                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia


STACY MYERS
                                                OPINION BY
v.           Record No. 1536-97-1       JUDGE JERE M. H. WILLIS, JR.
                                             FEBRUARY 17, 1998
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                         Walter J. Ford, Judge
             Charles E. Haden (Timothy G. Clancy; Cumming,
             Hatchett & Jordan, on brief), for appellant.

             Robert H. Anderson, III, Assistant Attorney
             General (Richard Cullen, Attorney General, on
             brief), for appellee.



     Stacy Myers contends that the evidence fails to support her

conviction of second-degree murder.    The Commonwealth has moved

to dismiss this appeal, arguing that it has been heretofore

concluded.    We grant the Commonwealth's motion and dismiss this

appeal.

     On February 3, 1992, a grand jury indicted Myers for murder,

Code § 18.2-32, and felony child neglect, Code § 18.2-371.1.    The

charges stemmed from the death of Myers' newborn infant daughter

on October 25, 1991.    The charges were tried at a bench trial on

April 22, 1992.     The trial court ruled orally:
                  I think she's guilty of the charge of
             the felony murder. Not -- not first degree.
              I don't think there's -- Commonwealth
             established first degree murder in the case,
             but I do think it's second degree. And I
             find her guilty.


The conviction order, entered April 22, 1992, and the sentencing
order, entered August 19, 1992, recited that Myers was convicted

of second-degree murder, in violation of Code § 18.2-32.     The

child neglect charge was dismissed.

     Myers appealed her 1992 conviction, contending that the

evidence failed to support a conviction for felony murder under

Code § 18.2-33.   In an unpublished opinion, a panel of this Court

reversed the conviction, holding that the evidence failed to

support a conviction of second-degree murder.     Myers v.
Commonwealth, Record No. 1780-92-1 (Va. Ct. App. July 26, 1994).

Upon rehearing en banc, we affirmed the conviction in an

unpublished opinion.    Myers v. Commonwealth, Record No. 1780-92-1

(Va. Ct. App. May 16, 1995) (en banc).     We held that Myers was

precluded from appellate relief, because she had failed to

challenge her conviction for second-degree murder under Code

§ 18.2-32, the statute under which she had been charged and

convicted.   See Rule 5A:12(c).    The Supreme Court denied Myers'

petition for appeal from our decision.     Myers v. Commonwealth,

Record No. 951094 (Va. Oct. 25, 1995).

     On May 29, 1997, Myers moved the trial court to correct the

conviction and sentencing orders pursuant to Code § 8.01-428(B)

to reflect that she had been convicted under Code § 18.2-33, not

under Code § 18.2-32.   On June 13, 1997, the trial court granted

the motion and ordered:
               That Defendant's conviction order
          entered April 22, 1992 and sentencing order
          entered August 22, 1992, be, and hereby are,
          corrected pursuant to Va. Code § 8.01-428(B)
          to reflect that the Defendant STACY MYERS was


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             convicted under Va. Code § 18.2-33, not Va.
             Code § 18.2-32.


     From the June 13, 1997 order, Myers initiated this appeal on

the erroneous assumption that the 1997 order vacated the 1992

orders and created a new final order from which her conviction

could be appealed.

     Rule 1:1 provides that:
               All final judgments, orders, and
          decrees, irrespective of terms of court,
          shall remain under the control of the trial
          court and subject to be modified, vacated, or
          suspended for twenty-one days after the date
          of entry, and no longer.

No action was taken to modify, vacate, or suspend the 1992 orders

within the prescribed twenty-one day period following their

entry.    Thereafter, those orders became final and the trial court

lost jurisdiction to review the conviction.     See Hirschkop v.

Commonwealth, 209 Va. 678, 166 S.E.2d 322 (1969); School Bd. of

Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550, 379 S.E.2d

319 (1989); Davis v. Mullins, 251 Va. 141, 148-49, 466 S.E.2d 90,

94 (1996).    Myers' conviction was subsequently affirmed by this

Court, and the Supreme Court refused her petition for appeal.

Her conviction thus became final and unassailable on direct

appeal.

     Although divested of jurisdiction, a "trial court has the

inherent power, independent of statutory authority, to correct

errors in the record so as to cause its acts and proceedings to

be set forth correctly."     Davis, 251 Va. at 149, 466 S.E.2d at 94




                                 - 3 -
(citing Council v. Commonwealth, 198 Va. 288, 292, 94 S.E.2d 245,

248 (1956)). In addition, Code § 8.01-428(B) provides that:
          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 such notice, as the
          court may order.


See also Code § 8.01-429 (providing appellate courts

corresponding authority).
     Code § 8.01-428(B) did not invest the trial court with

authority, by entry of the June 13, 1997 order, to substitute a

conviction under Code § 18.2-33 for Myers' final conviction under

Code § 18.2-32.   The trial court was not authorized to reconsider

the merits of Myers' conviction.    It was not authorized to vacate

a judgment that had become final.   It was not authorized to enter

a new judgment that was not underlain by an appropriate charge,

process, plea, or authorized manner of disposition.

     The trial court purported to exercise the discretionary

power conferred upon it by Code § 8.01-428(B) to correct

"clerical mistakes arising from oversight or from an inadvertent

omission."   Thus, the 1997 order could effect only a mere

clerical "correction," amending the record to make it "speak the

truth."   See Council, 198 Va. at 292-93, 94 S.E.2d at 248.    The

post-appeal "correction" of the 1992 orders could not modify or

vacate the conviction.   Modification or vacation would have

required reacquisition by the trial court of jurisdiction over




                               - 4 -
the underlying subject matter -- an impermissible action barred

by Rule 1:1.   See Dixon v. Pugh, 244 Va. 539, 543, 423 S.E.2d

169, 171 (1992); Davis, 251 Va. at 149-50, 466 S.E.2d at 95.

     This holding is consonant with the narrow construction and

application afforded a trial court's power to amend and correct a

record.   See Council, 198 Va. at 292, 94 S.E.2d at 248; McEwen

Lumber Co. v. Lipscomb Bros. Lumber Co., 234 Va. 243, 247, 360

S.E.2d 845, 848 (1987).
               To permit a trial court, either under
          the statute or by its inherent power, to
          consider at any time what judgment it might
          have rendered while it still retained
          jurisdiction over a case and then to enter
          that judgment nunc pro tunc would render
          meaningless the mandate of Rule 1:1 and would
          do great harm to the certainty and stability
          that the finality of judgments brings.


Davis, 251 Va. at 150, 466 S.E.2d at 94.

     Because the 1997 correction order could not change the

specific crime of which Myers was convicted, it was a nullity.

Thus, it was not an order from which an appeal to challenge her

1992 conviction may be sought anew.      Consequently, we cannot
                                    1
decide the merits of this appeal.       The Commonwealth's motion is

granted, and the appeal is dismissed.

                                                      Dismissed.

     1
      Myers was sentenced to ten years imprisonment. Conviction
of second-degree murder under Code § 18.2-32 carries a sentence
of five to forty years. Conviction of murder under Code
§ 18.2-33 is punishable as a Class 3 felony, carrying a sentence
of five to twenty years. Myers' sentence fell within the
punishment scope of both statutes.




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