170 Ga. App. 102 | Ga. Ct. App. | 1984
Craig Benton Webster alleges numerous grounds as error in the trial court’s denial of several pre-trial motions. He filed a notice of appeal in the Supreme Court on July 19, 1983. On July 21, the trial court gave him a Certificate of Immediate Review, but the record does not indicate that he ever applied for or was granted an interlocutory appeal. See requirements of OCGA § 5-6-34 (Code Ann. § 6-701). Only his allegation that he was subjected to double jeopardy is di
Appellant contends that the indictment charging him with driving while a habitual offender under OCGA § 40-5-58 (c) subjected him to double jeopardy since he had been previously convicted of the same offense under the same declaration from the Department of Public Safety declaring him to be a habitual violator.
There is no transcript of the hearing on his plea of double jeopardy and the record only contains a photocopy of a letter from the department which purportedly notified him that he has been declared to be a habitual violator. The dates of the alleged violations which led to this declaration are 10/19/79, 5/28/79, 10/11/78. The indictment alleges that he was driving under the influence on 1/7/83, and on that date was a habitual violator who operated a vehicle after receiving notice that his driver’s license was revoked and that he had not received a valid driver’s license after revocation. He argues he was discharged from his previous sentence by order of the superior court. We are, however, unable to find a copy of that order in the record. Nevertheless, driving a motor vehicle after revocation of a license upon being declared a habitual violator is separate and distinct from the offense which led to his being declared to be a habitual violator. Smith v. State, 248 Ga. 828, 830 (286 SE2d 709) (1982). Thus, it is not necessary to prove the defendant’s prior convictions on a prosecution under the habitual violator statute. Id. The state is required to prove “that the defendant was declared an habitual violator; that his license was revoked; that he received notice that his license was revoked because of his status as an habitual violator; and, that he operated a motor vehicle in this state without having obtained a valid driver’s license.” Noles v. State, 164 Ga. App. 191, 192-193 (296 SE2d 768) (1982). The very essence of the crime is driving after being declared to be a habitual violator. Kimbrell v. State, 164 Ga. App. 344, 346 (296 SE2d 206) (1982).
Accordingly, we find that the trial court did not err in overruling appellant’s plea of former jeopardy.
Judgment affirmed.
