Sink v. Com., Record No. 0225-98-3.

Citation507 S.E.2d 670,28 Va. App. 655
Decision Date15 December 1998
Docket NumberRecord No. 0225-98-3.
CourtCourt of Appeals of Virginia
PartiesRobert Lynn SINK v. COMMONWEALTH of Virginia.

Randy V. Cargill (Magee, Foster, Goldstein & Sayers, P.C., on brief), Roanoke, for appellant.

Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and COLEMAN and ELDER, JJ.

COLEMAN, Judge.

Robert L. Sink was convicted in a bench trial of driving after having been declared an habitual offender as a subsequent offense in violation of Code § 46.2-357. Sink contends that because he was a Florida resident and possessed a valid Florida driver's license, the evidence was insufficient to convict him. Because obtaining a Florida operator's license did not restore Sink's privilege to drive in Virginia, we find the evidence sufficient to sustain the conviction and affirm the trial court's ruling.

BACKGROUND

On September 2, 1975, Sink was adjudicated an habitual offender and was barred from operating a motor vehicle on the highways of the Commonwealth for ten years and "until permitted to do so by an order of a court of competent jurisdiction." In 1978 and again in 1987, Sink was convicted of driving after having been declared an habitual offender.

In December 1995, Sink moved to Florida, where he obtained a driver's license. According to Sink, he first obtained a Virginia license but two days later the Virginia division of motor vehicles informed him that it was invalid. Sink testified that he surrendered his Virginia license to the Florida division of motor vehicles, attended an alcohol safety program, and satisfactorily completed a psychiatric evaluation that indicated he was capable of driving. Sink testified that after he obtained a Florida license he believed he was authorized to drive in Virginia. He explained that, after completing all licensing requirements imposed by Florida, he understood that the Florida division of motor vehicles had informed Virginia of his status as a licensed driver. He concedes that his privilege to drive had not been restored by a Virginia court pursuant to Code § 46.2-356.

In 1997, when Sink traveled to Roanoke, a Roanoke city police officer stopped Sink and charged him with driving after having been declared an habitual offender. Sink was convicted of a second or subsequent offense of driving after having been declared an habitual offender and appeals that conviction.

The issue is whether the evidence is sufficient to convict Sink of driving after having been adjudged an habitual offender where the undisputed evidence proved that Sink was a Florida resident, had obtained a valid Florida operator's license, and more than ten years had elapsed since Sink had been adjudged an habitual offender.

ANALYSIS

Whether Sink was guilty of violating the order declaring him an habitual offender and prohibiting him from driving requires reconciliation of the habitual offender statutes and the statute exempting nonresidents from the requirement of obtaining a Virginia license to drive in Virginia. Resolution of this issue depends upon the interpretation of Code §§ 46.2-356, 46.2-357 and 46.2-307. Although the trial court's findings of historical fact are binding on appeal unless plainly wrong, we review the trial court's statutory interpretations and legal conclusions de novo. See Timbers v. Commonwealth, 28 Va.App. 187, 193, 503 S.E.2d 233, 235-36 (1998)

.

Code § 46.2-357 defines the felony of driving after having been adjudicated an habitual offender: "It shall be unlawful for any person to drive any motor vehicle ... on the highways of this Commonwealth while the revocation of the person's driving privilege remains in effect." Code § 46.2-356 provides the period during which an habitual offender may not be relicensed: "No license to drive ... shall be issued to an habitual offender (i) for a period of ten years from the date of any final order ... finding the person to be an habitual offender and (ii) until the privilege of the person to drive ... has been restored by an order of a court entered in a proceeding as provided in this article."

Code § 46.2-307 states: "A nonresident over the age of sixteen years who has been duly licensed as a driver under a law requiring the licensing of drivers in his home state or country ... shall be permitted, without a Virginia license, to drive a motor vehicle on the highways of the Commonwealth." Sink argues that while Code §§ 46.2-356 and 46.2-357 appear to forbid him from driving, Code § 46.2-307 specifically authorizes him to drive in Virginia.

Sink argues...

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