COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Annunziata 

Argued at Salem, Virginia 

MATTHEW SHANE PHILLIPS 

 OPINION BY 

v. Record No. 1980-97-3 JUDGE SAM W. COLEMAN III 

 JUNE 30, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF RUSSELL COUNTY 

Donald A. McGlothlin, Jr., Judge 

 Thomas R. Scott, Jr. (Street, Street, Street, 

Scott & Bowman, on briefs), for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 The sole issue in this appeal is whether appellant's 

prosecution in circuit court for two felony charges of 

distributing marijuana on school property was barred under the 

provisions of Code § 19.2-294 due to two prior convictions in 

general district court for distributing marijuana, which 

convictions were based on the same acts. Code § 19.2-294 

provides in pertinent part that "[i]f the same act be a violation 

of two or more statutes . . . conviction under one of such 

statutes . . . shall be a bar to prosecution or proceeding under 

the other." 

 Matthew Phillips was charged with feloniously distributing 

marijuana on school property (two counts), in violation of Code 

§ 18.2-255.2. A week later, Phillips was charged with 

distributing less than one-half ounce of marijuana (two counts), 
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misdemeanors, in violation of Code § 18.2-248.1, based on the 

same acts as the felony charges. In a single proceeding in the 

general district court, that court accepted Phillips' guilty plea 

on the misdemeanor charges and certified the felony charges to 

the circuit court, where the grand jury returned indictments. In 

the circuit court, Phillips entered conditional guilty pleas on 

the felony charges. On appeal, Phillips contends that under the 

provisions of Code § 19.2-294, the two misdemeanor convictions 

bar the Commonwealth from prosecuting him on the felony charges 

based on the same acts. We disagree and affirm the convictions. 

 "Code § 19.2-294 . . . prohibits multiple convictions for 

separate offenses arising out of the same act [or acts], except 

where the convictions are obtained in a single prosecution." 

Hall v. Commonwealth, 14 Va. App. 892, 900, 421 S.E.2d 455, 461 

(1992) (en banc) (emphasis added). Because only a prior 

conviction bars a subsequent prosecution, "Code § 19.2-294 does 

not apply to simultaneous prosecutions." Slater v. Commonwealth, 

15 Va. App. 593, 595, 425 S.E.2d 816, 820 (1993). 

 In Slater, we addressed whether Code § 19.2-294 precluded 

the Commonwealth from prosecuting and convicting a defendant for 

felony and misdemeanor charges arising from the same act or acts. 

 Slater was "simultaneously charged" with driving while under the 

influence of alcohol, a misdemeanor offense, and driving after 

having been adjudged an habitual offender, a felony offense. The 

trial of the misdemeanor charge and the preliminary hearing on 
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the felony charge were heard together in a concurrent proceeding 

in the general district court. The general district court 

convicted Slater on the misdemeanor charge and certified the 

felony charge to the grand jury of the circuit court, where he 

was indicted and subsequently convicted. This Court held that 

Code § 19.2-294 did not bar the felony habitual offender 

prosecution in circuit court. Noting that the general district 

court lacked jurisdiction to adjudicate the felony charge, we 

held that "[w]here charges are brought simultaneously, the 

amenability of one to early conclusion while the other requires 

further proceedings does not alter the fact that the proceedings 

are concurrent, not successive, prosecutions." Id. at 595, 425 

S.E.2d at 817 (citing Freeman v. Commonwealth, 14 Va. App. 126, 

129, 414 S.E.2d 871, 873 (1992)). In so holding, we also 

stated: "Many circumstances may determine the time within which 

criminal charges are concluded. It is the time of institution 

which determines whether multiple charges are simultaneous or 

successive." Id. at 596, 425 S.E.2d at 817. 

 Relying on our statement in Slater that "the time of 

institution . . . determines whether multiple charges are 

simultaneous or successive," Phillips argues that the felony and 

misdemeanor charges were successive because they were instituted 

on different dates. Thus, he reasons, the Commonwealth violated 

Code § 19.2-294 by convicting him for two separate statutory 
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offenses in successive prosecutions.1

 We disagree. 

 Code 19.2-294, like the Fifth Amendment former jeopardy 

protection, "was designed to prevent the [Commonwealth from] 

subjecting an accused to the hazards of vexatious, multiple 

prosecutions." Hall, 14 Va. App. at 899, 421 S.E.2d at 460. The 

statute "prevents a prosecutor from subjecting an accused through 

successive prosecutions to 'embarrassment, expense, ordeal and 

compelling him [or her] to live in a continuing state of anxiety 

or insecurity.'" Id. (quoting Grady v. Corbin, 495 U.S. 508, 518 

(1990), rev'd on other grounds, United States v. Dixon, 509 U.S. 

688 (1993)). 

 [B]y limiting its reach to successive 

prosecutions for multiple offenses for the 

same act, [the statute] prevents prosecutors 

from using the prosecution of a minor offense 

as a "dress rehearsal" for a more serious, 

later prosecution. Consequently, Code 

§ 19.2-294 protects against a second

prosecution or proceeding for separate 

statutory offenses based on the same act 

after there has been a conviction for one 

offense. See North Carolina v. Pierce, 395 

U.S. 711, 717 (1969). 

