COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
DOUGLAS EDWARD HOLMES
MEMORANDUM OPINION * BY
v. Record No. 0839-96-2 JUDGE SAM W. COLEMAN III
APRIL 1, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Bruce P. Ganey (Ganey & Laibstain, P.C., on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
The sole issue presented in this appeal is whether the
evidence is sufficient to prove beyond a reasonable doubt that
the defendant had notice that his privilege and license to
operate a motor vehicle were suspended when he drove on November
15, 1995.
On November 14, 1995, the defendant was convicted of
reckless driving. The court suspended his privilege and license
to operate a motor vehicle for sixty days. On November 15, 1995,
he was stopped by a Chesterfield County police officer and
charged with driving on a suspended license. At trial the
circuit court found Holmes guilty of driving on a suspended
license, fined him $250, and suspended his license for an
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
additional sixty days. On appeal, Holmes challenges the
sufficiency of the evidence to prove that he knew his license had
been suspended effective November 14, 1995. Finding that the
evidence is sufficient to support the trial court's finding that
the defendant had actual notice of the suspension of his license
or privilege to drive, we affirm the defendant's conviction.
Viewing the evidence in the light most favorable to the
Commonwealth, the record proves that on November 14, 1995, the
defendant was convicted for reckless driving. The warrant from
the general district court and the judge's notations on it stated
that the defendant was present at trial and unrepresented by
counsel, that he pleaded guilty, that he was found guilty as
charged, that he was fined $100, and that his privilege or
operator's license was suspended for sixty days. The
Commonwealth also introduced a transcript of the defendant's
driving record from the Department (Division) of Motor Vehicles,
which showed a suspension of the defendant's privilege and
license with notice on November 14, 1995.
On November 15, 1995, when the defendant was stopped in
relation to the charge on appeal, the defendant did not have an
operator's license with him so the officer ran a license check
using his Social Security number. The check revealed that the
defendant's license had been suspended "with notice" on November
14, 1995. The officer asked the defendant if he knew that his
license had been suspended. The defendant "said that he didn't
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know if his license was suspended or not. He was in court that
morning prior to me stopping him that night, and he didn't really
give a yes or a no."
At trial, the defendant testified that he did not understand
that his license was being suspended immediately at the November
14, 1995 trial. He acknowledged that the judge told him that his
license was suspended, but stated that the entire encounter
lasted about thirty seconds and the judge did not tell him when
the suspension was to begin. After he was convicted, the
defendant went to the clerk's office where a clerk asked for his
driver's license, which he testified he did not have with him.
The clerk had the defendant sign an Acknowledgement of
Suspension. The acknowledgment form, which has a box to check
showing the date of suspension, was not checked and did not
indicate an effective date for the suspension. However, in one
section on the form, the clerk had written "60 days 1/14/95."
The form also had a section which stated that the license "will
be suspended as of 11/24/95 pursuant to Va. Code § 46.2-395 if my
fine, fees, and costs of $129.00 are not paid by that date and
that my license must be surrendered to the court by that date."
The defendant testified he believed, based upon the
acknowledgment form, that his license would not be suspended
until November 24, 1995.
"The judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict and will not be set
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aside unless it appears from the evidence that the judgment is
plainly wrong or without evidence to support it." Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
In order to convict an accused of driving on a suspended
license, the Commonwealth must prove beyond a reasonable doubt
that the accused knew his license had been suspended. Bibb v.
Commonwealth, 212 Va. 249, 250, 183 S.E.2d 732, 733 (1971);
Plummer v. Commonwealth, 13 Va. App. 13, 15, 408 S.E.2d 765, 766
(1991). "[A] suspension is not effective when the order is
entered but rather when the party charged has been given notice
of its entry." Plummer, 13 Va. App. at 16, 408 S.E.2d at 766.
Actual notice is sufficient notice upon which to base a
conviction for driving on a suspended license. Pitchford v.
Commonwealth, 2 Va. App. 377, 381, 344 S.E.2d 924, 926 (1986).
Although the defendant claims that the acknowledgment form
was misleading and caused him to believe that his privilege to
drive and operator's license was not suspended until November 24,
1995, the evidence proves that he had notice of the suspension as
of November 14, 1995. The defendant admitted that the judge told
him at the reckless driving trial that his license to operate a
motor vehicle was suspended for sixty days. The judge asked the
defendant for his license which he purportedly did not have with
him. Nevertheless, it was apparent to the defendant that the
judge was attempting to have him surrender his license at the
time because his privilege to drive and license were being
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suspended. Holmes also admitted that he did not have his license
with him that day.
After the trial, the defendant went to the clerk's office
where the clerk also asked for his license. After the defendant
explained that he did not have his license, the clerk asked him
to sign the Acknowledgement of Suspension form. Although Holmes
argues that the form was confusing and misleading, the section of
the form which he claims misled him because it contained the
November 24, 1995 date clearly tells a defendant he will be
subject to additional suspension for failing to pay his fines or
surrender his license by a certain date. Any confusion that the
defendant claims concerning his not having notice of the
suspension would have been from his attempt to read the form for
his own benefit, disregarding what the form says, and his
disregarding what the judge told him. See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en
banc) (holding that if the trier of fact finds an accused's
testimony incredible, he is entitled to infer that the accused
lied to conceal his guilt).
We hold the evidence sufficient to prove beyond a reasonable
doubt that the defendant knew his license had been suspended.
Accordingly, we affirm the defendant's conviction.
Affirmed.
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