                            COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank,
          Humphreys, Clements, Felton and Kelsey
Argued at Richmond, Virginia


GEORGE HALCOTT NORMAN, III
                                                                 OPINION BY
v.     Record No. 1237-02-3                             JUDGE JEAN HARRISON CLEMENTS
                                                               NOVEMBER 4, 2003
COMMONWEALTH OF VIRGINIA


                              UPON A REHEARING EN BANC

                FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                           B. A. Davis, III, Judge Designate

              Jon Ian Davey (Law Office of Jon I. Davey, on brief), for appellant.

              John H. McLees, Senior Assistant Attorney General (Jerry W.
              Kilgore, Attorney General; H. Elizabeth Shaffer, Assistant Attorney
              General, on brief), for appellee.


       George Halcott Norman, III, was convicted in a bench trial of driving as an habitual

offender, second or subsequent offense, in violation of Code § 46.2-357.1            On appeal, he

contends the trial court erred in determining he was an habitual offender because his driving

privilege had been fully restored prior to his arrest on the charge. On May 6, 2003, a divided

panel of this Court affirmed Norman's conviction, holding that the evidence was sufficient to

establish Norman's status as an habitual offender because it demonstrated his driving privilege

had only been conditionally, rather than fully, restored prior to the offense.          Norman v.

Commonwealth, 40 Va. App. 496, 579 S.E.2d 699 (2003). On June 17, 2003, we granted



       1
          Norman was also convicted of driving under the influence of alcohol, second offense
within five years, possessing a firearm as a convicted felon, and brandishing a firearm. Norman
pled guilty to these charges and does not raise any issues as to these convictions on appeal.
Norman's petition for a rehearing en banc, stayed the mandate of the panel decision, and

reinstated the appeal. Upon rehearing en banc, we reverse the conviction and dismiss the

indictment.

                                        I. BACKGROUND

       On August 14, 2001, Deputy Sheriff H.L. Gatewood, of the Pittsylvania County Sheriff's

Office, spotted Norman's car travelling east on Route 57. Having received a notice from dispatch to

be on the lookout for that car, Gatewood stopped the car. When he approached the car, Gatewood

asked Norman for identification, but Norman was unable to produce his driver's license. Norman

told Gatewood he had "a license at home and it was a piece of paper issued by the Court."

Gatewood observed that Norman, who was the sole occupant of the car, had a gun in the car. He

further observed that Norman was "severely intoxicated." Gatewood arrested Norman for drunk

driving and brandishing a firearm.

       Deputy Gatewood checked Norman's social security number through his dispatcher and was

told that Norman's driver's license was either "suspended or revoked." He then proceeded to

Norman's home to obtain Norman's license. Norman's girlfriend gave Gatewood a "green sheet of

paper" stating that Norman's privilege to drive was restricted pursuant to a May 4, 2001 court order.



       When he arrived at the police station, Deputy Gatewood ran Norman's criminal history and

learned that he was a convicted felon. He also ran Norman's driver's license and found that he was

indeed driving on a restricted license. Norman was then additionally charged with driving as an

habitual offender, second or subsequent offense, and possessing a firearm as a convicted felon.

       At trial, the Commonwealth and Norman introduced several documents pertaining to the

habitual offender charge, which can be summarized as follows:




                                                -2-
       1. An October 13, 1989 order from the Circuit Court of Pittsylvania County, entering

judgment on Norman's guilty plea of operating a motor vehicle after having been declared an

habitual offender. The order directed that Norman be sentenced on the conviction to two years

in prison, but suspended one year of the sentence on the conditions of good behavior and

supervised probation.

       2.   A December 20, 1999 order from the Circuit Court of Pittsylvania County on

Norman's petition "for restoration of his privilege to operate a motor vehicle in Virginia," which

had been suspended since April 12, 1984. In pertinent part, the order directed as follows:

                       Accordingly, the prayer of the petition should be granted,
               subject to the conditions set forth below . . ., it is ORDERED that
               pursuant to § 46.2-360 of the Virginia Code Annotated the
               privileges to operate a motor vehicle in the Commonwealth of
               Virginia should be restored and they are hereby restored to George
               Halcott Norman, III.

                       It is further ORDERED that this is not a license or privilege
               to drive in itself; that the petitioner shall present himself and this
               Order to the Department of Motor Vehicles for such administrative
               proceedings and payment of fees and costs as may be required, and
               further, that the petitioner is referred to Dan River ASAP for
               monitoring and supervision for twelve (12) months from the date
               of this Order; that the petitioner shall not possess or use alcohol,
               alcoholic beverages or drugs (other than bonafide prescription
               drugs); that should the petitioner incur any alcohol or drug related
               offense during the period of supervision as set forth herein, the
               Court may in its discretion issue process to the petitioner to show
               cause why his privilege to drive should not be suspended
               permanently.

                      The object of this proceeding having been accomplished, it
               is ORDERED that the same be, and it is hereby, removed from the
               docket and place[d] among the ended of cases.

       3. An order dated May 4, 2001, from the Circuit Court of Pittsylvania County finding

that Norman "violated the terms of the Court's Order of December 20, 1999," and granting

Norman a restricted license to drive to work and to medical providers on the condition that he be



                                               -3-
monitored by Dan River ASAP for twelve months. The order directed that "should [Norman]

have any violations of law during the period of supervision," his license would be revoked.

