Opinion
Record No. 0893-92-3
March 15, 1994
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE CLIFFORD R. WECKSTEIN, JUDGE.
Richard W. Davis (Beverly M. Davis; Davis Davis, on briefs), for appellant.
Leah A. Darron, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Willis.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Brian Jeffrey Jones appeals judgments approving jury verdicts convicting him of operating a motor vehicle after having been adjudicated an habitual offender and of driving under the influence of alcohol (DUI). The issues on appeal are (1) whether Jones was required to have a guardian ad litem appointed for him at his previous adjudication hearing because he was an alcoholic, (2) whether the trial court was required to sever the habitual offender violation from the DUI charge, (3) whether the circuit court had jurisdiction to try the misdemeanor DUI charge that had previously been nolle prossed by the Commonwealth at a preliminary hearing in the general district court, and (4) whether the trial court erred in failing to require the Commonwealth to elect the subsection of Code § 18.2-266 under which to prosecute Jones. We hold that the trial court correctly denied Jones' motions, and we affirm the conviction.
I. GUARDIAN AD LITEM AT HABITUAL OFFENDER PROCEEDING
Jones moved to dismiss the habitual offender violation on the basis that, at the time of his 1988 civil habitual offender adjudication proceeding, he was an alcoholic and was not represented by a guardian ad litem as required by Code §§ 8.01-2.6(d) and -9. In support of his motion, Jones introduced two letters from Dr. Paul Hlusko stating that Jones was hospitalized at St. Albans Psychiatric Hospital from August to September 1991. The letters further stated that Jones met the criteria for an alcoholic pursuant to Code § 37.1-1 because "his history is consistent of a diagnosis of alcohol dependence as early as 1985." Jones had not become a patient of Dr. Hlusko until after he was hospitalized in August 1991.
For purposes of this opinion, we assume that Jones was an alcoholic during the time that the civil habitual offender proceedings were initiated and concluded. Jones does not contend, however, that he was incompetent or incapable of understanding the nature of the civil habitual offender adjudication proceedings, and that issue is not before us.
The trial court properly denied Jones' motion to dismiss the charge of driving after having been adjudged an habitual offender. This Court recently decided Pigg v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1994) (en banc), wherein we said:
We hold . . . that because neither the pleadings nor proof alleged or established that the appellant's [alcoholism] . . . rendered him incapable of defending his interest, the failure to appoint a guardian ad litem . . . did not create a jurisdictional defect. Consequently, we hold that the habitual offender adjudication is not subject to a collateral attack. . . . [W]e affirm the appellant's conviction without having to address whether the evidence was sufficient to prove that he was an alcoholic as defined in Code § 37.1-1.
Pigg, ___ Va. at ___, ___ S.E.2d at ___. Because the failure to appoint a guardian ad litem did not render Jones' adjudication proceeding void, his status as an habitual offender is not subject to collateral attack for failing to appoint a guardianad litem in a prosecution for driving after having been declared an habitual offender.
II. JOINDER OF DUI CHARGE AND HABITUAL OFFENDER CHARGE
Prior to trial, Jones moved to sever the DUI charge from his driving as an habitual offender charge. The trial court did not err by denying his motion.
Whether to try different offenses separately is a matter resting within the trial court's discretion. Fincher v. Commonwealth, 212 Va. 552, 553, 186 S.E.2d 75, 76, cert. denied, 409 U.S. 913 (1972); see also Satcher v. Commonwealth, 244 Va. 220, 230, 421 S.E.2d 821, 827 (1992), cert. denied, 113 S. Ct. 1319 (1993). Under Rule 3A:10(b), the trial court may try a defendant for more than one offense at the same time "if justice does not require separate trials and . . . the offenses meet the requirements of Rule 3A:6(b)." Under Rule 3A:6(b), the joinder of offenses may occur only when they are (1) "based on the same act or transaction" or (2) based "on two or more acts or transactions that are connected" or (3) "constitute parts of a common scheme or plan."
In this case, the DUI and driving as an habitual offender charges arose from one single act of driving by the defendant. The offenses satisfy Rule 3A:6(b) because they were "based on the same act or transaction." We further find that "justice does not require separate trials," and we find no prejudice to Jones in joining the two related offenses. Accordingly, we find no abuse of discretion.
III. JURISDICTION OF CIRCUIT COURT
Jones moved the court to dismiss or remand the DUI charge because it had been previously nolle prossed by the Commonwealth at a preliminary hearing in the general district court. Jones contends that the circuit court lacked jurisdiction to hear the misdemeanor charge. The court did not err by denying Jones' motion.
Under Code § 16.1-126, "the circuit court . . . shall have jurisdiction to try any person for any misdemeanor for which a presentment or indictment is brought in or for which an information is filed."
In this case, the circuit court had jurisdiction to try the DUI charge because the Commonwealth brought an indictment before it. The fact that the misdemeanor charge was previously nolle prossed at the preliminary hearing does not preclude the circuit court from exercising its concurrent jurisdiction.
IV. PROSECUTION UNDER CODE § 18.2-266
Jones moved to require the Commonwealth to elect the subsection of Code § 18.2-266 under which he would be prosecuted. The court did not err by denying his motion.
The warrant that charged Jones with having violated Code § 18.2-266 gave him sufficient notice of the offense. Both subsections of Code § 18.2-266 proscribe a single act — "driving under the influence of an intoxicant." See Code § 18.2-266. Code § 18.2-266 defines a single offense, commonly referred to as DUI, and the subsections merely set forth the means by which the offense of driving under the influence may be proved. Accordingly, we affirm the trial court's rulings.
Affirmed.