                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and
     Bumgardner
Argued at Alexandria, Virginia


ANTONIO D. MARTINEZ
                                        MEMORANDUM OPINION * BY
v.   Record No. 0687-97-4            JUDGE RUDOLPH BUMGARDNER, III
                                            APRIL 28, 1998
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Jane Marum Roush, Judge
          Cynthia A. Bailey (Rachel A. Daum; Peter D.
          Greenspun & Associates, P.C., on brief), for
          appellant.

          Eugene Murphy, Assistant Attorney General
          (Richard Cullen, Attorney General, on brief),
          for appellee.



     Antonio D. Martinez was charged and convicted of driving

after having been declared an habitual offender.   He contends

that the Commonwealth failed to prove that he had actual

knowledge of his status.    We find that the Commonwealth proved

knowledge, and affirm his conviction.

     On June 16, 1996, the defendant was stopped for speeding 89

miles per hour in a 55 mile per hour zone.   He gave a false name,

several different birth dates, and a partial address.     He had

neither an operator's license nor any other identification.

Martinez was arrested for driving under the influence of alcohol.

     At his trial, the defendant testified that he did not know

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
at the time of his arrest that he had been declared an habitual

offender.    Martinez said that he had not been in court when he

was declared an habitual offender and had never received any

correspondence from his attorney or from the court advising that

the adjudication was final.

     An attorney represented the defendant at all times during

the habitual offender adjudication proceedings.   His attorney had

requested and received several continuances to await a decision

in an appellate case that might be favorable to the defendant.

The defendant did not appear in court after the appellate

decision was rendered unfavorably to his position.   He last

appeared in defense counsel's office on November 23, 1994.

Counsel last wrote the defendant December 30, 1994, informing him

of the continuance to February 10, 1995.    The defendant testified

that he had moved from this address in December 1994, but his

brother still lived there.    His brother gave him all mail that

was sent to the defendant at that address.
     Defense counsel was present at the adjudication hearing

February 10, 1995.   Two weeks later the final order was tendered

for entry.   Defense counsel drafted and endorsed the order.   To

the draft order the trial judge appended a note that the

defendant's driver's license had been surrendered and added a

direction for the clerk to dispose of it.    On February 27, 1995,

a deputy clerk mailed, by first class mail, a copy of the final

order to Martinez at 7224 Commerce St., T-2, Springfield,

Virginia, 22150.   The attorney noted an appeal but later withdrew

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it.

      The trial court found that the defendant had actual

knowledge of his adjudication and that under Code § 46.2-355,

mailing the order to the last address the defendant had given the

court and counsel was sufficient notice.    While not finding his

testimony particularly credible, the trial judge found that even

if the defendant had moved, his brother still lived there and the

defendant still received any mail that arrived for him there.
      The trial court's factual findings will be upheld if there

is evidence to support them.   When considering the sufficiency of

the evidence on appeal, the evidence must be viewed in a light

most favorable to the Commonwealth, granting it all reasonable

inferences fairly deducible from it.   See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).      We

may not disturb the trial court's judgment unless it was "plainly

wrong or without evidence to support it."    Code § 8.01-680;

Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 385,
cert. denied, 469 U.S. 873 (1984).

      Martinez knew from his attorney what would happen if the

court declared him an habitual offender.    He knew of the

continuances requested to give him every opportunity to avoid

that adjudication.   The defendant was in contact with his

attorney while the appellate court was deciding the case that

would bring his case on for final hearing.   He still received his

mail even if he had moved, and the clerk sent the letter to that

address.   His license was surrendered to the court by counsel on

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the date that the trial court entered the adjudication order.

When arrested the defendant tried to run from the police, he had

no operator's license, and he lied about his name and age.

     All of the circumstances lead to the conclusion made by the

trial court, that the defendant knew of his habitual offender

status.   Finding the evidence supports the finding of guilt

proven beyond a reasonable doubt, we affirm.

                                                        Affirmed.




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