                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia


WINFRED EARL WILLIAMS, JR.
                                         MEMORANDUM OPINION * BY
v.        Record No. 0222-95-3            JUDGE LARRY G. ELDER
                                              JUNE 25, 1996
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                   Mosby G. Perrow, III, Judge
          Vanessa E. Hicks, Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

          Marla Graff Decker, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Winfred Earl Williams, Jr. (appellant) appeals his

conviction for operating a motor vehicle after having been

declared an habitual offender in violation of Code § 46.2-357.

Appellant, contending that the evidence was insufficient to prove

the charge, argues that:   (1) the February 7, 1984 order

declaring him an habitual offender was not effective on July 17,

1994, because the order failed to include a provision regarding

restoration of his driving privilege after ten years; and (2) a

moped is not a "motor vehicle" within the meaning of Code

§ 46.2-357.   Because we agree with appellant's second contention,

we reverse and dismiss his conviction.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                  I.

                                 FACTS

     On February 7, 1984, the Circuit Court for the City of

Lynchburg declared appellant to be an habitual offender defined

by Code § 46.1-387.2 (codified as amended at Code § 46.2-351).

The trial court's order directed that "the defendant shall not

operate a motor vehicle on or upon the highways of the

Commonwealth of Virginia, and that the said defendant shall

surrender to the Court all licenses or permits to operate motor

vehicles . . . for the disposal in the manner provided by

statute."   (Emphasis added).   The order did not mention the time

period under which it revoked appellant's driving privilege.

Neither did the order contain a provision incorporating the

requirement of Code § 46.1-387.9 (now Code § 46.2-358) that the

revocation would remain effective until a court order restored

the privilege.
     Appellant never petitioned the trial court to have his

driving privilege restored.     On July 17, 1994, while operating a

moped in the City of Lynchburg, appellant struck a parked

vehicle.

     On December 9, 1994, appellant was tried at a bench trial on

the charge of operating a "motor vehicle" after being adjudicated

an habitual offender.   Appellant did not present any evidence but

made a motion to strike the Commonwealth's evidence, arguing that

the order adjudicating him an habitual offender had expired



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before July 17, 1994.   The trial court overruled appellant's

motion and found him guilty as charged.

     On January 20, 1995, the trial court vacated its finding,

re-opened the case, and allowed appellant to present evidence.

Appellant testified that he checked with a police officer at the

Lynchburg City Police Department and was informed that he could

legally operate a moped even if he were an habitual offender.

Appellant also testified that he believed that he could get his

license reinstated anytime after February 7, 1994 but had lacked

the funds with which to do so.
     After appellant presented evidence, he again moved to strike

the Commonwealth's evidence.   Appellant asserted (1) that the

1984 order expired after ten years and failed to state that the

revocation would remain in effect until a court restored his

driving privilege, and (2) he operated a moped after being

informed that he could legally do so.    The trial court overruled

the motion and found appellant guilty.    Appellant now appeals to

this Court.

                                 II.

                        ORDER STILL IN EFFECT

     First, we hold that the trial court's February 7, 1984 order

was still in effect on July 17, 1994, when appellant operated his

moped on the public highways of Lynchburg.      Code § 46.1-387.8

(codified as amended at Code § 46.2-357) stated, "[i]t shall be

unlawful for any person to drive any motor vehicle or




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self-propelled machinery or equipment on the highways of the

Commonwealth while the order of the court prohibiting such

operation remains in effect."     (Emphasis added).   The trial

court's 1984 order did not provide a date after which appellant's

driving privilege was restored.    Nothing in the record reveals,

nor does appellant contend, that any court order superseded the

trial court's 1984 order declaring appellant to be an habitual

offender and revoking his driving privilege.    Therefore, the

prohibition on driving was still in effect on July 17, 1994.      See

Manning v. Commonwealth, 22 Va. App. 252, 256, 468 S.E.2d 705,

707 (1996) (en banc).   The trial court did not err in refusing to

grant appellant's motion to strike based on this argument.

                                III.

            STATUS OF THE MOPED AS A "MOTOR VEHICLE"

     We will assume arguendo that appellant failed to alert the

trial court to the precise issue of whether a moped is a motor

vehicle, and thus did not satisfy the requirement of Rule 5A:18.
 See Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d

401, 404 (1992).   However, because appellant was convicted of a

crime that he did not commit (operating a "motor vehicle"), we

invoke 5A:18's "ends of justice" exception to consider the merits

of the issue.   See Mounce v. Commonwealth, 4 Va. App. 433, 436,

357 S.E.2d 742, 744 (1987).

     The trial court's 1984 order directed that "the defendant

shall not operate a motor vehicle on or upon the highways of the




                                  -4-
Commonwealth of Virginia . . . ."     (Emphasis added).   In 1994,

appellant was indicted for and found guilty of "unlawfully,

feloniously and after having been adjudicated an habitual

offender" operating "a motor vehicle upon the highways of

Virginia while said order was in full force and effect."

(Emphasis added).

     Appellant's operation of a moped on July 17, 1994 did not

qualify as the operation of a "motor vehicle."    Both statutory

and case law provide that a moped is not a motor vehicle for
purposes of Title 46.1 (now Title 46.2).    Code § 46.1-1(15)(now

Code § 46.2-100) stated that "[f]or the purposes of this chapter,

any device herein defined as a bicycle or a moped shall be deemed

not to be a motor vehicle."   (Emphasis added).   In Diggs v.

Commonwealth, 6 Va. App. 300, 301, 369 S.E.2d 199, 200 (1988)(en

banc), this Court recognized that a "moped is expressly excluded

from the definition of a motor vehicle."    While we held in Diggs

that a moped is considered to be "self-propelled machinery or

equipment," id., appellant's habitual offender order did not
forbid him to operate "self propelled machinery or equipment" nor

was he indicted or convicted for that offense.

     Accordingly, we reverse and dismiss appellant's conviction.

                                             Reversed and dismissed.




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