COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Decker and Russell
UNPUBLISHED
Argued at Winchester, Virginia
OWEN FRANKLIN SILVIOUS
MEMORANDUM OPINION* BY
v. Record No. 1518-16-3 JUDGE MARLA GRAFF DECKER
OCTOBER 3, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Thomas J. Wilson, IV, Judge
Owen F. Silvious, pro se.
John I. Jones, IV, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Owen Franklin Silvious appeals a circuit court order extending his term of supervised
probation. His single assignment of error challenges whether the circuit court had subject matter
jurisdiction when it took that action. We hold that when the circuit court acted, it retained subject
matter jurisdiction. Consequently, we affirm the circuit court’s ruling.
I. BACKGROUND
In 2002, the appellant was sentenced for three counts of obtaining money by false pretenses.
The circuit court sentenced him to a combined twenty years and twelve months of incarceration.
The court ordered an active sentence of one year and one month, with nineteen years and eleven
months suspended. The order conditioned the suspension upon supervised probation that included
the requirement that the appellant pay approximately $38,000 in restitution. The order did not
provide specific terms regarding a payment plan.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Ten years later, in 2012, the circuit court found the appellant in violation of the terms and
conditions of his supervised probation.1 The court revoked one year of the significant previously
suspended sentence and extended the appellant’s supervised probation for three years, “upon his
release[,] . . . on the same terms and conditions” as in the 2002 order. The court also ordered that
the appellant “upon his release shall pay the . . . restitution on a schedule” as set out in the order.
About four years later, by letter filed in the circuit court on July 21, 2016, the appellant’s
probation officer represented that the appellant had been “released” to his three years of supervised
probation on July 15, 2013, and that it was scheduled to expire on July 15, 2016. The probation
officer also informed the court that the appellant had adjusted satisfactorily to supervision and made
timely payments but that he still owed over $34,000 of restitution. She concluded by asking the
court to extend the appellant’s supervised probation “indefinitely until his restitution can be paid in
full.”
The appellant filed a written response contending that his probation had “ended” on July 15,
2016, and questioning whether the court had “jurisdiction” to extend it once it had “expired by lapse
of time.” He also stated, presumably in alternative fashion, that he had “no objection” to extending
his probation until February 2018.
In a hearing on August 15, 2016, the appellant relied on his written objection to extending
his probation. The circuit court replied, “I can extend your supervised probation indefinitely until
your restitution is paid for. I’m not tied down into this 2018 date . . . .” The appellant responded
that he was “okay with that.” By order entered on August 16, 2016, the circuit court extended the
appellant’s supervised probation “indefinitely,” on the same terms and conditions as in the 2002
order, “until all restitution is paid in full.”
1
Although not reflected in the circuit court record, the appellant represents on brief that
he was convicted of a federal offense in 2005 and that it was this federal conviction that
supported the 2012 probation revocation.
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II. ANALYSIS
The appellant’s single assignment of error alleges that the circuit court “did not have
subject matter jurisdiction” to extend his probation. He argues that this is so because the court
did not act until the probationary term had already expired by operation of law. The
Commonwealth responds that the appellant remained under a suspended sentence at the time
and, consequently, that the court retained subject matter jurisdiction to act. The Commonwealth
further argues that the appellant waived the right to object to any errors that did not implicate the
circuit court’s subject matter jurisdiction.
A. Scope of the Assignment of Error
All litigants, even those proceeding pro se, must comply with the Rules of Court. See
Townes v. Commonwealth, 234 Va. 307, 319, 362 S.E.2d 650, 656 (1987). It is well established
that the “right of self-representation is not a license . . . not to comply with the relevant rules of
procedural and substantive law.” Justus v. Commonwealth, 222 Va. 667, 680, 283 S.E.2d 905,
912 (1981) (quoting Faretta v. California, 422 U.S. 806, 834 n.46 (1975)).
