                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Overton
Argued by teleconference


JEFFREY WAYNE BURCHETT
                                                OPINION BY
v.        Record No. 2531-96-3            JUDGE JOSEPH E. BAKER
                                            FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF PULASKI COUNTY
                      Colin R. Gibb, Judge
          Randolph D. Eley, Jr., for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Richard Cullen, Attorney General, on
          brief), for appellee.



     On September 17, 1996, the Pulaski County Circuit Court

(trial court), pursuant to proceedings instituted under the

version of Code § 46.2-352 in effect on April 20, 1995, entered

an order declaring Jeffrey Wayne Burchett (appellant) to be an

habitual offender.    Appellant contends the amended provisions of

Code § 46.2-352, which became effective January 1, 1996, and

which require the Commissioner of the Department of Motor

Vehicles (DMV) to make an initial determination of habitual

offender status, controlled the pending proceedings.    Therefore,

he asserts that on September 17, 1996, the trial court was not

authorized to make the habitual offender declaration.   We

disagree with appellant's contention and affirm the decision of

the trial court.
     The following facts and procedures are not in dispute:

     On April 20, 1995, the Commonwealth filed in the trial court

an information and supporting DMV transcript to have appellant

declared an habitual offender, 1 pursuant to which the court

entered a show cause order under Code § 46.2-354.

     On April 20, 1995, in relevant part, Code § 46.2-352

provided:
            The Commissioner shall certify, from the
            Department's records, substantially in the
            manner provided for in § 46.2-215, three
            transcripts or abstracts of those conviction
            documents which bring the person named
            therein within the definition of an habitual
            offender, as defined in § 46.2-351, to the
            attorney for the Commonwealth of the
            political subdivision in which the person
            resides according to the records of the
            Department or the attorney for the
            Commonwealth of the City of Richmond if the
            person is not a resident of the Commonwealth.

Related code provisions required the Commonwealth's attorney to

file an information in the city or county in which, according to

DMV records, the alleged habitual offender resided or in the

Circuit Court for the City of Richmond for nonresidents.    The

determination of habitual offender status was then made by the

circuit court judge.    See Code §§ 46.2-353 to -355.   However,

effective January 1, 1996, Code § 46.2-352 changed and provided

in part relevant to this appeal:
               A. [T]he Commissioner [of the DMV]
          shall determine, from the Department's
     1
      The transcript disclosed appellant thrice had been
convicted of driving offenses that subjected him to an habitual
offender declaration.



                                - 2 -
          records, whether a person named therein
          qualifies as an habitual offender, as defined
          in § 46.2-351. Upon such determination, the
          Commissioner shall immediately cause the
          Department's records to indicate that the
          person has been determined to be an habitual
          offender and shall revoke the person's
          driver's license for the period of time
          specified in § 46.2-356. The Commissioner
          shall immediately notify the person of the
          revocation and of his right to file a
          petition and request a hearing as provided in
          subsection B. Such notice shall be mailed by
          certified mail, return receipt requested,
          deliver to addressee only, to the address for
          the person contained in the Department's
          records. The revocation shall become
          effective thirty days from the date on which
          the notice was mailed.
                     *    *   *    *      *   *   *

               B. At any time after receipt of the
          revocation notice, as provided for in
          subsection A, or after otherwise learning of
          the revocation, a person who has been
          determined to be an habitual offender may
          file, with the circuit court of the county or
          city in which he resides, or with the Circuit
          Court of the City of Richmond if the person
          is not a resident of the Commonwealth, a
          petition for a hearing and determination by
          the court that the person is not an habitual
          offender. Jurisdiction shall also lie in a
          circuit court to which venue may be changed.


The DMV's most recent address for appellant on April 20, 1995 was

in Pulaski County.

     On August 22, 1995, appellant personally appeared, but

without counsel, in response to a second show cause order 2

entered July 5, 1995.    On August 30, 1995, the court entered an

     2
      The first show cause order was not properly served on
defendant because he could not be found.




                                  - 3 -
order adjudicating him an habitual offender.    Appellant then

retained counsel and, on September 19, 1995, filed a petition for

rehearing. 3   The court granted the motion and vacated its prior

order.

     On October 13, 1995, the court conducted the rehearing.       The

Commonwealth offered appellant's DMV driving history into

evidence, but appellant objected because the document listed the

Commonwealth's Attorney for the City of Radford as the requesting

party rather than the Commonwealth's Attorney for Pulaski County.

