                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Charlottesville, Virginia


CHARLESTON ALEXANDER MUTZ
                                      MEMORANDUM OPINION * BY
v.   Record No. 0623-96-3           CHIEF JUDGE NORMAN K. MOON
                                         JANUARY 21, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                      Richard S. Miller, Judge
           Sidney H. Kirstein for appellant.

           Linwood T. Wells, Jr., Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.



     Charleston Alexander Mutz claims that the circuit court was

without authority to revoke his probation because the court's

September 15, 1995 order of record at the time of the violation

stated that he was not on probation.   Because the trial court

entered a nunc pro tunc order correcting the recorded order, Mutz

was on probation at all times after the order.    Although Mutz was

not given notice of entry of the nunc pro tunc order, he was not
prejudiced because he was allowed to contest its validity before

his probation was revoked.   The Commonwealth should have given

notice to Mutz of its request for entry of the nunc pro tunc

order.   However, the failure to give notice was cured in the

March 8, 1996 hearing, when the court granted Mutz the

opportunity to challenge entry of the nunc pro nunc order.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Consequently, we hold that the nunc pro tunc order entered by the

trial judge on December 29, 1995 corrected the omission or defect

in the September 15 order so as to make it reflect the actual

resolution of the hearing and in effect during the time of the

violation.   Accordingly, we find that the court had jurisdiction

to revoke Mutz's probation.

     On March 21, 1995, the Circuit Court of the City of

Lynchburg convicted Mutz of possession of cocaine and sentenced

him to three years with all but sixty days suspended.   Mutz was

placed on probation for eighteen months following his release

from prison.    Mutz served his sixty days, but on September 15,

1995, the circuit court found Mutz had violated the terms of his

probation and sentenced him to time served (sixty days).    The

published order stated "the Court hereby sentences the defendant

to the time he has served since July 26, 1995 to the present, and

the placing of the defendant on probation is hereby revoked."
     Subsequently, Mutz's probation officer, Jeffrey Mosher, who

was present at the hearing on September 15, met with Mutz on

October 4.   Mosher included in his notes from the hearing that

Mutz was to remain on probation and he met with Mutz on the 4th

of October to make sure that Mutz understood the terms of his

probation.   After the meeting Mosher contacted Mutz twice in

November, each time instructing Mutz to "personally respond to

the [probation] office."   Mutz did not comply with these

instructions.

     Mosher testified that on December 20, because some confusion
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had arisen as to appellant's probation status, he wrote to Mutz

informing him that he was no longer on probation.    On December

22, 1995, the Commonwealth's Attorney, by letter, requested the

trial court enter a nunc pro tunc order to correct the September

15, 1995 order which was contrary to the intent of the court.

The court acknowledged the defect in the September 15 order and

ordered Mutz's continued probation stating: "[t]he following

order which should have been entered September 15, 1995, but was

omitted through inadvertence, is hereby entered nunc pro tunc."
Mutz did not receive notice of the entry or presentation of the

order.   Mutz's probation officer, Mosher, attempted to make Mutz

aware of the order but was unsuccessful given Mutz's relocation

and failure to properly inform Mosher of Mutz's new address.

     On February 7, 1996, Mosher petitioned the trial court to

revoke Mutz's probation on the grounds that Mutz had failed to

make regular visits with Mosher since October 4, 1995.    On March

8, 1996, Mutz appeared before the trial court to respond to the

charges of probation violation.   At that time, Mutz, by counsel,

admitted his failure to maintain contact with Mosher, but argued

that he was not "legally on probation" because of the wording of

the September 15, 1995 order and because he had not received

notice of the nunc pro tunc order.     The Commonwealth argued that

Mutz, as evidenced by his meeting with Mosher on October 4th,

understood that he was still on probation and that his subsequent

violations had occurred before Mosher had sent the letter

informing him that he was not on probation and that in any event,

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because Mutz had absconded, he could not be notified.   The trial

court agreed with the Commonwealth and found Mutz was still on

probation and found him guilty of violating the terms of the

suspended sentence and probation.   Accordingly, the trial court

sentenced Mutz to serve the entire balance of his three year

suspended sentence.

     A nunc pro tunc order is properly used to "correct mistakes

of the clerk or other court officials or to correct defects or

omissions in the record so as to make the record show what

actually took place."   See Council v. Commonwealth, 198 Va. 288,

293, 94 S.E.2d 245, 248 (1956).   The record indicates that it was

not the trial court's decision to take Mutz off probation.    The

published order itself stated that the trial court found Mutz had

violated the terms of his probation: "[w]hereupon after taking

into consideration all of the evidence and the argument of

counsel, the Court doth find that he [Mutz] has violated the

terms of the suspended sentence and probation as to failure to

report new arrests to his probation officer."   Having found Mutz

guilty of violating the terms of his probation, it follows that

the court's intent was to punish, not reward Mutz.   Taking

defendant off probation is contrary on its face to the court's

finding of guilt.   Therefore, the trial court's finding that the

September 15, 1995 order was in error because of clerical

mistakes is supported by the evidence.

     The record also makes clear that both Mutz and his probation

officer understood the result of the hearing to be that Mutz
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would receive time served and then would continue on probation.

There can be no doubt that Mutz had this understanding as he met

with Mosher on October 4, 1995 for the explicit purpose of having

the terms of his probation explained to him.   Subsequently, but

before Mosher's letter of December 20, 1995 informing Mutz that

he was not on probation, Mutz violated the terms of his

probation.    Thus, by the time Mosher had written to Mutz,

appellant had already committed the violations of his probation

and did so during a period in which he understood that he was on

probation.
     When the court was made aware that the September 15, 1995

order misstated the court's decision, the omission or mistake was

corrected by the trial court's December 29, 1995 order.    This

order properly served to correct the defect in the September 15

order by amending it to reflect what actually occurred at the

September 15 hearing.

     Failure to provide Mutz notice of the Commonwealth's request

for entry of a nunc pro tunc order did constitute error.      Such

procedural safeguards are required in order to ensure that all

parties are heard with regard to a challenge of the accuracy of

the record.   However, the error was cured during the March 8,

1996 hearing at which Mutz appeared to challenge probation

violation charges.   Prior to being punished under the terms of

the amended record, Mutz, by counsel, was provided the

opportunity during the March 8 hearing, to argue that the

original September 15 order was correct and that the nunc pro

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tunc order should not have been entered.    Mutz did not present

any evidence asserting that the court's original order was

correct or that the nunc pro tunc order was erroneously entered.

Instead Mutz argued that because the court's September 15, 1995

order stated he was off probation, he was not "legally" on

probation when the violation occurred.

     The error of not giving notice was cured by the court giving

Mutz the opportunity to challenge the validity of the nunc pro
tunc order at the violation hearing.     Mutz failed to present any

evidence suggesting that the nunc pro tunc order did not

accurately correct the court's order so as to make it reflect the

actual resolution at trial.   The court could have entered a nunc

pro tunc order immediately before the violation hearing, and it

would have been effective retroactively to September 15, 1995.

Accordingly, we find that evidence supports the court's finding

that Mutz was on probation and understood at the time of his

violations that he was on probation.
                                                     Affirmed.




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