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. 
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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 
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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, 
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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.