No, You Cannot Trifurcate a Virginia Trial

Elem v. Commonwealth: Defense attorneys in Virginia have been trying to figure out for a long time how to keep prior convictions out of cases in which an element of the offense is a prior conviction. No one has been able to convince Virginia courts that they should adopt the reasoning of Old Chief, so some have tried to get creative.

In Virginia all jury trials are bifurcated. In the first part the jury decides guilt or innocence. In the second part the jury decides the sentence.

Defense counsel tried for a trifurcated hearing. The first would have been to find guilt or innocence on the petit larceny. The second would have been for the jury to find whether or not there were two prior larceny convictions (necessary for the misdemeanor to be elevated to a felony). The third would have been the sentencing phase.

However, both the trial court and the appellate court denied them because such a procedure is not allowed by any legislation which has been passed by the General Assembly.