COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Kelsey 

Argued at Richmond, Virginia 

BRIAN ODELL TOLSON 

 MEMORANDUM OPINION*

 BY 

v. Record No. 1367-04-2 JUDGE LARRY G. ELDER 

 APRIL 19, 2005 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF LANCASTER COUNTY 

Harry T. Taliaferro, III, Judge 

 William A. Nunn, III (William A. Nunn, III, P.C., on brief), for 

appellant. 

 Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore, 

Attorney General, on brief), for appellee. 

 Brian Odell Tolson claims on appeal that his misdemeanor conviction for driving on a 

suspended license and his felony habitual offender conviction involve the same offense for double 

jeopardy purposes. To remedy this violation, he argues, the circuit court should have dismissed the 

felony conviction. We hold Tolson failed to establish the identity of the offenses under the facts of 

this case. Thus, we affirm his conviction without reaching the merits of his claim that driving on a 

suspended license is a lesser-included offense of driving after having been declared a habitual 

offender. 

I. 

 In December 2003, a state trooper stopped Tolson for speeding in Lancaster County. 

During the stop, Tolson admitted “that he was suspended,” and a Department of Motor Vehicles 

check confirmed that his license had been “suspended with notification.” The trooper issued a 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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misdemeanor summons charging Tolson with “driving while suspended, 2nd or subsequent, namely 

6th,” in violation of Code § 46.2-301. A few weeks later, the trooper learned that Tolson had been 

adjudicated a habitual offender and had previously been convicted of driving under that status. The 

trooper then obtained a felony warrant charging Tolson with driving after having been adjudicated a 

habitual offender, second or subsequent offense, in violation of Code § 46.2-357. 

 In the general district court, the trial on the misdemeanor and the preliminary hearing on the 

felony were heard at the same time. The general district court convicted Tolson for the 

misdemeanor offense of “driving while suspended” and certified the felony to the grand jury. 

Tolson did not appeal his misdemeanor conviction to the circuit court. 

 After the grand jury indicted Tolson for the felony, he moved the circuit court to dismiss the 

indictment, arguing that under double jeopardy principles, his unappealed misdemeanor conviction 

barred further prosecution on the felony. He contended that both his misdemeanor conviction under 

Code § 46.2-301 and the felony charge for violating Code § 46.2-357 “were based on the same 

facts, same incident” and that the charge for “driving under [a] revoked or suspended operator’s 

license is subsumed into the habitual offender charge.” 

 The Commonwealth responded as follows: 

[T]he Court probably doesn’t often see people charged with both 

driving after being declared an habitual offender, either a felony or 

a misdemeanor, and driving while suspended or revoked in 

violation of [Code §] 46.2-301. But in this particular case, as a 

matter of prosecutorial discretion, the Commonwealth elected to 

prosecute the Defendant for both because the Defendant has 

separate orders for suspension which bring into play [Code 

§] 46.2-301 . . . . 

A copy of Tolson’s driving record admitted into evidence showed he was adjudicated a habitual 

offender in 1999 based on convictions rendered in 1996, 1998 and 1999. The prosecutor then 

outlined numerous occasions subsequent to Tolson’s 1999 habitual offender adjudication, 

documented by his driving record, on which his license was suspended with notification. The 
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Commonwealth argued the fact that the act of driving that supported conviction for both offenses 

was the same did not compel a finding that the offenses themselves were the same for purposes 

of double jeopardy analysis. Tolson again argued that the offenses were the same but did not 

address the issue of his numerous suspensions subsequent to his habitual offender adjudication 

and whether they were offered as the basis for his conviction on the misdemeanor charge. 

 The circuit court denied the motion to dismiss and convicted Tolson of driving as a 

habitual offender in violation of Code § 46.2-357. 

II. 

 Double jeopardy principles forbid the imposition of multiple punishments for the “same 

offense” in a simultaneous prosecution and likewise bar the assertion of criminal charges on the 

“same offense” in a successive prosecution. See Winston v. Commonwealth, 268 Va. 564, 614, 

604 S.E.2d 21, 49 (2004); Stephens v. Commonwealth, 263 Va. 58, 62, 557 S.E.2d 227, 229 

(2002). One offense is the same as another if it involves “the identical act and crime both in law 

and fact.” Henson v. Commonwealth, 165 Va. 829, 832, 183 S.E. 438, 439 (1936) (citation 

omitted) (emphasis added). A defendant bears the burden of establishing the identity of the 

offenses material to his double jeopardy plea. Cooper v. Commonwealth, 13 Va. App. 642, 644, 

414 S.E.2d 435, 436 (1992). “Customarily, a defendant carries this burden ‘by production of the 

record or transcript of the initial trial.’” Id. (quoting Low v. Commonwealth, 11 Va. App. 48, 

50, 396 S.E.2d 383, 384 (1990)). 

