Jeffrey Wayne Burchett v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Overton
Argued by teleconference
JEFFREY WAYNE BURCHETT
OPINION BY
v. Record No. 2531-96-3 JUDGE JOSEPH E. BAKER
FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PULASKI COUNTY
Colin R. Gibb, Judge
Randolph D. Eley, Jr., for appellant.
Marla Graff Decker, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
On September 17, 1996, the Pulaski County Circuit Court
(trial court), pursuant to proceedings instituted under the
version of Code § 46.2-352 in effect on April 20, 1995, entered
an order declaring Jeffrey Wayne Burchett (appellant) to be an
habitual offender. Appellant contends the amended provisions of
Code § 46.2-352, which became effective January 1, 1996, and
which require the Commissioner of the Department of Motor
Vehicles (DMV) to make an initial determination of habitual
offender status, controlled the pending proceedings. Therefore,
he asserts that on September 17, 1996, the trial court was not
authorized to make the habitual offender declaration. We
disagree with appellant's contention and affirm the decision of
the trial court.
The following facts and procedures are not in dispute:
On April 20, 1995, the Commonwealth filed in the trial court
an information and supporting DMV transcript to have appellant
declared an habitual offender, 1 pursuant to which the court
entered a show cause order under Code § 46.2-354.
On April 20, 1995, in relevant part, Code § 46.2-352
provided:
The Commissioner shall certify, from the
Department's records, substantially in the
manner provided for in § 46.2-215, three
transcripts or abstracts of those conviction
documents which bring the person named
therein within the definition of an habitual
offender, as defined in § 46.2-351, to the
attorney for the Commonwealth of the
political subdivision in which the person
resides according to the records of the
Department or the attorney for the
Commonwealth of the City of Richmond if the
person is not a resident of the Commonwealth.
Related code provisions required the Commonwealth's attorney to
file an information in the city or county in which, according to
DMV records, the alleged habitual offender resided or in the
Circuit Court for the City of Richmond for nonresidents. The
determination of habitual offender status was then made by the
circuit court judge. See Code §§ 46.2-353 to -355. However,
effective January 1, 1996, Code § 46.2-352 changed and provided
in part relevant to this appeal:
A. [T]he Commissioner [of the DMV]
shall determine, from the Department's
1
The transcript disclosed appellant thrice had been
convicted of driving offenses that subjected him to an habitual
offender declaration.
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records, whether a person named therein
qualifies as an habitual offender, as defined
in § 46.2-351. Upon such determination, the
Commissioner shall immediately cause the
Department's records to indicate that the
person has been determined to be an habitual
offender and shall revoke the person's
driver's license for the period of time
specified in § 46.2-356. The Commissioner
shall immediately notify the person of the
revocation and of his right to file a
petition and request a hearing as provided in
subsection B. Such notice shall be mailed by
certified mail, return receipt requested,
deliver to addressee only, to the address for
the person contained in the Department's
records. The revocation shall become
effective thirty days from the date on which
the notice was mailed.
* * * * * * *
B. At any time after receipt of the
revocation notice, as provided for in
subsection A, or after otherwise learning of
the revocation, a person who has been
determined to be an habitual offender may
file, with the circuit court of the county or
city in which he resides, or with the Circuit
Court of the City of Richmond if the person
is not a resident of the Commonwealth, a
petition for a hearing and determination by
the court that the person is not an habitual
offender. Jurisdiction shall also lie in a
circuit court to which venue may be changed.
The DMV's most recent address for appellant on April 20, 1995 was
in Pulaski County.
On August 22, 1995, appellant personally appeared, but
without counsel, in response to a second show cause order 2
entered July 5, 1995. On August 30, 1995, the court entered an
2
The first show cause order was not properly served on
defendant because he could not be found.
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order adjudicating him an habitual offender. Appellant then
retained counsel and, on September 19, 1995, filed a petition for
rehearing. 3 The court granted the motion and vacated its prior
order.
On October 13, 1995, the court conducted the rehearing. The
Commonwealth offered appellant's DMV driving history into
evidence, but appellant objected because the document listed the
Commonwealth's Attorney for the City of Radford as the requesting
party rather than the Commonwealth's Attorney for Pulaski County.
