                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia


JOHN TYSON
                                            MEMORANDUM OPINION * BY
v.           Record No. 2965-98-3            JUDGE MARVIN F. COLE
                                                 MARCH 28, 2000
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
                      George E. Honts, III, Judge

             William E. Bobbitt, Jr., Public Defender, for
             appellant.

             Michael T. Judge, Assistant Attorney General
             (Mark L. Earley, Attorney General, on brief),
             for appellee.


     John Tyson (appellant) appeals from his conviction in the

Circuit Court of Rockbridge County for driving after having been

adjudicated an habitual offender.    Appellant contends his

conviction must be reversed because the court that adjudicated him

an habitual offender lacked jurisdiction and its order was

therefore void.    For the reasons that follow, we affirm the

judgment of the trial court.

     In convicting appellant, the trial court relied on a January

20, 1976 order from the Alexandria Circuit Court that declared

appellant to be an habitual offender.    The 1976 order reflected


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
that appellant had been served on December 5, 1975, with a

December 4, 1975 show cause order.      The show cause order listed

appellant's address as 2400 Terret Avenue, Alexandria, Virginia.

Appellant did not appear for the adjudication hearing.

     On August 25, 1992, appellant pleaded guilty in Fairfax

County Circuit Court to driving after being adjudicated an

habitual offender. 1   The conviction order reflected that

appellant's address was 2400 Terret Avenue, Alexandria, Virginia.

     At his trial in the present case, appellant testified that he

was a resident of Washington, D.C., on January 20, 1976, and the

eighteen months preceding.    He denied receiving notice of the show

cause or the adjudication order.    Appellant testified that he

moved back to the Terret Avenue address sometime around 1980.

Appellant presented no evidence to corroborate his testimony.

     After finding appellant guilty, the trial court indicated

that it would consider at the sentencing hearing any additional

evidence tending to prove that appellant was residing in

Washington, D.C., at the time he was adjudicated an habitual

offender.   At that hearing, however, appellant stated he had no

additional evidence to present on this issue.

     In his brief, appellant refers both to the fact that the

Alexandria court did not have jurisdiction "over him" and that,


     1
       Although the Fairfax order did not refer to the 1976
Alexandria order, there is nothing in the record indicating that
appellant had been declared an habitual offender by any other
Virginia court.

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because he was a non-resident, the Circuit Court for the City of

Richmond had jurisdiction over the adjudication proceeding

pursuant to Code § 46.1-387.4 (repealed 1989).     Thus, whether

intentionally or not, appellant raises issues of personal

jurisdiction and subject matter jurisdiction.

                      Personal Jurisdiction

     "A court acquires no jurisdiction over the person of a

defendant until process is served in the manner provided by

statute, and a judgment entered by a court which lacks [personal]

jurisdiction over a defendant is void as against that defendant."

Slaughter v. Commonwealth, 222 Va. 787, 791, 284 S.E.2d 824, 826

(1981) (citations omitted).

     The Alexandria Circuit Court adjudicated appellant as a

resident habitual offender.   At the time of that proceeding,

former Code § 46.1-387.3 required the Commissioner of the Division

of Motor Vehicles (DMV) to certify transcripts or abstracts of the

defendant's conviction record "to the attorney for the

Commonwealth of the political subdivision in which such person

resides according to the records of the Division."   The defendant

had to be personally served with a copy of the show cause order.

See Code § 46.1-387.5 (repealed 1989); Code § 8.01-296(1).

     We have previously held that "[i]n the absence of clear

evidence to the contrary, courts may presume that public officers

have properly discharged their official duties."   Robertson v.

Commonwealth, 12 Va. App. 854, 856-57, 406 S.E.2d 417, 418 (1991)

                               - 3 -
(holding that there was a presumption that postal clerks had not

mishandled evidence transported through the mail).   And once this

presumption attaches, it is up to the defendant to rebut it.   See

Harris v. Commonwealth, 26 Va. App. 794, 803-04, 497 S.E.2d 165,

170 (1998) (holding that once the presumption of regularity

attaches to a criminal conviction, the defendant has the burden of

producing evidence to rebut that presumption).