       4. An order dated May 7, 2001, signed by Norman and issued by the Department of

Motor Vehicles, stating that Norman, having "been adjudicated/determined to be an habitual

offender," sought "a restricted license after having been declared an habitual offender or having

had [his] license revoked pursuant to Virginia Code § 46.2-391(B) three years or more prior to

this date," and giving Norman a one-year restricted license, pursuant to the May 4, 2001 court

order, authorizing him to drive to and from work, to and from the Dan River ASAP office, and

when medically necessary.

       Norman argued at trial that, despite the May 4, 2001 order restricting his privilege to drive,

the December 20, 1999 order had fully restored his privilege to drive and, thus, he could no longer

be considered an habitual offender for the purpose of the charge at issue. The Commonwealth

responded that the December 20, 1999 order did not fully restore Norman's privilege to drive, but

only restored it on a conditional basis. The Commonwealth further contended that the conditional

restoration was revoked by the circuit court when Norman violated the terms of the December 20,

1999 order and was issued a restricted license on May 7, 2001.

       The trial court agreed with the Commonwealth, finding that, by signing the Department of

Motor Vehicles order of May 7, 2001, Norman acknowledged that his status as an habitual offender

remained in effect, despite the purported restoration of his driving privilege in the December 20,

1999 order. The court then found him guilty of the habitual offender charge and sentenced him to

serve two years in prison on that conviction.

                                          II. ANALYSIS

       The dispositive issue in this case is whether the trial court was correct in determining that

the December 20, 1999 order purportedly restoring Norman's privilege to drive did not terminate

                                                -4-
Norman's status as an habitual offender. If so, the evidence presented by the Commonwealth was

sufficient as a matter of law to support Norman's conviction for driving as an habitual offender,

second or subsequent offense, in violation of Code § 46.2-357. If, however, that order terminated

Norman's status as an habitual offender, the evidence was insufficient as a matter of law to show

that Norman was an habitual offender at the time of the charged offense.

       Norman contends, as he did below, that the circuit court fully restored his driving privilege

in its December 20, 1999 order. Therefore, he concludes, he was no longer an habitual offender at

the time of the offense at issue and the trial court erred in finding the evidence sufficient to convict

him for operating a motor vehicle after having been declared an habitual offender.

       The Commonwealth contends that, because the December 20, 1999 order provided for the

conditional, rather than full, restoration of Norman's driving privilege, that order did not terminate

Norman's status as an habitual offender. The Commonwealth argues that, as the trial court found,

Norman's signature on the May 7, 2001 order proves that Norman knew his status as an habitual

offender remained in effect after entry of the December 20, 1999 order. Hence, the Commonwealth

concludes, the evidence established that Norman was an habitual offender at the time of the charged

offense and was thus sufficient to sustain his conviction.

       When the sufficiency of the evidence is challenged on appeal, we review the evidence "in

the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1987).

We will not disturb the conviction unless it is plainly wrong or unsupported by the evidence.

Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337 S.E.2d 897, 898 (1985).

       Code § 46.2-357(A) provides, in pertinent part, that "[i]t shall be unlawful for any person

determined or adjudicated an habitual offender to drive any motor vehicle . . . on the highways of

the Commonwealth while the revocation of the person's driving privilege remains in effect."

                                                 -5-
Therefore, to sustain Norman's "conviction for driving a motor vehicle in violation of that

statute," the Commonwealth had to prove that, at the time of the alleged offense, Norman was

determined or adjudicated an habitual offender and his privilege to drive was revoked. Rose v.

Commonwealth, 265 Va. 430, 434, 578 S.E.2d 758, 760 (2003).

        It is well settled that,

                once a person is declared an habitual offender by order of a trial
                court, he retains that status and loses his driving privilege for so
                long as the order is effective. Thus, . . . the habitual offender status
                of the person so declared continues until that person successfully
                petitions the court to have that status removed and his privilege to
                drive restored under one of the code sections permitting such
                petitions.

Varga v. Commonwealth, 260 Va. 547, 551, 536 S.E.2d 711, 714 (2000).

        Code § 46.2-360(1) allows a court to remove an individual's status as an habitual offender

and to restore his or her privilege to drive. That statute permits any person declared an habitual

offender to petition the court for restoration of his or her driving privilege. It further provides

that,

                [o]n such petition, and for good cause shown, the court may, in its
                discretion, restore to the person the privilege to drive a motor
                vehicle in the Commonwealth on whatever conditions the court
                may prescribe, . . . if the court is satisfied from the evidence
                presented that: (i) at the time of the previous convictions, the
                petitioner was addicted to or psychologically dependent on the use
                of alcohol or other drugs; (ii) at the time of the hearing on the
                petition, he is no longer addicted to or psychologically dependent
                on the use of alcohol or such other drug; and (iii) the person does
                not constitute a threat to the safety and welfare of himself or others
                with regard to the driving of a motor vehicle. . . . The court may,
                in lieu of restoring the person's privilege to drive, authorize the
                issuance of a restricted license for a period not to exceed five
                years . . . . Any violations of the restrictions shall be reported to
                the court, and the court may then modify the restrictions or revoke
                the license.

Code § 46.2-360(1) (emphases added).



