Clarence Scott Legg v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
CLARENCE SCOTT LEGG
v. Record No. 0544-95-4 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA FEBRUARY 27, 1996
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
William Shore Robertson, Judge
Jud A. Fischel (Nicholas R. VanBuskirk;
Jud A. Fischel, P.C., on brief), for
appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Clarence Scott Legg appeals his adjudication as an habitual
offender under Code § 46.2-351. He claims that this adjudication
placed him in jeopardy twice for the same offense in violation of
the United States Constitution. We affirm the judgment of the
circuit court.
On June 23, 1994, Legg was certified as an habitual offender
by the Virginia Department of Motor Vehicles. An information
charging Legg with being an habitual offender was filed in the
circuit court on June 30, 1994. On January 9, 1995, Legg moved
to dismiss the information, alleging that the Virginia habitual
offender statute violated the double jeopardy clause of the
Constitution because it subjected him to successive punishments
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
for the same offense. On February 13, the court denied the
motion to dismiss and adjudged Legg to be an habitual offender
under Code § 46.2-351. Accordingly, Legg was ordered to
surrender all licenses and permits to operate a vehicle on the
highways of the Commonwealth.
The double jeopardy clause provides three separate
protections: protection against a second prosecution for the
same offense after acquittal, a second prosecution for the same
offense after conviction, and multiple punishments for the same
offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). Legg claims
that to adjudge him an habitual offender imposes a second
punishment for the offenses underlying that adjudication. He
thus seeks to invoke the protection against multiple punishments
for the same offense.
In this case, the double jeopardy claim arises not from two
successive criminal prosecutions, but from several criminal
prosecutions followed by a civil habitual offender proceeding.
See Bouldin v. Commonwealth, 4 Va. App. 166, 170, 355 S.E.2d 352,
355 (1987) (habitual offender proceedings are civil in nature.)
This would constitute double jeopardy only if the license
revocation imposed in the civil proceeding constitutes
punishment, and if the license revocation and the criminal
sanctions occurred in separate proceedings. Department of
Revenue of Montana v. Kurth Ranch, 511 U.S. , 114 S. Ct. 1937,
1945 (1994); United States v. Halper, 490 U.S. 435, 446, 450
(1989). Because we hold that the license revocation resulting
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from the habitual offender adjudication does not constitute
punishment, we need not consider whether the proceedings were
separate, although we note that the Commonwealth has apparently
conceded this issue.
A civil penalty constitutes punishment for purposes of
double jeopardy to the extent that it may not be fairly
characterized as remedial, but only as a deterrent or
retribution. Halper v. United States, 490 U.S. 435, 448-449
(1989); holding restated in Kurth Ranch, 511 U.S. at , 114
S. Ct. at 1945; followed in Tench v. Commonwealth, 21 Va. App.
200, 205, 462 S.E.2d 922, 924 (1995). In Huffman v.
Commonwealth, 210 Va. 530, 172 S.E.2d 788 (1970), the Supreme
Court held that the purpose of revoking the habitual offender's
license "is not for the punishment of the offender, but for the
protection of the public in removing from the highways a
dangerous driver." Id. at 532, 172 S.E.2d at 789. In Tench, we
held that protection of the public from dangerous drivers is a
remedial purpose that does not constitute punishment for purposes
of double jeopardy. Tench, 21 Va. App. at 205-206, 462 S.E.2d at
924. The same is true here. 1
Legg argues that in Austin v. United States, 509 U.S. ,
113 S. Ct. 2801 (1993), the Supreme Court established that a
1
Legg argues that adjudication as an habitual offender is
punitive in his case because the offenses for which he was
certified relate to his failure to prove financial
responsibility, not to instances of "dangerous" driving. Legg
failed to raise this argument below and it is therefore barred
under Rule 5A:18.
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civil sanction constitutes punishment if it has any deterrent or
punitive effect whatsoever, even if it also serves remedial
goals. In Austin, the Supreme Court held that the Eighth
Amendment's excessive fines clause applies to in rem forfeiture
proceedings. The Supreme Court concluded that property
forfeitures have historically been regarded as punitive, even
though they may also serve a remedial purpose.
As we explained in Tench, Austin is not a double jeopardy
case and does not purport to modify the Court's holding in Halper
that a civil sanction constitutes punishment if it is not
remedial, but only a deterrent or retribution. The habitual
offender statute has a remedial purpose, and therefore license
revocation under that statute does not constitute an additional
punishment for the same offense in violation of the double
jeopardy clause.
For these reasons, the judgment of the circuit court is
affirmed.
Affirmed.
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