Finding the 85%

Virginia law requires anyone convicted of a felony to serve 85% of the time he is sentenced to serve. We all know this. It was part of the Truth in Sentencing reforms that went into place in 1995 and we've all told officers, defendants, victims and judges that it's 85% ever since.

And then comes the day I have to prove it. I know where it's going to be in the code: Title 53.1. - Prisons and Other Methods of Correction, Chapter 6 - Commencement of Terms; Credits and Allowances. Or at least I think I do. 

Articles 2 and 3 of Title 53.1 are about the old parole systems, although each of them has been specifically limited to convictions prior to 1995. Article 1 is just comprised of general statutes. That means the 85% limitation must be somewhere in Article 4: Earned Sentence Credits for Persons Committed Upon Felony Offenses Committed on or After January 1, 1995.

Only I can't find 85% anywhere. I do a search of the entire Title for 85% - no luck. I do a search for 15% - no luck. Stymied, I go off to other less likely titles. I do the same searches in Title 19.2 (Criminal Procedure) - nope - and then go on to 18.2 (Criminal Law). Nope again. Getting a little desperate, I even go off to read the sentencing guidelines statutes, §§ 17.1-800 through 17.1-806, to no avail.

There being no other options, I read all of Article 53.1, including the parts no longer applied in modern courts, sure that 85% will be tucked in some nook or cranny. No. Then I read it again. No 85% anywhere.

Long before I got to this point, I became well and truly convinced that it was somewhere in something I'd read. And reread. And reread. So, I decided to alter the way I was examining the statutes. I started looking at every number laid out in them to see if that could lead me to what I was missing.

Et voilà! Eureka! Bingo! Gadzooks!

It was in § 53.1-202.3. In fact, it was the first sentence of § 53.1-202.3: "A maximum of four and one-half sentence credits may be earned for each 30 days served." (a sentence credit is a day)

That is an unnecessarily strained and just out-and-out weird way to say "only 15% of a sentence may be subtracted for good behavior." They could at least use a ten day example so the math would be easier: "A maximum of one and one-half sentence credits may be earned for each 10 days served."

AAAAaaaaaarrrggg!!!!!! 

An hour of searching down the drain because of awkward, strange wording. Oh well, if math were easy everybody could do it. At least everybody but me.

And lunch break is 5 minutes from ending so I've actually got to go do the stuff I get paid to.

Mislaid / Lost Property: Stealing Something "Left Behind"

Every prosecutor has run across this situation: Lady goes to store. At checkout, she takes her pocket book out and lays it down on the counter whiles she writes a check or gets her cash or debit card out. Lady then walks away and leaves the pocket book behind. Person 2 then grabs the pocket book and walks out of the store.

Unfortunately, this scenario (with infinite minor variations) happens all too often and people get mightily confused as to whether a larceny has occurred. 

It has.

An analysis of this situation initially requires an answer to the question: is the property abandoned, lost, or mislaid? Abandoned property obviously cannot be stolen. By the very nature of abandonment, the prior owner has forsaken all claims to the property. However, if  (a) the property's owner is identifiable, and  (b) it is lost or mislaid, then under Virginia common law the person who takes it has committed a criminal act (larceny).

Just so we all know, lost property is the accidental placing of a property in a location where the owner does not know its location (wallet falls out of owner's pocket) while mislaid property is the purposeful placing of an item in a location and accidental leaving of it (wallet put down on store counter). At common law this seemed to have some determination as to whether an item was stolen because personalty mislaid was deemed to be recoverable by its owner. However, the distinction between lost and mislaid does not seem to be present in modern jurisprudence. See e.g. State v. Moore, 46 N.C.App. 259 (1980).

Virginia seems to have rejected this difference in Tanner v. Commonwealth, 55 Va. 635 (1857). In this case, the Virginia Supreme Court shifts the test from "mislaid or lost" to "is the owner identifiable?"

