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the Virginia Court of Appeals.
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
COMMONWEALTH OF VIRGINIA
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
Jennifer R. Franklin, Assistant Attorney General (Jerry W.
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
more ordinances, conviction under one of such statutes or
ordinances shall be a bar to a prosecution or proceeding under
other or others. Furthermore, if the same act be a violation of
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
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
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
Code ? 17.1-413, this opinion is not designated for publication.