Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and Agee,
JJ., and Carrico, S.J.
ROBERT OVERBEY, III
OPINION BY
v. Record No. 050478 SENIOR JUSTICE HARRY L. CARRICO
January 13, 2006
COMMONWEALTH OF VIRGINA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal involves the indictment and conviction of the
defendant, Robert Overbey, III, on a charge of possession of a
firearm by a convicted felon. Code § 18.2-308.2. The controlling
question for decision is whether the Commonwealth proved the
defendant had been previously convicted of a felony as required by
subsection (A)(i) of that statute. Finding that the Commonwealth
failed to prove this necessary element of the crime, we will reverse.
At the defendant’s trial on the weapons charge, the Commonwealth
introduced into evidence a copy of a petition filed on October 24,
1996, in the Juvenile and Domestic Relations District Court of the
City of Hampton (the juvenile court). Attached to the petition in
the record are two pages of notes relating to the proceedings in the
juvenile court. These papers show that the defendant, then 17 years
of age, was charged with two offenses, the felony of burglary with
the intent to commit larceny and the misdemeanor of petit larceny
arising out of the same incident. The signature of the judge of the
juvenile court appears after each day’s entry on the notes. At the
top of each page, both the burglary and the larceny charges are
listed, with the respective case number of each charge.
An entry in the notes for February 20, 1997, states that the
defendant is “now 18 yrs of age & atty is prepared to proceed w/o a
parent being present,” that “[p]lea [of] guilty [and] stip[ulated]
evid[ence] suff[icient] to convict,” and that “[b]ased on the plea of
guilty, stip[ulation] & summary of evid[ence], Ct finds def guilty
and refer for PO report.” After the probation officer’s report was
received, the defendant was sentenced pursuant to Code § 16.1-284 to
12 months in jail, suspended for two years on condition that he “be
of good behavior & complete 50 hours in the CDI program."
At his trial on the weapons charge, the defendant did not object
to the introduction of the juvenile court petition and the attached
notes. He did, however, strenuously argue that the “notes are
ambiguous” and insufficient to show he had been previously convicted
of a felony.
He makes the same argument here. He points out that the
paperwork submitted by the Commonwealth made reference to two
charges, one for the felony of burglary and the other for the
misdemeanor of petit larceny, and the notes listed both charges and
recited the case number for each. The defendant states that the
notes show he entered a plea of guilty and stipulated the evidence,
but the plea was in the singular and the notes failed to specify to
what offense he pled guilty or what evidence he stipulated. The
defendant says he “may have pled guilty to the burglary, or he may
have pled guilty to the petty larceny, or conceivably he may have
pled guilty to both offenses.” The defendant concludes that “[i]t is
impossible to say with certainty to what [he] pled guilty” or of what
offense he was convicted.
Responding, the Commonwealth says it is clear the defendant was
charged with the felony of burglary in the juvenile petition and “it
is just as clear that the court accepted a guilty plea to both the
burglary charge and the petit larceny charge based on the handwritten
pages,” and nothing suggests “the court proceeded on anything other
than both the original charges.” Continuing, the Commonwealth states
that “[a]lthough the notes reflect that the defendant was found
guilty ‘based on the plea of guilty,’ rather than ‘pleas of guilty,’
the use of the singular noun in no way suggests that one charge was
dismissed or nolle prossed.” Furthermore, says the Commonwealth,
“the fact that there is one sentence in no way suggests that the
defendant was only convicted of one crime” since “it is clear from
the language of Code §16.1-284 that the juvenile court was well
within its province to sentence the defendant to twelve months in
jail, suspended, for both the burglary and the petit larceny.”1
1
Code § 16.1-284 provides that “[w]hen the juvenile court
sentences an adult who has committed, before attaining the age of
eighteen, an offense which would be a crime if committed by an adult,
the court may impose penalties which are authorized to be imposed on
adults for such violations, not to exceed the punishment for a Class
1 misdemeanor for a single offense or multiple offenses.” The
We agree with the defendant that the language of the notes is
ambiguous. “Language is ambiguous when it may be understood in more
than one way, or simultaneously refers to two or more things. If the
language is difficult to comprehend, is of doubtful import, or lacks
clearness and definiteness, an ambiguity exists.” Supinger v.
Stakes, 255 Va. 198, 205, 495 S.E.2d 813, 817 (1998) (citation and
inner quotation marks omitted). Furthermore, “[w]hen the fact of a
prior conviction is an element of a charged offense, the burden is on
the Commonwealth to prove that prior conviction beyond a reasonable
doubt,” and “[a] court may not engage in conjecture or surmise in
determining the offense for which a defendant was convicted.” Palmer
v. Commonwealth, 269 Va. 203, 207, 609 S.E.2d 308, 310 (2005).
Here, the notes of the juvenile court judge simultaneously refer
to two or more things, i.e., burglary and petit larceny, and the
language can be understood to mean that the defendant pled guilty to
burglary alone, or that he pled guilty to petit larceny alone, or
that he pled guilty to both offenses. Hence, the language of the
notes is of doubtful import and is lacking in clearness and
definiteness. In these circumstances, the trial court had to engage
in pure conjecture or surmise to determine, as the Commonwealth
contends, that the defendant pled guilty to both burglary and petit
punishment for a Class 1 misdemeanor, as prescribed by Code § 18.2-
11(a), is confinement in jail for not more than twelve months and a
fine of not more than $2,500, either or both.
larceny. The trial court thus erred in concluding the Commonwealth
proved the necessary element of a prior felony conviction.
Because the Commonwealth failed to prove that the defendant had
been previously convicted of a felony, we will reverse the judgment
of the trial court and enter final judgment here dismissing the
defendant’s indictment for possession of a firearm by a convicted
felon.2
Reversed and final judgment.
2
In view of this disposition, we need not consider the
defendant’s additional claim that the “document from the juvenile
court was [not] in fact an order of conviction.”