 The court took the matter under advisement, and on December 15,

1995, gave the Commonwealth thirty days to correct the error.       On

January 4, 1996, the Commonwealth complied with the court's

direction by filing a corrected DMV transcript but not a new

information.    The corrected DMV transcript, issued on December

21, 1995, continued to list Pulaski as appellant's most recent

address.   Appellant had provided no other address.
     Following a continuance requested by appellant, the court

reconvened the habitual offender hearing on September 17, 1996.

At the close of the Commonwealth's evidence, for the first time,

appellant challenged the court's application of the pre-amendment

version of Code § 46.2-352 and related provisions, which were in

effect at the commencement of the proceedings against him, rather

     3
      Appellant contended that the court had continued the matter
from August 22, 1995, so that he could retain counsel but that
the court then erroneously entered the habitual offender order
without first allowing him to appear with counsel.



                                - 4 -
than the amended statute which took effect on January 1, 1996. 4

The court denied the request and entered an order adjudicating

appellant an habitual offender.

     On April 20, 1995, Code § 46.2-352 and related code sections

provided that an habitual offender information must be filed in

the circuit court for the city or county in which the alleged

offender resided.   Here, that was Pulaski County.   The subject

information was filed on that date but for varying reasons the

final adjudication hearing was not held and declaration made

until September 17, 1996.   Effective January 1, 1996, the

amendment to Code § 46.2-352 requires that habitual offender

determinations must first be made by the Commissioner of the DMV

with the right to appeal the Commissioner's declaration to the

circuit court of the city or county in which the alleged offender

resides, unless the alleged offender is a nonresident of the

Commonwealth, in which case the appeal is made to the Circuit

Court of the City of Richmond.
     Appellant argues that the new procedures effectively

divested the Pulaski County Circuit Court of jurisdiction to

render judgment in this matter.    He contends that once the

January 1, 1996 amendment became effective, the prior code

provision no longer existed and, therefore, the trial court could

     4
      Under the former version, the habitual offender
adjudication occurs in the circuit court; under the latter, DMV
makes the initial determination, which may be appealed to the
circuit court.



                                 - 5 -
not proceed on a non-existent statute.    In addition, appellant

contends that when the information filed on April 20, 1995 was

amended on January 4, 1996 to show the Commonwealth's Attorney of

Pulaski County rather than that of the City of Radford as the

requesting party, this constituted the filing of "new charges"

governed by the amendment that became effective on January 1,

1996.
                  The general rule is that statutes are
             prospective in the absence of an express
             provision by the legislature. Thus when a
             statute is amended while an action is
             pending, the rights of the parties are to be
             decided in accordance with the law in effect
             when the action was begun, unless the amended
             statute shows a clear intention to vary such
             rights.


Washington v. Commonwealth, 216 Va. 185, 193, 217 S.E.2d 815, 823

(1975).    Because nothing in the amended code discloses a contrary

intent, we hold that the provisions of Code § 46.2-352, as

amended effective January 1, 1996, were intended to be

prospective and did not divest the court of jurisdiction already

acquired.    The failure of the legislature to express an intention

to make the statute retroactive evidences a lack of such

intention.     See McIntosh v. Commonwealth, 213 Va. 330, 331-32,

191 S.E.2d 791, 792 (1972).    Furthermore, the Commonwealth's

filing of a corrected DMV transcript on January 4, 1996 did not

affect the jurisdiction already acquired by the court through the

underlying information.

        Appellant cites Jackson v. National Linen Service Corp., 248




                                 - 6 -
F. Supp. 962 (W.D. Va. 1965); Link v. Receivers of Seaboard Air

Line Railway Co., 73 F.2d 149 (4th Cir. 1934); and Smith v.

Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), as support for

his claim that the amended code provision should be viewed to

apply to offenses committed and proceedings begun prior to the

effective date of the amendment, thereby taking jurisdiction of

this matter away from the trial court.   Insofar as language in

any of those cases arguably could be construed to deny

jurisdiction in this case, the express language of Washington and
McIntosh clearly holds to the contrary, and we are bound by those

decisions.

     Accordingly, the judgment of the trial court is affirmed.

                                                         Affirmed.




                              - 7 -
