                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Bray and
          Senior Judge Overton *
Argued at Norfolk, Virginia


MICHAEL ALAN SEARS
                                             OPINION BY
v.          Record No. 0653-98-1        JUDGE RICHARD S. BRAY
                                          FEBRUARY 9, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                     Edward W. Hanson, Jr., Judge
            Thomas L. Watkins, Deputy Public Defender
            (Office of the Public Defender, on brief),
            for appellant.

            Richard B. Smith, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.



     Michael Alan Sears (defendant) was convicted of driving a

motor vehicle after having been declared an habitual offender, a

"second or subsequent offense," in violation of Code

§ 46.2-357(B)(3).    Defendant argues on appeal that the evidence

was insufficient to prove he was an habitual offender at the time

of the alleged crime.    Finding no error, we affirm the

conviction.

     Under familiar principles of appellate review, we construe

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible
     *
      Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
therefrom.    Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).   The judgment of a trial court will be

disturbed only if plainly wrong or without evidence to support

it.   See id.; Code § 8.01-680.

      On August 31, 1996, Virginia Beach Police Officer Craig R.

Schneider, while on routine patrol, observed a "vehicle . . .

cross[] the center line [of the roadway] . . . and hit the center

divider."    Schneider activated his emergency lights and siren,

and "tried to pull the vehicle over."     However, the driver, later

identified as defendant, "refused to stop," and continued for a

distance of a "mile, mile and a half" before parking in the

"front yard" of a residence.   Defendant then alighted from the

vehicle and "tried to run," but was "tackled" and apprehended by

Schneider.
      Defendant was unable to produce an operator's license, and

the ensuing police investigation disclosed that he had been

adjudicated an habitual offender by the Newport News Circuit

Court on November 29, 1984.    The attendant order directed that

defendant "not operate a motor vehicle . . . for a period of ten

(10) years from [such] date . . . and until [defendant's]
privilege . . . to operate a motor vehicle in this State has been

restored by Order of a Court of Record."    (Emphasis added).    The

evidence further revealed that defendant had four subsequent

convictions of operating a vehicle in violation of the revocation

order:   December 15, 1986, by the Newport News Circuit Court,




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January 18, 1989, in the Virginia Beach Circuit Court, and

November 12, 1991, and July 24, 1995, respectively, by the

Norfolk Circuit Court.

     In challenging the sufficiency of the Commonwealth's

evidence, defendant relies upon Code § 46.2-356 1 to support his

contention that the Commonwealth must affirmatively establish, as

an element of the offense, that his license had not been

restored.   However, "[w]hile Code § 46.1-387.7 (now Code

§ 46.2-356) defines the period during which an habitual offender

may not be issued a license, it has no bearing on the definition

of the felony."     Davis v. Commonwealth, 12 Va. App. 246, 248, 402

S.E.2d 711, 712 (1991) (footnote omitted).    Defendant was

indicted and convicted for a violation of Code § 46.2-357, which

provides, in pertinent part, that "[i]t shall be unlawful for any

person to drive any motor vehicle . . . while the revocation of

     1
                  No license to drive motor vehicles
                  in Virginia shall be issued to an
                  habitual offender (i) for a period
                  of ten years from the date of any
                  final order of a court entered
                  under this article or if no such
                  order was entered then the notice
                  of the determination by the
                  Commissioner finding the person to
                  be an habitual offender and (ii)
                  until the privilege of the person
                  to drive a motor vehicle in the
                  Commonwealth has been restored by
                  an order of a court entered in a
                  proceeding as provided in this
                  article.

Code § 46.2-356.



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the person's driving privilege remains in effect," together with

a penalty for a violation by such persons previously "found to be

an habitual offender."    Code § 46.2-357.   Thus, the operative

statute "defines the [offense] in terms of the court's order and

prohibits the person who has been declared an habitual offender

from driving while the order remains in effect."     12 Va. App. at

249, 402 S.E.2d at 712.

     Here, the evidence clearly established that defendant had

been adjudicated an habitual offender by order of the Newport

News Circuit Court on November 29, 1984, and thereby expressly

prohibited from operating a motor vehicle for ten years and until

his privileges were "restored by order of a Court of Record."

Thus, the passage of the revocation period, without more, did

"not automatically restore [defendant's] privilege to drive

. . . ."   Manning v. Commonwealth, 22 Va. App. 252, 256, 468

S.E.2d 705, 707 (1996).     To the contrary, "under the terms of the

order, the prohibition on driving [remained] in effect," pending

proper restoration.   Id.

     Nothing in the instant record suggests that "a Court of

Record" had restored defendant's privileges or that he otherwise

possessed a valid driver's license.      Under such circumstances,

the Commonwealth's evidence established a prima facie case that

defendant remained under the disability of the order, "casting

upon [him] . . . the burden of going forward with evidence

raising a reasonable doubt as to the illegality of his




                                 - 4 -
[conduct]."   Mejia v. Commonwealth, 23 Va. App. 173, 177-78, 474

S.E.2d 866, 868 (1996).   See Mayhew v. Commonwealth, 20 Va. App.

484, 492, 458 S.E.2d 305, 309 (1995) (While "circumstances[]

within the knowledge of the accused . . . may be raised as . . .

defenses," they "are not negative elements of the offense [which]

must be proven by the Commonwealth.").

     Accordingly, we affirm the conviction.

                                                        Affirmed.




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