his residence and arrest him for public intoxication. Officers [...]

Full Court Grants Rehearing on Brady Violation

By Deborah Elkins
Published: December 16, 2011
Tags: Criminal, Virginia Court of Appeals

The en banc Court of Appeals grants the commonwealth’s petition for rehearing of the November 8, 2011, divided panel decision reversing and remanding defendant’s jury trial convictions for sex crimes against his five-year old stepdaughter based on the commonwealth’s violating constitutional due process requirements of Brady v. Maryland, 373 U.S. 83 (1963), in failing to [...]

No Proffer for Guilty Plea Withdrawal

By Deborah Elkins
Published: December 16, 2011
Tags: Criminal, Judge James W. Haley Jr., Virginia Court of Appeals News

The Court of Appeals says a trial court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea to a felony charge of abduction with intent to defile of a woman whom he had followed and offered a ride to work, as defendant offered no reasonable basis for contesting his guilt. [...]

Conviction Reversed for ‘Fatal Variance’

By Deborah Elkins
Published: December 16, 2011
Tags: Criminal, Judge D. Arthur Kelsey, Virginia Court of Appeals

A defendant who was indicted for failing to register or reregister as a sex offender, but who was convicted on a theory that he provided false information about his residence address in his reregistration forms, wins reversal by the Court of Appeals of his conviction under Va. Code § 18.2-472.1 for a fatal variance between [...]

Support Recalculation Ordered

By Deborah Elkins
Published: December 16, 2011
Tags: Domestic Relations, Judge Robert P. Frank, Virginia Court of Appeals

In this divorce case involving a trial court ruling that a pending mandate of the Court of Appeals restricted the trial court’s consideration of spousal and child support modifications, the appellate court says the trial court erred in holding it lacked jurisdiction to consider motions to modify spousal and child support based on a change [...]