COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Overton 

Argued at Norfolk, Virginia 

DOMINIC R. DICKER 

 OPINION BY 

v. Record No. 1914-95-1 JUDGE JERE M. H. WILLIS, JR. 

 JULY 9, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Robert W. Curran, Judge 

 Edward I. Sarfan (Sarfan & Nachman, on 

brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

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

brief), for appellee. 

 On appeal from his adjudication as an habitual offender 

pursuant to Code § 46.2-351, et seq., Dominic R. Dicker contends 

that the evidence was insufficient to prove the three convictions 

required to bring him within the definition of an habitual 

offender. Specifically, he argues that the April 19, 1994 order 

convicting him of driving under a revoked or suspended license is 

void and thus does not qualify as a predicate conviction under 

Code § 46.2-351. We find no error and affirm the judgment of the 

trial court. 

 On April 20, 1995, the Commonwealth's Attorney filed an 

information in accordance with Code § 46.2-353, and Dicker was 

ordered to show cause why he should not be adjudged an habitual 

offender. At the show cause hearing, the Commonwealth entered 

into evidence a certified copy of Dicker's DMV transcript, which 
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included an April 19, 1994 conviction in Newport News General 

District Court for driving under revocation or suspension of 

license on February 19, 1994. 

 In rebuttal, Dicker introduced a certified copy of a 

pre-printed arrest warrant, which contained the April 19, 1994 

conviction order. He argued that this order was void because the 

district court had failed to check the appropriate boxes 

indicating his plea and whether he was found guilty, not guilty, 

or guilty of a lesser included offense. Dicker argued that 

because the order was void, the conviction could not be used as a 

predicate offense under Code § 46.2-351. The trial court ruled 

that Dicker had failed to rebut the Commonwealth's prima facie

proof of the requisite convictions and had failed to show cause 

why he should not be adjudged an habitual offender. 

 Code § 46.2-352, in effect at the time of Dicker's habitual 

offender adjudication,1 provided, in pertinent part: 

 The Commissioner shall certify . . . three 

transcripts or abstracts of those conviction 

documents which bring the person named 

therein within the definition of an habitual 

offender, as defined in § 46.2-351 . . . . 

* * * * * * * 

 The transcript or abstract shall be prima 

facie evidence that the person named therein 

was duly convicted . . . of each offense 

shown by the transcript or abstract. If the 

person denies any of the facts stated 

therein, he shall have the burden of proving 

that the fact is untrue. 

 

 1Code § 46.2-352 was amended effective January 1, 1996. 
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In Moffitt v. Commonwealth, 16 Va. App. 983, 434 S.E.2d 684 

(1993), we held: 

 Habitual offender proceedings are civil 

in nature, not criminal. Therefore, the 

Commonwealth has the burden of proving by a 

preponderance of the evidence that the 

respondent had obtained the three requisite 

driving convictions to be an habitual 

offender. . . . [T]he Commonwealth 

established a prima facie presumption that it 

was a valid conviction by introducing the 

certified DMV transcript . . . . The prima

facie presumption that the convictions were 

valid necessarily encompasses that the 

evidence of the charges were proven . . . . 

Once the Commonwealth has established a prima

facie case, it is entitled to judgment, 

unless the respondent goes forward with 

evidence that refutes an element of the 

Commonwealth's case or rebuts the prima facie

presumption. 

Id. at 986, 434 S.E.2d at 687 (citations omitted). 

 On appeal, we view the evidence in the light most favorable 

to the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom. Higginbotham v. Commonwealth, 216 

Va. 349, 352, 218 S.E.2d 534, 537 (1975). The judgment of a 

trial court sitting without a jury will not be set aside unless 

plainly wrong or without evidence to support it. Martin v. 

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 The DMV transcript constituted prima facie proof of Dicker's 

qualification as an habitual offender. The issue embraced in 

this appeal is whether the allegedly defective April 19, 1994 

order rebuts the presumption of that prima facie proof. 

 Dicker contends that the failure of the general district 
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court to check all the blocks rendered the April 19, 1994 order 

void. We disagree. Although the informational deficiencies of 

the order might have rendered it reversible on appeal, the order 

was, at worst, voidable, not void. Because the order was never 

reversed, it remained a valid conviction. The order shows on its 

face that it was a valid exercise of the general district court's 

subject matter, territorial, and personal jurisdiction. 

 The April 19, 1994 order failed in several respects to 

corroborate the DMV transcript. However, in no respect did it 

contradict that transcript. 

 It is within the province of the fact finder 

to evaluate the credibility of the witnesses 

and the weight of the evidence. The 

determination that a party's evidence is not 

credible or not sufficiently persuasive to 

overcome the prima facie presumption will not 

be overturned on appeal unless clearly wrong 

or unsupported by the record. 

Moffitt, 16 Va. App. at 988, 434 S.E.2d at 688. 

 The judgment of the trial court is affirmed. 

 Affirmed.