double jeopardy clause in Virginia

2026“In reviewing a double jeopardy claim, or a claim based on statutory interpretation, this Court shall conduct a de novo review.” Davis v. Commonwealth, 57 Va. App. 446, 455 (2011) (italics omitted).

2024Consequently, there is only a double jeopardy violation if both “offenses always require proof of the same elements.” Id. (quoting Davis v. Commonwealth, 57 Va. App. 446, 456 (2011)). -5- In the abstract, Code § 18.2-300 requires proof of “[p]ossession or use of a ‘sawed-off’ shotgun or ‘sawed-off’ rifle in the perpetration or attempted perpetration of a crime of violence.” Potential predicate crimes of violence include “murder, manslaughter, kidnapping, rape, mayhem, assault with intent to maim, disable, disfigure or kill, robbery, burglary, housebreaking, breaking and entering and larceny.”

2024“In the prosecution for two crimes in the same trial, the double jeopardy defense does not apply unless (a) the defendant is twice punished for one criminal act, and (b) the two punishments are either for the same crime or one punishment is for a crime which is a lesser included offense of the other.” Coleman, 261 Va. at 200 (additional emphasis added).

2018"In the prosecution for two crimes in the same trial, the double jeopardy defense does not apply unless (a) the defendant is twice punished for one criminal act , and (b) the two punishments are either for the same crime or one punishment is for a crime which is a lesser included offense of the other." Coleman v. Commonwealth , 261 Va. 196 , 200, 539 S.E.2d 732 , 734 (2001) (third emphasis in original).

2026“Whether there has been a double jeopardy violation presents a question of law requiring a de novo review.” Hall v. Commonwealth, 69 Va. App. 437, 444 (2018) (quoting Fullwood v. Commonwealth, 279 Va. 531, 539 (2010)).

2025“Whether there has been a double jeopardy violation presents a question of law requiring a de novo review.” Fullwood v. Commonwealth, 279 Va. 531, 539 (2010).

2025“We review de novo whether ‘multiple punishments have been imposed for the same offense in violation of the double jeopardy clause.’” Gregg, 295 Va. at 296 (quoting Johnson v. Commonwealth, 292 Va. 738, 741 (2016)).

2025This Court reviews de novo whether “multiple punishments have been imposed for the same offense in violation of the double jeopardy clause.” Commonwealth v. Gregg, 295 Va. 293, 296 (2018).

2025“It is judicial punishment in excess of legislative intent which offends the double jeopardy clause.” Johnson, 292 Va. at 741 (quoting Shears v. Commonwealth, 23 Va. App. 394, 401 (1996)).

2025“We review de novo whether ‘multiple punishments have been imposed for the same offense in violation of the double jeopardy clause.’” Gregg, 295 Va. at 296 (quoting Johnson v. Commonwealth, 292 Va. 738, 741 (2016)).

2018In more modern double jeopardy cases, “the courts apply today much the same double jeopardy test they did at the founding.” Id. (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).

2018In more modern double jeopardy cases, “the courts apply today much the same double jeopardy test they did at the founding.” Id. (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).

2016Since we now reverse the trial court’s denial of the motion for a mistrial, we consequently remand the matter back to the trial court for a finding on whether the Commonwealth’s Attorney’s actions were an effort to subvert the protections afforded by the Double Jeopardy Clause in violation of Kennedy, 456 U.S. 667 .

2001This clause assures that a criminal defendant will not be subjected to "repeated prosecutions for the same offense." Oregon v. Kennedy, 456 U.S. 667, 671 (1982). - 3 - The mere presentation of evidence that might have been used in a previous trial does not provide a double jeopardy violation.

2005In a single-trial setting, the double jeopardy doctrine does not bar the imposition of consecutive sentences for two crimes arising out of the same criminal act “unless ... the two punishments are ... for the same crime or one punishment is for a crime which is a lesser[-]included offense of the other.” Coleman, 261 Va. at 200 , 539 S.E.2d at 734 ; see also Brown v. Ohio, 432 U.S. 161, 168 , 97 S.Ct. 2221, 2226-27 , 53 L.Ed.2d 187 (1977) (holding that “the greater offense is ... by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it”).

