COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Overton 

Argued at Richmond, Virginia 

ARTHUR RUCKER 

 MEMORANDUM OPINION* BY 

v. Record No. 0731-97-2 JUDGE NELSON T. OVERTON 

 MARCH 17, 1998 

CITY OF RICHMOND 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Thomas N. Nance, Judge 

 S. Neil Stout (Steven Billy; Flax, Billy & 

Stout, on brief), for appellant. 

 Jan T. Reid, Assistant City Attorney, for 

appellee. 

 Arthur Rucker appeals his conviction in the Circuit Court of 

the City of Richmond of violation of the City of Richmond Code 

§§ 5-3 (failure to demolish an unsafe building), 19-52 (allowing 

refuse to accumulate on the property) and 28-305 (allowing 

inoperable motor vehicles to remain on the property). He 

contends these convictions violate the double jeopardy clause of 

the Fifth Amendment to the United States Constitution. Because 

we disagree, we affirm.1

 The parties are fully conversant with the record in this 

case, and because this memorandum opinion carries no precedential 

 

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

designated for publication. 

 1Appellant also argued that the City was without authority 

to prosecute the violations as continuing offenses. Lawless v. 

County of Chesterfield, 21 Va. App. 495, 465 S.E.2d 153 (1995). 

Under Rule 5A:18 we decline to address this argument. 
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value, no recitation of the facts is necessary. 

 "The [F]ifth Amendment to the United States Constitution 

declares that no person shall 'be subject for the same offense to 

be twice put in jeopardy of life or limb.'" Peterson v. 

Commonwealth, 5 Va. App. 389, 394, 363 S.E.2d 440, 443 (1987) 

(citation omitted). Even so, "the burden is on the defendant to 

establish the identity of the offenses." Low v. Commonwealth, 11 

Va. App. 48, 50, 396 S.E.2d 383, 384 (1990). In order to meet 

this burden, defendant's "plea of former jeopardy must be in 

writing and 'set forth the court in which the accused was tried, 

the time thereof, the specific offense charged, the acquittal or 

conviction of the accused and any other circumstance necessary to 

identify the offense and the accused." Cooper v. Commonwealth, 

13 Va. App. 642, 644, 414 S.E.2d 435, 436 (1992) (quoting DeBoer 

v. Commonwealth, 147 Va. 671, 675, 137 S.E. 469, 470 (1927)). 

 Defendant has not met his burden. He offers copies of three 

summonses addressing his previous charges under the city 

ordinances at issue as proof that his most recent prosecution is 

barred. The trial court indicated on two of the summonses that 

defendant was present, and the charges were dismissed. The trial 

court did not check the boxes provided on the summonses 

indicating defendant was tried. If there was no trial, jeopardy 

did not attach. See Serfass v. United States, 420 U.S. 377, 388 

(1975) ("In a bench trial, jeopardy does not attach until the 

first witness has been sworn."). 
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 Only one summons indicates defendant was tried and found 

guilty, but it also indicates the conviction was set aside and 

dismissed. When a trial court declares a mistrial, a defendant 

is presumed to have waived his Fifth Amendment objections. See

United States v. Jorn, 400 U.S. 470, 484-85 (1971). See also

United States v. Dinitz, 424 U.S. 600, 611 (1976) (holding that 

prosecutorial or judicial impropriety vitiate the waiver). A 

mistrial is the functional equivalent to a conviction which has 

been set aside if defendant consented to it. See Allen v. 

Commonwealth, 252 Va. 105, 110-11, 472 S.E.2d 277, 280 (1996) 

("Regardless of the terminology used by the trial court, for 

purposes of double jeopardy protection, we find no difference of 

constitutional significance between setting aside a verdict . . . 

and declaring a mistrial . . . ."). The record before us shows 

defendant not only consented to the conviction being set aside, 

but he affirmatively returned to court and asked that it be set 

aside. Under these circumstances, he waived his right to raise 

double jeopardy during the instant case. 

 Defendant has failed to prove that jeopardy attached during 

any previous litigation. Therefore, his most recent prosecution 

was not barred. Accordingly, his convictions are affirmed. 

 Affirmed.