Edward J Terry v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Coleman
Argued at Salem, Virginia
EDWARD J. TERRY
MEMORANDUM OPINION * BY
v. Record No. 0959-02-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 15, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
Greg T. Haymore (Turpin & Haymore, P.C., on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Edward J. Terry (appellant) was convicted of speeding and,
later, indicted and convicted of operating a motor vehicle after
being adjudicated an habitual offender, third offense. Both the
speeding and the habitual offender charge arose from events that
culminated in the same traffic stop. The sole issue raised on
appeal is whether Code § 19.2-294 barred the habitual offender
conviction. Finding no error, we affirm.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
On May 5, 2000, Officer Billy Crowe of the Town of Hurt
Police Department stopped appellant for driving sixty miles an
hour in a forty-five miles an hour zone. Officer Crowe determined
that appellant's license was suspended and charged him with
driving on a suspended operator's license and speeding.
On June 27, 2000, appellant was convicted on the speeding
charge, but at that hearing the Commonwealth disposed of the
charge of driving on a suspended operator's license by nolle
prosequi after appellant's DMV record showed him to be an habitual
offender. On August 21, 2000, appellant was indicted for
operating a motor vehicle after being declared an habitual
offender in violation of Code § 46.2-357, third or subsequent
offense.
Appellant filed a motion to dismiss the habitual offender
indictment because the speeding and habitual offender charges
arose from the same act and were, therefore, barred by Code
§ 19.2-294. The trial court denied the motion stating:
Here we have him going through radar at
point A and later he continues driving. He
may have slowed down at that point. He may
have sped up. I don't know what he did, but
it seems to me that at that point anything
that he commits after he's speeding is
another separate act, or can be another
separate act, and they're not, in fact,
simultaneous.
Appellant was convicted of the habitual offender charge and
sentenced to five years incarceration with four years suspended.
He appeals this conviction.
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II. Analysis
Appellant contends the trial court erred in denying his
motion to dismiss the indictment pursuant to Code § 19.2-294.
Appellant argues that his only "act" was driving the vehicle and,
therefore, he cannot be convicted of being an habitual offender
after having been previously convicted of speeding arising from
the same act. We disagree.
Code § 19.2-294 states in pertinent part that "[i]f 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."
"[I]f two offenses involve 'two separate and distinct acts,'
conviction of one does not bar a prosecution for the other." Lash
v. County of Henrico, 14 Va. App. 926, 930, 421 S.E.2d 851, 853
(1992) (en banc). "[A] conviction of one statutory offense does
not bar conviction under another statutory offense if each offense
could have been proven without the necessity of proving the
other." Fitzgerald v. Commonwealth, 11 Va. App. 625, 628, 401
S.E.2d 208, 210, aff'd on reh'g en banc, 13 Va. App. 281, 411
S.E.2d 228 (1991). "The test of whether there are separate acts
sustaining several offenses is whether the same evidence is
required to sustain them." Treu v. Commonwealth, 12 Va. App. 996,
997, 406 S.E.2d 676, 677 (1991) (internal quotations omitted).
"In applying the 'same evidence' test, 'the particular criminal
transaction must be examined to determine whether the acts are the
same in terms of time, situs, victim, and the nature of the act
itself.'" Johnson v. Commonwealth, 38 Va. App. 137, 146, 562
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S.E.2d 341, 345 (2002) (quoting Hall v. Commonwealth, 14 Va. App.
892, 898, 421 S.E.2d 455, 459 (1992) (en banc)).
The instant case is controlled by our recent decision in
Johnson. After being stopped for having an invalid inspection
decal, Johnson told the police his license was suspended. The
police computers were inoperable at the time of the traffic stop,
and the information could not be verified. Johnson was charged
with driving on a suspended license. He later pled guilty and
was sentenced in general district court. After trial, the
officer determined Johnson had been adjudicated an habitual
offender before the inspection violation stop. Johnson was then
indicted for driving after having been adjudicated an habitual
offender. As in the instant case, Johnson argued that Code
§ 19.2-294 precluded his conviction.
In affirming the trial court, we said:
In Hall, we instructed that determination of
an "act" in the context of Code § 19.2-294
required consideration of the time, situs,
victim and the nature of the act. Here,
assuming time, situs and victim coincided,
the nature of the specific act peculiar to
each prosecution is distinct. In the first
instance defendant admittedly was unlawfully
operating a vehicle while his privileges
were in suspension. In contrast, the
subject prosecution resulted from such
operation after he had been adjudicated an
habitual offender. While driving was
conduct common and necessary to each
offense, the legal disability upon defendant
that attended and was integral to the
respective acts was significantly different.
Thus, the "same evidence" would not produce
a conviction for both offenses.
Accordingly, the disparate "nature" of the
acts saves the instant prosecution from the
reach of Code § 19.2-294.
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Id. at 147, 562 S.E.2d at 346 (emphasis added).
The same rationale is equally applicable here. In the
instant case the speeding charge and habitual offender charge
require different evidence. Thus, the "nature of [each] specific
act" is separate and distinct. While the method of operating a
motor vehicle is at issue in both charges, "the nature of the
specific act peculiar to each prosecution is different." Id.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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