Arnold Ainley Wright, III v Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: 	Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia
ARNOLD AINLEY WRIGHT, III
OPINION BY
v. 	Record No. 2306-98-2 	JUDGE MARVIN F. COLE
APRIL 4, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Fredrick S. Kaufman (Nachman & Kaufman,
L.L.P., on brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Arnold Ainley Wright, III (appellant), appeals from a July
31, 1998 order of the Chesterfield County Circuit Court (trial
court) revoking his suspended sentence and sentencing him to five
years in prison with two years re-suspended for five years. 	He
contends the trial court lacked jurisdiction to revoke the
suspended sentence. 	He further asserts that the trial court
improperly sentenced him to five years in prison when he had
already served twelve months of his original five-year sentence.
Finding no error, we affirm the judgment of the trial court.
Background
On February 12, 1993, pursuant to a plea agreement, the trial
court sentenced appellant to five years in prison and suspended

the entire sentence for a period of five years. 	On November 7,
1994, after appellant violated the terms of his suspended
sentence, the trial court revoked the entire sentence. 	The court
then re-suspended the sentence "on the same terms and conditions
as previously set out in the Court's order entered February 12,
1993." 	On March 3, 1995, after appellant again violated the terms
of his suspended sentence, the trial court revoked all five years
but re-suspended the sentence "on the condition that the defendant
serve twelve months in the jail of this county and under the
conditions as previously set out in the Court's order of February
12, 1993."
Probation Officer Patricia Walters submitted a capias/show
cause request to the trial court on April 7, 1998, indicating that
appellant had been convicted of statutory burglary and felony
petit larceny on March 25, 1998, in Henrico County Circuit Court.
At his subsequent revocation hearing, appellant indicated that the
crime for which he had been convicted in Henrico County occurred
in August 1997.1
Following a June 25, 1998 revocation hearing, the trial court
revoked appellant's five-year suspended sentence and re-suspended
two years of that sentence for five years, imposing three years to
be served in prison.
1 In his brief, appellant represents that the crime occurred
on November 17, 1997.
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Jurisdiction
Appellant contends the trial court lacked jurisdiction to
revoke his suspended sentence based on the March 25, 1998
conviction because his suspension period expired five years from
the date of the court's February 12, 1993 order or on February 12,
1998. 	See Carbaugh v. Commonwealth, 19 Va. App. 119, 126, 449
S.E.2d 264, 268 (1994) (noting that once a defendant's period of
suspension expires, the trial court loses jurisdiction to revoke
his sentence). 	Appellant reasons the suspension period imposed
by the trial court in the February 12, 1993 order became final
twenty-one days after entry of that order, see Rule 1:1,2 and
that the court lacked authority to subsequently extend the
suspension period. 	In the alternative, appellant asserts the
trial court's November and March orders, by referring back to
the conditions imposed by the February order, reiterated the
original five-year suspension period and did not set new
suspension periods.
The Commonwealth responds that each of the trial court's
revocation orders set new five-year suspension periods, which
ran from the dates of entry of the revocation orders. 	The
Commonwealth contends the trial court had authority to extend
2 Rule 1:1 provides that "[a]ll 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."
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the suspension period when it sentenced appellant following
appellant's violations of the conditions of his previously
suspended sentence. 	We agree with the Commonwealth.
"After conviction, whether with or without jury, the court
may suspend the sentence in whole or part and in addition may
place the accused on probation under such conditions as the court
shall determine . . . ." 	Code § 19.2-303. 	"In any case where a
court suspends execution of a sentence, it may fix the period of
suspension for a reasonable time, having due regard to the gravity
of the offense, without regard to the maximum period for which the
defendant might have been sentenced." 	Code § 19.2-303.1.
The court may, for any cause deemed by
it sufficient which occurred at any time
within . . . the period of suspension fixed
by the court, . . . revoke the suspension of
sentence . . . and cause the defendant to be
arrested and brought before the court at any
time . . . within one year after the period
of suspension fixed by the court . . . .
Code § 19.2-306. 	A court retains the authority to revoke a
suspended sentence despite the proscriptions of Rule 1:1. 	See
Robertson v. Sup. of the Wise Corr. Unit, 248 Va. 232, 237, 445
S.E.2d 116, 118 (1994).
"These statutes obviously confer upon trial courts 'wide
latitude' and much 'discretion in matters of suspension and
probation . . . to provide a remedial tool . . . in the
rehabilitation of criminals' and, to that end, 'should be
liberally construed.'" 	Deal v. Commonwealth, 15 Va. App. 157,
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161, 421 S.E.2d 897, 899 (1992) (citation omitted). 	"In
addition, the power of the courts to revoke suspensions and
probation for breach of conditions must not be restricted beyond
the statutory limitations." 	Grant v. Commonwealth, 223 Va. 680,
684, 292 S.E.2d 348, 350 (1982).