2005In a single-trial setting, the double jeopardy doctrine does not bar the imposition of consecutive sentences for two crimes arising out of the same criminal act “unless ... the two punishments are ... for the same crime or one punishment is for a crime which is a lesser[-]included offense of the other.” Coleman, 261 Va. at 200 , 539 S.E.2d at 734 ; see also Brown v. Ohio, 432 U.S. 161, 168 , 97 S.Ct. 2221, 2226-27 , 53 L.Ed.2d 187 (1977) (holding that “the greater offense is ... by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it”).

2016“The standard applied in Kennedy is that prosecutorial conduct, even if viewed as harassment or overreaching and sufficient to justify a mistrial, does not bar retrial absent proof of intent on the part of the prosecutor to subvert the protections afforded by the double jeopardy clause.” MacKenzie v. Commonwealth, 8 Va. App. 236, 240 , 380 S.E.2d 173, 175 (1989).

2016“The standard applied in Kennedy is that prosecutorial conduct, even if viewed as harassment or overreaching and sufficient to justify a mistrial, does not bar retrial absent proof of intent on the part of the prosecutor to subvert the protections afforded by the double jeopardy clause.” MacKenzie v. Commonwealth, 8 Va. App. 236, 240 , 380 S.E.2d 173, 175 (1989).

2015This protection applies both to successive punishments and to successive prosecutions for the same criminal offense.” United States v. Dixon, 509 U.S. 688, 695-96 (1993). “[W]here the two offenses for which the defendant is punished or tried cannot survive the ‘same-elements’ test, the double jeopardy bar applies.” Id. at 696 .

2015This protection applies both to successive punishments and to successive prosecutions for the same criminal offense.” United States v. Dixon, 509 U.S. 688, 695-96 (1993). “[W]here the two offenses for which the defendant is punished or tried cannot survive the ‘same-elements’ test, the double jeopardy bar applies.” Id. at 696 .

1995Blythe v. Commonwealth, 222 Va. 722, 725-26 , 284 S.E.2d 796, 797-98 (1981); see also United States v. Dixon, 509 U.S. __ , 113 S. Ct. 2849 (1993), overruling Grady v. Corbin, 495 U.S. 508 (1990)(reexamining the Blockburger doctrine); Brown v. Commonwealth, 230 Va. 313, 314 , 337 S.E.2d 711, 713 (1985)(stating courts must determine whether the legislature intended to make each violation a separate offense); Sullivan v. Commonwealth, 16 Va. App. 844, 846 , 433 S.E.2d 508, 509-10 (1993)(en banc)(describing the three distinct protections of the double jeopardy clause); Phoung v. Commonwealth, 15

1995Blythe v. Commonwealth, 222 Va. 722, 725-26 , 284 S.E.2d 796, 797-98 (1981); see also United States v. Dixon, 509 U.S. __ , 113 S. Ct. 2849 (1993), overruling Grady v. Corbin, 495 U.S. 508 (1990)(reexamining the Blockburger doctrine); Brown v. Commonwealth, 230 Va. 313, 314 , 337 S.E.2d 711, 713 (1985)(stating courts must determine whether the legislature intended to make each violation a separate offense); Sullivan v. Commonwealth, 16 Va. App. 844, 846 , 433 S.E.2d 508, 509-10 (1993)(en banc)(describing the three distinct protections of the double jeopardy clause); Phoung v. Commonwealth, 15

1992In Grady , the Supreme Court “clarified the standard for determining whether successive prosecutions are barred by the double jeopardy clause of the fifth amendment.” Low v. Commonwealth, 11 Va. App. 48, 51 , 396 S.E.2d 383, 385 (1990).

1992In Grady , the Supreme Court “clarified the standard for determining whether successive prosecutions are barred by the double jeopardy clause of the fifth amendment.” Low v. Commonwealth, 11 Va. App. 48, 51 , 396 S.E.2d 383, 385 (1990).

