COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia
MELVIN BRIGGS, JR.
OPINION BY
v. Record No. 1443-94-2 JUDGE LARRY G. ELDER
DECEMBER 12, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Jose R. Davila, Jr., Judge
David R. Lett for appellant.
Richard B. Smith, Assistant Attorney General,
(Office of the Attorney General, on brief),
for appellee.
Melvin Briggs, Jr. (appellant) appeals the trial court's
July 11, 1994 decision to revoke his suspended sentence, which
arose from a November 11, 1981 conviction for heroin possession.
Appellant asserts (1) the trial court lacked jurisdiction to
revoke his suspended sentence, and (2) the trial court failed to
credit him with good behavior time earned during the original
suspension period. Because the trial court committed no error,
we affirm the judgment.
I.
FACTS
Appellant pleaded guilty to possession of heroin on November
24, 1981. On January 13, 1982, the trial court suspended
imposition of a sentence, for an unspecified amount of time,
conditioned on appellant's good behavior and his completion of a
drug/alcohol treatment program.
On November 10, 1983, the trial court, after hearing
evidence that appellant's urine tested positive for drugs and
that appellant was "dealing with drugs," revoked appellant's
January 13, 1982 suspended imposition of sentence. The trial
court sentenced appellant to ten years in the state penitentiary,
with five years suspended based on good behavior. On two prior
occasions when appellant failed to complete rehabilitation
programs, the trial court did not revoke its suspension of
imposition of sentence.
On July 11, 1994, the trial court conducted a revocation
hearing on the original heroin conviction, during which hearing
the court received evidence of a May 26, 1993 conviction for
petit larceny and evidence that appellant had stopped reporting
to his probation officer in October 1993. For these reasons, the
trial court revoked the remaining five year suspended sentence on
the original heroin conviction and sentenced appellant to five
years in a state correctional facility.
On July 26, 1994, appellant moved the trial court to vacate
its July 11, 1994 sentencing order. At the hearing on the
motion, appellant's counsel conceded that there had been
probation violations, including the May 26, 1993 petit larceny
conviction "within the ten year period of time" of the November
10, 1983 order. However, appellant contended that because the
trial court provided no specific period of suspension in either
the January 13, 1982 or November 10, 1983 orders, the statutory
2
period of suspension under Code § 19.2-306 ran from the date of
the first order. If that contention is correct, the trial court
would have been without jurisdiction on July 11, 1994.
The trial court denied the motion, and appellant now
appeals to this Court.
II.
JURISDICTION
A plain reading of Code § 19.2-306 reveals the trial court
had jurisdiction on July 11, 1994, to revoke appellant's five
year suspended sentence, which was imposed on November 10, 1983.
Code § 19.2-306 states:
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, if the
defendant be on probation, and cause the defendant to
be arrested and brought before the court . . . within
one year after the maximum period for which the
defendant might originally have been sentenced to be
imprisoned, whereupon, in case the imposition of
sentence has been suspended, the court may pronounce
whatever sentence might have been originally imposed.
(Emphasis added).
On January 13, 1982, the original sentencing court suspended
imposition of appellant's sentence for an unspecified time
period. Because appellant could have received a maximum sentence
of ten years in prison for his conviction, Code § 19.2-306
granted the trial court authority to revoke appellant's suspended
3
imposition of sentence and impose a sentence at any time up until
January 13, 1993. 1 See Grant v. Commonwealth, 223 Va. 680, 686,
292 S.E.2d 348, 351 (1982)(applying Code § 19.2-306); Carbaugh v.
Commonwealth, 19 Va. App. 119, 123-24, 449 S.E.2d 264, 266
(1994)(applying Code § 19.2-306).
A careful tracking of the chronology of this case reveals
that the trial court acted within the time period mandated by
Code § 19.2-306. 2 First, on November 10, 1983 (twenty-one months
after the original sentencing order), the trial court revoked
appellant's suspended imposition of sentence. This suspension
occurred "within the maximum time period for which the defendant
might originally have been sentenced to be imprisoned," which was
ten years. The trial court revoked appellant's suspended
imposition of sentence, ordered him to serve ten years in prison,
but suspended five years for an unspecified time period. The
remaining suspension period therefore ended, by operation of Code
§ 19.2-306, on November 10, 1993. On July 11, 1994, the trial
court heard evidence that appellant committed a petit larceny on
May 26, 1993, along with parole violations starting in October
1993; both of these offenses occurred before November 10, 1993.
1
The original ten year "maximum" period ended on January
13, 1992. However, up until one year after the expiration of the
maximum period, trial courts may revoke a sentence based on
actions that occurred within the period. Code § 19.2-306. Thus,
in this case, the ten year period expired on January 13, 1992,
but to this ten year period was added one additional year.
2
Appellant's counsel admitted this numerous times at the
trial court's July 27, 1994 rehearing on the suspension matter.
4
The obvious purpose of Code § 19.2-306 is remedial; it
provides closure and a time limitation when the trial court fails
to include such a limitation in its order of suspension. Nothing
in Code § 19.2-306 indicates that the legislature intended to
limit the trial court's authority under Code § 19.2-303.1 to fix
a period of suspension for a "reasonable time . . . without
regard to the maximum period for which the defendant might have
been sentenced."
