COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, 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 COURT OF MADISON COUNTY 

Daniel R. Bouton, Judge 

 Charles L. Weber, Jr., for appellant. 

 Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore, 

Attorney General, on brief), for appellee. 

 Floyd Gordon Clements (appellant) 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 the Commonwealth sufficiently proved 

the Division of Motor Vehicles (DMV) had complied 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 was 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 previously was determined to be a habitual 

offender. Appellant was arrested 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 Code § 46.2-352 was repealed in 1999. 1999 Va.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 Order of Revocation, issued by 

DMV and dated May 5, 1997. The Order of Revocation 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 The order advised appellant that his privilege to drive was revoked indefinitely, 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 Notice,” 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appellant that his license had been revoked as a result of DMV’s determination that he was a 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 that appellant was not allowed to operate a motor 

vehicle in Virginia until he had complied with the requirements stated in the previously issued 

habitual offender order. Appellant signed the notice, indicating personal receipt. The notice also 

indicated appellant had surrendered his driver’s license to the officer who served the notice. 

 The Commonwealth also introduced into evidence a copy of a conviction order, dated 

March 26, 2001, finding appellant guilty of driving after having been declared a habitual 

offender. The conviction order showed appellant was represented by counsel and was sentenced 

on the charge. Appellant never appealed that conviction. 

 Finally, the Commonwealth introduced a copy of appellant’s DMV record, showing (1) 

his last known address; (2) issuance of a license to drive on December 2, 1994; (3) a revocation 

of his driving privileges pursuant to the habitual 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 complied with the notice provision of Code 

§ 46.2-352(A), which required that the Commissioner mail a certified 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 crime. Appellant also argued that 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 underlying Order of Revocation was defective because 

the Commonwealth did not prove that the Commissioner used the appropriate mailing 

procedures. Appellant does not claim DMV lacked statutory authority3

 to determine he was a 

habitual offender nor does he claim he was improperly 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, appellant 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 driver’s license.” It also included the following 

language: 

The Commissioner shall immediately notify the person of the 

revocation and or his right to file a petition and request a hearing 

as provided in subsection B. Such notice shall be mailed by 

certified mail, return receipt requested, 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 officials 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 presumption 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 appears.’” 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 commissioner by the governor and his oath of office); 

§ 42.1-77 (including in the definition of “public official” any person “holding any office created 

. . . by any act of the General Assembly”). Appellant does not argue otherwise. Appellant also 

does not offer any evidence that the Commissioner 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. Given 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 followed the statute’s requirements for mailing 

appellant’s notice, we do not address 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.