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Payne v. Commonwealth

March 11, 1997

WALTER L. PAYNE, JR.
v.
COMMONWEALTH OF VIRGINIA



Present: Chief Judge Moon, Judges Willis and Fitzpatrick

The opinion of the court was delivered by: Judge Jere M. H. Willis, Jr.

Argued at Alexandria, Virginia

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Jane Marum Roush, Judge

Walter L. Payne, Jr. was adJudged an habitual offender under Code § 46.2-355. On appeal, he contends (1) that the Commonwealth was barred from seeking his adjudication because it failed to file an information against him "forthwith" as required by Code § 46.2-353, and (2) that the Department of Motor Vehicles abstract filed and presented by the Commonwealth improperly omitted his prior certification as a possible habitual offender. We find no error and affirm the judgment of the trial court.

On February 11, 1993, the Commissioner of the Department of Motor Vehicles (DMV) certified to the Commonwealth's Attorney that Payne was a possible habitual offender. The Commonwealth's Attorney took no action on this certification. On June 30, 1994, Payne's driver's license expired. On July 11, 1994, the Commissioner again certified that Payne was a possible habitual offender. The second certification was based upon the same record of convictions as the February, 1993 certification.

On October 27, 1994, the Commonwealth's Attorney filed an information based upon the second certification and a rule was entered requiring Payne to show cause pursuant to Code § 46.2-354 why he should not be adjudicated an habitual offender. The DMV abstract attached to the information made no reference to the first certification. In an opinion letter filed April 17, 1995, the trial court rejected arguments not presented on appeal and denied Payne's motion to dismiss the rule to show cause.

On May 4, 1995, Payne moved to reopen the hearing. On May 19, 1995, the trial court heard oral argument on this motion and accepted into evidence a DMV abstract that set forth Payne's February, 1993 certification. The trial court denied the motion to reopen the hearing and adJudged Payne to be an habitual offender.

Payne first contends that because the Commonwealth failed to act "forthwith" upon his first certification, it may not seek his adjudication as an habitual offender based upon a second certification for the same convictions. Code ยง 46.2-353, as in force at ...


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