                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia


MICHAEL BRIAN SHAFFER
                                                   OPINION BY
v.   Record No. 0344-00-4                  JUDGE ROSEMARIE ANNUNZIATA
                                                DECEMBER 5, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                   James W. Haley, Jr., Judge

          Mark S. Gardner (Gardner, Maupin & Sutton, on
          briefs), for appellant.

          Jeffrey A. Spencer, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Appellant, Michael Brian Shaffer, appeals the circuit

court's finding that it lacked jurisdiction to hear his appeal

of a Department of Motor Vehicles order determining him to be an

habitual offender under Code § 46.2-352.      For the reasons that

follow, we reverse.

                              BACKGROUND

     Guided by well established principles, we review the

evidence in the light most favorable to the Commonwealth, the

party prevailing below.     Juares v. Commonwealth, 26 Va. App.

154, 156, 493 S.E.2d 677, 678 (1997).      On September 2, 1999,

Shaffer petitioned the Circuit Court of Stafford County for

review of an order issued on July 15, 1997 by the Commissioner
of the Department of Motor Vehicles (DMV) in which Shaffer was

determined to be an habitual offender under former Code

§ 46.2-352(A).       By the same order, the Commissioner revoked

Shaffer's driver's license effective August 17, 1997.

     At the time the DMV determined Shaffer to be an habitual

offender, Code § 46.2-352 provided, in pertinent part, as

follows:

           A. [T]he Commissioner shall determine, from
           the Department's records, whether a person
           named therein qualifies as an habitual
           offender, as defined in § 46.2-351. Upon
           such determination, the Commissioner shall
           immediately cause the Department's records
           to indicate that the person has been
           determined to be an habitual offender and
           shall revoke the person's driver's
           license . . . . The Commissioner shall
           immediately notify the person of the
           revocation and of his right to file a
           petition and request a hearing as provided
           in subsection B.

                 *       *     *     *     *     *     *

           B. At any time after receipt of the
           revocation notice, as provided for in
           subsection A, or after otherwise learning of
           the revocation, a person who has been
           determined to be an habitual offender may
           file, with the circuit court of the county
           or city in which he resides . . . a petition
           for a hearing and determination by the court
           that the person is not an habitual offender. 1

(Emphasis added).


     1
       Upon the filing of the petition for review, the revocation
of the person's license was automatically suspended, pending a
final determination by the circuit court as to the person's
habitual offender status. Former Code § 46.2-352(B).

                                   - 2 -
     The General Assembly repealed Code §§ 46.2-351 through

-355, effective July 1, 1999.   Shaffer filed his petition for

review of his habitual offender status on September 2, 1999.

The circuit court dismissed the appeal on November 30, 1999,

holding as a matter of law that the circuit court's jurisdiction

to hear the appeal had been terminated by the repeal of Code

§ 46.2-352.

                             ANALYSIS

     The right to operate a motor vehicle is a property right

that cannot be taken away without due process of law.   Bell v.

Burson, 402 U.S. 535, 539 (1971); Walton v. Commonwealth, 255

Va. 422, 428, 97 S.E.2d 869, 873 (1998).   At a minimum, a person

whose license to drive has been rescinded is entitled to a

post-deprivation review.   See generally Mackey v. Montrym, 443

U.S. 1 (1979); Dixon v. Love, 431 U.S. 105 (1977).

     In 1995, the General Assembly enacted amendments to the

Habitual Offender Act, former Code §§ 46.2-351 through -355,

allowing habitual offender determinations to be made initially

by the DMV.   Former Code § 46.2-352(A) provided the process by

which the Commissioner should determine someone to be an

habitual offender.   In former Code § 46.2-352(B), the General

Assembly granted a person declared to be an habitual offender

the right to judicial review of that determination.   Former Code

§ 46.2-352(A) also required the Commissioner to notify persons

determined to be habitual offenders that they had the right to a
                                - 3 -
review.   However, the statute did not specify a time period

within which a petition for review had to be filed.

     In 1999, the General Assembly repealed sections 46.2-351

though 46.2-355 of the Habitual Offender Act, including the

process by which one could be determined an habitual offender

and the process by which one could seek judicial review of that

determination.   In repealing the statute, the General Assembly

did not state that the statute was repealed retroactively.

Thus, it did not explicitly eliminate the right of those

individuals found to be habitual offenders under former Code

§ 46.2-352 to petition for judicial review.

     The Commonwealth, nevertheless, argues that the

legislature's repeal of the right to obtain judicial review of

the DMV's determination of habitual offender status is effective

retroactively and that the court did not err in dismissing

Shaffer's appeal on the ground that it lacked jurisdiction to

adjudicate it.   We disagree.

     As the Virginia Supreme Court noted in Ferguson v.

Ferguson, 169 Va. 77, 192 S.E. 774 (1937):

           All authorities appear to approve of the
           rule that statutes will be presumed to have
           been intended by the legislature to be
           prospective and not retrospective in their
           action where a retrospective effect would
           work injustice and disturb rights acquired
           under the former law. Some courts take the
           view that since limitation laws apply only
           to the remedy, they are not within the
           principle that statutes should be given a
           prospective rather than a retrospective
                                - 4 -
             construction . . . . The rule under
             consideration is not everywhere recognized.

                 *     *     *     *     *     *     *

             There appears to be no good reason for
             excluding statutes of limitation, or
             remedial statutes, from the general rule,
             that retroactive or retrospective
             legislation is not favored, in the absence
             of any words expressing a contrary
             intention. . . . It is reasonable to
             conclude that the failure to express an
             intention to make a statute retroactive
             evidences a lack of such intention.
             . . . It is not to be presumed that the
             legislature intends to work an injustice.

Id. at 85, 86-87, 192 S.E. at 776, 777.

        In Ferguson, the statute in question changed the time to

file a bill in equity to impeach a will from two years to one

year.    The Court held that the statute did not apply

retroactively because, "[t]here is nothing in the language of

the amended statute to declare or to indicate that the

legislature intended to give to it a retroactive operation."

Id. at 85, 192 S.E. at 776; cf. Allen v. Mottley Constr. Co.,

160 Va. 875, 889, 170 S.E. 412, 417 (1933) (the General

Assembly's use of the term "an award" in the new statute of

limitation demonstrated an intent for the limitation to apply

retroactively to awards made prior to the passing of the

statute); Duffy v. Hartsock, 187 Va. 406, 46 S.E.2d 570 (1948)

(limitation law applied retroactively where statute clearly

stated retroactive intent); see also McIntosh v. Commonwealth,

213 Va. 330, 331-32, 191 S.E.2d 791, 792-93 (1972) (finding that
                                 - 5 -
amendment to Habitual Offender Act should not be applied

retroactively where no indication of legislative intent to do

so).   We decline to apply the statutory repeal retroactively

absent an expressed intent by the legislature to deprive the

formerly adjudicated habitual offenders of their right to obtain

judicial review, particularly when the right in question is a

property right, entitled to due process protection.    See Bell,

402 U.S. at 539; Walton, 255 Va. at 428, 97 S.E.2d at 873;

Ferguson, 169 Va. at 87, 192 S.E. at 777 ("It is not to be

presumed that the legislature intends to work an injustice.").

       Accordingly, we find Shaffer's right to appeal the

Commissioner's order determining him to be an habitual offender

remained extant notwithstanding the repeal of Code § 46.2-352,

and we reverse the decision of the trial court.



                                          Reversed and remanded.




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