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Court Addresses Defendants’ Appeals Based on Successive Prosecutions in Virginia Gun Case

On Behalf of | Jan 5, 2021 | Court Procedure, Weapons Offenses

The Commonwealth has various statutes that govern Virginia gun offenses. The statutes delineate what constitutes a weapon or firearm, who can possess the weapon, and what processes the owner must go through to obtain and maintain a firearm legally. Further, criminal laws address what actions constitute a Virginia weapons offense and the commiserate punishment for violating a statute. These laws typically involve the complicated interplay between various statutes, and it is essential that those accused of a Virginia gun offense contact a dedicated criminal defense attorney.

For example, recently, the Court of Appeals of Virginia issued an opinion in the combined appeals of two defendants arguing that Virginia’s successive prosecution code bars their prosecutions for possession of a firearm by a convicted felon. In this case, two defendants argued that the court should dismiss their convictions for possession of a firearm as a convicted felon.

At issue was Virginia Code section 19.2-294, which covers dual charging. The code addresses limiting prosecutions in cases where double jeopardy is irrelevant. Specifically, if a defendant’s act is a “violation of two or more statutes or two or more ordinances,” conviction under one of the statutes or ordinances “shall be a bar to a prosecution proceeding under the other or others.” Moreover, if the offense is a violation of a statute and federal statute, prosecution under the federal statute will bar prosecution under the state statute. The statute is designed to prevent an accused from multiple prosecutions. However, unlike double jeopardy rules, the statute does not consider the elements of an offense, and instead limits prosecution to an act instead of a crime. It only applies if there has been a “conviction,” not just a proceeding or prosecution.

In this case, both defendants were convicted in separate proceedings for carrying a concealed weapon and possessing a firearm as a convicted felon in a subsequent prosecution. The cases hinge on whether “possession” of a firearm is the “same act” as “concealing” a weapon. The court found that possessing firearms is a separate act from concealing them. Reasoning that brandishing a weapon is different from concealing it, and similarly concealing a weapon is different from possessing it. Therefore, the two prosecutions did not stem from the “same act.” Because of this, concealing a weapon is separate from possessing, and the successive prosecution statute does not bar the defendants’ prosecutions.

Have You Been Charged with a Virginia Criminal Offense?

If you or someone you know is facing gun charges, you should contact the attorneys at Robinson Law, PLLC. The criminal defense attorneys at Robinson Law have over 50 years of combined experience handling various criminal cases, including Virginia drug offenses, violent crimes, and more. The attorneys at our law firm have successfully represented adult and juvenile defendants in cases stemming from Virginia assault and battery cases, domestic assaults, drug charges, federal crimes, larceny, probation violations, traffic crimes, and sex offenses. The top Virginia lawyers at our office understand that each client and case deserves individualized attention and strategic case preparation. You can rest assured that you have a diligent and zealous advocate on your team. Contact our office at 703-542-3616 to schedule a free consultation with an attorney at our law firm.