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Garibaldi v. Commonwealth

Court of Appeals of Virginia

November 5, 2019

ANTONIO CONCEPCION GARIBALDI
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Stephen C. Mahan, Judge.

          Afshin Farashahi for appellant.

          Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Malveaux and Senior Judge Frank Argued at Hampton, Virginia.

          OPINION

          ROBERT J. HUMPHREYS, JUDGE.

         Appellant Antonio Concepcion Garibaldi ("Garibaldi") appeals the April 30, 2018 final order of the Circuit Court of the City of Virginia Beach ("circuit court"). Garibaldi pled guilty to driving under the influence of alcohol or drugs-prior felony DUI, in violation of Code § 18.2-266 and § 18.2-270; driving on a suspended license-third or greater offense, in violation of Code § 46.2-301; giving false identification to police; failure to identify himself; refusal (third offense); drinking in public; and driving without headlights. Garibaldi assigns one error, arguing that "[t]he [circuit] court erred in imposing, as a condition of the suspended sentence, the prohibition against [his] driving for ten years after release from incarceration because this part of the sentence exceeded what has been statutorily authorized."

         I. BACKGROUND

         Garibaldi stipulated at trial that at 2:00 a.m. on December 2, 2016, he was pulled over by police for driving without headlights. Garibaldi smelled of alcohol, had slurred speech, and bloodshot eyes. When asked, Garibaldi gave his name as Alex Danielle Garibaldi. Garibaldi refused a breathalyzer test. He was arrested and charged, and he pled guilty to the charges listed above. The circuit court sentenced Garibaldi to five years' incarceration for the DUI offense and twelve months in jail for the suspended license. The circuit court then suspended all but one year and ten days of these sentences on the condition that Garibaldi "not operate a motor vehicle under any circumstances at any time during the [ten-year period of good behavior], even if eligible to be licensed."

         II. ANALYSIS

         A. Standard of Review

         "The determination of sentencing lies within the sound discretion of the trial court. A sentencing decision will not be reversed unless the trial court abused its discretion." Martin v. Commonwealth, 274 Va. 733, 735 (2007) (citing Lane v. Commonwealth, 223 Va. 713, 719 (1982)). Concomitant with this sentencing power, Code § 19.2-303 provides that a trial court "may suspend imposition of sentence or suspend the sentence in whole or part and in addition may place the defendant on probation under such conditions as the court shall determine."

         In determining whether a circuit court abused its discretion, "we do not substitute our judgment for that of the trial court. Rather, we consider only whether the record fairly supports the trial court's action." Grattan v. Commonwealth, 278 Va. 602, 620 (2009) (quoting Beck v. Commonwealth, 253 Va. 373, 385 (1997)). "Only when reasonable jurists could not differ can we say an abuse of discretion has occurred." Thomas v. Commonwealth, 44 Va.App. 741, 753, adopted upon reh'g en banc, 45 Va.App. 811 (2005).

         B. Imposition of Driving Prohibition

         Garibaldi contends that the circuit court erred by banning him from driving for a period longer than the relevant statutory penalties allow. We dealt with a nearly identical case in Simmers v. Commonwealth, 11 Va.App. 375, 378 (1990), where a trial court prohibited Simmers from driving for twenty years-double the limit imposed in the instant case-as a condition of his probation. We held that Code ยง 19.2-303 provides that the "trial court [may] suspend the execution of a sentence without regard to the maximum period for which a ...


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