Blockburger test in Virginia

2026Under Blockburger, 284 U.S. at 304 , “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” When applying the Blockburger test, this Court “look[s] at the offenses charged in the abstract, without referring to the particular facts of the case under review.” Coleman v. Commonwealth, 261 Va. 196, 200 (2001); see also Sanchez v. Commonwealth, 32 Va. App. 238, 241 (2000).

2026Under Blockburger, 284 U.S. at 304 , “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” When applying the Blockburger test, this Court “look[s] at the offenses charged in the abstract, without referring to the particular facts of the case under review.” Coleman v. Commonwealth, 261 Va. 196, 200 (2001); see also Sanchez v. Commonwealth, 32 Va. App. 238, 241 (2000).

2026Under Blockburger, 284 U.S. at 304 , “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” When applying the Blockburger test, this Court “look[s] at the offenses charged in the abstract, without referring to the particular facts of the case under review.” Coleman v. Commonwealth, 261 Va. 196, 200 (2001); see also Sanchez v. Commonwealth, 32 Va. App. 238, 241 (2000).

2026Under Blockburger, 284 U.S. at 304 , “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” When applying the Blockburger test, this Court “look[s] at the offenses charged in the abstract, without referring to the particular facts of the case under review.” Coleman v. Commonwealth, 261 Va. 196, 200 (2001); see also Sanchez v. Commonwealth, 32 Va. App. 238, 241 (2000).

2026The assumption of the Blockburger test “is that [the legislature] ordinarily does not intend to punish the same offense under two different statutes.” Whalen, 445 U.S. at 691-92 .

2025But the Blockburger test, established in Blockburger v. United States, 284 U.S. 299 (1932), “is simply a ‘rule of statutory construction’ used to inform the constitutional issue.” Gregg, 295 Va. at 298 (quoting Whalen v. United States, 445 U.S. 684, 691 (1980)).

2010See id. at 521 (“a subsequent prosecution must do more than merely survive the Blockburger test”).

2010See id. at 521 (“a subsequent prosecution must do more than merely survive the Blockburger test”).

2023Blockburger holds “that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304 ; see United States v. Dixon, 509 U.S. 688, 696 (1993) (“[T]he ‘Blockburger’ test[ ] inquires whether each offense contains an element not contained in the other[.]”). “[I]n applying this test, the two offenses are to be examined in the abstract, rather than with reference to the facts of the particular case u

2010“In applying the Blockburger test, we look at the offenses charged in the abstract, without referring to the particular facts of the case under review.” Coleman, 261 Va. at 200 , 539 S.E.2d at 734 (citing Blythe, 222 Va. at 726-27 , 284 S.E.2d at 798-99 ).

2023Blockburger holds “that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304 ; see United States v. Dixon, 509 U.S. 688, 696 (1993) (“[T]he ‘Blockburger’ test[ ] inquires whether each offense contains an element not contained in the other[.]”). “[I]n applying this test, the two offenses are to be examined in the abstract, rather than with reference to the facts of the particular case u

2009Stated differently, the Blockburger test “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ [sic] and double jeopardy bars additional punishment and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696 (1993).

2010Rather, before applying the Blockburger test, we first consider whether "the legislative intent is clear from the face of the statute or the legislative history," and if so, then "the Blockburger rule is not controlling." Garrett v. United States, 471 U.S. 773, 779 , 105 S.Ct. 2407 , 85 L.Ed.2d 764 (1985); see also Brown v. Commonwealth, 230 Va. 310, 313 , 337 S.E.2d 711, 713 (1985) (holding that "the Blockburger test . . . need not be applied when the intent of the legislature can be gleaned from a reading of the relevant statutes").

2010Rather, before applying the Blockburger test, we first consider whether "the legislative intent is clear from the face of the statute or the legislative history," and if so, then "the Blockburger rule is not controlling." Garrett v. United States, 471 U.S. 773, 779 , 105 S.Ct. 2407 , 85 L.Ed.2d 764 (1985); see also Brown v. Commonwealth, 230 Va. 310, 313 , 337 S.E.2d 711, 713 (1985) (holding that "the Blockburger test . . . need not be applied when the intent of the legislature can be gleaned from a reading of the relevant statutes").

2018It appears to me that the majority focuses on Severance's alternative argument (i.e., the Blockburger analysis) and then limits its analysis of Severance's primary argument to a discussion of Andrews v. Commonwealth , 280 Va. 231 , 699 S.E.2d 237 (2010), the case that Severance relies heavily on.

