COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
DOMINIC R. DICKER
OPINION BY
v. Record No. 1914-95-1 JUDGE JERE M. H. WILLIS, JR.
JULY 9, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
Edward I. Sarfan (Sarfan & Nachman, on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his adjudication as an habitual offender
pursuant to Code § 46.2-351, et seq., Dominic R. Dicker contends
that the evidence was insufficient to prove the three convictions
required to bring him within the definition of an habitual
offender. Specifically, he argues that the April 19, 1994 order
convicting him of driving under a revoked or suspended license is
void and thus does not qualify as a predicate conviction under
Code § 46.2-351. We find no error and affirm the judgment of the
trial court.
On April 20, 1995, the Commonwealth's Attorney filed an
information in accordance with Code § 46.2-353, and Dicker was
ordered to show cause why he should not be adjudged an habitual
offender. At the show cause hearing, the Commonwealth entered
into evidence a certified copy of Dicker's DMV transcript, which
included an April 19, 1994 conviction in Newport News General
District Court for driving under revocation or suspension of
license on February 19, 1994.
In rebuttal, Dicker introduced a certified copy of a
pre-printed arrest warrant, which contained the April 19, 1994
conviction order. He argued that this order was void because the
district court had failed to check the appropriate boxes
indicating his plea and whether he was found guilty, not guilty,
or guilty of a lesser included offense. Dicker argued that
because the order was void, the conviction could not be used as a
predicate offense under Code § 46.2-351. The trial court ruled
that Dicker had failed to rebut the Commonwealth's prima facie
proof of the requisite convictions and had failed to show cause
why he should not be adjudged an habitual offender.
Code § 46.2-352, in effect at the time of Dicker's habitual
offender adjudication, 1 provided, in pertinent part:
The Commissioner shall certify . . . three
transcripts or abstracts of those conviction
documents which bring the person named
therein within the definition of an habitual
offender, as defined in § 46.2-351 . . . .
* * * * * * *
The transcript or abstract shall be prima
facie evidence that the person named therein
was duly convicted . . . of each offense
shown by the transcript or abstract. If the
person denies any of the facts stated
therein, he shall have the burden of proving
that the fact is untrue.
1
Code § 46.2-352 was amended effective January 1, 1996.
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In Moffitt v. Commonwealth, 16 Va. App. 983, 434 S.E.2d 684
(1993), we held:
Habitual offender proceedings are civil
in nature, not criminal. Therefore, the
Commonwealth has the burden of proving by a
preponderance of the evidence that the
respondent had obtained the three requisite
driving convictions to be an habitual
offender. . . . [T]he Commonwealth
established a prima facie presumption that it
was a valid conviction by introducing the
certified DMV transcript . . . . The prima
facie presumption that the convictions were
valid necessarily encompasses that the
evidence of the charges were proven . . . .
Once the Commonwealth has established a prima
facie case, it is entitled to judgment,
unless the respondent goes forward with
evidence that refutes an element of the
Commonwealth's case or rebuts the prima facie
presumption.
Id. at 986, 434 S.E.2d at 687 (citations omitted).
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). The judgment of a
trial court sitting without a jury will not be set aside unless
plainly wrong or without evidence to support it. Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
The DMV transcript constituted prima facie proof of Dicker's
qualification as an habitual offender. The issue embraced in
this appeal is whether the allegedly defective April 19, 1994
order rebuts the presumption of that prima facie proof.
Dicker contends that the failure of the general district
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court to check all the blocks rendered the April 19, 1994 order
void. We disagree. Although the informational deficiencies of
the order might have rendered it reversible on appeal, the order
was, at worst, voidable, not void. Because the order was never
reversed, it remained a valid conviction. The order shows on its
face that it was a valid exercise of the general district court's
subject matter, territorial, and personal jurisdiction.
The April 19, 1994 order failed in several respects to
corroborate the DMV transcript. However, in no respect did it
contradict that transcript.
It is within the province of the fact finder
to evaluate the credibility of the witnesses
and the weight of the evidence. The
determination that a party's evidence is not
credible or not sufficiently persuasive to
overcome the prima facie presumption will not
be overturned on appeal unless clearly wrong
or unsupported by the record.
Moffitt, 16 Va. App. at 988, 434 S.E.2d at 688.
The judgment of the trial court is affirmed.
Affirmed.
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