PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons and
Goodwyn, JJ., and Stephenson, S.J.
FREDERICK C. MWANGI
OPINION BY
v. Record No. 081065 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
February 27, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The dispositive issue in this appeal is whether the Court
of Appeals erred in affirming a conviction for driving under the
influence, third offense, "where the Commonwealth's proof of
recidivism relies on a purported order from a general district
court which was never endorsed by a judge."
Frederick C. Mwangi was tried without a jury in the Circuit
Court of the City of Alexandria. The court found him guilty of
driving under the influence (DUI), in violation of Code § 18.2-
266. Mwangi, found to have been convicted of DUI twice before
within a five-year period, was sentenced, in accordance with
Code § 18.2-270(C)(1), to two years in prison with all but six
months suspended.
Mwangi appealed his conviction to the Court of Appeals of
Virginia. The Court of Appeals affirmed Mwangi's conviction,
Mwangi v. Commonwealth, 51 Va. App. 498, 507, 659 S.E.2d 519,
524 (2008), and we awarded him this appeal.
At trial, the Commonwealth sought to simultaneously
introduce three exhibits as evidence of Mwangi's prior DUI
convictions, and the trial court admitted the exhibits over
Mwangi's objections. One of those exhibits, Exhibit 1, is a
transcript from the Department of Motor Vehicles (DMV) showing
that Mwangi had been convicted of DUI in the General District
Court of the County of Arlington on April 22, 2005, as well as a
purported DUI conviction in the City of Alexandria. Another of
those exhibits, Exhibit 3, is a summons that purports to show
that Mwangi had been convicted of DUI in the Alexandria General
District Court. The summons indicates that the alleged offense
occurred on January 21, 2005, and that Mwangi appeared in the
general district court, represented by counsel, on July 15,
2005. The summons also indicates that Mwangi entered a guilty
plea, was tried and found guilty as charged, and was fined and
sentenced to a jail term. The summons, however, is not signed
by a judge.
Mwangi contends that the trial court erred in convicting
him of DUI, third offense, because Exhibit 3, the purported DUI
conviction order, is not endorsed by a judge and, thus, "is no
order at all." The Commonwealth contends that, given the
information on the summons and the fact that the general
district court clerk forwarded an abstract of the conviction to
the DMV, there was sufficient evidence to prove the conviction
despite the absence of the judge's signature on the summons.
2
The Commonwealth has the burden of proving all elements of
a crime, including prior convictions, beyond a reasonable doubt.
Palmer v. Commonwealth, 269 Va. 203, 207, 609 S.E.2d 308, 310
(2005). In a court-not-of-record, a judge's signature proves
the rendition of a judgment. We have stated that "[t]he
purported disposition on the back of [a] warrant is not an order
because it is not signed by the judge." Moreau v. Fuller, 276
Va. 127, 137, 661 S.E.2d 841, 847 (2008).
We conclude that the trial court erred in holding that the
evidence was sufficient to prove the prior DUI conviction in
Alexandria, which is an element of the felony offense described
in Code § 18.2-270(C)(1). While the DMV transcript was
admissible in evidence to prove prior convictions, the
Commonwealth's Exhibit 3 rebutted the evidence as to the
Alexandria conviction. The Commonwealth, therefore, failed to
prove that Mwangi had been twice before convicted of DUI. It
follows, then, that the Court of Appeals erred in affirming
Mwangi's conviction.
Accordingly, we will reverse the judgment of the Court of
Appeals, vacate the trial court's judgment, and remand the case
to the Court of Appeals with direction that the Court of Appeals
remand the case to the trial court for a new trial on the
lesser-included misdemeanor charge if the Commonwealth be so
advised.
3
Reversed and remanded.
4