Commonwealth of Virginia v. Richard John Beargie ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0563-99-4 JUDGE LARRY G. ELDER
FEBRUARY 15, 2000
RICHARD JOHN BEARGIE
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
William Shore Robertson, Judge
(Mark L. Earley, Attorney General; Jeffrey A.
Spencer, Assistant Attorney General, on
brief), for appellant.
No brief or argument for appellee.
Pursuant to Code § 46.2-362, the Commonwealth appeals from
an order entered by the Fauquier County Circuit Court on
January 8, 1999, declaring that Richard John Beargie "is not an
habitual offender." On appeal, the Commonwealth contends the
court erred in restoring Beargie's driving privilege pursuant to
former Code § 46.2-355(iii) because the statute allowing
restoration required that the qualifying convictions be based
solely on certain enumerated offenses and only one of Beargie's
convictions was for a qualifying offense. We agree and reverse
and vacate the circuit court's order of January 8, 1999, which
restored Beargie's privilege to drive.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On February 18, 1998, the Department of Motor Vehicles
declared Beargie an habitual offender (H.O.) and revoked his
driving privileges indefinitely, effective March 25, 1998. It
is undisputed that declaration was based on Beargie's
convictions for the following three offenses committed from 1990
to 1997: (1) driving while intoxicated in violation of Code
§ 18.2-266; (2) driving on a license suspended for failure to
provide proof of financial responsibility in violation of Code
§ 46.2-302; and (3) driving under a revoked or suspended license
in violation of Code § 46.2-301.
Beargie challenged the H.O. declaration, arguing it was
invalid because one of his convictions resulted from driving
while under a suspension for failure to furnish proof of
financial responsibility, an offense included in Code
§ 46.2-355(iii). The circuit court agreed and held that because
Beargie had since provided the required proof of financial
responsibility, he was entitled to have his driving privilege
restored.
Former Code § 46.2-355 provided in relevant part as
follows:
If, pursuant to the show cause proceeding or
the hearing as provided for in § 46.2-351.2
or § 46.2-354, the court finds that the
person (i) is not the same person named in
the transcript or abstract, (ii) is not an
habitual offender under this article, or
(iii) has qualifying offenses based solely
upon convictions as set out in subdivision
1c of § 46.2-351 resulting from a suspension
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or revocation ordered pursuant to § 46.2-395
for failure to pay fines and costs, or
§ 46.2-459 for failure to furnish proof of
financial responsibility, and has paid in
full all outstanding fines, costs and
judgments, or if applicable has furnished
proof of financial responsibility, relating
to such convictions, the court shall enter
an order finding that the person is not an
habitual offender and, unless otherwise
prohibited, restoring his privilege to
drive.
Id. (emphasis added).
We considered the meaning of this code section in
Commonwealth v. Wallace, 29 Va. App. 228, 511 S.E.2d 423 (1999),
in which the circuit court restored the driving privilege of a
person declared an H.O. based in part on a conviction for
driving "on a suspension . . . for failing to pay fines and
costs, . . . now paid." Id. at 232, 511 S.E.2d at 425. Our
opinion did not disclose the nature of the other two predicate
offenses but made clear that they were not offenses specified in
former Code § 46.2-355(iii). See id. at 235 & n.3, 511 S.E.2d
at 426 & n.3. We held in Wallace that the trial court
"erroneously determined that . . . a person with only one
'qualifying offense' contemplated by Code § 46.2-355(iii) . . .
was not an habitual offender." Id. at 235, 511 S.E.2d at 425.
Although no other "qualifying offenses" listed in Code
§ 46.2-355(iii) were at issue in Wallace, we noted that driving
on a suspension for "failure to furnish proof of financial
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responsibility" was "additional conduct embraced by Code
§ 46.2-355(iii)." Id. at 235 n.3, 511 S.E.2d at 426 n.3.
The reasoning of Wallace is equally applicable here. Only
one of Beargie's convictions was for a qualifying offense listed
in Code § 46.2-355(iii)--driving while his license to operate a
motor vehicle was suspended for failure to furnish proof of
financial responsibility. Beargie was entitled to have his
driving privileges restored after furnishing proof of financial
responsibility only if his H.O. declaration was based solely on
qualifying offenses listed in Code § 46.2-355(iii). Because it
was not, the trial court erred in restoring his privilege to
drive.
For these reasons, we reverse and vacate the order of the
circuit court restoring Beargie's privilege to drive, and we
remand for entry of an appropriate order pursuant to former Code
§ 46.2-355.
Reversed, vacated and remanded.
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