COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Overton *
Argued at Norfolk, Virginia
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF MOTOR VEHICLES
OPINION BY
v. Record No. 0427-98-1 JUDGE JAMES W. BENTON, JR.
FEBRUARY 2, 1999
ARTHLES HASKER LYNN
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
S. Bernard Goodwyn, Judge
Eric K. G. Fiske, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellant.
No brief or argument for appellee.
The issue presented in this appeal is whether the trial
judge possessed authority pursuant to Code § 46.2-361(B) to order
the restoration of a driver's license to Arthles Hasker Lynn, an
habitual offender. Because several convictions which led to the
habitual offender determination were based, in part, on
suspensions not specified in Code § 46.2-361(C), we hold that the
trial judge lacked authority to order the restoration of Lynn's
driver's license.
I.
Acting pursuant to the authority granted in Code § 46.2-352,
the Commissioner of the Department of Motor Vehicles reviewed the
*
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.
Department's records and determined on May 23, 1997 that Arthles
Hasker Lynn qualified as an habitual offender. The Commissioner
notified Lynn that the Department had determined Lynn to be an
habitual offender, that the Department had revoked Lynn's
driver's license, and that to regain his driver's license Lynn
was required to file a petition in the appropriate circuit court.
In his letter to Lynn, the Commissioner also informed Lynn of
the three convictions that supported the habitual offender
determination. See Code § 46.2-351(1)(c).
Six months after the Commissioner determined that Lynn was
an habitual offender, Lynn filed a petition in the circuit court
for the restoration of his driving privileges. His petition, a
pre-prepared form, referred to Code § 46.2-361(A) and alleged
that Lynn had "been determined to be an habitual offender based
in part and dependent upon convictions of driving while [his]
license or privilege to drive was suspended or revoked . . . for
failure to pay fines and costs." In its response to Lynn's
petition, the Department asserted that Lynn could not petition
for restoration under Code § 46.2-361(A) until three years from
the date of his habitual offender determination. The Department
also asserted that even though Lynn was not seeking restoration
under Code § 46.2-361(B), Lynn was not eligible under that
provision because all the convictions did not result from
suspensions ordered pursuant to (1) Code § 46.2-395, for failure
to pay fines or costs; (2) Code § 46.2-459, for failure to
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furnish proof of financial responsibility; or (3) Code
§ 46.2-417, for failure to satisfy a judgment. See Code
§ 46.2-361(C).
The evidence at trial established that on May 6, 1997, a
judge of the General District Court of the City of Norfolk
convicted Lynn of driving on March 12, 1997, while his driver's
license had been suspended. Lynn was also convicted in the
General District Court of Southampton County on January 21, 1997,
and in the General District Court of the City of Chesapeake on
October 21, 1996, on charges of driving while his driver's
license had been suspended. See Code § 46.2-301.
The record further established that when Lynn was stopped on
March 12, 1997, and charged with driving while his license was
suspended (the charge that led to the conviction in Norfolk on
May 6, 1997), the following suspension orders were then in
effect:
1. suspension issued February 7, 1997, for
violation of probation under Code § 46.2-499
of the Driver Improvement Program;
2. suspension issued February 7, 1997, for a
conviction of driving while Lynn's license
was suspended (see Southampton conviction on
January 21, 1997 for driving while a prior
suspension order was in effect);
3. suspension issued November 7, 1996, for
violation of probation under Code § 46.2-499
of the Driver Improvement Program;
4. suspension issued November 7, 1996, for
failure to pay fines imposed upon convictions
in Chesapeake for driving while his license
was suspended and for speeding;
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5. suspension issued October 10, 1996, for
failure to pay fines and costs imposed upon
convictions in Chesapeake for speeding,
safety belt violation, and no driver's
license; and
6. suspension issued July 1, 1996, for
failure to pay fines and costs imposed upon
conviction in Chesapeake for speeding.
After consideration of this evidence, the trial judge
granted Lynn's petition and awarded Lynn restricted driving
privileges to drive to and from work. The final order contained
findings that (1) Lynn "was determined to be an habitual offender
based on convictions set out in [Code § 46.2-351(1)(c)]," (2) "at
least one of the convictions considered by the [Department] in
determining [Lynn] to be an habitual offender resulted from a
suspension or revocation ordered pursuant to [Code §] 46.2-395
for failure to pay fines and costs," (3) Lynn "has paid in full
all outstanding fines, costs and judgments relating to his
determinations as an habitual offender," and (4) Lynn "does not
constitute a threat to the safety and welfare of himself and
others with respect to the operation of a motor vehicle." The
Department appeals from that order.