Hall, 14 Va. App. at 899-900, 421 S.E.2d at 461 (emphasis added) 

 

 1Phillips also contends the felony convictions violated the 

Fifth Amendment's Double Jeopardy Clause. In our January 8, 1998 

order granting in part Phillips' petition for appeal, we stated 

that the legislature expressly indicated that "[a] defendant can 

be prosecuted under both the general statute concerning the 

distribution of marijuana and Code § 18.2-255.2. The trial court 

did not err in denying appellant's motion to quash the felony 

indictments on double jeopardy grounds." See Hall, 14 Va. App. 

at 900, 421 S.E.2d at 461 (1992). Thus, because the question of 

whether the felony convictions violated double jeopardy has been 

decided, we denied the appeal of that issue. Accordingly, we may 

not consider Phillips' double jeopardy claim. See Rule 5A:15. 
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(other citation omitted). 

 Considering the legislative purpose for enacting Code 

§ 19.2-294, we find that the controlling principle in Slater is 

that both charges were prosecuted simultaneously or in a 

concurrent proceeding despite "the amenability of the misdemeanor 

charge to early conclusion" in general district court. The 

Commonwealth does not subject the accused to the "hazards of 

vexatious, multiple prosecutions" where it institutes felony and 

misdemeanor charges separately but prosecutes them at the same 

time in a single hearing before the court. Although arrest 

warrants may be obtained on different dates, the Commonwealth 

does not thereby impose a greater burden on the accused than when 

it institutes the charges simultaneously. Moreover, the 

Commonwealth does not receive a greater opportunity to rehearse 

its evidence by instituting charges on separate dates. Borrowing 

the "jurisdictional exception" from our double jeopardy 

decisions, Slater held that Code § 19.2-294 does not apply where 

the several crimes charged are not amenable to common 

jurisdiction and cannot be heard in the same proceeding. See

Freeman, 14 Va. App. at 129, 414 S.E.2d at 873; Curtis v. 

Commonwealth, 13 Va. App. 622, 629, 414 S.E.2d 421, 425 (1992) 

(en banc). The fact that the charges in Slater were "lodged 

simultaneously" does not control the outcome of this case.2

 

 

 2In Slater, as in the present case, the misdemeanor and 

felony charges were heard in a single prosecution in the general 

district court where Slater was convicted of the misdemeanor and 

the felony charge was certified to the circuit court grand jury. 
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Admittedly, as the appellant points out, the Slater panel held, 

based on the facts of that case, that because the charges were 

initiated at the same time, the prosecutions for the offenses 

were simultaneous or concurrent. We do not read the Slater

decision to hold that simultaneous initiation of charges is the 

exclusive measure of whether convictions arise from a single 

prosecution. We hold that the more significant and compelling 

factor is whether the offenses were prosecuted in a single, 

concurrent evidentiary hearing. Thus, where felony and 

misdemeanor charges are instituted at separate times, but are 

heard simultaneously in a single proceeding, they are part of a 

single prosecution, even though jurisdictional limitations 

necessitate that they be concluded in different courts. 

 Here, Phillips was charged with both felony and misdemeanor 

marijuana distribution offenses arising out of the same acts. 

The charges were heard together in the general district court. 

Because the charges were not amenable to conclusion in the same 

court, Phillips was convicted for the misdemeanor charge in 

general district court and for the felony charge in circuit 

court. Under the jurisdictional exception to Code § 19.2-294 

recognized in Slater, we find that the charges were prosecuted as 

part of a single proceeding. Where the charges are heard or 

(..continued) 

Slater leaves unanswered whether the simultaneous initiation of 

charges would have continued to control had there been a 

misdemeanor prosecution in the general district court separate 

from the felony preliminary hearing. 
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prosecuted together, the fact that they were initiated on 

separate dates is a difference without a distinction. 

 Phillips asserted at oral argument that this case is 

controlled by Wade v. Commonwealth, 9 Va. App. 359, 388 S.E.2d 

277 (1990), in which we held that under Code § 19.2-294, a 

conviction for obstruction of justice barred a prosecution for 

capital murder when the offenses arose out of "the same act." 

Although factually similar to this case because trial of the 

misdemeanor charge and the preliminary hearing for the felony 

charge occurred in a single prosecution, the sole issue and basis 

for the decision in Wade was whether the offenses arose out of 

"the same act." Slater was decided subsequent to Wade. In Wade, 

neither the Attorney General nor appellant raised the issue 

whether Code § 19.2-294 applied where there was a simultaneous or 

concurrent prosecution in a single proceeding. Wade did not 

consider whether the language of Code § 19.2-294 that only a 

"conviction" would bar "a prosecution or proceeding" creates a 

single or simultaneous prosecution exception to the statute's 

bar. That issue was subsequently decided in Slater, and the 

principles enunciated therein are controlling. Therefore, Wade

is inapposite to the issue before us. 

 Accordingly, we hold that the felony convictions for 

distributing marijuana on school property were not barred by Code 

§ 19.2-294 because of the misdemeanor convictions for 

distribution of marijuana. The judgment of the circuit court is 
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affirmed. 

 Affirmed.