Opinion
Record No. 0568-93-3
Decided: March 7, 1995
FROM THE CIRCUIT COURT OF GRAYSON COUNTY, Willis A. Woods, Judge
John W. Parsons for appellant.
Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Darrell Lynn Page, the defendant, appeals his conviction for driving after having been declared an habitual offender. He contends that the trial court erred by refusing to allow him to establish that he had been erroneously adjudicated an habitual offender. He asserts that because one of the underlying DUI convictions from North Carolina could not validly have been considered as a predicate offense under Code Sec. 46.2-351, the trial court should have found the evidence insufficient for him to have been declared an habitual offender. We hold that the defendant's attempt to challenge the habitual offender adjudication based upon the erroneous use of an underlying DUI conviction is an impermissible collateral attack upon a final judgment. Therefore, we uphold the trial court's ruling, and we affirm the conviction.
On February 2, 1989, the Circuit Court of Grayson County declared the defendant to be an habitual offender pursuant to former Code Sec. 46.1-387.2 and ordered him not to drive on the highways of the Commonwealth until further order of the court. The defendant, who was present at the proceeding, was personally served with a copy of the order.
On March 31, 1992, the defendant was stopped while driving an automobile in Grayson County and charged with reckless driving. When the Commonwealth determined that he was an habitual offender, he was also indicted, tried, and convicted of operating a motor vehicle after having been declared an habitual offender. In the criminal prosecution, the trial court would not allow the defendant to raise as a defense that one of the DUI convictions from North Carolina had been erroneously used to declare him an habitual offender, contrary to the holding in Shinault v. Commonwealth, 228 Va. 269, 321 S.E.2d 652 (1984), that for purposes of Shinault's conviction, the North Carolina DUI statute did not substantially conform to the Virginia DUI statute. The defendant appeals that ruling.
A collateral attack, in general, is an indirect challenge that seeks to avoid the effects of a prior judgment in a subsequent proceeding. Sutherland v. Rasnake, 169 Va. 257, 266-67, 19 S.E. 695, 698 (1937). In the criminal prosecution for driving after having been declared an habitual offender, the defendant was attempting to indirectly attack the habitual offender adjudication by challenging whether an underlying DUI conviction was a valid predicate offense.
A conviction which is the predicate or basis for an habitual offender adjudication can only be collaterally attacked by asserting a jurisdictional defect. Morse v. Commonwealth, 6 Va. App. 466, 469, 365 S.E.2d 863, 864 (1988). Jurisdictional defects include lack of subject matter jurisdiction, Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987), or lack of personal jurisdiction, Virginia Dep't of Corrections v. Crowley, 227 Va. 254, 260-61, 316 S.E.2d 439, 442 (1984). See also Eagleston V. Commonwealth, 18 Va. App. 469, 471-72, 445 S.E.2d 161, 163 (1994); Mays v. Harris, 523 F.2d 1258 (4th Cir. 1975).
The defendant was not attacking the validity of the Virginia habitual offender adjudication or the North Carolina DUI conviction on the grounds that those courts did not have jurisdiction to render their judgments; he was attacking the use of the DUI judgment as a basis for declaring him an habitual offender in Virginia, which was the issue that the civil court had considered and decided in the habitual offender proceeding. Thus, because the defendant was attempting to set aside the effects of the prior judgment, the attack is collateral. Sutherland, 169 Va. at 266-67, 19 S.E. at 698. His primary purpose was to avoid the judgment declaring him an habitual offender, thereby indirectly rendering the evidence insufficient in this proceeding to find that he was an habitual offender when he was driving in Grayson County.
If the court declaring Page to have been an habitual offender had jurisdiction of the person and subject matter, and rendered a judgment of the character which it had the power to render, the judgment, even if erroneous, was valid and not subject to collateral attack. See Watkins v. Watkins, 220 Va. 1051, 1054, 265 S.E.2d 750, 752-53 (1980). Errors in findings of fact or conclusions and applications of law which may have adversely affected the judgment can be corrected only by direct attack. Moomaw v. Jordan, 118 Va. 414, 417, 87 S.E. 569, ___ (1916).
Because the defendant's challenge does not go to the jurisdiction of the Virginia court to have declared him an habitual offender, but rather is a claim that the court erred in considering a North Carolina DUI conviction to adjudge him an habitual offender, the trial court did not err in rejecting the defendant's contention. Accordingly, we uphold the trial court's ruling and affirm the conviction.
Affirmed.