2018It appears to me that the majority focuses on Severance's alternative argument (i.e., the Blockburger analysis) and then limits its analysis of Severance's primary argument to a discussion of Andrews v. Commonwealth , 280 Va. 231 , 699 S.E.2d 237 (2010), the case that Severance relies heavily on.

2011Thus, each of the convictions involved in this appeal contains required elements of proof not contained in the other conviction as required in the Blockburger test.”); Schwartz, 45 Va.App. at 442 , 611 S.E.2d at 649 (rejecting double jeopardy argument because “one of the two alternative means of establishing appellant’s guilt” could have been the basis for the conviction).

2011Thus, each of the convictions involved in this appeal contains required elements of proof not contained in the other conviction as required in the Blockburger test.”); Schwartz, 45 Va.App. at 442 , 611 S.E.2d at 649 (rejecting double jeopardy argument because “one of the two alternative means of establishing appellant’s guilt” could have been the basis for the conviction).

2011"This test emphasizes the elements of the two crimes. 'If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.’ " Brown, 432 U.S. at 166 , 97 S.Ct. at 2226 , 53 L.Ed.2d at 194 (quoting Iannelli v. United States, 420 U.S. 770 , 785 n. 17, 95 S.Ct. *711 1284, 1293 n. 17, 43 L.Ed.2d 616 , 627 n. 17 (1975)).

2011"This test emphasizes the elements of the two crimes. 'If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.’ " Brown, 432 U.S. at 166 , 97 S.Ct. at 2226 , 53 L.Ed.2d at 194 (quoting Iannelli v. United States, 420 U.S. 770 , 785 n. 17, 95 S.Ct. *711 1284, 1293 n. 17, 43 L.Ed.2d 616 , 627 n. 17 (1975)).

2018The very presence of dissimilar elements within two statutory offenses, provides "a clear indication of contrary legislative intent." Id. at 692 , 100 S.Ct. at 1438. "[B]efore applying the Blockburger test, we first consider whether 'the legislative intent is clear from the face of the statute or the legislative history,' and if so, then 'the Blockburger rule is **299 not controlling.' " Andrews v. Commonwealth , 280 Va. 231 , 284, 699 S.E.2d 237 , 267 (2010) (quoting Garrett v. United States , 471 U.S. 773 , 779, 105 S.Ct. 2407 , 2411, 85 L.Ed.2d 764 (1985) ).

2018The very presence of dissimilar elements within two statutory offenses, provides "a clear indication of contrary legislative intent." Id. at 692 , 100 S.Ct. at 1438. "[B]efore applying the Blockburger test, we first consider whether 'the legislative intent is clear from the face of the statute or the legislative history,' and if so, then 'the Blockburger rule is **299 not controlling.' " Andrews v. Commonwealth , 280 Va. 231 , 284, 699 S.E.2d 237 , 267 (2010) (quoting Garrett v. United States , 471 U.S. 773 , 779, 105 S.Ct. 2407 , 2411, 85 L.Ed.2d 764 (1985) ).

2000In a Blockburger analysis, "[i]t is the identity of the offense, and not the act, which is referred to in the constitutional guaranty against double jeopardy." Epps v. Commonwealth, 216 Va. 150, 153-54 , 216 S.E.2d 64, 67 (1975).

2000In a Blockburger analysis, "[i]t is the identity of the offense, and not the act, which is referred to in the constitutional guaranty against double jeopardy." Epps v. Commonwealth, 216 Va. 150, 153-54 , 216 S.E.2d 64, 67 (1975).

2017Coleman v. Commonwealth, 261 Va. 196, 200 , 539 S.E.2d 732, 734 (2001) (emphasis added); see also Fitzgerald v. Commonwealth, 223 Va. 615, 635 , 292 S.E.2d 798, 810 (1982) (“[w]e have used the Blockburger test on numerous occasions to resolve double jeopardy issues where the defendant was convicted at a single trial of multiple offenses arising out of the same transaction and the authorized legislative punishments were less than plain” (emphasis added)).

2017Coleman v. Commonwealth, 261 Va. 196, 200 , 539 S.E.2d 732, 734 (2001) (emphasis added); see also Fitzgerald v. Commonwealth, 223 Va. 615, 635 , 292 S.E.2d 798, 810 (1982) (“[w]e have used the Blockburger test on numerous occasions to resolve double jeopardy issues where the defendant was convicted at a single trial of multiple offenses arising out of the same transaction and the authorized legislative punishments were less than plain” (emphasis added)).