                                                 -6-
       Thus, in responding to an habitual offender's petition for restoration of his or her

privilege to drive, the court may take one of three actions under Code § 46.2-360(1): (1) deny

the petition; (2) restore the person's privilege to drive, with or without conditions enforceable by

the court; or (3) authorize the issuance of a restricted license. The statute draws no distinction

between a "full restoration" and a "conditional restoration." Hence, an individual's privilege to

drive is either restored or not restored under Code § 46.2-360(1).

       Here, as reflected in the circuit court's December 20, 1999 order, Norman petitioned the

court "for restoration of his privilege to operate a motor vehicle in Virginia." Finding Norman's

petition to restore his privilege to drive "should be granted, subject to the conditions set forth" in

the order, the circuit court ordered that, "pursuant to [Code] § 46.2-360[,] . . . the privileges to

operate a motor vehicle in the Commonwealth of Virginia should be restored and they are hereby

restored to" Norman. The circuit court further ordered that Norman (1) report to the Department

of Motor Vehicles before driving "for such administrative proceedings and payment[s] . . . as

may be required," (2) be monitored and supervised by "Dan River ASAP" for one year, and (3)

"not possess or use alcohol . . . or drugs." The court also stated in its order that, should Norman

"incur any alcohol or drug related offense during the period of supervision as set forth herein, the

Court may in its discretion issue process to the petitioner to show cause why his privilege to

drive should not be suspended permanently."2

       Citing Travis v. Commonwealth, 20 Va. App. 410, 415, 457 S.E.2d 420, 422 (1995),

Norman correctly acknowledges in his appellate brief that one who has been granted only a




       2
        Since the issue is not before us, we need not consider here the authority of the trial court
to "permanently" suspend the privilege to drive.

                                                -7-
restricted license retains his habitual offender status.3 It is undisputed in this case, however, that

the circuit court did not grant Norman a restricted license in its December 20, 1999 order, but

rather a "restoration" of his privilege to drive.4 Accordingly, we conclude that, in entering the

December 20, 1999 order, the circuit court restored Norman's privilege to drive. Based on that

order, the Department of Motor Vehicles was authorized to issue Norman a full, unrestricted

operator's license. The fact that the court prescribed certain conditions in restoring Norman's

privilege to drive and, thus, retained authority to enforce those conditions,5 does not alter the

conclusion that Norman's privilege to drive was restored. Indeed, given that the court cannot

logically suspend what does not exist, the circuit court's admonition that it might suspend

Norman's "privilege to drive" permanently if he failed to comply with the court's conditions only

buttresses the conclusion that the court intended to restore Norman's driving privilege on

December 20, 1999.

       We further conclude that the trial court's reliance in its resolution of this case on

Norman's signature on the Department of Motor Vehicles order of May 7, 2001, as proof that

Norman acknowledged that his status as an habitual offender remained in effect, is misplaced.

Norman's mistaken belief that he was an habitual offender on May 7, 2001, is not dispositive of



       3
          Indeed, on a petition for restoration of driving privileges under Code § 46.2-360(1), a
trial judge wishing to maintain the petitioner's habitual offender status, without denying the
petition outright, may authorize the issuance of a restricted license.
       4
           The Commonwealth concedes as much in its appellate brief.
       5
           Plainly, a court has the power to impose an appropriate remedy for a violation of a
condition placed by the court on a restored privilege to drive under Code § 46.2-360(1). See,
e.g., Branch v. Branch, 144 Va. 244, 251, 132 S.E. 303, 305 (1926) ("Courts are invested with
the power and charged with the duty of enforcing their [orders]."); Ange v. York/Poquoson Dep't
of Soc. Servs., 37 Va. App. 615, 624, 560 S.E.2d 474, 478 (2002) ("A court's ability to punish a
litigant for noncompliance with its orders is 'essential to the proper administration of the law, to
enable courts to enforce their orders, judgments and decrees.'" (quoting Steinberg v. Steinberg,
21 Va. App. 42, 46, 461 S.E.2d 421, 423 (1995))).
                                                -8-
the issue of whether the circuit court's December 20, 1999 order terminated his status as an

habitual offender, the resolution of which is a matter of law. Cf. Rose, 265 Va. at 435-36, 578

S.E.2d at 761 (holding that, in light of the "incomplete" order that failed to direct defendant not

to drive on the Commonwealth's highways, as required by statute, proof of defendant's awareness




                                               -9-
that he was an habitual offender and of his mistaken belief that his privilege to drive had been

revoked was not sufficient to prove that the revocation of defendant's privilege to drive remained

in effect at the time of the alleged offense).

        We hold, therefore, that the circuit court's order of December 20, 1999 terminated

Norman's status as an habitual offender on that date. See Varga, 260 Va. at 552, 536 S.E.2d at

714 (holding that one's habitual offender status "remains in force until that person actually has

his privilege to drive restored"). We also hold that, because the record contains no evidence that

a court declared Norman an habitual offender subsequent to that date, the Commonwealth failed

to show that Norman was an habitual offender when he drove on August 14, 2001, and the trial

court erred in finding the evidence sufficient to sustain his conviction for driving as an habitual

offender, second or subsequent offense.

        Accordingly, we reverse Norman's conviction and dismiss the indictment.

                                                                          Reversed and dismissed.




                                                 - 10 -
Humphreys, J., with whom Bumgardner, J., joins, dissenting.

       Because I would find the evidence presented below sufficient to establish Norman's

status as an habitual offender, I dissent from the majority's analysis and conclusion.

