Commonwealth of Virginia v. Wayne Bernard Boone ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 1368-98-1 JUDGE JERE M. H. WILLIS, JR.
AUGUST 10, 1999
WAYNE BERNARD BOONE
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge
Jeffrey A. Spencer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
(Robert S. Brewbaker, Jr.; Rabinowitz, Rafal,
Swartz, Taliaferro & Gilbert, P.C., on
brief), for appellee. Appellee submitting on
brief.
On appeal from a final judgment reinstating Wayne Bernard
Boone's driving privileges after his having been adjudicated an
habitual offender, the Commonwealth contends that the trial
court erroneously interpreted and applied Code § 46.2-361(B) and
(C). We agree and reverse the judgment of the trial court.
In October, 1997, Boone was adjudicated an habitual
offender. This adjudication was based on two convictions of
driving while his license was suspended for failure to pay fines
and costs, in violation of Code § 46.2-395, and one conviction
of driving while his license was suspended for failure to submit
an insurance certificate or pay the uninsured motorist's fee, in
violation of Code § 46.2-706. In February, 1998, Boone
petitioned the trial court for reinstatement of his driving
privileges, pursuant to Code § 46.2-361(B). The Commonwealth
argued that Code § 46.2-361(B) did not apply, because one of
Boone's predicate convictions was for driving without insurance,
a conviction not set out in Code § 46.2-361(C). The trial court
held that Code § 46.2-361(B) did apply and granted Boone's
petition.
Code § 46.2-361(B) states:
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
[Code] § 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.
Code § 46.2-361(C), in effect at the time Boone filed his
petition, stated:
This section shall apply only where the
conviction resulted from a suspension or
revocation ordered pursuant to (i) [Code]
§ 46.2-395 for failure to pay fines and
costs, (ii) [Code] § 46.2-549 for failure to
furnish proof of financial responsibility,
or (iii) [Code] § 46.2-417 for failure to
satisfy a judgment . . . ." 1
1
The legislature amended Code § 46.2-361 effective July,
1998. Because Boone's petition was filed in February, 1998, we
consider the statute as it was in effect at the commencement of
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Code § 46.2-361(B) and 46.2-361(C) must be read together.
To be utilized as a predicate conviction for purposes of Code
§ 46.2-361(B), a conviction must fall within one of the classes
specified in Code § 46.2-361(C). No other class of conviction
can invoke the application of Code § 46.2-361(B). See
Commonwealth v. Brown, 28 Va. App. 781, 786-87, 508 S.E.2d 916,
919 (1999). Boone's conviction for operating a motor vehicle
while his license was suspended for failure to submit an
insurance certificate or pay the uninsured motorist's fee, in
violation of Code § 46.2-706, is not specified as a predicate
conviction in Code § 46.2-361(C). Thus, his habitual offender
adjudication, based on that conviction, does not fall within the
application of Code § 46.2-361(B). See id. at 786, 508 S.E.2d
at 919.
In its opinion, the trial court stated, "Interpreting the
statute as DMV urges would require an interpretation that deems
Mr. Boone's conviction arising from a failure to submit a
certificate of insurance and pay the uninsured fee the
equivalent of a conviction for voluntary manslaughter or for
maiming while driving under the influence." However, this
result is prohibited by Code § 46.2-361(A), which explicitly
denies application "when such . . . adjudication was also based
the proceedings. The 1998 amendment inserted "or convictions as
set out in subdivision 1 c of § 46.2-351." 1998 Va. Acts, c.
749.
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in part . . . on a conviction as set out in subdivision 1 b of
[Code] § 46.2-351."
The 1998 amendment to Code § 46.2-361(C) changed the
provision "this section shall apply only where the conviction
resulted . . ." to "this section shall apply only where the
conviction or convictions resulted . . . ." Boone argues that
the pre-amendment statute, which governs this case, should be
read to permit the application of Code § 46.2-361(B) if at least
one of the convictions underlying the habitual offender
determination is embraced by Code § 46.2-361(C). He argues that
the amendment evinces a legislative intent to change the law by
restricting the availability of relief under Code § 46.2-361(B).
We reject this argument.
Ordinarily, a statutory change will be deemed to bespeak a
legislative intent to change the law. However, that rule does
not apply where the change is plainly intended to clarify the
meaning of the existing statute. See Boyd v. Commonwealth, 216
Va. 16, 20-21, 215 S.E.2d 915, 918 (1975). The plain purpose of
Code § 46.2-361(C), before its amendment, was to define each
underlying conviction that could serve to invoke Code
§ 46.2-361(B). The amendment merely clarified that intent.
The judgment of the trial court is reversed.
Reversed.
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