Nesselrodt v. Commonwealth

452 S.E.2d 676, 19 Va. App. 448, 1994 Va. App. LEXIS 738
CourtCourt of Appeals of Virginia
DecidedDecember 20, 1994
DocketRecord Nos. 1286-92-4, 1311-92-4, 1314-92-4, 1328-92-4, 1331-92-4 and 1371-92-4
StatusPublished
Cited by10 cases

This text of 452 S.E.2d 676 (Nesselrodt v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nesselrodt v. Commonwealth, 452 S.E.2d 676, 19 Va. App. 448, 1994 Va. App. LEXIS 738 (Va. Ct. App. 1994).

Opinions

Benton, J., • with whom Barrow, J., and Koontz, J.,

join dissenting.

Each of the appellants was adjudged to be an habitual offender under the motor vehicle laws as specified in Code §§ 46.2-351 through 46.2-363. At the evidentiary hearings, the appellants objected to the use as evidence of the documents certified by the Department of Motor Vehicles on the ground that the documents were not transcripts or abstracts of the underlying convictions.1 Appellants argued that the documents did not contain the data [453]*453that Code § 46.2-386 mandates to be included in “abstracts” and, thus, the requirements of Code § 46.2-352 and Code § 46.2-354 were not satisfied.2 The trial judge overruled the objections, considered the convictions listed in the documents, and declared the appellants habitual offenders.

[454]*454Referring to Code § 46.2-386, the appellants contend (1) that the definition of “abstract” contained in that statute must be applied to that same word in the Habitual Offenders Act, and (2) that the documents certified by the Department are not “abstracts” as so defined. The Commonwealth agrees that the documents certified by the Department in this case do not contain the same information required by Code § 46.2-386 for “abstracts.”3 However, the Commonwealth disagrees that the term, “abstract,” as contained in the Habitual Offenders Act, is statutorily defined or limited by the recitation in Code § 46.2-386. The resolution of this disagreement is found in an analysis of the relevant statutes.

Although a proceeding brought pursuant to the Habitual Offenders Act is a civil proceeding, a finding by the trial judge that the statute was violated results in a forfeiture. Hoye v. Commonwealth, 12 Va. App. 587, 589, 405 S.E.2d 628, 629 (1991). “Therefore, the . . . statute must be strictly construed against the Commonwealth.” Id.; see also Flaherty v. Commonwealth, 14 Va. App. 148, 151, 415 S.E.2d 867, 868 (1992). Moreover, statutes that create exceptions to the hearsay rule demand strict compliance. Basfield v. Commonwealth, 11 Va. App. 122, 124, 398 S.E.2d 80, 81 (1990).

The Habitual Offenders Act mandates that “[t]he Commissioner shall certify, from the Department’s records, substantially in the manner provided for in [Code] § 46.2-215, three transcripts or abstracts of those conviction documents which bring the person named therein within the definition of an habitual offender.” Code § 46.2-352. In a proceeding under the Act, “[t]he transcript or abstract may be admitted as evidence [and] shall be prima facie evidence that the person named therein was duly convicted ... by the court wherein the conviction . . . was made, of each offense shown by the transcript or abstract.” Id. By a statute which is specifically referenced in the Habitual Offenders Act, the legislature has further provided that “[w]henever any record, including records maintained by electronic media, by photographic processes, or paper, in the office of the Department is admissible [455]*455in evidence, a copy, a machine-produced transcript, or a photograph of the record or paper attested by the Commissioner or his designee may be admitted as evidence in lieu of the original.” Code § 46.2-215.

