                      COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Elder and
          Senior Judge Coleman
Argued at Salem, Virginia


EDWARD J. TERRY
                                            MEMORANDUM OPINION * BY
v.   Record No. 0959-02-3          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                APRIL 15, 2003
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                     Charles J. Strauss, Judge
           Greg T. Haymore (Turpin & Haymore, P.C., on
           brief), for appellant.

           H. Elizabeth Shaffer, Assistant Attorney
           General (Jerry W. Kilgore, Attorney General,
           on brief), for appellee.


     Edward J. Terry (appellant) was convicted of speeding and,

later, indicted and convicted of operating a motor vehicle after

being adjudicated an habitual offender, third offense.     Both the

speeding and the habitual offender charge arose from events that

culminated in the same traffic stop.    The sole issue raised on

appeal is whether Code § 19.2-294 barred the habitual offender

conviction.   Finding no error, we affirm.

                            I.   BACKGROUND

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to that evidence all




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
reasonable inferences fairly deducible therefrom.    See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

     On May 5, 2000, Officer Billy Crowe of the Town of Hurt

Police Department stopped appellant for driving sixty miles an

hour in a forty-five miles an hour zone.   Officer Crowe determined

that appellant's license was suspended and charged him with

driving on a suspended operator's license and speeding.

     On June 27, 2000, appellant was convicted on the speeding

charge, but at that hearing the Commonwealth disposed of the

charge of driving on a suspended operator's license by nolle

prosequi after appellant's DMV record showed him to be an habitual

offender.   On August 21, 2000, appellant was indicted for

operating a motor vehicle after being declared an habitual

offender in violation of Code § 46.2-357, third or subsequent

offense.

     Appellant filed a motion to dismiss the habitual offender

indictment because the speeding and habitual offender charges

arose from the same act and were, therefore, barred by Code
§ 19.2-294.   The trial court denied the motion stating:

            Here we have him going through radar at
            point A and later he continues driving. He
            may have slowed down at that point. He may
            have sped up. I don't know what he did, but
            it seems to me that at that point anything
            that he commits after he's speeding is
            another separate act, or can be another
            separate act, and they're not, in fact,
            simultaneous.

Appellant was convicted of the habitual offender charge and

sentenced to five years incarceration with four years suspended.

He appeals this conviction.


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                             II.    Analysis

     Appellant contends the trial court erred in denying his

motion to dismiss the indictment pursuant to Code § 19.2-294.

Appellant argues that his only "act" was driving the vehicle and,

therefore, he cannot be convicted of being an habitual offender

after having been previously convicted of speeding arising from

the same act.   We disagree.

     Code § 19.2-294 states in pertinent part that "[i]f 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."
     "[I]f two offenses involve 'two separate and distinct acts,'

conviction of one does not bar a prosecution for the other."     Lash

v. County of Henrico, 14 Va. App. 926, 930, 421 S.E.2d 851, 853

(1992) (en banc).    "[A] conviction of one statutory offense does

not bar conviction under another statutory offense if each offense

could have been proven without the necessity of proving the

other."   Fitzgerald v. Commonwealth, 11 Va. App. 625, 628, 401

S.E.2d 208, 210, aff'd on reh'g en banc, 13 Va. App. 281, 411
S.E.2d 228 (1991).    "The test of whether there are separate acts

sustaining several offenses is whether the same evidence is

required to sustain them."     Treu v. Commonwealth, 12 Va. App. 996,

997, 406 S.E.2d 676, 677 (1991) (internal quotations omitted).

"In applying the 'same evidence' test, 'the particular criminal

transaction must be examined to determine whether the acts are the

same in terms of time, situs, victim, and the nature of the act

itself.'"   Johnson v. Commonwealth, 38 Va. App. 137, 146, 562



                                   - 3 -
S.E.2d 341, 345 (2002) (quoting Hall v. Commonwealth, 14 Va. App.

892, 898, 421 S.E.2d 455, 459 (1992) (en banc)).

     The instant case is controlled by our recent decision in

Johnson.    After being stopped for having an invalid inspection

decal, Johnson told the police his license was suspended.     The

police computers were inoperable at the time of the traffic stop,

and the information could not be verified.    Johnson was charged

with driving on a suspended license.    He later pled guilty and

was sentenced in general district court.   After trial, the

officer determined Johnson had been adjudicated an habitual

offender before the inspection violation stop.     Johnson was then

indicted for driving after having been adjudicated an habitual

offender.   As in the instant case, Johnson argued that Code

§ 19.2-294 precluded his conviction.
     In affirming the trial court, we said:

            In Hall, we instructed that determination of
            an "act" in the context of Code § 19.2-294
            required consideration of the time, situs,
            victim and the nature of the act. Here,
            assuming time, situs and victim coincided,
            the nature of the specific act peculiar to
            each prosecution is distinct. In the first
            instance defendant admittedly was unlawfully
            operating a vehicle while his privileges
            were in suspension. In contrast, the
            subject prosecution resulted from such
            operation after he had been adjudicated an
            habitual offender. While driving was
            conduct common and necessary to each
            offense, the legal disability upon defendant
            that attended and was integral to the
            respective acts was significantly different.
            Thus, the "same evidence" would not produce
            a conviction for both offenses.
            Accordingly, the disparate "nature" of the
            acts saves the instant prosecution from the
            reach of Code § 19.2-294.


                                - 4 -
Id. at 147, 562 S.E.2d at 346 (emphasis added).

     The same rationale is equally applicable here.     In the

instant case the speeding charge and habitual offender charge

require different evidence.   Thus, the "nature of [each] specific

act" is separate and distinct.    While the method of operating a

motor vehicle is at issue in both charges, "the nature of the

specific act peculiar to each prosecution is different."    Id.

     Accordingly, we affirm the judgment of the trial court.

                                                           Affirmed.




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