Virginia Firearm Possession Felony Prosecution Lawyers Attorney

Virginia Firearm Possession Felony Prosecution Lawyers Attorney

by

Atchuthan Sriskandarajah

Commonwealth Of Virginia V. Watson Hughes

Facts:

The instant criminal matter arose from defendant s possession of a firearm in a concealed place upon his person. The Defendant is a convicted felon. The Defendant was initially charged by warrant with two felonies. The Commonwealth subsequently sought to separate the two offenses contained in the second part of the warrant into two distinct charges: possession of a firearm by a convicted felon and carrying a concealed firearm on or about the person (a Class 1 misdemeanor), both of which had their requisite elements contained in the original felony warrant. The Defendant elected to plead guilty to the misdemeanor offense of carrying a concealed weapon, a violation of Virginia Code 18.2-308. The Court accepted the plea and found the defendant guilty, deferring sentencing until the resolution of the related felony charge of violating Virginia Code 18.2-308.2 (convicted felon possessing a firearm). Defense counsel then moved to dismiss the felony indictment alleging that Va. Code Ann. 19.2-294 barred a felony prosecution of Va. Code Ann. 18.2-308.2. The Commonwealth argued that even if the same act gave rise to the charges, it did not necessarily follow that the charges were the same, and therefore violative of Va. Code Ann. 19.2-294.

Issue:

Whether Virginia Code 19.2-294 bars a felony prosecution of 18.2-308.2 when the Defendant entered a guilty plea for a related misdemeanor 18.2-308 violation before the commencement of the felony trial?

Discussion:

This court held that the requirements for proving a concealed weapons misdemeanor under Virginia Code 18.2-308 are distinct from the requirements of Virginia Code 18.2-308.2. The two charges were commenced at the same or concurrent time, and the prosecutions are not sequential in nature simply because the misdemeanor was more amenable to an expeditious resolution than the

felony

. Consequently, there is no violation of Virginia Code 19.2-294, and thus the motion to dismiss must be denied. This court held that despite arising from the same act of carrying a firearm, the prosecution for both crimes was valid because each charge possessed different, required elements in order to obtain a conviction. Further, defendant’s request to schedule the trial of the felony firearm charge after the guilty plea to the misdemeanor concealment did not convert the single prosecution into a sequential or successive prosecution, as both charges developed out of the same facts and shared some common elements.

Judgment:

This court hence denied the motion to dismiss the felony indictment.

Disclaimer:

These summaries are provided by the

SRIS Law Group

. They represent the firm s unofficial views of the Justices opinions. The original opinions should be consulted for their authoritative content

Atchuthan Sriskandarajah is a Virginia lawyer and owner of the SRIS Law Group. The SRIS Law Group has offices in Virginia, Maryland, Massachusetts, New York,

North Carolina

& California. The firm handles criminal/traffic defense, family law, immigration & bankruptcy cases.

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