                   COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Annunziata
Argued at Richmond, Virginia


LATIF RACQUEL KHALIQ
                                         MEMORANDUM OPINION * BY
v.   Record No. 1588-01-2              JUDGE ROSEMARIE ANNUNZIATA
                                               MAY 7, 2002
COMMONWEALTH OF VIRGINIA


      FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                    Edward L. Hogshire, Judge

          James Hingeley, Public Defender, for
          appellant.

          Leah A. Darron, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Latif Racquel Khaliq was convicted at a bench trial of

misdemeanor escape from custody, in violation of Code

§ 18.2-479(A).   He was sentenced to serve twelve months in jail,

with six months suspended.   Khaliq appeals his conviction on the

ground that his conduct did not violate Code § 18.2-479(A)

because his escape occurred during an arrest for a probation

violation, not a misdemeanor.   We agree and dismiss his

conviction.

     The facts in this case are undisputed.   On September 15,

2000, Officer W.E. Small received a warrant to arrest Khaliq for


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
a probation violation.   When Officer Small arrested Khaliq for

the probation violation, he escaped from his custody.     There was

no evidence establishing that Khaliq had been arrested for a

misdemeanor.

     Code § 18.2-479(A) provides, in relevant part:

          If any person lawfully . . . in the custody
          . . . of any law-enforcement officer on a
          charge or conviction of a misdemeanor
          escapes, otherwise than by force or violence
          or by setting fire to the jail, he shall be
          guilty of a Class 1 misdemeanor.

(Emphasis added).   For the reasons stated in Lawson v.

Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (2002), we hold

that when Khaliq escaped from police custody, he was not in

custody "on a charge or conviction of a misdemeanor."     Because

Code § 18.2-479 does not prohibit escape from custody based on

probation violations, we reverse Khaliq's conviction and dismiss

the indictment.



                                           Reversed and dismissed.




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