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COURT OF APPEALS OF VIRGINIA
Present:    Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued at Alexandria, Virginia
JAVIER JEROME BATTS
OPINION BY
v.                                                                      Record No.  0592-98-4   CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE  8,  1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
Michael F. Devine for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General  (Mark L. Earley, Attorney General,
on brief), for appellee.
Javier Jerome Batts  (appellant) was convicted in a jury trial
of the use of a firearm in the commission of a robbery, in
violation of Code  §  18.2-53.1.1    On appeal, he contends the trial
court erred in instructing the jury to impose an enhanced
punishment of five years for a second offense firearm conviction.
For the following reasons, we vacate the five-year sentence
reflecting the enhanced punishment and remand with instructions to
enter an order imposing a three-year sentence on appellant's
firearm conviction.
1 Appellant was also convicted of robbery, in violation of
Code  §  18.2-58.




I.    BACKGROUND
On April  21,  1997, appellant was indicted for the robbery
of Andrea A. Thomas and the use of a firearm in the commission
of robbery.2    A jury trial was set for August  6,  1997.    Appellant
filed a pretrial motion in limine seeking to prevent the
Commonwealth from using an earlier firearm conviction as the
predicate for imposing an enhanced penalty.    In the earlier
case, the jury returned a guilty verdict and although sentencing
was set prior to the August  6 trial date in the instant case,
Judge Stevens continued the sentencing hearing in that case at
the request of appellant's trial counsel.3
2 Patrick N. Anderson represented appellant in the
proceedings before Judge Stevens in the earlier firearm case and
in the trial court proceedings in the instant case.    Different
counsel was appointed for this appeal.
3 The Commonwealth received no notice and did not participate
in the motion for continuance of the sentencing before Judge
Stevens.
[COMMONWEALTH]:                                                           .  .  .  [Appellant] was
supposed to get sentenced last week.
Unbeknownst to the Commonwealth, it got
bumped.    Mr. Sanders from our office was
there ready to argue  [the sentencing before
Judge Stevens] and was told from the Bench,
"Well, that's been moved to September."
Appellant's trial counsel conceded that he called Judge Stevens
to request a continuance in the first case.
THE COURT:    How did the case get moved from
Friday?
[COMMONWEALTH]:    That would be a great
question.    I wish I knew the answer.
-  2  -




Appellant argued that because no final sentencing order had
been entered on the earlier firearm conviction, the jury should
have been instructed only as to the first offender sentence of
three years.    At that time, the trial court indicated it would
resolve the dispute after the presentation of evidence.    The
Commonwealth then moved for a continuance, arguing that
appellant should not be allowed to "manipulate the court system"
by requesting ex parte a continuance of the first firearm
sentencing hearing in order to avoid the enhanced punishment in
the instant case.    Noting that trial counsel's actions "put the
Commonwealth in a bind," the trial judge initially granted the
motion to continue.
In an extended colloquy between the trial judge and
appellant's counsel, counsel objected both to the continuance
and the proposed jury instruction on the enhanced five-year
punishment for the firearm charge.4    Appellant ultimately
THE COURT:    Mr. Anderson, do you know?
[COUNSEL]:    I called Judge Stevens.  .  .                         . I
did call Judge Stevens.    There were several
reasons.
THE COURT:    Mr. Anderson, it doesn't really
matter  [why] it was continued.    Why it was
continued doesn't really matter.  .  .
4 The following colloquy occurred:
[COUNSEL]:  .  .  . My client is ready to go to
trial here today.
-  3  -




THE COURT:    Well, you can note your
exception.
[COUNSEL]:    Well, if I may, before you make
this decision, let me tell my client exactly
what's going on here because, I'm sure he
doesn't understand  --
THE COURT:    All right.
[COUNSEL]:                                       -- and see what he wants to do.
(Counsel confers with Defendant.)
[COUNSEL]:    Judge, just so I understand, are
you refusing to make a decision on this
issue?
THE COURT:    Well, Mr. Anderson, I've granted
-- or, I'm considering granting the motion
for a continuance.    I've given you an
opportunity to be heard on it.    If there's
anything else you'd like to say, I'll be
happy to hear it.
[COUNSEL]:    Well, before we get to the
continuance, what I'm trying to determine is
-- I mean, if the Court is just continuing
the matter because they refuse to rule on
the motion, which I think is improper, I
think that we need to make a decision on the
issue.
I mean  -- if you make a decision one
way or the other, then Mr. Murphy can either
make his determination whether he wants a
continuance, but I don't think it's right or
fair for anybody for the Court to say,
"Well, I can't make this decision.    I'm just
going to continue the case."
*                                                *                                 *   *   *   *   *
THE COURT:    Well, Mr. Anderson, I understand
perfectly your position.    Is there anything
else that you'd like to say about the motion
for a continuance?
-  4  -




