Susan D. Fitzpatrick v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 30, 2000
• Docket: 0361992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata Argued at Alexandria, Virginia

SUSAN D. FITZPATRICK MEMORANDUM OPINION * BY v. Record No. 0361-99-2 JUDGE RICHARD S. BRAY MAY 30, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge

William B. Bray (Perry & Bray, on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Susan Fitzpatrick (defendant) was convicted in a bench trial

for operating a motor vehicle after having been determined an

habitual offender. On appeal, she challenges the sufficiency of

the evidence to prove she had been properly declared an habitual

offender. Finding no error, we disagree and affirm the

conviction.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal. In accordance with well established

principles, we view the evidence in the light most favorable to

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. the Commonwealth. See Archer v. Commonwealth, 26 Va. App. 1, 11,

492 S.E.2d 826, 831 (1997).

I.

On October 22, 1998, Chesterfield Police Officer William

Calliott "pulled" defendant for a traffic infraction. A related

inquiry through "dispatch" into "the status of her license"

disclosed that defendant had been declared an habitual offender.

When Calliott asked "if she knew she was a habitual offender,"

defendant responded, "no," but "thought she was suspended for ASAP

reasons."

At trial, the Commonwealth introduced a photocopy of a

"Suspension/Revocation Qualification Notice," issued and certified

by the Department of Motor Vehicles (DMV) and addressed to

defendant. In pertinent part, the notice advised:

You are hereby personally notified that your driver's license/privilege has been revoked as a result of the Department of Motor Vehicles determination that you are a habitual offender. You may not operate a motor vehicle in the Commonwealth of Virginia until you have complied with the requirements of the previously issued Habitual Offender Order.

The notice, dated Saturday, April 19, 1997, at 4:23 a.m., and

issued in Chesterfield County, Virginia, declared that "A true

copy of this NOTICE was personally delivered to the above-named

driver on the date and at the time and place indicated," was

signed by defendant, "Acknowledg[ing] Receipt," and a named law

enforcement officer.

- 2 - Defendant introduced into evidence a certified copy of her

DMV "TRANSCRIPT OF DRIVER HISTORY RECORD AS OF 01/14/99." The

transcript, also certified by the DMV, recited, inter alia:

DRIVER LICENSE STATUS: REVOKED HABITUAL OFFENDER

* * * * * * *

DETERMINED ON: 02/22/97 HABITUAL OFFENDER BY DMV

ELIGIBLE TO RESTORE UNDER CURRENT LAW ON: RESTRICTED: 02/22/00 FULL: 02/22/02

REVOCATION ISS: 02/25/97 EFFECTIVE: 03/27/97 FOR HO DETERMINATION PROCESS NOTIFIED: 04/19/97 BY LAW ENFORCEMENT ORDER DELIVERY DATE: ORDER MAILED

The order of the DMV declaring defendant an habitual

offender was not in evidence, and a memorandum from the DMV

reported, "We are unable to locate" the order. Defendant,

therefore, first maintains that the Commonwealth failed to prove

"if there really was an order."

II.

To convict defendant of the instant offense, the

Commonwealth's evidence must establish beyond a reasonable doubt

that she was "driving a motor vehicle" while the habitual

offender "revocation determination [was] in effect," Code

§ 46.2-357(B), with "actual notice" of such status. Reed v.

Commonwealth, 15 Va. App. 467, 472, 424 S.E.2d 718, 720 (1992).

- 3 - Here, a DMV transcript reported that she was "REVOKED

HABITUAL OFFENDER BY DMV," as a result of a DMV determination on

February 22, 1997, effective March 27, 1997. The transcript

further recited that defendant was eligible for restoration of

"[f]ull" privileges on February 22, 2002, a date consistent with

the revocation provisions of Code §§ 46.2-358 to –361.

Moreover, defendant's habitual offender status on the day of the

offense was confirmed, without objection, by information

received by Calliott through dispatch.

Additionally, the "Qualification Notice," executed by

defendant on April 19, 1997, specifically advised that her

"license/privilege has been revoked as a result of the [DMV]

determination that [she was] a habitual offender." The notice

further directed that defendant "not operate a motor vehicle" in

the Commonwealth, absent compliance "with requirements of the

previously issued Habitual Offender Order."

Under such circumstances, defendant's contention that the

Commonwealth's evidence did not sufficiently establish her

status as an habitual offender is without merit. Contrary to

her assertion, proof of the requisite determination is not

limited to the actual order. Certified records of the DMV,

corroborated by Calliott's testimony, all before the court

without objection, clearly established the determination by the

DMV that defendant was an habitual offender, with notice of such

status and the attendant applications, at the time of the

- 4 - subject offense. See Ingram v. Commonwealth, 1 Va. App. 335,

338-40, 338 S.E.2d 657, 658-60 (1986).

"Where a habitual offender adjudication rests upon valid

subject matter and personal jurisdiction and is not appealed,

that adjudication becomes final and neither the adjudication nor

the underlying convictions can be collaterally attacked."

Commonwealth v. Brown, 28 Va. App. 781, 790, 508 S.E.2d 916, 921

(1999) (citing Eagleston v. Commonwealth, 18 Va. App. 469,

471-72, 445 S.E.2d 161, 163 (1994)). Defendant does not

challenge the jurisdiction of the DMV to declare her an habitual

offender, and the record does not disclose that she petitioned

the appropriate circuit court for a review of such

determination, "after . . . learning of the revocation,"

pursuant to Code § 46.2-352(B). Thus, defendant's further

argument that such determination was "either ineffective or

void" because the Commonwealth failed to prove that the DMV

notified defendant "of the revocation . . . by certified mail,"

pursuant to Code § 46.2-352(A), constitutes an impermissible

collateral attack on the predicate order.

Accordingly, we find the conviction sufficiently supported

by the evidence and affirm the trial court.

Affirmed.

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