Crawford Leon Hairston v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: December 31, 1996
• Docket: 2777953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Elder and Bray Argued at Salem, Virginia

CRAWFORD LEON HAIRSTON MEMORANDUM OPINION * BY v. Record No. 2777-95-3 JUDGE RICHARD S. BRAY DECEMBER 31, 1996 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE Charles M. Stone, Judge Wayne T. Baucino (Office of the Public Defender, on brief), for appellant.

Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Crawford Leon Hairston (defendant) was convicted in a bench

trial for possession of a firearm while a convicted felon. On

appeal, defendant argues that the instant prosecution followed a

prior conviction in the general district court for possession of

a concealed weapon arising from the "same transaction" and,

therefore, was violative of Code § 19.2-294. Finding no error,

we affirm.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

Code § 19.2-294 provides that "[i]f the same act be a

violation of two or more statutes, . . . conviction under one of

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. such statutes . . . shall be a bar to a prosecution or proceeding

under the other or others." However, Code § 19.2-294 does not

preclude multiple convictions arising from the same act, provided

the related offenses are prosecuted simultaneously. See Slater

v. Commonwealth, 15 Va. App. 593, 595, 425 S.E.2d 816, 817

(1993); see also Freeman v. Commonwealth, 14 Va. App. 126, 129,

414 S.E.2d 871, 873 (1992). Moreover, "the amenability of one

[offense] to early conclusion while the other requires further

proceedings, does not alter the fact that the proceedings are

concurrent, not successive, prosecutions." Slater, 15 Va. App.

at 595, 425 S.E.2d at 817. "It is the time of institution which

determines whether multiple charges are simultaneous or

successive." Id. at 596, 425 S.E.2d at 817 (emphasis added).

Here, the criminal complaint alleging both the misdemeanor,

"[c]arry[ing] a [c]oncealed [w]eapon" in violation of Code

§ 18.2-308, and the felony, "[p]ossession of a [f]irearm [a]fter

[b]eing [a] [c]onvicted [f]elon" in violation of Code

§ 18.2-308.2, was lodged on July 18, 1995. Criminal process

appropriate to each offense thereafter issued, and the general

district court heard both charges on September 18, 1995,

convicting defendant of the misdemeanor and certifying "the 1 felony charged in [the] warrant" to the grand jury. Defendant

was subsequently indicted for "possess[ing] a firearm" after 1 The warrant alleged that defendant "did . . . possess a handgun or concealed weapon after being a convicted felon." (Emphasis added).

- 2 - "having been convicted of a felony." Thus, like Slater, the

prosecutions were instituted simultaneously, but "[t]he former

charge, being a misdemeanor, was amenable to early conclusion,"

while "[t]he latter, being a felony, required extended

proceedings." 15 Va. App. at 596, 425 S.E.2d at 817.

Defendant's contention that the felony charge was amended

after inception of the proceedings, thereby severing the

prosecutions, is without merit. Omission from the indictment of

the language in the warrant, "or concealed weapon," simply

removed surplusage, without affecting the substantive allegation.

Therefore, the felony prosecution continued, uninterrupted,

through a procedurally regular course from its genesis in the

criminal complaint to conviction in the trial court. Defendant misreads Wade v. Commonwealth, 9 Va. App. 359, 388

S.E.2d 277 (1990), to conflict with Slater. Slater addressed the

issue of simultaneous and successive prosecutions, whereas Wade

specifically discussed the "same act" component of Code

§ 19.2-294. Thus, our construction and application of Code

§ 19.2-294 in this instance is guided by Slater. See Burns v.

Commonwealth, 240 Va. 171, 173-74, 395 S.E.2d 456, 457 (1990).

Accordingly, the related misdemeanor and felony offenses

were prosecuted simultaneously, and the trial court correctly

determined that the disputed felony conviction did not violate

Code § 19.2-294.

Affirmed.

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