Opinion
42505 Record No. 7470.
June 14, 1971
Present, Snead, C.J., I'Anson, Gordon, Harrison, Cochran and Harman, JJ.
Criminal Law — Recidivist — Three Convictions.
Not error in 1969 to sentence defendant as recidivist on basis of three convictions, two of which had been the basis for a 1962 recidivist sentence and the other of which had occurred in 1968.
Error to a judgment of the Circuit Court of the City of Richmond. Hon. John Wingo Knowles, judge presiding.
Affirmed.
Judson T. Vaughan, Jr. (Bowles and Boyd, on brief), for plaintiff in error.
Vann H. Lefcoe, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
In October 1962 the Circuit Court of the City of Richmond sentenced William Ratcliffe Sims as a recidivist based on felony convictions in 1947, 1949 and 1957. In June 1968 the Commonwealth filed another recidivist information against Sims based upon those convictions and another felony conviction in May 1968.
In January 1969 the Circuit Court of the City of Richmond voided the 1947 conviction. Thereafter, the Court permitted the Commonwealth to amend the June 1968 information to eliminate reference to that conviction. At Sims's trial in 1969 on the amended information, based on the 1949, 1957 and 1968 convictions, he was again sentenced as a recidivist.
Sims appeals from the 1969 recidivist sentence, contending that since he had been sentenced in 1962 as a three-time offender, he was twice put in jeopardy by his trial in 1969 as a three-time offender.
Whether or not the constitutional guarantees against double jeopardy apply to recidivist proceedings, see Tyson v. Hening, 205 Va. 389, 136 S.E.2d 832 (1964), Sims's objection to the 1969 sentence lacks merit. The 1962 and 1969 recidivist sentences were not based on the same three convictions. The 1969 recidivist sentence was proper because Sims had been convicted, sentenced and received in the penitentiary after the 1962 recidivist trial. Code Sec. 53-296.
Affirmed.