VIRGINIA:

     In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond on Friday, the 14th day of
November, 1997.


Thomas Franklin Hohman,                                              Appellant,

against           Record No. 970464
                  Court of Appeals No. 0815-95-4

Commonwealth of Virginia,                                            Appellee.


             Upon an appeal from a judgment rendered by the
        Court of Appeals of Virginia on the 31st day of
        December, 1996.


        Upon consideration of the record, briefs, and argument of

counsel, the Court is of opinion that there is no error in the

judgment appealed from.         Accordingly, for the reasons stated in

the memorandum opinion of the Court of Appeals, dated December 31,

1996, the judgment is affirmed.            The appellant shall pay to the

Commonwealth of Virginia thirty dollars damages.

        It is ordered that the Circuit Court of Stafford County allow

counsel for the appellant a fee of $625 for services rendered the

appellant    on    this   appeal,   in   addition   to   counsel's   costs   and

necessary direct out-of-pocket expenses.

        The Commonwealth shall recover of the appellant the amount

paid court-appointed counsel to represent him in this proceeding,

counsel's costs and necessary direct out-of-pocket expenses, and

the fees and costs to be assessed by the clerk of this Court and

the clerk of the court below.

        Justice Koontz took no part in the consideration of this

case.
________________________

JUSTICE KEENAN, with whom JUSTICE LACY joins, dissenting:

     I   would   hold    that     the     language   of    Code   § 19.2-237    is

unambiguous and prohibits a trial court from enforcing a jail

sentence in a misdemeanor case in which the defendant has failed

to appear and plead.         The manifest purpose of this provision is to

permit the court to hear and dispose of misdemeanor cases without

impairing any defendant's liberty interests.
     If the trial court wishes to retain the discretion to impose

a jail sentence on an absent defendant charged with a misdemeanor,

the court may issue a capias for the defendant's arrest and have

him brought before the court to enter a plea to the charge and be

tried.    In the present case, the trial court erred because it

imposed a jail sentence on the defendant when he had not appeared

for trial, had not entered a plea to the charge, and had not

waived   his   right    to   trial   by    jury.     The   imposition   of     this

sentence violated the clear statutory mandate that when a court

tries an absent defendant charged with a misdemeanor "in the same

manner as if [the defendant] had appeared, plead not guilty and

waived trial by jury, . . . the court shall not in any such case

enforce a jail sentence."        Code

§ 19.2-237.    Therefore, I would reverse the trial court's judgment

and remand the case for imposition of a sentence that conforms

with this statutory restriction.



     This order shall be certified to the Court of Appeals of

Virginia and to the Circuit Court of Stafford County and shall be
published in the Virginia Reports.

                                           A Copy,


                                              Teste:


                                              David B. Beach, Clerk


Costs due the Commonwealth
 by appellant in Supreme
 Court of Virginia:

        Attorneys' fees:   $925.00 plus their costs and expenses

Teste:



Clerk
