Rose v. Commonwealth

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.

HAROLD OSCAR ROSE, JR.
OPINION BY
v. Record No. 021324 JUSTICE LAWRENCE L. KOONTZ, JR.
April 17, 2003
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

The dispositive issue in this appeal is whether the

Commonwealth presented sufficient evidence to sustain

appellant’s felony conviction for driving after having been

adjudicated an habitual offender, second or subsequent offense,

in violation of Code § 46.2-357.

BACKGROUND

The pertinent facts are not in dispute. We consider those

facts in the light most favorable to the Commonwealth, Dowden v.

Commonwealth, 260 Va. 459, 461, 536 S.E.2d 437, 438 (2000), and

for purposes of our resolution of this appeal, briefly summarize

them in the following fashion. On the morning of June 13, 2000,

Harold Oscar Rose, Jr. (Rose) was arrested for the crime of

possession of a concealed weapon at a store in Wakefield,

Virginia. 1 The arresting officer had also observed Rose driving

1
Rose was convicted of that offense in the same trial from
which this appeal arises and was sentenced to a one year
suspended sentence. Rose does not challenge that conviction in
this appeal.
a truck prior to his arrest. When Rose could not produce a

driver’s license, the officer made inquiries and learned that

Rose previously had been adjudicated an habitual offender.

Accordingly, the officer also charged Rose with driving after

having been adjudicated an habitual offender in violation of the

misdemeanor provisions of Code § 46.2-357. It was subsequently

determined that Rose had been convicted of this crime on a prior

occasion. As a result, the indictment against Rose charged him

with a second or subsequent offense in violation of the felony

provisions of Code § 46.2-357.

On November 15, 2000, Rose entered a not guilty plea and

was tried on the indictment in a bench trial in the Circuit

Court of Sussex County. At that trial, the Commonwealth

introduced an August 6, 1996 order from the Newport News General

District Court that adjudicated Rose an habitual offender

pursuant to the provisions of former Code § 46.2-351.2, which

was the applicable statute at the time of the adjudication

proceeding. The general district court judge signed and dated a

preprinted adjudication order, noting thereon that Rose was not

present at the proceeding, and marked three boxes to indicate

the following findings: (1) “That the respondent is the same

person named in the record;” (2) “That the respondent was

convicted of each offense shown by the transcript or abstract;”

and (3) “That the respondent is an habitual offender.” However,

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the general district court judge failed to mark any of the boxes

under the section of the order entitled, “AND IT IS THEREFORE

ORDERED,” including the box revoking Rose’s driver’s license and

ordering him “not to operate a motor vehicle on the highways of

the Commonwealth.” The order indicated that it had been

personally served on Rose on August 8, 1996. The Commonwealth

also introduced a March 6, 2000 order from the Circuit Court of

the City of Virginia Beach convicting Rose for driving as an

habitual offender, first offense. That order reflected that

Rose had been represented by counsel and pled guilty to the

charged offense.

Arguing a motion to strike the evidence at the conclusion

of the Commonwealth’s case-in-chief, Rose conceded the

authenticity of the two orders proffered by the Commonwealth.

Rose’s counsel asserted, however, that the August 6, 1996 order

facially “does not do what the Commonwealth says it does, and

therefore there is no proof, or sufficient proof, even prima

facie proof that my client has adequately or completely or ever

been adjudicated an habitual offender.” The trial court

overruled the motion to strike and, after receiving additional

evidence related to the substance of the offense and denying

Rose’s renewed motion to strike the evidence, found the evidence

sufficient to convict Rose of a second or subsequent violation

of Code § 46.2-357. Rose was sentenced to 12 months in jail.

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 Rose filed an appeal of his conviction with the Virginia

Court of Appeals. In that appeal, as summarized by the Court of

Appeals in its published opinion affirming Rose’s conviction,

Rose contended “that because the judge did not complete the

Newport News adjudication order, it was a ‘non-order’ and could

not serve as the basis for a proper declaration of his status as

an habitual offender. In effect, he argues that the

adjudication order was void, and his later plea of guilty could

not supply the factual predicate that he had actual notice that

he was ‘directed not to operate a motor vehicle on the highways

of the Commonwealth.’ ” Rose v. Commonwealth, 37 Va. App. 728,

732-33, 561 S.E.2d 46, 48 (2002).

In affirming Rose’s conviction, the Court of Appeals

focused its analysis of the case on whether the August 6, 1996

order was void and subject to collateral attack in a subsequent

proceeding, or merely voidable and subject to attack only in a

direct appeal. The Court of Appeals concluded that the order

was not void because the general district court that entered it

had proper personal and subject matter jurisdiction and, thus,

the order was, at best, a voidable order that Rose could not

collaterally attack in a subsequent proceeding. Id. at 735, 561

S.E.2d at 49. Accordingly, the Court of Appeals concluded that

“the evidence supports the trial court’s finding that appellant

had knowledge of both his status as an habitual offender and the

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accompanying prohibition not to drive.” Id. (citing Reed v.

Commonwealth, 15 Va. App. 467, 471, 424 S.E.2d 718, 720-21

(1992) (holding actual knowledge of declaration of habitual

offender status and direction not to drive required for

conviction for driving after having been so declared)). The

Court of Appeals went on to discuss the validity of the March 6,

2000 order convicting Rose of a first offense of violating his

habitual offender status, concluding that this evidence

supported the Court’s conclusion that Rose was aware of his

status and also supported his conviction for a second or

subsequent violation of his habitual offender status. Rose, 37

Va. at 736-37, 561 S.E.2d at 50. We awarded Rose this appeal.

