                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia


LINK L. THOMPSON
                                         MEMORANDUM OPINION * BY
v.   Record No. 0330-99-3             JUDGE JERE M. H. WILLIS, JR.
                                              MARCH 28, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF AMHERST COUNTY
                     J. Michael Gamble, Judge

          B. Leigh Drewry, Jr., for appellant.

          Thomas M. McKenna, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     On appeal from his conviction of driving after having been

declared an habitual offender, in violation of Code § 46.2-357,

Link L. Thompson contends (1) that his habitual offender

adjudication was void because it was based on process served

upon him while he was in court on a criminal matter, and (2)

that the trial court erred in finding that he had been

adjudicated an habitual offender.   Because we find that Thompson

was not lawfully adjudicated an habitual offender, we reverse

his conviction and order the charge against him dismissed.   We

do not address the service of process issue.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     On August 28, 1997, in the Lynchburg General District

Court, Thompson was tried for driving on a suspended license.

After convicting him of that charge, the general district court

directed that an habitual offender show cause order be served on

Thompson.   The sheriff served Thompson while he was still at the

Lynchburg General District Court.

     On January 13, 1998, the Lynchburg General District Court

tried the issues raised by the show cause order.      It used a form

order.   The general district court judge checked boxes on the

form indicating:

            THOMPSON WAS THIS DAY:

                 (1) present

            ON THE EVIDENCE HEARD BEFORE ME THIS DAY, I
            FIND:

                 (1) that [Thompson] is the same person
            named in the record,

                 (2) that [Thompson] was convicted of
            each offense shown by the transcript or
            abstract,

                 (3) that [Thompson] is an habitual
            offender.

            AND IT IS THEREFORE ORDERED:

                 (1) that [Thompson's] driver's license
            be forthwith revoked and [Thompson] is
            directed not to operate a motor vehicle on
            the highways in the Commonwealth.
            [Thompson] is further ordered to surrender
            to the Clerk of this Court all licenses or
            permits to drive a motor vehicle on the
            highways of this Commonwealth for disposal
            in the manner provided in § 46.2-398.
            [Thompson] is advised that violation of this


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          order by the operation of a motor vehicle
          may subject [Thompson], upon conviction, to
          a fine and/or incarceration.

                (2) [not checked.]

                (3) That the matter be dismissed.

The second adjudicatory block, numbered (2) and unchecked by the

general district court judge, provided:   "that a copy of this

determination be served on the respondent personally."   Thompson

accepted service by signing the order and was, in addition,

personally served with a copy.    That order was not appealed and

became final.

     On May 4, 1998, Thompson was arrested for driving after

having been declared an habitual offender.

     On November 17, 1998, the general district court judge

entered an order nunc pro tunc January 13, 1998, wherein he

erased the check in adjudicatory box number (3), which provided

"that the matter be dismissed," and checked the box immediately

above, directing "that a copy of this determination be served on

the respondent personally."

     On January 11, 1999, based upon the November 17, 1998

order, the trial court convicted Thompson of driving after

having been declared an habitual offender, in violation of Code

§ 46.2-357.

     The Commonwealth argues that the provision of the January

13, 1998 order ordering the matter dismissed was a correctable

clerical error and that the general district court judge

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inadvertently checked the wrong box, ordering that the matter be

dismissed rather than that the order be served on Thompson.

      Code § 8.01-428(B) provides:

                Clerical mistakes in all judgments or
           other parts of the record and errors therein
           arising from oversight or from an
           inadvertent omission may be corrected by the
           court at any time on its own initiative or
           upon the motion of any party and after
           notice, as the court may order. During the
           pendency of an appeal, such mistakes may be
           corrected before the appeal is docketed in
           the appellate court, and thereafter while
           the appeal is pending such mistakes may be
           corrected with leave of the appellate court.

Id.

      The November 17, 1998 order makes no explanation for the

changes to the January 13, 1998 order directed nunc pro tunc.

Thus, the November 17, 1998 order sets forth no basis for

concluding that the changes resulted from previous inadvertence

or oversight, as distinguished from a change of mind or a

perceived adjudicatory error.   Thus, the November 17, 1998 order

was ineffective to modify the January 13, 1998 order.

      The January 13, 1998 order set forth two contradictory and

mutually exclusive adjudications.    On the one hand, it recited

Thompson's determination to be an habitual offender and ordered

the revocation of his driving privileges.   On the other hand, it

ordered the proceeding against him dismissed.   Such an ambiguous

order cannot be the predicate for the imposition of a legal




                                - 4 -
disability exposing a citizen to the hazard of a criminal

conviction.

     The judgment of the trial court is reversed, and the charge

is ordered dismissed.

                                        Reversed and dismissed.




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