COURT OF APPEALS OF VIRGINIA

Present: Judges Elde r, Frank and Humphreys Argued at Richmond, Virginia

FLOYD GORDON CLEMENTS OPINION BY v. Record No. 1574-03-2 JUDGE ROBERT P. FRANK MAY 18, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF MADISON COUNTY Daniel R. Bouton, Judge Charles L. Weber, Jr., for appellant. Leah A. Darron, Assistant Atto rney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Floyd Gordon Clements (appellan t) was convicted in a bench trial of driving after being declared a habitual offender, second or subsequent offense, in violation of Code § 46.2-357. On appeal, he contends the trial court erred in finding that th e Commonwealth sufficiently proved the Division of Motor Vehicles (DMV) had co mplied with a notice provision found in former Code § 46.2-352(A). 1 For the reasons stated, we affirm.

BACKGROUND During a traffic stop for speeding, appellant wa s unable to produce an operator’s license. He indicated he had no license, stating, “I know I’m suspended, I’ve been suspended since 1992.” DMV records revealed that appellant pr eviously was determined to be a habitual offender. Appellant was arrest ed for violating Code § 46.2-357.

1 Code § 46.2-352 was repealed in 1999. 1999 Va. Acts ch. 945, 987. Neither party discusses the implications of this repeal on the facts of this case.- 2 - At trial, the Commonwealth introduced a copy of an Or der of Revocation, issued by DMV and dated May 5, 1997. The Order of Revo cation included appellant’s name and last known address. The order advised appellant that his privilege to drive was revoked indefinitely, effective June 4, 1997, because he was determined a habitual offender by the DMV. The Commonwealth also submitted a DMV form, titled “Suspension/Revocation/Disqualification Noti ce,” dated April 1, 2000. This form advised appellant that his license had been revoked as a result of DMV’s determination that he was a habitual offender. The form further explained th at appellant was not allowed to operate a motor vehicle in Virginia until he had complied with the requirements stat ed in the previously issued habitual offender order. Appellant signed the noti ce, indicating personal rece ipt. The notice also indicated appellant had surrendered his driver’s license to the officer who served the notice.

The Commonwealth also introduced into ev idence a copy of a conviction order, dated March 26, 2001, finding appellant guilty of drivi ng after having been declared a habitual offender. The conviction order showed appellant was represented by counsel and was sentenced on the charge. Appellant neve r appealed that conviction. Finally, the Commonwealth introduced a copy of appellant’s DMV record, showing (1) his last known address; (2) issuance of a licen se to drive on December 2, 1994; (3) a revocation of his driving privileges pursuant to the ha bitual offender process on May 5, 1997, effective on June 4, 1997; and (4) notice of delivery of the revocation on May 17, 1997, which was not accepted by appellant. The DMV transcript showed appellant had not changed his address since November 1998, and he was still a habitual offender on November 8, 2002. 2

2 At trial, appellant objected to the admissibility of these four documents, but this Court did not grant an appeal on that issue.- 3 - Appellant moved to strike the evidence, arguing the Commonwealth presented no evidence that the DMV Commissioner complie d with the notice provision of Code § 46.2-352(A), which required that the Commissioner mail a certifie d copy with return receipt requested to appellant. He claimed this mailing requirement in Code § 46.2-352(A) was an element of the instant felony cr ime. Appellant also argued th at the Revocation Order was void, contending the mailing requirement was necessary to confer subject matter jurisdiction on DMV.

The trial court overruled the motion to strike and convicted appellant.

ANALYSIS On appeal, appellant contends the underlyi ng Order of Revocation was defective because the Commonwealth did not prove that the Commissioner used the appropriate mailing procedures. Appellant does not cl aim DMV lacked statutory authority 3 to determine he was a habitual offender nor does he claim he was improp erly determined a habitual offender. Instead, he limits his argument to the proposition that the mailing requirement of Code § 46.2-352(A) was not met. Based on this argument, appellan t asks this Court to declare the Order of

Revocation void. The Commonwealth contends appellant’s position is a collateral attack on the

Order of Revocation. Code § 46.2-352(A) authorized the Commissioner of DMV to determine a driver was a habitual offender and “revoke the person’s drive r’s license.” It also included the following language:

The Commissioner shall immediat ely notify the person of the revocation and or his right to file a petition and re quest a hearing as provided in subsection B. Such notice shall be mailed by certified mail, return receipt reque sted, deliver to addressee only, to the address for the person contained in the Department’s records. The revocation shall become effective thirty days from the date on which the notice was mailed.

3 Appellant argues DMV lacked “subject matter jurisdiction.”- 4 - Code § 46.2-352(A). Thus, the statute required the Commissioner to mail notice of the finding to appellant via certified mail with return receipt requested. “There is a presumption that public o fficials will obey the law.” Hinderliter v. Humphries , 224 Va. 439, 448, 297 S.E.2d 684, 689 (1982). See also Hladys v. Commonwealth , 235 Va. 145, 148, 366 S.E.2d 98, 100 (1988) (noting the appellate courts presume “that public officials have acted correctly”). Similarly, [a]s a general principle, when a prior order of a court with jurisdiction to hear a matter is collaterally attacked, “the Commonwealth is entitled to a pr esumption of regularity which attends the prior [judgment] because ‘every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appear s.’” Nicely v. Commonwealth , 25 Va. App. 579, 584, 490 S.E.2d 281, 283 (1997) (quoting Parke v. Raley , 506 U.S. 20, 30 (1992)) (other citation omitted). Thompson v. Commonwealth , 27 Va. App. 620, 624, 500 S.E.2d 823, 824-25 (1998). Clearly, the DMV Commissioner is a public official. See Code §§ 46.2-201, -202 (codifying the appointment of the commissione r by the governor and his oath of office); § 42.1-77 (including in the definition of “public official” any person “hol ding any office created . . . by any act of the General Assembly”). Appe llant does not argue otherwise. Appellant also does not offer any evidence that the Commissi oner violated his statutory duty to mail the revocation notice. He simply contends the Commonwealth did not prove the mailing was consistent with the statutory requirement. Give n the absence of clear evidence to the contrary, the presumption of regularity stands, and appellant’s argument fails. See Robertson v.

Commonwealth , 12 Va. App. 854, 856-57, 406 S.E.2d 417, 418 (1991). As we presume the Commissioner followe d the statute’s requirements for mailing appellant’s notice, we do not a ddress whether failure to comply with the mailing requirements of Code § 46.2-352(A) renders the revocation order void, whether the mailing requirement is an element of the offense, or whether appellant’s position is a collateral attack on the revocation- 5 - order. We conclude the Commissioner complied with the mailing requirement and, thus, affirm the judgment of the trial court.

Affirmed.