Estes v. Com.
| Citation | 181 S.E.2d 622,212 Va. 23 |
| Court | Supreme Court of Virginia |
| Decision Date | 14 June 1971 |
| Parties | Johnnie Edward ESTES v. COMMONWEALTH of Virginia. |
S. Page Higginbotham, Orange (N. Brent Higginbotham, Fairfax, Higginbotham & Fry, Orange, on brief), for plaintiff in error.
Robert L. Simpson, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, GORODON, HARRISON, COCHRAN and HARMAN, JJ.
In this case, Johnnie Edward Estes, the defendant, was declared by the trial court to be an habitual offender under the Virginia Habitual Offender Act (Code §§ 46.1--387.1 to 46.1--387.12), hereafter, the Act. This finding was based upon conviction of driving under the influence in 1964 and convictions of driving under the influence and driving on a suspended license in 1968. The question involved here is whether the two 1968 convictions, having resulted from offenses occurring at the same time, arose 'out of separate acts' within the meaning of Code § 46.1--387.2 and count as second and third convictions of the defendant, thereby constituting him an habitual offender.
Under Code § 46.1--387.2, an habitual offender is defined, so far as is pertinent here, as one who, within a ten-year period, accumulates:
'(a) Three or more convictions * * * singularly or in combination, of the following separate and distinct offenses arising out of separate acts:
'(2) Driving or operating a motor vehicle while under the influence of intoxicants or drugs. * * *
'(4) Driving a motor vehicle while his license, permit or privilege to drive a motor vehicle has been suspended or revoked. * * * '
The defendant contends that his two 1968 convictions arose out of but one act of driving and did not, therefore, result from 'separate acts' as contemplated by Code § 46.1--387.2. Thus, he says, the two 1968 convictions should count as only one in determining whether he is an habitual offender. We do not agree.
We think the question before us is resolved by the interpretation we have given to a similar provision in a related statute Code § 19.1--259 (formerly Code § 19--232). That provision is as follows:
'* * * If the same act be a violation of two or more statutes * * * conviction under one of such statutes * * * shall be a bar to a prosecution or proceeding under the other or others. * * *'
We have held that under this provision one occasion of driving an automobile may give rise to several acts and offenses and that the test of whether there are separate acts sustaining several offenses 'is whether the same evidence is required to sustain...
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Davis v. Commonwealth of Va..
...at 346. 10. It is established law that “driving an automobile may give rise to several acts and offenses.” Estes v. Commonwealth, 212 Va. 23, 24, 181 S.E.2d 622, 624 (1971). 11. The Court directed the parties to address this issue at oral argument, and they did so. 12. Although in Phillips ......
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Londono v. Com.
...is required to sustain them.'" Treu v. Commonwealth, 12 Va.App. 996, 997, 406 S.E.2d 676, 677 (1991) (quoting Estes v. Commonwealth, 212 Va. 23, 24, 181 S.E.2d 622, 623-24 (1971)); see also Hundley v. Commonwealth, 193 Va. 449, 451, 69 S.E.2d 336, 337 (1952) (holding that a "test of the ide......
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State v. Underwood, 56581
...enactment as a model. That statute used the exact phrase and had been in litigation before the enactment of ours. Estes v. Commonwealth, 212 Va. 23, 181 S.E.2d 622 (1971). The Estes court concluded that two convictions in one case constituted two convictions under their Habitual Offender Ac......
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Lash v. County of Henrico
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