ROBERT LEONARD SLATER, JR. v. COMMONWEALTH OF VIRGINIA
No. 0522-91-2
Richmond
Decided January 12, 1993
593
Claire E. Keena (Charles J. Zauzig, III; Nichols, Bergere, Borinsky & Zauzig, P.C., on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Mary Sue Terry, Attorney Gеneral, on brief), for appellee.
OPINION
WILLIS, J.—Convicted in a bench trial of operating a motor vehicle after having been declared an habitual offender, the appellant, Robert L. Slater, Jr., cоntends (1) that his conviction was barred by
On Dеcember 22, 1980, the Circuit Court of Prince William County declared Slater to be an habitual offender under
Over objection, the trial court received into evidence a copy of the Prince William County Circuit Court order adjudicating Slater an habitual offender. Karen Raymond, a deputy clerk of the Prince William County Circuit Court, certified thе order as a true copy. A Prince William County Circuit Court judge certified that Karen Raymond was a deputy clerk, that the certificate was in due form, and that the official acts of a deputy clerk are еntitled to full faith and credit.
If the same act be a violation of two or more statutes . . . conviction undеr one of such statutes . . . shall be a bar to a prosecution or proceeding under the other.
Slater argues that the charges of driving while intoxicated and driving after having been adjudged an habitual offendеr were based on the same act of driving and that his conviction of the former on August 23, 1990, barred his prosecution and conviction for the latter. We disagree.
By its terms, the statute only bars “prosecution[s] or proceeding[s]” after there has been a “conviction.” A “prosecution or proceeding” after a “conviction,” by definition requires multiple or successive proceedings or prosecutions.
Hall v. Commonwealth, 14 Va. App. 892, 897, 421 S.E.2d 455, 459 (1992) (еn banc). Where charges are brought simultaneously, the amenability of one to early conclusion whilе the other requires further proceedings, does not alter the fact that the proceedings are concurrent, not successive, prosecutions. Freeman v. Commonwealth, 14 Va. App. 126, 129, 414 S.E.2d 871, 873 (1992).
In Freeman, the defendant was simultaneously charged with statutory burglary of his estranged wife‘s home and with petit larceny of her property. The juvenile and domestic relations district court convicted him of the petit larceny and certified the burglary charge to the cirсuit court. Rejecting the defendant‘s argument that under the rule of Grady v. Corbin, 495 U.S. 508 (1990), the larceny conviction barred his prosecution for the burglary, we said:
The burglary and larceny charges were instituted simultaneously by the issuance of warrants which were brought together for hearing in the juvenile and domestic relations court . . . . The amenability of the misdemeanor charge to early conclusion, whereas the felony charge required furthеr proceedings, all pursuant to established rules of procedure, does not alter the fact that these were concurrent, not successive, prosecutions.
Freeman, 14 Va. App. at 128, 414 S.E.2d at 873.
Even were
Slater next contends that the Prince William County order should not have been recеived into evidence because it was not certified as required by
The records of any judicial proceeding and any other offiсial records of any court of this Commonwealth shall be received as prima facie evidence provided that such records are authenticated and certified by the clerk of the court whеre preserved to be a true record.
The certification appended to the Prince William County order satisfied the requirements of that statute. See Owens v. Commonwealth, 10 Va. App. 309, 311, 391 S.E.2d 605, 606-07 (1990).
The judgment of the trial court is affirmed.
Affirmed.
Elder, J., concurred.
Benton, J., dissenting.
I would also hold that in Padgett v. Commonwealth, 220 Va. 758, 263 S.E.2d 388 (1980), the Supreme Court of Virginia implicitly overruled the elements of the offense analysis found in Estes v. Commonwealth, 212 Va. 23, 181 S.E.2d 622 (1971).