Wimbush v. Commonwealth

Full title: RAYMOND LEWIS WIMBUSH v. COMMONWEALTH OF VIRGINIA

Court: Court of Appeals of Virginia. Argued at Salem, Virginia

Date published: Feb 7, 1995

Record No. 2327-93-3 (Va. Ct. App. Feb. 7, 1995)

Opinion

Record No. 2327-93-3

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, on brief), for appellee.

Amicus Curiae: Commonwealth's Attorney, City of Martinsville (J. Randolph Smith, Jr., Commonwealth's Attorney, on brief), for appellee.

Present: Judges Barrow, Coleman and Koontz

MEMORANDUM OPINION^_

_ Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.

JUDGE BERNARD G. BARROW.

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 pursuant to Code Sec. 19.2-297 to convictions of petit larceny.

The defendant was convicted of obtaining money by false pretenses after he took a pair of boots off the shelf at a store and "returned" them for a cash refund of $54.96. The trial court considered evidence of the defendant's three prior convictions, one for felony shoplifting and two for grand larceny, and sentenced the defendant to imprisonment of three years, over the defendant's objection.

"[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."¹ Swinson, 16 Va. App. at 927, 434 S.E.2d at 350. Therefore, the defendant's conviction for obtaining money under false pretenses, though "deemed to be larceny," cannot be enhanced under Code Sec. 19.2-297.

1 The General Assembly has since repealed Code § 19.2-297 and has amended Code § 18.2-104 to provide that "[W]hen a person is convicted of an offense of larceny or any offense deemed to be or punished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.