II.
Lynn's petition for restoration of his driver's license
indicated that it was filed pursuant to Code § 46.2-361(A). That
part of the statute provides that an habitual offender whose
status "was based in part and dependent on a conviction as set
out in subdivision 1 c of [Code] § 46.2-351, may, after three
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years from the date of the . . . notice of determination . . . by
the Commissioner, petition . . . the circuit court . . . for
restoration of his privilege to drive a motor vehicle." Code
§ 46.2-361(A). Lynn was not eligible for restoration under that
section because his petition was filed after the passage of only
six months from the Commissioner's notice of the determination
that Lynn was an habitual offender. The trial judge ruled,
instead, under Code § 46.2-361(B).
Code § 46.2-361(B) provides as follows:
Any person who has been found to be an
habitual offender, where the determination or
adjudication was based entirely upon
convictions as set out in subdivision 1 c of
§ 46.2-351, may, after payment in full of all
outstanding fines, costs and judgments
relating to his determination, and furnishing
proof of financial responsibility, if
applicable, petition the court in which he
was found to be an habitual offender, or the
circuit court in the political subdivision in
which he then resides, for restoration of his
privilege to drive a motor vehicle in the
Commonwealth.
(Emphasis added). The relief provided in that part of the
statute is further limited by the following provision of the
statute:
This section shall apply only where the
conviction or convictions as set out in
subdivision 1 c of § 46.2-351 resulted from a
suspension or revocation ordered pursuant to
(i) § 46.2-395 for failure to pay fines and
costs, (ii) § 46.2-459 for failure to furnish
proof of financial responsibility, or (iii)
§ 46.2-417 for failure to satisfy a judgment,
provided the judgment has been paid in full
prior to the time of filing the petition or
was a conviction under § 46.2-302 or former
§ 46.1-351.
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Code § 46.2-361(C).
The effect of Code § 46.2-361(B) and (C) and, thus, the
resolution of the issue presented by this appeal are controlled
by our recent decision in Commonwealth v. Brown, ___ Va. App.
___, ___ S.E.2d ___ (1999). Interpreting Code § 46.2-361(B), a
panel of this Court ruled in Brown that "[u]nder [the language
of] the statute, if any one of [the] predicate convictions did
not meet the requirements of subsection (C), [the petitioner] was
not entitled to restoration of his driver's license." ___ Va.
App. at ___, ___ S.E.2d at ___. See also Loflin v. Commonwealth,
27 Va. App. 626, 630-31, 500 S.E.2d 826, 828 (1998) (noting that
the requirements of sections (C) and (D) of the statute must be
satisfied before driving privileges may be restored under section
(B)).
The record clearly establishes that when Lynn was convicted
in Norfolk on May 6, 1997, of driving while his driver's license
had been suspended, six different suspension orders were in
effect. In Brown, we held "that where a conviction for driving
on a revoked or suspended license is based on an offense
committed when the driver is under more than one suspension or
revocation, [the conviction] is rendered under all such
suspensions and revocations." Id. at ___, ___ S.E.2d at ___. We
noted that "[a]lthough only a single conviction results from the
act of driving, the statutory scheme does not permit a [judge] to
choose a particular suspension or revocation upon which to base a
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conviction." Id.
Of the six suspensions in effect when Lynn was convicted on
May 6, 1997, only three were for Lynn's failure to pay fines and
costs. The remaining suspension orders were issued for reasons
not covered by Code § 46.2-361(C). Two of the suspensions were
the result of violations of probation under the Driver
Improvement Program, see Code § 46.2-499, and the other was based
on Lynn's conviction for driving while his driver's license had
been suspended. See Code § 46.2-301(B) and (C).
Thus, the evidence proved that the Commissioner's
determination that Lynn was an habitual offender "was based
entirely upon convictions as set out in subdivision 1 c of [Code]
§ 46.2-351." Code § 46.2-361(B). However, the evidence also
proved that Lynn's conviction in the General District Court of
the City of Norfolk was based in part on suspensions not
specified in Code § 46.2-361(C).
For these reasons, we hold that the trial judge erred in
restoring Lynn's driver's license under Code § 46.2-361(B), and
we reverse the order.
Reversed.
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