Crawford Leon Hairston v. Commonwealth ( 1996 )

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
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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).
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"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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