Commonwealth of Virginia v. Jayvon Lartay Bass

Summary

The Supreme Court of Virginia reversed the Court of Appeals, which had applied the ends of justice exception to Rule 5A:18 to set aside Bass's robbery conviction because the indictments charged the robbery of Irving Smith and attempted robbery of Videll Smith while the proof showed the completed robbery of Videll Smith. Holding that Henson, not the void-sentence cases Legette and Ferguson, controlled, the Court concluded the fatal variance produced no grave injustice: the indictment right is statutory and waivable, the circuit court had jurisdiction, the ten-year sentence was within the statutory maximum, and Bass had notice and a fair trial. The Court further held the Court of Appeals erred in remanding for retrial on no greater than attempted robbery without addressing the sufficiency of the evidence, because double jeopardy permits retrial after a reversal for a defect in the charging instrument. Bass's alternative argument that the eyewitness testimony was inherently incredible was procedurally barred, and the Court entered final judgment reinstating the conviction and sentence.