Link L. Thompson v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
LINK L. THOMPSON
MEMORANDUM OPINION * BY
v. Record No. 0330-99-3 JUDGE JERE M. H. WILLIS, JR.
MARCH 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge
B. Leigh Drewry, Jr., for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his conviction of driving after having been
declared an habitual offender, in violation of Code § 46.2-357,
Link L. Thompson contends (1) that his habitual offender
adjudication was void because it was based on process served
upon him while he was in court on a criminal matter, and (2)
that the trial court erred in finding that he had been
adjudicated an habitual offender. Because we find that Thompson
was not lawfully adjudicated an habitual offender, we reverse
his conviction and order the charge against him dismissed. We
do not address the service of process issue.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On August 28, 1997, in the Lynchburg General District
Court, Thompson was tried for driving on a suspended license.
After convicting him of that charge, the general district court
directed that an habitual offender show cause order be served on
Thompson. The sheriff served Thompson while he was still at the
Lynchburg General District Court.
On January 13, 1998, the Lynchburg General District Court
tried the issues raised by the show cause order. It used a form
order. The general district court judge checked boxes on the
form indicating:
THOMPSON WAS THIS DAY:
(1) present
ON THE EVIDENCE HEARD BEFORE ME THIS DAY, I
FIND:
(1) that [Thompson] is the same person
named in the record,
(2) that [Thompson] was convicted of
each offense shown by the transcript or
abstract,
(3) that [Thompson] is an habitual
offender.
AND IT IS THEREFORE ORDERED:
(1) that [Thompson's] driver's license
be forthwith revoked and [Thompson] is
directed not to operate a motor vehicle on
the highways in the Commonwealth.
[Thompson] is further ordered to surrender
to the Clerk of this Court all licenses or
permits to drive a motor vehicle on the
highways of this Commonwealth for disposal
in the manner provided in § 46.2-398.
[Thompson] is advised that violation of this
- 2 -
order by the operation of a motor vehicle
may subject [Thompson], upon conviction, to
a fine and/or incarceration.
(2) [not checked.]
(3) That the matter be dismissed.
The second adjudicatory block, numbered (2) and unchecked by the
general district court judge, provided: "that a copy of this
determination be served on the respondent personally." Thompson
accepted service by signing the order and was, in addition,
personally served with a copy. That order was not appealed and
became final.
On May 4, 1998, Thompson was arrested for driving after
having been declared an habitual offender.
On November 17, 1998, the general district court judge
entered an order nunc pro tunc January 13, 1998, wherein he
erased the check in adjudicatory box number (3), which provided
"that the matter be dismissed," and checked the box immediately
above, directing "that a copy of this determination be served on
the respondent personally."
On January 11, 1999, based upon the November 17, 1998
order, the trial court convicted Thompson of driving after
having been declared an habitual offender, in violation of Code
§ 46.2-357.
The Commonwealth argues that the provision of the January
13, 1998 order ordering the matter dismissed was a correctable
clerical error and that the general district court judge
- 3 -
inadvertently checked the wrong box, ordering that the matter be
dismissed rather than that the order be served on Thompson.
Code § 8.01-428(B) provides:
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
notice, as the court may order. During the
pendency of an appeal, such mistakes may be
corrected before the appeal is docketed in
the appellate court, and thereafter while
the appeal is pending such mistakes may be
corrected with leave of the appellate court.
Id.
The November 17, 1998 order makes no explanation for the
changes to the January 13, 1998 order directed nunc pro tunc.
Thus, the November 17, 1998 order sets forth no basis for
concluding that the changes resulted from previous inadvertence
or oversight, as distinguished from a change of mind or a
perceived adjudicatory error. Thus, the November 17, 1998 order
was ineffective to modify the January 13, 1998 order.
The January 13, 1998 order set forth two contradictory and
mutually exclusive adjudications. On the one hand, it recited
Thompson's determination to be an habitual offender and ordered
the revocation of his driving privileges. On the other hand, it
ordered the proceeding against him dismissed. Such an ambiguous
order cannot be the predicate for the imposition of a legal
- 4 -
disability exposing a citizen to the hazard of a criminal
conviction.
The judgment of the trial court is reversed, and the charge
is ordered dismissed.
Reversed and dismissed.
- 5 -