COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

KEITH WAYNE MILLER 

 OPINION BY 

v. Record No. 2549-94-3 JUDGE SAM W. COLEMAN III 

 JUNE 11, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 Elizabeth P. Murtagh (Office of the Public 

Defender, on brief), for appellant. 

 John K. Byrum, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Keith Wayne Miller was convicted in a bench trial of using a 

firearm during the commission of rape in violation of Code 

§ 18.2-53.1.1 He was sentenced as a recidivist to a mandatory 

 

 1Code § 18.2-53.1. Use or display of firearm in committing 

felony. 

 It shall be unlawful for any person to use or 

attempt to use any pistol, shotgun, rifle, or other 

firearm or display such weapon in a threatening manner 

while committing or attempting to commit murder, rape, 

forcible sodomy, inanimate or animate object sexual 

penetration as defined in [Code] § 18.2-67.2, robbery, 

carjacking, burglary, malicious wounding as defined in 

[Code] § 18.2-51, malicious bodily injury to a 

law-enforcement officer as defined in [Code] 

§ 18.2-51.1, aggravated malicious wounding as defined 

in [Code] § 18.2-51.2, malicious wounding by mob as 

defined in [Code] § 18.2-41 or abduction. Violation of 

this section shall constitute a separate and distinct 

felony and any person found guilty thereof shall be 

sentenced to a term of imprisonment of three years for 

a first conviction, and for a term of five years for a 

second or subsequent conviction under the provisions of 

this section. Notwithstanding any other provision of 
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(..continued) 

term of five years in the penitentiary, rather than to three 

years, which is the mandatory sentence for a first offender. 

Miller contends that the trial court erred by sentencing him as a 

recidivist because the Commonwealth did not produce a copy of the 

prior conviction order at sentencing and, therefore, the evidence 

was insufficient to prove that this was a second or subsequent 

conviction. Alternatively, he claims that even if the evidence 

at sentencing proved a prior conviction, he was not a recidivist 

because a prior conviction had not been entered at the time of 

the hearing in which he was adjudged guilty, and furthermore, he 

was not a recidivist or second offender because the predicate 

offense was committed subsequent to the charged offense. We find 

Miller's claims to be without merit. Accordingly, we affirm the 

trial court's order sentencing Miller to a term of five years in 

the penitentiary for a second or subsequent conviction. 

 On September 23, 1994, the Circuit Court of Lynchburg found 

the defendant guilty of several related felonies, including the 

use of a firearm during the commission of rape, all of which 

occurred on April 13, 1994. At arraignment, the trial judge and 

defense counsel informed the defendant that the punishment for 

law, the sentence prescribed for a violation of the 

provisions of this section shall not be suspended in 

whole or in part, nor shall anyone convicted hereunder 

be placed on probation. Such punishment shall be 

separate and apart from, and shall be made to run 

consecutively with, any punishment received for the 

commission of the primary felony. 
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the firearm offense under Code § 18.2-53.1 is a mandatory three 

year sentence that will run consecutively to any sentence imposed 

for the primary offense.2

 The defendant had not been previously 

convicted of using a firearm in violation of Code § 18.2-53.1 at 

the time of arraignment or the bench trial of the guilt phase of 

the trial. After finding Miller guilty on all charges, the court 

set sentencing for November 18, 1994. 

 At the sentencing hearing, the probation officer testified, 

and the presentence report showed, that on September 19, 1994, 

four days before the bench trial for the present offense, the 

Circuit Court of Amherst County had found the defendant guilty, 

but had not sentenced him, of using a firearm in the commission 

of rape in violation of Code § 18.2-53.1. The Amherst County 

conviction is the predicate offense that the Commonwealth relies 

on for sentencing the defendant as a recidivist.3

 The Amherst 

 2Miller does not contend that he was prejudiced or was 

deprived of any right by being advised that the punishment for 

the offense for which he was being tried was a mandatory three 

year, rather than five year, sentence. He does not claim that he 

would have requested a jury trial if he had known that the 

potential sentence would be five years. Moreover, he made no 

request at sentencing, and has made no claim here, that he should 

have been permitted to withdraw his waiver of a jury trial for 

the firearms offense. See Thomas v. Commonwealth, 218 Va. 553, 

238 S.E.2d 834 (1977) (deciding when an accused may withdraw 

waiver of a jury trial). 

