                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and
     Bumgardner
Argued at Alexandria, Virginia


THOMAS TERRANCE DALY, S/K/A
 THOMAS DALEY
                                        MEMORANDUM OPINION * BY
v.   Record No. 2525-96-4            JUDGE RUDOLPH BUMGARDNER, III
                                             MAY 5, 1998
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      J. Howe Brown, Judge

          John Kenneth Zwerling (Joel B. Simberg;
          Zwerling & Kemler, P.C., on briefs), for
          appellant.

          Richard B. Smith, Assistant Attorney General
          (Richard Cullen, Attorney General, on brief),
          for appellee.



     Daly was charged with possession of marijuana with intent

to distribute, a felony.    A jury convicted him of the

lesser-included offense of possession of one-half ounce or less

with intent to distribute which is a misdemeanor.    He complains

that he was not able to present mitigating evidence before the

jury sentenced him for the misdemeanor conviction.   Finding no

error, we affirm.

     After the defense had rested and during the discussion of

proposed instructions, both the appellant and the Commonwealth

agreed that the proceeding should be bifurcated into the guilt

and sentencing phases.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     The court noted that if the jury comes back with a

misdemeanor verdict, "You can argue, but there's no evidence at

that point."   The defense made no objections.   Before the jury

returned with a verdict, the court again noted that if there is a

guilty finding on a misdemeanor "there's no evidence."

     The jury returned a verdict of guilty of the misdemeanor

offense.   Because no written instruction had been prepared for

the penalty phase, both sides consented to the instruction being

given verbally with no written copy to be available during the

jury deliberations.    At that point the defendant advised the

court that he wished to present evidence in mitigation.    His

proffer included evidence that the defendant was living in rent

subsidized apartments, was on Social Security disability, and had

stopped using drugs.    The court did not permit further evidence,

but the trial court allowed each side to make additional closing

arguments.
     Code § 19.2-295.1 provides "upon a finding that the

defendant is guilty of a felony . . ." there shall be a separate

proceeding to ascertain punishment.     It does not extend the

bifurcated format to cases in which a jury convicts a defendant

of a misdemeanor. 1   Moreover, the appellant will not be heard to

complain of the procedure adopted in this case.    "The defendant,

having agreed upon the action taken by the trial court, should

     1
      Rule 3A:17.1, as amended effective February 15, 1998,
provides that the court will instruct on punishment for any
misdemeanor but not for any felony.


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not be allowed to assume an inconsistent position."   Clark v.

Commonwealth, 220 Va. 201, 214, 257 S.E.2d 784, 792 (1979).

Here, the defendant never objected when the court first advised

that no evidence would be taken upon a finding of guilty of a

misdemeanor.   To the contrary, he acquiesced in, if not asked

for, the procedure adopted.   Finding no error, we will affirm.

                                                         Affirmed.




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