COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
CONTEE A. HARRIS
MEMORANDUM OPINION * BY
v. Record No. 2986-98-4 JUDGE JERE M. H. WILLIS, JR.
MARCH 7, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
William Shore Robertson, Judge
(Mark B. Williams, on brief), for appellant.
Appellant submitting on brief.
(Mark L. Earley, Attorney General; Richard B.
Smith, Senior Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
On appeal from his conviction of unlawful wounding, in
violation of Code § 18.2-51, Contee A. Harris contends that the
trial court erred in deferring a finding of guilt and placing
him on probation. Because we find that Harris waived any
objection by freely entering into a lawful plea agreement, we
affirm the judgment of the trial court. See Anders v.
California, 386 U.S. 738, 744 (1967).
On January 27, 1997, a grand jury indicted Harris on one
count of malicious wounding, in violation of Code § 18.2-51.
Harris pled guilty to the lesser-included offense of unlawful
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
wounding, pursuant to a plea agreement. The plea agreement
provided that the trial court would defer adjudication on the
plea, that Harris would be placed on probation for three years,
and that upon his successful completion of the probationary
period, the trial court would convict him of assault and
battery, in violation of Code § 18.2-57. The plea agreement
provided that if Harris violated any of the terms of his
probation, he would "be adjudicated guilty on his plea of
guilty."
On October 23, 1998, Harris' probation officer reported a
violation of the conditions of the probation. Harris conceded
that he had violated the conditions of the probation, and all
parties agreed that Harris was to be sentenced under the plea
agreement. The trial court convicted Harris of unlawful
wounding and sentenced him to five years imprisonment, with all
but one year and eleven months suspended. Harris lodged no
objection either to this procedure or to his conviction and
sentence.
Harris contends that the trial court abused its authority
by deferring adjudication on his guilty plea and by placing him
on probation prior to a conviction. He concedes he lodged no
objection before the trial court, but argues that this abuse
effected a divestiture of jurisdiction, which may be raised at
any time. See Morrison v. Bestler, 239 Va. 166, 169-70, 387
S.E.2d 753, 755 (1990). We decided this very question in Holden
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v. Commonwealth, 26 Va. App. 403, 494 S.E.2d 892 (1998), which
held that the same procedure and disposition was merely a
procedural deviation and not an abdication or divestiture of
subject matter jurisdiction. See id. at 407-08, 494 S.E.2d at
894. Because the trial court retained jurisdiction to convict
Harris and he lodged no objection to the procedure, we will not
consider for the first time on appeal his argument that the
procedure was erroneous. See Rule 5A:18.
"[Harris], having agreed upon the
action taken by the trial court, should not
be allowed to assume an inconsistent
position." "No litigant, even a defendant
in a criminal case, will be permitted to
approbate and reprobate -- to invite error
. . . and then to take advantage of the
situation created by his own wrong."
Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d 613,
615 (1992) (citations omitted).
The judgment of the trial court is affirmed.
Affirmed.
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