Lawrence D. Loflin v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Duff
Argued at Richmond, Virginia
LAWRENCE D. LOFLIN
OPINION BY
v. Record No. 1365-97-2 JUDGE LARRY G. ELDER
JUNE 30, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NEW KENT COUNTY
Samuel T. Powell, III, Judge
Robert S. Ganey (Hanover Law Office, on
briefs), for appellant.
Jeffrey A. Spencer, Assistant Attorney
General (Mark L. Earley, Attorney General;
H. Elizabeth Shaffer, Assistant Attorney
General, on brief), for appellee.
Lawrence D. Loflin (appellant) appeals the trial court's
order denying his petition to restore his driving privilege.
Appellant was previously adjudged an habitual offender and filed
his petition based on the provisions of Code § 46.2-361(B). He
contends that, in denying his petition, the trial court
erroneously modified its prior order adjudicating him to be an
habitual offender, in violation of Rule 1:1. For the reasons
that follow, we affirm.
I.
FACTS
On September 18, 1995, the trial court conducted a
show-cause proceeding pursuant to Code § 46.2-352 and adjudged
appellant to be an habitual offender. At the time of this
proceeding, appellant had four convictions chargeable under the
Habitual Offender Act that occurred on two separate dates. A
transcript of appellant's driving record from the Department of
Motor Vehicles indicated he was convicted of "driving while
intox, 1ST" and of "driving under revocation or suspension" and
that the offense date of these two convictions was February 3,
1991. The transcript also indicated appellant was convicted of
"driving under revocation or suspension" and that he committed
this offense twice on April 9, 1995. In its order, the trial
court stated it was "of the opinion that [appellant] . . . is an
'habitual offender' under the definition contained in § 46.2-351
of the Code of Virginia (1950), as amended." The trial court
ordered that appellant "shall not operate a motor vehicle on the
highways of the Commonwealth of Virginia for a period of ten (10)
years from the date of this Order and until the privilege of said
person has been restored by an order of a Court of record entered
in a proceeding as provided by law . . . ."
On February 26, 1997, appellant filed a "petition for
restoration of driving privilege habitual offender." His
petition was grounded solely upon Code § 46.2-361(B), which
includes the requirement that the underlying adjudication of
habitual offender "was based entirely upon convictions as set out
in subdivision 1 c of § 46.2-351." (Emphasis added.) The
offense of driving while intoxicated is not listed in Code
§ 46.2-351(1)(c).
At a hearing on his petition, appellant argued the
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determination he was an habitual offender was based solely on his
convictions of driving under suspension or revocation and not on
his conviction of driving while intoxicated. He argued that,
because his offense of driving while intoxicated occurred within
six hours of his offense of driving under suspension or
revocation on February 3, 1991, and because that was the first
occasion he had committed simultaneous multiple traffic offenses,
the last paragraph of Code § 46.2-351 required these two offenses
to be treated as one offense. Moreover, he argued the last
paragraph of Code § 46.2-351 required the trial court to treat
these two offenses as one offense of driving under suspension or
revocation and to so indicate in the habitual offender order.
Based on this interpretation of the last paragraph of Code
§ 46.2-351, appellant argued his habitual offender adjudication
was not based on his conviction of driving while intoxicated. He
also argued he met all of the other requirements for restoration
set forth in Code § 46.2-361.
The trial court rejected appellant's argument and denied his
petition. It reasoned the last paragraph of Code § 46.2-351 did
not require it to specify which of the offenses committed by
appellant on February 3, 1991, was the basis for its
determination that he was an habitual offender. It further
reasoned that, because appellant was previously convicted of
driving while intoxicated, the determination he was an habitual
offender was not based entirely on the offenses set out in Code
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§ 46.2-351(1)(c).
The trial court also found that appellant still posed a
safety threat to other drivers. It stated:
I'm more concerned that if he gets his
license back, he's got a very poor driving
record to start with. I'm very concerned not
necessarily about him as much as I am
everybody else who is out on the highway with
him. . . . I want to make sure that if he's
shown the bad judgment that he's shown and
the disregard for the laws of the highways of
the Commonwealth of Virginia and disregard
for the safety of other people out on the
highway with him, I want to make sure that I
know that he doesn't have an alcohol problem
when he goes back out there to operate a
motor vehicle.
II.
RESTORATION OF DRIVING PRIVILEGE UNDER CODE § 46.2-361(B)
Appellant contends the trial court abused its discretion
when it denied his petition for restoration. He argues the trial
court modified his habitual offender order in violation of Rule
1:1 when it indicated that his habitual offender adjudication was
based in part on his prior conviction of driving while
intoxicated. We disagree.
A.
In order to obtain restoration of the privilege to operate a
motor vehicle under Code § 46.2-361(B), an habitual offender has
the burden of proving (1) that the determination he or she was an
habitual offender "was based entirely upon convictions as set out
in [Code § 46.2-351(1)(c)]" for failure to pay fines and costs,
furnish proof of financial responsibility, or satisfy a judgment,
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(2) that he or she has made "payment in full of all outstanding
fines, costs and judgments relating to [the] determination,"
(3) that he or she has attained "financial responsibility, if
applicable," and (4) that he or she "does not constitute a threat
to the safety and welfare of himself or others with respect to
the operation of a motor vehicle." Code § 46.2-361(B) to (D). 1
1
Code § 46.2-361(B) states in full:
Any person who has been found to be an
habitual offender, where the determination
was based entirely upon convictions as set
out in subdivision 1 c of § 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
resides, for restoration of his privilege to
drive a motor vehicle in the Commonwealth.
