ELDER, Judge.
Phillip Deangelo Harris, Jr. (appellant) appeals his conviction of a third offense of petit larceny. He argues that his prior robbery conviction should not have been counted as a prior larceny conviction under Code § 18.2-104 because robbery is not a larceny or an offense deemed to be larceny or punished as larceny. He further argues that the court erred in finding that the probative value of admitting appellant's prior robbery conviction as a robbery rather than a prior larceny conviction outweighed the prejudicial impact. Because we agree with appellant's first contention, we reverse the conviction.
On June 4, 1995, appellant was arrested for petit larceny by a police officer who observed appellant enter a 7-Eleven Store and take a bottle of Boone's Farm wine and a candy bar and exit the store. Appellant was prosecuted for third petit larceny offense on the basis of two prior convictions, a petit larceny conviction in 1992 and a robbery conviction in 1979.
At trial, appellant moved in limine to preclude the Commonwealth from proceeding on the charge as alleged in the indictment on the ground that his prior robbery conviction was not a proper predicate offense for enhancement purposes under Code § 18.2-104. The trial judge denied the motion. Appellant then moved the court to restrict the Commonwealth from referring to appellant's conviction as a robbery conviction and offered to stipulate that he previously had been convicted of a larceny offense. The trial judge ruled that the Commonwealth was not required to accept the stipulation and that the prior robbery conviction order was admissible to prove a predicate offense.
Code § 18.2-104 is a recidivist statute that enhances the sentence of a person convicted of a third larceny-type offense by converting a petit larceny offense from a misdemeanor to a class 6 felony. The issue in this case is whether appellant's prior conviction for robbery is a proper predicate offense for enhancement purposes under Code § 18.2-104. We hold that it is not.
Branch v. Commonwealth, 14 Va.App. 836, 839, 419 S.E.2d 422, 424-425 (1992) (citations omitted).
Both the language and recent history of Code § 18.2-104 demonstrate that the General Assembly did not intend to include robbery as a predicate offense for enhancement purposes. The General Assembly amended Code § 18.2-104 in 1994 in response to our decision in Snead v. Commonwealth, 11 Va.App. 643, 400 S.E.2d 806 (1991). Prior to the amendment of Code § 18.2-104, the scope of predicate offenses that would enhance a defendant's sentence was narrow. The predicate offenses that enhanced the sentence of a defendant were expressly limited to shoplifting under Code § 18.2-103 or a "like offense," grand larceny under Code § 18.2-95, and petit larceny under Code § 18.2-96. Id. In Snead, we reversed a defendant's conviction under Code § 18.2-104, holding that the crime of "uttering a bad check" under Code § 18.2-181 and shoplifting under Code § 18.2-103 were not "like offenses." 11 Va. App. at 648, 400 S.E.2d at 808.
The General Assembly responded by amending Code § 18.2-104 in 1994. A draft of the proposed amendment stated that:
House 557, 1994 Reg.Sess. (on file with Commonwealth of Virginia, Division of Legislative Services) (Draft of Jan. 21, 1994). Indeed, the General Assembly's amendment of Code § 18.2-104 expanded beyond shoplifting, grand larceny and petit larceny the nature of predicate offenses that can be considered for enhancement purposes. Under the amended version, predicate offenses now include: (1) "any offense of larceny;" (2) "any offense deemed ... larceny;" (3) "any offense ... punishable as larceny;" and (4) "any substantially similar offense in any other jurisdiction." Code § 18.2-104 (1996).
In light of the manner in which the General Assembly tailored the amendment of 1994 to react to Snead, we do not believe the General Assembly intended to include robbery as a predicate offense. Snead held that "uttering a bad check" was not a predicate offense because it was neither larceny under Code § 18.2-95 and Code § 18.2-96 nor shoplifting under Code § 18.2-103, even though it was, and still is, deemed a larceny by the statute making it an offense. Snead, 11 Va.App. at 648, 400 S.E.2d at 808.
