Commonwealth v. Holtz

408 S.E.2d 561, 12 Va. App. 1151, 8 Va. Law Rep. 531, 1991 Va. App. LEXIS 212

• Court: Court of Appeals of Virginia
• Decided: August 20, 1991
• Docket: Record No. 0825-89-4
• Status: Published

Opinions

UPON HEARING EN BANC

Opinion

DUFF, J.

This is an appeal from an October 3, 1989 judgment of the Circuit Court of Fairfax County dismissing an information filed in an habitual offender proceeding. The Commonwealth filed the information against Clifford Holtz to have him declared an habitual offender based on two convictions for driving while intoxicated in violation of Fairfax County Code § 82-4-17 and one conviction for driving while intoxicated in violation of Virginia Code § 18.2-266. The trial court invalidated the provisions of Fairfax County Code § 82-4-21, providing for enhanced punishments in cases of driving while intoxicated in violation of Fairfax Code § 82-4-17.

The Commonwealth contends on appeal that the trial court erred in ruling that Fairfax County ordinance § 82-4-21 was invalid. We agree with the trial court’s ruling and affirm the judgment.

Fairfax County Code § 82-4-21, in effect at the time of Holtz’s trial, provided for a lesser punishment than Virginia Code § 18.2-270. The Fairfax County ordinance stated that other local ordinances in the Commonwealth or the laws of other states could be considered as prior convictions. However, convictions under Virginia Code § 18.2-266 were not mentioned in the ordinance. Thus, Holtz’s three convictions, one being under Code § 18.2-266, would be counted as only two convictions under the County ordinance and the punishment would be less than that provided by general law, Code § 18.2-270. The ordinance was, therefore, invalid under Virginia Code § 15.1-132. See Commonwealth v. Knotty 11 Va. App. 44, 47, 396 S.E.2d 148, 150 (1990).

The Commonwealth further argues that the trial court erred in failing to sever the invalid portion of Fairfax County Code § 82-4-21 and apply the remaining portion. We disagree. Fairfax County Code § 1-1-11 allows the court to save any valid portions of a statutory provision held to be otherwise invalid or unconstitutional. However, if the punishment section for second or subsequent offenses is severed from Fairfax County Code § 82-4-21, the statute still violates Virginia Code § 15.1-132, by providing for a lesser punishment than Code § 18.2-270.

Finally, the Commonwealth, relying on Morse v. Commonwealth, 6 Va. App. 466, 369 S.E.2d 863 (1988), contends that Holtz was improperly permitted to collaterally attack his previous convictions. Our review of Morse satisfies us that it is clearly distinguishable from the present case. In Morse, there was an attack on the sufficiency of the evidence in the original conviction. No similar attack is made in the present case. Holtz stipulated that he was the same person named in each of the prior convictions. His attack is not on those convictions, but only that one of them (the conviction under Code § 18.2-266) could not be considered as a “prior conviction” for purposes of enhanced punishment. Thus, he attacks the validity of County Code § 82-4-21.

Furthermore, the record does not demonstrate that the Commonwealth raised the collateral attack issue in the trial court. Accordingly, Rule 5A:18 bars our consideration of the issue for the first time on appeal.

We further find that the Commonwealth’s notice of appeal, filed prior to the entry of the sentencing orders, was timely filed, and no new notice of appeal was necessary after the orders were entered. See Saunders v. Commonwealth, 12 Va. App. 154, 402 S.E.2d 708 (1991).

For the reasons stated above, we affirm the decision of the trial court.

Affirmed.

Koontz, C.J., Barrow, J., Benton, J., Keenan, J.,

* Cole, J.,** and Willis, J., concurred.

Justice Keenan participated in the hearing and decision of this case prior to her investiture as Justice of the Supreme Court of Virginia.

Judge Cole participated in the hearing and decision of this case prior to the effective date of his retirement on April 30, 1991 and thereafter by designation pursuant to Code § 17-116.01.