                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Duff
Argued at Richmond, Virginia


LAWRENCE D. LOFLIN
                                                OPINION BY
v.        Record No. 1365-97-2             JUDGE LARRY G. ELDER
                                               JUNE 30, 1998
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF NEW KENT COUNTY
                   Samuel T. Powell, III, Judge
          Robert S. Ganey (Hanover Law Office, on
          briefs), for appellant.

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



     Lawrence D. Loflin (appellant) appeals the trial court's

order denying his petition to restore his driving privilege.

Appellant was previously adjudged an habitual offender and filed

his petition based on the provisions of Code § 46.2-361(B).    He

contends that, in denying his petition, the trial court

erroneously modified its prior order adjudicating him to be an

habitual offender, in violation of Rule 1:1.    For the reasons

that follow, we affirm.

                                  I.

                                 FACTS

     On September 18, 1995, the trial court conducted a

show-cause proceeding pursuant to Code § 46.2-352 and adjudged

appellant to be an habitual offender.    At the time of this

proceeding, appellant had four convictions chargeable under the
Habitual Offender Act that occurred on two separate dates.        A

transcript of appellant's driving record from the Department of

Motor Vehicles indicated he was convicted of "driving while

intox, 1ST" and of "driving under revocation or suspension" and

that the offense date of these two convictions was February 3,

1991.    The transcript also indicated appellant was convicted of

"driving under revocation or suspension" and that he committed

this offense twice on April 9, 1995.     In its order, the trial

court stated it was "of the opinion that [appellant] . . . is an

'habitual offender' under the definition contained in § 46.2-351

of the Code of Virginia (1950), as amended."     The trial court

ordered that appellant "shall not operate a motor vehicle on the

highways of the Commonwealth of Virginia for a period of ten (10)

years from the date of this Order and until the privilege of said

person has been restored by an order of a Court of record entered

in a proceeding as provided by law . . . ."
        On February 26, 1997, appellant filed a "petition for

restoration of driving privilege habitual offender."        His

petition was grounded solely upon Code § 46.2-361(B), which

includes the requirement that the underlying adjudication of

habitual offender "was based entirely upon convictions as set out

in subdivision 1 c of § 46.2-351."      (Emphasis added.)   The

offense of driving while intoxicated is not listed in Code

§ 46.2-351(1)(c).

        At a hearing on his petition, appellant argued the




                                  -2-
determination he was an habitual offender was based solely on his

convictions of driving under suspension or revocation and not on

his conviction of driving while intoxicated.   He argued that,

because his offense of driving while intoxicated occurred within

six hours of his offense of driving under suspension or

revocation on February 3, 1991, and because that was the first

occasion he had committed simultaneous multiple traffic offenses,

the last paragraph of Code § 46.2-351 required these two offenses

to be treated as one offense.   Moreover, he argued the last

paragraph of Code § 46.2-351 required the trial court to treat

these two offenses as one offense of driving under suspension or

revocation and to so indicate in the habitual offender order.

Based on this interpretation of the last paragraph of Code

§ 46.2-351, appellant argued his habitual offender adjudication

was not based on his conviction of driving while intoxicated.    He

also argued he met all of the other requirements for restoration

set forth in Code § 46.2-361.

     The trial court rejected appellant's argument and denied his

petition.   It reasoned the last paragraph of Code § 46.2-351 did

not require it to specify which of the offenses committed by

appellant on February 3, 1991, was the basis for its

determination that he was an habitual offender.   It further

reasoned that, because appellant was previously convicted of

driving while intoxicated, the determination he was an habitual

offender was not based entirely on the offenses set out in Code



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§ 46.2-351(1)(c).

     The trial court also found that appellant still posed a

safety threat to other drivers. It stated:
          I'm more concerned that if he gets his
          license back, he's got a very poor driving
          record to start with. I'm very concerned not
          necessarily about him as much as I am
          everybody else who is out on the highway with
          him. . . . I want to make sure that if he's
          shown the bad judgment that he's shown and
          the disregard for the laws of the highways of
          the Commonwealth of Virginia and disregard
          for the safety of other people out on the
          highway with him, I want to make sure that I
          know that he doesn't have an alcohol problem
          when he goes back out there to operate a
          motor vehicle.