 In Tolson’s case, his only evidence to substantiate the double jeopardy claim was the 

summons, which reflected a conviction for “driving while suspended” in violation of Code 

§ 46.2-301, based on an act of driving committed at 7:10 a.m. on December 31, 2003. Although 

the evidence adduced at trial established that the charge of driving after having been declared a 

habitual offender in violation of Code § 46.2-357 was based on the same act of driving, a 
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conviction for the felony offense required proof of an act of driving that occurred after the 

revocation of one’s license rather than after the suspension thereof. The Commonwealth’s 

evidence established that Tolson’s 1999 habitual offender adjudication was based on convictions 

for violating Code § 46.2-301 in 1996, 1998 and 1999. Further, the Department of Motor 

Vehicles’ transcript of Tolson’s driving record revealed that his license had been suspended with 

notification on numerous occasions subsequent to the 1999 revocation of his license based on his 

adjudication as a habitual offender. In opposing Tolson’s double jeopardy motion, the 

Commonwealth argued, 

[T]he Court probably doesn’t often see people charged with both 

driving after being declared an habitual offender, either a felony or 

a misdemeanor, and driving while suspended or revoked in 

violation of [Code §] 46.2-301. But in this particular case, as a 

matter of prosecutorial discretion, the Commonwealth elected to 

prosecute the Defendant for both because the Defendant has 

separate orders for suspension which bring into play [Code 

§] 46.2-301 . . . . 

(Emphasis added). In the absence of evidence from Tolson establishing that the conviction for 

the misdemeanor offense was based on the same revocation as his felony charge, he has failed to 

establish the identity of the “act and crime both in law and fact.” Henson, 165 Va. at 832, 183 

S.E. at 439 (citation omitted) (emphasis added). Thus, the trial court’s denial of his motion to 

dismiss on double jeopardy grounds was not error.1

 1

 We need not decide whether a suspended license misdemeanor should be treated as a 

subset of the habitual offender felony for purposes of the double jeopardy bar when the 

misdemeanor and felony are based on the same revocation. We also need not decide the issue 

addressed in the concurrence--whether Tolson’s failure to appeal his misdemeanor conviction 

would have amounted to a waiver of the right to any remedy if, in fact, a double jeopardy 

violation had occurred. 

Given our holding, any [further] discussion on [the merits of the 

double jeopardy defense and remedy] would conflict with two 

principles of judicial self-restraint: “our reluctance to issue what 

amounts to an ‘advisory opinion’ on an inessential subject,” 

Craddock v. Commonwealth, 40 Va. App. 539, 551 n.1, 580 
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III. 

 For these reasons, we hold Tolson failed to establish the identity of the offenses under the 

facts of this case. Thus, we affirm his conviction without reaching the merits of his claim that 

driving on a suspended license is a lesser-included offense of driving after having been declared a 

habitual offender. 

Affirmed.

 

S.E.2d 454, 461 n.1 (2003), and our corresponding desire to decide 

the case “on the best and narrowest ground available[,]” Air 

Courier Conference v. Am. Postal Workers Union, 498 U.S. 517, 

531, 111 S. Ct. 913, 922, 112 L. Ed. 2d 1125, 1139 (1991) 

(Stevens, J., concurring). 

Johnson v. Commonwealth, 45 Va. App. 113, 117 n.3, 609 S.E.2d 58, 60 n.3 (2005). 
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Kelsey, J., concurring. 

I concur in the result reached by the majority, but offer a different reason for reaching it. 

In doing so, I see no need to decide the underlying merits of Tolson’s double jeopardy argument. 

The unique procedural posture of this case moots any need to resolve that issue. 

The general district court in this case simultaneously conducted a trial on Tolson’s 

misdemeanor charge and a preliminary hearing on his felony charge. The general district court 

found Tolson guilty of the misdemeanor and certified the felony to the grand jury. Tolson did 

not appeal his misdemeanor conviction to the circuit court. Instead, he filed in the circuit court a 

motion to dismiss the indictment arguing that his misdemeanor conviction ⎯ given its final, 

unappealed status ⎯ barred any further prosecution on the felony. I believe just the opposite is 

true: Tolson’s failure to appeal his misdemeanor conviction barred his motion to dismiss the 

felony indictment. 

Double jeopardy principles preclude the imposition of multiple punishments for the 

“same offense” in a simultaneous prosecution as well as the later assertion of criminal charges on 

the “same offense” in a successive prosecution. See Winston v. Commonwealth, 268 Va. 564, 

614, 604 S.E.2d 21, 49 (2004); Stephens v. Commonwealth, 263 Va. 58, 62, 557 S.E.2d 227, 229 

(2002). A misdemeanor tried by the general district court at the same time as the preliminary 

hearing on a felony charge involves a simultaneous, not successive, prosecution. As the Virginia 

Supreme Court has explained, 

the amenability of the misdemeanor charges to an early conclusion 

in the general district court did not result in a successive prosecution 

of the felony charges in the circuit court. In a criminal case, a 

“prosecution” is the process in which an accused is brought to 

justice from the time a formal accusation is made through trial and 

final judgment in a court of appropriate jurisdiction. The present 

prosecutions were simultaneous, not successive, because they were 

joined in a single evidentiary hearing in the general district court. 

