                   COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia


RICHARD BAYLOR MORIARTY
                                           MEMORANDUM OPINION * BY
v.   Record No. 1444-99-4                   JUDGE ROBERT P. FRANK
                                                 MAY 16, 2000
COMMONWEALTH OF VIRGINIA,
 DEPARTMENT OF MOTOR VEHICLES


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                      Joanne F. Alper, Judge

          Steven L. Duckett, Jr. (MacDowell &
          Associates, P.C., on brief), for appellant.

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


     Richard Baylor Moriarty (appellant) appeals the circuit

court’s denial of his appeal from the determination by the

Commissioner of the Department of Motor Vehicles that he was an

habitual offender under Code § 46.2-351.   Appellant contends that

the circuit court erred in admitting the record of a prior

conviction, which appellant alleges violated Code § 19.2-307. 1      We

disagree and affirm the circuit court's ruling.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       Section 19.2-307 sets forth the required contents of a
criminal judgment order as follows: "The judgment order shall
set forth the plea, the verdict or findings and the adjudication
and sentence, whether or not the case was tried by jury, and if
not, whether the consent of the accused was concurred in by the
                             I.   BACKGROUND

     The Commissioner's determination that appellant was an

habitual offender was based upon three convictions for driving

while under the influence.    Appellant challenges only one of the

predicate offenses, a conviction from the Arlington County General

District Court dated March 31, 1998.      For the March 31, 1998

conviction, the general district court judge checked the box on

the printed warrant form showing that appellant pled guilty;

sentenced appellant to twelve months in jail, 10 months of which

was suspended; and fined appellant $1,500, $1,000 of which was

suspended.   The general district court judge also suspended

appellant's license indefinitely.     However, on the form, there was

no finding of guilt.

     In the instant case, a transcript from the Department of

Motor Vehicles that showed that appellant was convicted of driving

while under the influence, third offense, on March 31, 1998 in

Arlington County General District Court was introduced and

received as Commonwealth's Exhibit Number One without objection.




court and the attorney for the Commonwealth. If the accused is
found not guilty, or for any other reason is entitled to be
discharged, judgment shall be entered accordingly. If an
accused is tried at one time for two or more offenses, the court
may enter one judgment order respecting all such offenses. The
final judgment order shall be entered on a form promulgated by
the Supreme Court." Code § 19.2-307.

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                             II.    ANALYSIS

       Appellant argues that because there was no specific finding

of guilt, the March 31, 1998 conviction cannot be a predicate

offense for an habitual offender determination.     We disagree.

       Appellant relies upon Bellinger v. Commonwealth, 23 Va. App.

471, 477 S.E.2d 779 (1996), and McBride v. Commonwealth, 24 Va.

App. 30, 480 S.E.2d 126 (1997).      We find that Bellinger and

McBride are inapposite.

       In Bellinger, the defendant was tried for voluntary

manslaughter.    See Bellinger, 23 Va. App. at 473, 477 S.E.2d at

779.   The Commonwealth introduced three disposition records for

bad check offenses in the sentencing phase of the trial.     See id.

On each of the warrant forms for the bad check offenses, "NO. JAIL

19.2-160," was stamped at the place designated for "'final

disposition.'"    Id. at 474, 477 S.E.2d at 780.   The record

contained "no other notation of disposition and no formal order of

conviction."    Id.   We found that the documents submitted as orders

of conviction for the bad check offenses "failed, in every

respect, to satisfy" the requirement of Code § 19.2-307.     Id. at

474-75, 477 S.E.2d at 780.

       In McBride, the defendant appealed his conviction of second

offense of driving while under the influence in violation of Code

§ 18.2-266.    See McBride, 24 Va. App. at 32, 480 S.E.2d at 127.

The issue on appeal was whether the Commonwealth proved the first

offense.   See id. at 33, 480 S.E.2d at 127.    The Commonwealth

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attempted to prove the prior offense by offering a certified copy

of a record from Roanoke City General District Court.   See id. at

32, 480 S.E.2d at 127.   The record was a warrant of arrest

charging the defendant with driving under the influence.    See id.

The second page of the warrant contained a printed form that was

signed by the trial judge and indicated appellant had pled not

guilty.   See id.   It also indicated that appellant was sentenced

to thirty days in jail, fined $300, and received a suspension of

his operator's license for six months.   See id.   However, the form

did not indicate that the appellant was found guilty of the

charge.   See id. at 32-33, 480 S.E.2d at 127.   We held the

evidence was insufficient to establish a prior conviction because

the warrant did not indicate that appellant was convicted under

Code § 18.2-266, and the Commonwealth offered no other competent

evidence.   See id. at 34, 480 S.E.2d at 128.