     The Alexandria show cause order would have been served by a

public officer and, where the adjudication order reflects that

appellant was served, we can presume that the officer personally

served appellant in compliance with Code §§ 46.1-387.5 and

8.01-296(1).   Cf. Slaughter, 222 Va. at 794, 284 S.E.2d at 828

(holding that the adjudicating court lacked personal jurisdiction

where service was made on the Secretary of the Commonwealth as if

the defendant was a non-resident, but the evidence proved that the

defendant was a resident of the Commonwealth).   Although appellant

testified that he was not served, the trial court was not required

to believe this testimony, and could conclude that appellant was

lying to avoid being convicted.    See Marable v. Commonwealth, 27

Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).

     The presumption that appellant was properly served is

supported by the evidence tending to prove that appellant was

living in Alexandria in 1975-76.    The show cause order reflected

that appellant had an Alexandria address, and the Commissioner

of DMV was required by statute to certify the case to the

                               - 4 -
locality where DMV records reflected the defendant resided.     See

Code § 46.1-387.3 (repealed 1989); see also Bouldin v.

Commonwealth, 4 Va. App. 166, 169, 355 S.E.2d 352, 354 (1987)

(there is a "presumption that the Commissioner of DMV has kept

accurate records").    Appellant resided at this same Alexandria

address when he pleaded guilty to driving as an habitual

offender in 1992.   And appellant presented no evidence

corroborating his testimony that he was living in Washington,

D.C., in 1975-76.     Cf. Slaughter, 222 Va. at 794, 284 S.E.2d at

828 (finding uncontroverted evidence that the defendant was a

Virginia resident where the defendant and his wife testified to

this effect, and DMV records reflected that appellant's last

known address was in Virginia).

     Accordingly, the evidence sufficiently proved that the

Alexandria Circuit Court obtained personal jurisdiction over

appellant before adjudicating him an habitual offender.

                      Subject Matter Jurisdiction

     "Generally, the party asserting that a judgment is void for

lack of subject matter jurisdiction has the burden of proving

that fact."   Winston v. Commonwealth, 26 Va. App. 746, 752, 497

S.E.2d 141, 144-45 (1998).

     Appellant contends that because he was a resident of

Washington, D.C., in 1975-76, subject matter jurisdiction of the

habitual offender proceeding lay solely in the Circuit Court for

the City of Richmond.    We disagree.

                                 - 5 -
     In Wright v. Commonwealth, 11 Va. App. 527, 399 S.E.2d 449

(1990), we concluded that former Code § 46.1-387.4 was not a

jurisdictional statute, but rather established venue for

habitual offender proceedings.     See id. at 528-29, 399 S.E.2d at

449-50; Slaughter, 222 Va. at 791, 284 S.E.2d at 826 (referring

to where an habitual offender case is brought as a question of

venue); see also 1974-75 Va. Att'y Gen. Rep. 285, 74-75 Va. AG

285 (opining that Code § 17-123 controlled jurisdiction in

habitual offender adjudications and that Code §§ 46.1-387.3 and

46.1-387.4 were venue statutes).    We further held that an

habitual offender proceeding was a civil proceeding subject to

Code § 8.01-264.   See Wright, 11 Va. App. at 529, 399 S.E.2d at

449-50.   Under Code § 8.01-264, an objection to venue is waived

if not raised in a timely manner.    And "[n]o order, judgment, or

decree shall be voidable, avoided, or subject to collateral

attack solely on the ground that there was improper venue."

Code § 8.01-258.

     Even if we assume that appellant was a non-resident of

Virginia at the time he was adjudicated an habitual offender,

where the habitual offender proceeding was brought was a matter

of venue, not jurisdiction.   The Alexandria Circuit Court had

subject matter jurisdiction over the habitual offender

proceeding pursuant to then Code § 17-123 (repealed 1998)

(regarding circuit courts' general jurisdiction over civil cases



                                 - 6 -
at law).   Accordingly, appellant could not collaterally attack

the 1976 adjudication at his trial.

     For the reasons stated above, the judgment of the trial

court is affirmed.

                                                        Affirmed.




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