COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Richmond, Virginia 

WILLIAM BOYD SWINSON 

 MEMORANDUM OPINION* BY 

v. Record No. 0157-94-2 JUDGE LARRY G. ELDER 

 OCTOBER 3, 1995 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS 

Herbert C. Gill, Jr., Judge 

 Michael HuYoung (Jane Chittom; Shuford, Rubin & 

Gibney, on brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 William Boyd Swinson (appellant) appeals his misdemeanor 

conviction for petit larceny by obtaining money by false 

pretenses in violation of Code § 18.2-178. Appellant contends 

that his prosecution, commenced by amended indictment on December 

13, 1993, for a misdemeanor committed on December 20, 1990, was 

time barred. Specifically, appellant argues (1) the subsequent 

misdemeanor charge was not a lesser included offense of the 

original felony charge; (2) the original felony indictment was 

void; and (3) the subsequent prosecution violated his 

constitutional due process rights. Because the trial court 

committed no error, we affirm appellant's conviction. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

 FACTS 

 On December 20, 1990, appellant attempted to obtain a refund 

for merchandise that he had just removed from the rack at a Sears 

& Roebuck store. Appellant was arrested for petit larceny by 

obtaining money by false pretenses, as a third offense larceny in 

violation of Code §§ 18.2-1781

 and 19.2-297.2 A warrant was 

issued on December 20, 1990, appellant was indicted on this 

charge on July 8, 1991, and he was convicted on September 10, 

1991. 

 On August 17, 1993, the Court of Appeals held in Swinson v. 

Commonwealth, 16 Va. App. 923, 434 S.E.2d 348 (1993)(Swinson I), 

that there was sufficient evidence to convict appellant of petit 

larceny by obtaining money by false pretenses in violation of 

 

 1 Code § 18.2-178 provides: 

 If any person obtain, by any false pretense or 

token, from any person, with intent to defraud, 

money or other property which may be the subject 

of larceny, he shall be deemed guilty of larceny 

thereof . . . . 

 2 Code § 19.2-297 provides: 

 When a person is convicted of petit larceny, and 

it is alleged in the indictment on which he is 

convicted, and admitted, or found by the jury or 

judge before whom he is tried, that he has been 

before sentenced in the United States for any 

larceny of any offense deemed to be larceny by the 

law of the sentencing jurisdiction, he shall be 

confined in jail not less than thirty days nor 

more than twelve months; and for a third, or any 

subsequent offense, he shall be guilty of a Class 

6 felony. 

(Emphasis added). 
 3 

Code § 18.2-178, but reversed and remanded "the conviction for a 

new trial on the charge of obtaining money by false pretenses 

pursuant to Code § 18.2-178, a misdemeanor." (Emphasis added). 

The Court held that obtaining money by false pretenses was not an 

appropriate offense for purposes of sentence enhancement under 

Code § 19.2-297 and stated that "only a conviction of petit 

larceny in violation of Code § 18.2-96 may be enhanced by a prior 

conviction of an offense deemed to be larceny by Code 

§ 19.2-297." 

 On remand, the Commonwealth moved to amend the July 8, 1991 

indictment to charge only petit larceny by obtaining money by 

false pretenses in violation of Code § 18.2-178, a misdemeanor. 

The indictment deleted the language charging a felony pursuant to 

the sentence enhancement provision of Code § 19.2-297, but 

otherwise retained the original language. Appellant moved to 

dismiss the amended indictment, but the trial court rejected his 

arguments and granted the Commonwealth's motion to amend the 

indictment on December 13, 1993. On January 10, 1994, appellant 

was tried by a jury and convicted of petit larceny by obtaining 

money by false pretenses, a misdemeanor. 

 I. 

 We first hold that the Commonwealth properly amended the 

indictment and that the indictment was not void ab initio. Code 

§ 19.2-8 requires that "[a] prosecution for a misdemeanor, or any 

pecuniary fine, forfeiture, penalty, or amercement, shall be 
 4 

commenced within one year next after there was cause therefor, 

except that a prosecution for a petit larceny may be commenced 

within five years . . . ." See Kelley v. Commonwealth, 17 Va. 

App. 540, 544 n.1, 439 S.E.2d 616, 619 n.1 (1994). The issuance 

of a warrant commences a prosecution within the meaning of Code 

§ 19.2-8. Hall v. Commonwealth, 2 Va. App. 159, 162, 342 S.E.2d 

640, 641 (1986)(citing Ange v. Commonwealth, 217 Va. 861, 862, 

234 S.E.2d 64, 65 (1977)). Here, the warrant was issued on the 

same day the crime was committed. 

 As we have also stated: 

The fact that the warrant (and subsequent indictment) 

charged a felony . . . does not bar prosecution for a 

lesser included misdemeanor so long as the prosecution 

was commenced within the applicable limitation period. 