2004MERITS OF DOUBLE JEOPARDY CLAIM In the context of a single trial, “the double jeopardy defense does not apply unless (a) the defendant is twice punished for one criminal act, and (b) [either] the two punishments are ... for the same crime or one punishment is for a crime which is a lesser included offense of the other,” Coleman, 261 Va. at 200 , 539 S.E.2d at 734 (referring to Blockburger test, see Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932), as test for “determin[ing] whether there are two offenses or only one” and which, in order to do so, consid

2004MERITS OF DOUBLE JEOPARDY CLAIM In the context of a single trial, “the double jeopardy defense does not apply unless (a) the defendant is twice punished for one criminal act, and (b) [either] the two punishments are ... for the same crime or one punishment is for a crime which is a lesser included offense of the other,” Coleman, 261 Va. at 200 , 539 S.E.2d at 734 (referring to Blockburger test, see Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932), as test for “determin[ing] whether there are two offenses or only one” and which, in order to do so, consid

2025“It is judicial punishment in excess of legislative intent which offends the double jeopardy clause.” Johnson, 292 Va. at 741 (quoting Shears v. Commonwealth, 23 Va. App. 394, 401 (1996)).

2025“It is judicial punishment in excess of legislative intent which offends the double jeopardy clause.” Johnson, 292 Va. at 741 (quoting Shears v. Commonwealth, 23 Va. App. 394, 401 (1996)).

1996“The double jeopardy clause becomes operative if one of the sanctions ‘may not fairly be characterized as remedial’---- A sanction is not ‘remedial’ if. it ‘bears no rational relation’ to [a remedial goal].... ” Small v. Commonwealth, 12 Va.App. 314, 317 , 398 S.E.2d 98, 100 (1991) (en banc) (quoting United States v. Halper, 490 U.S. 435, 449 , 109 S.Ct. 1892, 1902 , 104 L.Ed.2d 487 (1989)). “[T]he determination whether a given ... sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be sa

1996“The double jeopardy clause becomes operative if one of the sanctions ‘may not fairly be characterized as remedial’---- A sanction is not ‘remedial’ if. it ‘bears no rational relation’ to [a remedial goal].... ” Small v. Commonwealth, 12 Va.App. 314, 317 , 398 S.E.2d 98, 100 (1991) (en banc) (quoting United States v. Halper, 490 U.S. 435, 449 , 109 S.Ct. 1892, 1902 , 104 L.Ed.2d 487 (1989)). “[T]he determination whether a given ... sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be sa

2026“Whether there has been a double jeopardy violation presents a question of law requiring a de novo review.” Hall v. Commonwealth, 69 Va. App. 437, 444 (2018) (quoting Fullwood v. Commonwealth, 279 Va. 531, 539 (2010)).

2024“Whether there has been a double jeopardy violation presents a question of law requiring a de novo review.” Hall v. Commonwealth, 69 Va. App. 437, 444 (2018) (quoting Fullwood v. Commonwealth, 279 Va. 531, 539 (2010)).

2025Where a defendant is charged with multiple crimes in the same trial, “the double jeopardy defense does not apply unless: (a) the defendant is twice punished for one criminal act, and (b) the two punishments are either for the same crime or one punishment is for a crime which is a lesser included offense of the other.” Severance v. Commonwealth, 295 Va. 564, 572 (2018) (emphasis omitted).

2025Where a defendant is charged with multiple crimes in the same trial, “the double jeopardy defense does not apply unless: (a) the defendant is twice punished for one criminal act, and (b) the two punishments are either for the same crime or one punishment is for a crime which is a lesser included offense of the other.” Severance v. Commonwealth, 295 Va. 564, 572 (2018) (emphasis omitted).

2025“When considering multiple punishments for a single transaction, the controlling factor is legislative intent.” Id. at 298 (quoting Kelsoe v. Commonwealth, 226 Va. 197, 199 (1983)).