2001In this case, therefore, the issue is whether “the General Assembly has ‘clearly indicated its intent to impose multiple punishments.’ ” Fitzgerald v. Commonwealth, 223 Va. 615, 635 , 292 S.E.2d 798, 810 (1982) (quoting Turner v. Commonwealth, 221 Va. 513, 530 , 273 S.E.2d 36, 47 (1980)).

2001In this case, therefore, the issue is whether “the General Assembly has ‘clearly indicated its intent to impose multiple punishments.’ ” Fitzgerald v. Commonwealth, 223 Va. 615, 635 , 292 S.E.2d 798, 810 (1982) (quoting Turner v. Commonwealth, 221 Va. 513, 530 , 273 S.E.2d 36, 47 (1980)).

2026See Albernaz, 450 U.S. at 341-42 (“[I]f anything is to be assumed from the congressional silence on this point, it is that Congress was aware of the Blockburger rule and legislated with it in mind.”); Andrews, 280 Va. at 286 (“In ascertaining legislative intent, we presume that the General Assembly, when enacting new laws, is fully aware of the state of existing law relating to the same general subject matter.” (quoting Gillespie v. Commonwealth, 272 Va. 753, 758 (2006))); Washington v. Commonwealth, 46 Va. App. 276, 281-82 (2005) (“The General Assembly is presumed to be aware of the decisions

2026See Albernaz, 450 U.S. at 341-42 (“[I]f anything is to be assumed from the congressional silence on this point, it is that Congress was aware of the Blockburger rule and legislated with it in mind.”); Andrews, 280 Va. at 286 (“In ascertaining legislative intent, we presume that the General Assembly, when enacting new laws, is fully aware of the state of existing law relating to the same general subject matter.” (quoting Gillespie v. Commonwealth, 272 Va. 753, 758 (2006))); Washington v. Commonwealth, 46 Va. App. 276, 281-82 (2005) (“The General Assembly is presumed to be aware of the decisions

2001This concession does not mandate the outcome of this appeal, however, because Blockburger is not controlling. “[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes.” Missouri v. Hunter, 459 U.S. 359, 368 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983).

2001This concession does not mandate the outcome of this appeal, however, because Blockburger is not controlling. “[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes.” Missouri v. Hunter, 459 U.S. 359, 368 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983).

2012Thus, “‘[i]n applying the Blockburger test, we look at the offenses charged in the abstract, without referring to the particular facts of the case under review.’” Davis, 57 Va. App. at 456 , 703 S.E.2d at 264 (quoting Coleman v. Commonwealth, 261 Va. 196, 200 , 539 S.E.2d 732, 734 (2001)).

2012Thus, “‘[i]n applying the Blockburger test, we look at the offenses charged in the abstract, without referring to the particular facts of the case under review.’” Davis, 57 Va. App. at 456 , 703 S.E.2d at 264 (quoting Coleman v. Commonwealth, 261 Va. 196, 200 , 539 S.E.2d 732, 734 (2001)).

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

2018As the Court of Appeals recognized, "the Blockburger test only applies when ' the same act or transaction constitutes a violation of two distinct statutory provisions.' " Severance , 67 Va.App. at 650 -51 , 799 S.E.2d at 339 (emphasis in original) (citation omitted).

2018As the Court of Appeals recognized, "the Blockburger test only applies when ' the same act or transaction constitutes a violation of two distinct statutory provisions.' " Severance , 67 Va.App. at 650 -51 , 799 S.E.2d at 339 (emphasis in original) (citation omitted).

2009The test of whether there are separate acts sustaining several offenses ‘is whether the same evidence is required to sustain them’.” 46 Va. App. 35, 39 , 614 S.E.2d 672, 675 (2005) (quoting Henry v. Commonwealth, 21 Va. App. 141, 146, 462 S.E.2d 578, 580-81 (1995)).

2009The test of whether there are separate acts sustaining several offenses ‘is whether the same evidence is required to sustain them’.” 46 Va. App. 35, 39 , 614 S.E.2d 672, 675 (2005) (quoting Henry v. Commonwealth, 21 Va. App. 141, 146, 462 S.E.2d 578, 580-81 (1995)).

2004In other Virginia cases applying the Blockburger analysis, this Court has noted that “[t]he elements of the crimes, their ‘fundamental nature,’ are determinative, not ‘the particular facts of a specific case....’” Crump v. Commonwealth, 13 Va.App. 286, 290 , 411 S.E.2d 238, 241 (1991) (quoting Taylor v. Commonwealth, 11 Va.App. 649, 652 , 400 S.E.2d 794, 795 (1991)), quoted with approval in Graves, 21 Va.App. at 164-65, 462 S.E.2d at 903-04 .

