COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Annunziata and 

 Bumgardner 

Argued at Alexandria, Virginia 

ANTONIO D. MARTINEZ 

 MEMORANDUM OPINION* BY 

v. Record No. 0687-97-4 JUDGE RUDOLPH BUMGARDNER, III 

 APRIL 28, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jane Marum Roush, Judge 

 Cynthia A. Bailey (Rachel A. Daum; Peter D. 

Greenspun & Associates, P.C., on brief), for 

appellant. 

 Eugene Murphy, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Antonio D. Martinez was charged and convicted of driving 

after having been declared an habitual offender. He contends 

that the Commonwealth failed to prove that he had actual 

knowledge of his status. We find that the Commonwealth proved 

knowledge, and affirm his conviction. 

 On June 16, 1996, the defendant was stopped for speeding 89 

miles per hour in a 55 mile per hour zone. He gave a false name, 

several different birth dates, and a partial address. He had 

neither an operator's license nor any other identification. 

Martinez was arrested for driving under the influence of alcohol. 

 At his trial, the defendant testified that he did not know 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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at the time of his arrest that he had been declared an habitual 

offender. Martinez said that he had not been in court when he 

was declared an habitual offender and had never received any 

correspondence from his attorney or from the court advising that 

the adjudication was final. 

 An attorney represented the defendant at all times during 

the habitual offender adjudication proceedings. His attorney had 

requested and received several continuances to await a decision 

in an appellate case that might be favorable to the defendant. 

The defendant did not appear in court after the appellate 

decision was rendered unfavorably to his position. He last 

appeared in defense counsel's office on November 23, 1994. 

Counsel last wrote the defendant December 30, 1994, informing him 

of the continuance to February 10, 1995. The defendant testified 

that he had moved from this address in December 1994, but his 

brother still lived there. His brother gave him all mail that 

was sent to the defendant at that address. 

 Defense counsel was present at the adjudication hearing 

February 10, 1995. Two weeks later the final order was tendered 

for entry. Defense counsel drafted and endorsed the order. To 

the draft order the trial judge appended a note that the 

defendant's driver's license had been surrendered and added a 

direction for the clerk to dispose of it. On February 27, 1995, 

a deputy clerk mailed, by first class mail, a copy of the final 

order to Martinez at 7224 Commerce St., T-2, Springfield, 

Virginia, 22150. The attorney noted an appeal but later withdrew 
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it. 

 The trial court found that the defendant had actual 

knowledge of his adjudication and that under Code § 46.2-355, 

mailing the order to the last address the defendant had given the 

court and counsel was sufficient notice. While not finding his 

testimony particularly credible, the trial judge found that even 

if the defendant had moved, his brother still lived there and the 

defendant still received any mail that arrived for him there. 

 The trial court's factual findings will be upheld if there 

is evidence to support them. When considering the sufficiency of 

the evidence on appeal, the evidence must be viewed in a light 

most favorable to the Commonwealth, granting it all reasonable 

inferences fairly deducible from it. See Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We 

may not disturb the trial court's judgment unless it was "plainly 

wrong or without evidence to support it." Code § 8.01-680; 

Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 385, 

cert. denied, 469 U.S. 873 (1984). 

 Martinez knew from his attorney what would happen if the 

court declared him an habitual offender. He knew of the 

continuances requested to give him every opportunity to avoid 

that adjudication. The defendant was in contact with his 

attorney while the appellate court was deciding the case that 

would bring his case on for final hearing. He still received his 

mail even if he had moved, and the clerk sent the letter to that 

address. His license was surrendered to the court by counsel on 
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the date that the trial court entered the adjudication order. 

When arrested the defendant tried to run from the police, he had 

no operator's license, and he lied about his name and age. 

 All of the circumstances lead to the conclusion made by the 

trial court, that the defendant knew of his habitual offender 

status. Finding the evidence supports the finding of guilt 

proven beyond a reasonable doubt, we affirm. 

 Affirmed.