Opinion
Record No. 1621-92-4
February 22, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY J. HOWE BROWN, JR., JUDGE.
David A. Hirsch, for appellant.
Marla Lynn Graff, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Willis and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The judgment of the trial court is affirmed.
Gregory contends that due process and fundamental fairness permit a collateral challenge of her predicate convictions in an habitual offender adjudication. She argues that at the time of each charge, she held a valid license because either the suspension of her driving privileges had been suspended or the suspension orders were not in effect. She further argues that the evidence failed to show that she was served with the June 19, 1991 suspension order or was in court for the related conviction. She contends that the Fourteenth Amendment prohibits use of the underlying convictions, which she alleges are legal and factual nullities, in the habitual offender proceeding.
Gregory's underlying convictions cannot be collaterally attacked. Morse v. Commonwealth, 6 Va. App. 466, 468-69, 369 S.E.2d 863, 864-65 (1988). "[I]n Virginia, a conviction underlying an habitual offender adjudication may only be attacked by asserting a jurisdictional defect." Id. at 469, 369 S.E.2d at 864. An evidentiary deficiency does not nullify the jurisdiction of a court. The trial court had jurisdiction and, on four occasions, convicted Gregory for driving on a revoked or suspended license. She cannot now collaterally attack those convictions. Due process and fundamental fairness concerns do not provide a basis for collateral attack.
Gregory also contends that the one month lapse between her certification as an habitual offender by the Division of Motor Vehicles and the Commonwealth's filing of the information failed to meet the "forthwith" requirement of Code § 46.2-353. We disagree.
"The term 'forthwith' has been defined as 'requir[ing] reasonable promptness without unnecessary delay.'" Potter v. Commonwealth, 10 Va. App. 113, 115, 390 S.E.2d 196, 197 (1990) (quoting Bouldin v. Commonwealth, 4 Va. App. 166, 171, 355 S.E.2d 352, 355 (1987)). The Commonwealth's Attorney filed the information twenty-seven days after certification. This filing was reasonably prompt and meets the standard of "forthwith."See Bouldin, 4 Va. App. at 171, 355 S.E.2d at 355.
For these reasons, we affirm the trial court's judgment.
Affirmed.