                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bray and Bumgardner
Argued at Chesapeake, Virginia


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.   Record No. 1065-99-1              JUDGE RUDOLPH BUMGARDNER, III
                                                APRIL 11, 2000
SHAWN LEWIS, S/K/A
 SHAWN L. LEWIS


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                     Johnny E. Morrison, Judge

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

          No brief or argument for appellee.


     The trial court granted Shawn Lewis's petition to restore

his driving privileges pursuant to Code § 46.2-361.    The

Commonwealth appeals and argues the court lacked the authority

to do so because three years had not passed since Lewis was

declared an habitual offender.    We agree and reverse the

judgment of the trial court.

     The trial court declared Lewis an habitual offender on

February 15, 1997.    He petitioned for restoration of his license

on February 25, 1999.    Lewis alleged that he was declared an

habitual offender based entirely on convictions for driving


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
while suspended for failure to pay fines.    See Code

§ 46.2-361(B). 1   However, because all of the defendant's

convictions were not based entirely on subdivision (1)(c) of

former § 46.2-351, the defendant did not qualify for restoration

under Code § 46.2-361(B).    Nevertheless, the trial court granted

the petition restoring the defendant's license under Code

§ 46.2-361(A). 2   Subsection (A) permits restoration when three


     1
         Code § 46.2-361(B) provides:

                 Any person who has been found to be an
            habitual offender, where the determination
            or adjudication was based entirely upon
            convictions as set out in subdivision 1 c of
            former § 46.2-351, may, after payment in
            full of all outstanding fines, costs and
            judgments relating to his determination, and
            furnishing proof of financial
            responsibility, if applicable, 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, for restoration of his privilege to
            drive a motor vehicle in the Commonwealth.
     2
         Code § 46.2-361(A) provides:

                 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 c of former § 46.2-351, may,
            after three years 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 or adjudication
            by the Commissioner, 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, for restoration of his privilege to
            drive a motor vehicle in the Commonwealth.

                                - 2 -
years have passed since the petitioner was declared an habitual

offender.   On the form order used to record the findings and the

judgment, the trial court deleted the preprinted words "three

years have [passed]" and interlined a finding that "a sufficient

period has [passed]."   The Commonwealth objected to the order.

     After three years, a person found to be an habitual

offender may petition for restoration of driving privileges

under Code § 46.2-361(A).   The petitioner bears the burden of

proving by a preponderance of the evidence that he is eligible

for restoration of his driving privileges.    See Commonwealth v.

Lynn, 29 Va. App. 151, 155, 510 S.E.2d 270, 272 (1999)

(petitioner not eligible for restoration under Code

§ 46.2-361(A) where only six months passed from date declared

habitual offender); Commonwealth v. Brown, 28 Va. App. 781, 786,

508 S.E.2d 916, 919 (1999) (restoration reversed where one of

defendant's convictions did not meet requirements of statute).

     This petition was filed only two years after the habitual

offender determination.   The findings recited in the order show

that the petitioner did not qualify for the relief granted.    The

petition for restoration must be filed three years after the


            In no event, however, shall the provisions
            of this subsection apply when such person's
            determination or adjudication was also based
            in part and dependent on a conviction as set
            out in subdivision 1 b of former § 46.2-351.
            In such case license restoration shall be in
            compliance with the provisions of
            § 46.2-360.

                                - 3 -
habitual offender declaration.    The finding that "a sufficient

period has" passed, rather than the necessary finding that

"three years have" passed, constituted a finding that the

petitioner did not meet the requirements necessary for

restoration of his license.   The trial court erred in restoring

the driving privilege before the required three years had

passed.   Accordingly, we reverse the judgment.

                                                          Reversed.




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