Opinion

Brown v. Commonwealth

  • 222 Va. 111
  • 279 S.E.2d 142
  • 1981 Va. LEXIS 281
Court
Supreme Court of Virginia
Filed
Jun 12, 1981
Status
Published
Author
Poff
On the bench
Harrison, Poff
Cited by
19 cases

holding that “the proper remedy is to vacate both the conviction and sentence on the included offense, leaving the conviction and sentence on the greater offense intact” (citations omitted and emphasis in original)

How later courts described this case

  • holding that “the proper remedy is to vacate both the conviction and sentence on the included offense, leaving the conviction and sentence on the greater offense intact” (citations omitted and emphasis in original)

Written by the judges who cited it.

The opinion

POFF, J.,

concurring.

I concur in the result reached by the majority.

The defendant was convicted under the malicious wounding indictment of the lesser-included offense of unlawful wounding. As *117 sault and battery is a lesser-included offense of unlawful wounding. As the majority opinion demonstrates, the convictions for unlawful wounding and assault and battery were based upon the same evidence of the same conduct. Conviction of two offenses, one of which is lesser-included in the other, offends the double jeopardy guarantee. In such case, the constitution requires that the conviction of the lesser offense and the sentence imposed upon that conviction be vacated.

This rationale may be implicit in the majority opinion. I believe it should be explicit.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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