Kenneth Arnold Smith, Jr. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 6, 1996
• Docket: 0247951
• Status: Unpublished

Opinion

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

- 2 - 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,

- 3 - 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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