       As the majority notes, Code § 46.2-357(A) defines the felony offense of driving after

being declared an habitual offender. "In pertinent part, Code § 46.2-357(A) states that '[i]t shall

be unlawful for any person to drive any motor vehicle . . . on the highways of the

Commonwealth while the revocation of the person's driving privilege remains in effect.'" Varga

v. Commonwealth, 260 Va. 547, 550, 536 S.E.2d 711, 713 (2000) (quoting Code § 46.2-357(A)).

       Code § 46.2-360(1) permits a court to remove an individual's status as an habitual

offender by permitting the individual so declared, under certain circumstances, to petition the

court for restoration of his or her driving privilege. Code § 46.2-360(1) states as follows, in

relevant part:

                 Any person who has been found to be an habitual offender . . . may
                 petition the court in which he was found to be an habitual offender,
                 or the circuit court in the political subdivision in which he then
                 resides to:

                 1. Restore his privilege to drive a motor vehicle in the
                 Commonwealth, provided that five years have elapsed from the
                 date of the final order of a court entered under this article, or if no
                 such order was entered then the notice of the determination by the
                 Commissioner. On such petition, and for good cause shown, the
                 court may, in its discretion, restore to the person the privilege to
                 drive a motor vehicle in the Commonwealth on whatever
                 conditions the court may prescribe subject to other provisions of
                 law relating to the issuance of driver's licenses, if the court is
                 satisfied from the evidence presented that: (i) at the time of the
                 previous convictions, the petitioner was addicted to or
                 psychologically dependent on the use of alcohol or other drugs; (ii)
                 at the time of the hearing on the petition, he is no longer addicted
                 to or psychologically dependent on the use of alcohol or such other
                 drug; and (iii) the person does not constitute a threat to the safety
                 and welfare of himself or others with regard to the driving of a
                 motor vehicle. . . . The court may, in lieu of restoring the person's
                 privilege to drive, authorize the issuance of a restricted license for
                 a period not to exceed five years in accordance with the provisions
                                                 - 11 -
               of subsection E of § 18.2-271.1. The local Virginia Alcohol Safety
               Action Program shall during the term of the restricted license
               monitor the person's compliance with the terms of the restrictions
               imposed by the court. Any violation of the restrictions shall be
               reported to the court, and the court may then modify the
               restrictions or revoke the license.

(Emphases added).
      The majority recognizes that a "conditional restoration" is available pursuant to the terms

of the statute.   Nevertheless, the majority declares that this distinction is one without a

difference. In so holding, the majority ignores the term "conditions," as used in the statute, by

finding that any "restoration" of an individual's privilege to drive necessarily operates to remove

the individual's status as an habitual offender and fully "restores" their privilege to drive, despite

any statutorily permitted conditions imposed by the trial court.

       I would not so lightly cast aside the legislature's explicit use of the term "conditions."

See Shelor Motor Co. v. Miller, 261 Va. 473, 479, 544 S.E.2d 345, 348 (2001) ("When the

legislature has used words of a plain and definite meaning, courts cannot accord those words a

meaning that amounts to holding that the legislature did not mean what it actually expressed.");

see also Hubbard v. Henrico Ltd. Partnership, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998)

(noting the "settled principle of statutory construction that every part of a statute is presumed to

have some effect and no part will be considered meaningless unless absolutely necessary"). That

term, as defined in Black's Law Dictionary, presupposes:

               A future and uncertain event on which the existence or extent of an
               obligation or liability depends; an uncertain act or event that
               triggers or negates a duty to render a promised performance.

Black's Law Dictionary 288 (7th ed. 1999).

       Thus, although the trial court, in December of 1999, may have "restored" Norman's

privilege to drive, it did so only conditionally, as the majority recognizes is permitted pursuant to

Code § 46.2-360(1). Specifically, the trial court's order required Norman to "present himself and


                                                - 12 -
[the] Order to the Department of Motor Vehicles for such administrative proceedings and

payment of fees and costs as may be required," to present himself "to Dan River ASAP for

monitoring and supervision for twelve (12) months from the date of [the] Order," and to refrain

from possessing or using "alcohol, alcoholic beverages or drugs." The order further provided

that if Norman were to "incur any alcohol or drug related offense during the period of

supervision as set forth herein, the Court may in its discretion issue process to [Norman] to show

cause why his privilege to drive should not be suspended permanently."6 By restoring Norman's

privilege to drive, contingent upon his performance of these express conditions (whether positive

or negative), the trial court did not fully restore Norman's driving privilege as the majority

declares. Instead, the trial court expressly retained the authority to revoke the privilege if

Norman failed to comply with the conditions set forth in the order granting the conditional

restoration. Such a retention of authority is clearly permitted by the statute and simply cannot be

construed as a removal of Norman's status as an habitual offender, much less a mandate

declaring the order originally placing Norman in that status completely null and void. See

Varga, 260 Va. at 551, 536 S.E.2d at 714 ("Reading the habitual offender statutes in pari

materia, it is clear that once a person is declared an habitual offender by order of a trial court, he

retains that status and loses his driving privilege for so long as the order is effective. Thus,

unless the trial court specifically limits the duration of the effect of the order . . . the habitual

offender status of the person so declared continues until that person successfully petitions the

court to have that status removed and his privilege to drive restored under one of the code

sections permitting such petitions.").




