                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia


TIMOTHY RAY BELVIN
                                           MEMORANDUM OPINION * BY
v.   Record No. 2568-01-1                JUDGE WALTER S. FELTON, JR.
                                              OCTOBER 15, 2002
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
              William H. Oast, Jr., Judge Designate

          David G. Hubbard (Gregory R. Sheldon;
          Goodwin, Sutton & DuVal, PLC, on brief), for
          appellant.

          Eugene Murphy, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Timothy Belvin was convicted in a bench trial of operating a

motor vehicle after having been declared a habitual offender, in

violation of Code § 46.2-357.    On appeal, he contends that the

trial court committed reversible error by failing to grant his

motion to dismiss pursuant to Code § 19.2-294.    We affirm the

judgment of the trial court.

                            I.   BACKGROUND

     On July 13, 2000, Belvin was arrested for driving under the

influence of alcohol, pursuant to Code § 18.2-266, and driving

with a suspended operator's license.     On November 30, 2000, he


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
was convicted of driving under the influence of alcohol.     An

order of nolle prosequi was entered with respect to the charge

of driving on a suspended operator's license.     Belvin appealed

his conviction to the Gloucester County Circuit Court.     However,

on February 12, 2001, he withdrew the appeal and the circuit

court thereupon affirmed the conviction.

     On January 8, 2001, Belvin was indicted on two counts of

feloniously operating a motor vehicle after having been declared

a habitual offender, in violation of Code §§ 46.2-357 and

46.2-357(B)(2). 1   Prior to trial, he filed a motion to dismiss,

pursuant to Code § 19.2-294, on the theory that he was no longer

a habitual offender.    The motion was denied.    On April 24, 2001,

Belvin was convicted of feloniously operating a motor vehicle

after having been declared a habitual offender, in violation of

Code § 46.2-357.    He appeals that conviction.

                            II.     ANALYSIS

     Belvin contends that the trial court committed reversible

error by failing to grant his motion to dismiss, pursuant to

Code § 19.2-294.    We disagree.

     Code § 19.2-294 states in pertinent part:

          If the same act be a violation of two or
          more statutes . . . conviction under one of


     1
       Belvin was originally declared a habitual offender in 1989
after multiple DUI and driving on a suspended license
convictions. In 1991 and 1994, he was convicted of operating a
motor vehicle as a habitual offender. In 1998, the Department
of Motor Vehicles granted Belvin restricted driving privileges.

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            such statutes . . . shall be a bar to a
            prosecution or proceeding under the other or
            others.

The purpose of the statute is "to prevent the prosecutorial

practices of subjecting an accused to the hazards of vexatious,

multiple prosecutions.   Code § 19.2-294 prevents a prosecutor

from subjecting an accused through successive prosecutions to

'embarrassment, expense and ordeal and compelling him [or her]

to live in a continuing state of anxiety and insecurity.'"      Hall

v. Commonwealth, 14 Va. App. 892, 899, 421 S.E.2d 455, 460

(1992) (quoting Grady v. Corbin, 495 U.S. 508, 518 (1990))

(alteration in the original).   "[It] protects against a second

prosecution or proceeding for separate statutory offenses based

on the same act after there has been a conviction for one

offense."    Hall, 14 Va. App. at 899, 421 S.E.2d at 461.

     Belvin argues that the operation of his motor vehicle was

the same act with respect to the November 2000 conviction for

driving under the influence of alcohol and the April 2001

conviction for driving after having been declared a habitual

offender.   Consequently, the habitual offender trial was a

successive proceeding as contemplated by Code § 19.2-294, and

barred.   That interpretation is misplaced.   "In determining

whether the conduct underlying the convictions is based upon the

'same act,' the particular criminal transaction must be examined

to determine whether the acts are the same in terms of time,



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situs, victim, and the nature of the act itself."    Id. at 898,

421 S.E.2d at 459.

     The nature of the act involved in the present case is not

the same.    The Supreme Court has held that, under Code

§ 19.2-294, "one occasion of driving an automobile may give rise

to several acts and offenses that the test of whether there are

separate acts sustaining several offenses 'is whether the same

evidence is required to sustain them.'"    Estes v. Commonwealth,

212 Va. 23, 24, 181 S.E.2d 622, 624 (1971) (per curium) (quoting

Hundley v. Commonwealth, 193 Va. 449, 451, 69 S.E.2d 336, 337

(1952)).    See also Moore v. Commonwealth, 14 Va. App. 198,

200-02, 415 S.E.2d 247, 249-50 (1992); Treu v. Commonwealth, 12

Va. App. 996, 997-98, 406 S.E.2d 676, 677 (1991).   In the

present case, the same evidence was not required to sustain both

charges.    The charge of driving under the influence of alcohol

required proof that Belvin drove or operated a motor vehicle

with a blood alcohol concentration of 0.08% or more.   Code

§ 18.2-266.   Driving after having been declared a habitual

offender required proof of Belvin's status as a habitual

offender and his operating a motor vehicle after having been so

declared. Code § 46.2-357.   Since different evidence is required

to prove each offense, they are separate acts.    See Slater v.

Commonwealth, 15 Va. App. 593, 596, 425 S.E.2d 816, 817-18

(1993).    The fact that the two prosecutions involved the single,

overlapping element of driving a motor vehicle, is not enough to

                                - 4 -
invoke the protection of Code § 19.2-294.   See Moore, 14

Va. App. at 201-02, 415 S.E.2d at 249-50.

     The judgment of the trial court is affirmed.

                                                        Affirmed.




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