COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata
Argued at Salem, Virginia
MATTHEW SHANE PHILLIPS
OPINION BY
v. Record No. 1980-97-3 JUDGE SAM W. COLEMAN III
JUNE 30, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Donald A. McGlothlin, Jr., Judge
Thomas R. Scott, Jr. (Street, Street, Street,
Scott & Bowman, on briefs), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The sole issue in this appeal is whether appellant's
prosecution in circuit court for two felony charges of
distributing marijuana on school property was barred under the
provisions of Code § 19.2-294 due to two prior convictions in
general district court for distributing marijuana, which
convictions were based on the same acts. Code § 19.2-294
provides in pertinent part that "[i]f the same act be a violation
of two or more statutes . . . conviction under one of such
statutes . . . shall be a bar to prosecution or proceeding under
the other."
Matthew Phillips was charged with feloniously distributing
marijuana on school property (two counts), in violation of Code
§ 18.2-255.2. A week later, Phillips was charged with
distributing less than one-half ounce of marijuana (two counts),
misdemeanors, in violation of Code § 18.2-248.1, based on the
same acts as the felony charges. In a single proceeding in the
general district court, that court accepted Phillips' guilty plea
on the misdemeanor charges and certified the felony charges to
the circuit court, where the grand jury returned indictments. In
the circuit court, Phillips entered conditional guilty pleas on
the felony charges. On appeal, Phillips contends that under the
provisions of Code § 19.2-294, the two misdemeanor convictions
bar the Commonwealth from prosecuting him on the felony charges
based on the same acts. We disagree and affirm the convictions.
"Code § 19.2-294 . . . prohibits multiple convictions for
separate offenses arising out of the same act [or acts], except
where the convictions are obtained in a single prosecution."
Hall v. Commonwealth, 14 Va. App. 892, 900, 421 S.E.2d 455, 461
(1992) (en banc) (emphasis added). Because only a prior
conviction bars a subsequent prosecution, "Code § 19.2-294 does
not apply to simultaneous prosecutions." Slater v. Commonwealth,
15 Va. App. 593, 595, 425 S.E.2d 816, 820 (1993).
In Slater, we addressed whether Code § 19.2-294 precluded
the Commonwealth from prosecuting and convicting a defendant for
felony and misdemeanor charges arising from the same act or acts.
Slater was "simultaneously charged" with driving while under the
influence of alcohol, a misdemeanor offense, and driving after
having been adjudged an habitual offender, a felony offense. The
trial of the misdemeanor charge and the preliminary hearing on
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the felony charge were heard together in a concurrent proceeding
in the general district court. The general district court
convicted Slater on the misdemeanor charge and certified the
felony charge to the grand jury of the circuit court, where he
was indicted and subsequently convicted. This Court held that
Code § 19.2-294 did not bar the felony habitual offender
prosecution in circuit court. Noting that the general district
court lacked jurisdiction to adjudicate the felony charge, we
held that "[w]here charges are brought simultaneously, the
amenability of one to early conclusion while the other requires
further proceedings does not alter the fact that the proceedings
are concurrent, not successive, prosecutions." Id. at 595, 425
S.E.2d at 817 (citing Freeman v. Commonwealth, 14 Va. App. 126,
129, 414 S.E.2d 871, 873 (1992)). In so holding, we also
stated: "Many circumstances may determine the time within which
criminal charges are concluded. It is the time of institution
which determines whether multiple charges are simultaneous or
successive." Id. at 596, 425 S.E.2d at 817.
Relying on our statement in Slater that "the time of
institution . . . determines whether multiple charges are
simultaneous or successive," Phillips argues that the felony and
misdemeanor charges were successive because they were instituted
on different dates. Thus, he reasons, the Commonwealth violated
Code § 19.2-294 by convicting him for two separate statutory
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offenses in successive prosecutions. 1 We disagree.
Code 19.2-294, like the Fifth Amendment former jeopardy
protection, "was designed to prevent the [Commonwealth from]
subjecting an accused to the hazards of vexatious, multiple
prosecutions." Hall, 14 Va. App. at 899, 421 S.E.2d at 460. The
statute "prevents a prosecutor from subjecting an accused through
successive prosecutions to 'embarrassment, expense, ordeal and
compelling him [or her] to live in a continuing state of anxiety
or insecurity.'" Id. (quoting Grady v. Corbin, 495 U.S. 508, 518
(1990), rev'd on other grounds, United States v. Dixon, 509 U.S.
688 (1993)).
[B]y limiting its reach to successive
prosecutions for multiple offenses for the
same act, [the statute] prevents prosecutors
from using the prosecution of a minor offense
as a "dress rehearsal" for a more serious,
later prosecution. Consequently, Code
§ 19.2-294 protects against a second
prosecution or proceeding for separate
statutory offenses based on the same act
after there has been a conviction for one
offense. See North Carolina v. Pierce, 395
U.S. 711, 717 (1969).
