COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Richmond, Virginia
TORRI S. WAITERS
OPINION BY
v. Record No. 2822-99-4 JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
Thomas H. Estes, Jr., Assistant Public
Defender (James G. Connell, III, Assistant
Public Defender; Office of the Public
Defender, on briefs), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial court convicted Torri S. Waiters of three counts
of distribution of marijuana in violation of Code
§ 18.2-248.1(a)(2). It sentenced the defendant to two years
incarceration, suspended all but ninety days in jail, placed the
defendant on probation, and ordered drug treatment. As a
condition of the suspended sentence, the trial court ordered
restitution of $1,900 to the Fairfax County Police Department.
The defendant objected to paying restitution. We conclude the
trial court had authority to order the restitution.
The defendant sold marijuana to a Fairfax County Police
Department undercover detective on three separate occasions.
The total paid to the defendant by the police was $1,900. The
defendant pled guilty to each offense and stipulated the
evidence.
The defendant contends that Code §§ 19.2-303 and 19.2-305 1
limit the authority of the trial court to ordering restitution
to an "aggrieved party" for "damages or loss" only. He argues
the police department was not an aggrieved party and the money
used to buy drugs from the defendant was not a damage or loss.
1
Code § 19.2-303 provides in part:
After conviction, whether with or
without jury, the court may suspend
imposition of sentence or suspend the
sentence in whole or part and in addition
may place the accused on probation under
such conditions as the court shall determine
or may, as a condition of a suspended
sentence, require the accused to make at
least partial restitution to the aggrieved
party or parties for damages or loss caused
by the offense for which convicted, or to
perform community service, or both, under
terms and conditions which shall be entered
in writing by the court.
Code § 19.2-305(B) provides:
A defendant placed on probation
following conviction may be required to make
at least partial restitution or reparation
to the aggrieved party or parties for
damages or loss caused by the offense for
which conviction was had, or may be required
to provide for the support of his wife or
others for whose support he may be legally
responsible, or may be required to perform
community services. The defendant may
submit a proposal to the court for making
restitution, for providing for support or
for performing community services.
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We need not address whether the trial court's action fit within
the provisions of Code § 19.2-303 relating specifically to
restitution because the specific provisions of that statute do
not restrict the general authority of a trial court under the
first clause of the statute.
The first clause of Code § 19.2-303 gives broad power to
the trial court to determine the conditions of a suspended
sentence. Sentencing statutes "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,
160, 421 S.E.2d 897, 899 (1992) (citations omitted). The
clauses that have been added to the original enactment 2 have not
been interpreted as limiting or restricting the original
statement of the court's broad powers. Alger v. Commonwealth,
2
Chapter 495 of the 1975 Acts of Assembly enacted Title
19.2. Code § 19.2-303 read "After conviction, whether with or
without jury, the court may suspend imposition of sentence or
suspend the sentence in whole or part and in addition may place
the accused on probation."
Chapter 636 of the 1982 Acts of Assembly appended the
phrase, "under such conditions as the court shall determine."
Chapter 458 added to that, "or may, as a condition of a
suspended sentence require the accused to perform community
service under terms and conditions which shall be entered in
writing by the court."
Chapter 32 of the 1984 Acts of Assembly added into the
1982 amendments the clause, which the defendant relies upon, "to
make at least partial restitution to the aggrieved party or
parties for damages or loss caused by the offense for which
convicted . . . or both."
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19 Va. App. 252, 256, 450 S.E.2d 765, 767 (1994). "Sentencing
statutes are to be liberally construed to give the trial court
broad discretion." Bazemore v. Commonwealth, 25 Va. App. 466,
468, 489 S.E.2d 254, 255 (1997) (citation omitted).
"Code § 19.2-303 empowers a trial court to place conditions
on a suspended sentence. The sole statutory limitation placed
upon a trial court's discretion in its determination of such
conditions is one of reasonableness." Anderson v. Commonwealth,
256 Va. 580, 585, 507 S.E.2d 339, 341 (1998) (citation omitted).
The limitation on the discretion of the trial court is that the
conditions of suspension "must be reasonable in relation to the
nature of the offense, the background of the offender and the
surrounding circumstances." Deal, 15 Va. App. at 161, 421
S.E.2d at 899 (citations omitted).
The condition the trial court created was reasonable and an
appropriate exercise of its discretion. It ordered the return
of the exact sum the undercover agent had paid the defendant for
illegal drugs. At a minimum, the requirement prevented the
defendant from profiting from the crime he committed.
The defendant asserts that the police cannot receive
restitution because they participated in an illegal act by
purchasing drugs from the defendant. A party to an illegal act
cannot recover for damages resulting from the act. However,
this argument ignores the obvious –- the police were acting
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lawfully when they purchased the marijuana from the defendant.
Code § 18.2-258.1(G).
Ordering the defendant to repay the sums he received from
his sale of drugs to the police was a proper exercise of
judicial discretion under Code § 19.2-303. Accordingly, we
affirm.
Affirmed.
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