     However, this case differs from Bellinger and McBride in that

the transcript of appellant's driving record from the Department

of Motor Vehicles creates a prima facie case of the conviction.

The Commonwealth in Bellinger and McBride had no such prima facie

presumption.

     Code § 46.2-351, in effect at the time of appellant's

habitual offender hearing, stated:

            The transcript or abstract of convictions
            which bring the person within the definition
            of an habitual offender may be admitted as
            evidence as provided in § 46.2-215 and shall
            be prima facie evidence that the person named

                                - 4 -
          therein was duly convicted, or held not
          innocent in the case of a juvenile, by the
          court wherein the conviction or holding was
          made, of each offense shown by the transcript
          or abstract. If the person denies any of the
          facts as stated therein, he shall have the
          burden of proving that the fact is untrue.

     We find that Dicker v. Commonwealth, 22 Va. App. 658, 472

S.E.2d 655 (1996), controls this case.       As in the instant case,

the Commonwealth submitted the transcript from the Department of

Motor Vehicles showing the conviction in question.      See Dicker, 22

Va. App. at 660, 472 S.E.2d at 656.    "In rebuttal, Dicker

introduced a certified copy of a pre-printed arrest warrant, which

contained the April 19, 1994 conviction order."      Id. at 660, 472

S.E.2d at 656-57.   He argued that the order was void because the

district court failed to check the appropriate boxes indicating

his plea and whether he was found guilty, not guilty, or guilty of

a lesser included offense.   See id.   "The trial court ruled that

Dicker had failed to rebut the Commonwealth's prima facie proof of

the requisite convictions . . . ."     Id.    We upheld the habitual

offender determination and agreed with the trial court that the

appellant had not rebutted the statutory presumption.      See id. at

662, 472 S.E.2d at 657.   We cited Moffitt v. Commonwealth, 16 Va.

App. 983, 434 S.E.2d 684 (1993), in which we held:

          Habitual offender proceedings are civil in
          nature, not criminal. Therefore, the
          Commonwealth has the burden of proving by a
          preponderance of the evidence that the
          respondent had obtained the three requisite
          driving convictions to be an habitual
          offender . . . . [T]he Commonwealth

                               - 5 -
          established a prima facie presumption that it
          was a valid conviction by introducing the
          certified DMV transcript . . . . The prima
          facie presumption that the convictions were
          valid necessarily encompasses that the
          elements of the charges were proven . . . .
          Once the Commonwealth has established a prima
          facie case, it is entitled to judgment,
          unless the respondent goes forward with
          evidence that refutes an element of the
          Commonwealth's case or rebuts the prima facie
          presumption.

Id. at 986, 434 S.E.2d at 687 (citations omitted).

     Dicker held that, while the April 19, 1994 order failed in

several respects to corroborate the transcript from the Department

of Motor Vehicles, it did not contradict the transcript.    See

Dicker, 22 Va. App. at 662, 472 S.E.2d at 657.

     On appeal, we view the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom.   See Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975).   The judgment of a trial

court sitting without a jury will not be set aside unless plainly

wrong or without evidence to support it.    See Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)

(citations omitted).

     In this case, appellant did not rebut the prima facie case.

The Department of Motor Vehicles transcript was not inconsistent

with the actual warrant.   Unlike McBride, appellant pled guilty to

the charge of driving while under the influence.   "'[A] voluntary

and intelligent plea of guilty by an accused is, in reality, a


                               - 6 -
self-supplied conviction authorizing imposition of the punishment

fixed by law.'"   Dowell v. Commonwealth, 12 Va. App. 1145, 1148,

408 S.E.2d 263, 265 (1991) (citations omitted), aff'd on rehearing

en banc, 14 Va. App. 58, 414 S.E.2d 440 (1992).   "'A plea of

guilty that is voluntarily and intelligently made by an accused is

a conviction and nothing is left but the imposition of the

prescribed punishment.'"   Id. (quoting Miracle v. Peyton, 211 Va.

123, 126, 176 S.E.2d 339, 340 (1970)).

     Since the warrant form noted appellant's plea of guilty, it

can be inferred that the appellant was convicted of the offense

even without such a finding by the district court.   The district

court's sentence and indefinite suspension of the appellant's

operator's license is further consistent with conviction of

driving while under the influence, third or subsequent offense. 2

     For these reasons, we affirm the ruling of the circuit court.



                                                         Affirmed.




     2
       Under Code § 18.2-271(c) and Code § 46.2-391(b), a
conviction of driving while under the influence, third or
subsequent offense, results in a suspension of the defendant's
operator's license for an indefinite period of time. See Code
§§ 18.2-271(c) and 46.2-391(b).

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