Opinion
Record No. 0681-94-2
Decided: June 20, 1995 [Editor's Note: A Rehearing was granted in this matter on 7/28/95]
FROM THE CIRCUIT COURT OF NEW KENT COUNTY, Samuel T. Powell, III, Judge
Reversed and dismissed.
Charles E. Adkins for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Benton and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Robert Wayne Manning pled guilty to driving a motor vehicle after having been declared an habitual offender. On appeal, he argues that the trial court abused its discretion in denying his motion for a new trial.
Manning had been previously declared an habitual offender in January 1982 pursuant to the following order:
[I]t is the judgment of this Court and ORDERED that [Manning] be and he is barred from operating a motor vehicle on the highways of the State of Virginia and that no license to operate motor vehicles in the State shall be issued to [Manning] for a period of ten (10) years from the date of this Order or until the privilege of [Manning] to operate a vehicle in this State has been restored by an Order of a Court of record entered in proceedings held in accordance with the laws of this State.
(Emphasis added).
In September 1992, more than ten years after entry of that order, a state trooper stopped Manning driving a motor vehicle and charged him with violating Code Sec. 46.2-357. Manning pled guilty to this offense. After sentencing, however, Manning timely moved for a new trial based upon this Court's ruling in Davis v. Commonwealth, 12 Va. App. 246, 402 S.E.2d 711 (1991). Manning asserted that although he had pled guilty, the charged offense was one he could not have committed because the habitual offender order expired after ten years.
Code Sec. 46.2-357, formerly Code Sec. 46.1-387.8, provides, in pertinent part, that "[i]t shall be unlawful for any person to operate any motor vehicle or self-propelled machinery or equipment on the highways of the Commonwealth while the order of the court prohibiting such operation remains in effect. (Emphasis added). This Court held in Davis that Code Sec. 46.1-387.8 "does not require restoration proceedings before the driving privilege may be resumed." Davis, 12 Va. App. at 248, 402 S.E.2d at 712. Indeed, the language of "Code Sec. 46.1-387.8 defines the felony in terms of the [circuit] court's order and prohibits the person who has been declared an habitual offender from driving while the order remains in effect." Davis, 12 Va. App. at 249, 402 S.E.2d at 712. The order in Davis read, in pertinent part:
"The Court doth ADJUDGE, ORDER, and DECREE that said Calvin Windell Davis is such an 'habitual offender' as is set forth in Section 46.1-387.2 of the Code of Virginia, 1950, as amended, and that his privilege to operate a motor vehicle in this state is revoked for a period of ten (10) years from the date of this order."
12 Va. App. at 247 n. 2, 402 S.E.2d at 712 n. 2.
The order that was entered in 1982 declaring Manning an habitual offender was in effect "for a period of ten (10) years from the date of [the] Order or until the privilege of [Manning] to operate a motor vehicle . . . has been restored by an Order of a Court of record." The disjunctive phrasing provided for the order to terminate upon the earliest happening of the two events.
"[T]o correct manifest injustice, the court within twenty-one days after entry of a final order may set aside the judgment of conviction and permit the defendant to withdraw his plea." Code Sec. 19.2-296. "[T]he motion should not be denied, if timely made, and if it appears from the surrounding circumstances that the plea of guilty was submitted in good faith under an honest mistake of material fact." Parris v. Commonwealth, 189 Va. 321, 324, 52 S.E.2d 872, 874 (1949).
"As in other cases of discretionary power, no general rule can be laid down as to when a defendant will be permitted to withdraw his plea. The decision in each case must depend to a great extent on the particular attendant circumstances. Generally, however, it may be said that the withdrawal of a plea of guilty should not be denied in any case where it is in the least evident that the ends of justice will be subserved by permitting not guilty to be pleaded in its place. The least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient grounds for permitting a change of plea from guilty to not guilty. Leave should ordinarily be given to withdraw a plea of guilty if it was entered by mistake or under a misconception of the nature of the charge; through a misunderstanding as to its effect; through fear, fraud, or official misrepresentation; was made involuntarily for any reason; or even where it was entered inadvisedly, if any reasonable ground is offered for going to the jury."
Id. at 325, 52 S.E.2d at 874 (quoting 14 Am. Jur. Criminal Law Sec. 287).
In this case, Manning entered a plea of guilty under a material mistake of fact, that the 1982 habitual offender order was still in force. Manning brought this mistake to the attention of the trial judge within twenty-one days of his sentencing. At the hearing, the Commonwealth conceded that Davis was the controlling law in Manning's trial for driving after being declared an habitual offender. Upon learning of this mistake, the trial court should have granted Manning's motion for a new trial to correct manifest injustice.
Accordingly, we hold, consistent with Davis, that the order was not in effect when Manning was stopped. We also hold that the trial judge abused his discretion in refusing to grant Manning a new trial so that he could withdraw his guilty plea to a crime for which he could plainly not be guilty.
Reversed and dismissed.
I respectfully dissent and would affirm the conviction. Because Manning entered a voluntary and intelligent plea of guilty and, having done so, waived all non-jurisdictional defenses, any relief to which Manning may be entitled should be pursued by writ of habeas corpus.
Furthermore, Manning's case can be distinguished from Davis, in that the order declaring Davis to be an habitual offender merely revoked his license for ten years and contained no provision that the revocation would remain in effect "until the privilege . . . to operate a motor vehicle in this Commonwealth has been restored." Id. at 249, 402 S.E.2d at 713. The confusing language in the order declaring Manning an habitual offender was directed to issuer of licenses (the Division of Motor Vehicles). Manning was not misled by the order; both he and his attorney interpreted the order as declaring him to be an habitual offender even after ten years had passed. Thus, it cannot be said that an obvious miscarriage of justice has occurred and that the trial judge abused his discretion in not vacating the conviction. See Parris v. Commonwealth, 189 Va. 321, 324, 52 S.E.2d 872, 874 (1949).
Accordingly, I would affirm the conviction.