COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
DENNIS JAMES HARTLESS
OPINION BY
v. Record No. 0433-98-3 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Elizabeth P. Murtagh, Assistant Public
Defender, for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction of indecent exposure, in
violation of Code § 18.2-387, Dennis James Hartless contends that
the trial court abused its discretion in sentencing him to an
indefinite term of probation. He argues further that his
sentence violated his Eighth Amendment right against cruel and
unusual punishment. We modify Hartless's term of probation to be
coterminous with his term of suspension of sentence. We affirm
the judgment of the trial court thus modified.
Hartless pled guilty to indecent exposure, in violation of
Code § 18.2-387. The trial court sentenced him to serve twelve
months in jail, with two months suspended upon the following
conditions:
Good behavior. The defendant shall be of
good behavior for 1 year from the defendant's
release from confinement.
Supervised probation. The defendant is
placed on intensive probation to commence on
release from incarceration, under the
supervision of a Probation Officer for an
indefinite period of time, to be reviewed
yearly. The defendant shall comply with all
the rules and requirements set by the
Probation Officer. The Court doth order that
the defendant seek and obtain treatment
through the sex group program that was
recommended by Dr. Sloop.
This case is governed by two statutes. Code § 19.2-303
provides, in pertinent part:
After conviction, . . . 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 § 19.2-306 provides, in pertinent 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
. . . .
Code § 19.2-303 grants a trial court the authority to fix
reasonable terms and conditions for the suspension of execution
of a sentence, including the imposition of probation. See
Nuckoles v. Commonwealth, 12 Va. App. 1083, 1085-86, 407 S.E.2d
355, 356 (1991). "The only limitation placed upon the discretion
of the trial court in its determination of what conditions are to
be imposed is that a condition be 'reasonable.'" Dyke v.
Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952).
A court's ability to revoke the suspension of a sentence and
to impose that sentence permits it to enforce a probationary
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requirement as a condition of suspension. To be effective,
probation must be concurrent with a coordinate term of suspension
of sentence.
Code § 19.2-306 governs the ability of a court to revoke the
suspension of a sentence. In the absence of a specified period
of probation or a specified period of suspension, a trial court
may revoke a suspension of sentence for a probation violation
only when the violation occurs within the maximum period for
which the defendant might originally have been sentenced to be
imprisoned.
Hartless contends that the trial court abused its discretion
in sentencing him to an indefinite period of probation. We
agree. The nature of the crime and Hartless's history of similar
offenses support a decision to impose extended probation upon him
as a condition of the suspension of his sentence. However, the
trial court specified no period of probation. The good behavior
requirement sufficiently defined a period of suspension
continuing for one year from Hartless's release from confinement.
Because probation depends for enforceability upon the existence
of a term of sentence suspension, the duration of Hartless's
probation cannot extend beyond one year from Hartless's release
from confinement, the specified period of suspension.
Hartless further contends that the indefinite term of
probation is an unreasonable restraint on his liberty and
constitutes cruel and unusual punishment, violating the Eighth
Amendment. Hartless is barred from raising this issue on appeal
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because he did not raise it at trial. Rule 5A:18. See also
Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630,
631 (1991); Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405
S.E.2d 438, 441 (1991).
We modify Hartless's term of probation such that it shall
continue for a term ending one year following his release from
confinement. With that modification, the judgment of the trial
court is affirmed.
Modified and affirmed.
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