2023“When considering multiple punishments for a single transaction, the controlling factor is legislative intent.” Gregg, 295 Va. at 298 (quoting Kelsoe v. Commonwealth, 226 Va. 197, 199 (1983)); see Stephens v. Commonwealth, 263 Va. 58, 63 (2002) (explaining that in a single trial setting the double jeopardy clause “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended” (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983))).

2023“When considering multiple punishments for a single transaction, the controlling factor is legislative intent.” Gregg, 295 Va. at 298 (quoting Kelsoe v. Commonwealth, 226 Va. 197, 199 (1983)); see Stephens v. Commonwealth, 263 Va. 58, 63 (2002) (explaining that in a single trial setting the double jeopardy clause “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended” (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983))).

2004"Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature ... intended that each violation be a separate offense." Brown v. Commonwealth, 230 Va. 310, 313 , 337 S.E.2d 711, 713 (1985) (quoting Garrett v. United States, 471 U.S. 773, 778 , 105 S.Ct. 2407 , 85 L.Ed.2d 764 (1985)); see also Missouri v. Hunter, 459 U.S. 359, 368 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 340 , 101 S.Ct. 1137 , 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691-92 , 100 S.Ct.

2001Ed. 2d 548 , 110 S. Ct. 2084 (1990), the Supreme Court extended the traditional double jeopardy standard established by Blockburger .

1995Blythe v. Commonwealth, 222 Va. 722, 725-26 , 284 S.E.2d 796, 797-98 (1981); see also United States v. Dixon, 509 U.S. __ , 113 S. Ct. 2849 (1993), overruling Grady v. Corbin, 495 U.S. 508 (1990)(reexamining the Blockburger doctrine); Brown v. Commonwealth, 230 Va. 313, 314 , 337 S.E.2d 711, 713 (1985)(stating courts must determine whether the legislature intended to make each violation a separate offense); Sullivan v. Commonwealth, 16 Va. App. 844, 846 , 433 S.E.2d 508, 509-10 (1993)(en banc)(describing the three distinct protections of the double jeopardy clause); Phoung v. Commonwealth, 15

2024But, in Brown v. Commonwealth, 230 Va. 310 (1985), the Supreme Court declined to consider whether a robbery and abduction conviction, standing together, offends the Double Jeopardy Clause, finding that such an inquiry was not required, since “in the enactment of the abduction statute the General Assembly did not intend to make the kind of restraint which is an intrinsic element of crimes such as rape, robbery, and assault a criminal act, punishable as a separate offense.” Id. at 314 ; cf. Garrett v. United States, 471 U.S. 773, 778 (1985) (“Where the same conduct violates two statutory provisi

2024But, in Brown v. Commonwealth, 230 Va. 310 (1985), the Supreme Court declined to consider whether a robbery and abduction conviction, standing together, offends the Double Jeopardy Clause, finding that such an inquiry was not required, since “in the enactment of the abduction statute the General Assembly did not intend to make the kind of restraint which is an intrinsic element of crimes such as rape, robbery, and assault a criminal act, punishable as a separate offense.” Id. at 314 ; cf. Garrett v. United States, 471 U.S. 773, 778 (1985) (“Where the same conduct violates two statutory provisi

2018We later described our narrow holding in Andrews in exactly these terms. “[T]he double jeopardy prohibition against multiple punishments is violated when a defendant receives separate sentences under Code §§ 18.2-31(7) and (8) when each of the constituent murders for both convictions occurred as part of the same act or transaction.” Gray v. Warden of the Sussex I State Prison, 281 Va. 303, 304 , 707 S.E.2d 275, 280 (2011) (emphasis added) (citing Andrews, 280 Va. at 287-88, 699 S.E.2d at 269-70 ). 11 Even in situations where “multiple offenses may be the ‘same,’ an accused may be subjected to

2018We later described our narrow holding in Andrews in exactly these terms. “[T]he double jeopardy prohibition against multiple punishments is violated when a defendant receives separate sentences under Code §§ 18.2-31(7) and (8) when each of the constituent murders for both convictions occurred as part of the same act or transaction.” Gray v. Warden of the Sussex I State Prison, 281 Va. 303, 304 , 707 S.E.2d 275, 280 (2011) (emphasis added) (citing Andrews, 280 Va. at 287-88, 699 S.E.2d at 269-70 ). 11 Even in situations where “multiple offenses may be the ‘same,’ an accused may be subjected to

