COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bray
Argued at Norfolk, Virginia
GEORGE FREDERICK DELANEY
v. Record No. 0594-94-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA JULY 5, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Theresa B. Berry (Samford & Berry, on brief), for
appellant.
Robert B. Beasley, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
George Frederick Delaney (defendant) was convicted by jury on
an indictment which charged concealment, third offense, a felony
pursuant to Code § 18.2-104. Defendant contends on appeal that the
indictment was not a proper vehicle to initiate and sustain the
felony prosecution and, therefore, the court erroneously admitted
evidence of prior convictions for "like offenses," elements of the
felony. We disagree and affirm the conviction.
The indictment in issue alleged unlawful concealment of "goods
or merchandise . . . [after] having previously been convicted at
least twice within the Commonwealth . . . of like offenses," a
felony in violation of former Code § 18.2-104(b). The former
statute further provided that the predicate convictions
indispensable to the felony must be specified "in the warrant or
information." Id. (emphasis added). Because the instant offense
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
was charged by indictment, defendant argues that the Commonwealth
"did not commence prosecution" for the felony in accordance with
the statute. Defendant, therefore, reasons that he was before the
court only "on a charge of misdemeanor concealment," and the prior
convictions were irrelevant and inadmissible with respect to that
offense. 1
Rule 3A:9 provides, in pertinent part, that
[d]efenses and objections based on defects in the
institution of the prosecution or in the written charge
upon which the accused is to be tried . . . must be
raised by motion made . . . at least 7 days before the
day fixed for trial . . . . Failure to present any such
defense or objection . . . shall constitute a waiver
thereof.
Id. (b),(c) (emphasis added). Defendant's challenge to the
efficacy of the indictment clearly constitutes a "defense[]" or
"objection[] based on [a] defect[] in the institution of the
prosecution" of the instant offense. Rule 3A:9(b). However,
defendant did not raise this issue until the day of trial, thereby
waiving "such defense or objection." Id.
Accordingly, we affirm the conviction.
Affirmed.
1
Former Code § 18.2-104 was subsequently amended to expressly
reference "warrant, indictment or information." Code § 18.2-104.
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