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Moore v. Commonwealth3/24/1992
OPINION BY JUDGE LARRY G. ELDER
Richard Carl Moore, Jr., appellant, appeals from his conviction for violating Code § 46.2-357, operation of a motor vehicle after having been adJudged an habitual offender. On appeal, appellant asserts that previous convictions for reckless driving and for failing to stop and attempting to elude a police officer barred the habitual offender charge on double jeopardy grounds. We affirm the judgment of the trial court.
At about 11:00 p.m. on February 5, 1990, Hopewell City police officers observed appellant operating a motor vehicle in that city. Based on what officers observed, Moore was convicted in the General District Court of the City of Hopewell of two misdemeanors: failure to stop and attempt to elude police, under Code § 46.2-817, and reckless driving, under Code § 46.2-852. Charges of driving under the influence and refusal to take a blood or breath test were nolle prossed. A felony charge of operating a motor vehicle after having been adJudged an habitual offender was certified to the grand jury, which indicted appellant on the charge. Moore did not appeal his misdemeanor convictions.
The trial Judge in the circuit court overruled appellant's contention that his misdemeanor driving convictions barred prosecution of the habitual offender charge. At trial, two police officers testified that they had observed appellant operating a motor vehicle in Hopewell. The court found appellant guilty and sentenced him to five years in the penitentiary.
The Commonwealth contends that appellant's claim on appeal that his felony conviction constituted double jeopardy is procedurally
barred. The Commonwealth reasons that, although appellant asserted that he had been convicted of two misdemeanors, he never introduced evidence to support this allegation.
As was the case in Low v. Commonwealth, 11 Va. App. 48, 50, 396 S.E.2d 383, 384 (1990), a fair reading of the trial transcript shows that, in its argument against appellant's special plea of former jeopardy, the Commonwealth conceded that appellant had "been tried" on the prior "crimes."
So not only is it a situation where we are simply adding one more element such as in this case that he had been declared a habitual offender, all of the crimes that he has been tried on require additional elements themselves. They're not even lesser included. They require additional elements themselves. (emphasis added).
These statements may not constitute an express concession of appellant's misdemeanor convictions; however, the clear import of the Commonwealth's position is that had the earlier prosecutions not taken place, it would not have found it necessary to argue that these earlier convictions were not lesser included offenses. Had the earlier proceedings not taken place, the Commonwealth would have had no reason to distinguish them from those at issue on this appeal. "Having conceded the matter before the trial Judge, the Commonwealth is bound by its concession and is not entitled to raise this issue for the first time on appeal." Low, 11 Va. App. at 51, 396 S.E.2d at 384.
In Grady v. Corbin, 110 S. Ct. 2084 (1990), the United States Supreme Court held that the traditional Blockburger "same element" test constitutes the first step in determining whether double jeopardy bars a subsequent prosecution. Grady, 110 S. Ct. at 2090. The test referred to is set out in Blockburger v. United States, 284 U.S
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