Head v. Commonwealth

441 S.E.2d 351, 18 Va. App. 50, 10 Va. Law Rep. 1061, 1994 Va. App. LEXIS 124

Opinion

UPON A HEARING EN BANC

Opinion

PER CURIAM

This appeal is from the trial court’s denial of a motion to vacate an order declaring the appellant an habitual offender. The motion was filed approximately three years after the order was entered and was prompted by the appellant being charged for driving after being declared an habitual offender. The motion was premised on the failure of the trial court to appoint a guardian ad litem for the appellant, who was an alcoholic.

This case is governed by our recent decision in Pigg v. Commonwealth, 17 Va. App. 756, 441 S.E.2d 216 (1994) (en banc), in which we held that an habitual offender adjudication rendered against a person under a disability for whom no guardian ad litem has been appointed is merely voidable. Here, as in Pigg, there was no showing that the offender was incapable of understanding the nature of the proceedings against him or of defending his interest. Appellant was present at the habitual offender adjudication, and the record contains no evidence that he was under the influence of alcohol at the time or incapable of understanding the nature of the proceedings against him for any other reason. The trial court had no authority to vacate the order, and the judgment appealed from should be affirmed.

Affirmed.

Moon, C.J., Baker, J., Barrow, J., Coleman, J., Koontz, J., Willis, J., Elder, J., Bray, J., and Fitzpatrick, J., concurred.