                  COURT OF APPEALS OF VIRGINIA


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


BENJAMIN MATTHEW MORGAN
                                                OPINION BY
v.        Record No. 2128-97-3            JUDGE DONALD W. LEMONS
                                             DECEMBER 15, 1998
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
                     Charles M. Stone, Judge
          Elwood Earl Sanders, Jr., Director
          Capital/Appellate Services (Public Defender
          Commission, on briefs), for appellant.

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



     Benjamin M. Morgan appeals his conviction for driving after

having been declared an habitual offender.    On appeal, he argues

that the doctrine of res judicata prohibits his conviction.

Finding no error, we affirm his conviction.
                           BACKGROUND

     On December 20, 1995, the Commonwealth's Attorney of Henry

County filed an information seeking to have Benjamin M. Morgan

declared an habitual offender.   A certified transcript of

Morgan's driving record was attached to the information, which

listed the following three convictions:    (1) driving while

intoxicated, second offense, on October 23, 1995, in Henry

County, Virginia; (2) driving under a revocation or suspension of

license, on June 28, 1995, in the state of South Carolina; and

(3) driving while intoxicated, first offense, on January 1, 1986,
in Henry County, Virginia.

     The Henry County Circuit Court dismissed the information

"with prejudice," finding that Morgan "does not fit within the

definition of an Habitual Offender as set forth in the applicable

statutes."    The court directed the Clerk of Court to "file with

the Department of Motor Vehicles an attested copy of this order."

The court "further order[ed] that a certified copy hereof be

mailed to [Morgan] at his last known address."
     Effective January 1, 1996, the procedure for adjudicating an

habitual offender was amended in Virginia.    See Code § 46.2-352;

 see also Burchett v. Commonwealth, 26 Va. App. 696, 496 S.E.2d

154 (1998).    On January 29, 1996, the Department of Motor

Vehicles (DMV) sent Morgan an Order of Revocation which stated

that his "privilege to operate motor vehicles in Virginia is

revoked indefinitely effective February 28, 1996 at 12:01 A.M.

because you were determined on January 25, 1996 to be an habitual

offender."    The order listed the same three offenses as the basis

for the revocation as those named in the Henry County

information.   The order informed Morgan of his right to appeal

this determination to the circuit court.   Morgan signed for the

order, which was sent via certified mail, on January 31, 1996.

Morgan did not appeal or otherwise challenge the DMV order.

     On December 21, 1996, Officer E.M. Nowlin, Jr., of the

Martinsville Police Department, observed Morgan driving

erratically.   Suspecting that Morgan was intoxicated, Nowlin



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stopped the vehicle and asked Morgan for his driver's license.

Morgan stated that he did not have a driver's license and offered

a Social Security card.   Utilizing Morgan's Social Security

number, the officer discovered Morgan's status as an habitual

offender.    Morgan made no comment to the officer about the status

of his license.

     At trial, Morgan pled guilty to driving while intoxicated

but contested the charge of driving after having been declared an

habitual offender.   Morgan had been present in Henry County

Circuit Court in December 1995, when the initial petition was

dismissed.   He signed for the certified letter from the DMV on

January 31, 1996, but stated that he never read it.    He admitted

that he never appealed the DMV order of revocation or challenged

it in any way prior to his arrest.

                            RES JUDICIATA

     "The bar of res judicata precludes relitigation of the same

cause of action, or any part thereof, which could have been

litigated between the same parties and their privies."     Smith v.

Ware, 244 Va. 374, 376, 421 S.E.2d 444, 445 (1992).     Res judicata

requires that four elements be present:     "(1) identity of the

remedies sought; (2) identity of the cause of action; (3)

identity of the parties; and (4) identity of the quality of the

persons for or against whom the claim is made."     Id. at 376, 421

S.E.2d at 445.    Res judicata must be pled just as the statute of

limitations is pled.    See Nelms v. Nelms, 236 Va. 281, 289, 374




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S.E.2d 4, 9 (1988).   A plea is "a pleading which alleges a single

state of facts or circumstances . . . which, if proven,

constitutes an absolute defense to the claim."     Id. at 289, 374

S.E.2d at 9.

