COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Alexandria, Virginia
REINADLO D. LEITAO, JR., S/K/A
REINALDO LEITAO, JR.
OPINION BY
v. Record No. 0512-02-4 JUDGE RUDOLPH BUMGARDNER, III
DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Jeffrey W. Parker, Judge
Seth I. Howard, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
The trial court found Reinadlo D. Leitao, Jr. in violation
of probation for the third time and revoked the balance of his
original sentence. He contends there was no suspended sentence
to impose. Concluding the trial court properly imposed the
unserved remainder of the defendant's sentence, we affirm.
On July 22, 1996, the trial court convicted the defendant
of breaking and entering, grand larceny, and possession of
marijuana with intent to distribute. It sentenced him to six
years in prison. It then ordered him to serve six months in
jail, suspended the balance of five years and six months, and
placed the defendant on probation for two years.
On April 11, 1997, the trial court found the defendant
violated probation. It revoked the five years and six months
suspended sentence, ordered him to serve 12 months in jail,
re-suspended the balance of the sentence, and placed the
defendant on probation.
On April 15, 1999, the trial court found the defendant
violated probation a second time. It revoked the suspended
sentence and probation, ordered him to serve one year of the
original sentence, and placed him on probation for two years
upon his release. 1
On February 13, 2002, the trial court found the defendant
violated probation a third time. It revoked the suspension and
probation and ordered the defendant to serve the balance of the
original sentence, three years and six months. The defendant
stipulated he had violated probation for the third time.
1
The 1999 order provides, in pertinent part:
the Court Adjudges and Orders that the
suspension of the execution of the sentence
and the placing of the defendant on
probation . . . is hereby revoked . . . .
[I]t is accordingly the judgment of this
Court that the defendant be sentenced to
. . . serve one year of the original
sentence . . . [and] be placed back on
probation . . . and . . . comply with the
original terms of probation.
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The defendant contends no suspended sentence remained for
the trial court to revoke. He argues the 1999 order revoked his
suspended sentence, sentenced him to serve a portion of it, but
failed to re-suspend explicitly the balance of the original
sentence. He contends no balance remained suspended for the
trial court to order served.
The trial court ruled the 1999 order re-suspended the
balance of the defendant's original sentence. It stated: "When
the suspension was revoked, the sentence would have gone into
effect automatically. And then . . . the Court placed him back
on probation and [by implication] re-suspended the sentence."
We defer to the trial court's interpretation of its own order.
Fredericksburg Constr. Co. v. J.W. Wyne Excavating, 260 Va. 137,
144, 530 S.E.2d 148, 152 (2000); Rusty's Welding Serv., Inc. v.
Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255, 260 (1999). While
the court has broad discretion, "that discretion must be
exercised reasonably and not arbitrarily or capriciously."
Smoot v. Commonwealth, 37 Va. App. 495, 500, 559 S.E.2d 409, 412
(2002). Absent an abuse of discretion, we will not reverse a
trial court's revocation of a suspended sentence under Code
§ 19.2-306. Hamilton v. Commonwealth, 217 Va. 325, 326, 228
S.E.2d 555, 556 (1976).
The only logical interpretation of the 1999 order is the
one the trial court adopted. The order only imposed a portion
of the remaining sentence. It placed the defendant back on
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probation upon his release. Probation was meaningless if no
sentence remained for the court to impose if the defendant
violated the terms imposed. "To be effective, probation must be
concurrent with a coordinate term of suspension of sentence."
Hartless v. Commonwealth, 29 Va. App. 172, 175, 510 S.E.2d 738,
739 (1999). The absence of an explicit recitation re-suspending
the balance of the original sentence did not implicitly
discharge the remaining sentence; it implicitly re-suspended the
balance that the defendant had not served.
When a court revokes the suspension of execution of
sentence, "the original sentence shall be in full force and
effect." Code § 19.2-306. Contrary to the defendant's
contention, the 1999 order could not shorten the original
suspended sentence. Rule 1:1. The defendant concedes he has
not served the full sentence originally imposed.
The 1999 order revoked the suspended sentence, and
sentenced the defendant to serve one year of the original
sentence. The time not served remained suspended subject to
revocation if the defendant violated the terms of probation. 2
When the defendant did violate those terms, the trial court
2
We decline to hold that the sentencing summary on the 1999
order affects the outcome of this case. The summary appears
after the heading "For Department of Corrections Use" and
indicates that "0" time was suspended. The defendant maintains
that the notation extinguished the balance of his sentence.
This summary does not supplant the wording of the order itself.
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could revoke that suspension and order the defendant to serve
the three years and six months balance of his original sentence.
Accordingly, we affirm.
Affirmed.
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