Code § 46.2-361(C) states in full:
This section shall apply only where the
conviction resulted from a suspension or
revocation ordered pursuant to (i) § 46.2-395
for failure to pay fines and costs,
(ii) § 46.2-459 for failure to furnish proof
of financial responsibility or (iii)
§ 46.2-417 for failure to satisfy a judgment
provided the judgment has been paid in full
prior to the time of filing the petition.
Code § 46.2-361(D) states in full:
On any such petition, the court, in its
discretion, may restore to the person his
privilege to drive a motor vehicle, on
whatever conditions the court may prescribe,
if the court is satisfied from the evidence
presented that the petitioner does not
constitute a threat to the safety and welfare
of himself or others with respect to the
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The issue in this case is whether the trial court's prior
adjudication that appellant was an habitual offender was "based
entirely upon convictions as set out in [Code § 46.2-351(1)(c)]."
Code § 46.2-361(B) (emphasis added). The convictions listed in
Code § 46.2-351(1)(c) are:
[d]riving a motor vehicle while his license,
permit, or privilege to drive a motor vehicle
has been suspended or revoked in violation of
§§ 18.2-272, 46.2-301, 46.2-302, or former
§ 46.1-350 or § 46.1-351.
Under Code § 46.2-351(1), a person is an habitual offender
if an examination of his or her driving record reveals "three or
more" prior convictions within the past ten years of the offenses
enumerated in that subsection. See Code § 46.2-351(1); Dicker v.
Commonwealth, 22 Va. App. 658, 661, 472 S.E.2d 655, 657 (1996).
Under this framework, a determination that an individual is an
habitual offender is "based" in part on all of the relevant prior
convictions listed in the individual's driving record. Cf. Dorn
v. Commonwealth, 3 Va. App. 110, 115, 348 S.E.2d 412, 415 (1986)
(holding that, where the defendant was adjudged an habitual
offender in 1978, his privilege to drive was restored in 1983,
and in 1985 he was again adjudged an habitual offender, the
Commonwealth was not estopped from using in the 1985 proceeding
operation of a motor vehicle, and that he has
satisfied in full all outstanding court
costs, court fines and judgments relating to
determination as an habitual offender and
furnished proof of financial responsibility,
if applicable.
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two of the convictions previously used in the 1978 proceeding).
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B.
We hold that the trial court did not violate Rule 1:1 at the
hearing on appellant's petition. Although the trial court stated
at the hearing that the determination appellant was an habitual
offender in 1995 was based on appellant's conviction of driving
while intoxicated, this statement did not constitute a
modification of its prior habitual offender order.
Rule 1:1 prohibits a trial court from modifying a final
order more than twenty-one days after its entry. See Davis v.
Mullins, 251 Va. 141, 148-49, 466 S.E.2d 90, 94 (1996).
Appellant correctly contends that the two offenses he
committed on February 3, 1991 -- driving while intoxicated and
driving under suspension -- were required to be treated as one
offense for the purpose of counting his prior convictions. Code
§ 46.2-351, which defines who is an habitual offender, provides
an exception to the method used to count prior convictions when
multiple offenses are committed within a six-hour period by a
first-time offender. The last paragraph of this statute states:
[w]here more than one offense included in
subdivision 1, 2 or 3 is committed within a
six-hour period, multiple offenses shall, on
the first such occasion, be treated for the
purposes of this article as one offense
provided the person charged has no record of
prior offenses chargeable under this article.
Code § 46.2-351; see Commonwealth v. Stanley, 232 Va. 57, 59, 348
S.E.2d 231, 232-33 (1986).
However, the unambiguous language of this paragraph of Code
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§ 46.2-351 merely dictates how offenses committed simultaneously
or in rapid succession by a first-time offender are counted, not
how they are classified. Contrary to appellant's argument, when
this provision applies, it does not require a trial court
adjudicating a person to be an habitual offender to either choose
among the multiple offenses or to specify in its final order
which offense provided the basis for the court's determination.
Regardless of how the last paragraph of Code § 46.2-351 required
the trial court to count appellant's offenses on February 3,
1991, the trial court's determination in 1995 that appellant was
an habitual offender was based in part on his conviction of
driving while intoxicated because this offense was included in
his driving record at that time. Thus, the trial court's
statements at the hearing on appellant's petition did not
constitute a modification of its prior order.
We also hold that the trial court's denial of appellant's
petition for restoration of his driving privilege based on Code
§ 46.2-361(B) was not an abuse of discretion. The record does
not indicate that appellant's prior habitual offender
adjudication was "based entirely" on convictions set forth in
Code § 46.2-351(1)(c). Driving while intoxicated is listed in
subsection (1)(b) of Code § 46.2-351, not subsection (1)(c).
Because appellant's habitual offender adjudication in 1995 was
partially based on his prior conviction of driving while
intoxicated, the trial court did not err when it concluded that
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appellant failed to meet the threshold requirement for
restoration of his driving privilege under Code § 46.2-361(B). 2
For the foregoing reasons, we affirm the order denying
appellant's petition for restoration of his driving privilege.
Affirmed.
2
We also note that, even if appellant's habitual offender
adjudication had been based entirely on convictions of driving
while his license was suspended or revoked, he was still not
entitled to restoration of his driving privilege under Code
§ 46.2-361(B). In order to restore a petitioner's driving
privilege under this statute, the trial court must find "from
the evidence presented that the petitioner does not constitute a
threat to the safety and welfare of himself or others with
respect to the operation of a motor vehicle . . . ." Code
§ 46.2-361(D). In this case, the trial court expressly found
that appellant still posed a threat to the safety of other
drivers. Appellant's prior driving record, which included ten
convictions of traffic-related offenses within a seven-year
period, one of which was for driving while intoxicated, amply
supports that finding.
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