 An indictment may be amended "provided the amendment 

does not change the nature or character of the offense 

charged." 

Hall, 2 Va. App. at 162-63, 342 S.E.2d at 641-42 (citing Code 

§ 19.2-231)(footnote omitted). In this case, the original 

indictment, issued July 8, 1991 read: 

On or about the 20th day of December, 1990, in the City 

of Colonial Heights, WILLIAM BOYD SWINSON, did 

unlawfully and feloniously with intent to defraud, 

obtain, by false pretenses, property/merchandise having 

a value of less than $200.00 and being the property of 

Sears, Southpark Mall; having been previously convicted 

two (2) times for larceny in the United States. Va. 

Code Ann. § 18.2-78; § 19.2-297. 

The amended indictment, issued December 13, 1993, read: 

On or about the 20th day of December, 1990, in the City 

of Colonial Heights, WILLIAM BOYD SWINSON, did 

unlawfully with intent to defraud, obtain, by false 
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pretenses, property/merchandise having a value of less 

than $200.00 and being the property of Sears, Southpark 

Mall. Va. Code § 18.2-78. 

As the Commonwealth correctly asserts, the amendment merely 

deleted any references to felonious conduct and appellant's prior 

larceny convictions, which would have enhanced the penalty for 

the charged offense.3

 "The amendments did not change the nature 

of the offense; they merely had the effect of reducing the charge 

from a felony to a misdemeanor." Hall, 2 Va. App. at 163, 342 

S.E.2d at 642. Thus, because "[t]he amendment neither changed 

the nature or character of the offense charged nor resulted in 

surprise or prejudice to [appellant]," Cantwell v. Commonwealth, 

2 Va. App. 606, 609, 347 S.E.2d 523, 524 (1986), the trial court 

did not err in allowing appellant to be tried on the amended 

misdemeanor charge. 

 We also reject appellant's contention that the indictment 

was void ab initio. In Wilder v. Commonwealth, 217 Va. 145, 147, 

225 S.E.2d 411, 413 (1976), the Supreme Court determined that an 

indictment is void where it states no offense. See also Wall 

Distribs., Inc. v. City of Newport News, 228 Va. 358, 362, 323 

S.E.2d 75, 77-78 (1984)(stating indictment was not void where 

there was no misunderstanding as to what it charged). Appellant 

argues that because we determined in Swinson I that there is no 

 

 3 As the trial court recognized, "it is the same offense 

without the enhanced penalty." Similarly, in Swinson I, this 

Court remanded appellant's case specifically directing that he be 

tried on the same charge--only as a misdemeanor, not a felony. 
 6 

such offense as felonious petit larceny in violation of Code 

§ 18.2-178, the original indictment was void. We reject 

appellant's argument for the reasons stated above and conclude 

that the enhanced penalty language, which was included in the 

original indictment, did not invalidate the underlying charge of 

violating Code § 18.2-178, a misdemeanor. 

 II. 

 Appellant also asserts that the Commonwealth violated his 

constitutional due process rights when it tried him for a second 

time, after the original one-year statute of limitations expired. 

 Due process rights are primarily intended to prevent prejudice 

to a defendant caused by the mere passage of time from the 

commission of the crime until trial. Holliday v. Commonwealth, 3 

Va. App. 612, 616, 352 S.E.2d 362, 364 (1987)(citing United 

States v. McDonald, 456 U.S. 1 (1982)); Walker v. Commonwealth, 4 

Va. App. 286, 296, 356 S.E.2d 853, 858 (1987). However, as the 

United States Supreme Court has recognized, the "Due Process 

Clause has [only] a limited role to play in protecting against 

oppressive delay." United States v. Lovasco, 431 U.S. 783, 789 

(1977). "The due process clause may provide a criminal defendant 

with some protection against overly stale claims if the defendant 

can establish that (1) the prosecutor intentionally delayed 

indicting him to gain a tactical advantage and (2) the defendant 

incurred actual prejudice as a result of the delay." Hall v. 

Commonwealth, 8 Va. App. 526, 529, 383 S.E.2d 18, 20 (1989) 
 7 

(citation omitted). 

 In this case, appellant does not allege that the prosecutor 

intentionally delayed re-indicting him to gain a tactical 

advantage, or that the Commonwealth, in any way, purposefully 

delayed issuing an amended indictment. Appellant also fails to 

allege that he incurred actual prejudice as a result of the 

delay. Instead, appellant's sole due process argument asserts 

that after the Commonwealth mistakenly tried him on the original 

felony charge, it overzealously prosecuted him on the misdemeanor 

charge. This argument fails to present a convincing due process 

claim, as the record reveals that the Commonwealth prosecuted 

appellant without delay both times and that it did not, in bad 

faith, originally indict him on an enhanced punishment felony 

charge. Therefore, we hold that appellant was not denied due 

process. 

 Accordingly, we affirm the conviction. 

Affirmed.