2020“A double jeopardy violation exists only if the offenses always require proof of the same elements[,]” Davis v. Commonwealth, 57 Va. App. 446, 456 (2011) (emphasis added), in which case, “[t]he conviction of the lesser included crime is subsumed in the greater conviction[,]” Rea v. Commonwealth, 14 Va. App. 940, 945 (1992).

2013In Rea v. Commonwealth, 14 Va. App. 940 (1992), the Court of Appeals of Virginia rejected the argument that “trial proceedings, like amoebae, are capable of being infinitely subdivided, so that a determination of guilt... on one count. . . immediately raises a double jeopardy bar to continued prosecution on any remaining counts.

2024The double jeopardy clause protects against “(1) a second prosecution for the same offense after acquittal, (2) a prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” Commonwealth v. Hudgins, 269 Va. 602, 604-05 (2005).

2023The double jeopardy clause protects against “(1) a second prosecution for the same offense after acquittal, (2) a prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” Commonwealth v. Hudgins, 269 Va. 602, 604-05 (2005).

2025“We review de novo claims that multiple punishments have been imposed for the same offense in violation of the double jeopardy clause.” Holley v. Commonwealth, 64 Va. App. 156, 160 (2014) (quoting Lawlor v. Commonwealth, 285 Va. 187 , 227 (2013)).

2020This general standard applies to claims, such as appellant’s here, “that multiple punishments have been imposed for the same offense in violation of the double jeopardy clause.” Severance v. Commonwealth, 67 Va. App. 629, 650 (2017) (quoting Lawlor v. Commonwealth, 285 Va. 187 , 227 (2013)), aff’d, 295 Va. 564 (2018).

2025My colleagues in the majority today cite to West v. Commonwealth, 43 Va. App. 327 (2004), as mandating the application of the ends of justice exception to permit our review of Moorman’s Double Jeopardy Clause challenge.

2025My colleagues in the majority today cite to West v. Commonwealth, 43 Va. App. 327 (2004), as mandating the application of the ends of justice exception to permit our review of Moorman’s Double Jeopardy Clause challenge.

1982In Turner v. Commonwealth, 221 Va. 513, 529 , 273 S.E.2d 36, 46 (1980), we enumerated the three separate guarantees contained in the double jeopardy clause: protection against a second prosecution for the offense after acquittal, protection against a second prosecution for the same offense after conviction, and protection against multiple punishments for the same offense.

1982In Turner v. Commonwealth, 221 Va. 513, 529 , 273 S.E.2d 36, 46 (1980), we enumerated the three separate guarantees contained in the double jeopardy clause: protection against a second prosecution for the offense after acquittal, protection against a second prosecution for the same offense after conviction, and protection against multiple punishments for the same offense.

2026The plain language of this statute “requires without exception that defense motions or objections seeking dismissal of an indictment on the ground that the defendant would be twice placed in jeopardy . . . be raised in writing before trial.” Williams v. Commonwealth, 57 Va. App. 750 , 768 n.4 (2011).

2019See Williams, 57 Va. App. at 768 (holding that the defendant waived his double jeopardy objection by failing to make it in writing before trial pursuant to Code § 19.2-266.2); West v. Commonwealth, 43 Va. App. 327, 339-40 (2004) (holding that Rule 5A:18 barred review of the double jeopardy claim).

2025“While it is without doubt that some minimal procedural safeguards attach in a probation hearing setting, ‘[t]here is no double jeopardy protection against revocation of probation and the imposition of imprisonment.’” Green v. Commonwealth, 65 Va. App. 524, 533 (2015) (alteration in original) (quoting United States v. DiFrancesco, 449 U.S. 117, 137 (1980) (observing that “[t]he Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be”)).

1991Id. at 985 .