COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Hodges Argued at Richmond, Virginia

IVEY LEWIS JONES MEMORANDUM OPINION * BY v. Record No. 3020-02-2 J UDGE JAMES W. BENTON, JR. APRIL 27, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG Oliver A. Polla rd, Jr., Judge Elliott B. Bender for appellant. Eugene Murphy, Assistant Attorn ey General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
The trial judge convicted Ivey Lewis Jones of the felony of driving after being declared a habitual offender, second or subsequent offense, in violation of Code § 46.2-357(B)(3). Jones contends on appeal that the evid ence was insufficient to prove beyo nd a reasonable doubt that he had a prior conviction for driving af ter being declared a habitual offe nder. We disagree and affirm the conviction.
I. On May 24, 1999, a police officer stopped Jone s while he was driving and detained him on a matter unrelated to this appeal. When the police officer sought to determine whether arrest warrants had been issued for Jones, he learned from his dispatcher that Jones was a “habitual offender.” A grand jury later indicted Jones fo r feloniously operating a motor vehicle after being declared a habitual offender.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - At a bench trial in the circ uit court on May 9, 2000, the Commonwealth introduced, over Jones’s objection, Jones’s driving record from the Department of Mo tor Vehicles and a copy of an abstract of conviction in 1997. 1 The trial judge specifi cally found that these ex hibits showed that on February 16, 1996 the Department determined Jone s was a habitual offender and that on July 15, 1997 a judge of the General District Court of the City of Petersburg convicted Jones of a misdemeanor for driving on June 11, 1997 while havi ng the status of a ha bitual offender. The evidence also proved that on February 2, 1998 a judge of the General District Court of Prince George County adjudicated Jones a habitual offender. Based on this evidence, the trial judge convicted Jones of feloniously operating a motor vehicle on May 24, 1999 after being declared a habitual offender in violation of Code § 46.2-3 57(B)(3). The conviction order, which the judge entered on May 9, 2000, was not a final orde r because the judge continued the matter for sentencing. Following this conviction order and prior to sentencing, Jones filed a motion to reconsider based on newly discovered evidence. In his motion, Jones asserted that a judge of the Petersburg “General District Court reopened and dismissed” the conviction for the June 11, 1997 driving offense and that, therefore, the May 24, 1999 driving offense wa s a misdemeanor, not a felony. Attached to his motion wa s an abstract showing the dismissal o ccurred on July 18 , 2000. At the June 2002 hearing in the circuit court on the motion to reconsider, the Department’s custodian of the records testified that the Department’s records showed that Jones was adjudicated a habitual offender in the General District Court of Prince Ge orge County in 1998 and that his records did not show, prior to that date, any adjudications of Jone s being a habitual offender. The custodian of the records also testified that the Department’s re cords indicate a show cause order concerning a

1 Although the transcript of the May 9, 2000 tr ial indicates at pa ges 59-60 that both documents were admitted into evidence, the record on appeal does not contain the abstract of the 1997 conviction.- 3 - habitual offender offense was dismissed in Peters burg General District Court on January 30, 1996. He further testified that his records showed no evidence of a “misdemean or habitual offender” conviction. He testified, however, that Jones was convicted in Petersbur g on November 17, 1999 for “driving under revoca tion or suspension.” The prosecutor introduced into evidence a letter dated February 20, 1996 from the Department informing Jones that on February 16 , 1996, the Department de termined him to be a habitual offender. The prosecutor also showed the custodian of the reco rds a copy of the prior misdemeanor conviction for driving after having been convicted as a habitual offender entered by the General District Court of th e City of Petersburg. The cust odian could not explain why the Department’s records differed from these exhibits and testified that it ap peared his records were “not complete.” At the request of the custodian fo r an opportunity to research the discrepancy, the judge continued the hearing. At the continued hearing, the custodian testified that the Department’s records indicate that Jones was adjudicated a habitual of fender in Prince George County in 1998 and that he has no “misdemeanor habitual offender” convictions. He also testified, however, that his research indicated the Department determined Jones to be a habitual offender in 1996 and that the Department’s procedures would have required the Department to expunge its habitual offender determination from its records when it received the habitual offe nder adjudication by the Prince George General District Court in 1998. He explained: “It’s [the Department’s] procedure that if [the Department] has taken the action to determine yo u to be a habitual offend er and some time after that information is received from another cour t that they have adjudi cated him, then [the Department’s] decision would be waived.” Cross-examining the custodian of th e records, the prosecutor asked the following:- 4 - Q: What was his actual status on May 24, 1999? A: [Jones] should have been an habitual offender status.