                               II.

    RESTORATION OF DRIVING PRIVILEGE UNDER CODE § 46.2-361(B)

     Appellant contends the trial court abused its discretion

when it denied his petition for restoration.   He argues the trial

court modified his habitual offender order in violation of Rule

1:1 when it indicated that his habitual offender adjudication was

based in part on his prior conviction of driving while

intoxicated.   We disagree.

                               A.

     In order to obtain restoration of the privilege to operate a

motor vehicle under Code § 46.2-361(B), an habitual offender has

the burden of proving (1) that the determination he or she was an

habitual offender "was based entirely upon convictions as set out

in [Code § 46.2-351(1)(c)]" for failure to pay fines and costs,

furnish proof of financial responsibility, or satisfy a judgment,



                               -4-
(2) that he or she has made "payment in full of all outstanding

fines, costs and judgments relating to [the] determination,"

(3) that he or she has attained "financial responsibility, if

applicable," and (4) that he or she "does not constitute a threat

to the safety and welfare of himself or others with respect to

the operation of a motor vehicle."      Code § 46.2-361(B) to (D). 1
    1
        Code § 46.2-361(B) states in full:

             Any person who has been found to be an
             habitual offender, where the determination
             was based entirely upon convictions as set
             out in subdivision 1 c of § 46.2-351, may,
             after payment in full of all outstanding
             fines, costs and judgments relating to his
             determination, and furnishing proof of
             financial responsibility, if applicable,
             petition the court in which he was found to
             be an habitual offender, or the circuit court
             in the political subdivision in which he
             resides, for restoration of his privilege to
             drive a motor vehicle in the Commonwealth.
Code § 46.2-361(C) states in full:

             This section shall apply only where the
             conviction resulted from a suspension or
             revocation ordered pursuant to (i) § 46.2-395
             for failure to pay fines and costs,
             (ii) § 46.2-459 for failure to furnish proof
             of financial responsibility or (iii)
             § 46.2-417 for failure to satisfy a judgment
             provided the judgment has been paid in full
             prior to the time of filing the petition.

Code § 46.2-361(D) states in full:

             On any such petition, the court, in its
             discretion, may restore to the person his
             privilege to drive a motor vehicle, on
             whatever conditions the court may prescribe,
             if the court is satisfied from the evidence
             presented that the petitioner does not
             constitute a threat to the safety and welfare
             of himself or others with respect to the


                                  -5-
     The issue in this case is whether the trial court's prior

adjudication that appellant was an habitual offender was "based

entirely upon convictions as set out in [Code § 46.2-351(1)(c)]."

Code § 46.2-361(B) (emphasis added).    The convictions listed in

Code § 46.2-351(1)(c) are:
          [d]riving a motor vehicle while his license,
          permit, or privilege to drive a motor vehicle
          has been suspended or revoked in violation of
          §§ 18.2-272, 46.2-301, 46.2-302, or former
          § 46.1-350 or § 46.1-351.

     Under Code § 46.2-351(1), a person is an habitual offender

if an examination of his or her driving record reveals "three or

more" prior convictions within the past ten years of the offenses

enumerated in that subsection.    See Code § 46.2-351(1); Dicker v.

Commonwealth, 22 Va. App. 658, 661, 472 S.E.2d 655, 657 (1996).

Under this framework, a determination that an individual is an

habitual offender is "based" in part on all of the relevant prior

convictions listed in the individual's driving record.    Cf. Dorn

v. Commonwealth, 3 Va. App. 110, 115, 348 S.E.2d 412, 415 (1986)

(holding that, where the defendant was adjudged an habitual

offender in 1978, his privilege to drive was restored in 1983,

and in 1985 he was again adjudged an habitual offender, the

Commonwealth was not estopped from using in the 1985 proceeding

          operation of a motor vehicle, and that he has
          satisfied in full all outstanding court
          costs, court fines and judgments relating to
          determination as an habitual offender and
          furnished proof of financial responsibility,
          if applicable.




