Present: All the Justices 

NEHEMIAH THOMAS, JR. 

 OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 971730 June 5, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 This appeal focuses upon the General Assembly’s use of the 

words “conviction” and “offense” in the statutes dealing with the 

operation of motor vehicles by habitual offenders. 

 Code § 46.2-351 defines an habitual offender as any person who 

has accumulated the required number of multiple convictions for 

separate offenses relating to operation of motor vehicles. Code 

§ 46.2-355 authorizes revocation of an habitual offender’s driving 

privileges. 

 Code § 46.2-357(A) provides, “It shall be unlawful for any 

person to drive any motor vehicle . . . on the highways of the 

Commonwealth while the revocation of the person’s driving privilege 

remains in effect.” Code § 46.2-357(B)(1) provides that if an 

habitual offender is convicted of driving a motor vehicle while the 

revocation determination is in effect the person shall be guilty of 

a misdemeanor, under certain circumstances. 

 Code § 46.2-357(B)(3), the basis of the present dispute, 

provides, “If the offense of driving while a determination as an 

habitual offender is in effect is a second or subsequent such 
offense,” the person shall be guilty of a felony and punished as set 

forth in another portion of the statute. 

 The main issue in this appeal is whether § 46.2-357(B)(3) 

subjects a defendant to the specified enhanced punishment for a 

subsequent offense if, at the time of commission of that offense, 

the defendant has not been convicted of the earlier offense. 

 On August 9, 1996, defendant Nehemiah Thomas, Jr., was 

convicted after a bench trial in the Circuit Court of the City of 

Lynchburg of the felony of driving after having been adjudicated an 

habitual offender, second offense. He was sentenced to confinement 

in the penitentiary for one year. After the Court of Appeals 

affirmed the conviction, Thomas v. Commonwealth, 25 Va. App. 256, 

487 S.E.2d 289 (1997), we awarded defendant this appeal. 

 The facts are undisputed; the chronology is important. On 

April 5, 1995, the circuit court adjudicated defendant an habitual 

offender. On August 30, 1995, defendant was charged with driving 

after having been declared an habitual offender, but he was not 

convicted of that offense until March 19, 1996. 

 On February 11, 1996, defendant was apprehended following his 

operation of a motor vehicle on the streets of Lynchburg. Following 

indictment for a felony violation of § 46.2-357, the defendant was 

tried in the circuit court in June 1996. At trial, he admitted to 

commission of the crime. Defendant argued, however, that he had 

been charged improperly with a felony because he had not been 

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convicted of the August 1995 first offense when he committed the 

second offense in February 1996. 

 Affirming defendant’s conviction, the Court of Appeals said: 

“Code § 46.2-357(B)(3) establishes that a second ‘offense’ is 

punishable as a felony. The statute does not require that for a 

first offense to be cognizable as such, it must not only occur prior 

to the second offense, but also result in conviction prior to the 

occurrence of the second offense.” 25 Va. App. at 260, 487 S.E.2d 

at 291. We agree. 

 Initially, we reject defendant’s contention that the Court of 

Appeals erred by refusing to find that the language “second or 

subsequent such offense” in Code § 46.2-357(B)(3) is 

unconstitutionally vague and ambiguous. “A penal statute is void 

for vagueness if it fails to give a person of ordinary intelligence 

notice that his contemplated conduct is forbidden by the statute and 

if the enactment encourages selective law enforcement.” Woodfin v. 

Commonwealth, 236 Va. 89, 92, 372 S.E.2d 377, 379 (1988), cert.

denied, 490 U.S. 1009 (1989). 

 In the context of the habitual offender statutes, there is 

nothing uncertain or ambiguous about the phrase “second or 

subsequent such offense” when applied to defendant’s conduct. As 

the Court of Appeals said, the meaning of the statute “is clear on 

its face. A person of ordinary intelligence would understand that 

any second or subsequent driving in violation of Code § 46.2-357 

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would make him eligible for the enhanced punishment provision, 

whether or not he had been convicted of the earlier offense before 

the occurrence of the second driving offense.” 25 Va. App. at 260, 

487 S.E.2d at 291. 

 Additionally, because the statutory language is free of 

ambiguity, the Court of Appeals correctly rejected defendant’s 

reliance upon proffered legislative history to construe the 

language. When, as here, the language is clear, settled rules of 

statutory construction do not permit resort to legislative history 

because courts take the words as written to determine their meaning. 

Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985). 

 Turning to the focus of this appeal, we hold that the General 

Assembly’s choice of the word “offense” in § 46.2-357(B)(3), rather 

than the word “conviction,” clearly demonstrates an intent to 

authorize punishment enhancement without a prior conviction. 

 Plainly, the purpose of § 46.2-357 is to deter criminal conduct 

by punishing those who repeatedly drive after having been declared 

an habitual offender, rather than to reform habitual offenders. See

Ansell v. Commonwealth, 219 Va. 759, 762-63, 250 S.E.2d 760, 762 

(1979); Mason v. Commonwealth, 16 Va. App. 260, 262-63, 430 S.E.2d 

543, 543-44 (1993). If the defendant’s interpretation of the 

statute were adopted, an offender could commit multiple unlawful 

acts of driving without fear of being punished for a felony merely 

because the offender could not be tried and convicted quickly enough 

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between offenses. An interpretation of the statute that allows a 

defendant to violate it with impunity would be contrary to the clear 

legislative intent. See Ansell, 219 Va. at 763, 250 S.E.2d at 763; 

Mason, 16 Va. App. at 263, 430 S.E.2d at 544. 

 Finally, defendant argues the Court of Appeals erred in 

affirming the trial court’s action allowing the indictment to be 

amended. We do not agree with defendant. 

 The indictment charged that defendant “unlawfully, feloniously 

and after having been declared an habitual offender” operated a 

motor vehicle, “said person having been once or more previously 

convicted and sentenced for a like offense, in violation of Virginia 

Code § 46.2-357.” After the trial, but before the defendant was 

found guilty, the court granted the Commonwealth’s motion to amend 

the indictment to read that defendant operated a motor vehicle as an 

habitual offender, “being a second or subsequent offense, in 

violation of Virginia Code section 46.2-357.” 

 Code § 19.2-231 permits amendment of an indictment for any 

defect in form or for any variance between the allegations and proof 

“at any time before . . . the court finds the accused guilty or not 

guilty, provided the amendment does not change the nature or 

character of the offense charged.” The Court of Appeals correctly 

ruled that the amendment did not change the nature or character of 

the offense charged, stating, “The amended indictment charged Thomas 

under the same code section and alleged the same actions in 

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substantiation of the charge. The changes effected by the amendment 

were semantic in nature and did not substantively alter the charge 

against Thomas.” 25 Va. App. at 262, 487 S.E.2d at 292. 

 Consequently, the judgment of the Court of Appeals will be 

Affirmed. 

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