Com. v. Norman

Present: All the Justices

COMMONWEALTH OF VIRGINIA

v. Record No. 032765 OPINION BY JUSTICE CYNTHIA D. KINSER
November 5, 2004
GEORGE HALCOTT NORMAN, III

FROM THE COURT OF APPEALS OF VIRGINIA

Appellee, George Halcott Norman, III, was convicted in

a bench trial in the Circuit Court of Pittsylvania County

of operating a motor vehicle after having been declared a

habitual offender, second or subsequent offense, in

violation of Code § 46.2-357.1 Norman appealed the

conviction to the Court of Appeals of Virginia, asserting

that he could not be convicted of this offense because an

order of the Circuit Court of Pittsylvania County had

restored his privilege to operate a motor vehicle. A panel

of the Court of Appeals affirmed the trial court’s

judgment. Norman v. Commonwealth, 40 Va. App. 496, 504,

579 S.E.2d 699, 702 (2003). Subsequently, the Court of

Appeals granted Norman’s petition for rehearing en banc and

thereafter reversed the conviction and dismissed the

1
Norman pled not guilty to the charge under Code
§ 46.2-357. However, he pled guilty to and was convicted
of possession of a firearm after having been convicted of a
felony in violation of Code § 18.2-308.2; brandishing a
firearm in violation of Code § 18.2-282; and operating a
motor vehicle while under the influence of alcohol, second
offense within five years, in violation of Code § 18.2-266.
Those convictions are not before us in this appeal.
indictment. Norman v. Commonwealth, 41 Va. App. 628, 639,

587 S.E.2d 742, 747 (2003).

We awarded the Commonwealth this appeal. The sole

issue is whether the order of the circuit court restoring

Norman’s privilege to operate a motor vehicle on the

condition that he fulfill certain requirements terminated

his habitual offender status. We conclude that it did not

do so; therefore, there was sufficient evidence to sustain

Norman’s conviction. Accordingly, we will reverse the

judgment of the Court of Appeals.

RELEVANT FACTS AND PROCEEDINGS

The incident leading to the conviction at issue

occurred on August 14, 2001, when H. L. Gatewood, a deputy

sheriff with the Pittsylvania County Sheriff’s Department,

was traveling eastbound on Route 57 in Pittsylvania County

and noticed a particular vehicle traveling westbound.

Deputy Gatewood’s dispatcher had previously alerted him to

be on the look out for that vehicle. Deputy Gatewood then

turned his police vehicle around and proceeded to stop the

identified vehicle. Norman was the driver and sole

occupant of the stopped vehicle.

After getting Norman out of the vehicle and securing a

weapon found in it, Deputy Gatewood asked Norman for some

form of identification. Norman did not produce a driver’s

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license, but he told Deputy Gatewood that he had a “piece

of paper issued by the Court” at his residence. Deputy

Gatewood took Norman to the residence to retrieve the

paper, which was a “Restricted Driver’s License Order,

Entry Into Alcohol Safety Action Program” entered by the

Circuit Court of Pittsylvania County on May 7, 2001. At

some point during the traffic stop, Deputy Gatewood ran a

check on Norman’s driving status through his dispatcher.

Deputy Gatewood testified that the status came back as

“suspended or revoked”; he was not sure of the actual

wording. Deputy Gatewood also asked Norman where he was

going. Norman stated that he was en route to a friend’s

house.

The contested issue at trial, as well as on appeal,

was whether Norman’s privilege to operate a motor vehicle

had been fully restored so that he no longer had the status

of habitual offender when Deputy Gatewood stopped him. At

trial, several pertinent orders entered by the Circuit

Court of Pittsylvania County were introduced into evidence

and are summarized as follows:

1. An order dated August 30, 1985, declaring Norman a
habitual offender and directing him “not to operate
a motor vehicle on the highways of the Commonwealth
of Virginia.”

2. An order dated October 13, 1989, sentencing Norman
for a conviction, based on his guilty plea, of the

3
 offense of operating a motor vehicle after having
been declared a habitual offender.

3. An order dated December 20, 1999, adjudicating
Norman’s petition for restoration of his privilege
to operate a motor vehicle. In pertinent part, the
order stated:

Accordingly, the prayer of the
petition should be granted, subject to
the conditions set forth below in that
the petitioner is no longer addicted to,
or psychologically dependant upon, the
use of alcohol or drugs; that the
petitioner is not a threat to the health
and safety of others or to himself; . . .
it is ORDERED that pursuant to [Code]
§ 46.2-360 . . . the privileges to
operate a motor vehicle in the
Commonwealth of Virginia should be
restored and they are hereby restored to
George Halcott Norman, III.

