                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia


WALTER L. PAYNE, JR.
                                              OPINION BY
v.          Record No. 1325-95-4     JUDGE JERE M. H. WILLIS, JR.
                                            MARCH 11, 1997
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       Jane Marum Roush, Judge
            Robert M. Byrne for appellant.

            Eugene Murphy, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



     Walter L. Payne, Jr. was adjudged an habitual offender under

Code § 46.2-355.   On appeal, he contends (1) that the

Commonwealth was barred from seeking his adjudication because it

failed to file an information against him "forthwith" as required

by Code § 46.2-353, and (2) that the Department of Motor Vehicles

abstract filed and presented by the Commonwealth improperly

omitted his prior certification as a possible habitual offender.

We find no error and affirm the judgment of the trial court.

     On February 11, 1993, the Commissioner of the Department of

Motor Vehicles (DMV) certified to the Commonwealth's Attorney

that Payne was a possible habitual offender.   The Commonwealth's

Attorney took no action on this certification.     On June 30, 1994,

Payne's driver's license expired.   On July 11, 1994, the

Commissioner again certified that Payne was a possible habitual

offender.   The second certification was based upon the same
record of convictions as the February, 1993 certification.

        On October 27, 1994, the Commonwealth's Attorney filed an

information based upon the second certification and a rule was

entered requiring Payne to show cause pursuant to Code § 46.2-354

why he should not be adjudicated an habitual offender.       The DMV

abstract attached to the information made no reference to the

first certification.    In an opinion letter filed April 17, 1995,

the trial court rejected arguments not presented on appeal and

denied Payne's motion to dismiss the rule to show cause.
        On May 4, 1995, Payne moved to reopen the hearing.    On May

19, 1995, the trial court heard oral argument on this motion and

accepted into evidence a DMV abstract that set forth Payne's

February, 1993 certification.    The trial court denied the motion

to reopen the hearing and adjudged Payne to be an habitual

offender.

        Payne first contends that because the Commonwealth failed to

act "forthwith" upon his first certification, it may not seek his

adjudication as an habitual offender based upon a second

certification for the same convictions.    Code § 46.2-353, as in

force at the time of Payne's certification and adjudication, 1

provided:
             The attorney for the Commonwealth, on
             receiving the transcripts or abstracts from
             the Commissioner provided for in § 46.2-352,
             shall forthwith file information against the
             person named therein . . . .
    1
     Acts of Assembly 1995, Chapter 799, rewrote this section,
effective January 1, 1996.




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(Emphasis added).   In Potter v. Commonwealth, 10 Va. App. 113,

390 S.E.2d 196 (1990), we determined that the Commonwealth had

not acted "forthwith" when it sought to have Potter declared an

habitual offender eleven months after the certification.

Potter's adjudication was affirmed, however, because no prejudice

resulted from the delay.

     Payne argues that because the Commonwealth's Attorney failed

to act forthwith, and because he demonstrated resulting

prejudice, the trial court erred in refusing to dismiss the

information against him pursuant to Potter.   We disagree.

     We assume, without deciding, that the Commonwealth's

Attorney failed to act "forthwith" on Payne's first

certification.   However, our decision is controlled by Sink v.

Commonwealth, 13 Va. App. 544, 413 S.E.2d 658 (1992).     In Sink,

the defendant argued that the Commonwealth waived its right to

have him adjudged an habitual offender because the Commissioner

issued him a driver's license after his third conviction for

driving while intoxicated, and because the Commonwealth delayed

in filing an information against him. We held:
          that the doctrines of laches and estoppel may
          not be employed to bar the state from
          exercising its governmental functions and
          that an agent of the Commonwealth may not
          waive the right of the Commonwealth to
          exercise its governmental function of
          enforcing the Habitual Offender Act.

Id. at 547, 413 S.E.2d at 660.

     The Commonwealth pursued Payne's adjudication "forthwith"



                                 - 3 -
following his second certification.    Whether the language of the

Habitual Offender Act is directory or mandatory, the Commonwealth

was not barred from seeking Payne's adjudication upon that

certification.   Id. at 546-47, 413 S.E.2d at 659-60.

     Payne next contends that the omission of the first

certification from the abstract filed with the information denied

the trial court the opportunity to hear and evaluate all the

evidence, that the omission amounted to fraud on the court, that

such fraud affected the outcome of the hearing, and that the

trial court abused its discretion in denying Payne's motion to

reopen the hearing.   We find this argument without merit.   The

mere failure of the Commonwealth's Attorney to proceed timely

upon the first certification did not bar the Commonwealth from

enforcing the Habitual Offender Act upon the second

certification.   Therefore, Payne's adjudication as an habitual

offender was not affected by the omission of the first

certification from the abstract.
     Furthermore:
          "[T]here is a presumption that public
          officers have properly discharged their
          duties and faithfully performed those matters
          with which they are charged." The
          Commissioner of the Department of Motor
          Vehicles is presumed to have kept accurate
          records.


Commonwealth v. Dalton, 11 Va. App. 620, 623, 400 S.E.2d 801, 803

(1991) (citations omitted).




                               - 4 -
       Code § 46.2-353 2 stated that:
            The Commissioner shall certify, from the
            Department's records, substantially in the
            manner provided for in § 46.2-215, three
            transcripts or abstracts of those conviction
            documents which bring the person named
            therein within the definition of an habitual
            offender. . . .


The Commissioner certified to the Commonwealth's Attorney an

abstract of Payne's conviction documents as provided by Code

§ 46.2-353.   The Commissioner was not required to transmit any

information beyond that required to bring Payne within the

definition of an habitual offender.     See Nesselrodt v.

Commonwealth, 19 Va. App. 448, 451-52, 452 S.E.2d 676, 678 (1994)

(en banc).

       The record discloses no evidence of fraud arising from the

omission of the first certification from the transcript filed by

the Commonwealth.   Prior to final judgment adjudicating Payne an

habitual offender, the trial court heard argument on Payne's

motion to reopen the hearing and accepted a transcript containing

the earlier certification.   The trial court did not abuse its

discretion in refusing to reopen the adjudication hearing.

       The judgment of the trial court is affirmed.
                                                      Affirmed.




   2
    In force at the times concerned in this appeal.

                                - 5 -
