Jefferson v. Commonwealth - Subject: The ban on convictions in Virginia for separate charges arising from the same act.
Facts: Jefferson was found guilty of carrying a concealed weapon and claimed that the conviction barred a subsequent prosecution for felon in possession of a firearm.
The Court: Unlike the 5th Amendment double jeopardy bar to subsequent prosecutions, Va. Code sec 19.2-294 relies on the acts of the accused, not the elements of the offense. There is only one act if the subsequent conviction relies on exactly the same evidence as the prior conviction. In order to pass the "same evidence" test the time, situs, victim, and nature of the act must be exactly the same. If there are separate legal disabilities there are separate "natures" and therefore separate acts.
Comment: Umm . . . er . . . And that's not a separate element test?
Clearly, having a "separate legal disability" is not an "act." An act is defined by my old trusty Webster as "anything done; an exertion of energy or force; deed." I realize that "act" can be stretched all out of shape (including things as far out as "acts of omission"). However, the most basic aspect, normal usage, and plain meaning of an "act" is a doing of something real: an activity. It is the driving of a car, the possessing of a gun, the embezzlement of funds. It is behavior defined by its purpose and the purposeful behavior is meant to accomplish a particular goal1. This goal is almost never violation of the law.
An act is inherently defined by its purpose. To redefine a single act as more than a single act because it triggers more than one legal disability is to define the act through the components of the legal disability rather than the purpose of the act. In other words, it is to define the act as acts because it violates two criminal definitions, not because two things were actually done; there are two "acts" because crimes with differing elements were contravened by the singular activity.
That's a seperate elements test.
1 I don't quite agree with Aristotle that every act aims toward a "good." Experience teaches that many goals are purely hedonistic in nature and therefore either nuetral to the good (amoral acts) or contrary to the good (immoral acts). Although, I do seem to remember him discussing those who know the good but developed or chose to pursue bad habits (been a while since I read Aristotle).