767 S.E.2d 721
Va. Ct. App.2015Background
- Rebecca K. Taylor was indicted by a grand jury on April 15, 2013 for felony child endangerment allegedly occurring between Jan. 1, 2011 and Feb. 23, 2012.
- After a bench trial, the trial court found evidence insufficient for child endangerment but convicted Taylor of misdemeanor battery (a lesser-included offense) and sentenced her to eight months.
- No separate warrant or charge for the misdemeanor battery was ever issued prior to the felony indictment.
- Taylor moved to set aside the verdict arguing (1) the evidence was insufficient because the conduct was lawful parental discipline and (2) the misdemeanor prosecution was time-barred under Va. Code § 19.2-8; the court denied the motion.
- The Court of Appeals reviewed whether a prosecution that commences for a greater offense (felony) after the limitations period for a lesser-included misdemeanor has run can result in conviction for that lesser offense.
- The court reversed Taylor’s misdemeanor battery conviction, holding the misdemeanor prosecution was time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction for a lesser-included misdemeanor is barred when the felony prosecution that included it was commenced after the misdemeanor limitations period expired | Taylor: prosecution of the misdemeanor was not timely under Code § 19.2-8, so conviction must be barred | Commonwealth: no misdemeanor prosecution was "commenced" separately; Code § 19.2-285 allows conviction of a lesser-included offense without regard to the misdemeanor limitations period | Reversed — where the felony prosecution was commenced after the misdemeanor limitations period ran, a conviction for the lesser-included misdemeanor is barred |
Key Cases Cited
- Hall v. Commonwealth, 2 Va. App. 159 (Va. Ct. App.) (issuance of a warrant commences a misdemeanor prosecution)
- Ange v. Commonwealth, 217 Va. 861 (Va.) (bench warrant date can determine commencement when lesser is not included)
- State v. King, 84 S.E.2d 313 (W. Va.) (adopting majority rule: conviction for lesser-included offense barred if lesser's limitations period expired before prosecution began)
- Benes v. United States, 276 F.2d 99 (6th Cir.) (statutes of limitation in criminal cases create a bar to prosecution)