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Richman v. Commonwealth

Court of Appeals of Virginia. Argued at Alexandria, Virginia
Jun 21, 1994
Record No. 0384-93-4 (Va. Ct. App. Jun. 21, 1994)

Opinion

Record No. 0384-93-4

Decided: June 21, 1994

FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY, Perry W. Sarver, Judge

Affirmed.

(John W. Acree; Acree Associates, P.C., on brief), for appellant. Appellant submitting on brief.

(Stephen D. Rosenthal, Attorney General; H. Elizabeth Shaffer, Assistant Attorney General, on brief), for appellee. Appellee

Present: Judges Baker, Benton and Bray


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


James M. Richman contends that the trial judge erred in refusing to dismiss an information filed by the Commonwealth alleging that Richman was a habitual offender within the meaning of Code Sec. 46.2-351. He argues that one of the convictions upon which the Commonwealth relied to establish that he was a habitual offender was obtained under a local ordinance that could not be used as a predicate offense. We affirm the judgment.

Code Sec. 15.1-132 permits cities, towns, and counties to enact ordinances prohibiting the driving of motor vehicles by persons under the influence of alcohol. The statute contains the express limitation, however, that "[n]o such ordinance shall provide for a lesser punishment than that prescribed by general law for a similar offense." Code Sec. 15.1-132. Only convictions under local ordinances that are enacted as permitted by Code Sec. 15.1-132 and that are "paralleling and substantially conforming to the state statutory provisions" proscribing drunk driving may serve as a basis for a habitual offender adjudication. Code Sec. 46.2-351(3).

In 1989, when a general district court judge convicted Richman of driving under the influence of alcohol in violation of the Town of Strasburg ordinance that prohibits drunk driving, Town Code Sec. 17-1, the judge issued Richman a restricted license that permitted Richman to travel to and from an institution of higher learning. Richman argues that because Code Sec. 18.2-271.1 does not provide for the issuance of a restricted license to travel to and from an institution of higher learning, the privilege that the general district court judge extended to him when he was convicted in 1989 under the local ordinance constituted a lesser punishment than provided by state law. He further argues that the restricted license, which did not conform to state law, is evidence that his conviction under the local ordinance was not obtained pursuant to an ordinance that was paralleling and substantially conforming to state law. We reject that argument.

The local ordinance that Richman challenges is facially consistent with the authority conferred upon the locality by state law. Nothing in the explicit language of the local ordinance provided for the type of restricted license that the general district court judge issued to Richman after his conviction under the local statute. Thus, the restricted license that the general district court judge extended to Richman to facilitate Richman's completion of studies at an institution of higher learning was not a remedy specified in the local ordinance.

Because the general district court judge had both personal jurisdiction over Richman and subject matter jurisdiction to adjudicate the conviction under the local ordinance, the judge's grant of the privilege to Richman in excess of the local ordinance did not cause the judgment to be void but, rather, only voidable. See Royster v. Smith, 195 Va. 228, 234, 77 S.E.2d 855, 858 (1953). Because the sentence was merely voidable it may not now be collaterally attacked. The issuance of that license was a matter that Richman should have appealed, if he felt that the general district court judge exceeded the statutory authorization. Richman accepted the benefit and did not appeal.

Because the local ordinance is facially consistent with the authority granted by state law, the trial judge correctly ruled that Richman's 1989 conviction was obtained under a law that satisfied the requirements of Code Sections 15.1-132 and 46.2-351. Accordingly the trial judge did not err in finding that Richman's conviction in 1989 under the local ordinance could be used as a predicate offense in a proceeding under Code Sec. 46.2-351.

Affirmed.


Summaries of

Richman v. Commonwealth

Court of Appeals of Virginia. Argued at Alexandria, Virginia
Jun 21, 1994
Record No. 0384-93-4 (Va. Ct. App. Jun. 21, 1994)
Case details for

Richman v. Commonwealth

Case Details

Full title:JAMES M. RICHMAN v. COMMONWEALTH OF VIRGINIA

Court:Court of Appeals of Virginia. Argued at Alexandria, Virginia

Date published: Jun 21, 1994

Citations

Record No. 0384-93-4 (Va. Ct. App. Jun. 21, 1994)