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No Weapon Conviction Under Local Code

On remand from the Supreme Court of Virginia, the Court of Appeals reverses and dismisses defendant’s conviction of carrying a concealed weapon; although defendant was charged under both Va. Code § 18.2-308 and Henrico County Ordinance 22-2, the conviction order only cited the ordinance, which did not incorporate the statute.

The Supreme Court of Virginia reversed our earlier holding that Rule 5A:12 barred us from considering defendant’s argument that his conviction order for carrying a concealed weapon was void ab initio. This case returns to us on remand to consider whether defendant’s conviction order was void ab initio. We hereby withdraw our previous opinion.

On appeal, defendant argues that the conviction is void as a matter of law as there exists no Henrico County Ordinance 22-2 incorporating Va. Code § 18.2-308.

Ordinance 22-2 is a part of Chapter 22 of the Henrico County Code of Ordinances. By reference, it criminalizes as a violation of county law all conduct that would be criminal under certain provision of the Virginia Code. Code § 18.2-308, which proscribes the act of carrying a concealed weapon, is located in Title 18.2, Chapter &, Article 7 of the Virginia Code. Ordinance 22-2 adopts and incorporates Title 18.2, Chapter 7, Article 2, but not Article 7.

Further, Code § 46.2-1313, which is the legislative authority allowing Ordinance 22-2 to incorporate by reference certain Virginia Code sections, does not authorize incorporation by reference of Title 18.2, Chapter 7, Article 7. Virginia follows the Dillon Rule of strict construction. Local governing bodies do not have authority from the General Assembly to incorporate Title 18.2, Chapter 7, Article 7, therefore, Ordinance 22-2 could not have validly incorporated Code § 18.2-308.

We recognize that a fair reading of the summons shows that Officer Flores charged defendant with violating both Code § 18.2-308 and Ordinance 22-2. However, the trial court expressly wrote in its conviction order that defendant was charged with and was guilty of violating Ordinance 22-2 “incorporating Virginia Code Section 18.2-308.” Therefore, we are not persuaded by the county’s argument that the addition of 22-2 is purely erroneous to the face of the warrant, but does nothing to change the nature of what defendant was charged with. Because a court speaks only through its orders, we look to the sentencing order to discern its holding.

Because Ordinance 22-2 did not, and legally could not, incorporate Code § 18.2-308, the trial court convicted defendant of violating a county ordinance that could not punish the conduct alleged in the final order. Therefore, a violation of Ordinance 22-2 incorporating Code § 18.2-308 was a legally insufficient basis for a criminal conviction.

Here, Ordinance 22-2 did not incorporate Code § 18.2-308, nor has the General Assembly authorized the county to do so. Therefore the trial court did not have the power to convict defendant of “Henrico County Ordinance 22-2 incorporating Virginia Code Section 18.2-308,” an offense that did not exist. We therefore hold that the conviction order was void ab initio because the trial court exerted its power in a way not warranted by law.

Reversed and dismissed.

Amin v. County of Henrico (Humphreys) No. 0861-11-2, April 1, 2014; On Remand from SCV; Henrico County Cir.Ct. (Hicks) J. Burkhardt Beale for appellant; David R. Giroux, AAG, for appellee. VLW 014-7-099, 6 pp.

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