[COUNSEL]:    Well, then this is what I'm
going to have to do, and this is kind of
odd.    I'm obviously going to note my
exception to what's going on; but, then, for
purposes of protecting my client, I'll just
concede that you can use the five years
then, because my client is going to be
better protected now than waiting until
after September, when all the other stuff is
going to be final.
So, if the Court's not willing to make
a ruling, which I think is improper and I do
object to that  --that's why we have this
system  -- then, I'm forced to make a
determination of what's the least burden to
put on my client.
The Court is basically ordering me to
tell my client what's the least exposure
you're going to have, and that is very
improper, and I note a big exception to
that.    But, if that's the way we are today,
then I have no choice but to say let Mr.
Murphy use the five years.
He can't say there was a second prior
conviction now, and I guess, if we have to,
we'll deal with it later in the Appeals
Court, but I can't agree to the continuance.
THE COURT:    Mr. Murphy, is there anything
you'd like to add?
[COMMONWEALTH]:    Your Honor, if counsel
would rather concede the legal point than
see a continuance granted, that's fine with
me.
[COUNSEL]:    Well, I'm not conceding a legal
point, but we are going to go forward.    That
five years is going to go into the jury
instruction, but I'm not conceding it and
I'm noting an exception to it, but it will
be in the jury instruction.
THE COURT:    Well, I'm not sure you can have
it both ways, Mr. Anderson.    If you don't
want to agree to it being five years in the
jury instruction, you don't have to.    On
that condition, I'm granting the
-  5  -




Commonwealth's motion for a continuance.    I
mean, it's as simple as that.
I know you disagree with me, but please
tell me how you'd like to proceed at this
point.
[COUNSEL]:    Well, if I may then, Judge, you
tell me I can't have it both ways, but the
Court wants it both ways.    I respectfully
say this to you.    I'm not trying to be  --
THE COURT:    Mr. Anderson, I've ruled.    Is
there anything else you'd like to add with
regard to whether you'll agree or not agree?
[COUNSEL]:    Then I will be forced to concede
the point, but I'm noting my exception that
I'm being forced to concede the point, but I
will concede the point.    That I can do.
THE COURT:    All right.    Well, then you've
conceded the point.
[COUNSEL]:    But I'm noting my exception to
being forced, here.
[COMMONWEALTH]:    I object to this, Your
Honor.    I object to it.
THE COURT:    All right.    Let's agree on a
date for a continuance.
[COUNSEL]:    Well, Judge, I'm conceding the
point.    The fact  --
THE COURT:    Mr. Anderson, I don't want to
argue about it any further.    You don't have
to agree to it, and if you don't agree to it
--
[COUNSEL]:    But I am agreeing to it.    I just
said I would agree to it.
THE COURT:    Well, then the record will
reflect that you’re agreeing to it, not that
you're agreeing to it but objecting to it.
-  6  -




"conceded the point" and "agreed" to the five-year jury
instruction rather than have the matter continued.    At the
conclusion of the evidence, the trial court reviewed the
Commonwealth's proposed Instruction G, which contained the
mandatory five-year sentence on the firearm charge.    When the
trial judge asked counsel if he had any objection to the
[COUNSEL]:    I'm not doing that.    You said I
couldn't do that, and I'm not doing that.    I
said I would agree to the legal point, but
there's a difference by saying that I note
an exception that I'm being put in that
position.    That's different.    Isn't that
fair?
THE COURT:    How about September  16th?
[COUNSEL]:    Well, if you're not going to let
me do that either, then I'll just concede
the point.    I mean, I have no choice, Judge.
So, I will concede the point.    If you're not
going to let me note an exception to
anything, then I'll just concede the point.
THE COURT:    You can note an exception to
anything you'd like to, but  --
[COUNSEL]:    I'm not going to note an
exception if that's going to cause you to
continue the case.
[COMMONWEALTH]:    September  16th is fine with
us.
[COUNSEL]:    I'm not going to note any
exception if that's going to cause you to
continue this case.    I will concede the
point, and we'll move forward.
THE COURT:    All right.    Then let's bring the
jury in.
(Emphasis added).
-  7  -




