COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia
EDDIE LEE GILLS
MEMORANDUM OPINION ∗∗ BY
v. Record No. 0584-99-2 JUDGE SAM W. COLEMAN III
JULY 5, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Robert G. O'Hara, Jr., Judge
Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Eddie Lee Gills was convicted following a bench trial of
feloniously driving after having been declared an habitual
offender, a second or subsequent offense, in violation of Code
§ 46.2-357. On appeal, Gills argues that the trial court erred
by admitting the certified copy of a district court warrant,
with certain dispositional notations thereon, as evidence of a
prior habitual offender violation. He contends that the
∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
notations on the warrant are insufficient to support the
conviction because they do not prove a prior conviction of
driving after having been declared an habitual offender. We
agree that the notations on the warrant are insufficient to
prove a prior conviction of driving after having been declared
an habitual offender. Accordingly, we reverse the habitual
offender conviction as a second or subsequent offense and remand
the case to the trial court for sentencing as a first offense
under Code § 46.2-357.
BACKGROUND
On review of a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to
the Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom. See
Commonwealth v. Jenkins, 225 Va. 516, 521, 499 S.E.2d 263, 265
(1998). On October 18, 1997, Gills was arrested and charged
with feloniously driving after having been declared an habitual
offender, a second or subsequent offense. At trial, the
Commonwealth introduced a certified copy of an order of the
Circuit Court for Stafford County to prove that Gills had been
declared an habitual offender. The Commonwealth also proffered
a certified copy of a warrant from a district court proceeding
as evidence that Gills had previously been convicted of driving
after being declared an habitual offender in violation of Code
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§ 46.2-357(B)(1). 1 Gills, relying on the holding in McBride v.
Commonwealth, 24 Va. App. 30, 34-35, 480 S.E.2d 126, 128 (1997),
objected to the introduction of the warrant. He argued that the
warrant failed to indicate the offense of which he was
convicted; thus, it failed to prove that he had been convicted
of driving after having been declared an habitual offender in
violation of Code § 46.2-357(B)(1). The trial court admitted
the evidence, finding that McBride was factually distinguishable
from the instant case. The Commonwealth offered no other
evidence to prove the prior conviction.
ANALYSIS
Gills argues that the trial court erred by admitting the
warrant as evidence of his prior conviction because the warrant
1
The relevant portion of the warrant, which charged Gills
with driving in Stafford County on February 14, 1997, after
having been declared an habitual offender, also showed the
following:
The Accused Pleaded:
____ not guilty
____ nolo contendere
X guilty
And was TRIED and FOUND by me:
____ not guilty
____ guilty as charged
____ guilty of _____________
The warrant also contained notations that Gills was present and
represented by counsel and that the judge imposed a $300 fine
and a ninety day jail sentence with sixty days suspended for
three years conditioned upon good behavior and keeping the
peace.
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was irrelevant, incompetent, and insufficient to prove the prior
violation, an element which the Commonwealth was required to
prove under the statute. Gills argues that, although the
notation on the warrant indicates that Gills pled guilty and was
sentenced, the warrant fails to indicate that Gills was found
guilty of the charged offense.
Despite the Commonwealth's assertion that Gills failed to
challenge the sufficiency of the evidence below, we find that
Gills preserved the issue for appeal. See Rule 5A:18; see also
Mounce v. Commonwealth, 4 Va. App. 433, 434, 357 S.E.2d 742, 743
(1987). As a basis for objecting to the admissibility of the
warrant for the prior offense, Gills expressly relied on the
holding in McBride. Gills discussed the holding in McBride and
its applicability to this case. He argued that based on the
warrant, "there's no indication that he was convicted of having
been declared a habitual offender, a misdemeanor, which is a
prerequisite and a necessary element of the charge that he is
now facing in court." Although the trial court factually
distinguished McBride and overruled the objection, the trial
court was fully aware of the nature of Gills' objection and was
aware that Gills was challenging the sufficiency of the
evidence. Thus, the issue was preserved for appeal.
"As with all elements of a crime, the burden is on the
Commonwealth to prove the prior conviction beyond a reasonable
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doubt." McBride, 24 Va. App. at 33, 480 S.E.2d at 123. "The most
efficient way to prove the prior . . . conviction is to offer in
evidence an authenticated copy of the prior conviction." Essex v.
Commonwealth, 18 Va. App. 168, 171, 442 S.E.2d 707, 709 (1994).
