COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Bray 

Argued at Norfolk, Virginia 

ANTHONY LEE VAUGHAN, JR. 

 MEMORANDUM OPINION*

v. Record No. 1069-96-1 BY JUDGE JOSEPH E. BAKER 

 APRIL 15, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

William F. Rutherford, Judge 

 Jeffrey M. Hallock for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief) for appellee. 

 Anthony Lee Vaughan, Jr. (appellant) appeals the decision of 

the Circuit Court of the City of Norfolk (trial court) to revoke 

the suspension of his ten year prison sentence for possession of 

cocaine with intent to distribute. Appellant contends (1) that 

the trial court abused its discretion in denying a continuance of 

appellant's revocation proceeding until appellant's sentencing 

for the predicate offense and (2) that due process requires that 

when a subsequent conviction is to be used as a predicate for a 

violation of probation, said predicate conviction must be final. 

 Finding no error, we affirm the trial court's decision to revoke 

appellant's probation. 

 Upon familiar principles, we view the evidence in the light 

most favorable to the Commonwealth, granting to it all reasonable 

 

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

designated for publication. 
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inferences fairly deducible therefrom. Martin v. Commonwealth, 4 

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

accordingly, the record reveals that on February 6, 1995, 

appellant was convicted of possession of cocaine with intent to 

distribute in the trial court and was sentenced to probation with 

a suspended prison term. While on probation, appellant was 

charged with a new drug offense (predicate offense) and was tried 

before Judge Lydia C. Taylor. 

 In the revocation proceeding, appellant did not dispute that 

he was convicted by Judge Taylor for the predicate offense, that 

defense counsel had argued that the evidence was insufficient to 

convict appellant of the predicate offense, and that Judge Taylor 

had advised defense counsel that she would look at any cases he 

would submit at sentencing but as of now appellant is convicted. 

Appellant moved for a continuance of the revocation hearing 

because his sentencing hearing for the predicate offense had not 

yet occurred. The trial court refused to grant a continuance, 

and appellant was found in violation based upon the predicate 

offense. 

I. Abuse of Discretion

 Where denial of a continuance has not prejudiced a 

defendant, there is no abuse of discretion. Cardwell v. 

Commonwealth, 248 Va. 501, 509, 450 S.E.2d 146, 151 (1994). 

Appellant has failed to show that he was prejudiced in any way by 

the trial court's denial of his motion for continuance. 
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 The trial court heard the representations of the Assistant 

Commonwealth's Attorney who personally prosecuted the predicate 

offense without any objection by appellant. She informed the 

trial court that appellant's predicate offense was "a 

circumstantial case of distribution where the [appellant] was 

partners with another individual who made an actual distribution 

to an undercover vice and narcotics officer." She also informed 

the trial court that appellant had already been found guilty of 

the predicate offense. This showed substantial misconduct and 

was sufficient grounds for revocation of appellant's probation. 

See Marshall v. Commonwealth, 202 Va. 217, 220-21, 116 S.E.2d 

270, 273-74 (1960). 

 Even if the finding of guilty had not ripened into a final 

judgment of conviction on the predicate offense, the trial court 

could still have revoked appellant's probation. A final 

conviction is not required in order to constitute grounds for 

revocation. Id. at 221, 116 S.E.2d at 274. However, the 

undisputed representations of the Commonwealth's attorney at 

appellant's revocation hearing clearly reveal that Judge Taylor 

had found appellant guilty of the predicate offense. "That the 

trier of fact in a criminal proceeding found beyond a reasonable 

doubt that the defendant violated a state law is sufficient 

evidence to support the trial court's finding." Patterson v. 

Commonwealth, 12 Va. App. 1046, 1049, 407 S.E.2d 43, 45 (1991). 

 Thus, the representations made to Judge Rutherford 
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concerning (1) the evidence which had been presented to Judge 

Taylor and (2) Judge Taylor's finding appellant guilty of the 

predicate offense constituted sufficient grounds for the 

revocation. The trial court was not shown to have abused its 

discretion in denying the continuance. 

II. Due Process

 On appeal, appellant contends that the trial court deprived 

him of due process in his revocation hearing. However, he never 

in the trial court invoked due process of law or any other 

constitutional argument. His constitutional arguments are 

therefore procedurally defaulted under Rule 5A:18. See Barnabei 

v. Commonwealth, 252 Va. 161, 171, 477 S.E.2d 270, 276 (1996). 

 For the foregoing reasons, the judgment of the trial court 

is affirmed. 

 Affirmed.