Roy Edgar Morrisette v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: August 8, 2000
• Docket: 1648991
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Humphreys and Senior Judge Overton Argued at Chesapeake, Virginia

ROY EDGAR MORRISETTE MEMORANDUM OPINION * BY v. Record No. 1648-99-1 JUDGE ROBERT J. HUMPHREYS AUGUST 8, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Samuel Taylor Powell, III, Judge

Fredrick A. Reese (Horne, West & Luck, P.C., on brief), for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Roy Edgar Morrisette appeals from his conviction in a bench

trial for driving on a suspended license. The sole question on

appeal is whether the evidence was sufficient to establish that

Morrisette had notice that his driver's license was suspended.

For the reasons that follow, we find that the evidence was

sufficient and affirm his conviction.

I. Background

The parties are fully conversant with the facts of this

case, and this memorandum opinion recites only those facts

necessary to the disposition of this appeal.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. On December 13, 1998, Morrisette was involved in an

accident with another vehicle. Morrisette left the scene of the

accident after it occurred. Morrisette was then stopped by a

police officer shortly after driving away from the accident

scene. During the traffic stop, the police officer determined

that Morrisette's driver's license was suspended and arrested

Morrisette for driving on a suspended license. 1

At trial, the prosecutor introduced an abstract of

Morrisette's driving record from the Department of Motor

Vehicles (DMV). At the conclusion of the Commonwealth's

case-in-chief, Morrisette moved to strike the Commonwealth's

evidence on the charge of driving with a suspended license,

citing the failure of the Commonwealth to produce evidence that

Morrisette had received notice of the suspension of his license.

The prosecutor agreed that the Commonwealth "had not met its

burden" with respect to the charge of driving on a suspended

license. However, the trial court disagreed and directed the

attention of counsel to the DMV abstract, in evidence as

Commonwealth Exhibit 3, which reflected that Morrisette had been

notified by District Court Form DC225, on November 17, 1998,

that his license was suspended. The trial court then denied

Morrisette's motion to strike.

1 Morrisette was also arrested for driving under the influence of alcohol but his conviction of that offense is not part of this appeal.

- 2 - II. Analysis

When the sufficiency of the evidence is challenged on

appeal, "we review the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom." Archer v. Commonwealth, 26 Va.

App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). "We

will not reverse the judgment of the trial court, sitting as the

finder of fact in a bench trial, unless it is plainly wrong or

without evidence to support it." Reynolds v. Commonwealth, 30

Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).

Morrisette argues that the prosecutor's agreement with his

argument, that the Commonwealth had failed to prove Morrisette

received notice of the license suspension, constituted a

"stipulation" which the trial court was bound to accept. We

disagree.

The Supreme Court of Virginia has held that a stipulation

contemplates "an agreement between counsel respecting business

before a court." Burke v. Gale, 193 Va. 130, 137, 67 S.E.2d

917, 920 (1951). Stipulations ordinarily reflect agreements

between parties as to facts to be considered by the trier of

fact, without the necessity for further proof or further

foundation. We have reviewed the context of the statement made

by the prosecutor and note that the DMV abstract was offered by

the prosecutor as an exhibit and admitted without objection by

- 3 - the appellant. We therefore find the statement of the

prosecutor in this instance to be in the nature of a concession,

involving a purely legal argument, rather than a factual

agreement. Turning to the effect of such a concession, the

Supreme Court of Virginia has noted that, "concessions in

respect to conclusions of law are not binding upon the parties

or the court." Glasco v. Commonwealth, 257 Va. 433, 447 n.7,

513 S.E.2d 137, 145 n.7 (1999) (Lacy, J. concurring) (citations

omitted).

Morrisette's license was suspended for non-payment of fines

pursuant to Code § 46.2-395(C1) which states:

Whenever a person provides for payment of a fine, costs, forfeiture, restitution or penalty other than by cash and such provision for payment fails, the clerk of the court that convicted the person shall send to the person written notice of the failure and of the suspension of his license or privilege to drive in Virginia [District Court Form DC225]. The license suspension shall be effective ten days from the date of the notice. The notice shall be effective notice of the suspension and of the person's ability to avoid the suspension by paying the full amount owed by cash, cashier's check or certified check prior to the effective date of the suspension if the notice is mailed by first class mail to the address provided by the person to the court pursuant to subsection C or § 19.2-354.

(Emphasis added). The statute thus provides that the notice is

sufficient as a matter of law when mailed. Here, the DMV

abstract clearly established that the notice was mailed on

November 17, 1998, and since the abstract was admitted into

- 4 - evidence without objection by Morrisette, the trier of fact was

entitled to consider as evidence any pertinent information

contained therein.

We therefore find, notwithstanding the concession by the

prosecutor to the contrary, the trial court did not err in

finding the evidence established Morrisette was on notice that

his driver's license was suspended.

Affirmed.

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