Two Convictions for One Handgun - Fairfax Criminal Lawyer Weighs In

Two convictions for the same handgun are affirmed by the Virginia Court of Appeals- Fairfax criminal lawyer addresses why

Two convictions for one handgun are of course less desirable than only one. As a Fairfax criminal lawyer, I know that the Constitution's Fifth Amendment bars being convicted twice for the same offense. However, the Virginia Court of Appeals allows for more than one conviction for the same handgun where one of the convictions is for being a convicted felon in possession of a firearm and the other is for unlawfully possessing a concealed weapon, at least where the facts in the context of "time, location, and purpose, sufficiently separated the [defendant's] actions into two distinct acts. As such, they are chargeable and punishable as two offenses under Code § 18.2-308.2, one for the possession crime and one for the concealment crime." Qualik Nashawn Davis v. Commonwealth of Virginia, ___ Va. App. ___ (Nov. 21, 2023). Additionally, under the foregoing Virginia criminal firearm statute, "each 'separate instance[]' resulting in a 'heightened danger to the community[ may] be punished separately.'” Id. (quoting Baker v. Commonwealth, 284 Va. 572 (2012)).

What does the Constitution's Double Jeopardy Clause say and mean about two convictions?

The Constitution's Fifth Amendment Double Jeopardy Clause says "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." That does not only mean that being acquitted of crime Z bars a retrial for the same alleged crime, but that the same alleged crime cannot be charged in more than one count so that it yields two convictions or more. An exception to this is the separate sovereigns doctrine, under which the same alleged criminal act can be prosecuted both in a state and federal court (if federal jurisdiction applies) under the theory that both the state and federal sovereign have been offended. For his double jeopardy argument, Davis did not rely on Blockburger v. U.S., 284 U.S. 299 (1932), which applies a double jeopardy bar to criminal count whose elements duplicate or nest within the elements of another count.

How meticulously must my Virginia criminal lawyer analyze the criminal charges against me?

Your Virginia criminal lawyer needs to meticulously analyze the criminal charges against you, in order to file appropriate pretrial motions (for instance against two convictions when not allowed by double jeopardy protection), to persuasively present essential evidentiary and legal arguments at trial, and to preserve the appellate record. Davis lost his double jeopardy argument not because being a felony in possession of a firearm and carrying a concealed weapon are automatically distinct crimes barring Double Jeopardy protection, but because Davis transported the handgun a significant distance that created a heightened danger to the community.

Virginia law is more pro-Second Amendment than many, but still enables firm penalties for convicted felons in possession of firearms

Virginia was one of the more Second Amendment friendly states even before the Supreme Court confirmed the amendment's protection of the right to obtain concealed carry permits for handguns. Nonetheless, Virginia law still is firm for convicted felons i possession of firearms (for instance as seen in the Davis two convictions case), as is federal law. Va. Code § 18.2-308.2,  18 USC § 922(g),  and 18 USC § 924(a)(8)

What can I do to defend myself if prosecuted for violating Virginia's weapons laws?

The governing Virginia statutory and caselaw involving weapons has numerous intricacies and moving parts relating two convictions and more. Make sure your potential Virginia criminal lawyer will be on top of that in all relevant respects. I have successfully defended hundreds of people charged with weapons offenses. I support putting and keeping teeth in the Second Amendment, at the very least so that teeth is kept in such other criminal defendant-critical Constitutional amendments as the First, Fourth, Fifth and Sixth Amendments. I have fired handguns and rifles both to understand them better for defending the accused and also because it is fund. I am on the side of criminal defendants.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia DUI, felony and misdemeanor defendants. Call 703-383-1100 for your free in-person confidential consultation with Jon Katz about your court-pending prosecution.