The court took the matter under advisement, and on December 15,
1995, gave the Commonwealth thirty days to correct the error. On
January 4, 1996, the Commonwealth complied with the court's
direction by filing a corrected DMV transcript but not a new
information. The corrected DMV transcript, issued on December
21, 1995, continued to list Pulaski as appellant's most recent
address. Appellant had provided no other address.
Following a continuance requested by appellant, the court
reconvened the habitual offender hearing on September 17, 1996.
At the close of the Commonwealth's evidence, for the first time,
appellant challenged the court's application of the pre-amendment
version of Code § 46.2-352 and related provisions, which were in
effect at the commencement of the proceedings against him, rather
3
Appellant contended that the court had continued the matter
from August 22, 1995, so that he could retain counsel but that
the court then erroneously entered the habitual offender order
without first allowing him to appear with counsel.
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than the amended statute which took effect on January 1, 1996. 4
The court denied the request and entered an order adjudicating
appellant an habitual offender.
On April 20, 1995, Code § 46.2-352 and related code sections
provided that an habitual offender information must be filed in
the circuit court for the city or county in which the alleged
offender resided. Here, that was Pulaski County. The subject
information was filed on that date but for varying reasons the
final adjudication hearing was not held and declaration made
until September 17, 1996. Effective January 1, 1996, the
amendment to Code § 46.2-352 requires that habitual offender
determinations must first be made by the Commissioner of the DMV
with the right to appeal the Commissioner's declaration to the
circuit court of the city or county in which the alleged offender
resides, unless the alleged offender is a nonresident of the
Commonwealth, in which case the appeal is made to the Circuit
Court of the City of Richmond.
Appellant argues that the new procedures effectively
divested the Pulaski County Circuit Court of jurisdiction to
render judgment in this matter. He contends that once the
January 1, 1996 amendment became effective, the prior code
provision no longer existed and, therefore, the trial court could
4
Under the former version, the habitual offender
adjudication occurs in the circuit court; under the latter, DMV
makes the initial determination, which may be appealed to the
circuit court.
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not proceed on a non-existent statute. In addition, appellant
contends that when the information filed on April 20, 1995 was
amended on January 4, 1996 to show the Commonwealth's Attorney of
Pulaski County rather than that of the City of Radford as the
requesting party, this constituted the filing of "new charges"
governed by the amendment that became effective on January 1,
1996.
The general rule is that statutes are
prospective in the absence of an express
provision by the legislature. Thus when a
statute is amended while an action is
pending, the rights of the parties are to be
decided in accordance with the law in effect
when the action was begun, unless the amended
statute shows a clear intention to vary such
rights.
Washington v. Commonwealth, 216 Va. 185, 193, 217 S.E.2d 815, 823
(1975). Because nothing in the amended code discloses a contrary
intent, we hold that the provisions of Code § 46.2-352, as
amended effective January 1, 1996, were intended to be
prospective and did not divest the court of jurisdiction already
acquired. The failure of the legislature to express an intention
to make the statute retroactive evidences a lack of such
intention. See McIntosh v. Commonwealth, 213 Va. 330, 331-32,
191 S.E.2d 791, 792 (1972). Furthermore, the Commonwealth's
filing of a corrected DMV transcript on January 4, 1996 did not
affect the jurisdiction already acquired by the court through the
underlying information.
Appellant cites Jackson v. National Linen Service Corp., 248
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F. Supp. 962 (W.D. Va. 1965); Link v. Receivers of Seaboard Air
Line Railway Co., 73 F.2d 149 (4th Cir. 1934); and Smith v.
Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), as support for
his claim that the amended code provision should be viewed to
apply to offenses committed and proceedings begun prior to the
effective date of the amendment, thereby taking jurisdiction of
this matter away from the trial court. Insofar as language in
any of those cases arguably could be construed to deny
jurisdiction in this case, the express language of Washington and
McIntosh clearly holds to the contrary, and we are bound by those
decisions.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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