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Appellant prosecuted under repealed statute

Virginia Lawyers Weekly//August 30, 2023

Appellant prosecuted under repealed statute

Virginia Lawyers Weekly//August 30, 2023//

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Where appellant violated a statute before its repeal, he can be prosecuted for the violation. The statute’s repeal was not retroactive. It is immaterial that he was not indicted until after the repeal. The date of the offense controls.


Before its repeal on July 1, 2021, Code § 18.2-104, “provided enhanced punishment for repeat larceny offenders and elevated third offense misdemeanor larceny to a Class 6 felony.”

In May 2021, appellant Guest, who had three prior larceny convictions, unsuccessfully attempted to return merchandise he took from a store without paying. A week later, he successfully returned more than $583.57 worth of shoplifted merchandise. He received a store credit for that amount and spent more than $200 on other items.

“On October 18, 2021, Guest was indicted for larceny shoplifting, third or subsequent offense, a Class 6 felony, in violation of Code §§ 18.2-103 and 18.2-104. He pleaded guilty under a plea agreement.

“[T]he trial court sentenced Guest to five years, with three years and six months suspended, for a total active time of one year and six months to serve. This appeal followed.”


“We have held that the repeal of Code § 18.2-104 is not retroactive. Gionis v. Commonwealth, 76 Va. App. 1, 10 (2022). Hence, this case turns on whether the triggering event under Code § 1-239 is the indictment or the criminal offense. We find that the triggering event is the criminal offense.

“Thus, we look to whether the statute was in effect at the time the offense occurred to determine whether the felony enhancement is available under Code § 18.2-104.

“Because Guest’s larceny offense occurred prior to July 1, 2021, the court maintained jurisdiction to impose a felony under Code § 18.2-104 and we affirm his conviction. Finally, because he was sentenced within the statutory range, his conviction and sentence were proper.”

Not retroactive

“Code § 1-239 clearly and unambiguously states: ‘[n]o new act of the General Assembly shall be construed to repeal a former law, as to any offense committed against the former law.’ (Emphasis added).

“Although Guest seeks to distinguish his case because, unlike in Gionis, his indictment came after the repeal of Code § 18.2-104, the plain language of Code § 1-239 bars Guest’s interpretation.

“Guest committed his offense ‘against the former law, ‘when the former law was in full force and effect, and no exception to the rule against retroactivity applies. …

“The General Assembly did not state in ‘explicit terms’ that the repeal of Code § 18.2-104 would have retroactive effect, and this repeal clearly affects ‘substantive or vested’ rights, as it ‘prohibit[s] the imposition of … punishment on a particular class of persons’ – here, larceny recidivists. …

“The intent of the legislature is plain. We hold that courts should look to the date of the offense, not the indictment, in determining whether prosecution is available under a repealed and non-retroactive statute. …

“Because Guest committed the offense before the statute’s repeal date of July 1, 2021, Guest’s conduct constituted an offense against the former law, and the repeal does not affect the jurisdiction of the trial court.

“Guest pleaded guilty to the underlying offense, and we have found the substantive change in the statute did not impact the court’s jurisdiction to prosecute Guest. His conviction is not void ab initio, thus our appellate review is complete.”


“When a defendant unconditionally pleads guilty, the plea ‘constitutes a waiver of the right to appeal all non-jurisdictional antecedent rulings and cures all antecedent constitutional defects.’ …

“However, Guest appeals his sentence, which occurred after he entered his plea, and was therefore not waived. Nevertheless, we find the court did not abuse its discretion and affirm the trial court. …

“The trial court sentenced Guest to five years in prison, with three years and six months suspended. His sentence falls within the statutory range set by the General Assembly. …

“Guest argues that the trial court did not sufficiently consider his mitigating factors during sentencing. These mitigating factors include Guest’s veteran status, post-traumatic stress disorder, and sincere apology for his crimes.

“The requirement that a trial court consider mitigation evidence at sentencing is not a requirement that the trial court will find such evidence compelling when weighed against other evidence. …

“The record indicates that the trial court considered the evidence and arguments of counsel. The trial court noted that it had ‘reviewed and considered the presentence report and the guidelines,’ in addition to its consideration of the arguments of counsel regarding mitigating factors.

“After careful consideration, the trial court sentenced Guest within the statutory range and articulated its reasoning on the record. …

“Because there is no evidence that the trial court ‘purposefully ignored’ Guest’s mitigating factors, we affirm his sentence.”


Guest v. Commonwealth, Record No. 0672-22-42 Aug. 8, 2023. CAV (published opinion) (Ortiz; Chaney concurring in the judgment) From the Circuit Court of Spotsylvania County. (Rigual) Catherine French Zagurskie for appellant. Justin B. Hill, Robin M Nagel, Jason S. Miyares for appellee. VLW 023-7-312, 10 pp.

VLW 023-7-312

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