Commonwealth v. Kimberlin

3 Va. Cir. 488, 1979 Va. Cir. LEXIS 31

Opinion

By JUDGE ROSCOE B. STEPHENSON, JR.

The warrant upon which the defendant was tried in the General District Court of Alleghany County charged that he did unlawfully point or brandish a firearm in such manner as to reasonably induce fear in the mind of another in violation of Code § 18.2-282. Upon that charge, the General District Court found the defendant guilty of "disorderly conduct" (Code § 18.2-415), stating that it was "a lesser included offense."

It is my opinion that the offense charged in the warrant (§ 18.2-282) and the offense for which the defendant was convicted (§ 18.2-415) are separate and distinct statutory offenses. A person can be guilty of brandishing a firearm (an offense which may be committed on private property, as well as in public) and not be guilty of disorderly conduct (an offense which only can be committed in a public place). Therefore, disorderly conduct is an entirely separate and distinct offense and is not a lesser included offense of brandishing a firearm.

The action of the General District Court had the effect of acquitting the defendant of the offense charged in the warrant (violation of § 18.2-282), and the purported conviction of disorderly conduct, in my opinion, is a nullity, since the defendant was not charged with or tried for such offense.

Accordingly, the warrant is dismissed.