proposed instruction, counsel stated, "That's acceptable."    The
jury subsequently convicted appellant of the firearm offense and
recommended the "five years mandatory fixed" sentence.
Judge Alden continued the case to November  21,  1997, for
the imposition of sentence.    Prior to that time, Judge Stevens
set aside the jury verdict on the firearm conviction in the
first, unrelated case.    Accordingly, appellant filed a motion to
set aside the verdict in the instant case, alleging that the
jury instruction was improper because it contained the enhanced
punishment of five years.
On October  31,  1997, after the trial in the instant case but
before the scheduled sentencing hearing, appellant was convicted
of two additional firearm offenses resulting from another
unrelated crime.    In that case, the trial judge sentenced him to
three years on the first offense and five years on the second
offense.
At the sentencing hearing in the present case, Judge Alden
denied appellant's motions to set aside the verdict and imposed
the mandatory five-year sentence.    The trial judge found as
follows:
All right, well, I've considered the
pre-sentence report in this case, the
sentencing guidelines, the jury
recommendation, counsel's arguments.    Mr.
Batts, I've considered your letter and the
other facts and circumstances regarding the
case.
-  8  -




And I conclude that the instruction,
when given, was correct.    Now, after the
correct instruction was given, circumstances
changed, which might have allowed me at a
sentencing proceeding to exercise my
discretion or may have required me to  -- I
don't know  -- to impose a lesser sentence
than that the jury had imposed at the time
it was instructed.
However, as it's turned out in this
case, I guess, it has gone full circle
because even though the facts changed after
the jury was properly instructed, by the
time you get to the sentencing day, the
facts have gone all the way around again and
have come back to the beginning.    So, I
conclude, based on all of that, that the
jury was properly instructed and that today
the sentence of the jury is the proper
sentence to impose.
Accordingly, the trial judge imposed the five-year sentence on
the firearm charge.
II.    JURY INSTRUCTION
Appellant contends that at the time the jury was instructed
to impose the mandatory five-year sentence for a second firearm
offense, there was no predicate conviction because a final order
had not been entered on the earlier firearm offense.    Because the
jury was instructed to impose a sentence greater than that
authorized by statute, the instruction was erroneous even though
it was approved by appellant's counsel.
"[An appellate] court's responsibility in reviewing jury
instructions is to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.    It is elementary that a jury must be informed as to the
-  9  -




essential elements of the offense; a correct statement of the law
is one of the essentials of a fair trial."    Darnell v.
Commonwealth,  6 Va. App.  485,  488,  370 S.E.2d  717,  719  (1988)
(internal quotations and citations omitted).    "[W]hen a principle
of law is vital to a defendant in a criminal case, a trial court
has an affirmative duty properly to instruct a jury about the
matter."    Jiminez v. Commonwealth,  241 Va.  244,  250,  402 S.E.2d
678,  681  (1991).
At the time of trial in the instant case, appellant had not
been sentenced on the earlier firearm offense pending before Judge
Stevens.    Trial counsel admitted in the colloquy with Judge Alden
that "[he] called Judge Stevens" to get a continuance in that
case.    Alleging that appellant sought that continuance for
tactical reasons, the Commonwealth's attorney in the present case
moved for a continuance, pending the outcome of the first case.
While Judge Alden was "considering granting the motion for a
continuance," trial counsel said he would "concede the point" and
agreed to the instruction.    Subsequently, when the trial judge
asked counsel if he had any objection to the firearm instruction,
Instruction G, counsel said, "That's acceptable."    It is in this
fast and loose climate that appellant contends the jury was
improperly instructed.
A party may not invite error and subsequently raise that
error as grounds for appeal.    "[A] defendant, having agreed upon
the action taken by the trial court, should not be allowed to
-  10  -




