Opinion
Record No. 1141-92-4 Record No. 1184-92-4
November 16, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY THOMAS J. MIDDLETON, JUDGE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY MARCUS D. WILLIAMS, JUDGE.
Dan S. Hollon, for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Christopher A. Sorensen appeals his two convictions of driving after having been adjudicated an habitual offender. He contends that (1) the order declaring him an habitual offender was no longer in effect at the time of his arrests, and (2) even if the order was valid at the time of his arrests, he did not have sufficient notice of his habitual offender status. Upon review of the record, we hold that Sorensen's habitual offender order remained in effect at the time of his arrests but that he did not have sufficient notice that he was an habitual offender. Therefore, we reverse the convictions of driving after having been declared an habitual offender.
On October 27, 1983, Sorensen was declared an habitual offender pursuant to Code § 46.1-387.2 (now Code § 46.2-351) based on three convictions within ten years of driving while under the influence (DUI). The order declaring him an habitual offender revoked Sorensen's driving privileges. Although a copy of the habitual offender order must be filed with the Department of Motor Vehicles (DMV), the order adjudging Sorensen to be an habitual offender was not filed until April, 1990.
On October 27, 1988, a judge of the Fairfax Circuit Court entered a final order pursuant to Code § 8.01-335 striking the habitual offender case from the docket and dismissing it because the case had been pending for more than five years without a proceeding or an order.
In December, 1989, Sorensen petitioned for restoration of driving privileges pursuant to Code § 46.2-391(C), which permits restoration of driving privileges five years after the last DUI conviction and upon satisfactory proof of certain conditions. At the time the petition was filed, Sorensen's counsel was unaware of Sorensen's habitual offender adjudication and, therefore, did not seek reinstatement of driving privileges under Code § 46.2-360, which permits reinstatement of driving privileges for habitual offenders. Because the DMV had not received a copy of Sorensen's habitual offender order, it also was unaware of Sorensen's habitual offender status and, therefore, did not oppose the petition to restore Sorensen's driving privileges. On February 2, 1990, the trial judge granted Sorensen's petition and directed the DMV to reissue Sorensen a driver's license.
The DMV received a copy of Sorensen's habitual offender order in April, 1990. On June 13, 1990, Sorensen was charged with driving after having been adjudicated an habitual offender. At trial on September 18, 1990, Sorensen moved to strike the evidence on the ground that the 1983 habitual offender order was no longer in effect because an order had been entered in 1988 striking the case from the docket and dismissing it. The trial judge ruled that the 1988 dismissal order was void and the habitual order continued in effect.
Nevertheless, the trial court granted Sorensen's motion to strike the evidence because (1) the trial judge had advised Sorensen in 1988 that the habitual offender order had been dismissed; (2) the court had reinstated Sorensen's driving privileges in February, 1990; and (3) due to an administrative error, DMV was not aware of Sorensen's habitual offender status and did not advise him of it. The trial judge cautioned Sorensen, however, that he was not voiding the habitual offender order and that Sorensen would have to pursue other actions in order to have the order declared void.
In August, 1990, Sorensen filed a motion requesting the Fairfax Circuit Court to amend the February 2, 1990, order restoring his driving privileges to reflect that the privileges were restored pursuant to Code § 46.2-360 under the Habitual Offender Act. The order was never amended.
Sorensen again was charged with driving after having been adjudicated an habitual offender on January 5, 1992, and February 10, 1992. Sorensen was tried separately on the charges. In both trials, Sorensen moved to dismiss the charge on the ground that the habitual offender order was no longer in effect after the 1988 dismissal order. Both trial judges concluded the 1988 dismissal order was void and that Sorensen remained an habitual offender at the time of his arrests in January and February, 1992.
At trial for the January 5, 1992, charge, Officer Paul Mitchell, the arresting officer, testified that Sorensen admitted, at the time of the arrest, knowing about his habitual offender status. Sorensen testified that he knew on the date of his arrest that his license had been suspended on an unrelated DUI charge, but he did not know he was an habitual offender. The trial judge found that Sorensen had knowledge from the September 18, 1990, proceeding, that the 1988 dismissal order was void and that the habitual offender order was still in effect. Therefore, the trial judge found Sorensen guilty of driving after having been adjudicated an habitual offender.
At trial for the February 10, 1992 charge, Officer Mitchell testified that on January 5, 1992, Sorensen knew of his habitual offender status. Again, Sorensen denied having such knowledge and again, the trial judge found that Sorensen had actual notice that he was an habitual offender on February 10, 1992, because he had been arrested one month earlier on the same charge. Accordingly, the trial judge found Sorensen guilty of driving after having been adjudicated an habitual offender.