       6
          I agree with the majority's conclusion that because the issue is not before us, we need
not here consider the trial court's authority to "permanently" suspend Norman's privilege to drive.
                                                 - 13 -
       Further, the majority's implicit contention that the only way a trial court may retain an

individual's status as an habitual offender is to issue a restricted license, belies the plain language

of the statute. As the majority states, under Code § 46.2-360(1), the trial court may restore an

individual's privilege to drive, either with or without conditions, or it may issue the individual a

restricted license. A restricted license, issued "in accordance with the provisions of subsection E

of § 18.2-271.1," permits an individual to drive only for certain specified purposes. See Code

§§ 46.2-360(1) and 18.2-271.1.       However, a restored license with conditions, restores an

individual's privilege to drive for any lawful purpose, but - by its very terms - makes the full

restoration of that individual's driving privilege contingent upon the court ordered conditions.

As stated above, the record demonstrates that this is what has occurred in the case at bar. I

believe that such a scenario is clearly permitted by the plain language of the statute.

       Moreover, Norman was aware that he retained habitual offender status when the circuit

court found that he violated the provisions of the December 20, 1999 order and, by its order of

May 4, 2001, revoked his driving privilege, granting him instead restricted driving privilege.

Indeed, when he signed the resulting Restricted Driver's License Order, on May 7, 2001, Norman

acknowledged      that   he   was     granted    the     restricted   license   "after   having   been

adjudicated/determined to be an habitual offender." Yet, Norman never appealed and/or took

issue with the clear import of these orders until his trial on the charge at issue, which took place

in March of 2002 - nearly nine months later. See Morgan v. Commonwealth, 28 Va. App. 645,

507 S.E.2d 665 (1998) (holding, in the context of an habitual offender adjudication, that where a

defendant has knowledge of an underlying order, never appeals the order, and subsequently

violates the order, he cannot attack the underlying order in a subsequent proceeding).




                                                - 14 -
        In light of the above, I would hold that the trial court properly found the evidence sufficient

to establish Norman's status as an habitual offender at the time of the offense, and I would, thus,

affirm the judgment of the trial court.




                                                - 15 -
                                                                      Tuesday                4th

                November, 2003.


George Halcott Norman, III,                                                                   Appellant,

against              Record No. 1237-02-3
                     Circuit Court Nos. CR01000818-00, CR01000819-00,
                      CR01000831-00 and CR01000832-00

Commonwealth of Virginia,                                                                     Appellee.


                                           Upon a Rehearing En Banc

    Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank,
                          Humphreys, Clements, Felton and Kelsey


         For reasons stated in writing and filed with the record, the Court is of opinion that there is

error in that part of the judgment pertaining to appellant's conviction of driving as an habitual

offender, second or subsequent offense (CR01000832-00). Accordingly, the opinion previously

rendered by a panel of this Court on May 6, 2003 is withdrawn and the mandate entered on that

date is vacated. The judgment of the trial court with regard to that conviction is reversed and

annulled and the indictment is dismissed.

         Appellant did not challenge on appeal those parts of the judgment pertaining to

appellant's convictions of driving under the influence of alcohol, second offense within five

years      (CR01000818-00), brandish a firearm (CR01000819-00), and possessing a firearm as a

convicted felon (CR01000831-00). Accordingly, those convictions are not disturbed by this

order.




                                                 - 16 -
       It is ordered that the trial court allow counsel for the appellant a total fee of $925 for

services rendered the appellant on this appeal, in addition to counsel's costs and necessary direct

out-of-pocket expenses.

       This order shall be certified to the trial court.


                                           A Copy,

                                                    Teste:

                                                                    Cynthia L. McCoy, Clerk

                                                    By:

                                                                    Deputy Clerk




                                                 - 17 -
                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia


GEORGE HALCOTT NORMAN, III
                                                                    OPINION BY
v.       Record No. 1237-02-3                               JUDGE ROBERT J. HUMPHREYS
                                                                    MAY 6, 2003
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                            B. A. Davis, III, Judge Designate

                Jon Ian Davey (Law Office of Jon I. Davey, on brief), for appellant.

                H. Elizabeth Shaffer, Assistant Attorney General (Jerry W. Kilgore,
                Attorney General, on brief), for appellee.


         George Halcott Norman, III appeals his conviction, after a bench trial, for driving as an

habitual offender, second or subsequent offense.7       Norman contends the trial court erred in

determining that he was an habitual offender because his driving privileges had been fully restored

prior to his arrest on the charge. For the reasons that follow, we affirm the judgment of the trial

court.

                                           I. Background

         On August 14, 2001, Deputy Sheriff H.L. Gatewood, of the Pittsylvania County Sheriff's

Department, spotted Norman's vehicle travelling east on Route 57. Because he had been given a

B.O.L. ("be on the lookout") message for that car by the dispatcher, Deputy Gatewood stopped the

car. When he approached the car, he observed that Norman was the sole occupant of the car. He



         7
         Norman was also convicted of driving under the influence of alcohol, second offense
within five years, possessing a firearm as a convicted felon and brandishing a firearm. Norman
pleaded guilty to these charges and does not raise any issues as to these convictions on appeal.
                                               - 18 -
asked Norman for identification, but Norman was unable to produce his driver's license. However,

he told Gatewood that he had "a license at home and it was a piece of paper issued by the Court."