When the trial court revoked its suspension of imposition of
sentence on November 10, 1983, it was well within the statutory
time limitation of Code § 19.2-306. At that time, the trial
court could have suspended the five-year suspended sentence for a
period of ten years (or more), being limited only by what would
be "reasonable." Code § 19.2-303.1. Because the trial court was
again silent as to the period of suspension, the limitations of
Code § 19.2-306 applied from that point.
If we accepted appellant's argument that because on
November 10, 1983 the trial court failed to set a specific time
for the suspension, the statutory time began to run from the date
imposition of sentence was withheld--January 13, 1982--appellant
would receive a benefit because of the trial court's indulgence
and attempts to help appellant overcome his drug dependency.
Clearly, this was not the legislature's intent and the plain
language of the statute does not require such a result.
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III.
GOOD BEHAVIOR TIME
Assuming without deciding that appellant preserved this
issue for appeal, see Rule 5A:18, we hold that the trial court
was under no obligation to credit appellant with good behavior
time.
[T]he probation [and suspension] statutes are highly
remedial and should be liberally construed to provide
trial courts a valuable tool for rehabilitation of
criminals. In addition, the 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)(citations omitted); see Carbaugh v. Commonwealth, 19 Va.
App. 119, 124, 449 S.E.2d 264, 267 (1994)(discussing the
legislative intent to grant judges broad powers to revoke
suspended sentences).
As discussed in Section II, supra, the trial court had the
power, pursuant to Code § 19.2-306, to revoke the original
suspended sentence at any time until January 13, 1992. The trial
court revoked the suspended sentence on November 10, 1983 and
imposed the sentence that originally could have been imposed on
January 13, 1982. All of the trial court's actions followed the
statutory directives of Code § 19.2-306, and no case law or
statutory authority restricts the trial court's actions in this
case. Therefore, we cannot say that the trial court abused its
discretion in failing to credit appellant with "good behavior"
6
time supposedly "earned" between the original sentencing order
date and the first revocation of suspended sentence date.
Accordingly, we affirm the judgment.
Affirmed.
7
Benton, J., dissenting.
On January 13, 1982, the trial judge entered a final order
containing the following language pertinent to this appeal:
The defendant having been on November 24,
1981, found guilty of Possession of heroin, a
Schedule I controlled substance, . . . the
Court doth now suspend the imposition of
sentence in this case during the defendant's
good behavior conditioned that he be placed
on supervised probation; that he enter and
complete the Willow Oaks Drug/Alcohol
Treatment Program; and that he pay his costs
of Court.
That final conviction order did not specify either the period of
suspension or the period of probation.
In a criminal case, the entry of the final conviction order
is the event from which various statutory time provisions are
measured. See Rule 1:1; Coffey v. Commonwealth, 209 Va. 760,
763, 167 S.E.2d 343, 345 (1969); Russnak v. Commonwealth, 10 Va.
317, 324, 392 S.E.2d 491, 494-95 (1990). The legislature has
specified that "if neither a probation period nor a period of
suspension has been prescribed" in the sentencing order, the
trial judge may revoke the suspension only for cause that
occurred "within the maximum period for which the defendant might
originally have been sentenced to be imprisoned." Code
§ 19.2-306. See also Carbaugh v. Commonwealth, 19 Va. App. 119,
123-24, 449 S.E.2d 264, 266 (1994). The statute's "purpose to
limit the period within which the suspension order can be revoked
is manifest." Richardson v. Commonwealth, 131 Va. 802, 811, 109
8
S.E. 460, 463 (1921). Furthermore, the period must be measured
from the date of entry of the order. See Coffey, 209 Va. at 763,
167 S.E.2d at 345.
The cause in this case for which the trial judge revoked the
suspension occurred on May 26, 1993, more than ten years (the
maximum period for which Briggs could have been sentenced for
heroin possession) beyond the January 13, 1982 sentencing date.
Thus, the trial judge acted beyond the period authorized by the
statute.
Code § 19.2-303.1 has no bearing on the issue raised by this
appeal. The trial judge never fixed a period of suspension.
Thus, a necessary condition for invoking Code § 19.2-303.1 never
existed. Moreover, I perceive no logical or statutory basis in
Code § 19.2-303.1 upon which to construct, as does the majority,
a scheme that would allow the trial judge to add ten year periods
of suspension ad infinitum each time a revocation occurred. That
power would exceed the legislature's clear mandate that if
neither a period of probation nor a period of suspension has been
fixed, the cause that gives rise to the trial judge's power to
revoke the suspension must occur "within the maximum period for
which the defendant might originally have been sentenced to be
imprisoned." Code § 19.2-306.
The Supreme Court of Virginia has stated that the trial
judge's authority to revoke suspensions is limited and not
absolute. "In this State the matter is regulated by statute."
9
Richardson, 131 Va. at 809, 109 S.E. at 462. Moreover, the
Supreme Court long ago acknowledged that the clear legislative
"intention was to prescribe and limit the power of the court."
Id. at 812, 109 S.E. at 463. The holding in this case extends
the trial judge's authority far beyond the legislatively
proscribed limits.
For these reasons, I would reverse the order as being beyond
the trial judge's lawful authority to revoke the January 13, 1982
suspension.
10