We have previously recognized a trial court's authority to
extend a defendant's suspension period after entering a sentencing
order. 	See Briggs v. Commonwealth, 21 Va. App. 338, 464 S.E.2d
512 (1995). 	In Briggs, the trial court entered a January 13, 1982
conviction order that suspended imposition of the defendant's
sentence for an unspecified period of time. 	Because the crime for
which the defendant had been convicted carried a maximum sentence
of ten years, the suspension period would have expired on January
13, 1992. 	See id. at 341-42, 464 S.E.2d at 513-14.
On November 10, 1983, the trial court in Briggs revoked the
suspended imposition of the sentence and sentenced the defendant
to ten years in prison with five years suspended for an
unspecified period of time. 	In July 1994, the trial court
conducted another revocation proceeding, but the defendant argued
the court lacked jurisdiction, contending that "because the trial
court provided no specific period of suspension in either the
January 13, 1982 or November 10, 1983 orders, the statutory period
of suspension under Code § 19.2-306 ran from the date of the first
order." 	Id. at 341, 464 S.E.2d at 513.
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In rejecting this argument, we held that the effect of the
court's November 10, 1993 order was to establish a ten-year
suspension period running from the date of the November order. 	We
explained:
The obvious purpose of Code § 19.2-306 is
remedial; it provides closure and a time
limitation when the trial court fails to
include such a limitation in its order of
suspension. 	Nothing in Code § 19.2-306
indicates that the legislature intended to
limit the trial court's authority under Code
§ 19.2-303.1 to fix a period of suspension
for a "reasonable time . . . without regard
to the maximum period for which the
defendant might have been sentenced."
When the trial court revoked its
suspension of imposition of sentence on
November 10, 1983, it was well within the
statutory time limitation of Code
§ 19.2-306. 	At that time, the trial court
could have suspended the five-year suspended
sentence for a period of ten years (or
more), being limited only by what would be
"reasonable." 	Code § 19.2-303.1. 	Because
the trial court was again silent as to the
period of suspension, the limitations of
Code § 19.2-306 applied from that point.
If we accepted appellant's argument
that because on November 10, 1983 the trial
court failed to set a specific time for the
suspension, the statutory time began to run
from the date imposition of sentence was
withheld—January 13, 1982—appellant would
receive a benefit because of the trial
court's indulgence and attempts to help
appellant overcome his drug dependency.
Clearly, this was not the legislature's
intent and the plain language of the statute
does not require such a result.
Id. at 343-44, 464 S.E.2d at 514.
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Contrary to appellant's argument, we interpret the trial
court's November 16, 1994 and March 3, 1995 orders as expressing
an intention to re-suspend appellant's sentence for a period of
five years. 	The effect of these revocation orders, therefore,
was to set new five-year suspension periods ending on November
16, 1999, and on March 3, 2000, respectively.
Furthermore, we hold that Briggs is controlling authority
in this case and Code § 19.2-303.1, which expressly provides
that a trial court may suspend a sentence for a reasonable time
"[i]n any case," pertains not only to a defendant's initial
sentencing but also to sentencing in revocation proceedings.
This result is permitted by the plain language of the statute
and is consistent with legislative intent to provide courts with
remedial tools for rehabilitating offenders. 	We also reject the
contention that extending a defendant's suspension period, in
the context of a revocation proceeding, contravenes Rule 1:1.
Accordingly, the trial court had jurisdiction to revoke
appellant's suspended sentence based on appellant's March 25,
1998 conviction in Henrico County.3
3 We note that the behavior that resulted in the March 1998
conviction occurred in 1997, within the original five-year
suspension period.
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Credit for Time Served
After the trial court pronounced its sentence at the June
25, 1998 revocation hearing, the following exchange occurred
between the court and counsel for appellant:
[COUNSEL FOR APPELLANT]: 	Judge, if I might
inquire, The Court recently gave him 12
months.
THE COURT: 	Whatever time he served, he'll
get credit for.
The court's July 31, 1998 sentencing order made no mention of a
credit for time served.
Appellant initially contended the trial court's sentence
was illegal because he had only four years left to serve on his
original sentence after he served twelve months in jail. 	At
oral argument, however, counsel for appellant represented to
this Court that appellant had been given credit for the time
served, and he requested that issue be abandoned. 	Accordingly,
we will not address this issue further.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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