Deputy Gatewood observed that Norman had a gun in the car, which was lying on the front

floorboard, with the barrel pointed toward the driver's side door. He further observed that Norman

was "severely intoxicated." Gatewood arrested Norman for drunk driving and brandishing a

firearm.

       Gatewood checked Norman's social security number through his dispatcher and was told

that Norman's driver's license was either "suspended or revoked." He then proceeded to Norman's

home to obtain Norman's license. Norman's girlfriend gave Deputy Gatewood a "green sheet of

paper," stating that Norman's privilege to drive was restricted pursuant to a May 4, 2001 court order.



       When he arrived at the police station, Deputy Gatewood ran Norman's criminal history and

learned that he was a convicted felon. He also ran Norman's driver's license and found that he was

indeed, driving on a restricted license. Norman was then additionally charged with driving as an

habitual offender, second or subsequent offense, and possessing a firearm as a convicted felon.

       At trial, the Commonwealth and Norman introduced several documents pertaining to the

habitual offender charge. The documents are summarized as follows:

               1. An October 13, 1989 order from the Circuit Court of
               Pittsylvania County, entering judgment on Norman's guilty plea of
               operating a motor vehicle after having been declared an habitual
               offender. The order directed that Norman be sentenced on the
               conviction to two years in prison, but suspended one year of the
               sentence on the conditions of good behavior and supervised
               probation.

               2. A December 20, 1999 order from the Circuit Court of
               Pittsylvania County on Norman's petition "for restoration of his
               privilege to operate a motor vehicle in Virginia," which had been
               suspended since April 12, 1984. The order directed as follows:

               Accordingly, the prayer of the petition should be granted, subject

                                                - 19 -
               to the conditions set forth below . . . it is ORDERED that pursuant
               to § 46.2-360 of the Virginia Code Annotated the privileges to
               operate a motor vehicle in the Commonwealth of Virginia should
               be restored and they are hereby restored to George Halcott
               Norman, III.

               It is further ORDERED that this is not a license or privilege to
               drive in itself; that . . . petitioner is referred to Dan River ASAP for
               monitoring and supervision for twelve (12) months from the date
               of this Order; that the petitioner shall not possess or use alcohol,
               alcoholic beverages or drugs . . . ; that should petitioner incur any
               alcohol or drug related offense during the period of supervision as
               set forth herein, the Court may in its discretion issue process to the
               petitioner to show cause why his privilege to drive should not be
               suspended permanently.

               The object of this proceeding having been accomplished, it is
               ORDERED that the same be, and it is hereby, removed from the
               docket and place[d] among the ended of cases.

               3. An order dated May 4, 2001, from the Circuit Court of
               Pittsylvania County finding that Norman "violated the terms of the
               Court's Order of December 20, 1999," and granting Norman a
               restricted license to drive to work and to medical providers on the
               condition that he be monitored by Dan River ASAP for twelve
               months. The order directed that "should [Norman] have any
               violations of law during the period of supervision," his license
               would be "permanently" revoked.

               4. An order issued by the Department of Motor Vehicles, dated
               May 7, 2001, stating that Norman sought "a restricted license after
               having been declared an habitual offender or having had [his]
               license revoked pursuant to Virginia Code § 46.2-391(B) three
               years or more prior to this date," and giving Norman a one-year
               restricted license, pursuant to the May 4, 2001 court order,
               authorizing him to drive to and from work, to and from the Dan
               River ASAP office, and when medically necessary.

       Norman argued that despite the May 4, 2001 order, restricting his driving privileges, the

December 20, 1999 order had fully restored his driving privileges and, thus, he could no longer be

considered an habitual offender for the purpose of the charge at issue. The Commonwealth

responded that the December 20, 1999 order did not fully restore Norman's privileges, but only

restored them on a conditional basis. The Commonwealth further contended that the conditional


                                                - 20 -
restoration was revoked by the circuit court when Norman violated the terms of the December 20,

1999 order and was issued a restricted license on May 7, 2001.

       The trial court agreed with the Commonwealth, finding that by signing the DMV order of

May 7, 2001, Norman acknowledged that his status as an habitual offender remained in effect,

despite the purported restoration of his driving privileges in the December 20, 1999 order. The

court then found him guilty of the habitual offender charge and sentenced him to serve two years in

prison on that conviction.

                                            II. Analysis

       On appeal, Norman contends that the trial court erred in finding the evidence sufficient to

support his conviction for operating a motor vehicle after having been declared an habitual offender.

As he argued below, Norman maintains that the circuit court fully restored his driving privileges in

its December 20, 1999 order and that, therefore, he was no longer an habitual offender at the time of

the offense at issue. We disagree.

       We first note that the standard for appellate review of criminal convictions is well

established. "When a defendant challenges the sufficiency of the evidence, we are required to

review the evidence 'in the light most favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom.'" Collins v. Commonwealth, 13 Va. App. 177, 179, 409

S.E.2d 175, 176 (1991) (quoting Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d

534, 537 (1975)). "The conviction will not be reversed unless it is plainly wrong or without

evidence to support it." Id.; see also Code § 8.01-680.

       Code § 46.2-357(A) defines the felony offense of driving after being declared an habitual

offender. "In pertinent part, Code § 46.2-357(A) states that '[i]t shall be unlawful for any person

to drive any motor vehicle . . . on the highways of the Commonwealth while the revocation of

the person's driving privilege remains in effect.'" Varga v. Commonwealth, 260 Va. 547, 550,

                                                - 21 -
536 S.E.2d 711, 713 (2000) (quoting Code § 46.2-357(A)).




