COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
TIMOTHY RAY BELVIN
MEMORANDUM OPINION * BY
v. Record No. 2568-01-1 JUDGE WALTER S. FELTON, JR.
OCTOBER 15, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
William H. Oast, Jr., Judge Designate
David G. Hubbard (Gregory R. Sheldon;
Goodwin, Sutton & DuVal, PLC, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Timothy Belvin was convicted in a bench trial of operating a
motor vehicle after having been declared a habitual offender, in
violation of Code § 46.2-357. On appeal, he contends that the
trial court committed reversible error by failing to grant his
motion to dismiss pursuant to Code § 19.2-294. We affirm the
judgment of the trial court.
I. BACKGROUND
On July 13, 2000, Belvin was arrested for driving under the
influence of alcohol, pursuant to Code § 18.2-266, and driving
with a suspended operator's license. On November 30, 2000, he
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
was convicted of driving under the influence of alcohol. An
order of nolle prosequi was entered with respect to the charge
of driving on a suspended operator's license. Belvin appealed
his conviction to the Gloucester County Circuit Court. However,
on February 12, 2001, he withdrew the appeal and the circuit
court thereupon affirmed the conviction.
On January 8, 2001, Belvin was indicted on two counts of
feloniously operating a motor vehicle after having been declared
a habitual offender, in violation of Code §§ 46.2-357 and
46.2-357(B)(2). 1 Prior to trial, he filed a motion to dismiss,
pursuant to Code § 19.2-294, on the theory that he was no longer
a habitual offender. The motion was denied. On April 24, 2001,
Belvin was convicted of feloniously operating a motor vehicle
after having been declared a habitual offender, in violation of
Code § 46.2-357. He appeals that conviction.
II. ANALYSIS
Belvin contends that the trial court committed reversible
error by failing to grant his motion to dismiss, pursuant to
Code § 19.2-294. We disagree.
Code § 19.2-294 states in pertinent part:
If the same act be a violation of two or
more statutes . . . conviction under one of
1
Belvin was originally declared a habitual offender in 1989
after multiple DUI and driving on a suspended license
convictions. In 1991 and 1994, he was convicted of operating a
motor vehicle as a habitual offender. In 1998, the Department
of Motor Vehicles granted Belvin restricted driving privileges.
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such statutes . . . shall be a bar to a
prosecution or proceeding under the other or
others.
The purpose of the statute is "to prevent the prosecutorial
practices of subjecting an accused to the hazards of vexatious,
multiple prosecutions. Code § 19.2-294 prevents a prosecutor
from subjecting an accused through successive prosecutions to
'embarrassment, expense and ordeal and compelling him [or her]
to live in a continuing state of anxiety and insecurity.'" Hall
v. Commonwealth, 14 Va. App. 892, 899, 421 S.E.2d 455, 460
(1992) (quoting Grady v. Corbin, 495 U.S. 508, 518 (1990))
(alteration in the original). "[It] protects against a second
prosecution or proceeding for separate statutory offenses based
on the same act after there has been a conviction for one
offense." Hall, 14 Va. App. at 899, 421 S.E.2d at 461.
Belvin argues that the operation of his motor vehicle was
the same act with respect to the November 2000 conviction for
driving under the influence of alcohol and the April 2001
conviction for driving after having been declared a habitual
offender. Consequently, the habitual offender trial was a
successive proceeding as contemplated by Code § 19.2-294, and
barred. That interpretation is misplaced. "In determining
whether the conduct underlying the convictions is based upon the
'same act,' the particular criminal transaction must be examined
to determine whether the acts are the same in terms of time,
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situs, victim, and the nature of the act itself." Id. at 898,
421 S.E.2d at 459.
The nature of the act involved in the present case is not
the same. The Supreme Court has held that, under Code
§ 19.2-294, "one occasion of driving an automobile may give rise
to several acts and offenses that the test of whether there are
separate acts sustaining several offenses 'is whether the same
evidence is required to sustain them.'" Estes v. Commonwealth,
212 Va. 23, 24, 181 S.E.2d 622, 624 (1971) (per curium) (quoting
Hundley v. Commonwealth, 193 Va. 449, 451, 69 S.E.2d 336, 337
(1952)). See also Moore v. Commonwealth, 14 Va. App. 198,
200-02, 415 S.E.2d 247, 249-50 (1992); Treu v. Commonwealth, 12
Va. App. 996, 997-98, 406 S.E.2d 676, 677 (1991). In the
present case, the same evidence was not required to sustain both
charges. The charge of driving under the influence of alcohol
required proof that Belvin drove or operated a motor vehicle
with a blood alcohol concentration of 0.08% or more. Code
§ 18.2-266. Driving after having been declared a habitual
offender required proof of Belvin's status as a habitual
offender and his operating a motor vehicle after having been so
declared. Code § 46.2-357. Since different evidence is required
to prove each offense, they are separate acts. See Slater v.
Commonwealth, 15 Va. App. 593, 596, 425 S.E.2d 816, 817-18
(1993). The fact that the two prosecutions involved the single,
overlapping element of driving a motor vehicle, is not enough to
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invoke the protection of Code § 19.2-294. See Moore, 14
Va. App. at 201-02, 415 S.E.2d at 249-50.
The judgment of the trial court is affirmed.
Affirmed.
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