The statutory scheme, thus, provides that, in the initial instance, a person is subject to being adjudged an habitual offender based upon that person’s “record ... as maintained in the office of the Department.” Code § 46.2-351. The Department’s records consist of reports that the Department receives from authorized agencies. For example, by statute, the legislature requires every general district court and circuit court to keep a record of certain types of cases in which persons violate motor vehicle laws, use motor vehicles in the commission of crime, and become judgment debtors in cases involving motor vehicle laws. See Code §§ 46.2-382 and 46.2-382.1. In those cases, and in other cases specified in Code § 46.2-383, the general district court and the circuit court are required to “forward an abstract of the record to the Commissioner.” Code § 46.2-383. “Abstracts required by [Code] § 46.2-383 shall be made on forms prepared by or approved by the Department and the . . . State Police.” Code § 46.2-386.

In addition to requiring that those abstract forms be sanctioned by both the Department and the State Police, the legislature specified in detail the data to be reported on those forms.

[The abstracts] shall include all information as to the parties to the case. In the event the abstract relates to a person convicted or found not innocent of a charge described in subdivision 1 or 2 of [Code] § 46.2-382, it shall include the nature and date of the offense, the date of conviction or finding of not innocent, the plea, the judgment, the penalty or forfeiture as the case may be, and the driver’s license number if any, the month, day and year of birth, the sex and the residence address or whereabouts of the defendant and shall indicate whether the defendant appeared and was represented by or waived counsel. Every such abstract shall be certified by the general district court or juvenile and domestic relations district court judge or clerk of the general district court or juvenile and domestic relations district court or clerk of a circuit court as a true abstract of the records of the court as it relates to the charge, judgment and penalty.

[456]*456Code § 46.2-386.

In lieu of the actual completed abstract, the statutes allow the Commissioner to receive “[ajbstract data of conviction ... by electronic means provided that the content of the abstract and the certification complies with the requirements of [Code] § 46.2-386.” Code § 46.2-383(B) (emphasis added). Indeed, the statute expressly provides that “[i]n cases where the abstract data is furnished by electronic means, the paper abstract shall not be required to be forwarded to the Commissioner.” Id. Thus, when electronic means are not used to transmit the data, the statute requires that the Commissioner shall receive the complete paper abstract from the courts. See Code § 46.2-383.

The legislature specifically mandated that the Commissioner shall receive and maintain accurate data. Code § 46.2-383(B). Thus, Code §§ 46.2-382, 46.2-382.1, 46.2-383, and 46.2-386 determine which records shall be sent to the Commissioner by the courts, the content of those records, and the form of those records. To facilitate the efficient storage of the records that the Commissioner is required to maintain, the statute provides that “[t]he records required to be kept may, in the discretion of the Commissioner, be kept by electronic media or by photographic processes and when so done the abstract of the record may be destroyed.” Code § 46.2-383(C). The only reasonable conclusion that can be drawn from these detailed statutes is that the legislature intended that the Department would retain the data that it received from the courts in the form of the actual paper abstract, or a photographic image of the paper abstract, or an electronic process that contains the data and the certification required by Code § 46.2-386.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Venessa M. Monger v. Commonwealth of Virginia
Court of Appeals of Virginia, 2001
Samuels v. Commonwealth
497 S.E.2d 873 (Court of Appeals of Virginia, 1998)
Nicely v. Commonwealth
490 S.E.2d 281 (Court of Appeals of Virginia, 1997)
Walter L. Payne, Jr. v. Commonwealth
482 S.E.2d 98 (Court of Appeals of Virginia, 1997)
Commonwealth v. Washington
38 Va. Cir. 116 (Fairfax County Circuit Court, 1995)
Commonwealth v. Bridgett
36 Va. Cir. 265 (Loudoun County Circuit Court, 1995)
Moses v. Commonwealth
455 S.E.2d 251 (Court of Appeals of Virginia, 1995)
Commonwealth v. Simpson
37 Va. Cir. 42 (Alexandria County Circuit Court, 1995)
Nesselrodt v. Commonwealth
452 S.E.2d 676 (Court of Appeals of Virginia, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
452 S.E.2d 676, 19 Va. App. 448, 1994 Va. App. LEXIS 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nesselrodt-v-commonwealth-vactapp-1994.