Firearm convictions don’t violate double jeopardy

Where the defendant was carrying a firearm while subject to five separate protective orders, his convictions for transporting a firearm while subject to the orders did not violate double jeopardy because the purpose of the statute is to protect each principal. His two convictions for possession of a firearm by a felon, however, could not stand.

Background

On April 25, 2017, the appellant was convicted in general district court and sentenced to jail. He escaped custody by walking away. When law enforcement captured him, he had a revolver strapped to his ankle.

At the time of the escape and apprehension, the appellant was subject to five separate protective orders. While in jail, the appellant called a neighbor and asked him to move and sell property that the appellant kept in his shed. A sheriff’s officer, who had monitored the phone call between the appellant and his neighbor, went to the neighbor’s house and collected the firearms and ammunition as evidence.

The commonwealth charged the appellant with five counts of transporting a firearm while subject to a protective order and two counts of possessing a firearm or ammunition after previously being convicted of a felony. The appellant filed a motion to dismiss in which he argued that his constitutional protection against double jeopardy was violated by the charges. The trial court denied the motion and found the appellant guilty of all counts.

Virginia Code ¤ 18.2-308.1:4(A)

Code § 18.2-308.1:4(A) provides, in pertinent part, that “[i]t is unlawful for any person who is subject to . . . a protective order . . . to purchase or transport any firearm while the order is in effect.”

The appellant’s transportation of the firearm found strapped to his ankle when he was captured and arrested while subject to five protective orders was the basis for five separate convictions and corresponding sentences. The question for this court to resolve is whether the statute penalizes the act of purchasing or transporting a firearm while subject to multiple protective orders as a single offense or as multiple ones subject to separate punishments.

We conclude that the purpose of Code § 18.2-308.1:4 is to protect the individuals who are the subjects of the protective orders. This purpose and gravamen contrast with those of a statute prohibiting possession of a firearm. The purpose of a firearm possession statute is to protect society generally from the individual who belongs to a described class or group such as previously convicted felons. Here, the gravamen of an offense under Code § 18.2-308.1:4 is not possession, but it is the purchase or transportation of a firearm while the protective order is in effect because the purpose of the statute is to protect each principal.

For these reasons, the appellant’s single act of transporting a firearm logically resulted in separate and distinct charges based on the five protective orders entered to protect five different principals. The five convictions and sentences did not violate the appellant’s constitutional protection against double jeopardy.

Virginia Code ¤ 18.2-308.2

Code § 18.2-308.2, in pertinent part, prohibits “any person who has been convicted of a felony” from “knowingly and intentionally possess[ing] or transport[ing] any firearm or ammunition for a firearm.” The question raised by the appellant is whether the statute penalizes the simultaneous possession of firearms and of separate ammunition that he stored in his shed as one offense or two.

If both the possession convictions and sentences were to stand, it would mean that a defendant who simultaneously possesses one firearm and ammunition to a different weapon could be punished for two offenses. This reasoning does not comport with the analysis in Acey v. Commonwealth, 29 Va. App. 240 (1999), nor does it follow the legislature’s intent. The appellant is not inherently more dangerous to the public than the hypothetical defendant with numerous weapons. We hold that the appellant should have been subject to only one punishment under Code § 18.2-308.2 for the firearms and ammunition which he stored in the shed.

Accordingly, we remand this case to the trial court to allow the Commonwealth to elect one conviction and sentence for the appellant’s violation of Code § 18.2-308.2. Thereafter, the court shall vacate the other conviction and sentence under that statute.

Affirmed in part, and reversed and remanded in part.

Concurring/dissenting opinion

Bumgardner, R.J., concurring, in part and dissenting, in part.

I would reverse on both issues.

Groffel v. Commonwealth, Record No. 0485-18-2, Aug. 20, 2019 (Decker) from New Kent Cir. Ct. (Bondurant). Ivan D. Fehrenbach for Appellant, Virginia B. Theisen for Appellee. VLW No. 019-7-148, 13 pp.