It is further ORDERED that this is not
a license or privilege to drive in
itself; that the petitioner shall present
himself and this Order to the Department
of Motor Vehicles for such administrative
proceedings and payment of fees and costs
as may be required, and further, that the
petitioner is referred to Dan River ASAP
for monitoring and supervision for twelve
(12) months from the date of this Order;
that the petitioner shall not possess or
use alcohol, alcoholic beverages or drugs
. . . ; that should the petitioner incur
any alcohol or drug related offense
during the period of supervision as set
forth herein, the Court may in its
discretion issue process to the
petitioner to show cause why his
privilege to drive should not be
suspended permanently.

4. An order dated May 4, 2001, finding that Norman had
violated the terms of the December 20, 1999 order.
The circuit court granted Norman a “restricted

4
 permit to drive,” allowing Norman to operate a
vehicle “only to and from his place of employment,
during the course of employment, to and from Dan
River ASAP meetings, and to and from medical
providers for himself and his mother.” The
restrictions were to be in effect for a period of
12 months, and the order further provided that, if
Norman had any violations of law, including any
alcohol or drug related offenses, during the 12-
month period, the court would revoke his privilege
to operate a motor vehicle.

5. A restricted driver’s license order2 issued on May
7, 2001, stating that “[y]ou seek a restricted
license after having been declared [a] habitual
offender.” The restrictions set forth in the order
were in accordance with the May 4, 2001 order.
Norman signed the order acknowledging that he
understood its contents.

Based on these orders, the Court of Appeals held that

the Commonwealth failed to prove that Norman was a habitual

offender when he drove a vehicle on August 14, 2001.

Norman, 41 Va. App. at 639, 587 S.E.2d at 747. The Court

of Appeals reasoned that Code § 46.2-360(1) does not

distinguish between a “ ‘full restoration’ ” and a

“ ‘conditional restoration’ ” and that the December 20,

1999 order restored Norman’s privilege to operate a motor

vehicle. Id. at 636-37, 587 S.E.2d at 745-46. The fact

that the circuit court attached certain conditions to

Norman’s privilege to operate a motor vehicle and retained

the authority to enforce those conditions did not alter the

2
This is the same restricted driver’s license order
that Norman provided to Deputy Gatewood.

5
conclusion that the circuit court restored Norman’s

privilege to drive. Id. at 637-38, 587 S.E.2d at 746.

ANALYSIS

Under the provisions of Code § 46.2-357, it is

“unlawful for any person determined or adjudicated [a]

habitual offender to drive any motor vehicle . . . on the

highways of the Commonwealth while the revocation of the

person’s driving privilege remains in effect.” Code

§ 46.2-357(A). To establish a violation of that statute,

the Commonwealth has to prove beyond a reasonable doubt

that, at the time of an alleged driving offense, a

defendant was adjudicated a habitual offender and his/her

privilege to operate a motor vehicle was revoked. See Rose

v. Commonwealth, 265 Va. 430, 434, 578 S.E.2d 758, 760

(2003). Whether the evidence presented by the Commonwealth

was sufficient to sustain Norman’s conviction under Code

§ 46.2-357 turns on the effect of the December 20, 1999

order.

The Commonwealth argues that, although the December

20, 1999 order restored Norman’s privilege to operate a

motor vehicle, the restoration was subject to certain

conditions, the violation of which would result in Norman’s

loss of driving privileges again. Thus, Norman’s

adjudication as a habitual offender remained “in effect”

6
within the intendment of Code § 46.2-357, meaning that he

was properly convicted under that statute. The

Commonwealth also argues that the terms of the May 7, 2001

restricted driver’s license order reflect that the circuit

court intended-and Norman understood-that he was still

classified as a habitual offender. Norman’s signature on

the license acknowledged that he had been adjudicated a

habitual offender and was seeking “a restricted license

after having been declared [a] habitual offender.”

Norman asserts that, pursuant to Code § 46.2-360(1), a

circuit court has three choices when a habitual offender

petitions to have the privilege to operate a motor vehicle

restored: (1) deny the petition; (2) restore the privilege

to drive with or without conditions; or (3) issue a

restricted license. Norman contends, and the Commonwealth

does not disagree, that the circuit court did not issue a

restricted license in its December 20, 1999 order. Thus,

according to Norman, the circuit court’s order restored his

full privileges to operate a motor vehicle, meaning that

his status as a habitual offender was no longer in effect.

Norman further argues that, when he violated the conditions

set forth in the December 20, 1999 order, his privilege to

drive reverted back to a restricted privilege as reflected

7
in the May 7, 2001 restricted license order, but that his

status did not revert back to that of a habitual offender.

