COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Clements
Argued at Salem, Virginia
RUDOLPH LEE CRAWLEY
MEMORANDUM OPINION* BY
v. Record No. 2374-05-3 JUDGE JEAN HARRISON CLEMENTS
MAY 22, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
David A. Melesco, Judge
John Gregory, Jr., for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
On appeal from the October 12, 2005 order of the trial court finding he violated the
conditions of his probation and revoking his suspended sentences, Rudolph Lee Crawley
(appellant) contends the trial court lacked authority to make such a finding and revoke his
suspended sentences because he was not on probation at the time of the charged probation
violation. For the reasons that follow, we affirm the judgment of the trial court.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
By order entered April 29, 1996, the trial court sentenced appellant to five years in prison
on his conviction for statutory burglary and three years in prison on his conviction for possession
of cocaine. The trial court suspended six years and three months of the sentences on the
condition that appellant successfully complete one year of supervised probation and “be of good
behavior for a period of five . . . years following his release from probation.” The order did not
state when the one-year period of supervised probation was to begin.
On April 3, 2002, the trial court issued a capias for appellant’s arrest for failing to comply
with the terms of his suspended sentences. The capias was executed on May 5, 2002, and the
court conducted a revocation hearing on July 3, 2002. By order entered July 30, 2002, the court
revoked appellant’s suspended sentences and resuspended the entirety of those sentences on the
condition that appellant serve nine months in jail, with credit for time served while awaiting the
revocation hearing, and successfully complete one year of supervised probation upon his release
from jail. Although the court’s order stated that the court considered “the evidence of the
Probation Officer and the additional evidence adduced in open court” regarding “the violations
of probation alleged to have been committed by” appellant, it did not contain an explicit finding
by the court that appellant had violated the terms of his suspended sentences.
By order entered October 23, 2003, the court again revoked appellant’s suspended
sentences and resuspended those sentences on the condition that appellant serve twelve months
in jail, successfully complete two years of supervised probation, and be of good behavior for
eight years.
By order entered June 7, 2005, the court found appellant had violated the conditions of
his probation and revoked the suspension of his previously suspended sentences. The court then
resuspended the entirety of those sentences on the condition that appellant successfully complete
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six months of supervised probation beginning May 26, 2005, and be of good behavior for two
years beginning May 26, 2005.
In June 2005, appellant failed to report in person to his probation officer as required and a
capias for his arrest was issued. The trial court conducted a revocation hearing on September 15,
2005. By order dated October 12, 2005, the court found appellant had violated the conditions of
his probation and revoked the suspension of his previously suspended sentences. The court then
reimposed the four years and six months appellant had remaining on his sentences and
resuspended two years of those sentences on the condition that appellant be of good behavior for
five years beginning September 15, 2005.
This appeal followed.
II. ANALYSIS
Appealing from the October 12, 2005 revocation order, appellant contends the trial court
lacked authority to revoke his suspended sentences in October 2005 because “he was not on
probation at the time of the probation violation in 2005.” He maintains he was not on probation
in 2005 because he had completed the one-year probationary period imposed by the trial court in
its April 29, 1996 order before he violated the terms of his suspended sentences in 2002. Thus,
he argues, the court lacked jurisdiction to enter the July 30, 2002 order revoking his suspended
sentences and imposing an additional period of probation. As a result, appellant’s argument
continues, that order and all of the subsequent revocations orders, including the June 7, 2005
order imposing the period of probation at issue here, were invalid and of no force and effect.
Alternatively, he argues he was not on probation in 2005 because the order entered by the court
on July 30, 2002, was “not sufficiently clear enough to extend probation past 2002.” We will
address each of these arguments separately.
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A. Jurisdiction to Enter the July 30, 2002 Order
“[U]nder Virginia law once a defendant receives a suspended sentence, a judge’s power
to revoke the suspension of sentence and probation is governed by statute.” Carbaugh v.
Commonwealth, 19 Va. App. 119, 123, 449 S.E.2d 264, 266 (1994). “The language of Code
§ 19.2-306 specifies the periods in which the events amounting to cause for revocation must
occur in order for a judge to revoke a suspended sentence.” Id. That statute authorizes the trial
court “to revoke the suspended sentence ‘for any cause the court deems sufficient’ that occurs
within the probation period, within the period of suspension, or, if neither is fixed, within the
maximum period for which the defendant might originally have been sentenced to be
imprisoned.” Peyton v. Commonwealth, 268 Va. 503, 508, 604 S.E.2d 17, 20 (2004) (emphasis
added) (quoting Code § 19.2-306). Thus, in determining whether a defendant’s violation of a
condition of the suspension of sentence occurred within the applicable statutory time limitations
of Code § 19.2-306, the courts must look not just at the prescribed probation period, as appellant
suggests, but at the entire period of suspension. See Carbaugh, 19 Va. App. at 126, 449 S.E.2d at
268 (noting that, once a defendant’s “period of suspension expires,” the trial court loses
jurisdiction to revoke his sentence). “[T]he 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).
