Commonwealth v. Stanley

232 Va. 57 (1986)

348 S.E.2d 231

COMMONWEALTH of VIRGINIA v. KENNETH LEE STANLEY

Record No. 840963

Supreme Court of Virginia

September 5, 1986

(Gerald L. Baliles, Attorney General; Walter A. McFarlane, Deputy Attorney General; Jeffrey A. Spencer, Assistant Attorney General, on brief), for appellant. Appellant submitting on brief.

No brief or argument for appellee.

Present: All the Justices

Judgment dismissing an information against a driver under the Habitual Offender Act is reversed where the trial court erred in ruling that two of the defendant's offenses, which had been committed simultaneously, constituted only a single offense.

The Commonwealth's Attorney filed an information alleging that the defendant was a habitual offender in violation of the Habitual Offender Act, having a record of three or more convictions within a ten-year period. The driver's record showed four convictions committed within this period. The trial court ruled that since the third and fourth offenses had been committed simultaneously they constituted a single offense under the statute. Finding proof of only two convictions, the trial court dismissed the show cause order. The Commonwealth appeals the trial court's ruling.

1. A proceeding under the Habitual Offender Act is not a criminal proceeding.

2. In the opinion of the Attorney General, multiple offenses committed simultaneously are to be counted as one offense under the Habitual Offender Act only if the driver has no record of previous offense chargeable under the Act.

3. Although the General Assembly has amended the Habitual Offender Act on four occasions, none of those amendments altered the Attorney General's construction of the statute.

4. The legislature is presumed to have knowledge of the Attorney General's interpretation of statutes, and its failure to make corrective amendments evinces legislative acquiescence in the Attorney General's view.

5. The General Assembly obviously intended multiple offenses committed within a six-hour period to constitute a single offense under the Habitual Offender Act only when the driver has not been previously convicted of an offense chargeable under the Act.

6. Because the record shows that the driver was previously convicted of such an offense, the trial court erred in ruling that the driver's two offenses on a later date constituted a single offense.

Appeal from a judgment of the Circuit Court of Floyd County. Hon. Kenneth I. Devore, judge presiding.

POFF

POFF, J., delivered the opinion of the Court.

The Commonwealth of Virginia appeals from a judgment dismissing an information filed by the Commonwealth's Attorney alleging that Kenneth Lee Stanley's record of convictions shows that he is an habitual offender.

Code | 46.1-387.2(a), the Habitual Offender Act, defines an habitual offender as a driver who has a record of "[t]hree or more convictions" within a 10-year period. The statute also declares, however, that "where more than one included offense shall be committed within a six-hour period such multiple offenses shall, on the first such occasion, be treated for the purposes of this article as one offense provided the person charged has no record of prior offenses chargeable under this article".

The Division of Motor Vehicles (DMV) certified abstracts of Stanley's record which showed four convictions: (1) driving under the influence of intoxicating beverages (DUI), October 19, 1978; (2) DUI, October 19, 1982; (3) DUI, November 18, 1983; and (4) driving on a revoked license, November 18, 1983. In the first of two rulings underlying its judgment, the trial court concluded that the first conviction could not be considered because the abstract "was not executed by the duly constituted Judge". The abstracts of the third and fourth convictions showed that the two offenses had been committed simultaneously, and, in its second ruling, the trial court concluded that they "constituted a single offense" under the statute. Finding proof of only two convictions, the court dismissed the show cause order and directed that a certified copy of the judgment be sent to DMV. "A proceeding under Virginia's Habitual Offender Act is not a criminal proceeding," Worley v. Commonwealth, 215 Va. 740, 746, 214 S.E.2d 447, 451, cert. denied, 423 U.S. 946 (1975), and we granted the Commonwealth an appeal to consider the trial court's second ruling.

In an opinion issued the year following enactment of the Habitual Offender Act, the Attorney General concluded that multiple offenses committed simultaneously "are to be counted as one offense . . . only if the driver has no record of a previous offense chargeable under the Act." 1968-69 Op. Att'y Gen. 178, 179 (1969). Thereafter, the General Assembly amended the Act on four occasions. Acts 1970, cc. 507, 724; Acts 1974, c. 453; Acts 1982, c. 655; Acts 1984, c. 780. None of these amendments altered the Attorney General's construction of the statute.

The legislature is presumed to have had knowledge of the Attorney General's interpretation of the statutes, and its failure to make corrective amendments evinces legislative acquiescence in the Attorney General's view. Deal v. Commonwealth, 224 Va. 618, 622, 299 S.E.2d 346, 348 (1983) (citation omitted).

Obviously, the General Assembly intended multiple offenses committed within a six-hour period to constitute a single offense under the Habitual Offender Act only when the driver has not previously been convicted of an offense chargeable under the Act and then "only on the first occasion". Because the record shows that Stanley was convicted of such an offense on October 19, 1982, we hold that the trial court erred in ruling that Stanley's two convictions on November 18, 1983 constituted a single conviction. We will reverse the judgment and remand the case for further proceedings consistent with this opinion.

Reversed and remanded.

Reversed and remanded.$89:#GGG#