COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia
JAMES EASTER, S/K/A
JAMES L. EASTER
OPINION BY
v. Record No. 0428-99-2 JUDGE MARVIN F. COLE
MARCH 7, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LUNENBURG COUNTY
William L. Wellons, Judge
L.F. Tyler III (Pettus & Tyler, P.C., on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
James L. Easter, appellant, appeals his conviction of driving
under the influence of alcohol (DUI), third offense, in violation
of Code § 18.2-266. Appellant contends: (1) the conviction
violated his right against double jeopardy because he suffered an
improper seven day license suspension when the officer failed to
file the required incident report, and (2) the Commonwealth
improperly amended the warrant to charge a third offense on de
novo appeal in circuit court, when, pursuant to a plea agreement,
he had already pled guilty to, and was convicted of, DUI, second
offense, in general district court. Finding no error, we affirm
the conviction.
FACTS
On June 2, 1998, Officer Sterner arrested appellant for
DUI. Although Sterner failed to file the statutorily required
sworn incident report with the magistrate, he appeared before
the magistrate to swear to the grounds for arrest. Appellant's
operator's license was administratively suspended for seven
days, pursuant to Code § 46.2-391.2. Appellant did not appeal
the administrative suspension during the suspension period.
In general district court, although the Commonwealth had
evidence of sufficient convictions to amend the charge to a
third offense, it agreed to amend the warrant to DUI, second
offense, in exchange for a guilty plea. Appellant pled guilty
to, and the court convicted him of, DUI, second offense.
Appellant later noted his appeal to the circuit court.
In circuit court, the court amended the charge to DUI,
third offense, over appellant's objection that the amendment
violated his double jeopardy and due process rights. Appellant
stipulated that he entered into the plea agreement for the
lesser offense in consideration of the Commonwealth's agreement
not to amend the charge to the greater offense.
ANALYSIS
I.
Code § 46.2-391.2(B) requires that
[p]romptly after arrest and service of the
notice of suspension, the arresting officer
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shall forward to the magistrate a sworn
report of the arrest that shall include
. . . a statement setting forth the
arresting officer's grounds for belief that
the person violated . . . § 18.2-266 . . . .
Appellant contends that because the officer failed to file this
report, the administrative suspension was improper and penal in
nature. Therefore, he claims he twice suffered punishment for
the same offense in violation of his right against double
jeopardy.
We have held that the administrative suspension is civil
and remedial, not penal, in nature, for double jeopardy
purposes. See Ingram v. Commonwealth, 29 Va. App. 759, 762-63,
514 S.E.2d 792, 794 (1999) (citing Tench v. Commonwealth, 21 Va.
App. 200, 208, 462 S.E.2d 922, 925 (1995), and Brame v.
Commonwealth, 252 Va. 122, 130-32, 476 S.E.2d 177, 182-83
(1996)). We have also held that "[a]ny deviation from proper
procedure does not change the fundamental character of the
sanction, which is civil and remedial." Id. at 768, 514 S.E.2d
at 797. The failure of the officer to comply with the statute
did not transform the suspension into punishment for double
jeopardy purposes.
Appellant claims, however, that he did not have an adequate
remedy to challenge the non-compliance and, therefore, the
failure to follow the statute should render the suspension
punishment. He contends the statute only allows review for
probable cause. Code § 46.2-391.2(C) provides:
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Any person whose license or privilege to
operate a motor vehicle has been suspended
under subsection A may, during the period of
the suspension, request the general district
court . . . to review that suspension
. . . . If the person proves to the court
by a preponderance of the evidence that the
arresting officer did not have probable
cause for the arrest, that the magistrate
did not have probable cause to issue the
warrant, or that there was not probable
cause for issuance of the petition, the
court shall rescind the suspension . . . .
Otherwise the court shall affirm the
suspension.
The statute allows the accused to request review of the
suspension, during the period of the suspension, but does not
limit the permissible grounds of review. The statute mandates
that the court shall rescind the suspension for lack of probable
cause but does not state that this is the only ground for
rescission. The ground specified in the statute does not
preclude review on other grounds.
In Ingram, we held that review of the suspension had to be
heard during the suspension period. The issue was whether the
suspension provision applied when the accused could not take the
breath test. Probable cause was clearly not an issue.
"Appellant's remedy was to challenge the suspension as provided
in the statute . . . ." Ingram, 29 Va. App. at 768, 514 S.E.2d
at 797. As in Ingram, appellant failed to exercise this
statutory right to challenge the administrative suspension
during the period of suspension.
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The statute allows the accused to immediately challenge the
administrative suspension in a civil proceeding. The findings
of that proceeding are not binding on the criminal prosecution.
