Com. v. Dalton, 1790-89-3

• Decision Date: 05 February 1991
• Docket Number: No. 1790-89-3,1790-89-3
• Parties: COMMONWEALTH of Virginia v. Harvey Lee DALTON, Jr. Record
• Court: Virginia Court of Appeals

Page 801

400 S.E.2d 801

11 Va.App. 620

COMMONWEALTH of Virginia v. Harvey Lee DALTON, Jr.

Record No. 1790-89-3.

Court of Appeals of Virginia.

Feb. 5, 1991.

Janet F. Rosser, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Eric K.G. Fiske, Asst. Atty. Gen., on brief), for appellant.

Randolph D. Eley, Jr., Pulaski, for appellee.

Present: COLEMAN, MOON and WILLIS, JJ.

COLEMAN, Judge.

The Commonwealth appeals the decision of the Circuit Court of Pulaski County holding that the evidence failed to prove Harvey Lee Dalton, Jr. to be an habitual offender. See Code §§ 46.1-387.1 through 387.12 (now Code §§ 46.2-351 through 46.2-363). The Commonwealth argues that, pursuant to Code § 46.1-387.3 (now Code § 46.2-352), the evidence established a prima facie case that Harvey Lee Dalton, Jr., the person named in the Department of Motor Vehicles (DMV) record and abstracts of conviction, had been convicted of the requisite offenses to be declared an habitual offender and that Dalton, having denied "the facts as stated therein, [had] the burden of proving the fact is untrue," which he failed to do.

We agree with the Commonwealth that the evidence established a prima facie case and that Dalton failed to go forward with evidence to prove untrue that he was the Harvey Lee Dalton, Jr. who was shown by the DMV record and abstract to have been convicted in the General District Court of Pulaski on January 12, 1982, of "Driving Drunk."

In its order, the trial court expressly found that two of the convictions shown in the DMV record and abstracts certified by the Commonwealth pertained to the Harvey Lee Dalton, Jr. named in the information. The court also found, however, that the second listed conviction, according to the abstract, did not pertain to him because the social security number prefix was listed as "255," when, in fact, Dalton's social security number prefix is "235." In addition, because the summons, of which the abstract was a part, named Harvey Lee Dalton without specifying "Jr.," the court found the evidence insufficient to declare Harvey Lee Dalton, Jr. to be an habitual offender. We hold that the Commonwealth complied with Code § 46.1-387.3 (now Code § 46.2-352) and established a prima facie case that Dalton was an habitual offender. We further hold that no evidence was introduced or appeared of record which was sufficient to rebut the presumption or prove the fact untrue that Harvey Lee Dalton, Jr., shown by the certified DMV record and abstract, was the same Harvey Lee Dalton, Jr. named in the information. Accordingly, we reverse the trial court and remand the proceeding for entry of an order in accordance with this holding.

The certified DMV record contained one abstract of conviction which showed that Harvey Lee Dalton, Jr. (the abstract showed that the name "Harry" had been interlined at some unspecified time and "Harvey" written in above), a white male who lived at 135 West Main Street, Pulaski, Virginia, with a birthdate of February 2, 1954, was convicted of driving drunk. No social security number was listed on that abstract. A second abstract of conviction showed that Harvey Lee Dalton, a white male who lived in Pulaski, Virginia, with a birthdate of February 2, 1954, and a social security number of 235-86-1945, was convicted of driving on a suspended license. A third abstract of conviction, which is the one in controversy, showed that Harvey Lee Dalton, Jr., a white male who lived at 135 West Main Street, Pulaski, Virginia, was convicted of driving drunk. The birthdate on this abstract is not entirely legible, but the year, "54," is clear. Also, the abstract was not clearly legible as to one digit of the social security number, whether it read "255-86-1945" or whether it was "235-86-1945," the latter being the social security number which corresponded to the number shown for Harvey Lee Dalton, Jr. in one of the other abstracts. The trial court made a factual determination that the listed social security number in the abstract was "255-86-1945," ruling that it was not the social security number for Harvey Lee Dalton, Jr. because it did not correspond by one digit to the social security number listed for Dalton in one of the other abstracts. Based on the discrepancy which the court found in...