Opinion
Record No. 0238-94-3
Decided: February 7, 1995
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE, Frank I. Richardson, Jr., Judge
Wayne T. Baucino, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General (James S. Gilmore, III, Attorney General; H. Elizabeth Shaffer, Assistant Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this criminal appeal, our decision is controlled by Swinson v. Commonwealth, 16 Va. App. 923, 434 S.E.2d 348 (1993), which limits enhancement of a sentence pursuant to Code Sec. 19.2-297 to convictions of petit larceny.
The defendant was convicted of issuing bad checks after twice writing checks which were returned for insufficient funds. Over the defendant's objection, the trial court considered evidence of the defendant's prior convictions, and sentenced him for a third offense felony under Code Sec. 19.2-297.
"[O]nly a conviction of 'petit larceny' in violation of Code Sec. 18.2-96 may be enhanced by a prior conviction of an offense 'deemed to be larceny' by Code Sec. 19.2-297." Swinson, 16 Va. App. at 927, 434 S.E.2d at 350. Therefore, the defendant's convictions for issuing bad checks, though "deemed to be larceny," cannot be enhanced under Code Sec. 19.2-297.
The General Assembly has since repealed Code § 19.2-297 and has amended Code § 18.2-104 to provide that "[W]hen a person is convicted of an offense of larceny or any offense deemed to be or punished as larceny . . . and has been before convicted . . . of any offense of larceny or any offense deemed or punishable as larceny, or of any substantially similar offense . . . for a third, or any subsequent offense, he shall be guilty of a Class 6 felony." (Emphasis added.)
Accordingly, we reverse and remand for sentencing in accordance with this opinion.
Reversed and remanded.