COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bray and
Senior Judge Overton *
Argued at Norfolk, Virginia
MICHAEL ALAN SEARS
OPINION BY
v. Record No. 0653-98-1 JUDGE RICHARD S. BRAY
FEBRUARY 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Thomas L. Watkins, Deputy Public Defender
(Office of the Public Defender, on brief),
for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Michael Alan Sears (defendant) was convicted of driving a
motor vehicle after having been declared an habitual offender, a
"second or subsequent offense," in violation of Code
§ 46.2-357(B)(3). Defendant argues on appeal that the evidence
was insufficient to prove he was an habitual offender at the time
of the alleged crime. Finding no error, we affirm the
conviction.
Under familiar principles of appellate review, we construe
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
*
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a trial court will be
disturbed only if plainly wrong or without evidence to support
it. See id.; Code § 8.01-680.
On August 31, 1996, Virginia Beach Police Officer Craig R.
Schneider, while on routine patrol, observed a "vehicle . . .
cross[] the center line [of the roadway] . . . and hit the center
divider." Schneider activated his emergency lights and siren,
and "tried to pull the vehicle over." However, the driver, later
identified as defendant, "refused to stop," and continued for a
distance of a "mile, mile and a half" before parking in the
"front yard" of a residence. Defendant then alighted from the
vehicle and "tried to run," but was "tackled" and apprehended by
Schneider.
Defendant was unable to produce an operator's license, and
the ensuing police investigation disclosed that he had been
adjudicated an habitual offender by the Newport News Circuit
Court on November 29, 1984. The attendant order directed that
defendant "not operate a motor vehicle . . . for a period of ten
(10) years from [such] date . . . and until [defendant's]
privilege . . . to operate a motor vehicle in this State has been
restored by Order of a Court of Record." (Emphasis added). The
evidence further revealed that defendant had four subsequent
convictions of operating a vehicle in violation of the revocation
order: December 15, 1986, by the Newport News Circuit Court,
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January 18, 1989, in the Virginia Beach Circuit Court, and
November 12, 1991, and July 24, 1995, respectively, by the
Norfolk Circuit Court.
In challenging the sufficiency of the Commonwealth's
evidence, defendant relies upon Code § 46.2-356 1 to support his
contention that the Commonwealth must affirmatively establish, as
an element of the offense, that his license had not been
restored. However, "[w]hile Code § 46.1-387.7 (now Code
§ 46.2-356) defines the period during which an habitual offender
may not be issued a license, it has no bearing on the definition
of the felony." Davis v. Commonwealth, 12 Va. App. 246, 248, 402
S.E.2d 711, 712 (1991) (footnote omitted). Defendant was
indicted and convicted for a violation of Code § 46.2-357, which
provides, in pertinent part, that "[i]t shall be unlawful for any
person to drive any motor vehicle . . . while the revocation of
1
No license to drive motor vehicles
in Virginia shall be issued to an
habitual offender (i) for a period
of ten years from the date of any
final order of a court entered
under this article or if no such
order was entered then the notice
of the determination by the
Commissioner finding the person to
be an habitual offender and (ii)
until the privilege of the person
to drive a motor vehicle in the
Commonwealth has been restored by
an order of a court entered in a
proceeding as provided in this
article.
Code § 46.2-356.
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the person's driving privilege remains in effect," together with
a penalty for a violation by such persons previously "found to be
an habitual offender." Code § 46.2-357. Thus, the operative
statute "defines the [offense] in terms of the court's order and
prohibits the person who has been declared an habitual offender
from driving while the order remains in effect." 12 Va. App. at
249, 402 S.E.2d at 712.
Here, the evidence clearly established that defendant had
been adjudicated an habitual offender by order of the Newport
News Circuit Court on November 29, 1984, and thereby expressly
prohibited from operating a motor vehicle for ten years and until
his privileges were "restored by order of a Court of Record."
Thus, the passage of the revocation period, without more, did
"not automatically restore [defendant's] privilege to drive
. . . ." Manning v. Commonwealth, 22 Va. App. 252, 256, 468
S.E.2d 705, 707 (1996). To the contrary, "under the terms of the
order, the prohibition on driving [remained] in effect," pending
proper restoration. Id.
Nothing in the instant record suggests that "a Court of
Record" had restored defendant's privileges or that he otherwise
possessed a valid driver's license. Under such circumstances,
the Commonwealth's evidence established a prima facie case that
defendant remained under the disability of the order, "casting
upon [him] . . . the burden of going forward with evidence
raising a reasonable doubt as to the illegality of his
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[conduct]." Mejia v. Commonwealth, 23 Va. App. 173, 177-78, 474
S.E.2d 866, 868 (1996). See Mayhew v. Commonwealth, 20 Va. App.
484, 492, 458 S.E.2d 305, 309 (1995) (While "circumstances[]
within the knowledge of the accused . . . may be raised as . . .
defenses," they "are not negative elements of the offense [which]
must be proven by the Commonwealth.").
Accordingly, we affirm the conviction.
Affirmed.
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