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SCV: Double jeopardy bars double firearm convictions

The court of appeals correctly held that convictions for both common-law and statutory involuntary manslaughter under Code § 18.2-154 amounted to unconstitutional double convictions for the same offense.


A jury convicted Appellee Carroll Gregg of both common law involuntary manslaughter and involuntary manslaughter under Code § 18.2-154. He had acknowledged shooting the victim, but stated it was an accident. Gregg moved to dismiss one of the charges, contending that the Double Jeopardy Clause precluded a conviction for both manslaughter offenses. The trial court denied the motion, but the Court of Appeals of Virginia reversed, holding that Gregg could not be convicted of both offenses. The Commonwealth appealed.

Double jeopardy

The General Assembly will at times specify in the statutory text that a prosecution under a particular Code provision does not foreclose a prosecution under a different statute. These provisions manifest a clear legislative intent that prosecution for one crime does not foreclose prosecution for another crime, however similar or even identical that crime might be. In other statutes, the opposite intent – i.e. to foreclose multiple prosecutions under separate statutes – is apparent. Finally, some statutes, despite the absence of express language in the text of the statute authorizing or forbidding multiple prosecutions, nevertheless evince a legislative intent to impose multiple punishments.

As to § 18.2-154, the General Assembly has determined that when a person commits the proscribed acts unlawfully (but not maliciously) and a death results, that person “is guilty of involuntary manslaughter.” The General Assembly did not distinguish between species of involuntary manslaughter: Both common law involuntary manslaughter and involuntary manslaughter under § 18.2-154 constitute one crime of involuntary manslaughter. The defendant’s mental state and his acts are the same, and there is one victim. There is no statutory language to the effect that “[t]he provisions of this section shall not preclude the applicability of any other provision of the criminal law of the Commonwealth which may apply to any course of conduct which violates this section.”

Under these circumstances, this court concludes that the General Assembly did not intend to permit simultaneous punishment for both common law involuntary manslaughter and manslaughter under § 18.2-154.

The double jeopardy guarantee protects against being “twice put in jeopardy of life or limb” for “the same offence.” Because involuntary manslaughter under § 18.2-154 is the “same offence” as common law involuntary manslaughter, Gregg was twice convicted and sentenced in the same trial of the same offense in violation of the Double Jeopardy Clause.

Affirmed, and remanded to allow the Commonwealth to elect between the sentences for the two offenses, with the other sentence to be vacated.

Commonwealth v. Gregg, Record No. 170586, Apr. 5, 2018. SCV (McCullough), from CAV. VLW No. 018-6-023, 7 pp.