In Tanner, the Court sets out a general common law rule that "lost property may be the subject of larceny; and that if a taking and fraudulent intent coexist with a knowledge of the owner, the crime is complete." Tanner's counsel argues that this rule is wrong and only mislaid property can be stolen. However, the Court rejects this stating:

[W]here goods are actually lost by the owner, his property is not divested; and such property draws to it the constructive possession. If in such case the original taking was felonious, with intent to take entire dominion over them at the time, and the finder at the time of taking either know the owner, or from the place where the property is found, or evidence of his previous acquaintance with the ownership of it, or the nature of the marks on it, have the means of ascertaining the owner, or have reason to believe he can be found, the taking under such circumstances with such intent and knowledge is tortious. Such possession being tortious, the taking by which it was acquired is not a lawful taking, and therefore trespass may be maintained by the owner against the taker.

 "Trespass", for those of you not up on old legal speak, is what larceny is - trespass upon the property rights of another's personalty. Et voilà, taking lost property with an identifiable owner is larceny. The analysis of the case then turned upon whether the property found had an identifiable owner. The Court determines that it did not and overturns the conviction.

In most modern cases, lost wallets, purses, pocket books, etc. will have a driver's license and or other identification in them and therefore the taking of these items will clearly qualify as larceny. However, if you find that $500 bill blowing across a parking lot or a generic gold ring while out with your metal detector at the park you haven't committed any crime because there is no identification present.

Tanner v. Com., 55 Va. 635, 636 (1857)

lost property may be the subject of larceny; and that if a taking and fraudulent intent coexist with a knowledge of the owner, the crime is complete.

Tanner v. Com., 55 Va. 635, 636 (1857)

Felony Petit Larceny Does Not Require Prior Conviction Events

Virginia Code sections 18.2-96 and 18.2-104 set out the punishments in Virginia for the crime of petit larceny. Under 18.2-96, s person convicted of stealing something under a certain value ($200 currently and $500 as of 01 July 2018) is subject to up to 12 months in jail. Under 18.2-104, a second conviction is punished by the same maximum, but requires a 30 day sentence (which the judge can still suspend). A third or subsequent offense is a felony carrying up to 5 years in prison. When the amount of money needed to trigger a grand larceny (felony carrying up to 20 years in prison) changes to $500 on 01 July 2018, the "felony petit larceny" provision is likely to come into more common use than it has been in the recent past.

In particular, there is an interesting question as to whether a defendant must have been convicted of two larcenies during a prior sentencing event (or events) before he can be charged and convicted of a felony 3rd offense petit larceny. Specifically, can an indictment charge in count one that on 01 March 2018 the defendant committed a petit larceny, in count two that the defendant committed a petit larceny on 01 April 2018, and then on counts three thru five charge the defendant with felonies for petit larcenies he committed on 01 May 2018, 01 June 2018, and 01 July 2018?

The answer? Yes, you can.

Attorneys all over Virginia who just read that called me rude names and threw fruit at their monitors in the vain hope that it will somehow go through the interwebs and hit me in the face. Why? Because they're all sure it doesn't work that way. Why do they make that assumption? Because they haven't read the statute closely. So, let's look at the statute:

§ 18.2-104. Punishment for conviction of misdemeanor larceny.

Subordinate Clause A	When a person is convicted of an offense of larceny or any offense deemed to be or punished as larceny under any provision of the Code, and it is alleged in the warrant, indictment or information on which he is convicted, and admitted, or found by the jury or judge before whom he is tried, that he has been before convicted in the Commonwealth of Virginia or in another jurisdiction for any offense of larceny or any offense deemed or punishable as larceny, or of any substantially similar offense in any other jurisdiction, regardless of whether the prior convictions were misdemeanors, felonies or a combination thereof,
Independent Clause A	he shall be confined in jail not less than thirty days nor more than twelve months
Bridge	; and
Subordinate Clause B	for a third, or any subsequent offense,
Independent Clause B	he shall be guilty of a class 6 felony.

