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Walters v. Commonwealth5/16/1989
The appellant, James Andrew Walters, was adjudged an habitual offender under Code § 46.1-387.2(a) in Hanover County Circuit Court. The court suspended Walters' privilege to drive upon the highways of the Commonwealth for ten years. In this appeal, Walters attacks two of the three convictions which led to his adjudication as an habitual offender. He contends that these convictions, both for driving under the influence , are void because they were based upon then invalid Hanover County Code § 15-2. Finding that Walters has not established that he was convicted under a void statute, we affirm.
On June 15, 1987, Walters was ordered to appear in Hanover Circuit Court on July 20, 1987, and show cause why he should not be declared an habitual offender. The order was issued after the county received certification from the Division of Motor Vehicles ("DMV") that Walters' record showed three convictions, bringing him within the statutory definition of an habitual offender.
At the July 20 hearing, the Commonwealth's attorney produced certified copies of DMV records, including abstracts of three convictions: February 24, 1983, and December 21, 1984, convictions for driving under the influence and a January 13, 1987, conviction for driving after revocation of his driver's license. Both summons for driving under the influence listed Hanover County Code § 15-2 and Virginia Code § 18.2-266 as laws violated. On the summons which led to the February 24, 1983, conviction, boxes indicating violations of both the county and state codes were checked. However, on the summons for the December 21, 1984, conviction only the box for a county violation was marked. The record does not disclose whether Walters was convicted under the county or state code.
Walters objected to use of the two convictions for driving under the influence as a basis for the habitual offender adjudication. He argued that both convictions were for violations of Hanover Code § 15-2 and thus invalid because the code section was void at the time the convictions were entered. Walters' authority for the proposition that Code § 15-2 was void is Mitchell v. County of Hanover, 1 Va. App. 486, 340 S.E.2d 173 (1986), a decision by another panel of this court. The trial court overruled the objection, finding that Walters' convictions were under the state code since Code § 18.2-266 was listed on each summons. The court then found Walters to be an habitual offender.
A brief history of Hanover County Code § 15-2 is necessary at this point. On January 30, 1974, the Hanover County Board of Supervisors passed an ordinance reenacting § 9-1 of the County Code. The ordinance stated in part: "Article 6 of Chapter 2 of Title 18.1 of the 1950 Code of Virginia (Section 18.1-54 through 18.1-59) as amended or hereafter amended, is hereby adopted by reference."
In 1975, the General Assembly repealed Title 18.1 and enacted Title 18.2 as its replacement. The Hanover County Code did not reflect the state code change until 1982, when the Board of Supervisors approved recodification of the county code by passage of Ordinance 82-5. Effective June 1, 1982, Code § 9-1 was recodified as § 15-2. At the same time, the reference to the repealed Title 18.1 of the Virginia Code was deleted and replaced with the correct reference to Virginia Code § 18.2-266 et seq. However, this change in the state code reference was mentioned in neither Ordinance 82-5 nor any other Hanover ordinance.
Mitchell involved a direct appeal of a conviction under
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