VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Thursday, the 8th day of June,
2006.
Commonwealth of Virginia, Appellant,
against Record No. 060138
Court of Appeals No. 2209-04-1
Holly Jo South, Appellee.
From the Court of Appeals of Virginia
Upon the petition of the Commonwealth of Virginia and a review
of the record, pleadings and the argument of appellant’s counsel,
the Court finds no merit to assignments of error I and II and
refuses the petition as to those assignments of error. The
appellee, however, concedes that appellant is correct as to its
third assignment of error, which reads as follows:
III. Assuming arguendo that the trial court erred in
convicting the defendant under the felony provisions of
the assault and battery statute, the Court of Appeals
erred in remanding the case for a new trial, instead of
simply remanding the case for a new sentencing proceeding
on the lesser included offense for which the petitioner
was validly convicted.
Accordingly, the petition is granted as to assignment of error
III, that part of the judgment of the Court of Appeals remanding
the case for a new trial is reversed, and the case is remanded to
the Court of Appeals with instruction to remand to the trial court
for a new sentencing proceeding on the lesser-included offense of
assault and battery, a Class 1 misdemeanor.
Justices Keenan and Lemons did not participate in the
consideration of this case.
This order shall be published in the Virginia Reports and
shall be certified to the Court of Appeals of Virginia and the
Circuit Court of the City of Norfolk.
A copy,
Teste:
Patricia L. Harrington, Clerk