 3A guilty verdict is not a conviction until a final order of 

judgment has been entered. Ramdass v. Commonwealth, 248 Va. 518, 

520, 450 S.E.2d 360, 361 (1994), cert. denied, 115 S. Ct. 1800 

(1995). 
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County offense was committed in May 1994, after the commission of 

the Lynchburg offense. On November 14, 1994, four days before 

sentencing on the present offense, the Circuit Court of Amherst 

County sentenced the defendant for the Amherst firearm conviction 

in violation of Code § 18.2-53.1. No copy of that conviction 

order was introduced into evidence at the sentencing hearing for 

the present offense. However, the probation officer testified 

about the defendant's conviction in Amherst County, and the 

presentence report included the Amherst County conviction as part 

of his criminal record. 

 The defendant claims, in effect, that a probation officer's 

testimony and report are inadmissible hearsay when offered to 

prove a prior conviction at a sentencing hearing, and that the 

evidence is insufficient to prove a prior conviction absent a 

copy of the conviction order. The defendant did not contend at 

the sentencing hearing that the probation officer's testimony or 

report were inadmissible hearsay. See Baughan v. Commonwealth, 

206 Va. 28, 31, 141 S.E.2d 750, 753 (1965) (holding that hearsay 

testimony that is admitted without objection may "properly be 

considered by the trial court and given its natural probative 

effect"). Although Code § 19.2-295.1 requires the Commonwealth 

to provide a defendant with certified copies of prior conviction 

orders in a bifurcated jury trial proceeding, "[a] sentencing 

judge may consider hearsay contained in a probation report." 

Thomas v. Commonwealth, 18 Va. App. 656, 659, 446 S.E.2d 469, 471 
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(1994) (en banc). Because the defendant did not object to the 

probation officer's testimony concerning the prior firearm 

conviction on the ground that it was inadmissible hearsay or 

contend that the evidence was insufficient without a copy of the 

conviction order to prove that he had a prior conviction, we will 

not consider those issues for the first time on appeal. Rule 

5A:18; Rule 5A:12. Furthermore, the record reveals no good cause 

for the defendant's failure to object in the trial court, nor is 

it necessary for us to consider the issues in order to attain 

justice in the case. See Jimenez v. Commonwealth, 241 Va. 244, 

249, 402 S.E.2d 678, 680 (1991); Mounce v. Commonwealth, 4 Va. 

App. 433, 435-36, 357 S.E.2d 742, 744 (1987). 

 With respect to the defendant's contention that he cannot be 

sentenced as a recidivist under Code § 18.2-53.1 where the 

offense for the predicate conviction was committed after the 

charged offense, our holding in Stubblefield v. Commonwealth, 10 

Va. App. 343, 347, 392 S.E.2d 197, 198 (1990), controls. In 

Stubblefield, we held that Code § 18.2-53.1 is a "specific," 

rather than a general, recidivist statute and, therefore, was 

intended to "impose[] additional punishment for a subsequent 

conviction for the same offense." Id. (first emphasis added). 

"Such statutes are aimed at punishment of specific behavior, not 

reform." Id. (emphasis in original). Because Code § 18.2-53.1 

is concerned with punishing repeat firearm offenders, the statute 

punishes for a "second or subsequent conviction" without regard 
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to the dates of the convictions or the sequence in which the 

offenses were committed. "Any conviction that follows a first 

conviction is a subsequent conviction within the purview of Code 

§ 18.2-53.1." Flythe v. Commonwealth, 221 Va. 832, 835, 275 

S.E.2d 582, 584 (1981). 

 In Stubblefield, we held that an accused could be classified 

as a "recidivist" under Code § 18.2-53.1 where multiple 

convictions were rendered in a single jury trial. However, in 

light of the Supreme Court's decision in Ramdass and the 

enactment of Code § 19.2-295.1, which requires a separate 

sentencing proceeding in felony jury trials, guilty verdicts 

rendered in a single jury trial on multiple offenses are not 

final convictions until the entry of the conviction order. 

Therefore, requiring proof of a prior conviction at the time the 

verdicts are returned would be inconsistent with the holding in 

Stubblefield. Because there is no indication that the 

legislature intended such a result in enacting Code § 19.2-295.1, 

and because Code § 18.2-53.1 is "aimed at punishment of specific 

behavior, not reform," Stubblefield, 10 Va. App. at 347, 392 

S.E.2d at 198, we hold that the relevant inquiry under Code 

§ 18.2-53.1 is whether, at the time of sentencing, a conviction 

entered is a "second or subsequent conviction." 

 Here, the defendant had been previously convicted in Amherst 

County of violating Code § 18.2-53.1 at the time of sentencing 

for the charged offense. Therefore, the charged offense was a 
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"second or subsequent conviction," and the trial court did not 

err by sentencing the defendant as a "recidivist." 

 Affirmed.