                                           - 22 -
        Code § 46.2-360 permits any person declared an habitual offender to petition the court

for restoration of his or her driving privileges, providing as follows in relevant part:

                Any person who has been found to be an habitual offender where
                the determination or adjudication was based in part and dependent
                on a conviction as set out in subdivision 1 b of former § 46.2-351,
                may petition the court in which he was found to be an habitual
                offender, or the circuit court in the political subdivision in which
                he then resides to:

                1. Restore his privilege to drive a motor vehicle in the
                Commonwealth, provided that five years have elapsed from the
                date of the final order of a court entered under this article, or if no
                such order was entered then the notice of the determination by the
                Commissioner. On such petition, and for good cause shown, the
                court may, in its discretion, restore to the person the privilege to
                drive a motor vehicle in the Commonwealth on whatever
                conditions the court may prescribe . . . .

                2. Issue a restricted permit to authorize such person to drive a
                motor vehicle in the Commonwealth in the course of his
                employment, to and from his home to the place of his employment
                or such other medically necessary travel as the court deems
                necessary and proper upon written verification of need by a
                licensed physician, provided that three years have elapsed from the
                date of the final order, or if no such order was entered then the
                notice of the determination by the Commissioner. . . .

(Emphasis added).

                Reading the habitual offender statutes in pari materia, it is clear
                that once a person is declared an habitual offender by order of a
                trial court, he retains that status and loses his driving privilege for
                so long as the order is effective. Thus, . . . the habitual offender
                status of the person so declared continues until that person
                successfully petitions the court to have that status removed and his
                privilege to drive restored under one of the code sections
                permitting such petitions.

Varga, 260 Va. at 551, 536 S.E.2d at 714.

        Code § 46.2-360 is one of the code sections that allows a court to remove an individual's

status as an habitual offender and to restore his or her privilege to drive. Indeed, that particular code

section permits the court to: 1) fully restore an individual's driving privileges; 2) restore an

individual's driving privileges on certain conditions; or 3) grant an individual a restricted driving
                                               - 23 -
privilege, allowing the individual to drive only to and from work, when medically necessary, or to

where the trial court otherwise deems necessary. See Travis v. Commonwealth, 20 Va. App. 410,

415, 457 S.E.2d 420, 422 (1995) (noting that relief under Code § 46.2-360(2) provides for a

restricted license, whereas Code § 46.2-360(1) provides for "a full restoration of driving

privileges"); see also Code § 46.2-360(1) and (2).

           The parties do not dispute that here, in its December 20, 1999 order, the trial court granted

Norman a "restoration" of his driving privileges, as opposed to a "restricted" privilege to drive.

However, although the order appears somewhat inartfully written, when read as a whole, the trial

court's order makes it clear that it granted Norman's petition for restoration, subject to certain

conditions contained in the order. Specifically, the order required Norman to "present himself and

[the] Order to the Department of Motor Vehicles for such administrative proceedings and payment

of fees and costs as may be required," to present himself "to Dan River ASAP for monitoring and

supervision for twelve (12) months from the date of [the] Order," and to refrain from possessing or

using "alcohol, alcoholic beverages or drugs." The order further provided that if Norman were to

"incur any alcohol or drug related offense during the period of supervision as set forth herein, the

Court may in its discretion issue process to [Norman] to show cause why his privilege to drive

should not be suspended permanently."8 Thus, the court's actions, most significantly its conditional

restoration of Norman's driving privileges and its continuing retention of authority over Norman's

privilege to drive, belie Norman's assertion that his adjudication as an habitual offender was no

longer valid pursuant to the December 20, 1999 order. See Travis, 20 Va. App. at 415, 457 S.E.2d

at 422.9


           8
        Since the issue is not before us, we need not consider here the authority of the trial court
to "permanently" suspend the privilege to drive.
           9
        The dissent's contrary interpretation of the statute renders the plain and unambiguous
language of the statute meaningless. Indeed, the dissent recognizes that a conditional restoration
                                              - 24 -
        Moreover, as the trial court correctly noted, Norman was aware that he retained habitual

offender status when the circuit court found that he violated the provisions of the December 20,

1999 order and, by its order of May 4, 2001, revoked his "full" driving privileges, granting him

instead, restricted driving privileges. Indeed, when he signed the resulting Restricted Driver's

License Order, on May 7, 2001, Norman acknowledged that he was granted the restricted license

privilege "after having been adjudicated/determined to be an habitual offender."

        Accordingly, we hold that the trial court properly found the evidence sufficient to establish

Norman's status as an habitual offender at the time of the offense, and we affirm the judgment of the

trial court.

                                                                              Affirmed.




is available pursuant to the terms of the statute. Nevertheless, in its analysis, the dissent ignores
the term "conditional" and finds that any "restoration" of an individual's privilege to drive
necessarily operates to remove the individual's status as an habitual offender and fully "restores"
their privilege to drive, despite any statutorily permitted conditions imposed by a trial court. See
Shelor Motor Co. v. Miller, 261 Va. 473, 479, 544 S.E.2d 345, 348 (2001) ("When the
legislature has used words of a plain and definite meaning, courts cannot accord those words a
meaning that amounts to holding that the legislature did not mean what it actually expressed.");
see also Hubbard v. Henrico Ltd. Partnership, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998)
(noting the "settled principle of statutory construction that every part of a statute is presumed to
have some effect and no part will be considered meaningless unless absolutely necessary").
                                                 - 25 -
Clements, J., dissenting.

