Commonwealth v. Holtz8/20/1991
essary after the orders were entered. See Saunders v. Commonwealth, 242 Va. 107, 406 S.E.2d 39 (1991).
For the reasons stated above, we affirm the decision of the trial court.
Affirmed.
Koontz, C.J., Barrow, J., Benton, J., Keenan, J., Cole, J., and Willis, J., concurred.
Disposition
Affirmed.
Coleman, J., joined by Moon, J., dissenting.
I am of the opinion that Clifford Scott Holtz could not in the habitual offender proceeding challenge one of the underlying convictions by undertaking to prove that Code § 82-4-21 of the Fairfax Code was invalid. Such a challenge constitutes an impermissible collateral attack upon a facially valid final judgment of a
court of competent jurisdiction. See Morse v. Commonwealth, 6 Va. App. 466, 369 S.E.2d 863 (1988). In order for Holtz to challenge the conviction or the ordinance, he would have been required to raise the issue by direct appeal, or by an appropriate post conviction motion, or by an independent action collaterally attacking the conviction, such as by petition for writ of habeas corpus. See Ex parte Rollins, 80 Va. 314 (1885). See also State v. McClintock, 276 Tenn. , , 732 S.W.2d 268, 271-72 (1987); Everhart v. State, 563 S.W.2d 795, 797-98 (Tenn. Crim. App.), cert. denied (Tenn. 1978); 60 C.J.S. Motor Vehicles § 164.10 (1969).
A "collateral attack is allowed only where the judgment is void, a void judgment being a judgment rendered without jurisdiction. If a judgment is merely voidable because of some other type of defect, its validity may not be impeached in a collateral proceeding." State v. Kamalski, 429 A.2d 1315, 1320 (Del. Super. Ct. 1981). Holtz's challenge does not go to the jurisdiction of the court which entered the conviction. McClure v. Commonwealth, 222 Va. 690, 283 S.E.2d 224 (1981); Whorley v. Commonwealth, 215 Va. 740, 214 S.E.2d 447, cert. denied, 423 U.S. 946 (1975). Instead, he attempts to adjudicate in this habitual offender proceeding the validity of an ordinance upon which his earlier conviction was based. The validity of the ordinance and the conviction based upon it raises a question of trial error, and not a question of jurisdiction, Pflaster v. Town of Berryville, 157 Va. 859, 864, 161 S.E. 58, 60 (1931); therefore, a judgment of conviction based on the ordinance may be erroneous, but it is not void, and the conviction will remain viable until declared invalid in a proper proceeding. See generally Annotation, Validity and Effect of Judgment Based upon Erroneous View as to Constitutionality or Validity of a Statute or Ordinance Going to the Merits, 167 A.L.R. 517, 519-22, 540-42 (1947).
Although the majority rules upon the merits of the collateral attack issue which the Commonwealth raised for the first time on appeal, the majority holds that the Commonwealth was procedurally barred from raising this issue under Rule 5A:18. Thus, because the majority purports to invoke the procedural bar, even though it fails to apply it, I am obliged to comment upon that ruling. In my opinion, Rule 5A:18 does not bar our consideration of the issue because whether a trial court has the authority in a
civil habitual offender proceeding to adjudicate the collateral issue of the validity of an ordinance and conviction raises a question concerning the trial court's jurisdiction.
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