Edenton v. Com.

• Decision Date: 15 June 1984
• Docket Number: No. 831312,831312
• Citation: 316 S.E.2d 736,227 Va. 413
• Parties: James Richard EDENTON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 736

316 S.E.2d 736

227 Va. 413

James Richard EDENTON v. COMMONWEALTH of Virginia.

Record No. 831312.

Supreme Court of Virginia.

June 15, 1984.

R. Wayne Dawson, Richmond, for appellant.

Wayne T. Halbleib, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., Walter A. McFarlane, Deputy Atty. Gen., on brief), for appellee.

Present: All the Justices.

PER CURIAM.

The principal question presented by this appeal is whether the misdemeanor of which the accused was convicted was a lesser-included offense of the felony of which he was indicted.

The indictment charged that "James Richard Edenton did operate a motor vehicle ... after having been found to be an habitual offender ... and while the order of the court prohibiting such operation was still in effect" in violation of Code § 46.1-387.8. ¹ At trial, defendant introduced as an exhibit a certified copy of a judgment entered by a circuit court in another circuit holding that the order adjudicating Edenton an habitual offender was void for lack of personal jurisdiction. Upon consideration of that exhibit, the trial court, sitting without a jury, entered judgment convicting Edenton of "operating a motor vehicle without a valid operator's license (Virginia Code Section 46.1-349 ²), a misdemeanor and lesser included offense under the indictment."

A person indicted of a felony may be convicted of any offense which is "substantially charged in the indictment, whether it be felony or misdemeanor." Code § 19.2-285. But, defendant contends, the misdemeanor of which he was convicted is not an offense lesser-included in the felony of which he was indicted.

In Ashby v. Commonwealth, 208 Va. 443, 158 S.E.2d 657 (1968), cert. denied, 393 U.S. 1111, 89 S.Ct. 884, 21 L.Ed.2d 808 (1969), one of the questions on appeal was whether, as the accused argued, the misdemeanor of indecent exposure was an offense lesser-included in the felony of sodomy. Analyzing a statutory predecessor of Code § 19.2-285, we said:

An accused can be acquitted of the greater offense charged in the indictment and at the same trial convicted of lesser offenses if the lesser offenses "be substantially charged in the indictment." [Citation omitted.] But an indictment charging a greater offense can be considered as also charging only those lesser offenses the elements of which are elements of the greater offense, and the accused can be convicted under the indictment only of the greater offense or of such lesser offenses. [Citation omitted.]

Indecent exposure, though it may occur in almost all cases of sodomy ... is not a fact that must be charged or proved to sustain a conviction of sodomy in any case .... Therefore, indecent exposure is not a lesser offense included in the offense of sodomy ....

208 Va. at 444-45, 158 S.E.2d at 658.

The act of operating a motor vehicle on the highways of this Commonwealth is a fact common to the offenses defined in Code §§ 46.1-349 and 46.1-387.8. But the character of the acts proscribed in those statutes is different. The gravamen of the misdemeanor--the crucial element--is the act of operating a motor vehicle by a driver who has not obtained a valid operator's license by making a lawful application and passing the required examination. The gravamen of the felony is the act of operating a motor vehicle by a driver who has been convicted of multiple violations of the traffic laws and formally adjudged to be a danger to other users of the highways. Just as indecent exposure "is not a fact that must be charged or proved to sustain a conviction of sodomy", Ashby, 208 Va. at 445, 158 S.E.2d at 658, the act of driving without a valid operator's license proscribed by Code § 46.1-349 is not a fact that must be charged or proved to sustain a conviction of the felony defined in Code § 46.1-387.8. Consequently, the misdemeanor is not a lesser-included offense.

Nevertheless, the Attorney General reasons that "[i]t is arguable that the last paragraph of § 46.1-387.8 ... was designed to evidence the legislature's understanding" to the contrary. That paragraph provides, in part, that when a driver is charged with the misdemeanor of driving without a license, a district court must certify the case to a circuit court if it determines that the driver previously has been adjudicated an habitual offender.

The Attorney General's argument overlooks a significant fact, one the General Assembly is presumed to have known. Even in this age of computerized information, there remain administrative delays incident to the gathering, publication, and dissemination of statewide driving records. Handicapped by...