                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Elder
Argued at Salem, Virginia


WARREN LEE THIEMAN
                                            MEMORANDUM OPINION * BY
v.   Record No. 1404-99-3                  JUDGE SAM W. COLEMAN III
                                               NOVEMBER 7, 2000
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
                       Duncan M. Byrd, Jr., Judge

          Dabney L. Pasco (Pasco & Dascher, P.C., on
          brief), for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


      Warren Lee Thieman was convicted in a jury trial of driving

while under the influence of alcohol (DUI), a "3rd offense within

ten (10) years, as charged in the warrant," in violation of Code

§ 18.2-266.    On appeal, Thieman argues that the trial court erred

by permitting the Commonwealth to prosecute him for a third

offense DUI.    He argues that because the warrant charged DUI

"SUBSEQUENT OFFENSE," rather than third offense, it was deficient

and insufficient to inform him that he was being prosecuted for a

third offense.    We disagree and affirm the conviction.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                              BACKGROUND

     On September 4, 1998, Thieman was arrested on a warrant

charging him with driving under the influence of alcohol

"SUBSEQUENT OFFENSE."   In December 1998, Thieman was found "guilty

as charged" in general district court and was sentenced to ninety

days in jail, with sixty days suspended, one hundred hours of

community service, and a $1,500 fine.      The general district court

suspended Thieman's driver's license for three years.     Thieman

appealed the conviction to the circuit court.

     Prior to trial in circuit court, the Commonwealth's attorney

clarified that Thieman was being prosecuted for driving under the

influence, a third offense.    Thieman objected, arguing that the

warrant specified "SUBSEQUENT OFFENSE," which he contended was

insufficient to inform him that he was being tried for a third

offense DUI.   The trial judge overruled the objection, finding

that the warrant was "clearly broad enough to cover third

offense."   On the evidence presented, Thieman was convicted of

DUI, third offense within ten years.      He was sentenced to one year

in jail and a $2,500 fine.    The circuit court revoked Thieman's

driver's license indefinitely.

                               ANALYSIS

     Thieman argues that the charge as stated in the warrant,

driving while under the influence of intoxicants, "SUBSEQUENT

OFFENSE," was vague and insufficient to inform him that he was


                               - 2 -
being tried for a third offense, rather than a second offense. 1

In support of his argument, Thieman points out that the sentence

and punishment imposed by the general district court was

consistent with the statutory punishment provided for a second

offense DUI and inconsistent with the punishment provided for a

third or subsequent DUI offense.   Therefore, he asserts, because

the warrant was vague as to the offense charged and because his

punishment in general district court was consistent with a second

offense DUI, he did not have notice that he was being tried in

circuit court for a third offense DUI.


     1
       Thieman first raised this issue the day of trial. On
appeal, the Commonwealth argues that Thieman is barred by Rule
3A:9(b)(1) and (c) from challenging his conviction on the ground
that the warrant was deficient because he failed to raise the
objection seven days before trial. Thieman, however, asserts
that he was not required to raise this issue prior to trial
because he does not argue that the warrant was deficient.
Rather, he asserts that the warrant failed to give him notice
that he was being tried for a third offense because the language
"SUBSEQUENT OFFENSE" implied a second offense.
     Rule 3A:9(b)(1) requires that "[d]efenses and objections
based on defects . . . in the written charge upon which the
accused is to be tried . . . must be raised by motion within the
time prescribed by paragraph (c) . . . ." Paragraph (c)
requires that the motion "shall be filed or made before a plea
is entered and, in a circuit court, at least 7 days before the
day fixed for trial." Rule 3A:9(c). Thieman does not contend
that the warrant was insufficient to charge him with a violation
of Code § 18.2-266. He contends that by charging "SUBSEQUENT
OFFENSE," the warrant charged and only gave him notice of a
second offense DUI. Thus, the question Thieman raises does not
allege a "defect" in the warrant but raises an issue concerning
the scope of the charge. Thus, we hold that Rule 3A:9(b)(1) and
(c) did not require that Thieman raise the issue seven days
before trial.



