                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia


RODNEY LEE RUCKER, A/K/A
 RONNIE LEE RUCKER
                                        MEMORANDUM OPINION * BY
v.         Record No. 1343-97-3        JUDGE SAM W. COLEMAN III
                                           DECEMBER 1, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                    Mosby G. Perrow, III, Judge
           Joseph A. Sanzone for appellant.

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



     Rodney Lee Rucker was convicted in a bench trial for driving

after having been adjudicated an habitual offender in violation

of Code § 46.2-357.   Rucker contends the trial court erred in

enforcing the 1979 order declaring him an habitual offender

because (1) the order misstated his name, and (2) he believed in

good faith, based on information from the Department of Motor

Vehicles (DMV), that the habitual offender order was no longer in

effect.   Finding no error, we affirm the conviction.

     On June 18, 1979, Amherst County Circuit Court adjudicated

Rucker an habitual offender under the name "Ronnie Lee Rucker."

On October 22, 1986, the same court, Judge Goade presiding,

convicted "Ronnie Lee Rucker" of driving after having been

     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
declared an habitual offender, for which Rucker served a

penitentiary sentence.

     The case which is the subject of this appeal arose on

November 25, 1996, when Rucker was arrested for driving after

having been declared an habitual offender.   Subsequently, a grand

jury indicted appellant as "Ronnie Lee Rucker."   Throughout the

trial, however, the court, both parties, and all paperwork

referred to appellant as "Rodney Lee Rucker."   At trial, Rucker

did not object to the admission of the 1979 order declaring

"Ronnie Lee Rucker" to be an habitual offender, the 1986

conviction order for "Ronnie Lee Rucker," or the 1997 DMV

transcript for "Ronnie Lee Rucker."
     Rucker testified that according to the DMV's records he was

eligible at the time of the alleged offense to obtain a driver's

license.   Based on this information, Rucker attempted the

driver's test three times -- once prior to his arrest and twice

after his arrest.   According to Rucker, he passed the exam on his

third attempt and had obtained a license at the time of trial.

     Rucker argues that the 1979 order declaring "Ronnie Lee

Rucker" an habitual offender is insufficient to prove that he is

an habitual offender because it inaccurately reports his name and

the evidence fails to show that they are the same person.    The

Commonwealth responds that Rule 5A:18 bars appellant from arguing

that the order does not apply to him because he did not object to

its introduction at trial.   Indeed, appellant did not, nor does




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he now, object to the admissibility of the habitual offender

order.   Appellant did, however, argue at trial, as he does now,

that the misnomer casts doubt on whether he is an habitual

offender and whether the habitual offender order is enforceable

against him.   Appellant's arguments at trial were sufficient to

preserve the issue for appeal.

     Nevertheless, we reject Rucker's argument.   The evidence at

trial, viewed in the light most favorable to the Commonwealth,

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975), was sufficient to establish that the 1979 habitual

offender order for "Ronnie Lee Rucker" applied to the appellant,

Rodney Lee Rucker.   The evidence proves that the appellant was

the same individual named in the 1979 order.   Despite the

misnomer, appellant was aware that he had been adjudicated an

habitual offender in 1979 in the name "Ronnie Lee Rucker."   The

1997 DMV transcript (for "Ronnie Lee Rucker") lists both the June

18, 1979 adjudication as an habitual offender, and the October

22, 1986 conviction for driving after having been declared an

habitual offender.   Significantly, the date of birth and the

Social Security number on the "Ronnie Lee Rucker" DMV transcript

correspond to those that this appellant gave the arresting

officer.   In addition, the prior address and the date of birth on

the DMV transcript match those on the 1979 habitual offender

order.   Finally, in reference to the 1986 conviction, appellant

conceded that he was the "same fellow Judge Goade sent to the



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penitentiary for two years after having been adjudicated" an

habitual offender.   Ample evidence establishes that the

appellant, Rodney Lee Rucker, is the same person as "Ronnie Lee

Rucker" who was declared an habitual offender in 1979, convicted

in 1986, and now charged again in 1996.   Accordingly, because the

record establishes that Rucker was present at, and therefore

aware of, his 1979 adjudication as an habitual offender, the

trial court did not err in giving full effect to the 1979

habitual offender order despite the misnomer.

     Next, Rucker contends that he did not have the requisite

mens rea to commit the offense because he believed in good faith

that he was no longer an habitual offender.   To convict appellant

of driving after having been declared an habitual offender, the

Commonwealth must prove that Rucker knew at the time of the

offense that he was prohibited from driving by an habitual

offender order.   See Reed v. Commonwealth, 15 Va. App. 467, 468,

424 S.E.2d 718, 718 (1992).   Viewing the evidence in the light

most favorable to the Commonwealth, Higginbotham, 216 Va. at 352,
218 S.E.2d at 537, it proved that appellant knew he was subject

to a valid habitual offender order.   The 1979 habitual offender

order states that appellant was present at his habitual offender

adjudication.   Therefore, he had actual notice of the order.

Proof of actual notice of the proceeding establishes the

knowledge necessary to prove mens rea or scienter.   Cf. Reed,

15 Va. App. at 473, 424 S.E.2d at 722 (finding the Commonwealth's



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failure to prove actual notice of an order adjudicating a

defendant an habitual offender grounds for reversal); Bibb v.

Commonwealth, 212 Va. 249, 183 S.E.2d 732 (1971) (holding that

defendant who had attended a hearing regarding driving on a

suspended license, but was unaware of the hearing's outcome,

lacked the required notice for conviction of driving with a

suspended license).

     Rucker's belief that his habitual offender status had been

lifted, even though based on information from the DMV, does not

shield him from conviction of driving after having been

adjudicated an habitual offender.     By statute, an individual

subject to an habitual offender order may only have his privilege

to drive restored by court order.     See Code § 46.2-356.    At

trial, Rucker admitted that, at the time of the offense, he had

not obtained a license or a court order restoring his privilege

to drive.   Having been duly notified of his status as an habitual

offender, and having failed to have his eligibility to drive

restored by a court order, appellant's misunderstanding of the

license restoration process is no defense to his conviction.

Additionally, evidence that the DMV, apparently mistakenly,

issued the appellant a license subsequent to the arrest has no

impact on appellant's status at the time of the offense.

     Accordingly, we affirm the conviction.

                                                             Affirmed.




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