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 felonyThe 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!