Larry Joe Dargan, Jr. v. Commonwealth

500 S.E.2d 228, 27 Va. App. 495, 1998 Va. App. LEXIS 321

Opinions

ELDER, Judge,

with whom ANNUNZIATA, J., joins, concurring.

I concur in the result but only because the sentence imposed by the jury pursuant to the erroneous instruction was the maximum term that would have been imposed under that instruction and the time set aside by the trial court resulted in the maximum sentence allowable by law. Because the jury imposed the maximum sentence authorized by the erroneous instruction, the trial court could ascertain by “[c]ommon sense and reason” what sentence the jury would have imposed had it been properly instructed. Deagle v. Commonwealth, 214 Va. 304, 306, 199 S.E.2d 509, 511 (1973). However, if the jury had imposed any sentence under the erroneous instruction other than the maximum, the court would have been forced to resort to speculation to determine what the jury’s sentence would have been. In such a case, I would remand for resentencing.