Split panel rules prior convictions cannot be admitted as evidence in the guilt phase under three-strikes law for violent offenders

In Washington v. Com., a split panel of the Virginia Court of Appeals held that the trial court erred in allowing the introduction of evidence of the defendant's prior felonies during the guilt phase of the defendant's trial for malicious wounding, even though the Commonwealth was seeking a life sentence in the case pursuant to the three-strikes law of Va. Code 19.2-267.1. Judge Benton, joined by Chief Judge Fitzpatrick, parsed the statute and concluded that it involve only a sentence enhancement, and not substantive elements of the criminal offense, while recognizing that the prior offenses are a substantive element under some other statutes.

Judge McClanahan, in her dissent, offered the view that the differences between those other statutes and section 19.2-271.1 were not very important, and the law was plain under those other statutes that proof of the earlier convictions is part of the substantive elements of the offense.