If Norman’s interpretation of the December 20, 1999

order is correct, there was not sufficient evidence, as a

matter of law, to find him guilty of driving after having

been declared a habitual offender. Conversely, if the

Commonwealth’s view prevails, there was sufficient

evidence, as a matter of law, to sustain Norman’s

conviction. In viewing the sufficiency of the evidence, we

are required to consider “the evidence in the light most

favorable to the Commonwealth, the prevailing party in the

trial court, and will accord the Commonwealth the benefit of

all reasonable inferences fairly deducible from that

evidence.” Commonwealth v. Hill, 264 Va. 541, 543, 570

S.E.2d 805, 806 (2002).

When a person is determined to be or adjudicated a

habitual offender, a license to operate a motor vehicle

shall not be issued to that person for a period of ten

years from the date of such determination or adjudication

and not until the privilege to operate a motor vehicle has

been restored by a court order in one of several

statutorily prescribed proceedings. Code § 46.2-356.

Thus, unless the terms of an order adjudicating habitual

offender status specifically limit the duration of the

8
effect of the order, see Davis v. Commonwealth, 12 Va. App.

246, 248-49, 402 S.E.2d 711, 712-13 (1991), “the habitual

offender status of the person so declared continues until

that person successfully petitions the court to have that

status removed and [the] privilege to drive restored under

one of the code sections permitting such petitions.” Varga

v. Commonwealth, 260 Va. 547, 551, 536 S.E.2d 711, 714

(2000); see also Sink v. Commonwealth, 28 Va. App. 655,

659, 507 S.E.2d 670, 672 (1998) (only a court of competent

jurisdiction can restore a habitual offender’s privilege to

operate a motor vehicle in Virginia). One of the statutory

provisions authorizing a proceeding to restore the

privilege to operate a motor vehicle is Code § 46.2-360,

the section Norman utilized.

In pertinent part, Code § 46.2-360(1) allows a

habitual offender, five years from the date of the

adjudication or determination of habitual offender status,

to petition a circuit court to restore the privilege to

operate a motor vehicle. After making certain findings not

relevant to this appeal, “the court may, in its discretion,

restore to the person the privilege to drive a motor

vehicle in the Commonwealth on whatever conditions the

court may prescribe.” In lieu of restoring the person’s

9
privilege to operate a motor vehicle, the court may issue a

restricted license. Code § 46.2-360(1).

In this case, the circuit court restored Norman’s

privilege to operate a motor vehicle. However, the

restoration of driving privileges was “subject to the

conditions” set out in the court’s December 20, 1999 order

and Norman’s fulfilling those conditions. The court

further provided that, if Norman incurred an alcohol or

drug-related offense during the 12-month supervision period

specified in the order, it could issue process to show

cause why Norman’s privilege to operate a motor vehicle

should not be “suspended permanently.”

Based on the provisions of Code § 46.2-360 authorizing

a circuit court to restore a person’s privilege to operate

a motor vehicle on whatever conditions the court may

prescribe, we conclude that the December 20, 1999 order did

not fully restore Norman’s privilege to operate a motor

vehicle. Instead, the restoration of driving privileges

was subject to the conditions imposed by the circuit court,

which Norman had to abide by for a period of 12 months.

During that period, his privilege to operate a motor

vehicle thus remained under the control of the circuit

court. Only upon his satisfying the specified conditions

would Norman’s privilege to operate a motor vehicle be

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restored in full and his status as a habitual offender

removed. It does not follow that Norman’s privilege to

operate a motor vehicle could be fully restored while that

restoration remained contingent upon his satisfying the

conditions imposed by the circuit court. As we said in

Varga, “the habitual offender status of the person so

declared continues until that person successfully petitions

the court to have that status removed and [the] privilege

to drive restored.” 260 Va. at 551, 536 S.E.2d at 714; see

also Sink, 28 Va. App. at 659, 507 S.E.2d at 672.

Our conclusion is consistent with the language of Code

§ 46.2-360(1). Under that statute, a circuit court may

restore a habitual offender’s privilege to operate a motor

vehicle with or without conditions or issue a restricted

license. By authorizing a circuit court to restore the

privilege on whatever conditions the court may prescribe,

the General Assembly did not intend for a restoration of

driving privileges subject to court-imposed conditions to

have the same legal effect as a restoration without any

conditions. Obviously, when the conditions are fulfilled,

a complete restoration is then effected. In contrast, if a

circuit court chooses to issue a restricted license instead

of restoring the privilege with conditions, that restricted

11
license will never mature into a full restoration of

driving privileges.

Thus, at the time of the offense at issue, Norman’s

status as a habitual offender remained in effect.3 The

circuit court terminated the conditional restoration of

Norman’s privilege to operate a motor vehicle in the order

of May 4, 2001, finding that Norman had violated the terms

of the December 20, 1999 order. Norman acknowledges, and

we agree, that, when a circuit court issues a restricted

license in lieu of restoring the privilege to operate a

motor vehicle, with or without conditions, an individual’s

status as a habitual offender continues. See Travis v.

