COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
ANDREW VITKOW
MEMORANDUM OPINION * BY
v. Record No. 0531-01-4 JUDGE ROBERT P. FRANK
MAY 14, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
(Robert W. Gookin, on brief), for appellant.
Appellant submitting on brief.
(Randolph A. Beales, Attorney General;
Kathleen B. Martin, Assistant Attorney
General, on brief), for appellee. Appellee
submitting on brief.
Andrew Vitkow (appellant) appeals a decision of the trial
court revoking two years and ten months of a previously
suspended sentence. He contends the trial court lacked
jurisdiction to extend his period of probation and also argues
no sentence remained to impose. For the reasons stated below,
we find the trial court had authority to enter the orders, but
we remand for clarification of appellant's sentence.
BACKGROUND
Appellant pled guilty and was convicted of forgery on
November 30, 1994. Appellant's sentencing hearing was held on
May 5, 1995. On that day, the trial court entered an order,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
titled "Order of Placement on Community Work Force," which
listed appellant's sentence as three years "in the Arlington
County Detention Center, suspended" and placed him on probation
for three years. Another order, signed on June 21, 1995,
suspended all but 60 days of the three-year sentence and placed
appellant on probation for three years.
The trial court received a letter on April 22, 1998,
explaining appellant had violated the terms of his probation.
The trial court issued a capias on June 1, 1998. The capias
warrant was lodged as a detainer on June 8, 1998, because
appellant was incarcerated in Maryland. The capias was executed
on November 24, 1998.
At the revocation hearing on December 4, 1998, appellant
conceded he had violated the terms of his probation. An order,
signed on December 29, 1998, continued the case "for status" to
June 4, 1999, and remanded appellant to jail. Appellant was
ordered "into the ACT Unit" on March 15, 1999.
By order entered on July 14, 1999, the trial court granted
appellant's motion "to reduce sentence to time served," on the
condition that his probation be extended for three years and he
complete any programs suggested by his probation officer. The
order continued the case to allow appellant to complete
community service. The court reviewed appellant's case on
December 3 and entered an order on December 22, 1999, continuing
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appellant's "probation with the same terms and conditions set
forth in the Courts [sic] order entered June 21, 1995."
On May 10, 2000, appellant pled guilty to reckless driving,
with an offense date of June 6, 1999. After a probation officer
advised the trial court that appellant had violated the terms of
his probation again, the court issued a show cause on July 11,
2000. A hearing was set for August 18, 2000, but was continued
several times on appellant's motions.
At the revocation hearing on February 2, 2001, appellant
asserted the court lacked jurisdiction to revoke his suspended
sentence. Appellant argued that the time period during which
the court could revoke the suspended sentence expired on June
21, 1999, and the court's order extending his probation was not
entered until July 14, 1999. According to appellant, the court
had no jurisdiction to act when it extended his probation in
1999 and, thus, could not find he subsequently had violated his
probation. 1
The trial court determined it had jurisdiction to extend
appellant's probation in 1999. The court found appellant had
violated the terms of his probation and imposed a sentence of
two years and ten months. Appellant filed a pro se motion for
reconsideration, which the court denied.
1
The Commonwealth does not argue that appellant failed to
preserve any objection to this 1999 order. The Commonwealth
also does not object to the characterization of this issue as
"jurisdictional."
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ANALYSIS
On appeal, appellant contends that, under Code § 19.2-306,
the trial court had until May 5, 1999, to revoke his suspended
sentence and, therefore, had no jurisdiction to extend the
period of probation and suspension by an order entered after
that date. Appellant contends the further revocation
proceedings are void. Appellant also argues he had no sentence
left to serve.
A. Code § 19.2-306 2
Code § 19.2-306 states:
[t]he court may, for any cause deemed by it
sufficient which occurred at any time within
the probation period, . . . 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 at any time within one year after
the probation period . . . . In case the
execution of the sentence has been
suspended, the original sentence shall be in
full force and effect . . . .
Under this section, the trial court had authority to base its
revocation of appellant's suspended sentence on his violations
2
Appellant conceded he did not preserve this issue under
Rule 5A:18; however, he invoked the ends of justice exception to
this rule. The Commonwealth conceded this issue is
jurisdictional. Generally, jurisdictional issues may be raised
at any time, notwithstanding Rule 5A:18. See Nelson v. Warden
of the Keen Mt. Corr. Ctr., 262 Va. 276, 281, 552 S.E.2d 73, 75
(2001). Therefore, we do not address whether appellant needed
to preserve this issue under Rule 5A:18. For the purposes of
this case, we assume without deciding that Code § 19.2-306
establishes the jurisdiction of the trial court and this
argument is appropriately before this Court.