Based upon both the history and language of the present version of the statute, we hold that robbery is not a proper predicate offense for enhancement purposes under Code § 18.2-104. Robbery is neither deemed nor punished as larceny in the Code. "In Virginia, robbery is a nonstatutory crime which continues to be defined by the common law." Jordan v. Commonwealth, 2 Va.App. 590, 594-595, 347 S.E.2d 152, 155 (1986) (citing Pritchard v. Commonwealth, 225 Va. 559, 561, 303 S.E.2d 911, 912 (1983); Mason v. Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150 (1958)). Robbery is punished by a sentence of confinement for between five years and life in a state correctional facility, Code § 18.2-58, while both grand larceny and petit larceny are punished differently. Code §§ 18.2-95, 18.2-96.
In addition, robbery and larceny are in distinct provisions in the Code. The term "larceny" as it appears in this penal statute must be strictly construed against the Commonwealth. Branch, 14 Va.App. at 839, 419 S.E.2d at 424. Although regulated by statute, both larceny and robbery continue to be defined by the common law. Darnell v. Commonwealth, 12 Va.App. 948, 957, 408 S.E.2d 540, 545 (1991) (larceny); Durham v. Commonwealth, 214 Va. 166, 168, 198 S.E.2d 603, 605 (1973) (robbery). While our Supreme Court has said that "robbery is larceny from the person, or in his presence, by violence or intimidation,"
Because we find that appellant's prior robbery conviction is not a proper predicate offense for enhancement purposes under Code § 18.2-104, his conviction of third offense petit larceny is reversed.
Reversed.
MOON, Chief Judge, dissenting.
I respectfully dissent because robbery, in my opinion, is "an offense of larceny" or an "offense deemed to be larceny" within the meaning of Code § 18.2-104.
Larceny is a lesser-included offense of robbery. A robbery indictment, therefore, necessarily "includes all elements of whatever larceny offense it charges, whether grand or petit...." Motors v. Commonwealth, 14 Va.App. 470, 472, 417 S.E.2d 314, 315 (1992). We concluded in Walker v. Commonwealth, that robbery is distinct from larceny because the larceny is accomplished through the use of violence or threat of harm. 14 Va.App. 203, 206, 415 S.E.2d 446, 448 (1992). Thus, robbery is larceny in it most egregious form. Therefore, I would hold that robbery is "an offense of larceny" or "an offense deemed to be larceny."
Appellant's reliance on our holding in Snead v. Commonwealth, 11 Va.App. 643, 400 S.E.2d 806 (1991), is unpersuasive because Snead interprets the predecessor statute to Code § 18.2-104. As amended, the statute no longer contains the limitations upon which the Snead ruling was based and now encompasses any prior larceny offense or any offense deemed or punishable as larceny.
I would also hold that the trial judge did not err in refusing to require the Commonwealth to accept appellant's stipulation that he previously had been convicted of a larceny offense. The Commonwealth is not required to accept a stipulation. Essex v. Commonwealth, 18 Va.App. 168, 442 S.E.2d 707 (1994). We reached the same conclusion in Glover v. Commonwealth, where the defendant, like appellant here, argued that the evidence of his prior offense was not necessary to obtain a conviction, given his offer to stipulate that he had a prior conviction of the type necessary to satisfy the statute under which he was prosecuted. 3 Va.App. 152, 161-62, 348 S.E.2d 434, 440 (1986), aff'd, 236 Va. 1, 372 S.E.2d 134 (1988). We concluded that the Commonwealth was entitled to prove its case and was under no obligation to forgo putting on its own evidence merely because the defendant offered a qualified stipulation. Id.
Accordingly, because I would affirm the judgment of the trial court, I dissent.
On October 22, 1996, came the appellee, by counsel, and filed a petition praying that the Court set aside the judgment rendered herein on October 15, 1996, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on October 15, 1996, is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35. It is further ordered that the appellee shall file with the clerk of this Court ten additional copies of the appendix previously filed in this case.
