Dezfuli v. Commonwealth
58 Va. App. 1
Va. Ct. App.2011Background
- Dezfuli was indicted in Fairfax County Circuit Court on malicious wounding under Code § 18.2-51 and on use of a firearm in the commission of a felony under Code § 18.2-53.1.
- The trial court found the evidence insufficient for guilt on both counts but convicted Dezfuli of brandishing a firearm under Code § 18.2-282 as a lesser-included offense of the use of a firearm in the commission of a felony.
- Alleged facts showed Dezfuli pointed a handgun at Mort Ghalambor Dezfuli, a struggle over the gun ensued, and the gun did not fire during the incident.
- The grand jury initially indicted on the underlying charged offenses, but the prosecution sought and obtained a nolle prosequi before reindicting with a new two-count indictment in July 2009.
- Dezfuli moved to dismiss the indictment for speedy-trial violations; the trial court denied the motion.
- At trial, the offenses of malicious wounding and use of a firearm were found not guilty, but Dezfuli was convicted of brandishing a firearm as a lesser-included offense; sentencing followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is brandishing a lesser-included offense of a firearm use offense? | Dezfuli argues brandishing is not a lesser-included offense of §18.2-53.1. | Commonwealth contends brandishing is encompassed within §18.2-53.1 as a lesser-included offense. | Brandishing is not a lesser-included offense of use of a firearm. |
| Did the trial court err by denying dismissal on speedy-trial grounds? | Dezfuli asserts violation of Va. Code § 19.2-243 and 19.2-265.3 due to delay | Commonwealth argues no speedy-trial violation occurred under the record. | Court does not address speedy-trial issue as it reverses on the first issue. |
Key Cases Cited
- Bowden v. Commonwealth, 52 Va.App. 673, 667 S.E.2d 27 (2008) (lesser-included offense analysis)
- Commonwealth v. Dalton, 259 Va. 249, 524 S.E.2d 860 (2000) (definition of lesser-included offense)
- Kauffmann v. Commonwealth, 8 Va.App. 400, 382 S.E.2d 279 (1989) (elements test for lesser-included offenses)
- Smith v. Commonwealth, 17 Va. App. 37, 434 S.E.2d 914 (1993) (Blockburger-based comparison of offenses)
- Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932) (elements-based test for multiple offenses)
- Rose v. Commonwealth, 53 Va.App. 505, 673 S.E.2d 489 (2009) (disjunctive criminal statute interpretation)
- Thomas v. Commonwealth, 25 Va.App. 681, 492 S.E.2d 460 (1997) (interpretation of §18.2-53.1 elements)
- Huffman v. Commonwealth, 51 Va.App. 469, 658 S.E.2d 713 (2008) (brandishing analysis in related context)
- Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221 (1977) (Blockburger test emphasis on distinct elements)