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of the conditions of probation as explained in the April 22,
1998 letter and conceded by appellant at his hearing. These
violations clearly occurred within the probation period, i.e.,
three years from the sentencing date on the forgery conviction. 3
Appellant also was "arrested and brought before the court"
within the time period established by Code § 19.2-306. The
trial court issued a bench warrant on June 1, 1998, and the
order finding appellant guilty of violating the terms of his
probation was entered on December 29, 1998. Both these dates
fall before May 5, 1999, one year after the end of the probation
period, as required by the statute. See Code § 19.2-306.
Appellant contends the date of the final order, July 14,
1999, exceeds the time limitation set by Code § 19.2-306 and,
therefore, the trial court had no jurisdiction. We disagree.
The probation statues, such as Code § 19.2-306, are "highly
remedial and should be liberally construed" to provide trial
courts with a valuable tool for rehabilitating criminals. Dyke
v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952).
"In addition, the power of the courts to revoke suspensions and
probation for breach of conditions must not be restricted beyond
3
The trial court signed two orders, both of which contain
the elements of a sentencing order. Appellant argues the May 5,
1995 order, which is a preprinted form, is the final order. The
Commonwealth argues the second order, signed on June 21, 1995,
should be considered the final order. For purposes of this
appeal, we assume without deciding that the May 5, 1995 order is
the final order.
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the statutory limitations." Grant v. Commonwealth, 223 Va. 680,
684, 292 S.E.2d 348, 350 (1982).
"[W]hen the language of an enactment is free from
ambiguity, resort to legislative history and extrinsic facts is
not permitted because we take the words as written to determine
their meaning." Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d
84, 87 (1985). The plain language of Code § 19.2-306 creates a
time limitation that is satisfied when the trial court takes
action to "cause the defendant to be arrested and brought before
the court." (Emphasis added). The statute does not require the
conclusion of the revocation proceeding within this time frame.
The statute instead refers to the "outside time limit within
which the court may recall a defendant," Bolesta v.
Commonwealth, 26 Va. App. 503, 505, 495 S.E.2d 531, 532 (1998),
not within which the trial court must conclude the proceeding.
We have addressed a similar issue in the speedy trial
context. In Morgan v. Commonwealth, 19 Va. App. 637, 453 S.E.2d
914 (1995), this Court discussed the statutory speedy trial
provisions of Code § 19.2-243. That section mandates a trial
"commence[] in the circuit court within five months from the date
[that] probable cause was found." Code § 19.2-243. We held,
"Code § 19.2-243 requires the timely commencement of trial. It
does not require that trial be concluded within the specified
time." Morgan, 19 Va. App. at 640, 453 S.E.2d at 915.
Similarly, Code § 19.2-306 requires the court initiate action on
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a probation violation before the specified period, but does not
require conclusion of the proceeding within that time frame.
Since appellant was "arrested and brought before the court"
within one year from the end of his initial period of suspension,
as required by Code § 19.2-306, the trial court had the authority
to revoke appellant's sentence and extend his probation. See
Wright v. Commonwealth, 32 Va. App. 148, 152-53, 526 S.E.2d 784,
786-87, aff'd on other gds., 261 Va. 1, 539 S.E.2d 432 (2000)
(explaining a trial court can impose a new period of suspension
after a show cause hearing, if the time limitation of Code
§ 19.2-306 is met). Indeed, the revocation hearing itself was
held within the statutory time frame. Other than the entry of
the final order, the revocation proceeding had been completed
4
prior to the conclusion of the period established by the Code.
As this order extended the probationary period for three years,
the trial court retained jurisdiction over appellant and could
revoke his suspension, as it did in this case.
4
Since we find the trial court timely conducted appellant's
revocation hearing within four years of the sentencing, we do
not address tolling because appellant was incarcerated in
Maryland, see Rease v. Commonwealth, 227 Va. 289, 316 S.E.2d 148
(1984), nor do we discuss whether the time limitation is based
on the maximum period to which the trial court originally could
have sentenced appellant, see Carbaugh v. Commonwealth, 19 Va.
App. 119, 449 S.E.2d 264 (1994).
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B. Sentencing
Appellant next contends the trial court reduced his sentence
to "time served" at the first probation violation hearing,
leaving no suspended sentence to revoke at the subsequent
revocation proceeding. Appellant concedes he did not present
this argument to the trial court, and he invokes the ends of
justice exception to Rule 5A:18. The Commonwealth argues Rule
5A:18 applies to this circumstance.