Rule 5A:12(c)(1) provides in relevant part that “the petition [for appeal] shall list, clearly
and concisely . . . , the specific errors in the rulings below upon which the party intends to rely.”
It further directs that “[o]nly assignments of error assigned in the petition for appeal will be
noticed by this Court.” Rule 5A:12(c)(1)(i). Additionally, Rule 5A:12(c) “contains no ‘good
cause’ or ‘ends of justice’ exceptions.” Thompson v. Commonwealth, 27 Va. App. 620, 626,
500 S.E.2d 823, 826 (1998). Accordingly, under the applicable rule, once an appeal has been
granted, this Court is strictly limited to reviewing the specific assignment of error presented by
the appellant in the petition. See Whitt v. Commonwealth, 61 Va. App. 637, 646-47, 739 S.E.2d
254, 259 (2013) (en banc); see also Va. Dep’t of Transp. v. Fairbrook Bus. Park Assocs., 244
Va. 99, 105, 418 S.E.2d 874, 878 (1992) (declining under the Supreme Court’s similar Rule
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5:17(c)(1) to consider the appellant’s argument because it was “not within the scope of the
assigned error”), cited with approval in Woodard v. Commonwealth, 287 Va. 276, 280-81, 754
S.E.2d 309, 312 (2014).
Here, the appellant’s assignment of error expressly references only “subject matter
jurisdiction.” As discussed in greater detail below, “there is a significant difference between
subject matter jurisdiction and . . . other ‘jurisdictional’ elements.” Porter v. Commonwealth,
276 Va. 203, 228, 661 S.E.2d 415, 426 (2008) (quoting Morrison v. Bestler, 239 Va. 166, 169,
387 S.E.2d 753, 755 (1990)). Consequently, we consider only the narrow issue properly before
us on appeal—whether the circuit court had subject matter jurisdiction to extend the appellant’s
probation after the probationary period had expired but while the appellant was still subject to a
suspended sentence.2
B. Subject Matter Jurisdiction
In an appeal involving the jurisdiction of the circuit court, the appellate court reviews the
issue under a de novo standard. See, e.g., Holland v. Commonwealth, 62 Va. App. 445, 451, 749
S.E.2d 206, 209 (2013). Although a “cardinal principle of law” is that “penal statutes are to be
strictly construed” against the Commonwealth, this principle does not apply to the interpretation
of statutes that “prescribe[] . . . jurisdiction” in criminal cases. Kirby v. Commonwealth, 63
Va. App. 665, 672 n.6, 762 S.E.2d 414, 417 n.6 (2014). Additionally, probation statutes “provide a
remedial tool in the rehabilitation of criminals and, to that end, should be liberally construed.”
Wilson v. Commonwealth, 67 Va. App. 82, 89, 793 S.E.2d 15, 18 (2016).
2
A challenge to a court’s subject matter jurisdiction is not waivable and may be raised
for the first time on appeal. See, e.g., Porter, 276 Va. at 228, 661 S.E.2d at 426-27 (citing
Morrison, 239 Va. at 169-70, 387 S.E.2d at 755-56). Therefore, we do not consider whether the
appellant challenged the circuit court’s subject matter jurisdiction below.
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Jurisdiction admittedly “is a term [that] can engender much confusion because it
encompasses a variety of separate and distinct legal concepts.” Porter, 276 Va. at 228, 661
S.E.2d at 426. However, the scope of the term subject matter jurisdiction, which is only one of
several types of jurisdiction, is more limited and has been clarified significantly through case
law. See Mohamed v. Commonwealth, 56 Va. App. 95, 99, 691 S.E.2d 513, 514 (2010).
