Potter v. Commonwealth3/27/1990
Herbert Potter was adjudged an habitual offender under Code § 46.1-387.2. Potter was ordered to surrender his operator's license and to cease operation of any motor vehicle until such time as his privilege to drive was restored. Potter argues that the circuit court proceedings against him should have been dismissed because the Commonwealth failed to file the information "forthwith" in accordance with the statutory mandate. We affirm the judgment.
Potter was convicted three times of driving under the influence , in violation of Code § 18.2-266, and three times of driving on a revoked or suspended license, in violation of Code § 46.1-350. These convictions occurred on July 21, 1981, September 8, 1981, April 26, 1984, September 8, 1981, April 16, 1984, and April 26, 1984, respectively. The April 26, 1984, conviction of driving under the influence resulted in Potter's license being suspended for a period of ten years. On June 15, 1984, Potter's license was suspended indefinitely for driving under the influence.
On February 10, 1987, the Commissioner of the Division of Motor Vehicles certified an abstract of Potter's record to the Fairfax County Commonwealth's attorney for the purpose of commencing habitual offender proceedings against Potter. Based upon this certification, the Commonwealth's attorney signed the information on September 17, 1987, and filed it on January 20, 1988. At the April 14, 1988, adjudication hearing, Potter asserted that the eleven month lapse of time between the DMV certification and the filing of the information did not comply with the statutory requirement to file "forthwith." Finding that Potter had not been prejudiced by the delay, the circuit judge ruled that the Commonwealth had sufficiently complied with the statute and declared Potter an habitual offender.
(1-2) Code § 46.1-387.4, in effect at the time of these proceedings, provided: "The attorney for the Commonwealth, upon receiving the aforesaid transcripts or abstracts from the Commissioner, shall forthwith file information against the person named therein in the court of record having jurisdiction of criminal offenses in the political subdivision in which such person resides." (emphasis added). The term "forthwith" has been defined as "requir reasonable promptness without unnecessary delay." Bouldin v. Commonwealth, 4 Va. App. 166, 171, 355 S.E.2d 352, 355 (1987); see also Black's Law Dictionary 588 (5th ed. 1979). Whether the Commonwealth's attorney instituted the proceedings "forthwith" depends upon the facts and circumstances of each case. See Bouldin, 4 Va. App. at 171, 355 S.E.2d at 355 (brief delay of eight days from time of receipt of abstract held not violative of Code § 46.1-387.4); see also State v. Graham, 12 Kan. App. 2d 803, 758 P.2d 247 (1988) (where six months of eighteen month delay was caused by incorrect or out of state address, dismissal of petition for failure to file "forthwith" was not appropriate); State v. Garton, 2 Kan. App. 2d 709, 586 P.2d 1386 (1978) (proceeding was commenced "forthwith," despite thirteen month delay, where defendant was incarcerated and was therefore not prejudiced by delay and action was instituted immediately upon his release); State v. Ward, 31 N.C. App. 104, 107, 228 S.E.2d 490, 492 (1976) (failure to act "forthwith" where district attorney instituted proceeding two years and three months after receiving abstract from Commissioner of Department of Motor Vehicles and respondent was prejudiced thereby).
(3) In the present case, eleven months ela
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