                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia


EDDIE LEE GILLS
                                         MEMORANDUM OPINION ∗∗ BY
v.   Record No. 0584-99-2               JUDGE SAM W. COLEMAN III
                                              JULY 5, 2000
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
                   Robert G. O'Hara, Jr., Judge

          Steven D. Benjamin (Betty Layne DesPortes;
          Benjamin & DesPortes, P.C., on briefs), for
          appellant.

          Amy L. Marshall, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Eddie Lee Gills was convicted following a bench trial of

feloniously driving after having been declared an habitual

offender, a second or subsequent offense, in violation of Code

§ 46.2-357.   On appeal, Gills argues that the trial court erred

by admitting the certified copy of a district court warrant,

with certain dispositional notations thereon, as evidence of a

prior habitual offender violation.   He contends that the

     ∗
       Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
notations on the warrant are insufficient to support the

conviction because they do not prove a prior conviction of

driving after having been declared an habitual offender.    We

agree that the notations on the warrant are insufficient to

prove a prior conviction of driving after having been declared

an habitual offender.    Accordingly, we reverse the habitual

offender conviction as a second or subsequent offense and remand

the case to the trial court for sentencing as a first offense

under Code § 46.2-357.

                             BACKGROUND

     On review of a challenge to the sufficiency of the

evidence, we view the evidence in the light most favorable to

the Commonwealth, the prevailing party, and grant to it all

reasonable inferences fairly deducible therefrom.    See

Commonwealth v. Jenkins, 225 Va. 516, 521, 499 S.E.2d 263, 265

(1998).   On October 18, 1997, Gills was arrested and charged

with feloniously driving after having been declared an habitual

offender, a second or subsequent offense.   At trial, the

Commonwealth introduced a certified copy of an order of the

Circuit Court for Stafford County to prove that Gills had been

declared an habitual offender.   The Commonwealth also proffered

a certified copy of a warrant from a district court proceeding

as evidence that Gills had previously been convicted of driving

after being declared an habitual offender in violation of Code


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§ 46.2-357(B)(1). 1   Gills, relying on the holding in McBride v.

Commonwealth, 24 Va. App. 30, 34-35, 480 S.E.2d 126, 128 (1997),

objected to the introduction of the warrant.     He argued that the

warrant failed to indicate the offense of which he was

convicted; thus, it failed to prove that he had been convicted

of driving after having been declared an habitual offender in

violation of Code § 46.2-357(B)(1).      The trial court admitted

the evidence, finding that McBride was factually distinguishable

from the instant case.    The Commonwealth offered no other

evidence to prove the prior conviction.

                              ANALYSIS

     Gills argues that the trial court erred by admitting the

warrant as evidence of his prior conviction because the warrant


     1
       The relevant portion of the warrant, which charged Gills
with driving in Stafford County on February 14, 1997, after
having been declared an habitual offender, also showed the
following:

          The Accused Pleaded:
               ____ not guilty
               ____ nolo contendere
                 X guilty

          And was TRIED and FOUND by me:
               ____ not guilty
               ____ guilty as charged
               ____ guilty of _____________

The warrant also contained notations that Gills was present and
represented by counsel and that the judge imposed a $300 fine
and a ninety day jail sentence with sixty days suspended for
three years conditioned upon good behavior and keeping the
peace.


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was irrelevant, incompetent, and insufficient to prove the prior

violation, an element which the Commonwealth was required to

prove under the statute.    Gills argues that, although the

notation on the warrant indicates that Gills pled guilty and was

sentenced, the warrant fails to indicate that Gills was found

guilty of the charged offense.

     Despite the Commonwealth's assertion that Gills failed to

challenge the sufficiency of the evidence below, we find that

Gills preserved the issue for appeal.     See Rule 5A:18; see also

Mounce v. Commonwealth, 4 Va. App. 433, 434, 357 S.E.2d 742, 743

(1987).   As a basis for objecting to the admissibility of the

warrant for the prior offense, Gills expressly relied on the

holding in McBride.     Gills discussed the holding in McBride and

its applicability to this case.    He argued that based on the

warrant, "there's no indication that he was convicted of having

been declared a habitual offender, a misdemeanor, which is a

prerequisite and a necessary element of the charge that he is

now facing in court."    Although the trial court factually

distinguished McBride and overruled the objection, the trial

court was fully aware of the nature of Gills' objection and was

aware that Gills was challenging the sufficiency of the

evidence.   Thus, the issue was preserved for appeal.

