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Driscoll v. Commonwealth5/19/1992
Opinion BY JUDGE BERNARD G. BARROW
The appellant appeals from an adjudication that he is an habitual offender. We affirm this determination because, even though the trial court erred in ruling that certain offenses were predicate offenses while others were not, it, nevertheless, reached the correct result. We are able to affirm for this reason because the correct basis was considered by the trial court and the facts supporting it were resolved at trial.
At trial, the Commonwealth introduced evidence of five previous convictions that it contended established that Driscoll was an habitual offender. Driscoll moved to dismiss the proceeding because, first, two of the convictions were for driving on a suspended license, a violation of former Code § 46.1-350 that is no longer recognized by Code § 46.2-351 as a predicate offense for habitual offender purposes and, second, one of the other convictions was for driving under the influence , a second offense within five years, based on an invalid Fairfax County ordinance. Driscoll did not challenge the remaining two convictions; therefore, if any one of the three contested convictions is valid, Driscoll was properly adjudicated an habitual offender as defined by Code § 46.2-351. The Commonwealth took no position regarding the two convictions for
driving on a suspended license. It did, however, contend that the Fairfax County ordinance was valid and that the conviction for driving under the influence should be considered in determining whether Driscoll is an habitual offender. The trial court ruled that the two convictions for driving on a suspended license could not be considered in determining Driscoll's status as an habitual offender but that the conviction for driving under the influence in violation of the Fairfax County ordinance was properly considered. Consequently, it found that Driscoll was an habitual offender.
After the trial court's decision, this court addressed both of these issues in other cases. In the first, Hoye v. Commonwealth, 12 Va. App. 587, 405 S.E.2d 628 (1991), we held that a conviction for driving on a suspended license in violation of former Code § 46.1-350 is now recognized under Code § 46.2-301 (driving while license . . . suspended), a violation of which is properly considered as a predicate for determining habitual offender status. In the second, Commonwealth v. Holtz, 12 Va. App. 1151, 408 S.E.2d 561 (1991) (en banc), we concluded that Fairfax County Code § 82-4-17 is invalid and that a second or later conviction for driving while intoxicated in violation of that provision may not be the basis for a determination that one is an habitual offender. Id. at 1152, 408 S.E.2d at 562. Our rulings are, therefore, contrary to the rulings of the trial court in this case.
Driscoll contends that because the trial court erred in basing his determination on the invalid Fairfax County ordinance, the adjudication of habitual offender status should be reversed. The Commonwealth contends that, even so, the adjudication should be upheld because the trial court erred in not relying on either of the two convictions of driving on a suspended license. The Commonwealth, in other words, contends that the trial court was right but for the wrong reason.
Driscoll argues that Rule 5A:18 bars the Commonwealth from asserting for the first time on appeal that the trial court erred in not relying on t
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