COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Clements
Argued at Richmond, Virginia
ANTHONY L. McFARLAND
OPINION BY
v. Record No. 2014-01-2 JUDGE LARRY G. ELDER
DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
John Richard Alderman, Judge
Joseph W. Kaestner (Kaestner & Associates,
P.C., on brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Anthony McFarland (appellant) appeals from the decision of
the Circuit Court of Hanover County (the trial court) denying
his request to remove from the terms of his suspended sentence
the condition that he keep the peace and be of good behavior.
On appeal, he contends the trial court erroneously concluded it
lacked jurisdiction pursuant to Code § 19.2-304 to take the
requested action. We hold the trial court correctly ruled it
lacked jurisdiction, and we affirm.
I.
BACKGROUND
On March 20, 1995, appellant was convicted for one count of
possessing a sawed-off shotgun pursuant to Code § 18.2-300 and
two counts of pointing a gun at a deputy pursuant to Code
§ 18.2-282. On May 22, 1995, the court sentenced appellant as
follows:
[Appellant] is hereby sentenced to ten (10)
years, all suspended on Possess Sawed-off
Shotgun, and he is fined $100.00 on each
charge of Point Gun [sic] at a Deputy, said
fines are suspended. The defendant is
[o]rdered to keep the peace, be of good
behavior, [and] violate no laws of the
Commonwealth or any other jurisdiction[,]
and he is placed on supervised probation.
Appellant complied with the requirements of his supervised
probation, and his probation officer subsequently requested that
he be released from "further supervision." On November 19,
1996, the trial court entered an order releasing appellant from
further supervision, which order provided, in pertinent part, as
follows: "[I]t is adjudged and ordered that [appellant] be
released from further supervision, conditioned on his future
good behavior, but this order shall in no manner change the
suspended sentence in this cause or the condition[s] thereof
other than supervision by the Probation and Parole Officer."
By motion filed June 4, 2001, appellant moved the court
"for an order modifying his sentence to eliminate the balance of
his term of unsupervised probation so that he may join the armed
services." (Emphasis added). Appellant said he had no new
criminal violations. Appellant represented that he had been
accepted into the United States Marine Corps but that he could
not enter because of "[t]he continued existence of this period
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of unsupervised probation." Apparently equating the period of
unsupervised probation with the remaining period of the
suspension of sentence, he asked the court to "modify its order
of conviction and eliminate the remaining time during which
[appellant's] sentence is suspended." (Emphasis added).
In argument on the motion, appellant represented that the
Marine Corps "insists that there be no period of unsupervised
probation" and that "[it] construes keeping the peace and being
of good behavior as being unsupervised probation. Suspended
sentence they don't have a problem with just as long as there is
nothing that looks like unsupervised probation . . . ."
The Commonwealth asserted that Rule 1:1 applied and the
trial court lacked jurisdiction to modify the sentence. The
trial court ruled as follows: "I'm going to deny your motion
. . . . I just don't think I've got the authority to do it."
II.
ANALYSIS
Code § 19.2-304 authorizes a court to "increase or decrease
the probation period" and to "revoke or modify any condition of
probation . . . upon a hearing after reasonable notice to both
the defendant and the attorney for the Commonwealth." Appellant
contends that the remaining portion of his suspended sentence
was simply a term of unsupervised probation which the trial
court had the authority to eliminate pursuant to Code
§ 19.2-304. We disagree and hold that Rule 1:1 applied to
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divest the trial court of jurisdiction to modify the length and
conditions of appellant's suspended sentence other than the
condition requiring his participation in supervised probation. 1
As the Supreme Court has observed,
Code § 19.2-303 permits the trial
court, after conviction, to "suspend
imposition of sentence or suspend the
[execution of] sentence in whole or part and
in addition [to] place the accused on
probation." (Emphasis added.) Section
19.2-304 deals with probation only and
permits the court to increase or decrease
the period of probation or modify any
condition of probation. . . . [Code
§ 19.2-303] also permits the court under
specified circumstances to suspend or
otherwise modify the unserved portion of a
sentence and place the defendant on
probation. . . .
Consequently, we see the statutes as
distinguishing between a suspension, . . .
on the one hand, and probation, on the other
hand.
