28 January 2014

Hudgins and the Various Felony Larcenies

I was wondering about the double jeopardy parameters of the various felony larceny offenses today, so I did a little research and tripped across the Hudgins decision. The answer is, all felony larcenies can be charged side by side if they apply to the same act.

Let's work through an example of this. An inveterate thief in Pitcairn County steals a Rhodesian Ridgeback puppy worth $1,000.  There are three possible charges here. Under 18.2-95 (grand larceny), stealing something worth more than $200 is a felony punishable by up to 20 years in prison. Under 18.2-104 (subsequent larceny), a third or subsequent larcenous offense is a felony punishable by up to five years in prison. Finally, under 18.2-97, stealing any dog is a felony punishable by up to ten years in prison.

Typically, the thief will just get charged with grand larceny. However, under the Hudgins decision, although they all arise out of the same act and each have the same included lesser crime (petit larceny), the thief can be charged with each crime because each has a separate element. 18.2-95 has a value element. 18.2-104 has a multiple priors element. 18.2-97 has a dog element.

Real world applications of this are interesting.  In a great number of cases wherein the defendant is charged with grand larceny he could also be charged with subsequent larceny. However, once the value of the stolen item is established as at least $200 everyone just defaults to grand larceny. Grand larceny carries the greater punishment. It also has a greater effect on the sentencing guidelines - especially if the defendant has enough of a criminal history or has currently committed enough offenses to bypass worksheet B and go to worksheet C. This means that as a binary decision - requiring a choice of either grand larceny or subsequent larceny - there is an advantage to charging grand larceny.

Also, in a binary decision, the only real advantage to charging subsequent larceny is one at trial. In Virginia, the courts have a clear line of precedent which does not allow the defendant to stipulate that predicate convictions have occurred. Therefore, in trial the Commonwealth can introduce all of the defendant's prior larcenous convictions in order to prove the element of prior convictions. Yet, since most larcenies are pretty cut and dried and don't actually go to trial, faced with a binary choice law enforcement and prosecutors would not choose subsequent larceny.

But, it's not a binary decision. When charged at the same time the prosecution gains the advantage of both the greater punishment and guidelines for grand larceny as well as the trial advantages of subsequent larcenies. I'm not sure why we don't see more of this. Perhaps there is a continuing pre-Hudgins perception that since both contain the lesser offense of petit larceny that they cannot be charged contemporaneously without violating double jeopardy.

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