COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
WINFRED EARL WILLIAMS, JR.
MEMORANDUM OPINION * BY
v. Record No. 0222-95-3 JUDGE LARRY G. ELDER
JUNE 25, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Vanessa E. Hicks, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Winfred Earl Williams, Jr. (appellant) appeals his
conviction for operating a motor vehicle after having been
declared an habitual offender in violation of Code § 46.2-357.
Appellant, contending that the evidence was insufficient to prove
the charge, argues that: (1) the February 7, 1984 order
declaring him an habitual offender was not effective on July 17,
1994, because the order failed to include a provision regarding
restoration of his driving privilege after ten years; and (2) a
moped is not a "motor vehicle" within the meaning of Code
§ 46.2-357. Because we agree with appellant's second contention,
we reverse and dismiss his conviction.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
FACTS
On February 7, 1984, the Circuit Court for the City of
Lynchburg declared appellant to be an habitual offender defined
by Code § 46.1-387.2 (codified as amended at Code § 46.2-351).
The trial court's order directed that "the defendant shall not
operate a motor vehicle on or upon the highways of the
Commonwealth of Virginia, and that the said defendant shall
surrender to the Court all licenses or permits to operate motor
vehicles . . . for the disposal in the manner provided by
statute." (Emphasis added). The order did not mention the time
period under which it revoked appellant's driving privilege.
Neither did the order contain a provision incorporating the
requirement of Code § 46.1-387.9 (now Code § 46.2-358) that the
revocation would remain effective until a court order restored
the privilege.
Appellant never petitioned the trial court to have his
driving privilege restored. On July 17, 1994, while operating a
moped in the City of Lynchburg, appellant struck a parked
vehicle.
On December 9, 1994, appellant was tried at a bench trial on
the charge of operating a "motor vehicle" after being adjudicated
an habitual offender. Appellant did not present any evidence but
made a motion to strike the Commonwealth's evidence, arguing that
the order adjudicating him an habitual offender had expired
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before July 17, 1994. The trial court overruled appellant's
motion and found him guilty as charged.
On January 20, 1995, the trial court vacated its finding,
re-opened the case, and allowed appellant to present evidence.
Appellant testified that he checked with a police officer at the
Lynchburg City Police Department and was informed that he could
legally operate a moped even if he were an habitual offender.
Appellant also testified that he believed that he could get his
license reinstated anytime after February 7, 1994 but had lacked
the funds with which to do so.
After appellant presented evidence, he again moved to strike
the Commonwealth's evidence. Appellant asserted (1) that the
1984 order expired after ten years and failed to state that the
revocation would remain in effect until a court restored his
driving privilege, and (2) he operated a moped after being
informed that he could legally do so. The trial court overruled
the motion and found appellant guilty. Appellant now appeals to
this Court.
II.
ORDER STILL IN EFFECT
First, we hold that the trial court's February 7, 1984 order
was still in effect on July 17, 1994, when appellant operated his
moped on the public highways of Lynchburg. Code § 46.1-387.8
(codified as amended at Code § 46.2-357) stated, "[i]t shall be
unlawful for any person to drive any motor vehicle or
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self-propelled machinery or equipment on the highways of the
Commonwealth while the order of the court prohibiting such
operation remains in effect." (Emphasis added). The trial
court's 1984 order did not provide a date after which appellant's
driving privilege was restored. Nothing in the record reveals,
nor does appellant contend, that any court order superseded the
trial court's 1984 order declaring appellant to be an habitual
offender and revoking his driving privilege. Therefore, the
prohibition on driving was still in effect on July 17, 1994. See
Manning v. Commonwealth, 22 Va. App. 252, 256, 468 S.E.2d 705,
707 (1996) (en banc). The trial court did not err in refusing to
grant appellant's motion to strike based on this argument.
III.
STATUS OF THE MOPED AS A "MOTOR VEHICLE"
We will assume arguendo that appellant failed to alert the
trial court to the precise issue of whether a moped is a motor
vehicle, and thus did not satisfy the requirement of Rule 5A:18.
See Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d
401, 404 (1992). However, because appellant was convicted of a
crime that he did not commit (operating a "motor vehicle"), we
invoke 5A:18's "ends of justice" exception to consider the merits
of the issue. See Mounce v. Commonwealth, 4 Va. App. 433, 436,
357 S.E.2d 742, 744 (1987).
The trial court's 1984 order directed that "the defendant
shall not operate a motor vehicle on or upon the highways of the
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Commonwealth of Virginia . . . ." (Emphasis added). In 1994,
appellant was indicted for and found guilty of "unlawfully,
feloniously and after having been adjudicated an habitual
offender" operating "a motor vehicle upon the highways of
Virginia while said order was in full force and effect."
(Emphasis added).
Appellant's operation of a moped on July 17, 1994 did not
qualify as the operation of a "motor vehicle." Both statutory
and case law provide that a moped is not a motor vehicle for
purposes of Title 46.1 (now Title 46.2). Code § 46.1-1(15)(now
Code § 46.2-100) stated that "[f]or the purposes of this chapter,
any device herein defined as a bicycle or a moped shall be deemed
not to be a motor vehicle." (Emphasis added). In Diggs v.
Commonwealth, 6 Va. App. 300, 301, 369 S.E.2d 199, 200 (1988)(en
banc), this Court recognized that a "moped is expressly excluded
from the definition of a motor vehicle." While we held in Diggs
that a moped is considered to be "self-propelled machinery or
equipment," id., appellant's habitual offender order did not
forbid him to operate "self propelled machinery or equipment" nor
was he indicted or convicted for that offense.
Accordingly, we reverse and dismiss appellant's conviction.
Reversed and dismissed.
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