Grant v. Commonwealth, 223 Va. 680, 685, 292 S.E.2d 348, 350
(1982) (emphasis added) 2 ; see also Carbaugh v. Commonwealth, 19
1
Because appellant did not argue at trial or on appeal that
any other code section permitted the requested modification, we
limit our analysis to the court's authority pursuant to Code
§ 19.2-304.
2
Grant also cited portions of former Code § 53-272:
Code § 53-272 . . . provides that "the
court may suspend the execution of sentence,
in whole or in part, or the imposition of
sentence or commitment, and may also place
the defendant on probation under the
supervision of a probation officer, during
good behavior for such time and under such
conditions of probation as the court shall
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Va. App. 119, 126, 449 S.E.2d 264, 268 (1994) (citing Grant for
the proposition that "probation and suspension of sentence are
separate and distinct concepts"). Probation is an option
available to the sentencing court as one of multiple "reasonable
terms and conditions" the court has "the authority to fix . . .
for the suspension of execution of a sentence." Hartless v.
Commonwealth, 29 Va. App. 172, 175, 510 S.E.2d 738, 739 (1999).
"To be effective, probation must be concurrent with a coordinate
term of suspension of sentence," id., but a court's authority to
modify the terms of probation pursuant to Code § 19.2-304 does
not give it the authority to modify any other terms upon which
the suspension of a sentence was conditioned. Thus, Rule 1:1
governs. Subject to limited exceptions not applicable here,
that rule 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,
determine." (Emphasis added.) [Code
§ 53-272] also permits the court under
specified circumstances to suspend or
otherwise modify the unserved portion of a
sentence and place the defendant on
probation.
Grant, 223 Va. at 685, 292 S.E.2d at 350-51. Code § 53-272 was
repealed in 1982, at which time the second of the above-cited
provisions was incorporated into present Code § 19.2-303, see
1982 Va. Acts, ch. 636, as indicated in the altered quote
contained in the text of the instant opinion. The holding in
Grant that "the [relevant] statutes distinguish between a
suspension . . . and probation," 223 Va. at 685, 292 S.E.2d at
351, remains valid under the current statutory scheme.
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or suspended for twenty-one days after the date of entry, and no
longer."
Here, the trial court sentenced appellant to serve ten
years for possession of a sawed-off shotgun and to pay a $100
fine for each of the two counts of pointing a gun at a deputy.
It suspended both the sentence and the fines based on four
express conditions: that appellant "keep the peace, be of good
behavior, violate no laws of the Commonwealth or any other
jurisdiction" and undergo "supervised probation." 3 The trial
court subsequently terminated appellant's supervised probation,
as it was authorized to do pursuant to Code § 19.2-304,
conditioned on appellant's "future good behavior." However, the
court expressly provided that its termination of appellant's
supervised probation "shall in no manner change the suspended
sentence in this cause or the condition[s] thereof other than
supervision by the Probation and Parole Officer." Thus, the
3
Because being of good behavior was an express condition of
the suspension of appellant's sentence, we need not examine
appellant's challenge to the ongoing validity of the assertion
that "'good behavior is a condition of every suspension, with or
without probation, whether expressly so stated or not.'" Resio
v. Commonwealth, 29 Va. App. 616, 622, 513 S.E.2d 892, 895
(1999) (quoting Marshall v. Commonwealth, 202 Va. 217, 220, 116
S.E.2d 270, 273 (1960)) (decided under former Code § 53-272).
Compare id. with Singleton v. Commonwealth, 11 Va. App. 575,
577, 400 S.E.2d 205, 206-07 (1991) (noting Singleton's argument
that Marshall was decided under Code § 53-272, which contained
an express "good behavior" requirement, and "that Code § 53-272
has been repealed and replaced by present Code § 19.2-303, which
does not require a condition of good behavior [and] simply
authorizes suspension 'under such conditions as the court shall
determine'").
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requirement that appellant be of good behavior remained a
condition of the suspension of his sentence and became a
condition of the termination of his participation in supervised
probation, as well. The court was authorized pursuant to Code
§ 19.2-304 to remove the good behavior requirement as a
condition of the termination of his probation, but it lacked
jurisdiction to alter the good behavior and related provisions
imposed as conditions of the suspension of appellant's sentence
more than twenty-one days after the court's entry of its May 22,
1995 sentencing order.
Because what appellant sought was a modification of the
terms of the suspension of his sentence, we hold the trial court
did not err in concluding it lacked jurisdiction to provide the
requested relief. Thus, we affirm.
Affirmed.
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