COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued at Salem, Virginia 

JOHN TYSON 

 MEMORANDUM OPINION* BY 

v. Record No. 2965-98-3 JUDGE MARVIN F. COLE 

 MARCH 28, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY 

George E. Honts, III, Judge 

 William E. Bobbitt, Jr., Public Defender, for 

appellant. 

 Michael T. Judge, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 John Tyson (appellant) appeals from his conviction in the 

Circuit Court of Rockbridge County for driving after having been 

adjudicated an habitual offender. Appellant contends his 

conviction must be reversed because the court that adjudicated him 

an habitual offender lacked jurisdiction and its order was 

therefore void. For the reasons that follow, we affirm the 

judgment of the trial court. 

 In convicting appellant, the trial court relied on a January 

20, 1976 order from the Alexandria Circuit Court that declared 

appellant to be an habitual offender. The 1976 order reflected 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
 

that appellant had been served on December 5, 1975, with a 

December 4, 1975 show cause order. The show cause order listed 

appellant's address as 2400 Terret Avenue, Alexandria, Virginia. 

Appellant did not appear for the adjudication hearing. 

 On August 25, 1992, appellant pleaded guilty in Fairfax 

County Circuit Court to driving after being adjudicated an 

habitual offender.1 The conviction order reflected that 

appellant's address was 2400 Terret Avenue, Alexandria, Virginia. 

 At his trial in the present case, appellant testified that he 

was a resident of Washington, D.C., on January 20, 1976, and the 

eighteen months preceding. He denied receiving notice of the show 

cause or the adjudication order. Appellant testified that he 

moved back to the Terret Avenue address sometime around 1980. 

Appellant presented no evidence to corroborate his testimony. 

 After finding appellant guilty, the trial court indicated 

that it would consider at the sentencing hearing any additional 

evidence tending to prove that appellant was residing in 

Washington, D.C., at the time he was adjudicated an habitual 

offender. At that hearing, however, appellant stated he had no 

additional evidence to present on this issue. 

 In his brief, appellant refers both to the fact that the 

Alexandria court did not have jurisdiction "over him" and that, 

1

 Although the Fairfax order did not refer to the 1976 

Alexandria order, there is nothing in the record indicating that 

appellant had been declared an habitual offender by any other 

Virginia court. 

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because he was a non-resident, the Circuit Court for the City of 

Richmond had jurisdiction over the adjudication proceeding 

pursuant to Code § 46.1-387.4 (repealed 1989). Thus, whether 

intentionally or not, appellant raises issues of personal 

jurisdiction and subject matter jurisdiction. 

Personal Jurisdiction

 "A court acquires no jurisdiction over the person of a 

defendant until process is served in the manner provided by 

statute, and a judgment entered by a court which lacks [personal] 

jurisdiction over a defendant is void as against that defendant." 

Slaughter v. Commonwealth, 222 Va. 787, 791, 284 S.E.2d 824, 826 

(1981) (citations omitted). 

 The Alexandria Circuit Court adjudicated appellant as a 

resident habitual offender. At the time of that proceeding, 

former Code § 46.1-387.3 required the Commissioner of the Division 

of Motor Vehicles (DMV) to certify transcripts or abstracts of the 

defendant's conviction record "to the attorney for the 

Commonwealth of the political subdivision in which such person 

resides according to the records of the Division." The defendant 

had to be personally served with a copy of the show cause order. 

See Code § 46.1-387.5 (repealed 1989); Code § 8.01-296(1). 

 We have previously held that "[i]n the absence of clear 

evidence to the contrary, courts may presume that public officers 

have properly discharged their official duties." Robertson v. 

Commonwealth, 12 Va. App. 854, 856-57, 406 S.E.2d 417, 418 (1991) 

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(holding that there was a presumption that postal clerks had not 

mishandled evidence transported through the mail). And once this 

presumption attaches, it is up to the defendant to rebut it. See

Harris v. Commonwealth, 26 Va. App. 794, 803-04, 497 S.E.2d 165, 

170 (1998) (holding that once the presumption of regularity 

attaches to a criminal conviction, the defendant has the burden of 

producing evidence to rebut that presumption). 

