                   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.
                                  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 §§ 18.2-178 1 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).



                                    2
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



                                   3
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


                                   4
     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.



                                    5
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)




                                 6
(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.




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