       I respectfully dissent from the majority's opinion. The dispositive issue in this case is

whether the trial court's December 20, 1999 order restoring Norman's driving privileges

terminated his status as an habitual offender. The majority concludes that, because the

December 20, 1999 order provided, pursuant to Code § 46.2-360, for the conditional, rather than

full, restoration of Norman's driving privileges, that order did not terminate Norman's status as

an habitual offender. I disagree with the majority's premise and conclusion.

       As the majority notes, "the habitual offender status of [a] person so declared continues

until that person successfully petitions the court to have that status removed and his privilege to

drive restored." Varga v. Commonwealth, 260 Va. 547, 551, 536 S.E.2d 711, 714 (2000). Here,

as reflected in the trial court's December 20, 1999 order, Norman petitioned the court "for

restoration of his privilege to operate a motor vehicle in Virginia." The trial court, finding that

Norman's petition to restore his driving privileges "should be granted, subject to the conditions

set forth" in the order, ordered that "pursuant to [Code] § 46.2-360 . . . the privileges to operate a

motor vehicle in the Commonwealth of Virginia should be restored and they are hereby restored

to" Norman. The trial court further ordered that Norman (1) report to the Department of Motor

Vehicles before driving "for such administrative proceedings and payment[s] . . . as may be

required," (2) be monitored and supervised by "Dan River ASAP" for one year, and (3) "not

possess or use alcohol . . . or drugs." The court further stated that, should Norman "incur any

alcohol or drug related offense during the period of supervision as set forth herein, the Court may

in its discretion issue process to the petitioner to show cause why his privilege to drive should

not be suspended permanently."




                                                - 26 -
        Code § 46.2-360(1), which pertains to petitions to restore driving privileges,10 provides,

in pertinent part, that the court may, in granting a petitioner's request for restoration of his or her

driving privileges, "restore to the person the privilege to drive a motor vehicle in the

Commonwealth on whatever conditions the court may prescribe" or, "in lieu of restoring the

person's privilege to drive, authorize the issuance of a restricted license."

                        Under basic rules of statutory construction, we examine a
                statute in its entirety, rather than by isolating particular words or
                phrases. When the language in a statute is clear and unambiguous,
                we are bound by the plain meaning of that language. We must
                determine the General Assembly's intent from the words appearing
                in the statute, unless a literal construction of the statute would yield
                an absurd result.

Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494, 496 (2001) (citations omitted).

        Applying these principles, I find that the legislature clearly intended that a court acting on

a petition for restoration of driving privileges be permitted to take one of three actions under

Code § 46.2-360(1): (1) deny the petition; (2) restore the person's driving privileges, with or

without conditions; or (3) grant a restricted license. The statute draws no distinction between a

"full restoration" and a "conditional restoration." Hence, an individual's privilege to drive is

either restored or not restored under Code § 46.2-360(1).

        Citing Travis v. Commonwealth, 20 Va. App. 410, 415, 457 S.E.2d 420, 422 (1995),

Norman acknowledges in his appellate brief that one who has been granted only a restricted

license "retains his habitual offender status." As the majority points out, however, it is

undisputed in this case that the trial court did not grant Norman a restricted license but granted

him a "restoration" of his privilege to drive.


        10
           In reciting what it says is the "relevant part" of Code § 46.2-360, the majority includes
subsection 2 of that statute in its recitation. That subsection, however, relates only to petitions
for the issuance of a restricted license. Thus, because Norman's petition was for restoration of
his privilege to drive rather than for a restricted license, Code § 46.2-360(2) is inapplicable in
this case.
                                                  - 27 -
       Accordingly, the conclusion must be reached that, in entering the December 20, 1999

order, the trial court restored Norman's driving privileges. Based on that order, the Department

of Motor Vehicles would have undoubtedly issued Norman a full, unrestricted operator's license.

The fact that the court prescribed certain conditions in restoring Norman's privilege to drive and,

thus, retained authority to enforce those conditions does not alter the conclusion that Norman's

privilege to drive was restored. Indeed, given that the court cannot logically suspend what does

not exist, the trial court's admonition that it might suspend Norman's "privilege to drive"

permanently if he failed to comply with the court's conditions only buttresses the conclusion that

the court intended to restore Norman's driving privileges on December 20, 1999.

       I would hold, therefore, that the trial court's order of December 20, 1999, terminated

Norman's status as an habitual offender on that date. See Varga, 260 Va. at 552, 536 S.E.2d at

714 (holding that one's habitual offender status "remains in force until that person actually has

his privilege to drive restored"). I would also hold that, because no court declared him an

habitual offender subsequent to that date, Norman was not an habitual offender when he drove

on August 14, 2001,11 and the trial court erred in finding him so.

       For these reasons, I would reverse Norman's conviction for driving as an habitual

offender, second or subsequent offense.




       11
          I believe the majority's reliance on the trial court's finding that "Norman was aware that
he retained habitual offender status" after December 20, 1999, is misplaced. Norman's
perceptions and beliefs have no bearing on the issue of whether the trial court's December 20,
1999 order terminated his status as an habitual offender, the resolution of which is purely a
matter of law.
                                                - 28 -
