Brandon Lee Shifflett v. Commonwealth of Virginia ( 2000 )


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  •                         COURT OF APPEALS OF VIRGINIA
    Present: Judges Coleman, Elder and Annunziata
    Argued at Richmond, Virginia
    BRANDON LEE SHIFFLETT
    MEMORANDUM OPINION * BY
    v.   Record No. 2702-99-2                   JUDGE LARRY G. ELDER
    DECEMBER 28, 2000
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
    Paul M. Peatross, Jr., Judge
    Llezelle A. Dugger, Assistant Public Defender
    (Office of the Public Defender, on brief),
    for appellant.
    Thomas D. Bagwell, Senior Assistant Attorney
    General (Mark L. Earley, Attorney General, on
    brief), for appellee.
    Brandon Lee Shifflett (appellant), indicted for attempted
    statutory burglary with intent to commit assault and battery in
    violation of Code §§ 18.2-26 and 18.2-91, appeals from his
    conviction for trespass in violation of Code § 18.2-119.     On
    appeal, he contends the evidence was insufficient to support the
    trespass conviction.    The resolution of this case is governed by
    our recent decision in Lowe v. Commonwealth, 
    33 Va. App. 583
    ,
    592, 
    535 S.E.2d 689
    , 693 (2000), in which we held that trespass
    in violation of Code § 18.2-119 is not a lesser-included offense
    of Code § 18.2-91 and that a trial court lacks the authority to
    * Pursuant to Code § 17.1-413, this opinion is not
    designated for publication.
    convict for trespass under an indictment charging breaking and
    entering even if the accused fails to object.    Thus, we reverse
    and dismiss appellant's trespass conviction.
    "'The lack of authority of the trial court to render the
    judgment that it did may be raised at any time by this Court on
    its own motion.'"    Lowe, 
    33 Va. App. at 589
    , 
    535 S.E.2d at 692
    (quoting Fontaine v. Commonwealth, 
    25 Va. App. 156
    , 165, 
    487 S.E.2d 241
    , 244 (1997) (noting such lack of authority is an
    absence of jurisdiction)).
    "The fact that the defendant did not object
    to . . . the conviction on the ground that
    he was convicted for an offense with which
    he was not charged is of no moment. Unless
    an indictment is amended to conform to the
    proof or an accused acquiesces in being
    found guilty of an offense other than the
    one charged, a trial court lacks the
    authority to find an accused guilty of an
    offense other than the one charged or a
    lesser included offense."
    Id. at 589, 
    535 S.E.2d at 691-92
     (quoting Fontaine, 
    25 Va. App. at 165
    , 
    487 S.E.2d at 244
    ).   Further, "[a]cquiescence requires
    something more than a mere failure to object."    Id. at 589, 
    535 S.E.2d at 692
    .   Where a defendant is convicted of the charged
    felony and "implore[s]" the court to set aside the felony
    conviction and find him guilty instead of a misdemeanor not
    lesser-included in the charged felony, the defendant may not be
    heard to object.    Manns v. Commonwealth, 
    13 Va. App. 677
    , 679,
    
    414 S.E.2d 613
    , 614-15 (1992).    Such an action constitutes, in
    essence, the defendant's request to the trial court to amend the
    - 2 -
    indictment, thereby permitting conviction for the unrelated
    misdemeanor.   However, a mere statement to the judge seeking to
    clarify that one's ultimate conviction was for a misdemeanor
    rather than the felony for which he was indicted does not
    constitute acquiescence.    See Fontaine, 
    25 Va. App. at 165
    , 
    487 S.E.2d at 244
    .
    Here, appellant's counsel argued the evidence was
    insufficient to prove either an attempt to break and enter or an
    intent to commit an assault and battery.   The trial court then
    asked counsel whether it could convict appellant of trespassing,
    and counsel argued the evidence was insufficient to prove the
    elements of that offense.   No discussion occurred regarding
    whether trespass in violation of Code § 18.2-119 was a
    lesser-included offense of attempted breaking and entering in
    violation of Code § 18.2-91, and thus, appellant did not
    acquiesce in being convicted for trespass.
    The trial court lacked the authority to convict appellant
    of trespass, see Lowe, 
    33 Va. App. at 592
    , 
    535 S.E.2d at 693
    ,
    and we reverse and dismiss appellant's conviction.
    Reversed and dismissed.
    - 3 -
    

Document Info

Docket Number: 2702992

Filed Date: 12/28/2000

Precedential Status: Non-Precedential

Modified Date: 4/18/2021