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Page v. Commonwealth3/7/1995
MEMORANDUM OPINION BY JUDGE SAM W. COLEMAN III
Darrell Lynn Page, the defendant, appeals his conviction for driving after having been declared an habitual offender. He contends that the trial court erred by refusing to allow him to establish that he had been erroneously adjudicated an habitual offender. He asserts that because one of the underlying DUI convictions from North Carolina could not validly have been considered as a predicate offense under Code § 46.2-351, the trial court should have found the evidence insufficient for him to have been declared an habitual offender. We hold that the defendant's attempt to challenge the habitual offender adjudication based upon the erroneous use of an underlying DUI conviction is an impermissible collateral attack upon a final judgment. Therefore, we uphold the trial court's ruling, and we affirm the conviction.
On February 2, 1989, the Circuit Court of Grayson County declared the defendant to be an habitual offender pursuant to former Code § 46.1-387.2 and ordered him not to drive on the highways of the Commonwealth until further order of the court. The defendant, who was present at the proceeding, was personally served with a copy of the order.
On March 31, 1992, the defendant was stopped while driving an automobile in Grayson County and charged with reckless driving. When the Commonwealth determined that he was an habitual offender, he was also indicted, tried, and convicted of operating a motor vehicle after having been declared an habitual offender. In the criminal prosecution, the trial court would not allow the defendant to raise as a defense that one of the DUI convictions from North Carolina had been erroneously used to declare him an habitual offender, contrary to the holding in Shinault v. Commonwealth, 228 Va. 269, 321 S.E.2d 652 (1984), that for purposes of Shinault's conviction, the North Carolina DUI statute did not substantially conform to the Virginia DUI statute. The defendant appeals that ruling.
A collateral attack, in general, is an indirect challenge that seeks to avoid the effects of a prior judgment in a subsequent proceeding. Sutherland v. Rasnake, 169 Va. 257, 266-67, 192 S.E. 695, 698 (1937). In the criminal prosecution for driving after having been declared an habitual offender, the defendant was attempting to indirectly attack the habitual offender adjudication by challenging whether an underlying DUI conviction was a valid predicate offense.
A conviction which is the predicate or basis for an habitual offender adjudication can only be collaterally attacked by asserting a jurisdictional defect. Morse v. Commonwealth, 6 Va. App. 466, 469, 369 S.E.2d 863, 864 (1988). Jurisdictional defects include lack of subject matter jurisdiction, Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987), or lack of personal jurisdiction, Virginia Dep't of Corrections v. Crowley, 227 Va. 254, 260-61, 316 S.E.2d 439, 442 (1984). See also Eagleston V. Commonwealth, 18 Va. App. 469, 471-72, 445 S.E.2d 161, 163 (1994); Mays v. Harris, 523 F.2d 1258 (4th Cir. 1975).
The defendant was not attacking the validity of the Virginia habitual offender adjudication or the North Carolina DUI conviction on the grounds that those courts did not have jurisdiction to render their judgments; he was attacking the use of the DUI judgment as a basis for declaring him an habitual offender in Virginia, which was the iss
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