assume an inconsistent position.    No litigant, even a defendant in
a criminal case, will be permitted to approbate and reprobate--to
invite error  .  .  . and then to take advantage of the situation
created by his own wrong."    Manns v. Commonwealth,  13 Va. App.
677,  679-80,  414 S.E.2d  613,  615  (1992)  (citations omitted).
Trial counsel agreed to the proposed jury instruction and, thus,
became a party to the error he now complains of on appeal.
However, his agreement cannot confer the power to impose a
sentence greater than that established by the legislature.    The
penalty exceeded that authorized by statute and, therefore, we
hold that the jury was improperly instructed.    Code  §  18.2-53.1
makes it unlawful for any person to use or display a firearm while
committing one of the enumerated felonies.    That section provides:
It shall be unlawful for any person to use
or attempt to use any pistol, shotgun,
rifle, or other firearm or display such
weapon in a threatening manner while
committing or attempting to commit murder,
rape, forcible sodomy, inanimate or animate
object sexual penetration as defined in
§  18.2-67.2, robbery, carjacking, burglary,
malicious wounding as defined in  §  18.2-51,
malicious bodily injury to a law-enforcement
officer as defined in  §  18.2-51.1,
aggravated malicious wounding as defined in
§  18.2-51.2, malicious wounding by mob as
defined in  §  18.2-41 or abduction.
Violation of this section shall constitute a
separate and distinct felony and any person
found guilty thereof shall be sentenced to a
term of imprisonment of three years for a
first conviction, and for a term of five
years for a second or subsequent conviction
under the provisions of this section.
-  11  -




Code  §  18.2-53.1  (emphasis added).    The statute is recidivist in
nature because it is "aimed at punishment of specific behavior,
not reform."    Stubblefield v. Commonwealth,  10 Va. App.  343,  347,
392 S.E.2d  197,  198  (1990).
Based on the evidence before the trial court, Instruction G
provided an incorrect statement of law because it instructed the
jury on the enhanced punishment provision for a "second or
subsequent conviction" in the absence of proof of a first
conviction.    A final sentencing order was a necessary predicate to
this action, and Judge Stevens had not entered one on the earlier
firearm offense.    The jury's verdict in that case was not a final
conviction without the entry of the sentencing order and,
therefore, could not be used to establish the predicate first
offense.    See Ramdass v. Commonwealth,  248 Va.  518,  520,  450
S.E.2d  360,  361  (1994), cert. denied,  514 U.S.  1085  (1995).    In
Ramdass, our Supreme Court considered whether the defendant's
prior conviction for armed robbery made him ineligible for parole.
The Court concluded:    "Judgment had not been entered on that
verdict; therefore, it cannot be considered as a conviction under
[the applicable Code provision]."    Id.  (emphasis added); see also
Miller v. Commonwealth,  22 Va. App.  497,  500 n.3,  471 S.E.2d  780,
781 n.3  (1996)  (citing Ramdass)  ("A guilty verdict is not a
conviction until a final order of judgment has been entered.").
There being no evidence to support the enhanced punishment
provided in Code  §  18.2-53.1, the jury did not have the statutory
-  12  -




authority to impose a five-year sentence for a first time
offender, even with the acquiescence of appellant's attorney.5
"Where the sentence imposed is in excess of that prescribed by
law, that part of the sentence which is excessive is invalid."
Deagle v. Commonwealth,  214 Va.  304,  305,  199 S.E.2d  509,  510
(1973)  (citing Crutchfield v. Commonwealth,  187 Va.  291,  46 S.E.2d
340  (1948)).    "A sentence in excess of one prescribed by law is
not void  [a]b initio because of the excess, but is good insofar as
the power of the court extends, and is invalid only as to the
excess."    Id. at  305,  199 S.E.2d at  510-11  (citing Royster v.
Smith,  195 Va.  228,  77 S.E.2d  855  (1953)).
5 Our decision to vacate appellant's five-year sentence is
based solely upon the lack of authority of a jury to sentence a
defendant to a period greater than that statutorily mandated.
Appellant’s argument that he was "forced" either to accept the
improperly enhanced punishment or suffer a continuance is
without merit.    It is well settled that the decision whether to
grant a continuance is a matter within the sound discretion of
the trial court.    See Lebedun v. Commonwealth,  27 Va. App.  697,
712,  501 S.E.2d  427,  434  (1998); Price v. Commonwealth,  24 Va.
App.  785,  788,  485 S.E.2d  655,  657  (1997).    Indeed, we have
previously held that a trial court may properly grant a
continuance where the moving party has been the victim of
surprise.    See Lyles v. Commonwealth,  21 Va. App.  187,  191,  462
S.E.2d  915,  917  (1995)  (affirming decision to grant a
continuance where the moving party was surprised by defendant's
trial tactics); see also Bennett v. Commonwealth,  236 Va.  448,
460-61,  374 S.E.2d  303,  311  (1980)  ("Ambush, trickery, stealth,
gamesmanship, one-upmanship, surprise have no legitimate role to
play in a properly conducted trial."), cert. denied,  490 U.S.
1028  (1989).    Although the trial judge in the instant case could
have granted the continuance for good cause, including that the
Commonwealth was "put in a bind" by counsel's "surprise" trial
tactics, she did not do so because counsel agreed to proceed
with trial.
-  13  -