* * * * * * * Q: My question is . . . [: you have] already testif ied that he was under a habitual offender status [on May 24, 1999]. My second question in light of that was, on May 24, 1999, isn’t it true he also had a misdemeanor convi ction for habitual o ffender from Petersburg General District Court? A: Yes, sir. The custodian of the records explained that he re viewed the amended abstra ct from the Petersburg General District Court and conclu ded that Jones had been convicted of a misdemeanor for driving after being declared a habitual of fender. He acknowledged, however, that the Department’s records did not show the conviction. At the conclusion of the hearing, the trial judge ruled: “I’m satisfied with what [the custodian of the records] said. [Jones] was declar ed an habitual offender by [the Department] in ‘96. Changed his convictio n in General District Court Petersburg in ‘97. And now has come to this court. The conviction will stand an d motion to reconsider is denied.” After entry of the sentencing order, Jones appealed.
II. In pertinent part, Code § 46.2-357(B) provides as follows: [A]ny person found to be a habitual offender . . . , who is thereafter convicted of driving a motor ve hicle . . . while the revocation determination is in effect [and if] the offense of driving while a determination as a habitual offender is a second or subsequent such offense, such person sh all be [guilty of a fe lony], irrespective of whether the offense, of itself, endangers the life, limb, or property of another. The police officer testified that Jones was dr iving on May 24, 1999. The evidence in the record proved that the Department determined Jones to be a habitual offender on February 16, 1996.- 5 - The trial judge had before him an exhibit showing that a judge of the Petersburg General District Court convicted Jones of a habitu al offender misdemeanor for dr iving on June 11, 1997 on a suspended operator’s license. Jones does not challenge that he was driving on a suspended operator’s license on May 24 , 1999. He also does not contend th at he was unaware of his habitual offender status on May 2 4, 1999. Jones’s sole argument on app eal is that the district court judge reopened and dismissed the misdem eanor conviction for driving on Ju ne 11, 1997 after having been adjudged a habitual offend er and that, therefore, this conviction could not provide a basis to elevate the habitual offender drivin g offense from a misdemeanor to a felony. We disagree. Jones argues that the trial j udge could not ignore evidence th at a judge of the district court reopened and dismissed Jones’s misdemean or conviction on July 18, 2000. The record, however, does not indicate the reason for the di smissal. Jones’s attorney asserted in a memorandum in the circuit court th at a judge of the Petersburg Ge neral District Court dismissed the conviction on the belief that Jones had not been declared a habitual offender until 1998, which was after a judge had convicted Jones of driving on a suspended op erator’s license after being declared a habitual offender. Except for th is assertion the record is silent concerning the basis for the dismissal. We note that the Petersburg General District Court did not have jurisdiction to reopen and dismiss the July 15, 1997 misdemeanor conviction mo re than three years after the conviction. Code § 16.1-133.1 provides, in pertinent part, that “[ w]ithin sixty days from the date of conviction of any person in a general district court . . . for any offense not felonious, the case may be reopened upon the application of such person an d for good cause.” No evidence indicates Jones applied for a reopening of his case within the sixty days following his conviction in 1997, or appealed his conviction to the circuit court with in ten days of the convi ction as prescribed by Code § 16.1-132.- 6 - The Supreme Court has held that the general district court retains jurisdiction of a case during the sixty-day period following conviction ev en though an appeal has been noted to the circuit court, unless a de novo hearing on the merits has been heard. See Commonwealth v. Diaz , 266 Va. 260, 265, 585 S.E.2d 552, 555 (2003); Commonwealth v. Zamani , 256 Va. 391, 397, 507 S.E.2d 608, 610 (1998). However, no case in Virg inia has held that the district court’s jurisdiction extends beyond the sixt y-day period to reopen a case. In addition, Jones’s argument, that th e dismissal of the underlying misdemeanor conviction invalidates his felony conviction, igno res the language of C ode § 46.2-357(B)(3) that a prior “offense,” not conviction, is required before charging a pe rson with driving after being declared a habitual offender, subsequent offens e. The trial judge found from the Department’s records that the Department determined in 1996 that Jones was a habitual offender. In Thomas v. Commonwealth , 256 Va. 38, 41-42, 501 S.E.2d 391, 393 (1998), the Supreme Court held that “the General Assembly’s choice of the word ‘o ffense’ in [Code] § 46.2-357(B)(3), rather than the word ‘conviction,’ clearly demonstrates an intent to authorize punishment enhancement without a prior conviction.” The evidence in this record proved th at in 1997 Jones had committed the “offense” of driving after being declared a habitual offender. Jones offered no evidence to refute that he was driving on a su spended operator’s license in 1997. Instead, he contends only that the dist rict court erroneously convict ed him of the wrong offense. The evidence proved the Department sent Jones a letter informing him of the 1996 habitual offender adjudication. Thus, the evidence proved Jones was a habitual offender when he drove in the City of Petersburg in 1997. For these reasons, we hol d that the evidence was sufficient to sustain Jones’s conviction for feloniously opera ting a motor vehicle on May 24, 1999 after being declared a habitual offender. We, therefore, affirm the conviction. Affirmed.