Hall, 14 Va. App. at 899-900, 421 S.E.2d at 461 (emphasis added)
1
Phillips also contends the felony convictions violated the
Fifth Amendment's Double Jeopardy Clause. In our January 8, 1998
order granting in part Phillips' petition for appeal, we stated
that the legislature expressly indicated that "[a] defendant can
be prosecuted under both the general statute concerning the
distribution of marijuana and Code § 18.2-255.2. The trial court
did not err in denying appellant's motion to quash the felony
indictments on double jeopardy grounds." See Hall, 14 Va. App.
at 900, 421 S.E.2d at 461 (1992). Thus, because the question of
whether the felony convictions violated double jeopardy has been
decided, we denied the appeal of that issue. Accordingly, we may
not consider Phillips' double jeopardy claim. See Rule 5A:15.
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(other citation omitted).
Considering the legislative purpose for enacting Code
§ 19.2-294, we find that the controlling principle in Slater is
that both charges were prosecuted simultaneously or in a
concurrent proceeding despite "the amenability of the misdemeanor
charge to early conclusion" in general district court. The
Commonwealth does not subject the accused to the "hazards of
vexatious, multiple prosecutions" where it institutes felony and
misdemeanor charges separately but prosecutes them at the same
time in a single hearing before the court. Although arrest
warrants may be obtained on different dates, the Commonwealth
does not thereby impose a greater burden on the accused than when
it institutes the charges simultaneously. Moreover, the
Commonwealth does not receive a greater opportunity to rehearse
its evidence by instituting charges on separate dates. Borrowing
the "jurisdictional exception" from our double jeopardy
decisions, Slater held that Code § 19.2-294 does not apply where
the several crimes charged are not amenable to common
jurisdiction and cannot be heard in the same proceeding. See
Freeman, 14 Va. App. at 129, 414 S.E.2d at 873; Curtis v.
Commonwealth, 13 Va. App. 622, 629, 414 S.E.2d 421, 425 (1992)
(en banc). The fact that the charges in Slater were "lodged
simultaneously" does not control the outcome of this case. 2
2
In Slater, as in the present case, the misdemeanor and
felony charges were heard in a single prosecution in the general
district court where Slater was convicted of the misdemeanor and
the felony charge was certified to the circuit court grand jury.
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Admittedly, as the appellant points out, the Slater panel held,
based on the facts of that case, that because the charges were
initiated at the same time, the prosecutions for the offenses
were simultaneous or concurrent. We do not read the Slater
decision to hold that simultaneous initiation of charges is the
exclusive measure of whether convictions arise from a single
prosecution. We hold that the more significant and compelling
factor is whether the offenses were prosecuted in a single,
concurrent evidentiary hearing. Thus, where felony and
misdemeanor charges are instituted at separate times, but are
heard simultaneously in a single proceeding, they are part of a
single prosecution, even though jurisdictional limitations
necessitate that they be concluded in different courts.
Here, Phillips was charged with both felony and misdemeanor
marijuana distribution offenses arising out of the same acts.
The charges were heard together in the general district court.
Because the charges were not amenable to conclusion in the same
court, Phillips was convicted for the misdemeanor charge in
general district court and for the felony charge in circuit
court. Under the jurisdictional exception to Code § 19.2-294
recognized in Slater, we find that the charges were prosecuted as
part of a single proceeding. Where the charges are heard or
(..continued)
Slater leaves unanswered whether the simultaneous initiation of
charges would have continued to control had there been a
misdemeanor prosecution in the general district court separate
from the felony preliminary hearing.
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prosecuted together, the fact that they were initiated on
separate dates is a difference without a distinction.
Phillips asserted at oral argument that this case is
controlled by Wade v. Commonwealth, 9 Va. App. 359, 388 S.E.2d
277 (1990), in which we held that under Code § 19.2-294, a
conviction for obstruction of justice barred a prosecution for
capital murder when the offenses arose out of "the same act."
Although factually similar to this case because trial of the
misdemeanor charge and the preliminary hearing for the felony
charge occurred in a single prosecution, the sole issue and basis
for the decision in Wade was whether the offenses arose out of
"the same act." Slater was decided subsequent to Wade. In Wade,
neither the Attorney General nor appellant raised the issue
whether Code § 19.2-294 applied where there was a simultaneous or
concurrent prosecution in a single proceeding. Wade did not
consider whether the language of Code § 19.2-294 that only a
"conviction" would bar "a prosecution or proceeding" creates a
single or simultaneous prosecution exception to the statute's
bar. That issue was subsequently decided in Slater, and the
principles enunciated therein are controlling. Therefore, Wade
is inapposite to the issue before us.
Accordingly, we hold that the felony convictions for
distributing marijuana on school property were not barred by Code
§ 19.2-294 because of the misdemeanor convictions for
distribution of marijuana. The judgment of the circuit court is
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affirmed.
Affirmed.
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