PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons and 

Goodwyn, JJ., and Stephenson, S.J. 

FREDERICK C. MWANGI 

 OPINION BY 

v. Record No. 081065 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR. 

 February 27, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 The dispositive issue in this appeal is whether the Court 

of Appeals erred in affirming a conviction for driving under the 

influence, third offense, "where the Commonwealth's proof of 

recidivism relies on a purported order from a general district 

court which was never endorsed by a judge." 

 Frederick C. Mwangi was tried without a jury in the Circuit 

Court of the City of Alexandria. The court found him guilty of 

driving under the influence (DUI), in violation of Code § 18.2-

266. Mwangi, found to have been convicted of DUI twice before 

within a five-year period, was sentenced, in accordance with 

Code § 18.2-270(C)(1), to two years in prison with all but six 

months suspended. 

 Mwangi appealed his conviction to the Court of Appeals of 

Virginia. The Court of Appeals affirmed Mwangi's conviction, 

Mwangi v. Commonwealth, 51 Va. App. 498, 507, 659 S.E.2d 519, 

524 (2008), and we awarded him this appeal. 

 At trial, the Commonwealth sought to simultaneously 

introduce three exhibits as evidence of Mwangi's prior DUI 
convictions, and the trial court admitted the exhibits over 

Mwangi's objections. One of those exhibits, Exhibit 1, is a 

transcript from the Department of Motor Vehicles (DMV) showing 

that Mwangi had been convicted of DUI in the General District 

Court of the County of Arlington on April 22, 2005, as well as a 

purported DUI conviction in the City of Alexandria. Another of 

those exhibits, Exhibit 3, is a summons that purports to show 

that Mwangi had been convicted of DUI in the Alexandria General 

District Court. The summons indicates that the alleged offense 

occurred on January 21, 2005, and that Mwangi appeared in the 

general district court, represented by counsel, on July 15, 

2005. The summons also indicates that Mwangi entered a guilty 

plea, was tried and found guilty as charged, and was fined and 

sentenced to a jail term. The summons, however, is not signed 

by a judge. 

 Mwangi contends that the trial court erred in convicting 

him of DUI, third offense, because Exhibit 3, the purported DUI 

conviction order, is not endorsed by a judge and, thus, "is no 

order at all." The Commonwealth contends that, given the 

information on the summons and the fact that the general 

district court clerk forwarded an abstract of the conviction to 

the DMV, there was sufficient evidence to prove the conviction 

despite the absence of the judge's signature on the summons. 

2
 The Commonwealth has the burden of proving all elements of 

a crime, including prior convictions, beyond a reasonable doubt. 

Palmer v. Commonwealth, 269 Va. 203, 207, 609 S.E.2d 308, 310 

(2005). In a court-not-of-record, a judge's signature proves 

the rendition of a judgment. We have stated that "[t]he 

purported disposition on the back of [a] warrant is not an order 

because it is not signed by the judge." Moreau v. Fuller, 276 

Va. 127, 137, 661 S.E.2d 841, 847 (2008). 

 We conclude that the trial court erred in holding that the 

evidence was sufficient to prove the prior DUI conviction in 

Alexandria, which is an element of the felony offense described 

in Code § 18.2-270(C)(1). While the DMV transcript was 

admissible in evidence to prove prior convictions, the 

Commonwealth's Exhibit 3 rebutted the evidence as to the 

Alexandria conviction. The Commonwealth, therefore, failed to 

prove that Mwangi had been twice before convicted of DUI. It 

follows, then, that the Court of Appeals erred in affirming 

Mwangi's conviction. 

 Accordingly, we will reverse the judgment of the Court of 

Appeals, vacate the trial court's judgment, and remand the case 

to the Court of Appeals with direction that the Court of Appeals 

remand the case to the trial court for a new trial on the 

lesser-included misdemeanor charge if the Commonwealth be so 

advised. 

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Reversed and remanded. 

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