The trial is set for the afternoon; that morning I go talk to the prosecutor. I point out that my client had not been convicted of an HO 1st before he was charged with this HO 2d. "Doesn't matter", says the prosecutor and hands me Thomas v. Commonwealth to read. I glance it over and it seems like what he's saying is correct. Anyway, I don't have time to read it right then and we work the felony down to a misdemeanor for other reasons.
Later, I go back to read the opinion. The question is:
The main issue in this appeal is whether §46.2-357(B)(3) subjects a defendant to the specified enhanced punishment for a subsequent offense if, at the time of commission of that offense, the defendant has not been convicted of the earlier offense.The answer:
The statute does not require that for a first offense to be cognizable as such, it must not only occur prior to the second offense, but also result in conviction prior to the occurrence of the second offense.Basically, the Virginia Supreme Court decides that since the statutory language calls for a punishment for a second offense rather than a second conviction it is the date of the offenses which matter, not the convictions.
Actually, this confirmed that my client was not guilty of HO 2d. His first "offense" was the one we were going to court over. He'd been arrested on the charge in Copperton County on 20 September 2005 (my charge). He was arrested in Prestonville on 4 October and they convicted him of the misdemeanor a week later (talk about swift justice). He was now facing the Copperton charge.
When we get to court I point this out to the prosecutor and his response is, "That can't be the right reading. If it were, the defendant could be found guilty of the second offense and then not guilty of the first." So, I reread it. And it stands for exactly what I said above. And I agree with the prosecutor's assessment of the result. A defendant can be charged with a first time HO. Then a couple days later he is charged with a second HO. For some reason the second goes to trial before the first, the defendant is convicted and he is sentenced to the mandatory year. A month later there is a trial on the first HO and it turns out that Defendant's brother had been driving the car and gave a false ID to avoid his own warrants (it happens more than we'd care to believe); Defendant is found not guilty of the HO 1st. There is no basis for the HO 2d, but he's already got that year long sentence.
I guess Defendant could file for a writ of actual innocence, but, of course, by the time that worked its way through the appellate system he will probably have served his year.