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GREEN v. COMMONWEALTH




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GREEN

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Senior Judge Overton

Argued at Richmond, Virginia

Record No. 2508-02-2

DALIAN KEITH GREEN

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]BY
JUDGE LARRY G. ELDER

OCTOBER 14, 2003

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY

Robert G. O’Hara, Jr., Judge

Steven Brent Novey (Tomko & Novey, P.C., on brief), for
appellant.

Jennifer R. Franklin, Assistant Attorney General (Jerry W.
Kilgore,

Attorney General, on brief), for appellee.

Dalian Keith Green (appellant) appeals from his convictions for
grand larceny, grand

larceny of an automobile, possession of burglary tools, and
statutory burglary, entered on his

conditional pleas of guilty. On appeal, he contends that his
convictions were barred by Code

? 19.2-294 because he had already been held accountable for
those acts in a previous prosecution

in federal court. Assuming without deciding appellant’s state
and federal prosecutions

encompassed "the same act" within the meaning of Code
? 19.2-294, we hold that statute did not

bar the instant prosecutions because those prosecutions
commenced before the federal

prosecution. Thus, we affirm the challenged convictions.

The applicable version of Code ? 19.2-294 provides in relevant
part as follows:

If the same act be a violation of two or more statutes, or of

two or more ordinances, or of one or more statutes and also one
or

more ordinances, conviction under one of such statutes or

ordinances shall be a bar to a prosecution or proceeding under
the

other or others. Furthermore, if the same act be a violation of
both

a state and a federal statute[,] a prosecution under the federal

statute shall be a bar to a prosecution under the state statute.
. . .

For purposes of this section, a prosecution under a federal

statute shall be deemed to be commenced with the return of an

indictment by the grand jury or the filing of an information by
a

United States attorney.

See 1987 Va. Acts, ch. 241; 2002 Va. Acts, chs. 588, 623; see
also 2003 Va. Acts, ch. 736

(amending second paragraph of statute to provide that, effective
July 1, 2003, "a prosecution

under a federal statute shall be deemed to be commenced once
jeopardy has attached
" (emphasis

added)).

Code ? 19.2-294 applies "only . . . when a federal
‘prosecution . . .’ has commenced

before the commencement of a state prosecution."
Billington v. Commonwealth, 13 Va. App.

341, 344, 412 S.E.2d 461, 463 (1991) (citing Owens v.
Commonwealth, 129 Va. 757, 761, 105

S.E. 531, 532 (1921)) (emphasis added). The Virginia Supreme
Court has observed that, "[i]n

criminal law, [a prosecution] . . . consists of a series of
proceedings from the time formal

accusation is made by swearing out a warrant, the finding
of an indictment or information in a

criminal court, the trial, and final judgment." Sigmon v.
Commonwealth, 200 Va. 258, 267, 105

S.E.2d 171, 178 (1958) (emphasis added); see Phillips v.
Commonwealth, 257 Va. 548, 553, 514

S.E.2d 340, 342 (1999) (holding that, "[i]n a criminal
case, a ‘prosecution’ is the process in which

an accused is brought to justice from the time a formal
accusation is made through trial and final

judgment in a court of appropriate jurisdiction" (citing
Sigmon, 200 Va. at 267, 105 S.E.2d at

178)). Since the Supreme Court’s decision in Sigmon, the
legislature has amended Code

? 19.2-294 to define when, "[f]or purposes of [that] section, a prosecution under a federal statute

shall be deemed to be commenced." See 1987 Va. Acts, ch.
241 (amending Code ? 19.2-294 to

provide, effective July 1, 1987, that federal prosecution
"commence[s] with the return of an

indictment by a grand jury or the filing of an information by a
United States attorney"); see also

2003 Va. Acts, ch. 736 (amending Code ? 19.2-294 to provide,
effective July 1, 2003, that

federal prosecution "commence[s] once jeopardy has
attached"). However, the legislature has

not altered the Court’s pronouncement in Sigmon, 200 Va. at 267,
105 S.E.2d at 178, that a state

prosecution commences when "formal accusation is made by
swearing out a warrant." See

Weathers v. Commonwealth, 262 Va. 803, 805, 553 S.E.2d 729, 730
(2001) ("When the General

Assembly acts in an area in which one of its appellate courts
already has spoken, it is presumed

to know the law as the court has stated it and to acquiesce
therein, and if the legislature intends to

countermand such appellate decision it must do so
explicitly."). And, contrary to appellant’s

argument in the trial court, Sigmon refers clearly to the
"swearing out" of the warrant rather than

its service. Sigmon, 200 Va. at 267, 105 S.E.2d at 178. Thus, a
state prosecution commences for

purposes of Code ? 19.2-294 when a warrant is issued, not when
the warrant is served.

Here, we assume without deciding that the acts constituting the
state offenses for which

appellant was convicted in Brunswick County were the
"same" acts that were the subject of the

federal prosecution. Nevertheless, Code ? 19.2-294 is
inapplicable. The state court proceedings

at issue commenced upon issuance of the arrest warrants in
Brunswick County on May 31 and

June 26, 2000. See id.; Phillips, 257 Va. at 553, 514 S.E.2d at
342. The federal proceedings did

not commence until October 2000 when the federal indictment was
returned. See Code

? 19.2-294. Because the federal prosecution commenced after the
state prosecution commenced,

Code ? 19.2-294 did not bar the state proceedings. See
Billington, 13 Va. App. at 344, 412

S.E.2d at 462. That the state warrants were not actually served
on appellant until after the

federal prosecution had concluded does not alter this result.

In sum, we hold Code ? 19.2-294 did not bar the instant
prosecutions because those

prosecutions commenced before the federal prosecution. Thus, we
affirm the challenged

convictions.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

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