                                 -6-
two of the convictions previously used in the 1978 proceeding).




                               -7-
                               B.

     We hold that the trial court did not violate Rule 1:1 at the

hearing on appellant's petition.    Although the trial court stated

at the hearing that the determination appellant was an habitual

offender in 1995 was based on appellant's conviction of driving

while intoxicated, this statement did not constitute a

modification of its prior habitual offender order.

     Rule 1:1 prohibits a trial court from modifying a final

order more than twenty-one days after its entry.     See Davis v.

Mullins, 251 Va. 141, 148-49, 466 S.E.2d 90, 94 (1996).

     Appellant correctly contends that the two offenses he

committed on February 3, 1991 -- driving while intoxicated and

driving under suspension -- were required to be treated as one

offense for the purpose of counting his prior convictions.    Code

§ 46.2-351, which defines who is an habitual offender, provides

an exception to the method used to count prior convictions when

multiple offenses are committed within a six-hour period by a

first-time offender. The last paragraph of this statute states:
          [w]here more than one offense included in
          subdivision 1, 2 or 3 is committed within a
          six-hour period, multiple offenses shall, on
          the first such occasion, be treated for the
          purposes of this article as one offense
          provided the person charged has no record of
          prior offenses chargeable under this article.


Code § 46.2-351; see Commonwealth v. Stanley, 232 Va. 57, 59, 348

S.E.2d 231, 232-33 (1986).

     However, the unambiguous language of this paragraph of Code



                               -8-
§ 46.2-351 merely dictates how offenses committed simultaneously

or in rapid succession by a first-time offender are counted, not

how they are classified.   Contrary to appellant's argument, when

this provision applies, it does not require a trial court

adjudicating a person to be an habitual offender to either choose

among the multiple offenses or to specify in its final order

which offense provided the basis for the court's determination.

Regardless of how the last paragraph of Code § 46.2-351 required

the trial court to count appellant's offenses on February 3,

1991, the trial court's determination in 1995 that appellant was

an habitual offender was based in part on his conviction of

driving while intoxicated because this offense was included in

his driving record at that time.   Thus, the trial court's

statements at the hearing on appellant's petition did not

constitute a modification of its prior order.
     We also hold that the trial court's denial of appellant's

petition for restoration of his driving privilege based on Code

§ 46.2-361(B) was not an abuse of discretion.   The record does

not indicate that appellant's prior habitual offender

adjudication was "based entirely" on convictions set forth in

Code § 46.2-351(1)(c).   Driving while intoxicated is listed in

subsection (1)(b) of Code § 46.2-351, not subsection (1)(c).

Because appellant's habitual offender adjudication in 1995 was

partially based on his prior conviction of driving while

intoxicated, the trial court did not err when it concluded that



                                -9-
appellant failed to meet the threshold requirement for

restoration of his driving privilege under Code § 46.2-361(B). 2

        For the foregoing reasons, we affirm the order denying

appellant's petition for restoration of his driving privilege.

                                                           Affirmed.




    2
     We also note that, even if appellant's habitual offender
adjudication had been based entirely on convictions of driving
while his license was suspended or revoked, he was still not
entitled to restoration of his driving privilege under Code
§ 46.2-361(B). In order to restore a petitioner's driving
privilege under this statute, the trial court must find "from
the evidence presented that the petitioner does not constitute a
threat to the safety and welfare of himself or others with
respect to the operation of a motor vehicle . . . ." Code
§ 46.2-361(D). In this case, the trial court expressly found
that appellant still posed a threat to the safety of other
drivers. Appellant's prior driving record, which included ten
convictions of traffic-related offenses within a seven-year
period, one of which was for driving while intoxicated, amply
supports that finding.




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