DISCUSSION

Code § 46.2-357(A) provides that “[i]t shall be unlawful

for any person determined or adjudicated an 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.” (Emphasis added.) Thus, to

sustain a conviction for driving a motor vehicle in violation of

that statute, the Commonwealth must prove that the defendant’s

driving privilege has been revoked. In the present case, the

Commonwealth does not assert that Rose’s driving privilege was

ever revoked by the Commissioner of the Department of Motor

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Vehicles. Rather, the Commonwealth relies upon the court orders

at issue in this case.

Because the Court of Appeals chose to analyze the issue of

the sufficiency of the evidence as involving a collateral attack

on the validity of the August 6, 1996 order, counsel have

focused much of their contentions before this Court on the “void

versus voidable” analysis of the Court of Appeals’ opinion.

However, Rose never challenged the validity of the August 6,

1996 order in that respect at trial. To the contrary, Rose’s

objection was not that the order was void ab initio, but simply

that it failed to establish the fact for which the Commonwealth

had proffered it during the November 15, 2000 trial, that is, to

prove that Rose had been adjudicated an habitual offender and

that his driving privilege had been revoked as a result. Rose

maintains that same position in this appeal.

Although subsequently repealed, as in effect at the time of

the entry of the August 6, 1996 order, Code § 46.2-355 provided,

in pertinent part, that:

If the court finds that the person is the same
person named in the transcript or abstract, [and] that
the person is an habitual offender . . . the court
shall enter an order (i) revoking the person’s license
if the proceeding is pursuant to § 46.2-351.2 . . .
and directing the person not to operate a motor
vehicle on the highways in the Commonwealth and to
surrender to the court all licenses or permits to
drive a motor vehicle on the highways in the
Commonwealth.

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 On its face, the August 6, 1996 order does not accomplish

what the statute required. Indeed, the order determined Rose to

be an habitual offender but failed to direct him not to operate

a motor vehicle on the highways in the Commonwealth. Asserting

that this order was voidable, the Commonwealth conceded during

oral argument of this appeal that the order was “incomplete” and

“erroneous.” 2 We are of opinion that an “incomplete” order which

adjudicates a person as an habitual offender, but “erroneously”

fails to impose the required prohibition against that person

operating a motor vehicle, does not satisfy the Commonwealth’s

burden of proof in a subsequent trial charging that person with

violating Code § 46.2-357.

2
We recognize that if the August 6, 1996 order was
“incomplete” merely as the result of a clerical mistake, then it
would be subject to correction nunc pro tunc pursuant to Code
§ 8.01-428(B). However, as this had not been done prior to
Rose’s trial, the Commonwealth may not assert, as it attempted
to do during oral argument of this appeal, that there is “only
one conclusion” of what the general district court could have
intended to do and that we should give effect to that intent.
The maxim that “trial courts speak only through their orders and
that such orders are presumed to reflect accurately what
transpired” is the well-established law of this Commonwealth.
McMillion v. Dryvit Systems, Inc., 262 Va. 463, 469, 552 S.E.2d
364, 367 (2001). It is not the role of the appellate courts to
look beyond the express language and effect of a trial court’s
orders to glean some unexpressed intention. This is
particularly so in instances such as this case, where the
Commonwealth would rely on the supposed intent to satisfy its
burden of proof in a criminal trial.

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 It is not sufficient merely to prove, as the Commonwealth

did in this instance, that the defendant was aware that he had

been adjudicated an habitual offender, or even, as was also the

case here, that the defendant mistakenly believed that his

driving privilege had been revoked and had previously pled

guilty to a violation of Code § 46.2-357. Rather, the

Commonwealth has the burden to show beyond a reasonable doubt

that the defendant drove a motor vehicle “while the revocation

of the [defendant’s] driving privilege remains in effect.”

The evidence presented at the November 15, 2000 trial

proved that Rose had been found to be an habitual offender on

August 6, 1996 and that he had pled guilty to a first offense

violation of Code § 46.2-357 on March 6, 2000. But that

evidence did not prove beyond a reasonable doubt that Rose’s

driving privilege had been revoked. The August 6, 1996 order

clearly did not revoke Rose’s driving privilege, and there is no

indication in the record that the March 6, 2000 conviction was

premised on any evidence more competent than that presented at

the November 15, 2000 trial. Although Rose’s guilty plea was an

evidential admission that he believed that his privilege to

operate a motor vehicle had been revoked, the issue here is not

one of notice. Rather, the issue is whether Rose operated a

motor vehicle while the revocation of his privilege to drive

remained in effect. Rose’s prior guilty plea did not establish

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that element of the present offense because, as we have already

stated, his driving privilege has never been revoked.

Accordingly, we hold that the Commonwealth’s evidence at the

November 15, 2000 trial was insufficient to sustain a conviction

for a felony violation of Code § 46.2-357, that the trial court

erred in not granting Rose’s motion to strike and in convicting

Rose of that offense, and that the Court of Appeals erred in

sustaining Rose’s conviction.

CONCLUSION

For these reasons, we will reverse the judgment of the

Court of Appeals, dismiss the indictment charging Rose with

violating Code § 46.2-357, and enter final judgment for Rose.

Reversed and final judgment.

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