Commonwealth, 20 Va. App. 410, 414-15, 457 S.E.2d 420, 422

(1995). Similarly, when the circuit court terminated

Norman’s conditional restoration of his privilege to drive

and issued a restricted license order, his status as a

habitual offender continued. Contrary to Norman’s

argument, our decision does not mean a habitual offender

always remains a habitual offender. If Norman had

fulfilled the conditions imposed by the circuit court in

the December 20, 1999 order, his driving privileges would

3
Although not dispositive, Norman acknowledged, when
executing the May 7, 2001 restricted driver’s license
order, that he had been adjudicated a habitual offender and
was seeking a restricted license after having been declared
a habitual offender.

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have been fully restored and his habitual offender status

would have been terminated at that time.

CONCLUSION

For these reasons, we hold that there was sufficient

evidence to support Norman’s conviction under Code § 46.2-

357. At the time of the charged driving offense, he was a

habitual offender and the revocation of his privilege to

operate a motor vehicle remained in effect. Accordingly,

we will reverse the judgment of the Court of Appeals of

Virginia and reinstate Norman’s conviction.

Reversed and final judgment.

JUSTICE AGEE, with whom JUSTICE KOONTZ joins, dissenting.

In determining that the December 20, 1999 order

restoring Norman’s privilege to drive did not terminate

Norman’s status as a habitual offender, the majority does

not follow the plain language of the statute and the plain

language of the order.

The circuit court’s December 20, 1999 order is

unequivocal:

[F]or good cause shown the suspension
effective pursuant to said order of April 12,
1984 should be removed and the driving privileges
restored, it is so ORDERED.
Accordingly . . . it is ORDERED that
pursuant to § 46.2-360 . . . the privileges to
operate a motor vehicle in the Commonwealth of
Virginia should be restored and they are hereby
restored to George Halcott Norman, III.

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(Emphasis added).

With unmistakable clarity, the circuit court granted

Norman’s petition and restored his privilege to drive. At

that time, Norman ceased to have the status of a habitual

offender because it had been removed.

[T]he habitual offender status of the
person so declared continues until that
person successfully petitions the court
to have that status removed and his
privilege to drive restored under one of
the code sections permitting such
petitions.

Varga v. Commonwealth, 260 Va. 547, 551, 536 S.E.2d 711,

714 (2000).

As the Court of Appeals noted, upon a habitual

offender’s petition to restore driving privileges, the

circuit court may grant the petition in only one of two

ways under Code § 46.2-360(1):

[(1)] restore the person’s privilege to
drive, with or without conditions enforceable by
the court; or [(2)] authorize the issuance of a
restricted license. The statute draws no
distinction between a “full restoration” and a
“conditional restoration.” Hence, an
individual’s privilege to drive is either
restored or not restored under Code § 46.2-
360(1).

Norman v. Commonwealth, 41 Va. App. 628, 636, 587

S.E.2d 742, 745 (2003). The language of the statute

makes clear that there are but two alternatives: “The

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court may, in lieu of restoring the person’s privilege

to drive, authorize the issuance of a restricted

license . . . ” Code § 46.2-360(1) (emphasis added).

There is no doubt that a restricted license was not

issued. Consequently, there is simply no language in

the statute that makes the termination of habitual

offender status uncertain once the circuit court

restores the petitioner’s privilege to drive.

The majority, however, creates a third option: a

restoration of driving privileges with conditions which,

upon fulfillment, “mature[s] into a full restoration of

driving privileges,” a sort of executory habitual offender

status. The majority confirms this third option upon the

assumption that “the General Assembly did not intend for a

restoration of driving privileges subject to court-imposed

conditions to have the same legal effect as a restoration

without any conditions.”

I do not find that assumption within the plain

language of the statute. "When the language in a statute

is clear and unambiguous, the courts are bound by the plain

meaning of that language." Blake Constr. Co./Poole & Kent

v. Upper Occoquan Sewage Auth., 266 Va. 564, 575, 587

S.E.2d 711, 717 (2003) (citation omitted). Courts cannot

“add language to the statute the General Assembly has not

15
seen fit to include.” Holsapple v. Commonwealth, 266 Va.

593, 599, 587 S.E.2d 561, 564-65 (2003). “[N]or are they

permitted to accomplish the same result by judicial

interpretation.” Burlile v. Commonwealth, 261 Va. 501,

511, 544 S.E.2d 360, 365 (2001) (internal quotation marks

omitted).

When the circuit court ordered that Norman’s driving

privileges “are hereby restored,” his status as a habitual

offender terminated. Accordingly, I respectfully dissent

and would affirm the judgment of the Court of Appeals to

reverse Norman’s conviction and dismiss the indictment.

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