
    CIRCUIT COURT OF THE CITY OF ALEXANDRIA
    Commonwealth of Virginia v. Boyce
    June 24, 1987
    Case No. M-8019
   By JUDGE ALFRED D. SWERSKY

This matter is before the Court on Defendant’s motion, pursuant to Code of Virginia, § 46.1-387.3, for the Court to refuse to enter the order declaring the Defendant an habitual offender. [The court may refuse] to enter such an order where the certification by the Division of Motor Vehicles occurs "more than five years after conviction of said offense" and the Defendant meets certain criteria as set forth in § 46.1-387.9:2.

Defendant claims the five-year period begins to run from the date of conviction for his first offense which he claims was June 9, 1982, and, therefore, he is eligible for consideration under § 46.1-387.3.

This argument, however, misconstrues the statutory scheme and renders the ten-year period set out in Section 46.1- 387.2 a nullity. Such a construction is not warranted and the five-year term provided in § 46.1-387.3 must be measured from the date of the conviction of the offense that brings the Defendant within the provisions of the Habitual Offender Act (§ 46.1-387.1, et seq.). Even if this were not so, Defendant’s argument must fail because the date of the certification by Department of Motor Vehicles is January 5, 1987, within five years from the date Defendant claims as the date of his first conviction.  