dissenting.
*267I respectfully disagree with the views expressed in the majority opinion.
The first issue involved in this case is whether the appellant has preserved his right to appeal. The statement of facts discloses that after the County rested its case, the defendant made a motion to strike the charge of reckless driving with the intent to elude the police officer and the charge of reckless driving under the general statute. In the alternative, he requested that the court merge the two offenses into one violation of law. The trial court took the motion under advisement. The defendant did not put on any evidence and renewed his motion to strike, which was overruled.
I do not consider the defendant’s motion to merge two offenses into one violation of law the equivalent of affirmatively contending in the trial court that if the same act be a violation of two or more statutes, conviction under one of such statutes shall be a bar to a prosecution of the other under Code § 19.2-294. The record does not show that this Code section was mentioned in the trial court. The County raised this defense in its brief, but the majority has not addressed the issue. I would hold that this appeal is barred under Rule 5A:18.
Nevertheless, I will discuss the issue decided by the majority. The statutory offenses involved in the instant case are Code § 46.1-192.1 (evading a police officer after receiving a signal to stop) and Code § 46.1-189 (general reckless driving statute). As it existed at the time of the charged offense, Code § 46.1-192.1,3 in pertinent part, said:
Any person who, having received a visible or audible signal from any police officer to bring his motor vehicle to a stop, shall operate such motor vehicle in a willful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle or endanger other property or person, or who shall increase his speed and attempt to escape or elude such police officer, shall be guilty of a Class 1 misdemeanor.
*268Code § 46.1-189,4 in pertinent part, states:
Irrespective of the maximum speeds herein provided, any person who drives a vehicle upon a highway recklessly or at a speed or in a manner so as to endanger life, limb or property of any person shall be guilty of reckless driving.
Code § 19.2-294 provides, in pertinent part, as follows:
If the same act be a violation of two or more statutes . . . conviction under one of such statutes . . . shall be a bar to a prosecution or proceeding under the other or others.
Reference to several cases will make the meaning of Code § 19.2-294 clear. In Hundley v. Commonwealth, 193 Va. 449, 69 S.E.2d 336 (1952), the Supreme Court, in discussing the predecessor to Code § 19.2-294, held:
A test of the identity of acts or offenses is whether the same evidence is required to sustain them; if not, then the fact that several charges relate to and grow out of one transaction or occurrence does not make a single act or offense where two separate acts or offenses are defined by statute.
Id. at 451, 69 S.E.2d at 337.
In Estes v. Commonwealth, 212 Va. 23, 181 S.E.2d 622 (1971), the Supreme Court held that prosecution for both driving under the influence and driving on a suspended license, although arising from the same incident, were not barred by Code § 19.2-294. The Court pointed out that the same evidence was not required to sustain both convictions because Estes could have been convicted of the act of driving under the influence without proof of the suspension of his driver’s license. Similarly, he could have been convicted of the act of driving under a suspended license without proof of his intoxication. Therefore, these convictions were based on different acts arising from the same incident and Code § 19.2-294 was not a bar to either conviction. Id. at 24, 181 S.E.2d at 624.
In Jones v. Commonwealth, 218 Va. 757, 240 S.E.2d 658, cert. denied, 435 U.S. 909, 439 U.S. 892 (1978), the Supreme Court *269found that robbery and grand larceny convictions arising from the same criminal incident were not barred by Code § 19.2-294. In Jones, the robbery was completed after Jones entered the hotel, pulled his gun and robbed the clerk of money. The defendant took the keys to the hotel’s car and left the hotel to gain possession of the car in the parking lot. On the robbery conviction, the Commonwealth was not required to prove that the defendant stole the vehicle, and on the grand larceny conviction, it was not required to show that the defendant robbed the victim inside the hotel. The Supreme Court found, in terms of time and place, the two thefts involved separate and distinct acts of caption and different acts of asportation. Therefore, the acts which constituted the two offenses for which the defendant was convicted were not “the same” within the meaning of Code § 19.2-294. Id. at 761, 240 S.E.2d at 662.
A different set of circumstances existed in Wade v. Commonwealth, 9 Va. App. 359, 388 S.E.2d 277 (1990). Wade was charged with obstruction of justice under Code § 18.2-460(B) and attempted killing of a police officer to interfere with the performance of his duties under Code § 18.2-31(f). In the circuit court Wade filed a bill of particulars, asking the Commonwealth to state what evidence it relied on to prove the obstruction of justice and capital murder charges. With regard to the obstruction of justice charge, the Commonwealth answered: “She attempted to impede Jerry Caldwell in the performance of his duty by firing a shot at him.” With regard to the capital murder charge, the Commonwealth responded: “Firing a gun at Deputy Jerry Caldwell.” Wade withdrew her appeal of the obstruction of justice charge and stood convicted in the general district court on that charge. She then filed a motion asking the circuit court to bar prosecution of the felony charge under Code § 19.2-294. We held that because the “same act” was used to prove the violation of both statutes, the conviction of capital murder could not stand. The firing of a shot at Jerry Caldwell constituted one unlawful act. Id. at 365, 388 S.E.2d at 280.
The defendant in the instant case can be guilty of evading a police officer after receiving a signal to stop without violating any traffic regulation. He can also be guilty of reckless driving without evading a police officer. These two offenses are based upon different and distinct acts and neither is barred by Code § 19.2-294. The majority has ignored the language of the statute and a long *270line of Supreme Court decisions.
For the foregoing reasons, I would affirm the judgment of the trial court.
Judge Cole participated in the hearing and decision of this case prior to the effective date of his retirement on April 30, 1991 and thereafter by designation pursuant to Code § 17-116.01.
Effective October 1, 1989, Title 46.1 was repealed and recodified as Title 46.2. In the recodification, former Code § 46.1-192.1 was removed from Chapter 4, article 3, and relocated as Code § 46.2-817 in Chapter 8, article 1.
Code § 46.1-189 in the 1989 recodification is renumbered as Code § 46.2-852.