2004In other Virginia cases applying the Blockburger analysis, this Court has noted that “[t]he elements of the crimes, their ‘fundamental nature,’ are determinative, not ‘the particular facts of a specific case....’” Crump v. Commonwealth, 13 Va.App. 286, 290 , 411 S.E.2d 238, 241 (1991) (quoting Taylor v. Commonwealth, 11 Va.App. 649, 652 , 400 S.E.2d 794, 795 (1991)), quoted with approval in Graves, 21 Va.App. at 164-65, 462 S.E.2d at 903-04 .

1992See Turner v. Commonwealth, 221 Va. 513, 530 , 273 S.E.2d 36, 47 (1980), cert. denied, 451 U.S. 1011 (1981).

1992See Turner v. Commonwealth, 221 Va. 513, 530 , 273 S.E.2d 36, 47 (1980), cert. denied, 451 U.S. 1011 (1981).

1991Under Corbin , once a court determines that a successive prosecution is not barred by Block-burger, the court must determine if, in the second prosecution, “the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” 110 S. Ct. at 2093 (footnote omitted); see also Low v. Commonwealth, 11 Va. App. 48, 52 , 396 S.E.2d 383, 385 (1990).

1991Under Corbin , once a court determines that a successive prosecution is not barred by Block-burger, the court must determine if, in the second prosecution, “the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” 110 S. Ct. at 2093 (footnote omitted); see also Low v. Commonwealth, 11 Va. App. 48, 52 , 396 S.E.2d 383, 385 (1990).

2020Because “[i]t is the identity of the offense, and not the act, which is referred to in the constitutional guaranty against double jeopardy[,]” Armstead v. Commonwealth, 55 Va. App. 354, 358 (2009) (quoting Martin, 221 Va. at 723 ), the Blockburger test requires that “we look at the offenses . . . in the abstract, without referring to the particular facts of the case under review[,]” Coleman v. Commonwealth, 261 Va. 198 , 200 (2001).

2020Because “[i]t is the identity of the offense, and not the act, which is referred to in the constitutional guaranty against double jeopardy[,]” Armstead v. Commonwealth, 55 Va. App. 354, 358 (2009) (quoting Martin, 221 Va. at 723 ), the Blockburger test requires that “we look at the offenses . . . in the abstract, without referring to the particular facts of the case under review[,]” Coleman v. Commonwealth, 261 Va. 198 , 200 (2001).

2011If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.’ ” Commonwealth v. Hudgins, 269 Va. 602, 605 , 611 S.E.2d 362, 364 (2005) (quoting Brown v. Ohio, 432 U.S. 161, 166 , 97 S.Ct. 2221, 2226 , 53 L.Ed.2d 187 (1977)).

2011If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.’ ” Commonwealth v. Hudgins, 269 Va. 602, 605 , 611 S.E.2d 362, 364 (2005) (quoting Brown v. Ohio, 432 U.S. 161, 166 , 97 S.Ct. 2221, 2226 , 53 L.Ed.2d 187 (1977)).

2004Although Carter was not a double jeopardy case, but rather a case involving the propriety of jury instructions, the Supreme Court conducted a "same elements” analysis, as required by Federal Rule of Criminal Procedure 31(c) and Schmuck v. United States, 489 U.S. 705, 716 , 109 S.Ct. 1443, 1450-51 , 103 L.Ed.2d 734 (1989), that is substantially similar, if not equal, to the Blockburger analysis. .

2004Although Carter was not a double jeopardy case, but rather a case involving the propriety of jury instructions, the Supreme Court conducted a "same elements” analysis, as required by Federal Rule of Criminal Procedure 31(c) and Schmuck v. United States, 489 U.S. 705, 716 , 109 S.Ct. 1443, 1450-51 , 103 L.Ed.2d 734 (1989), that is substantially similar, if not equal, to the Blockburger analysis. .

2001Further, "'if each [offense] requires proof of a fact that the other does not, the Blockburger test is satisfied notwithstanding any substantial overlap in the proof offered to establish the crimes.'" Hill, 2 Va. App. at 706 , 347 S.E.2d at 926 (quoting Iannelli v. United States, 420 U.S. 770 , 785 n.17 (1975)).

2001Further, "'if each [offense] requires proof of a fact that the other does not, the Blockburger test is satisfied notwithstanding any substantial overlap in the proof offered to establish the crimes.'" Hill, 2 Va. App. at 706 , 347 S.E.2d at 926 (quoting Iannelli v. United States, 420 U.S. 770 , 785 n.17 (1975)).