COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
KENNETH ARNOLD SMITH, JR.
v. Record No. 0247-95-1 MEMORANDUM OPINION *
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA FEBRUARY 6, 1996
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Alfred W. Whitehurst, Judge
Walter B. Dalton for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Kenneth Arnold Smith, Jr. (appellant) appeals from his bench
trial conviction, in the Circuit Court of the City of Norfolk
(trial court), for driving a motor vehicle on a public street
after having been declared an habitual offender. The sole issue
presented by this appeal is whether prosecution was barred by the
double jeopardy provision of the Constitution of the United
States or Code § 19.2-194, because he had previously been
convicted for driving on a revoked or suspended license for the
same incident. The facts from which his conviction arose are not
in dispute.
On July 8, 1994, at approximately 1:05 a.m., Corporal W. P.
McNett of the Norfolk Police Department pulled over appellant for
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
a speeding violation. Corporal McNett discovered that appellant
did not have a driver's license and that he had been declared an
habitual offender on August 17, 1987. Appellant was issued
warrants for those two offenses.
On November 17, 1994, in Norfolk General District Court,
appellant entered a plea of no contest to the suspended or
revoked license charge, was found guilty, and received a $100
fine, a 30-day suspended jail sentence, and a 30-day license
suspension. On that same day, appellant waived the preliminary
hearing on the charge of driving after having been declared an
habitual offender and was subsequently indicted.
On January 27, 1995, a hearing was held in the trial court
to consider a pretrial motion to dismiss the indictment on the
ground that, due to the misdemeanor conviction, a conviction for
driving after having been declared an habitual offender would be
barred by Code § 19.2-294 or the double jeopardy clause. After
the court overruled the motion, appellant entered a conditional
plea of guilty. The trial court found him guilty and sentenced
appellant to twelve months in jail.
In interpreting when double jeopardy bars prosecution of two
offenses, the United States Supreme Court has declared that "the
test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact
which the other does not." Blockburger v. United States, 248
U.S. 299, 304 (1932). In the matter before us, to convict
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appellant for unlawfully driving after having been declared an
habitual offender, the Commonwealth was required to show that the
order finding that appellant was an habitual offender was still
in effect, a requirement not necessary to his conviction for
driving on a suspended license. This distinction permits his
prosecution, conviction, and punishment for both offenses. See
Edenton v. Commonwealth, 227 Va. 413, 316 S.E.2d 736 (1984),
where the Supreme Court of Virginia approved prosecutions for
driving without a license and driving after having been declared
an habitual offender. See also Eagleton v. Commonwealth, 18 Va.
App. 469, 445 S.E.2d 161 (1994), where we held that double
jeopardy principles did not prevent Eagleton from being
prosecuted and convicted for several driving offenses arising
"out of the same incidents," because speeding, eluding the
police, driving while intoxicated, and driving after having been
declared an habitual offender all required proof of different
elements.
Appellant further asserts that Code § 19.2-294 bars his
conviction for driving after having been declared an habitual
offender because he previously had been convicted for driving
after his license to drive had been revoked or suspended. We
disagree.
Appellant was arrested and simultaneously charged with the
two offenses arising out of the same driving incident. Both
charges were simultaneously presented to the district court,
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where appellant was convicted of the misdemeanor, and sent on to
the grand jury on the felony. Similar facts and procedures were
shown in Slater v. Commonwealth, 15 Va. App. 593, 425 S.E.2d 816
(1993), and we held that "[w]here charges are brought
simultaneously, the amenability of one to early conclusion while
the other requires further proceedings, does not alter the fact
that the proceedings are concurrent, not successive,
prosecutions." Id. at 595, 425 S.E.2d at 817; see also Freeman
v. Commonwealth, 14 Va. App. 126, 414 S.E.2d 871 (1992).
Appellant argues that Wade v. Commonwealth, 9 Va. App. 359,
388 S.E.2d 277 (1990), supports his position. In Wade, the
Commonwealth stipulated that identical proof would be used to
support the several charges. That case is distinguishable from
the case before us.
Because the two offenses for which appellant was charged
required different evidence to convict and were charged
simultaneously, neither the Constitution of the United States nor
Code § 19.2-294 bars his prosecution and conviction for having
driven a motor vehicle on a public street after having been
declared an habitual offender.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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