Rose v. Commonwealth, Record No. 021324.

Decision Date17 April 2003
Docket NumberRecord No. 021324.
Citation578 S.E.2d 758,265 Va. 430
CourtVirginia Supreme Court
PartiesHarold Oscar ROSE, Jr. v. COMMONWEALTH of Virginia.

Connie Louise Edwards, for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen., on brief), for appellee.

Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and COMPTON, S.J.

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.

The dispositive issue in this appeal is whether the Commonwealth presented sufficient evidence to sustain appellant's felony conviction for driving after having been adjudicated an habitual offender, second or subsequent offense, in violation of Code § 46.2-357.

BACKGROUND

The pertinent facts are not in dispute. We consider those facts in the light most favorable to the Commonwealth, Dowden v. Commonwealth, 260 Va. 459, 461, 536 S.E.2d 437, 438 (2000), and for purposes of our resolution of this appeal, briefly summarize them in the following fashion. On the morning of June 13, 2000, Harold Oscar Rose, Jr. (Rose) was arrested for the crime of possession of a concealed weapon at a store in Wakefield, Virginia.1 The arresting officer had also observed Rose driving a truck prior to his arrest. When Rose could not produce a driver's license, the officer made inquiries and learned that Rose previously had been adjudicated an habitual offender. Accordingly, the officer also charged Rose with driving after having been adjudicated an habitual offender in violation of the misdemeanor provisions of Code § 46.2-357. It was subsequently determined that Rose had been convicted of this crime on a prior occasion. As a result, the indictment against Rose charged him with a second or subsequent offense in violation of the felony provisions of Code § 46.2-357.

On November 15, 2000, Rose entered a not guilty plea and was tried on the indictment in a bench trial in the Circuit Court of Sussex County. At that trial, the Commonwealth introduced an August 6, 1996 order from the Newport News General District Court that adjudicated Rose an habitual offender pursuant to the provisions of former Code § 46.2-351.2, which was the applicable statute at the time of the adjudication proceeding. The general district court judge signed and dated a preprinted adjudication order, noting thereon that Rose was not present at the proceeding, and marked three boxes to indicate the following findings: (1) "That the respondent is the same person named in the record;" (2) "That the respondent was convicted of each offense shown by the transcript or abstract;" and (3) "That the respondent is an habitual offender." However, the general district court judge failed to mark any of the boxes under the section of the order entitled, "AND IT IS THEREFORE ORDERED," including the box revoking Rose's driver's license and ordering him "not to operate a motor vehicle on the highways of the Commonwealth." The order indicated that it had been personally served on Rose on August 8, 1996. The Commonwealth also introduced a March 6, 2000 order from the Circuit Court of the City of Virginia Beach convicting Rose for driving as an habitual offender, first offense. That order reflected that Rose had been represented by counsel and pled guilty to the charged offense.

Arguing a motion to strike the evidence at the conclusion of the Commonwealth's case-in-chief, Rose conceded the authenticity of the two orders proffered by the Commonwealth. Rose's counsel asserted, however, that the August 6, 1996 order facially "does not do what the Commonwealth says it does, and therefore there is no proof, or sufficient proof, even prima facie proof that my client has adequately or completely or ever been adjudicated an habitual offender." The trial court overruled the motion to strike and, after receiving additional evidence related to the substance of the offense and denying Rose's renewed motion to strike the evidence, found the evidence sufficient to convict Rose of a second or subsequent violation of Code § 46.2-357. Rose was sentenced to 12 months in jail.

Rose filed an appeal of his conviction with the Virginia Court of Appeals. In that appeal, as summarized by the Court of Appeals in its published opinion affirming Rose's conviction, Rose contended "that because the judge did not complete the Newport News adjudication order, it was a `non-order' and could not serve as the basis for a proper declaration of his status as an habitual offender. In effect, he argues that the adjudication order was void, and his later plea of guilty could not supply the factual predicate that he had actual notice that he was `directed not to operate a motor vehicle on the highways of the Commonwealth.'" Rose v. Commonwealth, 37 Va.App. 728, 732-33, 561 S.E.2d 46, 48 (2002).

In affirming Rose's conviction, the Court of Appeals focused its analysis of the case on whether the August 6, 1996 order was void and subject to collateral attack in a subsequent proceeding, or merely voidable and subject to attack only in a direct appeal. The Court of Appeals concluded that the order was not void because the general district court that entered it had proper personal and subject matter jurisdiction and, thus, the order was, at best, a voidable order that Rose could not collaterally attack in a subsequent proceeding. Id. at 735, 561 S.E.2d at 49. Accordingly, the Court of Appeals concluded that "the evidence supports the trial court's finding that appellant had knowledge of both his status as an habitual offender and the accompanying prohibition not to drive." Id. (citing Reed v. Commonwealth, 15 Va. App. 467, 471, 424 S.E.2d 718, 720-21 (1992) (holding actual knowledge of declaration of habitual offender status and direction not to drive required for conviction for driving after having been so declared)). The Court of Appeals went on to discuss the validity of the March 6, 2000 order convicting Rose of a first offense of violating his habitual offender status, concluding that this evidence supported the Court's conclusion that Rose was aware of his status and also supported his conviction for a second or subsequent violation of his habitual offender status. Rose, 37 Va.App. at 736-37, 561 S.E.2d at 50. We awarded Rose this appeal.

DISCUSSION

Code § 46.2-357(A) provides that "[i]t shall be unlawful for any person determined or adjudicated an habitual offender to drive any motor vehicle ... on the highways of the Commonwealth while the revocation of the person's driving privilege remains in effect." (Emphasis added.) Thus, to sustain a conviction for driving a motor vehicle in...

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