Record No. 2545-92-4
Decided: June 28, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Jack B. Stevens, Judge
(B. R. Hicks, on brief), for appellant. Appellant submitting on brief.
Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Gerald F. Gossom (defendant) appeals an order of the trial court adjudicating him an habitual offender. He complains that the trial court erroneously (1) relied upon a predicate conviction which referenced a local ordinance incorrectly, and (2) "remanded" the cause to the general district court pursuant to Code Sec. 46.2-354.
The parties are fully conversant with the record, and a recitation of the facts is unnecessary to this memorandum opinion.
Defendant challenges the validity of his conviction for a violation of a Fairfax County ordinance which was a necessary predicate to the habitual offender adjudication. The summons issued for the offense in dispute alleged a violation of a county ordinance, referenced as Code Sec. "82-46.1-350," and described the charge as "operat[ing] a motor veh[icle] while permit revoked." In response to the certification by the trial court, the district court determined that "Sec. 82-46.1-350 was the valid designation used to show that Fairfax County[, by county ordinance Sec. 82-1-6,] had incorporated by reference Virginia State Code [Sec.] 46.1-350."
Defendant does not dispute the remaining two convictions.
In Williams v. Commonwealth, 5 Va. App. 514, 365 S.E.2d 340 (1988), we held that a conviction is valid "despite the misrecital of the applicable . . . statute," provided the "description of the offense set out in the summons gave the defendant notice of the offense of which he was charged." Id. at 517, 365 S.E.2d at 341; see also Williams v. City of Petersburg, 216 Va. 297, 301-02, 217 S.E.2d 893, 897 (1975). Defendant does not claim prejudice arising from the erroneous citation, and the offense was clearly described in the summons. Thus, the Fairfax conviction was a valid and proper predicate to the adjudication.
Defendant also contends that the trial court erred in remanding the case to the general district court for additional proceedings pursuant to Code Sec. 46.2-354. However, defendant failed to make a timely objection to this procedure, and his counsel endorsed the related order as "seen." "No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court . . . to attain the ends of justice." Rule 5A:18 (emphasis added). A contrary rule would " 'deny the trial court the opportunity to consider and weigh, and, if necessary, reconsider before finally ruling.' " Mounce v. Commonwealth, 4 Va. App. 433, 435, 357 S.E.2d 742, 744 (1987) (quoting Floyd v. Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978)).
We recognize that the "ends of justice" may sometimes require this Court to consider an issue for the first time on appeal. See Rule 5A:18; see also Mounce, 4 Va. App. at 436, 357 S.E.2d at 744. However, "to avail himself of the rule the defendant had to affirmatively show . . . that the error [was] clear, substantial and material," constituting a "miscarriage of justice," an "obvious injustice." Brown v. Commonwealth, 8 Va. App. 126, 132-33, 380 S.E.2d 8, 11 (1989). Such circumstances are not supported by the record and we, therefore, decline to address this issue.
Accordingly, we affirm the adjudication of the trial court.