COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Clements and Senior Judge Coleman 

Argued at Richmond, Virginia 

CHARLES DEAN LAWSON 

 OPINION BY 

v. Record No. 0998-01-2 JUDGE JAMES W. BENTON, JR. 

 APRIL 9, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Todd M. Ritter (Daniels & Morgan, on brief), 

for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

 The trial judge convicted Charles Dean Lawson of the felony 

of willfully failing to appear in the circuit court in violation 

of Code § 19.2-128(B). Lawson contends the statute does not 

apply to his failure to appear for a "show cause" hearing 

concerning a probation violation. We agree and reverse the 

conviction. 

 I. 

 A grand jury indicted Lawson for "feloniously fail[ing] to 

appear before the circuit court . . . , as required after 

notice, on a felony charge," in violation of Code § 19.2-128. 

At trial, the prosecutor informed the judge that on December 16, 

1999, Lawson "came to court, but then left before his case was 
called that day." The prosecutor also informed the judge that 

Lawson's attorney contests whether Code § 19.2-120 "covers this 

particular type of event." The prosecutor presented as his only 

evidence a bond signed by Lawson as a condition of his bail. 

The prosecutor asserted that Lawson had been admitted to bail 

pursuant to Code § 19.2-120 and argued that Code § 19.2-128 

should be interpreted to include persons granted bail under the 

provisions of Code § 19.2-120. 

 Lawson's attorney responded "that there is no contest on 

the facts that [Lawson] had in fact appeared on that day and 

then left before his case was called." Lawson's attorney argued 

that Lawson's failure to appear was not punishable under the 

statute, but, rather, "may be punishable under the contempt 

power of the Court." He asserted that Lawson's "court date was 

for a show cause hearing" concerning a prior felony conviction 

and that "you have to draw a distinction between [Lawson] and 

someone who would come in having been charged with a felony 

offense for which they are awaiting trial." He argued that 

Lawson's case did not fit within either category of persons 

described in Code § 19.2-128(B). 

 The trial judge ruled that "when a person has been served 

with a show cause notice on a felony conviction, . . . [and] 

fails to appear, it's a violation of the statute." He then 

convicted Lawson of violating Code § 19.2-128(B). This appeal 

followed. 

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 II. 

 Code § 19.2-128(B) provides as follows: 

Any person (i) charged with a felony offense 

or (ii) convicted of a felony offense and 

execution of sentence is suspended pursuant 

to § 19.2-319 who willfully fails to appear 

before any court as required shall be guilty 

of a Class 6 felony. 

 Lawson contends that his conduct does not fall within the 

statute's proscription. The Commonwealth does not contend that 

subpart (ii) is implicated by the circumstances of this case. 

Rather, it contends that Lawson's "conduct violated [subpart] (i) 

of the statute." Thus, the Commonwealth argues that, because the 

circuit court retained continuing jurisdiction over Lawson's case 

to address matters involving revocation of probation and 

suspended sentences, Lawson's underlying charge was not a final 

"conviction" and that Lawson was still "charged" for purposes of 

the statute. 

 In reviewing this statute, we are guided by familiar 

principles. "'It is the duty of the courts to give effect, if 

possible, to every word of the written law.'" Burnette v. 

Commonwealth, 194 Va. 785, 788, 75 S.E.2d 482, 484-85 (1953) 

(citation omitted). 

 Our duty is "to construe the law as it is 

written." We assume that "the legislature 

chose, with care, the words it used when it 

enacted the relevant statute, and we are 

bound by those words . . . ." "To depart 

from the meaning expressed by the words is 

to alter the statute, to legislate and not 

to interpret." 

 * * * * * * * 

 "When the General Assembly uses two 

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different terms in the same act, it is 

presumed to mean two different things." 

Greenberg v. Commonwealth, 255 Va. 594, 600-01, 499 S.E.2d 266, 

269-70 (1998) (citations omitted). We, therefore, conclude that 

when the General Assembly used "charged" in subpart (i) of Code 

§ 19.2-128 and "convicted" in subpart (ii), the General Assembly 

intended two different meanings. In addition, we construe the 

words in the statute "according to their ordinary meaning." 

Patterson v. CSX Transportation, 245 Va. 483, 487-88, 429 S.E.2d 

215, 218 (1993). 

 The evidence did not prove that, when Lawson failed to 

appear in court on December 16, 1999, his status was "charged 

with a felony." The record indicates that Lawson failed to 

appear at a "show cause" hearing. The parties further agreed 

that the hearing was a "revocation proceeding" for an underlying 

felony offense. No evidence establishes, however, that Lawson 

was "charged with a felony offense," as contemplated by Code 

§ 19.2-128(B)(i). Indeed, the Commonwealth represents that "a 

final sentencing order had been entered prior to his failure to 

appear." 

 Although the Commonwealth argues that the General Assembly 

intended a broad construction of the statute, we must be guided 

by the principles "that penal statutes must be 'strictly 

construed against the State' and that such statutes 'cannot be 

extended by implication or construction, or be made to embrace 

cases which are not within their letter and spirit.'" 

Commonwealth v. Athey, 261 Va. 385, 388, 542 S.E.2d 764, 766 

(2001). "[B]efore the accused can be punished, 'his case must be 

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plainly and unmistakably within the statute.'" Waldrop v. 

Commonwealth, 255 Va. 210, 215, 495 S.E.2d 822, 825 (1998). 

 Accepting that the proceeding Lawson failed to attend was 

for the purpose of considering whether a "revocation" of Lawson's 

probation or suspended sentence was warranted, we decline to 

hold, as suggested by the Commonwealth, that the word "charged," 

which is found in Code § 19.2-128(B)(i), should be read to mean 

charged or convicted and that the circuit court's limited 

jurisdiction over the revocation proceedings established that 

Lawson's conviction was not final. Although an alleged violation 

of the conditions of either probation or a suspended sentence is 

a serious matter, such an allegation does not render a person 

"charged with a felony offense." Proof of Lawson's failure to 

appear at a hearing to show cause whether his probation or a 

suspended sentence should be revoked does not plainly fall within 

the proscription of Code § 19.2-128(B). 

 We hold, therefore, that the evidence in the record did not 

prove that when Lawson failed to appear in the circuit court on 

December 19, 1999, he was "charged with a felony offense," as 

required for a conviction under Code § 19.2-128(B). 

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Accordingly, we reverse the conviction and dismiss the 

indictment. 

 Reversed and dismissed. 

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