 The Alexandria show cause order would have been served by a 

public officer and, where the adjudication order reflects that 

appellant was served, we can presume that the officer personally 

served appellant in compliance with Code §§ 46.1-387.5 and 

8.01-296(1). Cf. Slaughter, 222 Va. at 794, 284 S.E.2d at 828 

(holding that the adjudicating court lacked personal jurisdiction 

where service was made on the Secretary of the Commonwealth as if 

the defendant was a non-resident, but the evidence proved that the 

defendant was a resident of the Commonwealth). Although appellant 

testified that he was not served, the trial court was not required 

to believe this testimony, and could conclude that appellant was 

lying to avoid being convicted. See Marable v. Commonwealth, 27 

Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). 

 The presumption that appellant was properly served is 

supported by the evidence tending to prove that appellant was 

living in Alexandria in 1975-76. The show cause order reflected 

that appellant had an Alexandria address, and the Commissioner 

of DMV was required by statute to certify the case to the 

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locality where DMV records reflected the defendant resided. See

Code § 46.1-387.3 (repealed 1989); see also Bouldin v. 

Commonwealth, 4 Va. App. 166, 169, 355 S.E.2d 352, 354 (1987) 

(there is a "presumption that the Commissioner of DMV has kept 

accurate records"). Appellant resided at this same Alexandria 

address when he pleaded guilty to driving as an habitual 

offender in 1992. And appellant presented no evidence 

corroborating his testimony that he was living in Washington, 

D.C., in 1975-76. Cf. Slaughter, 222 Va. at 794, 284 S.E.2d at 

828 (finding uncontroverted evidence that the defendant was a 

Virginia resident where the defendant and his wife testified to 

this effect, and DMV records reflected that appellant's last 

known address was in Virginia). 

 Accordingly, the evidence sufficiently proved that the 

Alexandria Circuit Court obtained personal jurisdiction over 

appellant before adjudicating him an habitual offender. 

Subject Matter Jurisdiction

 "Generally, the party asserting that a judgment is void for 

lack of subject matter jurisdiction has the burden of proving 

that fact." Winston v. Commonwealth, 26 Va. App. 746, 752, 497 

S.E.2d 141, 144-45 (1998). 

 Appellant contends that because he was a resident of 

Washington, D.C., in 1975-76, subject matter jurisdiction of the 

habitual offender proceeding lay solely in the Circuit Court for 

the City of Richmond. We disagree. 

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 In Wright v. Commonwealth, 11 Va. App. 527, 399 S.E.2d 449 

(1990), we concluded that former Code § 46.1-387.4 was not a 

jurisdictional statute, but rather established venue for 

habitual offender proceedings. See id. at 528-29, 399 S.E.2d at 

449-50; Slaughter, 222 Va. at 791, 284 S.E.2d at 826 (referring 

to where an habitual offender case is brought as a question of 

venue); see also 1974-75 Va. Att'y Gen. Rep. 285, 74-75 Va. AG 

285 (opining that Code § 17-123 controlled jurisdiction in 

habitual offender adjudications and that Code §§ 46.1-387.3 and 

46.1-387.4 were venue statutes). We further held that an 

habitual offender proceeding was a civil proceeding subject to 

Code § 8.01-264. See Wright, 11 Va. App. at 529, 399 S.E.2d at 

449-50. Under Code § 8.01-264, an objection to venue is waived 

if not raised in a timely manner. And "[n]o order, judgment, or 

decree shall be voidable, avoided, or subject to collateral 

attack solely on the ground that there was improper venue." 

Code § 8.01-258. 

 Even if we assume that appellant was a non-resident of 

Virginia at the time he was adjudicated an habitual offender, 

where the habitual offender proceeding was brought was a matter 

of venue, not jurisdiction. The Alexandria Circuit Court had 

subject matter jurisdiction over the habitual offender 

proceeding pursuant to then Code § 17-123 (repealed 1998) 

(regarding circuit courts' general jurisdiction over civil cases 

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at law). Accordingly, appellant could not collaterally attack 

the 1976 adjudication at his trial. 

 For the reasons stated above, the judgment of the trial 

court is affirmed. 

 Affirmed.

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