                             - 3 -
     Code § 18.2-270 2 provides for an enhanced penalty for repeat

offenders and states in pertinent part:

          Any person convicted of a third offense or
          subsequent offense committed within ten
          years of an offense under § 18.2-266 shall
          be punishable by a fine of not less than
          $500 nor more than $2,500 and by confinement
          in jail for not less than two months nor
          more than one year.

(Emphasis added).

     An accused has a right to be clearly informed of the charge

against him.   See U.S. Const. amend. VI; Va. Const. art. I, § 8.

Rule 3A:4 requires that a warrant:   "(i) state the name of the

accused . . . , (ii) describe the offense charged and state

whether the offense is a violation of state, county, city or

town law, and (iii) be signed by the magistrate or the

law-enforcement officer, as the case may be."   In describing the

offense charged, the "description must comply with Rule 3A:6(a),

which provides that an indictment must give an accused notice of

the nature and character of the offense charged against him."

Williams v. Commonwealth, 5 Va. App. 514, 516, 365 S.E.2d 340,

341 (1988) (citing Greenwalt v. Commonwealth, 224 Va. 498, 501,

297 S.E.2d 709, 710-11 (1982)).   It is not necessary that the

warrant track the identical words of the statute.   See


     2
       At the time of the violation, Code § 18.2-270 provided
that a third or subsequent offense was a Class 1 misdemeanor.
The statute, however, was amended in 1999 to provide that a
third offense is a Class 6 felony.


                             - 4 -
Livingston v. Commonwealth, 184 Va. 830, 839, 36 S.E.2d 561, 566

(1946) (construing notice requirements for indictments).

     The language in the warrant charging Thieman with driving

while under the influence of intoxicants, "SUBSEQUENT OFFENSE,"

in violation of Code § 18.2-266 was sufficient to give Thieman

notice that he was being prosecuted for a third offense.

Thieman argues that the term "subsequent logically applies to a

second offense" and does not "denote or identify a third

offense."   We disagree.

     Code § 18.2-266 provides for an enhanced punishment for a

second offense and further provides for a more severe punishment

for a "third offense or subsequent offense."   Under the statute

"third offense or subsequent offense" are treated the same.

Moreover, prior to trial, the Commonwealth's attorney clearly

notified Thieman that he was being prosecuted for a "third

offense" DUI.   Although Thieman contended that "SUBSEQUENT

OFFENSE" charged only a second offense, he did not otherwise

object to the form or nature of the charge; he did not request a

bill of particulars to clarify that the "subsequent" offense was

a third offense; once informed by the Commonwealth's attorney

that he was being prosecuted for a third offense, Thieman did

not request a continuance to prepare for trial on a charge

different from the one charged.   See Mueller v. Commonwealth, 15

Va. App. 649, 652-53, 426 S.E.2d 339, 341 (1993) (stating that


                             - 5 -
defendant could have requested a bill of particulars where the

indictment referred only to a code section and did not specify a

particular subsection and where the judgment could support a

conviction under more than one section).   Thieman has failed to

show that the language of the warrant deprived him of sufficient

notice of the nature and character of the charge against him and

that, as a result of the insufficient notice, he was unable to

present an adequate defense.    See generally Livingston, 184 Va.

at 839, 36 S.E.2d at 566.

     In support of his claim that the warrant only charged and

gave him notice of a "second" DUI offense, Thieman further

argues that the general district court only sentenced and

punished him as having committed a second offense and that the

punishment is not consistent with the punishment for a "third

offense or subsequent offense."    Thieman did not contend in the

trial court, and thus cannot contend here, that a conviction in

the general district court for a second offense was an acquittal

of a "third offense or subsequent offense" which would bar his

being retried in circuit court for "third offense or subsequent

offense" based on the principles of res judicata and former

jeopardy.   See Buck v. City of Danville, 213 Va. 387, 388, 192

S.E.2d 758, 759 (1972) (holding that when a defendant is put in

jeopardy for an offense in general district court, a conviction




                               - 6 -
there for a lesser-included offense is tantamount to an

acquittal of the greater offense).

