A FULL BENCH AT THE COURT OF APPEALS[Posted September 29, 2011] Over the past couple of weeks, I’ve had the pleasure to attend the investitures of the Court of Appeals’ two newest judges. Last week, here in Virginia Beach, it was Judge Glen Huff, and this Tuesday in Richmond came Judge Steve McCullough’s turn. (Their actual seniority is reversed, as Judge McCullough was apparently sworn in first. That gives Judge Huff the uneasy distinction of having the most “juniority” on the court.) The two ceremonies bring the court up to its full complement of eleven judges.
In the meantime, while I was in Richmond Tuesday, the court handed down its first published opinion of September. Tharrington v. Commonwealth presents a straightforward legal issue: Can a defendant be convicted of grand larceny, and of larceny with intent to sell, for stealing the same stuff? Is stealing something with the intent to pawn it (as Tharrington did here) one crime, or two? The defendant claimed that the prosecution violated his Double Jeopardy protection, but the trial court disagreed.
The Court of Appeals affirms in a concise opinion that doesn’t even go through the traditional Blockburger analysis (determining whether each offense requires proof of something that the other does not). Here, the legislature has clearly set out its intent: “A violation of this section [larceny with intent] constitutes a separate and distinct offense.” The legislature gets to decide what acts constitute distinct offenses, and here, the General Assembly made its intention plain.