If appellant were correct that the trial court reduced his
original sentence during the first probation violation hearing,
then potentially an "ends of justice" exception would apply as
the court could be imposing a new and increased sentence on
appellant without the jurisdiction to do so. Cf. Robertson v.
Superintendent of the Wise Correctional Unit, 248 Va. 232, 236,
445 S.E.2d 116, 118 (1994) (noting Code § 19.2-306 does not give
a court "authority to lengthen the period of incarceration" after
entry of a sentence on the underlying charge). However, the
trial court did not reduce appellant's underlying three-year
sentence to "time served."
Trial courts "have the authority to interpret their own
orders." Fredericksburg Constr. Co., Inc. v. J.W. Wyne
Excavating, Inc., 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000).
When examining a trial court's order on appeal, we defer to the
interpretation adopted by that lower court. Id.; Smoot v.
Commonwealth, 37 Va. App. 495, 500, 559 S.E.2d 409, 411 (2002).
Our analysis here, therefore, requires determining whether the
trial court abused its discretion when interpreting its July 14,
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1999 order. We find the trial court did not abuse its
discretion.
The July 14, 1999 order, upon which appellant bases his
argument, amended that original probation violation ruling as
follows:
Whereupon this case came before the Court on
the Defendant's motion to reduce sentence to
time served and argument of counsel was
heard on same.
Upon consideration whereof it is the opinion
of the Court that the Defendant's motion be
and it hereby is granted with the added
special condition:
That the Defendant's probation be extended
for three (3) years; complete any substance
abuse or after care programs fixed by his
Probation Officer.
Implicitly, this order suspends the remaining time,
especially as probation is explicitly extended for three years.
If the judge had intended to eliminate the remainder of
appellant's sentence, then he would not have included a provision
for probation, as no suspended sentence would remain to impose if
the terms of probation were violated.
Examining the exact wording of the order confirms the
conclusion that the trial court did not abuse its discretion
when it found the order did not reduce appellant's original
sentence. The order grants appellant's "motion to reduce
sentence," 5 but "with the added special condition: That the
5
The record contains neither a written motion nor the
transcript of the hearing where this motion was argued.
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Defendant's probation be extended." The "reduction," therefore,
was conditioned upon probation, a condition that appellant
violated. When appellant violated this condition, the
"reduction" was abrogated.
Additionally, this July 1999 order was not final. Instead,
this order continued the case, which finally concluded with a
December 22, 1999 order. The December order refers back to the
original 1995 order that set three years as appellant's
sentence. This final order did not eliminate the remainder of
appellant's sentence.
We conclude the trial court did not abuse its discretion in
its interpretation of its own order. The order granting the
"motion to reduce sentence to time served" does not specify
whether the reduction refers to the underlying forgery charge or
to the revoked suspended sentence for the probation violation.
The trial court had the authority to interpret its own order.
See Fredericksburg Constr. Co., 260 Va. at 144, 530 S.E.2d at
152. The court determined that the July 14, 1999 order,
granting the "motion to reduce," referred to a motion to reduce
the time to serve on the probation violation, not the underlying
charge. That interpretation is fair, given no written or oral
motion is included in the record and the July 1999 order does
not specify which sentence is to be reduced.
"In order to avail oneself of the [ends of justice]
exception, a defendant must affirmatively show that a miscarriage
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of justice has occurred, not that a miscarriage might have
occurred." Redman v. Commonwealth, 25 Va. App. 215, 221, 487
S.E.2d 269, 272 (1997) (emphasis in original). A review of the
record does not affirmatively show a miscarriage of justice
occurred and, therefore, provides insufficient grounds for the
invocation of the ends of justice exception to Rule 5A:18.
Appellant originally was sentenced to three years for
committing forgery. He served two months, and two years and ten
months were suspended. Appellant then served an undisclosed
amount of time for his first probation violation. The second
probation violation order sentences appellant to serve two years
and ten months.
The wording of this order does not clearly give appellant
credit for the time he served under the first probation
violation. As appellant has served part of the remaining two
years and ten months, he cannot be required to serve the entirety
of two years and ten months for the second probation violation.
See Robertson, 248 Va. at 236, 445 S.E.2d at 118 (Code § 19.2-306
does not give a court "authority to lengthen the period of
incarceration" after entry of a sentence on the underlying
charge).
Therefore, while we affirm the trial court's finding that
appellant violated his probation, we remand this case for a
recalculation of appellant's remaining time to serve, giving
appellant credit for time served.
Affirmed, in part,
and remanded, in part.
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