COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
RONNIE DWAYNE MARLOWE
MEMORANDUM OPINION* BY
v. Record No. 0519-98-3 JUDGE RUDOLPH BUMGARDNER, III
MARCH 16, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
(Jesse W. Meadows, III, on brief), for
appellant. Appellant submitting on brief.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Ronnie Dwayne Marlowe appeals his conviction of contempt for
failing to provide health insurance for his children. He argues
that the conviction is a second prosecution for the same offense
that violates the prohibition against double jeopardy. Finding
that he has failed to provide an adequate record on appeal, we
dismiss his appeal.
In 1988, the juvenile and domestic relations district court
ordered the defendant to provide health insurance for his
children. That court issued a show cause order. The defendant
appealed to the circuit court, and it held him in contempt. The
circuit court sentenced the defendant to six months in jail
suspended on the condition that he obtain the health insurance.
On April 16, 1997, the defendant was returned to court for
failure to provide health insurance. The trial court found him
guilty and imposed the previously suspended six-month sentence.
The defendant served the sentence from April 8, 1997 through July
3, 1997.
On July 2, 1997, a second show cause order issued for
failure to obey the 1988 order. The defendant pled former
jeopardy arguing that it was unconstitutional to try him twice
for violating that order. The court overruled his objections,
found him guilty, and sentenced him to twelve months in jail.
A defendant who pleads double jeopardy has the burden of
establishing "the identity of the offenses." Low v.
Commonwealth, 11 Va. App. 48, 50, 396 S.E.2d 383, 384 (1990).
"The burden is upon the appellant to provide us with a record
which substantiates the claim of error. In the absence thereof,
we will not consider the point." Jenkins v. Winchester Dep't of
Social Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991)
(citation omitted). This Court "cannot base its decision upon
appellant's petition or brief, or statements of counsel in open
court. We may act only upon facts contained in the record."
Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6
(1993).
In order to establish the identity of the offenses for his
double jeopardy plea, the defendant must show that the offenses
are the same and require proof of the same facts. The documents
necessary to decide this case are: the show cause order dated
November 14, 1995; the show cause order initiating the revocation
hearing held April 16, 1997; and the order dated April 16, 1997
that revoked the suspended sentence. These orders are not part
of the record. Without them, this Court cannot decide the issue
presented on appeal.
Lacking an adequate record, we dismiss the appeal and affirm
the conviction.
Affirmed.
*Pursuant to Code 17.1-413, recodifying Code 17-116.010,
this opinion is not designated for publication.
