Opinion
Record No. 1342-94-2
Decided: April 25, 1995
FROM THE CIRCUIT COURT OF MADISON COUNTY, Lloyd C. Sullenberger, Judge
Elliott H. DeJarnette for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Benton and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The trial judge declared Michael Edward Runyon to be an habitual offender and ordered him to surrender his permit to drive. On this appeal, Runyon contends that the trial judge erred in finding that the abstracts of the conviction documents supported the convictions recited in the information. We affirm the judgment.
Pursuant to the Habitual Offender Act, Code Sections 46.2-351 to 46.2-363, a show cause order and information charging Runyon with being an habitual offender were served on Runyon. See Code Sec. 46.2-354. Attached to those documents was the Department of Motor Vehicles' certification of Runyon's motor vehicle record. The certification listed convictions for five violations that are of the type specified within the statutory definition of an "habitual offender." Code Sec. 46.2-351. Attached to the certification were both the Department's "Abstract of Driver History Record" and the actual abstracts of convictions that were sent to the Department by each court following the convictions.
Relying upon Nesselrodt v. Commonwealth, ___ Va. App. ___, 444 S.E.2d 261 (1994), Runyon asserts that the Department's "Abstract of Driver History Record" does not meet the requirements of Code Sec. 46.2-386. That decision, however, has been reversed by the Court sitting en banc and Runyon's analysis has been rejected. See Nesselrodt v. Commonwealth, 19 Va. App. 448, 452 S.E.2d 676 (1994). Moreover, the issue decided in Nesselrodt is irrelevant to the issue in this appeal because the Department's certification that was filed in the circuit court and served on Runyon contained copies of the actual abstracts of convictions.
Runyon also asserts that two of the actual abstracts in the record do not support the trial judge's findings regarding the convictions. In particular, he contends that the Department's certification indicates that his September 22, 1989, conviction of driving while intoxicated occurred in the General District Court of Madison County, yet the actual abstract of the conviction was certified by the clerk of the Circuit Court of Madison County. Similarly, he contends that the Department's certification indicates that his September 22, 1989, conviction of driving while his permit was revoked occurred in the Circuit Court of Madison County but the actual abstract indicates that the conviction occurred in the General District Court of Madison County.
The record readily explains the apparent discrepancy that Runyon relies upon. The statement of facts recites that Runyon testified that he appealed the two convictions of driving under the influence and driving on a suspended permit from the general district court to the circuit court. However, he later withdrew the appeals. Thus, although both convictions initially occurred in the general district court, the records were transferred to the circuit court when Runyon appealed. Upon this evidence, the trial judge properly considered the abstracts.
For these reasons, we hold that the evidence in the record was sufficient to support the declaration that Runyon was an habitual offender.
Affirmed.