Clearly, there are two independent clauses at work here (or coordinate clauses if you prefer the older nomenclature). Both Independent Clause A and Independent Clause B can stand alone as sentences. However, both require some elucidation and that is provided in both by the subordinate clauses which precede each. This parallel construction must be considered because it indicates that the ideas expressed on both sides of the bridge are equally important - neither is subordinate to the other.  This is further supported by the use of the semicolon in the bridge as a semicolon is by its very definition "a punctuation mark; used chiefly in a coordinating function between major sentence elements (such as independent clauses of a compound sentence)."

Grammatically, then, it becomes clear that the two parts of the statute separated by the bridge have little to do with each other beside both of them fulfilling the mandate of the statute's title: "Punishment for conviction of misdemeanor larceny."  Thus, the entirety of the requirement for a felony petit larceny conviction is:

for the third, or any subsequent offense, he shall be guilty of a class 6 felony

 The reason this is important is that the felony does not require prior convictions. It only requires two prior offenses. Therefore, our theoretical indictment above wherein the defendant was charged with misdemeanors for petit larcenies on 01 March 2018 and 01 April 2018, and thereafter charged with felony petit larcenies for 01 May 2018, 01 June 2018, and 01 July 2018 would be valid because the third, and subsequent, offenses occurred after the first two.

Another proof of this is to examine the two segments of the statute as conditional statements.  In order to accomplish this we must examine the opening words of each segment. The defining part of Subordinate Clause A is "When." Similarly, "for" is the defining part of Subordinate Clause B. "When" carries a meaning of "at a point in time at which."  "For" carries a meaning of "because of." Both words set up a conditional statement (more colloquially, an if then statement). 

---

(if)	[Condition X]	(then)	[Result X]
"When" at a time at which	a person is convicted of an offense of larceny or any offense deemed to be or punished as larceny under any provision of the Code, and it is alleged in the warrant, indictment or information on which he is convicted, and admitted, or found by the jury or judge before whom he is tried, that he has been before convicted in the Commonwealth of Virginia or in another jurisdiction for any offense of larceny or any offense deemed or punishable as larceny, or of any substantially similar offense in any other jurisdiction, regardless of whether the prior convictions were misdemeanors, felonies or a combination thereof,	(then)	he shall be confined in jail not less than thirty days nor more than twelve months

---

(if)	[Condition Y]	(then)	[Result Y]
"for" because of	a third, or any subsequent offense,	(then)	he shall be guilty of a class 6 felony.

---

Condition X and Condition Y are exclusive conditions leading to exclusive results. Condition X requires allegation and proof of a single prior larceny conviction. This triggers a specific misdemeanor punishment under Result X. Condition Y requires a third offense to trigger Result Y. As well, although not stated in the statute, constitutional due process would require an indictment under the second segment to state that two prior offenses had occurred because it is the aggravating factor which must be proven in order impose the greater, felony punishment. Basically, this means that the difference between Condition X and Condition Y is that X requires proof of a prior conviction while Y requires proof of two prior offenses whether previously convicted or not. Each distinct condition is then tied to its distinct result.

This promises to become a much hotter area of the law as the amount stolen to trigger a felony rises to $500 on 01 July 2018 in Virginia. At least it does for felony petit larceny. Misdemeanor aggravated petit larceny will continue to be basically ignored. And it should be. There's no reason to fight that battle because there is no significant change in punishment. Sure, the punishment rises from 0 days to 12 months in jail to 1 to 12 months in jail, but it's not a mandatory minimum sentence and thus a judge can suspend every single day of it and therefore it's just a false face on the same punishment.

However, misdemeanor larcenies will start showing up with significant levels of theft involved. There''ll be shopliftings at $400+ and lots of stuff that people steal back and forth from each other (X-boxes, Play Stations, lawn mowers, grills, portable computers) are now going to fall into the misdemeanor category while still representing a huge cost to the person from whom they were stolen. There is going to be a real incentive to start pursuing those third offense felony petit larcenies.

Let the games begin!