"The court's findings are without prejudice to the person
contesting the suspension or to any other potential party as to
any proceedings, civil or criminal, and shall not be evidence in
any proceedings, civil or criminal." Code § 46.2-391.2(C); see
also Jones, 23 Va. App. at 171-72, 474 S.E.2d at 865.
The administrative suspension was civil and remedial, not
penal, in nature. Appellant's remedy was to challenge the
non-compliance in the general district court during the period
of the suspension. Therefore, appellant's subsequent conviction
for DUI, third offense, did not violate his double jeopardy
rights.
II.
Appellant contends the trial court erred in allowing the
Commonwealth to amend the warrant to charge DUI, third offense,
in circuit court, after he already pled guilty to, and was found
guilty of, DUI, second offense, in the general district court.
He claims the amendment violated his double jeopardy and due
process rights.
A. Double Jeopardy
Code § 18.2-270 prescribes the punishment for DUI and
increases the minimum jail sentence when the offense is a
second, third, or subsequent offense. When the Commonwealth
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amended the warrant to allege a third offense, appellant faced a
longer period of mandatory incarceration. Therefore, the
amended charge was a greater offense than that heard in the
general district court.
The Fifth Amendment of the United States Constitution and
Article I, Section 8 of the Virginia Constitution grant the
accused protection against prosecution for the same offense
after acquittal. Appellant asserts that by pleading guilty to
DUI, second offense, the general district court in effect
acquitted him of the greater offense of DUI, third offense.
Appellant relies on Buck v. City of Danville, 213 Va. 387,
192 S.E.2d 758 (1972), in support of his position that, at trial
de novo, the Commonwealth may not amend a warrant to charge a
greater offense than that heard in general district court.
However, Buck pled not guilty to DUI and the lower court
acquitted him of DUI, but convicted him of a lesser-included
offense of impaired driving. On appeal, the Commonwealth
indicted Buck for DUI, and the circuit court convicted him of
DUI. The Court stated, "'[T]here cannot be a trial de novo, or
otherwise for the same offense after an acquittal by a court
having authority and jurisdiction to try the offense.'" Id. at
388, 192 S.E.2d at 759 (quoting Peak v. Commonwealth, 171 Va.
535, 541, 199 S.E. 473, 476 (1938)). Therefore, Buck's double
jeopardy rights were violated when he twice stood trial for a
charge for which he had been acquitted.
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Here, the general district court did not acquit appellant
of any offense. Acceptance of a guilty plea to a
lesser-included offense does not constitute an acquittal of a
greater offense. See Peterson v. Commonwealth, 5 Va. App. 389,
400, 363 S.E.2d 440, 445 (1987). Appellant avoided prosecution
for the greater offense by pleading guilty to a lesser offense,
pursuant to a plea agreement. He then breached that agreement
by appealing the conviction. "Where a defendant pleads guilty
pursuant to a plea agreement and receives the agreed upon
sentence, an implied term of the agreement is that the defendant
will not appeal what he has bargained for and received." Id. at
400, 363 S.E.2d at 447. Jeopardy did not attach because he did
not stand trial for and was not acquitted of DUI, third offense.
He did not suffer prosecution after acquittal and, therefore,
his double jeopardy rights were not violated.
B. Due Process
"A person convicted of an offense is entitled to pursue his
statutory right to a trial de novo, without apprehension that
the State will retaliate by substituting a more serious charge
for the original one, thus subjecting him to a significantly
increased potential period of incarceration." Duck v.
Commonwealth, 8 Va. App. 567, 572, 383 S.E.2d 746, 749 (1989)
(citation omitted). "'There is no appearance of retaliation
when a defendant is placed in the same position he was in before
he accepted the plea bargain.'" Peterson, 5 Va. App. at 401,
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363 S.E.2d at 447 (quoting United States v. Anderson, 514 F.2d
583, 588 (7th Cir. 1975)). Where there is no retaliation or
vindictiveness in reinstating charges or amending charges to
greater offenses, there is no due process violation. See id. at
400-01, 383 S.E.2d at 447. The purpose of the trial de novo is
to return the parties to the same position in which they found
themselves in the lower court. See Buck, 213 Va. at 388, 192
S.E.2d at 759.
When appellant appealed to the circuit court, he placed
himself in the same position as he was prior to the plea
agreement in the general district court. Appellant stipulated
that the Commonwealth intended to amend the warrant to charge
DUI, third offense, in the general district court. By appealing
the lower court conviction, appellant found himself without the
benefit of his bargain, without acquittal on any greater
offense, and with the possibility and reality of being tried for
the greater offense of DUI, third offense. Amending the warrant
did not violate appellant's due process rights.
For the above stated reasons, we affirm the conviction of
driving under the influence, third offense.
Affirmed.
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