Stamper v. Commonwealth

CARRICO, C.J.,

dissenting in part.

I would affirm this judgment across the board. Hence, I dissent from that portion of the majority opinion which, without a finding of reversible error, remands the case for “further consideration of the defendant’s motion for suspension of sentence and probation.”

The trial court’s denial of the defendant’s motion involved the exercise of judicial discretion. Under a settled rule, we will not disturb a trial court’s exercise of discretion in the absence of a clear showing of abuse; however, there has been no clear showing of abuse in this case. Indeed, the majority admits as much when it states there is no “clear showing in the record that the [trial] court’s motivation was to penalize the defendant for exercising his appellate rights.”

Yet, the majority says a remand is “advisable” to eliminate “any question” concerning the disposition of the defendant’s motion. I hope this will be the only time the Court remands a discre*721tionary matter because it deems such action “advisable” rather than necessitated by a finding of reversible error.