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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 § 46.2-353, as in force at the time of Payne's certification and adjudication, *fn1 provided:

"The attorney for the Commonwealth, on receiving the transcripts or abstracts from the Commissioner provided for in § 46.2-352, shall forthwith file information against the person named therein . . . ." (Emphasis added). In Potter v. Commonwealth, 10 Va. App. 113, 390 S.E.2d 196 (1990), we determined that the Commonwealth had not acted "forthwith" when it sought to have Potter declared an habitual offender eleven months after the certification. Potter's adjudication was affirmed, however, because no prejudice resulted from the delay.

Payne argues that because the Commonwealth's Attorney failed to act forthwith, and because he demonstrated resulting prejudice, the trial court erred in refusing to dismiss the information against him pursuant to Potter. We disagree.

We assume, without deciding, that the Commonwealth's Attorney failed to act "forthwith" on Payne's first certification. However, our decision is controlled by Sink v. Commonwealth, 13 Va. App. 544, 413 S.E.2d 658 (1992). In Sink, the defendant argued that the Commonwealth waived its right to have him adJudged an habitual offender because the Commissioner issued him a driver's license after his third conviction for driving while intoxicated, and because the Commonwealth delayed in filing an information against him. We held:

"that the doctrines of laches and estoppel may not be employed to bar the state from exercising its governmental functions and that an agent of the Commonwealth may not waive the right of the Commonwealth to exercise its governmental function of enforcing the Habitual Offender Act." Id. at 547, 413 S.E.2d at 660.

The Commonwealth pursued Payne's adjudication "forthwith" following his second certification. Whether the language of the Habitual Offender Act is directory or mandatory, the Commonwealth was not barred from seeking Payne's adjudication ...


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