Here, Gills was charged with the felony of driving after
having been declared an habitual offender, a second or subsequent
offense, in violation of Code § 46.2-357. An element of the crime
which the Commonwealth had to prove was a previous conviction for
driving after having been declared an habitual offender.
"Evidence which 'tends to cast any light upon the subject of the
inquiry' is relevant" and admissible, unless excluded by some
other principle or rule of law or by statute. Cash v.
Commonwealth, 5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1988); see
also Crews v. Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407,
409 (1994) (finding that the admissibility of evidence is reviewed
for an abuse of discretion); Evans-Smith v. Commonwealth, 5 Va.
App. 188, 196, 361 S.E.2d 436, 441 (1987) (stating that the
general rule for the admissibility of evidence is that it be
relevant and material). Therefore, under the general rule, a
warrant that shows that the defendant has been previously charged
and convicted of driving after having been declared an habitual
offender is relevant and admissible. Although the warrant was
admissible, Gills contends the warrant and the notation thereon
were insufficient to establish the prior conviction. Gills argues
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that the warrant merely shows that he was charged with a violation
of Code § 46.2-357 and that he pled guilty and was sentenced.
Thus, he contends it does not prove that the court found him
guilty of the charged offense as opposed to a lesser or
lesser-included offense. The Commonwealth, citing Savino v.
Commonwealth, 239 Va. 534, 539, 391 S.E.3d 276, 278 (1990), argues
that a plea of guilty is a self-executing conviction and that the
presumption of regularity justified the trial court's conclusion
that Gills pled guilty to the charged offense.
We find that this case is controlled by our holding in
McBride. In McBride, the defendant was convicted of a second
offense of driving under the influence. At trial, the
Commonwealth introduced a certified copy of an arrest warrant,
indicating that the defendant was charged with previously
violating Code § 18.2-266. The warrant contained a printed form
upon which the district court had reported the proceedings. The
form indicated that the defendant was charged, pled not guilty,
and was sentenced. However, the form was blank in the space where
the court is to designate whether the defendant was tried and
found guilty of the charged offense. The Commonwealth offered no
other evidence to prove a prior conviction. The defendant moved
to strike the evidence, arguing that the evidence did not prove
that he had been previously convicted of violating Code
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§ 18.2-266. The trial court denied the motion and found the
defendant guilty of the second offense.
We reversed McBride's conviction, finding that the evidence
was insufficient to prove that he had been previously convicted of
violating Code § 18.2-266. We found that the warrant from the
previous proceeding failed to prove that the defendant was
convicted of the charged offense, rather than some other offense
or a lesser-included offense. Moreover, we declined to infer or
speculate the nature of the actual judgment of conviction based on
the sentence imposed by the trial court.
"It is the firmly established law of this Commonwealth that a
trial court speaks only through its written orders." Davis v.
Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996) (citation
omitted). Here, the warrant proffered by the Commonwealth
indicated only that Gills was charged with violating Code
§ 46.2-357(B)(1), that he pled guilty at that proceeding, and that
he was sentenced. The warrant contained no notation indicating of
what offense Gills was convicted. Often charges are amended or a
defendant is permitted to plead guilty to a reduced charge other
than the charged offense. So that district court judges will not
have to prepare dispositional orders for each case, the Supreme
Court provides pre-printed forms on the warrants which contain
blocks or blanks that enable judges to specify, by merely checking
the section or filling in a blank, the disposition of a case, the
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offense of which the accused is found guilty, and the amount of a
fine and/or jail sentence. Moreover "every act of a court of
competent jurisdiction shall be presumed to have been rightly
done, till the contrary appears." Nicely v. Commonwealth, 25 Va.
App. 579, 584, 490 S.E.2d 281, 283 (1997) (internal quotation and
citation omitted). But, we apply a presumption of regularity
where a proceeding appears in all respects regular on its face and
some procedural issue is being challenged, such as whether a
defendant was represented by counsel in a prior conviction. The
presumption does not apply where the proceeding is irregular on
its face, in that it fails to specify the offense for which a
defendant was convicted. In the absence of a notation or
specification on the warrant stating the offense of which Gills
was convicted, we will not presume or surmise as to the offense of
which Gills was convicted.
Accordingly, we hold that the warrant was insufficient to
prove the prior conviction. We, therefore, reverse Gills'
conviction and remand the case to the trial court for
resentencing.
Reversed and remanded.
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