PRESENT: All the Justices
DEMARCO ANTONIO GREEN
v. Record No. 012418 JUSTICE BARBARA MILANO KEENAN
January 17, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
The dispositive issue before us is whether an appeal from a
circuit court order revoking a defendant's probation initially
lies within the jurisdiction of this Court or the Court of
Appeals.
In September 2000, Demarco A. Green was convicted in the
Circuit Court of the City of Portsmouth of grand larceny, in
violation of Code § 18.2-95. The circuit court sentenced Green
to a term of three years' imprisonment and suspended two years
and nine months of that sentence conditioned, in part, on
Green's completion of a two-year period of supervised probation.
On October 4, 2000, Green signed a form setting forth
conditions of probation, which provided, among other things,
that Green would "obey all Municipal, County, State and Federal
laws and ordinances." That same day, Green was arrested and
charged with felonious assault of a law enforcement officer, in
violation of Code § 18.2-57. Green was convicted of this
offense and was sentenced to serve a term of seven months'
imprisonment.
In March 2001, the circuit court held a revocation hearing
on the grand larceny conviction. Green moved to strike the
Commonwealth's evidence of the felonious assault conviction,
arguing that the Commonwealth failed to prove that he signed the
probation conditions form before he committed the felonious
assault. The circuit court denied Green's motion, found him
guilty of violating the terms of his probation, and revoked the
suspension of the two year and nine month portion of his
sentence. Green appealed from this judgment to the Court of
Appeals.
Relying on our recent decision in Commonwealth v.
Southerly, 262 Va. 294, 551 S.E.2d 650 (2001), the Court of
Appeals held that it did not have jurisdiction to consider
Green's appeal and transferred the appeal to this Court under
Code § 8.01-677.1. Green v. Commonwealth, 37 Va. App. 92, 93,
97, 554 S.E.2d 108, 109, 111 (2001). In Southerly, a petitioner
filed a motion seven years after his conviction as an adult in a
circuit court, alleging that his conviction was void because the
juvenile and domestic relations district court had failed to
comply with the notice requirements of former Code §§ 16.1-263
and –264. * We concluded that the Court of Appeals lacked
*
In Southerly, the defendant's motion to vacate was based on
Commonwealth v. Baker, 258 Va. 1, 516 S.E.2d 219 (1999), (per
curiam), aff'g Baker v Commonwealth, 28 Va. App. 306, 504 S.E.2d
394 (1998), in which we held that the failure to give notice to
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jurisdiction to consider the petitioner's appeal from the
circuit court's denial of his motion. Southerly, 262 Va. at
299, 551 S.E.2d at 653. We explained that the motion to vacate
his criminal convictions was civil in nature because the motion
was based on an allegation attacking the circuit court's
jurisdiction that was filed after the court no longer had
jurisdiction over the case. Id.
In transferring the present appeal to this Court, the Court
of Appeals also relied on dictum in Heacock v. Commonwealth, 228
Va. 235, 242, 321 S.E.2d 645, 649 (1984), in which we stated
that proceedings to revoke probation are civil in nature. The
Court of Appeals held that it lacked jurisdiction to consider
Green's appeal because the order revoking Green's probation was
not a criminal conviction, a motion resolved while the circuit
court retained jurisdiction over a criminal case, or a civil
case within the Court's jurisdiction under Code § 17.1-405.
Green, 37 Va. App. at 97, 554 S.E.2d at 111.
In considering Green's appeal, we asked the parties to
address the threshold issue whether initial jurisdiction over
this appeal from the circuit court's judgment properly lies in
this Court or in the Court of Appeals. Both the Commonwealth
both parents of a juvenile of certain proceedings in the
juvenile and domestic relations district court rendered void the
juvenile's later conviction on transfer of his case to the
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and Green contend that the Court of Appeals has jurisdiction
over Green's appeal. They rely primarily on Code § 19.2-306 and
our decision in Southerly, arguing that since the circuit court
retained jurisdiction under Code § 19.2-306 to revoke the
suspension of a portion of Green's sentence, Green properly
appealed to the Court of Appeals from the revocation of his
suspended sentence. We agree with this argument.
In Southerly, we considered Code § 17.1-406(A), the statute
governing the Court of Appeals' appellate jurisdiction in
criminal cases. We examined the provision in Code § 17.1-406(A)
that "[a]ny aggrieved party may present a petition for appeal to
the Court of Appeals from . . . any final conviction in a
circuit court of . . . a crime." We explained that this
statutory language limits the Court of Appeals' appellate
criminal jurisdiction "to appeals from final criminal
convictions and from action on motions filed and disposed of
while the trial court retains jurisdiction over the case."
Southerly, 262 Va. at 299, 551 S.E.2d at 653. We stated that
such appeals are part of a process that "is purely criminal in
nature." Id.
A circuit court's jurisdiction to revoke a convict's
probation and suspension of sentence is part of this purely
circuit court. See also Nelson v. Warden, 262 Va. 276, 285, 552
S.E.2d 73, 78 (2001).
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criminal process. That jurisdiction is based on Code § 19.2-
306, which provides in relevant part:
The court may, for any cause deemed by it
sufficient which occurred at any time within the
probation period, or if none, within the period of
suspension fixed by the court, or if neither, within
the maximum period for which the defendant might
originally have been sentenced to be imprisoned,
revoke the suspension of sentence and any probation,
if the defendant be on probation, and cause the
defendant to be arrested and brought before the court
at any time within one year after the probation
period, or if no probation period has been prescribed
then within one year after the period of suspension
fixed by the court, or if neither a probation period
nor a period of suspension has been prescribed then
within one year after the maximum period for which the
defendant might originally have been sentenced to be
imprisoned, whereupon, in case the imposition of
sentence has been suspended, the court may pronounce
whatever sentence might have been originally imposed.
Id.
Under this statute, the circuit court retained jurisdiction
over the suspended portion of Green's sentence on the grand
larceny conviction during the two-year period of his probation
and for one year thereafter. Thus, although the circuit court's
conviction and sentencing order of September 29, 2000 became
final 21 days after it was entered under the provisions of Rule
1:1, the circuit court had jurisdiction over the suspended
portion of Green's sentence at the time it revoked Green's
probation on March 19, 2001. Because Green's appeal of the
revocation order is an appeal from an action taken while the
circuit court retained jurisdiction over his sentence on the
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grand larceny conviction, his appeal lies within the Court of
Appeals' jurisdiction under Code § 17.1-406(A). See Southerly,
262 Va. at 299, 551 S.E.2d at 653.
We disagree with the Court of Appeals' conclusion that a
different result is required by our decision in Heacock. There,
we held that while a forfeiture proceeding on a bond entered in
a criminal case is a purely civil matter, the surety is entitled
to due process protections of notice and a hearing prior to
forfeiture. Heacock, 228 Va. at 241-42, 321 S.E.2d at 649. We
also stated in dictum that proceedings to revoke probation are
civil in nature. Id. at 242, 321 S.E.2d at 649.
Our holding today is incompatible with this dictum, which
we expressly reject. Although a probation revocation hearing is
not a stage of a criminal prosecution, see Gagnon v. Scarpelli,
411 U.S. 778, 782 (1973), and thus does not afford a convict all
rights attending a criminal prosecution, such revocation hearing
is nevertheless a criminal proceeding. See Code § 19.2-306.
For these reasons, we will reverse the Court of Appeals'
transfer order and return Green's appeal to the Court of Appeals
for consideration under the Court's appellate criminal
jurisdiction set forth in Code § 17.1-406(A).
Reversed and returned.
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