Opinion
Record No. 0487-93-3
Decided: June 28, 1994
FROM THE CIRCUIT COURT OF THE CITY OF SALEM, G.O. Clemens, Judge
Affirmed.
Harry F. Bosen, Jr. (Vincent A. Lilley, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Coleman, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Jimmy Gene Link (Link) appeals his conviction in a bench trial for petit larceny, Code Sec. 18.2-96, for which he received an enhanced sentence pursuant to Code Sec. 19.2-297 on the finding by the trial judge that Link had two prior larceny convictions. Link does not dispute the sufficiency of the evidence to support his conviction for petit larceny. Rather, he asserts that the Commonwealth failed to prove that the two predicate offenses used to enhance the penalty for his conviction pursuant to Code Sec. 19.2-297 were "for any larceny or any offense deemed to be larceny" as required by that code section. For the reasons that follow, we affirm Link's conviction and the enhancement of his sentence.
The record shows that in separate cases arising in the County and City of Roanoke respectively, Link was convicted of violating Code Sec. 18.2-178. The sentencing orders from those two convictions contain identical language stating that Link "[stood] convicted of a felony, to-wit: Obtain Money by False Pretense . . . ."
Link asserts, and we agree, that Code Sec. 18.2-178 describes two separate crimes:
If any person obtain, by any false pretense or token, from any person, with intent to defraud, money or other property which may be the subject of larceny, he shall be deemed guilty of larceny thereof; or if he obtain, by any false pretense or token, with such intent, the signature of any person to a writing, the false making whereof would be forgery, he shall be guilty of a Class 4 felony. (Emphasis added.)
The crime of forgery described in the latter clause of the statute is a distinct crime from the larceny crime described in the former. See Bateman v. Commonwealth, 205 Va. 595, 600, 139 S.E.2d 102, 106 (1964).
Link asserts that because his sentence was appropriate for a Class 4 felony, it cannot be presumed that he was convicted of the larceny crime rather than the forgery crime. We disagree.
It is well established in this Commonwealth that a court speaks through its written orders. Guba v. Commonwealth, 9 Va. App. 114, 118, 383 S.E.2d 764, 767 (1989). Any court subsequently required to review an order of another court must presume that it is a final pronouncement on the subject addressed therein. See Kern v. Commonwealth, 2 Va. App. 84, 88, 341 S.E.2d 397, 400 (1986). Here, the prior conviction orders clearly reflect that Link was convicted of obtaining money by false pretenses which is a larceny crime under Code Sec. 18.2-178. Nothing in these orders refers to obtaining a signature by false pretenses.
Link contends that the use of the term "Obtain Money by False Pretense" in the conviction orders does nothing more than recite the title of the code section under which he was convicted. This contention is without merit. The trial court could reasonably infer that through their orders the prior trial judges intended to state the specific crime of which Link stood convicted, namely the larcenous crime of obtaining money by false pretense.
We note further that the actual title of Code § 18.2-178 is "Obtaining money or signature, etc., by false pretense." Thus, to accept Link's contention, we would not only have to accept that the trial judges did not intend their orders to have the meaning of the plain wording therein, but that they misstated the meaning that Link would assign to their words.
The fact that Link's sentence was appropriate for a Class 4 felony does not negate the conclusion that he was convicted of larceny by false pretense. The sentencing order from Roanoke County shows that the restitution ordered was an amount the theft of which would qualify as grand larceny and the sentence given was appropriate for that crime. Although the Roanoke City conviction does not state a specified amount of restitution, the fact that restitution is called for in that order supports, rather than contradicts, the finding that the crime was larcenous in nature.
For these reasons, Link's conviction is affirmed.
Affirmed.