Morse v. Com., 0043-87-3

Decision Date21 June 1988
Docket NumberNo. 0043-87-3,0043-87-3
Citation6 Va.App. 466,369 S.E.2d 863
PartiesMichael Andra MORSE v. COMMONWEALTH of Virginia. Record
CourtVirginia Court of Appeals

Andrew W. Slater, Lovingston, for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and COLEMAN and MOON, JJ.

MOON, Judge.

Michael Andra Morse seeks reversal of a judgment adjudicating him an habitual offender pursuant to Code § 46.1-387.1 et seq. He contends that the trial court erroneously relied upon a prior conviction when it declared him an habitual offender. Specifically, Morse asserts that the trial court should not have considered a previous conviction because it was not supported by sufficient evidence. We disagree and hold that a defendant may not raise at the adjudication hearing the sufficiency of the evidence to support an underlying conviction.

Under Code § 46.1-387.2 an individual will be declared an habitual offender after committing three of the enumerated motor vehicle violations within ten years. At Morse's adjudication hearing, the Commonwealth submitted records of three prior convictions: (1) On December 19, 1983, Morse was convicted in the Circuit Court of Amherst County for driving with a suspended license; (2) On October 18, 1982, Morse was convicted in the Circuit Court of Amherst County for driving with a suspended license; and (3) On February 9, 1982, Morse was convicted in the General District Court of Pittsylvania County again for driving with a suspended license.

At the hearing, Morse argued that his February 9, 1982 conviction in Pittsylvania County was invalid because his Division of Motor Vehicles (DMV) record did not indicate that his license was actually suspended on the date of the offense. Morse's DMV record did not reveal whether he had received notice of the license suspension. However, other evidence proved that on April 20, 1981, Morse had been convicted of reckless driving in the General District Court of Lynchburg. The conviction's abstract bore the date of June 12, 1981, and a stamp referring to Code § 46.1-423.3. Code § 46.1-423.3 authorizes the revocation of an operator's license for failure to pay a fine. The record also showed that on April 26, 1982, Morse paid $68 in fines and received a new license.

The trial judge presumed from these facts that on June 2, 1981, Morse's license had been suspended pursuant to Code § 46.1-423.3 because he failed to pay the fines and costs assessed against him in the April 20, 1981 reckless driving charge. The judge then concluded that since the license had been suspended at the time of his February 9, 1982 conviction, the conviction could legitimately support the adjudication as an habitual offender.

On appeal, Morse argues that the trial court incorrectly relied upon the February 9, 1982, conviction. We do not reach the issue whether the trial judge correctly found on the facts that Morse's license had been suspended at the time of the conviction. Instead, we conclude that the sufficiency of the evidence to support the February 9, 1982 conviction cannot be raised at the adjudication hearing.

Generally, a judgment in a criminal case may not be attacked collaterally. Eagle, Star and British Dominions Ins. Co. v. Heller, 149 Va. 82, 100, 140 S.E. 314, 319 (1927). However, a party may assail a void judgment at any time, by either direct or collateral assault. Beck v. Semones' Adm'r., 145 Va. 429, 441, 134 S.E. 677, 680 (1926). For example, in Slaughter v. Commonwealth, 222 Va. 787, 793, 284 S.E.2d 824, 827 (1981), the court reversed a conviction for driving after having been adjudged an habitual offender because no jurisdiction had attached during the defendant's prior habitual offender hearing.

In McClure v. Commonwealth, 222 Va. 690, 283 S.E.2d 224 (1981), the court considered a collateral attack on an habitual offender's underlying convictions. The defendant claimed that, because the underlying convictions were uncounseled misdemeanors, the Commonwealth could not lawfully classify him an habitual offender. The court reaffirmed its decision in Whorley v. Commonwealth, 215 Va. 740, 214 S.E.2d 447, cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975), that uncounseled misdemeanor convictions could serve as valid predicate offenses in habitual offender proceedings. It distinguished an action involving civil disabilities from one involving loss of liberty and imprisonment. The Slaughter court, in commenting upon the Whorley decision, noted that it had held that a nonjurisdictional defect in an underlying conviction did not render an habitual offender adjudication void. Slaughter, 222 Va. at 793, 284 S.E.2d at 827. Thus, in Virginia, a conviction underlying an habitual offender adjudication may only be attacked by asserting a jurisdictional defect.

Several states have permitted defendants to contest their status as habitual offenders by asserting that their underlying convictions were tainted by either...

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8 cases
  • Saunders v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • February 4, 2014
    ...(1927). “However, a party may assail a void judgment at any time, by either direct or collateral assault.” Morse v. Commonwealth, 6 Va.App. 466, 468, 369 S.E.2d 863, 864 (1988) (citing Beck v. Semones' Adm'r, 145 Va. 429, 441, 134 S.E. 677, 680 (1926)). “A court lacks jurisdiction to enter ......
  • James v. Com.
    • United States
    • Virginia Court of Appeals
    • August 2, 1994
    ...the defendant was represented by counsel may not be attacked collaterally in another criminal proceeding. Morse v. Commonwealth, 6 Va.App. 466, 468, 369 S.E.2d 863, 864 (1988) (citing Eagle, Star and British Dominions Ins. Co. v. Heller, 149 Va. 82, 100, 140 S.E. 314, 319 It is well settled......
  • Farmer v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • August 13, 2013
    ...Predicate Convictions “Generally, a judgment in a criminal case may not be attacked collaterally.” Morse v. Commonwealth, 6 Va.App. 466, 468, 369 S.E.2d 863, 864 (1988). In a subsequent proceeding, “the Commonwealth is entitled to a presumption of regularitywhich attends the prior convictio......
  • Figueroa v. Commonwealth, Record No. 0149-14-3
    • United States
    • Virginia Court of Appeals
    • April 7, 2015
    ...criminal judgment, however, may be set aside at any time, either on direct appeal or by collateral attack. Morse v. Commonwealth, 6 Va. App. 466, 468, 369 S.E.2d 863, 864 (1988). The existence of a legal error in a proceeding, however, does not ordinarily render that proceeding void. Robert......
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