       First, the punishment imposed for a conviction in general

district court, whether it be within the statutory limit or in

excess thereof does not control or define the offense for which

an accused is convicted.   The warrant in general district court

specified "guilty as charged."   The warrant charged DUI,

"SUBSEQUENT OFFENSE" in violation of Code § 18.2-266, which is

sufficiently broad to charge a violation of third offense.

       Second, the fine and jail sentence imposed in general

district court were within the range provided by Code § 18.2-266

for either a second or "third offense or subsequent offense"

DUI.   Admittedly, the general district court purported to revoke

Thieman's operator's privileges for a period of three years,

which would have been consistent with the mandatory period of

revocation as provided by Code § 18.2-271(B) for a second

offense DUI, and inconsistent with the indefinite license

suspension for a "third or subsequent" offense as provided by

Code §§ 18.2-271(C) and 46.2-391(B).   However, we do not find

the fact that the general district court judge revoked Thieman's

license for three years persuasive or controlling that the

"subsequent offense" was only a second offense.   Furthermore,

regardless of the period of suspension imposed by the general

district court, Code § 46.2-391 provides that the Commissioner


                              - 7 -
of the Division of Motor Vehicles "shall" revoke an operator's

license indefinitely for a "third or subsequent" offense and the

person shall not be entitled to petition for reinstatement for a

period of ten years.   Thus, based on Code § 46.2-391(B) the

records of the Division of Motor Vehicles would have required

that the Commissioner revoke Thieman's license indefinitely and

not permit application for relicensing for ten years.

     But, most important, the nature of the charge and the proof

in the case as to whether the offense is a second or "third or

subsequent" offense control.    The charge of "SUBSEQUENT OFFENSE"

DUI in violation of Code § 18.2-266 and the pretrial notice from

the Commonwealth's attorney that the prosecution was for third

offense were sufficient to notify Thieman that the charge

against him was a "third offense or subsequent offense."

     Accordingly, Thieman's conviction is affirmed.

                                                           Affirmed.




                               - 8 -
Willis, J., dissenting.

     Code § 18.2-270, as in force at the time of Thieman's

conviction, provided punishment for violation of Code

§ 18.2-266, which proscribes operating a motor vehicle while

under the influence of intoxicants.

     Code § 18.2-270 further provided enhanced ranges of

punishment for "a second offense," depending upon the

circumstances under which that second offense was committed.

     Code § 18.2-270 provided a yet further enhanced range of

punishment for "a third offense or subsequent offense committed

within ten years of an offense under § 18.2-266."

     The warrant under which Thieman was convicted alleged a

violation of Code § 18.2-266.   At the conclusion of the

specification of the charge were the words "subsequent offense."

The majority holds that this additional specification

sufficiently charged a third or subsequent offense within ten

years.   I disagree.

     "Subsequent" is a comparative term.    It cannot be employed

without a referent.    To be subsequent, an item must follow some

other specified thing.    The specification of the referent may be

direct or by inference, but to describe an item accurately as

"subsequent," the referent prior item must be identified.

     The term "third offense or subsequent offense" used in the

statute plainly refers to a third offense or an offense


                              - 9 -
subsequent to a third offense.   Any other construction would

render the term "subsequent" meaningless.   To hold, as the

majority does, that the two terms are synonymous renders the

statute redundant and affords no meaning to the term "subsequent

offense."

     The warrant in this case charged Thieman with a violation

of Code § 18.2-266.   Appended to that specification were the

words "subsequent offense."   This can mean only an offense

subsequent to a violation of Code § 18.2-266.   Thus, the warrant

specified no more than a second offense.

     For the foregoing reasons, I respectfully dissent.   I would

reverse Thieman's conviction and remand the case to the trial

court for trial on the charge specified, if the Commonwealth be

so advised.




                              - 10 -
