Opinion
44698 Record No. 840313.
October 12, 1984.
Present: All the Justices.
Conviction under Habitual Offender Act (Code Sec. 46.1-387.1, et seq.) sustained where evidence sufficient to identify appellant as the same person named in abstract of convictions.
(1) Motor Vehicles — Habitual Offenders — Statutory Construction — Habitual Offender Act (Code Sections 46.1-387.1, et seq.) — Proceedings Under Act Civil and Not Criminal.
(2) Motor Vehicles — Habitual Offenders — Statutory Construction — Habitual Offender Act (Code Sections 46.1-387.1, et seq.) — Proceedings Under Act Based on Records Maintained by Commission.
(3) Motor Vehicles — Habitual Offenders — Statutory Construction — Habitual Offender Act (Code Sections 46.1-387.1, et seq.) — Evidence — Burden of Proof — Burden on Commonwealth to Prove its Case by Preponderance of Evidence.
(4) Motor Vehicles — Habitual Offenders — Statutory Construction — Habitual Offender Act (Code Sections 46.1-387.1, et seq.) — Evidence — Commonwealth Established Prima Facie Case That Appellant Was Same Person Described in Abstracts and Evidence Sufficient to Support Trial Court's Findings.
Pursuant to an information, the Trial Court entered an order directing Shope to show cause why he should not be adjudicated an habitual offender under the Virginia Habitual Offenders Act. A copy of the order with a transcript of the relevant conviction record attached was served personally on Shope.
At trial, on the advice of counsel, Shope declined to say whether he was the same person named in the information. The Commonwealth's evidence was the conviction record. Shope moved to strike this evidence as insufficient on the ground that the abstracts of conviction did not prove that he was the person to whom the exhibits referred. The Trial Court held the evidence sufficient, found Shope to be an habitual offender, ordered him not to drive on the highways for ten years and to surrender his license and permits. Shope appeals.
1. Proceedings under the Habitual Offender Act (Code Sections 46.1-387.1, et seq.) are civil rather than criminal in nature.
2. Proceedings under the Habitual Offender Act (Code Sections 46.1-387.1, et seq.) are based upon records maintained by the Commissioner of the Division of Motor Vehicles.
3. The burden of proof is on the Commonwealth to prove its case by a preponderance of the evidence under the Habitual Offender Act (Code Sections 46.1-387.1, et seq.).
4. While there were discrepancies in the abstracts of conviction, in each abstract of conviction the date of birth was the same and the operator's license number was the same. This evidence made out a prima facie case that the appellant was the same person described in the abstracts and is sufficient to support the Trial Court's findings.
Appeal from a judgment of the Circuit Court of Henrico County. Hon. Buford M. Parsons, judge presiding.
Affirmed.
Irving M. Blank (Samuel Baronian, Jr.; Smith, Blank, Isaacs Hinton, on briefs), for appellant.
John M. McCarthy, Assistant Attorney General (Gerald L. Baliles, Attorney General; Elizabeth C. Gay, Assistant Attorney General, on brief), for appellee.
Pursuant to an information, the trial court entered an order directing Charles Ervin Shope, III, to show cause why he should not be adjudicated an habitual offender under the provisions of the Virginia Habitual Offenders Act (Code Sections 46.1-387.1, et seq.), and prohibited from operating a motor vehicle on the highways. A copy of the order with a certified transcript of the relevant conviction record attached was personally served on Shope.
At trial, when asked by the court whether he was the same person named in the information, Shope declined to answer on advice of counsel. The Commonwealth's evidence was the conviction record which Shope moved to strike as insufficient. The trial court, ruling that the evidence was sufficient, found Shope to be an habitual offender and ordered him not to drive on the highways for a period of 10 years and to surrender his licenses and permits. On appeal, Shope argues that the evidence is insufficient to identify him as the same person named in the abstract of convictions. We do not agree.
[1-3] Proceedings under the Habitual Offender Act are civil, not criminal in nature, Davis v. Commonwealth, 219 Va. 808, 812, 252 S.E.2d 299, 301 (1979). Such proceedings are based upon records maintained by the Commissioner of the Division of Motor Vehicles. Davis, 219 Va. at 812, 252 S.E.2d at 301. The burden was on the Commonwealth to prove its case by a preponderance of the evidence.
Shope relies on certain discrepancies in the three abstracts of conviction. The first and second showed Shope's name as Charles Ervin Shope, the third as Charles E. Shope, III. In each abstract, however, the date of birth was the same, August 29, 1960; in each, the operator's license number was the same, 228-96-9626. Under Code Sec. 46.1-375 every operator's license shall bear the number assigned to the licensee and his social security number, "which may be the number assigned."
This evidence made out a prima facie case that Shope was the same person described in the abstracts. Thus, while he did not have the burden of proof, he had the burden of going forward with evidence to rebut the Commonwealth's evidence. He elected not to do so.
We hold that the evidence was sufficient to support the trial court's findings, and we will affirm the judgment.
Affirmed.