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Morse v. Commonwealth6/21/1988
Michael Andra Morse seeks reversal of a judgment adjudicating him an habitual offender pursuant to Code § 46.1-387.1 et seq. He contends that the trial court erroneously relied upon a prior conviction when it declared him an habitual offender. Specifically, Morse asserts that the trial court should not have considered a previous conviction because it was not supported by sufficient evidence. We disagree and hold that a defendant may not raise at the adjudication hearing the sufficiency of the evidence to support an underlying conviction.
Under Code § 46.1-387.2 an individual will be declared an habitual offender after committing three of the enumerated motor vehicle violations within ten years. At Morse's adjudication hearing, the Commonwealth submitted records of three prior convictions: (1) On December 19, 1983, Morse was convicted in the Circuit Court of Amherst County for driving with a suspended license; (2) On October 18, 1982, Morse was convicted in the Circuit Court of Amherst County for driving with a suspended license; and (3) On February 9, 1982, Morse was convicted in the General District Court of Pittsylvania County again for driving with a suspended license.
At the hearing, Morse argued that his February 9, 1982 conviction in Pittsylvania County was invalid because his Division of Motor Vehicles (DMV) record did not indicate that his license was actually suspended on the date of the offense. Morse's DMV record did not reveal whether he had received notice of the license suspension. However, other evidence proved that on April 20, 1981, Morse had been convicted of reckless driving in the General District Court of Lynchburg. The conviction's abstract bore the date of June 12, 1981, and a stamp referring to Code § 46.1-423.3. Code § 46.1-423.3 authorizes the revocation of an operator's license for failure to pay a fine. The record also showed that
on April 26, 1982, Morse paid $68 in fines and received a new license.
The trial judge presumed from these facts that on June 2, 1981, Morse's license had been suspended pursuant to Code § 46.1-423.3 because he failed to pay the fines and costs assessed against him in the April 20, 1981 reckless driving charge. The judge then concluded that since the license had been suspended at the time of his February 9, 1982 conviction, the conviction could legitimately support the adjudication as an habitual offender.
On appeal, Morse argues that the trial court incorrectly relied upon the February 9, 1982, conviction. We do not reach the issue whether the trial judge correctly found on the facts that Morse's license had been suspended at the time of the conviction. Instead, we conclude that the sufficiency of the evidence to support the February 9, 1982 conviction cannot be raised at the adjudication hearing.
(1) Generally, a judgment in a criminal case may not be attacked collaterally. Eagle, Star and British Dominions Ins. Co. v. Heller, 149 Va. 82, 100, 140 S.E. 314, 319 (1927). However, a party may assail a void judgment at any time, by either direct or collateral assault. Beck v. Semones' Adm'r., 145 Va. 429, 441, 134 S.E. 677, 680 (1926). For example, in Slaughter v. Commonwealth, 222 Va. 787, 793, 284 S.E.2d 824, 827 (1981), the court reversed a conviction for driving after having been adjudged an habitual offender because no jurisdiction had attached during the defendant's prior habitual offender hearing.
(2) In McClure v. Commonwealth, 222 Va. 690
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