     On appeal, Morgan claims the circuit court's dismissal of

the petition to declare him an habitual offender in December 1995

bars the DMV order of revocation in January 1996 based upon the

same prior convictions.   He argues that the prior proceeding in

the Henry County Circuit Court was "an identical prior

proceeding" to the DMV revocation process in January 1996.

Morgan argues that the doctrine of res judicata bars the DMV
order or renders it void.

     The DMV order of revocation contained the following

language:
            At any time after the 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, or with the Circuit
            Court of the City of Richmond if the person
            is not a resident of the Commonwealth, a
            petition for a hearing and determination by
            the court that the person is not an habitual
            offender . . . .


     In Highsmith v. Commonwealth, 25 Va. App. 434, 489 S.E.2d
239 (1997), we held that "[t]he doctrines of res judicata and

collateral estoppel apply to criminal, as well as civil,

proceedings."    Id. at 441, 489 S.E.2d at 242.   However, Morgan

did not raise the issue of res judicata in response to the DMV



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order and never filed a petition for a hearing contesting his

adjudication.   At trial, Morgan sought to collaterally attack in

a criminal case that which he did not appeal in a civil

proceeding.

     In Mays v. Harris, 523 F.2d 1258 (4th Cir. 1975), the

defendant was adjudicated an habitual offender in 1970.    He

surrendered his license and did not appeal the adjudication.    In

1973, the defendant was convicted of two counts of violating

Virginia law by operating a motor vehicle in violation of the

order.   He was sentenced to one year in jail for each violation.

He then sought a writ of habeas corpus, attacking the validity

of two of the four underlying convictions supporting his

adjudication as an habitual offender.    The District Court

declared the 1970 habitual offender adjudication a "nullity"

because the defendant's Sixth Amendment right to counsel had been

violated in two of the four convictions.   Also, the District

Court voided the two 1973 convictions for operating a motor

vehicle in violation of the order, holding "that the nullity of

the 1970 adjudication necessarily voided the 1973 convictions for

driving while adjudged an habitual offender."    Id. at 1259.

     The Fourth Circuit reversed the District Court and

reinstated the convictions for driving after having been

adjudicated an habitual offender "because the sentence about

which Mays complains does not depend on the validity of his

underlying convictions."   Id.   The court reasoned, "[t]he 1973




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convictions that Mays now attacks did not follow directly and

inexorably from the earlier adjudication:   a new element was

essential that he drove a motor vehicle in the face of an order

forbidding that he do so."   Id. (emphasis added).   Consequently,

"Mays was convicted and sentenced . . . not because he was an

adjudged habitual offender, but because he wilfully [sic] and

flagrantly violated an extant court order."    Id.

     The Mays court relied upon Walker v. Birmingham, 388 U.S.

307, 87 S. Ct. 1824, 18 L.Ed.2d 1210 (1967), in which the United

States Supreme Court upheld contempt of court convictions for

civil rights protestors who had willfully violated a state court

injunction against protest marches.    As a defense to their

convictions, the protestors argued that the injunction was

"overbroad."   The Court declined to allow the protestors to use

the invalidity of the injunction as a defense, stating, "they

could not bypass orderly judicial review of the injunction before

disobeying it."   Walker, 388 U.S. at 320, 87 S. Ct. at 1832.

Adopting the principle in Walker, the court in Mays held,
          [w]e believe the principle of Walker is fully
          applicable here. Mays can test his
          adjudication as an habitual offender, but he
          cannot with impunity choose to ignore the
          adjudication and resulting injunction for, as
          the court said in Walker, "in the fair
          administration of justice no man can be judge
          in his own case."


Mays, 523 F.2d at 1259.

     Here, Morgan was charged with driving after having been

adjudicated an habitual offender.   The gravaman of the offense is


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driving while having knowledge that one has been adjudicated an

habitual offender and "while the revocation of the person's

driving privilege remains in effect."    Code § 46.2-357.     Because

Morgan had notice of the DMV order of revocation declaring him an

habitual offender, never appealed that order, and operated a

motor vehicle on the highways of Virginia during the period of

revocation, we hold that the bar of res judicata does not

prohibit his conviction. 1   Accordingly, his conviction is

affirmed.
                                                            Affirmed.




     1
      We express no opinion on the issue whether the bar of res
judicata, if properly pled in a proceeding directly contesting
the DMV habitual offender adjudication, would negate DMV's
action.



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