Brandon Lee Shifflett v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Elder and Annunziata
Argued at Richmond, Virginia
BRANDON LEE SHIFFLETT
MEMORANDUM OPINION* BY
v. 	Record No. 2702-99-2 	JUDGE LARRY G. ELDER
DECEMBER 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Llezelle A. Dugger, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Thomas D. Bagwell, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Brandon Lee Shifflett (appellant), indicted for attempted
statutory burglary with intent to commit assault and battery in
violation of Code §§ 18.2-26 and 18.2-91, appeals from his
conviction for trespass in violation of Code § 18.2-119. 	On
appeal, he contends the evidence was insufficient to support the
trespass conviction. 	The resolution of this case is governed by
our recent decision in Lowe v. Commonwealth, 33 Va. App. 583,
592, 535 S.E.2d 689, 693 (2000), in which we held that trespass
in violation of Code § 18.2-119 is not a lesser-included offense
of Code § 18.2-91 and that a trial court lacks the authority to

convict for trespass under an indictment charging breaking and
entering even if the accused fails to object. 	Thus, we reverse
and dismiss appellant's trespass conviction.
"'The lack of authority of the trial court to render the
judgment that it did may be raised at any time by this Court on
its own motion.'" 	Lowe, 33 Va. App. at 589, 535 S.E.2d at 692
(quoting Fontaine v. Commonwealth, 25 Va. App. 156, 165, 487
S.E.2d 241, 244 (1997) (noting such lack of authority is an
absence of jurisdiction)).
"The fact that the defendant did not object
to . . . the conviction on the ground that
he was convicted for an offense with which
he was not charged is of no moment. 	Unless
an indictment is amended to conform to the
proof or an accused acquiesces in being
found guilty of an offense other than the
one charged, a trial court lacks the
authority to find an accused guilty of an
offense other than the one charged or a
lesser included offense."
Id. at 589, 535 S.E.2d at 691-92 (quoting Fontaine, 25 Va. App.
at 165, 487 S.E.2d at 244). 	Further, "[a]cquiescence requires
something more than a mere failure to object." 	Id. at 589, 535
S.E.2d at 692. 	Where a defendant is convicted of the charged
felony and "implore[s]" the court to set aside the felony
conviction and find him guilty instead of a misdemeanor not
lesser-included in the charged felony, the defendant may not be
heard to object. 	Manns v. Commonwealth, 13 Va. App. 677, 679,
414 S.E.2d 613, 614-15 (1992). 	Such an action constitutes, in
essence, the defendant's request to the trial court to amend the
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indictment, thereby permitting conviction for the unrelated
misdemeanor. 	However, a mere statement to the judge seeking to
clarify that one's ultimate conviction was for a misdemeanor
rather than the felony for which he was indicted does not
constitute acquiescence. 	See Fontaine, 25 Va. App. at 165, 487
S.E.2d at 244.
Here, appellant's counsel argued the evidence was
insufficient to prove either an attempt to break and enter or an
intent to commit an assault and battery. 	The trial court then
asked counsel whether it could convict appellant of trespassing,
and counsel argued the evidence was insufficient to prove the
elements of that offense. 	No discussion occurred regarding
whether trespass in violation of Code § 18.2-119 was a
lesser-included offense of attempted breaking and entering in
violation of Code § 18.2-91, and thus, appellant did not
acquiesce in being convicted for trespass.
The trial court lacked the authority to convict appellant
of trespass, see Lowe, 33 Va. App. at 592, 535 S.E.2d at 693,
and we reverse and dismiss appellant's conviction.
Reversed and dismissed.
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