Thus, the later events in the circuit court on the felony charges were 

merely a continuation of the same prosecution. 
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Phillips v. Commonwealth, 257 Va. 548, 553, 514 S.E.2d 340, 343 (1999) (citations omitted) 

(applying simultaneous prosecution principle to Code § 19.2-294), aff’g, 27 Va. App. 674, 

681-82, 500 S.E.2d 848, 851 (1998) (holding that felony and misdemeanor charges, though 

“instituted at separate times,” were part of a simultaneous prosecution when consolidated for a 

hearing in the general district court); see also Dalo v. Commonwealth, 37 Va. App. 156, 162 n.2, 

554 S.E.2d 705, 708 n.2 (2001) (“The charges were instituted at the same time; therefore, this 

appeal does not involve successive prosecutions.”); Freeman v. Commonwealth, 14 Va. App. 

126, 129, 414 S.E.2d 871, 873 (1992). 

In a simultaneous prosecution, “the role of the constitutional guarantee is limited to 

assuring that the court does not exceed its legislative authorization by imposing multiple 

punishments for the same offense.” Stephens, 263 Va. at 62, 557 S.E.2d at 230 (quoting Brown 

v. Ohio, 432 U.S. 161, 165 (1977)); see also Coleman v. Commonwealth, 261 Va. 196, 200, 539 

S.E.2d 732, 734 (2001). “While the Double Jeopardy Clause may protect a defendant against 

cumulative punishments for convictions on the same offense, the Clause does not prohibit the 

State from prosecuting respondent for such multiple offenses in a single prosecution.” Ohio v. 

Johnson, 467 U.S. 493, 500 (1984). In other words, a defendant can be simultaneously 

prosecuted for two crimes constituting a single Blockburger offense; he simply cannot be 

convicted and punished for both offenses. 

The proper remedy for violations of the multiple punishment doctrine is the judicial 

vacatur of the lesser charge, not the greater. See Brown v. Commonwealth, 222 Va. 111, 116, 

279 S.E.2d 142, 145 (1981) (holding that “the proper remedy is to vacate both the conviction and

sentence on the included offense, leaving the conviction and sentence on the greater offense 

intact” (citations omitted and emphasis in original)); Clayton Motors v. Commonwealth, 14 

Va. App. 470, 473, 417 S.E.2d 314, 314 (1992) (“Where a defendant is convicted in a single trial 
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of a lesser included offense and the greater offense, we must vacate the conviction of the lesser 

included offense.”). No double jeopardy precedent authorizes a court, in a multiple punishments 

context, to vacate the greater charge in favor of the lesser. 

Nor does the Double Jeopardy Clause permit the defendant in a simultaneous prosecution 

to choose which conviction he wants to deem void. Thus, a defendant cannot simply plead guilty 

to the lesser charge, consent to the entry of a conviction and sentencing order, and thereby 

preclude the continued prosecution of, and imposition of punishment for, the greater offense. 

Johnson, 467 U.S. at 501-02; see also Rea v. Commonwealth, 14 Va. App. 940, 944-45, 421 

S.E.2d 464, 468 (1992). 

For similar reasons, a defendant cannot claim the protections of double jeopardy after 

receiving a “guilty verdict in the first of two successive prosecutions, when the defendant had 

been responsible for insisting that there be separate rather than consolidated trials.” Johnson, 

467 U.S. at 502 (summarizing Jeffers v. United States, 432 U.S. 137 (1977)). In short, a 

defendant cannot by his own election separate conjoined charges and thereby successfully 

engineer a double jeopardy defense where none would otherwise exist. No defendant should “be 

entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its 

prosecution on the remaining charges.” Id.

In this case, Tolson concedes his misdemeanor and felony charges arose out of a 

simultaneous prosecution. He nonetheless argues that he received two punishments for the same 

offense because, he reasons, the misdemeanor was a lesser-included offense of the felony. By 

his own election, however, Tolson foreclosed any judicial review of the issue by failing to appeal 

the misdemeanor conviction to the circuit court. Because of that decision, the circuit court had 

no authority to provide the only relief requested by Tolson. Double jeopardy principles can 

hardly treat a defendant who appeals his misdemeanor conviction less favorably than a defendant 
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who files no appeal ⎯ leaving an appealing defendant with a felony conviction, while a 

non-appealing defendant walks away with only a misdemeanor conviction. To be sure, a 

constitutional anomaly of this sort would not likely fare well under the scrutiny of settled due 

process norms. 

In sum, no accepted understanding of double jeopardy principles puts the remedy entirely 

in the hands of the defendant. Nor does any other constitutional principle allow a defendant, by 

the simple expedient of not appealing his misdemeanor conviction, to unilaterally excuse himself 

from the continued prosecution of a felony when both have been conjoined in a simultaneous 

prosecution. What has been said in similar contexts can be said here, “neither the Double 

Jeopardy Clause nor any other constitutional provision exists to provide unjustified windfalls.” 

Jones, 491 U.S. at 387. 

For this reason, I would affirm the circuit court’s denial of Tolson’s motion to dismiss the 

habitual offender indictment.