THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Stephen C.
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.
J. HUMPHREYS, JUDGE.
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
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
Standard of Review
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."
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).
Imposition of Driving Prohibition
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 §
19.2-303 provides that the "trial court [may] suspend
the execution of a sentence without regard to the maximum
period for which a ...