Subject matter jurisdiction is merely “‘potential’” jurisdiction over a class of cases that is granted
“by constitution or statute.” Ghameshlouy v. Commonwealth, 279 Va. 379, 388, 689 S.E.2d
698, 702 (2010) (quoting Bd. of Supers. v. Bd. of Zoning Appeals, 271 Va. 336, 344 n.2, 626
S.E.2d 374, 379 n.2 (2006)). This potential jurisdiction becomes “‘active’ jurisdiction, the
power to adjudicate a particular case upon the merits, only when various [additional] elements
[beyond subject matter jurisdiction] are present.” Id. at 388-89, 689 S.E.2d at 702-03 (quoting
Bd. of Supers., 271 Va. at 343, 626 S.E.2d at 379).
In short, “[s]ubject matter jurisdiction is conferred by statute according to the subject of
the case, . . . rather than according to a particular proceeding that may be one part of [the] case.”
Mohamed, 56 Va. App. at 99-100, 691 S.E.2d at 515 (quoting In re Commonwealth, 278 Va. 1,
11, 677 S.E.2d 236, 240 (2009)). A court’s jurisdiction over the subject matter “is determined at
the time the litigation is filed and, once established, remains until the termination of the
litigation.” E.C. v. Va. Dep’t of Juv. Justice, 283 Va. 522, 527-28, 722 S.E.2d 827, 829 (2012).
“[I]ntervening events may affect the nature of the relief available,” but “they do not end or
extinguish the [subject matter] jurisdiction of the Court.” Id. at 528, 722 S.E.2d at 830.
We considered a similar challenge to a circuit court’s subject matter jurisdiction in
Mohamed v. Commonwealth, 56 Va. App. 95, 691 S.E.2d 513, which involved the revocation of
a suspended sentence. We noted that “the General Assembly has granted [the circuit] court[s]
subject matter jurisdiction over the specific class of cases of which [the defendant’s] case [was] a
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member—the prosecution and the rehabilitation of criminals.” Id. at 100, 691 S.E.2d at 515
(emphasis added) (observing that Code § 17.1-513 accords to Virginia’s circuit courts “original
jurisdiction of all indictments for felonies and of presentments, informations, and indictments for
misdemeanors” (quoting Porter, 276 Va. at 229, 661 S.E.2d at 427)). We further recognized that
proceedings for the revocation of probation and suspension of sentence “are part of the criminal
process entrusted to the circuit courts by the General Assembly.” Id. (citing Green v.
Commonwealth, 263 Va. 191, 194, 557 S.E.2d 230, 232 (2002)); see Code §§ 19.2-304, -306.
We emphasized that the circuit court, “‘[w]ithout question,’ . . . had the requisite ‘potential
jurisdiction[] to consider’ any matter related to the criminal process as set forth in Code
§ 17.1-513,” including the defendant’s revocation proceeding. Mohamed, 56 Va. App. at 100,
691 S.E.2d at 515 (third alteration in original) (quoting Ghameshlouy, 279 Va. at 389, 689
S.E.2d at 703). Consequently, we concluded that because the defendant remained under a
suspended sentence when the circuit court revoked his probation, it had subject matter
jurisdiction to act. See id. at 98-103, 691 S.E.2d at 514-17.
We hold that the result is the same in the appellant’s case. Although the circuit court did
not purport to revoke any portion of the appellant’s remaining suspended sentence of eighteen
years and eleven months, it retained the “potential” jurisdiction to do so and to impose conditions
on that suspension. See Code § 19.2-306. Therefore, while the court retained authority over the
appellant’s suspended sentence, it had the requisite subject matter jurisdiction to place him on
probation. See Wilson, 67 Va. App. at 90-95, 793 S.E.2d at 19-22 (holding that the circuit court
lacked subject matter jurisdiction to extend the defendant’s probation where the periods of
probation and suspension of sentence had expired); Dunham v. Commonwealth, 59 Va. App.
