concurring and dissenting.
I join in Part II of the opinion; however, I do not join in Part I.
“[I]n any case where a defendant has been tried and convicted of an act [the defendant] has also conspired to commit, such defendant shall be subject to conviction only for the completed substantive offense and not thereafter be convicted for the underlying conspiracy.” Code § 18.2-23.1 (emphasis added). At the time the first conspiracy charge was tried, Bowman had been convicted of distribution of cocaine arising out of the incident that occurred on December 15, 1987. The proof established only one conspiracy to distribute cocaine, spanning August 1, 1987, through February 16, 1988. The December 15, 1987, incident was an overt act that Bowman committed in furtherance of the conspiracy to distribute cocaine.
The majority apparently reads Code § 18.2-23.1 to bar only a conspiracy prosecution in which the Commonwealth uses Bowman’s December 15, 1987, conduct to establish an overt act in furtherance of the conspiracy. According to the majority’s reasoning, a defendant could commit several distributions of cocaine during the course of a single conspiracy, could be tried and convicted of all but one of those completed substantive offenses of *268distribution, and, in a subsequent trial, be convicted of the underlying conspiracy through proof of the one remaining completed substantive offense of distribution. The statute does not permit such a result. See Boyd v. Commonwealth, 236 Va. 346, 350, 347 S.E.2d 301, 303 (1988)(the effect of § 18.2-23.1 is “to bar conviction in a subsequent trial for conspiracy after the accused had been tried and convicted in a previous trial of the consummated offense”) (emphasis added).
Where there has been a “conviction of an act [that the defendant] has also conspired to commit,” the statute bars conviction “for the underlying conspiracy.” Code § 18.2-23.1 (emphasis added). The underlying conspiracy in this case was implementation of the agreement to distribute cocaine. It is the agreement which “is the essence of the conspiracy offense.” Zuniga v. Commonwealth, 7 Va. App. 523, 528, 375 S.E.2d 381, 384 (1988). In its conclusion that only one conspiracy existed, the majority tacitly acknowledges the existence of only one underlying agreement. The December 15, 1987, incident for which Bowman has been convicted was a manifestation and an object of the agreement to distribute cocaine and done in furtherance of the agreement. That agreement forms the basis of the conspiracy conviction that the majority now upholds. Because Bowman has been convicted of a completed substantive offense, Code § 18.2-23.1 bars the prosecution for that underlying conspiracy.
Accordingly, although I agree with the majority’s conclusion that the first conspiracy conviction bars the second conspiracy prosecution on double jeopardy grounds, for the reasons stated above, I would reverse both conspiracy convictions and dismiss the indictments.