CW v. Shawn Lewis, s/k/a Shawn L. Lewis ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner
Argued at Chesapeake, Virginia
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1065-99-1 JUDGE RUDOLPH BUMGARDNER, III
APRIL 11, 2000
SHAWN LEWIS, S/K/A
SHAWN L. LEWIS
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Jeffrey A. Spencer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
No brief or argument for appellee.
The trial court granted Shawn Lewis's petition to restore
his driving privileges pursuant to Code § 46.2-361. The
Commonwealth appeals and argues the court lacked the authority
to do so because three years had not passed since Lewis was
declared an habitual offender. We agree and reverse the
judgment of the trial court.
The trial court declared Lewis an habitual offender on
February 15, 1997. He petitioned for restoration of his license
on February 25, 1999. Lewis alleged that he was declared an
habitual offender based entirely on convictions for driving
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
while suspended for failure to pay fines. See Code
§ 46.2-361(B). 1 However, because all of the defendant's
convictions were not based entirely on subdivision (1)(c) of
former § 46.2-351, the defendant did not qualify for restoration
under Code § 46.2-361(B). Nevertheless, the trial court granted
the petition restoring the defendant's license under Code
§ 46.2-361(A). 2 Subsection (A) permits restoration when three
1
Code § 46.2-361(B) provides:
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
former § 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.
2
Code § 46.2-361(A) provides:
Any person who has been found to be an
habitual offender, where the determination
or adjudication was based in part and
dependent on a conviction as set out in
subdivision 1 c of former § 46.2-351, may,
after three years from the date of the final
order of a court entered under this article,
or if no such order was entered then the
notice of the determination or adjudication
by the Commissioner, 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.
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years have passed since the petitioner was declared an habitual
offender. On the form order used to record the findings and the
judgment, the trial court deleted the preprinted words "three
years have [passed]" and interlined a finding that "a sufficient
period has [passed]." The Commonwealth objected to the order.
After three years, a person found to be an habitual
offender may petition for restoration of driving privileges
under Code § 46.2-361(A). The petitioner bears the burden of
proving by a preponderance of the evidence that he is eligible
for restoration of his driving privileges. See Commonwealth v.
Lynn, 29 Va. App. 151, 155, 510 S.E.2d 270, 272 (1999)
(petitioner not eligible for restoration under Code
§ 46.2-361(A) where only six months passed from date declared
habitual offender); Commonwealth v. Brown, 28 Va. App. 781, 786,
508 S.E.2d 916, 919 (1999) (restoration reversed where one of
defendant's convictions did not meet requirements of statute).
This petition was filed only two years after the habitual
offender determination. The findings recited in the order show
that the petitioner did not qualify for the relief granted. The
petition for restoration must be filed three years after the
In no event, however, shall the provisions
of this subsection apply when such person's
determination or adjudication was also based
in part and dependent on a conviction as set
out in subdivision 1 b of former § 46.2-351.
In such case license restoration shall be in
compliance with the provisions of
§ 46.2-360.
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habitual offender declaration. The finding that "a sufficient
period has" passed, rather than the necessary finding that
"three years have" passed, constituted a finding that the
petitioner did not meet the requirements necessary for
restoration of his license. The trial court erred in restoring
the driving privilege before the required three years had
passed. Accordingly, we reverse the judgment.
Reversed.
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