COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
SEAN DION KEELING
OPINION BY
v. Record No. 2118-96-1 JUDGE JERE M. H. WILLIS, JR.
JULY 29, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kenneth N. Whitehurst, Jr., Judge
Richard C. Clark (Office of the Public
Defender, on brief), for appellant.
Kimberley A. Whittle, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Sean Dion Keeling contends that the trial court erred in
revoking his suspended sentence. We find no error and affirm.
On May 6, 1992, the trial court accepted Keeling's guilty
plea to charges of malicious wounding and use of a firearm in the
commission of a felony. It sentenced him to serve eight years
and four months, with three years suspended. The conditions for
suspension included:
[4] That the defendant make restitution . . .
in an amount not to exceed $10,000. Said
restitution shall be paid on a schedule set
by his probation officer. Exact amount of
restitution shall be determined on 6-15-92.
Keeling was released from incarceration on December 23,
1993, under concurrent probation and parole supervision.
Although the precise amount of restitution had not been
determined on June 15, 1992, Keeling signed an agreement with his
probation and parole officer on January 4, 1993, requiring him to
pay $100 per month in restitution. 1
On November 21, 1995, Keeling's probation officer notified
the Commonwealth's Attorney that Keeling had failed to make the
restitution payments. The trial court entered an order to show
cause against Keeling.
At the show cause hearing on August 6, 1996, testimony
revealed that Keeling had paid only $865 on his restitution
obligation. Despite repeated reminders from his supervising
probation officer, Keeling paid only $50 in 1995. Medical bills
for the victim exceeded $38,000, and further surgery relating to
the 1991 malicious wounding was anticipated.
The trial court revoked the suspension of Keeling's
sentence. It then re-suspended execution of the sentence,
conditioned, in part, on his payment of the restitution, which
the trial court fixed at $10,000.
"'A court which has ordered a suspension of sentence
undoubtedly has the power to revoke it when the defendant has
failed to comply with the conditions of the suspension.'"
Russnak v. Commonwealth, 10 Va. App. 317, 321, 392 S.E.2d 491,
493 (1990) (quoting Griffin v. Cunningham, 205 Va. 349, 354, 136
S.E.2d 840, 844 (1964)). See Code §§ 19.2-305.1(D), 19.2-306.
Whether to revoke the suspension of a sentence lies within the
1
In a letter dated July 23, 1993, Keeling's probation officer
informed the Commonwealth's attorney that the exact amount of
restitution had not been determined.
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sound discretion of the trial court, whose findings of fact and
judgment will not be reversed absent a clear showing of an abuse
of discretion. Singleton v. Commonwealth, 11 Va. App. 575, 580,
400 S.E.2d 205, 208 (1991). See Duff v. Commonwealth, 16 Va.
App. 293, 429 S.E.2d 465 (1993).
Keeling argues that because no "[e]xact amount of
restitution" had been fixed, the trial court lacked the authority
to revoke the suspension of his sentence on the ground of his
non-payment. We disagree.
Code § 19.2-303 provides, in part, that:
[T]he court may suspend imposition of
sentence or suspend the sentence in whole or
part and . . . 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 . . . under terms or conditions
which shall be entered in writing by the
court.
(Emphasis added). See Code § 19.2-305.1(C).
The trial court's order suspending Keeling's sentence and
setting the terms and conditions of the suspension was in writing
and was plainly stated. It required Keeling to pay restition for
his victim's medical expenses in an amount not to exceed $10,000.
The order required Keeling to pay incrementally an amount fixed
by his probation officer. This was plainly stated and was easy
to understand. Keeling did not seek clarification or advice from
the court or his probation officer or claim that he did not
understand his obligation. Barring modification, his obligation
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was to pay according to the order and the schedule established by
the probation officer. He failed to do so. The record sets
forth no basis whereon Keeling could have thought that he had
satisfied his total restitution obligation.
The judgment of the trial court is affirmed.
Affirmed.
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