634, 639-40, 721 S.E.2d 824, 827 (holding that the circuit court had subject matter jurisdiction to
revoke the suspended sentence where the period of suspension had not yet expired), aff’d, 284
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Va. 511, 733 S.E.2d 660 (2012) (per curiam). Any error the circuit court may have committed in
the way in which it extended the appellant’s probation did not defeat its subject matter
jurisdiction to act, and the defect, if any, was both waivable and waived on the facts of this case.3
See Parrish v. Jessee, 250 Va. 514, 521, 464 S.E.2d 141, 146 (1995) (noting that a circuit court
“has jurisdiction to err” and that if “the inferior court has jurisdiction of the subject matter of the
controversy, . . . a mistaken exercise of that jurisdiction does not render its judgment void” (first
quoting Farant Inv. Corp. v. Francis, 138 Va. 417, 436, 122 S.E. 141, 147 (1924); and then
quoting Cty. Sch. Bd. v. Snead, 198 Va. 100, 107, 92 S.E.2d 497, 503 (1956))).
Additionally, the appellant asserts in his reply brief that he was no longer under a suspended
sentence when the circuit court placed him on indefinite probation in 2016.4 He suggests that the
circuit court’s 2012 revocation order “replaced” the original 2002 sentencing order “except as to the
terms and conditions of probation.” As a result, he contends that the 2012 revocation order, which
imposed one year of incarceration but was silent regarding the eighteen years and eleven months
remaining on the originally pronounced term, did not “implicitly resuspend the remainder.” Based
on this analysis, the appellant asserts that the circuit court lacked subject matter jurisdiction to
extend his probation after it expired on July 15, 2016, because he was no longer under a suspended
sentence at that time.
This argument is not supported by the law governing the revocation of suspension of
sentence. Established principles provide that when a court’s revocation order does not expressly
resuspend the balance of a defendant’s sentence, it does not “implicitly discharge the remaining
3
Concededly, the appellant’s arguments challenging the circuit court’s authority to
extend his probation are logical. However, the constraints of Rule 5A:12(c)(1) prevent us from
considering those arguments beyond the framework of the appellant’s assignment of error.
4
Although it appears that the appellant may have conceded this point at oral argument, it
lacks merit for the reasons discussed infra in the text.
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sentence.” Leitao v. Commonwealth, 39 Va. App. 435, 438, 573 S.E.2d 317, 319 (2002). Instead,
“it implicitly [resuspends] the balance that the defendant ha[s] not served.” Id.; see Jacobs v.
Commonwealth, 61 Va. App. 529, 535-36, 738 S.E.2d 519, 522 (2013). As a result, the circuit
court’s 2012 revocation order directing that the appellant serve one year of his previously suspended
sentences implicitly resuspended the eighteen years and eleven months remaining on his original
sentences. Consequently, those suspended sentences remained in effect when the circuit court acted
only four years later, in 2016, giving the court subject matter jurisdiction to do so.
III. CONCLUSION
The appellant’s single assignment of error presents for decision on appeal only the narrow
question of the circuit court’s subject matter jurisdiction. Upon our review of the record, we hold
that the circuit court had subject matter jurisdiction to act when it placed the appellant on indefinite
supervised probation until he completes his payment of restitution. Accordingly, we affirm the
circuit court’s ruling and remand the case for the limited purpose of correcting a clerical error.5
Affirmed and remanded with instructions.
5
The 2002 sentencing order lists the appellant’s three convictions for obtaining money
by false pretenses. As to two of those convictions, the order properly cites Code § 18.2-178,
which proscribes the offense of conviction. As to the third referenced conviction, however, the
order cites a non-existent statute, Code § 18.2-278. We remand to the circuit court for correction
of this apparent clerical error. See Code § 8.01-428(B); Tatum v. Commonwealth, 17 Va. App.
585, 592-93, 440 S.E.2d 133, 138 (1994). In addition, on remand, the circuit court should review
the 2012 order for a possible scrivener’s error regarding whether the amount of the monthly
restitution payment is $100 as indicated elsewhere in the record or $1000 as reflected in the order
and to correct the order if necessary.
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