Clarence Scott Legg v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 27, 1996
• Docket: 0544954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Annunziata and Senior Judge Duff Argued at Alexandria, Virginia

CLARENCE SCOTT LEGG

v. Record No. 0544-95-4 MEMORANDUM OPINION * BY CHIEF JUDGE NORMAN K. MOON COMMONWEALTH OF VIRGINIA FEBRUARY 27, 1996

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY William Shore Robertson, Judge

Jud A. Fischel (Nicholas R. VanBuskirk; Jud A. Fischel, P.C., on brief), for appellant. Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Clarence Scott Legg appeals his adjudication as an habitual

offender under Code § 46.2-351. He claims that this adjudication

placed him in jeopardy twice for the same offense in violation of

the United States Constitution. We affirm the judgment of the

circuit court.

On June 23, 1994, Legg was certified as an habitual offender

by the Virginia Department of Motor Vehicles. An information

charging Legg with being an habitual offender was filed in the

circuit court on June 30, 1994. On January 9, 1995, Legg moved

to dismiss the information, alleging that the Virginia habitual

offender statute violated the double jeopardy clause of the

Constitution because it subjected him to successive punishments

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. for the same offense. On February 13, the court denied the

motion to dismiss and adjudged Legg to be an habitual offender

under Code § 46.2-351. Accordingly, Legg was ordered to

surrender all licenses and permits to operate a vehicle on the

highways of the Commonwealth.

The double jeopardy clause provides three separate

protections: protection against a second prosecution for the

same offense after acquittal, a second prosecution for the same

offense after conviction, and multiple punishments for the same

offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). Legg claims

that to adjudge him an habitual offender imposes a second

punishment for the offenses underlying that adjudication. He

thus seeks to invoke the protection against multiple punishments

for the same offense.

In this case, the double jeopardy claim arises not from two

successive criminal prosecutions, but from several criminal

prosecutions followed by a civil habitual offender proceeding. See Bouldin v. Commonwealth, 4 Va. App. 166, 170, 355 S.E.2d 352,

355 (1987) (habitual offender proceedings are civil in nature.)

This would constitute double jeopardy only if the license

revocation imposed in the civil proceeding constitutes

punishment, and if the license revocation and the criminal

sanctions occurred in separate proceedings. Department of

Revenue of Montana v. Kurth Ranch, 511 U.S. , 114 S. Ct. 1937,

1945 (1994); United States v. Halper, 490 U.S. 435, 446, 450 (1989). Because we hold that the license revocation resulting

- 2 - from the habitual offender adjudication does not constitute

punishment, we need not consider whether the proceedings were

separate, although we note that the Commonwealth has apparently

conceded this issue.

A civil penalty constitutes punishment for purposes of

double jeopardy to the extent that it may not be fairly

characterized as remedial, but only as a deterrent or

retribution. Halper v. United States, 490 U.S. 435, 448-449

(1989); holding restated in Kurth Ranch, 511 U.S. at , 114

S. Ct. at 1945; followed in Tench v. Commonwealth, 21 Va. App.

200, 205, 462 S.E.2d 922, 924 (1995). In Huffman v.

Commonwealth, 210 Va. 530, 172 S.E.2d 788 (1970), the Supreme

Court held that the purpose of revoking the habitual offender's

license "is not for the punishment of the offender, but for the

protection of the public in removing from the highways a

dangerous driver." Id. at 532, 172 S.E.2d at 789. In Tench, we

held that protection of the public from dangerous drivers is a

remedial purpose that does not constitute punishment for purposes

of double jeopardy. Tench, 21 Va. App. at 205-206, 462 S.E.2d at

924. The same is true here. 1

Legg argues that in Austin v. United States, 509 U.S. ,

113 S. Ct. 2801 (1993), the Supreme Court established that a 1 Legg argues that adjudication as an habitual offender is punitive in his case because the offenses for which he was certified relate to his failure to prove financial responsibility, not to instances of "dangerous" driving. Legg failed to raise this argument below and it is therefore barred under Rule 5A:18.

- 3 - civil sanction constitutes punishment if it has any deterrent or

punitive effect whatsoever, even if it also serves remedial

goals. In Austin, the Supreme Court held that the Eighth

Amendment's excessive fines clause applies to in rem forfeiture

proceedings. The Supreme Court concluded that property

forfeitures have historically been regarded as punitive, even

though they may also serve a remedial purpose.

As we explained in Tench, Austin is not a double jeopardy

case and does not purport to modify the Court's holding in Halper that a civil sanction constitutes punishment if it is not

remedial, but only a deterrent or retribution. The habitual

offender statute has a remedial purpose, and therefore license

revocation under that statute does not constitute an additional

punishment for the same offense in violation of the double

jeopardy clause.

For these reasons, the judgment of the circuit court is

affirmed. Affirmed.

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