Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant was convicted of DUI, third conviction in five years, his second conviction can be used as a predicate offense even though the conviction was pending on appeal.
A conviction pending on appeal is a final judgment. Further, an order suspending execution of appellant’s sentence did not affect the conviction’s finality.
Final judgment?
“The dispositive issue before this Court is whether a conviction pending on appeal is a final judgment that may be used as a predicate conviction to convict appellant of felony DUI and enhance his punishment. …
“Code § 18.2-270(C)(1) states, ‘Any person convicted of three offenses of § 18.2-266 committed within a 10-year period shall upon conviction of the third offense be guilty of a Class 6 felony.’
“If the three convictions occurred within five years, the person’s sentence ‘shall include a mandatory minimum sentence of confinement for six months’ and ‘a mandatory minimum fine of $1,000.’ …
“In contrast, the sentence for a person ‘convicted of a second offense committed within less than five years after a prior offense’ is a $500 fine and confinement in jail for one month to one year. Code § 18.2-270(B)(1).
“The plain language of Code § 18.2-270 provides that a third DUI conviction is a required element to establish that the offense is a felony and to enhance the punishment imposed. …
“In criminal cases, only final judgments may be appealed. … Under Rule 1:1, a case is ‘final’ when the parties have received ‘all the relief contemplated.’ …
“The Supreme Court has stated that the ‘appeal of a criminal conviction does not affect the finality of judgment, but only suspends the execution of the sentence.’ … Numerous cases of this Court and the Supreme Court of Virginia have allowed convictions pending on appeal to be used in various contexts. …
“The ‘plain purpose’ of Code § 18.2-270 is to deter criminal conduct ‘by increasing punishment for those who repeatedly drive under the influence of alcohol.’ …
“However, the position espoused by appellant would allow defendants a clear opportunity to violate the DUI statute repeatedly but postpone obtaining the final conviction necessary for the requisite predicate offenses for a felony DUI conviction simply by continuing to appeal to this Court, the Supreme Court of Virginia, and even the United States Supreme Court. …
“As the Supreme Court has stated, ‘An interpretation of the statute that allows a defendant to violate it with impunity would be contrary to the clear legislative intent.’ …
“Therefore, we hold that the trial court did not err in allowing appellant’s second DUI conviction to be used as a predicate conviction in finding him guilty of DUI, third conviction within five years, even though that second DUI conviction was then still on appeal.”
Execution of sentence
“Appellant also contends that the trial court’s order ‘suspend[ing] the execution of the sentence for ninety (90) days’ affected the finality of his second DUI conviction such that it could not be used as a predicate conviction in finding him guilty of DUI, third conviction within five years.
“Code § 19.2-319 allows a trial court to postpone the execution of a defendant’s sentence if he indicates his intention to note an appeal. ‘Code § 19.2-322.1 gives the trial court the discretionary authority … to suspend the execution of a sentence by expressly providing that execution of such judgment “may be suspended during an appeal.”’ …
“ However, under neither statute is the original order imposing a sentence not a final order. As the Supreme Court has clearly stated, even suspending execution of a judgment – for the purpose of making an appeal – does ‘not prevent it from becoming final.’ …
“Accordingly, there is no merit to appellant’s claim that his second DUI conviction was not a final judgment simply because the trial court had suspended execution of the sentence for ninety days to allow appellant to note an appeal.”
Yemel’yanov v. Commonwealth, Record No. 0450-22-2, Jan. 10, 2022. CAV (published opinion) (Beales). From the Circuit Court of Henrico County (Wallerstein Jr.). Edward K. Nickel for appellant. Matthew J. Beyrau, Jason S. Miyares for appellee. VLW 023-7-003, 8 pp.
