Opinion
Record No. 0965-92-4
August 24, 1993
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY H. SELWYN SMITH, JUDGE.
Richard F. MacDowell, Jr., for appellant.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Matthew D. Ogden (Ogden) was adjudicated an habitual offender on April 10, 1992, pursuant to Code § 46.2-351. Ogden contends on appeal that his May 5, 1989 conviction for driving while intoxicated, first offense, in violation of Fairfax County Code § 82-4-17, is not a valid predicate offense for his habitual offender adjudication. Additionally, he contends that the trial court lacked jurisdiction to adjudicate him an habitual offender because the information was not verified under oath by the Commonwealth's Attorney. We hold that Ogden's challenge to his May 5, 1989 conviction constitutes an impermissible collateral attack in an habitual offender proceeding. We further hold that Code § 46.2-353 does not require the Commonwealth's Attorney to verify the information under oath. Accordingly, we affirm.
On January 17, 1992, the Prince William County Commonwealth's Attorney filed an information in the circuit court to have Ogden declared an habitual offender. The Commonwealth presented the certification of the Commissioner of the Department of Motor Vehicles (DMV), transcript, and the abstracts or convictions establishing that Ogden had committed the requisite predicate offenses. The certified transcript, which was attached to the information, listed the three predicate offenses upon which the habitual offender information was instituted: (1) conviction for "driving while intoxicated, 1st" on May 5, 1989, in violation of Fairfax County Code § 82-4-17; (2) conviction for "driving while intoxicated, 1st" on September 3, 1991, in violation of Code § 18.2-266; and (3) conviction for "driving while intoxicated, 1st" on November 14, 1991, in violation of Code § 18.2-266.
Ogden first contends that the May 5, 1989 conviction cannot serve as a predicate offense because the penalty provision of Fairfax County Code § 82-4-21 was declared invalid inCommonwealth v. Knott, 11 Va. App. 44, 47, 396 S.E.2d 148, 150 (1990) and Commonwealth v. Holtz, 12 Va. App. 1151, 1152, 408 S.E.2d 561, 562 (1991). We disagree. In a recent decision, a panel of this Court held that a defendant may not in a later proceeding collaterally attack a conviction for a first offense driving while intoxicated conviction under Fairfax County Code §§ 82-4-17 and 82-4-21. Fraser v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (1993).
[Ogden] misconstrues our holding in the Knott and Holtz cases as invalidating Fairfax County Code §§ 82-4-17 and 82-4-21 entirely and for all purposes. To the contrary, we held that Fairfax County Code § 82-4-21, the penalty provision, was invalid only to the extent of its enhanced penalty provision for second offenders. The substantive provision of Fairfax County Code § 82-4-17 and the first offender penalty provision of Fairfax County Code § 82-4-21 remain valid. See Sos v. Commonwealth, 14 Va. App. 862, 864-65, 867, 419 S.E.2d 426, 427, 429 (1992). In Sos, we held that invalid portions of a statute may be severed and ignored "if the remaining valid portions of the act are sufficient to accomplish their purpose in accordance with the legislative intent." Id. at 865, 419 S.E.2d at 427. We also held that a party cannot challenge that portion of a statute that does not affect him. Id. at 865, 419 S.E.2d at 428. Therefore, because [Ogden] was convicted for DWI under Fairfax County Code § 82-4-17 and punished as a first offender under Fairfax County Code § 82-4-21, he does not come within the purview of the portion of Fairfax County Code § 82-4-21 that was declared invalid in Knott and Holtz. See id. (defendant, who was convicted under valid portion of statute as a first offender, could not challenge the invalid portion of the statute relating to second offenders). Having made no claim that Fairfax County Code §§ 82-4-17 and 82-4-21 are otherwise invalid as applied to him, [Ogden's] challenge of this conviction under the Fairfax ordinance constitutes an impermissible collateral attack.
Id. at ___, ___ S.E.2d at ___. Therefore, we reject Ogden's claim that his first offense driving while intoxicated conviction under Fairfax County Code §§ 82-4-17 and 82-4-21 cannot serve as a predicate offense for his adjudication as an habitual offender.
Moreover, the information was properly filed pursuant to Code § 46.2-353, which provides that "[t]he attorney for the Commonwealth, on receiving the transcripts or abstracts from the Commissioner provided for in § 46.2-352, shall forthwith file information against the person named therein in the court of record having jurisdiction of criminal offenses. . . ." Ogden construes the language requiring the Commonwealth's Attorney to "forthwith file information" to mean that the information must be verified under oath. Because the signature on the information appears to be a stamp of the Commonwealth's Attorney's signature, rather than an actual signature, Ogden contends that the information was not verified under oath and, therefore, was inadmissible.
The plain language of Code § 46.2-353 does not require the information to be verified under oath, and we find no authority for reading such a requirement into the statute. Ogden's reliance on the statute governing the petition for a writ of quo warranto, which must be "verified by oath," is misplaced.See Code § 8.01-637(A). Such a petition serves to allege material facts that make out the case for the granting of the writ of quo warranto. See Code § 8.01-637(B). In contrast, the habitual offender information merely transmits to the court the certified transcript from the DMV. There were no allegations of fact in the information warranting verification under oath. Accordingly, we reject Ogden's contention that the information was defective for failure to be verified under oath.
For these reasons, the judgment of the trial court is affirmed.
Affirmed.