Here, the original sentencing order entered on April 29, 1996, expressly suspended six
years and three months of appellant’s sentences on the condition that appellant successfully
complete one year of supervised probation and “be of good behavior for a period of five . . .
years following his release from probation.” (Emphasis added.) Because the probation and good
behavior periods ran successively, the overall period of suspension of appellant’s sentences was
six years in length. Although the order did not state when the probationary period was to begin,
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for purposes of this appeal, we assume that the period of supervised probation began, as
appellant’s asserts, on the date of the sentencing order. Thus, the events amounting to cause for
revocation had to occur by April 29, 2002, for the trial court to have jurisdiction to revoke
appellant’s suspended sentences.
The record establishes that appellant failed to comply with the terms of his suspended
sentences on or before April 3, 2002. Because that violation occurred within the period of
suspension fixed by the court, the trial court had jurisdiction to enter the July 30, 2002 order
revoking appellant’s suspended sentences and resuspending those sentences for a fixed period on
certain conditions. Accordingly, appellant’s contention that the trial court lacked authority to
revoke his suspended sentences in October 2005 because the court exceeded its statutory
authority when it revoked appellant’s sentences in 2002 is without merit.
B. Contents of the July 30, 2002 Order
As previously mentioned, appellant also contends, in the alternative, that he was not on
probation in 2005 because the July 30, 2002 revocation order did not “extend probation past
2002.” He argues that order failed to validly extend probation because it did not contain a
specific finding that he had violated the terms of his suspended sentences and because it
“terminated probation and extended probation at the same time.” Because we hold the July 30,
2002 order is not subject to collateral attack on these grounds, we will not consider the merits of
this contention.
While an order that is void ab initio may be “challenged at any time,” an order that is
merely voidable “is not subject to collateral attack and is subject to the limitations of Rule 1:1.”
Singh v. Mooney, 261 Va. 48, 51, 541 S.E.2d 549, 551 (2001). Thus, orders that are merely
voidable may only “be set aside by motion filed in compliance with Rule 1:1 or provisions
relating to the review of final orders.” Id. at 52, 541 S.E.2d at 551. “The distinction between an
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action of the court that is void ab initio rather than merely voidable is that the former involves
the underlying authority of a court to act on a matter whereas the latter involves actions taken by
a court which are in error.” Id. at 51, 541 S.E.2d at 551.
Here, as we previously determined, the trial court had statutory authority to enter the July
30, 2002 order. The instant contention, challenging the contents of the order, raises a question of
trial court error, not jurisdiction. Indeed, the order’s lack of a specific finding that appellant had
violated the terms of his suspended sentences and its arguable lack of clarity did not divest the
court of jurisdiction in this case. At most, such errors or irregularities rendered the order merely
voidable rather than void ab initio. See Robertson v. Commonwealth, 181 Va. 520, 536, 25
S.E.2d 352, 359 (1943) (“‘[A] judgment rendered by a court of competent jurisdiction is not void
[ab initio] merely because there are irregularities or errors of law in connection therewith.’”
(quoting 31 Am. Jur. Judgments § 401)). Appellant could have challenged the court’s entry of
the order upon a timely motion to the trial court or a timely direct appeal to this Court, see Singh,
261 Va. at 52, 541 S.E.2d at 551, but he did not. Thus, the July 30, 2002 order remained in full
force and effect and may not now be collaterally attacked on such grounds. See Simmers v.
Commonwealth, 11 Va. App. 375, 379, 398 S.E.2d 693, 695 (1990) (holding that no collateral
attack was allowed where the trial court had jurisdiction and the defendant failed to challenge the
court’s judgment within twenty-one days or timely petition for an appeal).
Accordingly, we will not entertain appellant’s alternative arguments.
III. CONCLUSION
For these reasons, we affirm the judgment of the trial court.
Affirmed.
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Rudolph Lee Crawley v. Commonwealth
Combined Opinion