                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia


CHARLES DEAN LAWSON
                                                  OPINION BY
v.   Record No. 0998-01-2                 JUDGE JAMES W. BENTON, JR.
                                                 APRIL 9, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    William R. Shelton, Judge

          Todd M. Ritter (Daniels & Morgan, on brief),
          for appellant.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     The trial judge convicted Charles Dean Lawson of the felony

of willfully failing to appear in the circuit court in violation

of Code § 19.2-128(B).     Lawson contends the statute does not

apply to his failure to appear for a "show cause" hearing

concerning a probation violation.     We agree and reverse the

conviction.

                                 I.

     A grand jury indicted Lawson for "feloniously fail[ing] to

appear before the circuit court . . . , as required after

notice, on a felony charge," in violation of Code § 19.2-128.

At trial, the prosecutor informed the judge that on December 16,

1999, Lawson "came to court, but then left before his case was
called that day."   The prosecutor also informed the judge that

Lawson's attorney contests whether Code § 19.2-120 "covers this

particular type of event."   The prosecutor presented as his only

evidence a bond signed by Lawson as a condition of his bail.

The prosecutor asserted that Lawson had been admitted to bail

pursuant to Code § 19.2-120 and argued that Code § 19.2-128

should be interpreted to include persons granted bail under the

provisions of Code § 19.2-120.

     Lawson's attorney responded "that there is no contest on

the facts that [Lawson] had in fact appeared on that day and

then left before his case was called."   Lawson's attorney argued

that Lawson's failure to appear was not punishable under the

statute, but, rather, "may be punishable under the contempt

power of the Court."   He asserted that Lawson's "court date was

for a show cause hearing" concerning a prior felony conviction

and that "you have to draw a distinction between [Lawson] and

someone who would come in having been charged with a felony

offense for which they are awaiting trial."   He argued that

Lawson's case did not fit within either category of persons

described in Code § 19.2-128(B).

     The trial judge ruled that "when a person has been served

with a show cause notice on a felony conviction, . . . [and]

fails to appear, it's a violation of the statute."   He then

convicted Lawson of violating Code § 19.2-128(B).    This appeal

followed.

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                                 II.

     Code § 19.2-128(B) provides as follows:

          Any person (i) charged with a felony offense
          or (ii) convicted of a felony offense and
          execution of sentence is suspended pursuant
          to § 19.2-319 who willfully fails to appear
          before any court as required shall be guilty
          of a Class 6 felony.

     Lawson contends that his conduct does not fall within the

statute's proscription.    The Commonwealth does not contend that

subpart (ii) is implicated by the circumstances of this case.

Rather, it contends that Lawson's "conduct violated [subpart] (i)

of the statute."     Thus, the Commonwealth argues that, because the

circuit court retained continuing jurisdiction over Lawson's case

to address matters involving revocation of probation and

suspended sentences, Lawson's underlying charge was not a final

"conviction" and that Lawson was still "charged" for purposes of

the statute.

     In reviewing this statute, we are guided by familiar

principles.    "'It is the duty of the courts to give effect, if

possible, to every word of the written law.'"       Burnette v.
Commonwealth, 194 Va. 785, 788, 75 S.E.2d 482, 484-85 (1953)

(citation omitted).

             Our duty is "to construe the law as it is
          written." We assume that "the legislature
          chose, with care, the words it used when it
          enacted the relevant statute, and we are
          bound by those words . . . ." "To depart
          from the meaning expressed by the words is
          to alter the statute, to legislate and not
          to interpret."

                 *     *    *    *     *   *    *

               "When the General Assembly uses two

                                 - 3 -
            different terms in the same act, it is
            presumed to mean two different things."

Greenberg v. Commonwealth, 255 Va. 594, 600-01, 499 S.E.2d 266,

269-70 (1998) (citations omitted).      We, therefore, conclude that

when the General Assembly used "charged" in subpart (i) of Code

§ 19.2-128 and "convicted" in subpart (ii), the General Assembly

intended two different meanings.    In addition, we construe the

words in the statute "according to their ordinary meaning."

Patterson v. CSX Transportation, 245 Va. 483, 487-88, 429 S.E.2d

215, 218 (1993).
     The evidence did not prove that, when Lawson failed to

appear in court on December 16, 1999, his status was "charged

with a felony."    The record indicates that Lawson failed to

appear at a "show cause" hearing.    The parties further agreed

that the hearing was a "revocation proceeding" for an underlying

felony offense.    No evidence establishes, however, that Lawson

was "charged with a felony offense," as contemplated by Code

§ 19.2-128(B)(i).   Indeed, the Commonwealth represents that "a

final sentencing order had been entered prior to his failure to
appear."

     Although the Commonwealth argues that the General Assembly

intended a broad construction of the statute, we must be guided

by the principles "that penal statutes must be 'strictly

construed against the State' and that such statutes 'cannot be

extended by implication or construction, or be made to embrace

cases which are not within their letter and spirit.'"

Commonwealth v. Athey, 261 Va. 385, 388, 542 S.E.2d 764, 766

(2001).    "[B]efore the accused can be punished, 'his case must be


                                - 4 -
plainly and unmistakably within the statute.'"    Waldrop v.

Commonwealth, 255 Va. 210, 215, 495 S.E.2d 822, 825 (1998).

     Accepting that the proceeding Lawson failed to attend was

for the purpose of considering whether a "revocation" of Lawson's

probation or suspended sentence was warranted, we decline to

hold, as suggested by the Commonwealth, that the word "charged,"

which is found in Code § 19.2-128(B)(i), should be read to mean

charged or convicted and that the circuit court's limited

jurisdiction over the revocation proceedings established that

Lawson's conviction was not final.    Although an alleged violation

of the conditions of either probation or a suspended sentence is

a serious matter, such an allegation does not render a person

"charged with a felony offense."   Proof of Lawson's failure to

appear at a hearing to show cause whether his probation or a

suspended sentence should be revoked does not plainly fall within

the proscription of Code § 19.2-128(B).
     We hold, therefore, that the evidence in the record did not

prove that when Lawson failed to appear in the circuit court on

December 19, 1999, he was "charged with a felony offense," as

required for a conviction under Code § 19.2-128(B).




                              - 5 -
Accordingly, we reverse the conviction and dismiss the

indictment.

                                        Reversed and dismissed.




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