"If an illegal sentence has been pronounced, the court has
[the] power to substitute a legal sentence,  .  .  . the imposition
of the void sentence does not terminate the jurisdiction of the
court."    Powell v. Commonwealth,  182 Va.  327,  340,  28 S.E.2d  687,
692  (1944)  (citations omitted).    "A void sentence does not
invalidate a prior adjudication of guilt properly had; but, on the
contrary, such adjudication furnishes a basis for the imposition
of a valid sentence when the invalidity of the sentence imposed is
called to the attention of the court."    Carter v. Commonwealth,
199 Va.  466,  470,  100 S.E.2d  681,  684  (1957).    In the instant
case, at the time the jury returned a guilty verdict and
recommended the five-year punishment, it did not have the
statutory authority to sentence appellant to any term greater than
three years.    Accordingly, any sentence in excess of the statutory
mandate of three years is void.
III.    HARMLESS ERROR
The Commonwealth argues that any error in Instruction G was
harmless because appellant received two subsequent final firearm
convictions on October  31,  1997, before the trial judge imposed
the instant five-year sentence.    Relying on Miller,  22 Va. App.
497,  471 S.E.2d  780, the Commonwealth contends that those
subsequent convictions can be used as the predicate for an
enhanced punishment in the instant case.    The Commonwealth
concludes that any error in the jury instruction was harmless
because the trial judge ultimately possessed the authority under
-  14  -




Miller to impose the five-year sentence based upon the
"subsequent" convictions.
Our determination of whether the error is harmless is
guided by familiar principles.    Non-constitutional error "is
harmless '[w]hen it plainly appears from the record and the
evidence given at the trial that the parties have had a fair
trial on the merits and substantial justice has been reached.'"
Lavinder v. Commonwealth,  12 Va. App.  1003,  1005,  407 S.E.2d
910,  911  (1991)  (en banc)  (quoting Code  §  8.01-678)  (emphasis
added in Lavinder).    To determine whether an error is harmless,
we "must review the record and the evidence and evaluate the
effect the error may have had on how the finder of fact resolved
the contested issues."    Id. at  1007,  407 S.E.2d at  912.    "An
error does not affect a verdict if a reviewing court can
conclude, without usurping the jury's fact finding function,
that, had the error not occurred, the verdict would have been
the same."    Id. at  1005,  407 S.E.2d at  911.
Applying the standard articulated in Lavinder, we cannot
conclude that the erroneous jury instruction and the trial court's
imposition of the five-year sentence was harmless.    Although we
concluded in Miller that the trial court properly imposed the
enhanced punishment in that case, Miller, unlike appellant, was
tried in a bench trial.    In Miller, we held that the trial judge
properly imposed the five-year sentence where an unrelated firearm
-  15  -




