Opinion
FITZPATRICK, J.Kenneth Awkard (appellant) was convicted of driving after having been adjudged an habitual offender in violation of Code § 46.2-357. On appeal, he argues that the trial court erred when it failed to sentence him to a mitigated punishment pursuant to Code § 1-16. We agree and remand for re-sentencing.
On April 28, 1993, appellant pled guilty to the felony of driving after having been adjudged an habitual offender. At the time of the plea, the penalty range for this offense was one to five years in a state correctional facility. Subsequently, on July 1, 1993, Code § 46.2-357 was amended and established a misdemeanor habitual offender offense with a maximum sentence of ninety days in jail and a $2500 fine. The legislature defined misdemeanor violations as those that did not “endanger the life, limb, or property of another.” Code § 46.2-357(B)(1).
At the sentencing hearing on August 25, 1993, appellant and the Commonwealth presented the trial court with the following fully executed “Election and Consent” form:
The Commonwealth, by her attorney, hereby elects to proceed under Section 46.2-357, Code of Virginia, as amended effective July 1, 1993 with respect to the punishment of the *607defendant and the defendant, Kenneth Linwood Awkard, by counsel, hereby consents that his punishment be pursuant to the statute as amended July 1, 1993;
Accordingly, the Commonwealth of Virginia, by her attorney, and the defendant, by counsel, pursuant to the provisions of Section 1-16, Code of Virginia, hereby request that the Court punish the defendant pursuant to the terms of Section 46.2-357, Code of Virginia, as amended effective July 1, 1993 and that the defendant be punished by confinement in jail for no more than ninety (90) days, ten (10) days of which shall not be suspended, and a fine of not more than two thousand five hundred dollars ($2500.00) either or both.
Appellant’s attorney explained the form’s significance: “What the [Cjommonwealth is asking and the defendant joins in the request is . . . that he be sentenced basically under the lesser provisions of what would be the misdemeanor sentencing.” At this hearing, the Commonwealth reaffirmed its earlier willingness to proceed under the amended statute, even though it was not effective at the time of appellant’s plea: “The [c]ourt went through the analysis when it initially determined ... to treat the matter as a felony, even though we were willing for it to go forward as a misdemeanor at that time, that there’s nothing Mr. Awkard did in August of [19] 92 to do anything to qualify him for the treatment under the law as it stood then.” No evidence established that appellant’s driving endangered the “life, limb, or property of another.”
Code § 1-16 states:
[I]f any penalty, forfeiture, or punishment be mitigated by any provision of the new law, such provision may, with the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.
(Emphasis added).
This section provides that the Commonwealth may elect to proceed under the amended statute as long as the defendant consents to the procedure. The discretion as to the election lies with the Commonwealth, not the court. In this case, the Commonwealth elected to sentence appellant under amended Code § 46.2-357, and appellant consented. The trial judge refused to sentence appellant under the amended statute pursuant to the Election and *608Consent form and sentenced appellant to three years in prison with two years suspended.
“It is well established that the choice of offenses for which a criminal defendant will be charged is within the discretion of the Commonwealth’s Attorney.” Kauffmann v. Commonwealth, 8 Va. App. 400, 410, 382 S.E.2d 279, 284 (1989) (citing Davis v. Commonwealth, 4 Va. App. 27, 30, 353 S.E.2d 905, 907 (1987)). “[I]t is a matter of prosecutorial election whether the Commonwealth proceeds under the misdemeanor statute or the felony statute against an accused . . . .” Mason v. Commonwealth, 217 Va. 321, 323, 228 S.E.2d 683, 684 (1976).
In interpreting Code § 1-16, the Virginia Supreme Court held that the “penalty in existence at the time of the offense should be applied unless the Commonwealth first elects to proceed under the new statute and obtains the consent of the defendant to do so.” Ruplenas v. Commonwealth, 221 Va. 972, 978, 275 S.E.2d 628, 632 (1981) (emphasis added). “The election of the Commonwealth to prosecute under the new law, and the privilege of an accused to consent to be tried thereunder, must be exercised before judgment is pronounced.” Abdo v. Commonwealth, 218 Va. 473, 478, 237 S.E.2d 900, 903 (1977).
Neither Ruplenas nor Abdo requires the election to be made prior to a defendant’s plea. “The literal language of Abdo directs that before a new penalty may be imposed the Commonwealth must first elect to proceed under the new law and then the defendant, as the party affected, must consent to its application. Without the concurrence of both parties the previous penalty must apply.” Ruplenas, 221 Va. at 977, 275 S.E.2d at 631. In Abdo, the Supreme Court further defined the timing of the election as “before judgment is pronounced.” Abdo, 218 Va. at 478, 237 S.E.2d at 903. “ ‘[T]he judgment pronounced’ referred to in Code § 1-16 was the judgment the trial court pronounced and entered . . . [at the time] Abdo was formally sentenced to the penitentiary.” Id. at 477-78, 237 S.E.2d at 902.
Both conditions were satisfied at the time of sentencing. At this juncture, the trial court was required to sentence within the mitigated punishment range and follow the limitations of the Election and Consent form submitted by appellant and the Commonwealth pursuant to Code § 1-16.
*609Accordingly, the judgment of the trial court is reversed and the case remanded for re-sentencing.
Reversed and remanded.
Benton, J., concurred.