I. VALIDITY OF THE HABITUAL OFFENDER ORDER
The 1988 order that purported to dismiss the habitual offender proceeding against Sorensen was entered without jurisdiction and was, therefore, void. The dismissal order was entered erroneously under Code § 8.01-335, which provides that in "[a]ny case wherein for more than five years there has been no order or proceeding, except to continue it, [a court] may, in its discretion, order it to be struck from its docket and the action shall thereby be dismissed." Code § 8.01-335 applies only to pending actions, not to proceedings in which a final order has been entered. Schoenwetter v. Schoenwetter, 8 Va. App. 601, 603, 383 S.E.2d 28, 29 (1989). The order adjudicating Sorensen an habitual offender was a final order, entered on October 27, 1983, and, therefore, was not subject to dismissal under Code § 8.01-335.
In 1992, Code § 8.01-335 was amended to reduce the time of pendency from five years to three years.
A final order may be modified, vacated or suspended within twenty-one days of its entry. Rule 1:1. After expiration of twenty-one days, the court rendering the judgment loses jurisdiction of the case, and, absent appeal, the judgment is final and conclusive. Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987). The order purporting to dismiss Sorensen's habitual offender adjudication was entered five years after the habitual offender order was entered. Consequently, the court lacked jurisdiction to enter the dismissal order, and, therefore, the order was void. Schoenwetter, 8 Va. App. at 604, 383 S.E.2d at 30.
II. NOTICE OF HABITUAL OFFENDER STATUS
Code § 46.2-357 provides that "[i]t shall be unlawful for any person to drive any motor vehicle . . . on the highways of the Commonwealth while the order of the court prohibiting such operation remains in effect." Before a person can be convicted of driving in violation of an habitual offender order, the person must know at the time he or she operated a motor vehicle in Virginia, that he or she was doing so after having been declared an habitual offender and ordered not to drive.Reed v. Commonwealth, 15 Va. App. 467, 468, 424 S.E.2d 718, 718 (1992). The accused must have "actual knowledge" that he or she is prohibited from driving. Id. at 471, 424 S.E.2d at 720-21.
In order to declare a person an habitual offender, Code § 46.2-355 requires the court
by appropriate order [to] direct the person not to operate a motor vehicle on the highways in the Commonwealth and to surrender to the court all licenses or permits to drive a motor vehicle on the highways in the Commonwealth. . . . The clerk of the court shall file with the Department a copy of the order which shall become a part of the permanent records of the Department.
"Department" means the Department of Motor Vehicles of the Commonwealth. Code § 46.2-100.
When Sorensen was first adjudicated an habitual offender in 1983, the court formally directed Sorensen not to drive and to surrender his driver's license to the court. The court, however, failed to file with the DMV a copy of the habitual offender order until April, 1990. Other actions by the court in the ensuing years further confused the issue of whether Sorensen remained an habitual offender on the dates of his arrest in January and February, 1992. In 1988, the trial judge purportedly dismissed Sorensen's 1983 habitual offender order. Although it is unclear whether Sorensen knew of the dismissal, nevertheless, less than two years later, the court restored Sorensen's driving privileges, and the DMV reissued him a license.
In September, 1990, the trial judge declared the 1988 dismissal order void and held that Sorensen's habitual offender order was still in effect. Despite this holding, the trial judge's actions left the question of Sorensen's habitual offender status in a state of confusion. The trial judge made no formal finding that Sorensen remained an habitual offender and did not direct him not to drive. In addition, the DMV took no action to revoke the driver's license that had been restored to Sorensen after receiving the habitual offender order. Finally, the trial judge dismissed the habitual offender charge against Sorensen because the prior order of the court had restored Sorensen's license, previously suspended for third offense DUI, the offense that precipitated the habitual offender adjudication. We cannot conclude that the September, 1990, proceedings and the order resulting therefrom provided Sorensen with adequate notice such that he could have "actual knowledge" of his continued habitual offender status at the time of his arrests in January and February, 1992.
We find it significant that the basis on which Sorensen's license was restored in February, 1990, also would have served as a basis for restoring his driving privileges under Code § 46.2-360 of the Habitual Offender Act. Code § 46.2-391(C) requires the same evidence as Code § 46.2-360 for reinstatement of driving privileges. Sorensen did not pursue reinstatement of driving privileges under Code § 46.2-360 because, at the time, he believed that the court's 1988 dismissal order revoked his habitual offender status. Furthermore, his habitual offender status did not appear on his DMV transcript because the court had not yet filed a copy of his habitual offender order with DMV. Sorensen successfully petitioned for reinstatement of driving privileges under Code § 46.2-391(C). The only justification for Sorensen's continued habitual offender status and license revocation was the fact that he did not request reinstatement of driving privileges under Code § 46.2-360. Administrative error, however, gave Sorensen no reason to pursue this alternative.
Due to ten years of administrative confusion and error concerning Sorensen's habitual offender adjudication, we cannot find that Sorensen had "actual knowledge" of his continued habitual offender status sufficient to support a criminal conviction. Accordingly, we reverse Sorensen's convictions for driving after having been adjudicated an habitual offender.
Reversed.