COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Willis and Fitzpatrick 

Argued at Alexandria, Virginia 

WALTER L. PAYNE, JR. 

 OPINION BY 

v. Record No. 1325-95-4 JUDGE JERE M. H. WILLIS, JR. 

 MARCH 11, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jane Marum Roush, Judge 

 Robert M. Byrne for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Walter L. Payne, Jr. was adjudged an habitual offender under 

Code § 46.2-355. On appeal, he contends (1) that the 

Commonwealth was barred from seeking his adjudication because it 

failed to file an information against him "forthwith" as required 

by Code § 46.2-353, and (2) that the Department of Motor Vehicles 

abstract filed and presented by the Commonwealth improperly 

omitted his prior certification as a possible habitual offender. 

 We find no error and affirm the judgment of the trial court. 

 On February 11, 1993, the Commissioner of the Department of 

Motor Vehicles (DMV) certified to the Commonwealth's Attorney 

that Payne was a possible habitual offender. The Commonwealth's 

Attorney took no action on this certification. On June 30, 1994, 

Payne's driver's license expired. On July 11, 1994, the 

Commissioner again certified that Payne was a possible habitual 

offender. The second certification was based upon the same 
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record of convictions as the February, 1993 certification. 

 On October 27, 1994, the Commonwealth's Attorney filed an 

information based upon the second certification and a rule was 

entered requiring Payne to show cause pursuant to Code § 46.2-354 

why he should not be adjudicated an habitual offender. The DMV 

abstract attached to the information made no reference to the 

first certification. In an opinion letter filed April 17, 1995, 

the trial court rejected arguments not presented on appeal and 

denied Payne's motion to dismiss the rule to show cause. 

 On May 4, 1995, Payne moved to reopen the hearing. On May 

19, 1995, the trial court heard oral argument on this motion and 

accepted into evidence a DMV abstract that set forth Payne's 

February, 1993 certification. The trial court denied the motion 

to reopen the hearing and adjudged Payne to be an habitual 

offender. 

 Payne first contends that because the Commonwealth failed to 

act "forthwith" upon his first certification, it may not seek his 

adjudication as an habitual offender based upon a second 

certification for the same convictions. Code § 46.2-353, as in 

force at the time of Payne's certification and adjudication,1

provided: 

 The attorney for the Commonwealth, on 

receiving the transcripts or abstracts from 

the Commissioner provided for in § 46.2-352, 

shall forthwith file information against the 

person named therein . . . . 

 

 1

Acts of Assembly 1995, Chapter 799, rewrote this section, 

effective January 1, 1996. 
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(Emphasis added). In Potter v. Commonwealth, 10 Va. App. 113, 

390 S.E.2d 196 (1990), we determined that the Commonwealth had 

not acted "forthwith" when it sought to have Potter declared an 

habitual offender eleven months after the certification. 

Potter's adjudication was affirmed, however, because no prejudice 

resulted from the delay. 

 Payne argues that because the Commonwealth's Attorney failed 

to act forthwith, and because he demonstrated resulting 

prejudice, the trial court erred in refusing to dismiss the 

information against him pursuant to Potter. We disagree. 

 We assume, without deciding, that the Commonwealth's 

Attorney failed to act "forthwith" on Payne's first 

certification. However, our decision is controlled by Sink v. 

Commonwealth, 13 Va. App. 544, 413 S.E.2d 658 (1992). In Sink, 

the defendant argued that the Commonwealth waived its right to 

have him adjudged an habitual offender because the Commissioner 

issued him a driver's license after his third conviction for 

driving while intoxicated, and because the Commonwealth delayed 

in filing an information against him. We held: 

 that the doctrines of laches and estoppel may 

not be employed to bar the state from 

exercising its governmental functions and 

that an agent of the Commonwealth may not 

waive the right of the Commonwealth to 

exercise its governmental function of 

enforcing the Habitual Offender Act. 

Id. at 547, 413 S.E.2d at 660. 

 The Commonwealth pursued Payne's adjudication "forthwith" 
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following his second certification. Whether the language of the 

Habitual Offender Act is directory or mandatory, the Commonwealth 

was not barred from seeking Payne's adjudication upon that 

certification. Id. at 546-47, 413 S.E.2d at 659-60. 

 Payne next contends that the omission of the first 

certification from the abstract filed with the information denied 

the trial court the opportunity to hear and evaluate all the 

evidence, that the omission amounted to fraud on the court, that 

such fraud affected the outcome of the hearing, and that the 

trial court abused its discretion in denying Payne's motion to 

reopen the hearing. We find this argument without merit. The 

mere failure of the Commonwealth's Attorney to proceed timely 

upon the first certification did not bar the Commonwealth from 

enforcing the Habitual Offender Act upon the second 

certification. Therefore, Payne's adjudication as an habitual 

offender was not affected by the omission of the first 

certification from the abstract. 

 Furthermore: 

 "[T]here is a presumption that public 

officers have properly discharged their 

duties and faithfully performed those matters 

with which they are charged." The 

Commissioner of the Department of Motor 

Vehicles is presumed to have kept accurate 

records. 

Commonwealth v. Dalton, 11 Va. App. 620, 623, 400 S.E.2d 801, 803 

 (1991) (citations omitted). 
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 Code § 46.2-3532

 stated that: 

 The Commissioner shall certify, from the 

Department's records, substantially in the 

manner provided for in § 46.2-215, three 

transcripts or abstracts of those conviction 

documents which bring the person named 

therein within the definition of an habitual 

offender. . . . 

The Commissioner certified to the Commonwealth's Attorney an 

abstract of Payne's conviction documents as provided by Code 

§ 46.2-353. The Commissioner was not required to transmit any 

information beyond that required to bring Payne within the 

definition of an habitual offender. See Nesselrodt v. 

Commonwealth, 19 Va. App. 448, 451-52, 452 S.E.2d 676, 678 (1994) 

(en banc). 

 The record discloses no evidence of fraud arising from the 

omission of the first certification from the transcript filed by 

the Commonwealth. Prior to final judgment adjudicating Payne an 

habitual offender, the trial court heard argument on Payne's 

motion to reopen the hearing and accepted a transcript containing 

the earlier certification. The trial court did not abuse its 

discretion in refusing to reopen the adjudication hearing. 

 The judgment of the trial court is affirmed. 

 Affirmed.

 

 2In force at the times concerned in this appeal.