conviction was entered after the judge's finding of guilt but four
days before he imposed the sentence.
Because Code  §  18.2-53.1 is concerned with
punishing repeat firearm offenders, the
statute punishes for a "second or subsequent
conviction" without regard to the dates of
the convictions or the sequence in which the
offenses were committed.    "Any conviction
that follows a first conviction is a
subsequent conviction within the purview of
Code  §  18.2-53.1."
Miller,  22 Va. App. at  501-02,  471 S.E.2d at  782  (citations
omitted)  (emphasis added).    Therefore, we concluded "that the
relevant inquiry under Code  §  18.2-53.1 is whether, at the time
of sentencing, a conviction entered is a 'second or subsequent'
conviction."    Id. at  502,  471 S.E.2d at  782  (emphasis in
original).
The decision in Miller, which involved a bench trial, is not
inconsistent with our decision in the present case.    A jury may
use only those convictions that are final at the time it returns
its verdict and determines the appropriate sentence.    There was no
predicate offense in this case when the jury recommended the
enhanced punishment because judgment had not been entered on the
earlier firearm conviction pending before Judge Stevens and the
October  1997 convictions had not occurred.
We recognize that Virginia law has historically maintained a
clear distinction between the roles played by judge and jury in
criminal sentencing.    See Duncan v. Commonwealth,  2 Va. App.  342,
345,  343 S.E.2d  392,  394  (1986).    "Under the statutory scheme, the
-  16  -




jury determines the guilt or innocence of the accused.    If the
jury finds that he is guilty, it then 'ascertains' or 'fixes' the
maximum punishment in accordance with contemporary community
values and within the limits established by law."    Id.  (emphasis
added).    "After conviction,  .  .  . the court may suspend imposition
of sentence or suspend the sentence in whole or part  .  .  .             ."
Code  §  19.2-303.
"[T]he punishment as fixed by the jury is
not final or absolute, since its finding on
the proper punishment is subject to
suspension by the trial judge, in whole or
in part, on the basis of any mitigating
facts that the convicted defendant can
marshal.    The verdict of the jury is the
fixing of maximum punishment which may be
served.    Under such practice, the convicted
criminal defendant is entitled to 'two
decisions' on the sentence, one by the jury
and the other by the trial judge in the
exercise of his statutory right to suspend;
his 'ultimate sentence  .  .  . does not
[therefore] rest with the jury' alone but is
always subject to the control of the trial
judge.    This procedure makes the jury's
finding little more than an advisory opinion
or first-step decision.    Any criticism of
jury sentencing because it lacks the
objectivity and principled decision of a
judge is thus overcome by the existence of
the power in the trial judge to bring his
so-called superior judgment to bear upon the
issue of proper punishment in reaching his
decision whether to suspend the sentence or
not."
Duncan,  2 Va. App. at  345,  343 S.E.2d at  394  (quoting Vines v.
Muncy,  553 F.2d  342,  349  (4th Cir.  1977))  (emphasis added).
Clearly, the trial judge may reduce a sentence but may not exceed
the "maximum punishment" fixed by the jury.
-  17  -




In the instant case, notwithstanding trial counsel's
acquiescence and agreement to the erroneous jury instruction, we
cannot conclude that the error was harmless.    Appellant was
subjected to a maximum mandatory sentence that was not authorized
at the time the jury determined his "maximum punishment."    Id.
While a trial judge may have the authority under Code  §  19.2-303
to reduce a jury's recommended sentence,6  he or she does not have
the authority to impose a sentence greater than the one
recommended by the jury.7    The trial court is required to
properly instruct the jury as to a correct statement of the
applicable punishment range as of the time of trial.    Because the
jury was instructed to impose a sentence greater than that
authorized, that portion in excess of the statutory maximum of
three years is vacated and the case is remanded to the trial court
to enter an
6 The trial judge cannot reduce a statutorily mandated
sentence.
7 Code  §  19.2-295.2, which provides that the trial court has
the option of imposing an additional six months to three years
of suspended sentence, is inapplicable to the instant case.    See
Allard v. Commonwealth,  24 Va. App.  57,  67-68,  480 S.E.2d  139,
143-44  (1997).
-  18  -




order consistent with this opinion and in accordance with the
first offender provisions of Code  §  18.2-53.1.8
Reversed and remanded.
8 Appellant also contends that proof of a prior conviction
under Code  §  18.2-53.1 constitutes an element of that offense,
which the Commonwealth must prove in order to impose the
enhanced punishment.    He argues that Instruction G was improper
because it did not instruct the jury that it was required to
find that appellant had previously been convicted of a firearm
offense before recommending the enhanced five-year punishment.
We do not address the merits of appellant's argument because he
did not raise this issue before the trial court and is precluded
from raising it on appeal.    See Rule  5A:18.
-  19  -

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