     "As with all elements of a crime, the burden is on the

Commonwealth to prove the prior conviction beyond a reasonable


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doubt."   McBride, 24 Va. App. at 33, 480 S.E.2d at 123.   "The most

efficient way to prove the prior . . . conviction is to offer in

evidence an authenticated copy of the prior conviction."   Essex v.

Commonwealth, 18 Va. App. 168, 171, 442 S.E.2d 707, 709 (1994).

     Here, Gills was charged with the felony of driving after

having been declared an habitual offender, a second or subsequent

offense, in violation of Code § 46.2-357.   An element of the crime

which the Commonwealth had to prove was a previous conviction for

driving after having been declared an habitual offender.

"Evidence which 'tends to cast any light upon the subject of the

inquiry' is relevant" and admissible, unless excluded by some

other principle or rule of law or by statute.   Cash v.

Commonwealth, 5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1988); see

also Crews v. Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407,

409 (1994) (finding that the admissibility of evidence is reviewed

for an abuse of discretion); Evans-Smith v. Commonwealth, 5 Va.

App. 188, 196, 361 S.E.2d 436, 441 (1987) (stating that the

general rule for the admissibility of evidence is that it be

relevant and material).   Therefore, under the general rule, a

warrant that shows that the defendant has been previously charged

and convicted of driving after having been declared an habitual

offender is relevant and admissible.   Although the warrant was

admissible, Gills contends the warrant and the notation thereon

were insufficient to establish the prior conviction.   Gills argues


                              - 5 -
that the warrant merely shows that he was charged with a violation

of Code § 46.2-357 and that he pled guilty and was sentenced.

Thus, he contends it does not prove that the court found him

guilty of the charged offense as opposed to a lesser or

lesser-included offense.   The Commonwealth, citing Savino v.

Commonwealth, 239 Va. 534, 539, 391 S.E.3d 276, 278 (1990), argues

that a plea of guilty is a self-executing conviction and that the

presumption of regularity justified the trial court's conclusion

that Gills pled guilty to the charged offense.

     We find that this case is controlled by our holding in

McBride.   In McBride, the defendant was convicted of a second

offense of driving under the influence.   At trial, the

Commonwealth introduced a certified copy of an arrest warrant,

indicating that the defendant was charged with previously

violating Code § 18.2-266.   The warrant contained a printed form

upon which the district court had reported the proceedings.     The

form indicated that the defendant was charged, pled not guilty,

and was sentenced.   However, the form was blank in the space where

the court is to designate whether the defendant was tried and

found guilty of the charged offense.   The Commonwealth offered no

other evidence to prove a prior conviction.   The defendant moved

to strike the evidence, arguing that the evidence did not prove

that he had been previously convicted of violating Code




                              - 6 -
§ 18.2-266.   The trial court denied the motion and found the

defendant guilty of the second offense.

     We reversed McBride's conviction, finding that the evidence

was insufficient to prove that he had been previously convicted of

violating Code § 18.2-266.   We found that the warrant from the

previous proceeding failed to prove that the defendant was

convicted of the charged offense, rather than some other offense

or a lesser-included offense.    Moreover, we declined to infer or

speculate the nature of the actual judgment of conviction based on

the sentence imposed by the trial court.

     "It is the firmly established law of this Commonwealth that a

trial court speaks only through its written orders."      Davis v.

Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996) (citation

omitted).   Here, the warrant proffered by the Commonwealth

indicated only that Gills was charged with violating Code

§ 46.2-357(B)(1), that he pled guilty at that proceeding, and that

he was sentenced.   The warrant contained no notation indicating of

what offense Gills was convicted.       Often charges are amended or a

defendant is permitted to plead guilty to a reduced charge other

than the charged offense.    So that district court judges will not

have to prepare dispositional orders for each case, the Supreme

Court provides pre-printed forms on the warrants which contain

blocks or blanks that enable judges to specify, by merely checking

the section or filling in a blank, the disposition of a case, the


                                - 7 -
offense of which the accused is found guilty, and the amount of a

fine and/or jail sentence.    Moreover "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) (internal quotation and

citation omitted).   But, we apply a presumption of regularity

where a proceeding appears in all respects regular on its face and

some procedural issue is being challenged, such as whether a

defendant was represented by counsel in a prior conviction.     The

presumption does not apply where the proceeding is irregular on

its face, in that it fails to specify the offense for which a

defendant was convicted.   In the absence of a notation or

specification on the warrant stating the offense of which Gills

was convicted, we will not presume or surmise as to the offense of

which Gills was convicted.

     Accordingly, we hold that the warrant was insufficient to

prove the prior conviction.    We, therefore, reverse Gills'

conviction and remand the case to the trial court for

resentencing.

                                            Reversed and remanded.




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