                             COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Petty and Senior Judge Willis
Argued at Chesapeake, Virginia


MARK WILLIAM GAUTIER
                                                            MEMORANDUM OPINION∗ BY
v.     Record No. 0483-06-1                                  JUDGE WILLIAM G. PETTY
                                                                FEBRUARY 6, 2007
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                             Everett A. Martin, Jr., Judge

               Jeffrey R. Russell (Office of Capital Defender, S.E. Region, on
               brief), for appellant.

               J. Robert Bryden, II, Assistant Attorney General (Robert F.
               McDonnell, Attorney General, on brief), for appellee.


       Appellant Mark William Gautier appeals an amended sentencing order for malicious

wounding, in violation of Code § 18.2-51, and for robbery, in violation of Code § 18.2-58. He

asserts that the trial court committed reversible error by amending its original sentencing order

because it no longer had jurisdiction to modify or amend the original order. For reasons set forth

below, we agree with Gautier and vacate both the amended original sentencing order and the

subsequent probation violation order. We remand for further proceedings consistent with this

opinion.




       ∗
          Pursuant to Code § 17.1-413, this opinion is not designated for publication. Moreover,
as this opinion has no precedential value, we recite only those facts necessary to our holding.
                                        I. BACKGROUND

       “On appeal, we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences deducible therefrom.” Martin v. Commonwealth, 4

Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the evidence reveals that following

a bench trial on August 13, 2003, the trial court found Gautier guilty of one count of malicious

wounding and one count of robbery. At the sentencing hearing held on December 19, 2003, the

trial court imposed, in pertinent part, the following sentence1 on Gautier:

               Incarceration with the Virginia [DOC] for the term of: 5 years for
               [robbery] and Commitment to the [DOC] for a period of 4 years,
               with commitment to be indeterminate in nature as a Youthful
               Offender pursuant to Va. Code Section 19.2-311 for [malicious
               wounding].

                          *       *       *       *      *       *       *

               The Court suspends 5 years of the [robbery] sentence, for a period
               of 10 years, for a total suspension of five years, upon the following
               condition(s): The defendant shall have no contact with the
               Victims.

Although required by Code § 19.2-311(A), the trial court did not suspend any portion of

Gautier’s sentence for malicious wounding.2

       While housed at a youthful offender facility, Gautier incited a riot in December 2004.

This incident led to the issuance of a probation violation capias for Gautier’s failure to

successfully complete the Youthful Offender Program. On September 30, 2005, the trial court




       1
         Malicious wounding is a Class 3 felony, punishable by a term of imprisonment of not
less than 5 years nor more than 20 years. See Code §§ 18.2-10; 18.2-51.
       2
        Code § 19.2-311(A) provides in pertinent part: “The judge, after a finding of guilt,
when fixing punishment . . . may . . . commit such person for a period of four years, which
commitment shall be indeterminate in character. In addition, the court shall impose a period of
confinement which shall be suspended.”

                                                -2-
held a hearing3 concerning the alleged probation violation. At the conclusion of the hearing, the

trial court found that Gautier had violated his probation and orally imposed the following

sentence:

               I’m going to order that the five-year sentences on each of the
               charges be executed. I’ll resuspend two years of the sentence on
               the robbery charge on the condition [Gautier] be of good behavior
               while he remains in custody, for 10 years thereafter, indeterminate
               period of which will be supervised. I can’t think of more serious
               conduct than inciting a riot in a prison.

       Following the hearing, the clerk never reduced the oral sentence to writing for entry by

the trial court. This omission prompted the Department of Corrections (“DOC”) to request

clarification of the terms of the orally imposed sentence, along with clarification of the terms of

the original sentence.

       In response to DOC’s request, the trial court convened another hearing on February 1,

2006. At the beginning of the hearing, the trial court advised the attorneys of the various

problems with Gautier’s sentence including: (1) the absence of a written sentencing order

following the September 30, 2005 hearing; and (2) the failure of the originally imposed sentence

for malicious wounding to include a suspended sentence. In attempting to remedy the sentencing

error, the Commonwealth asserted that under the Youthful Offender statute, the trial court had

the authority to “sentence [Gautier] how the [trial court] sees fit.” Gautier, however, argued that

the trial court was limited to sentencing him to a maximum of four years on the malicious

wounding conviction and five years on the robbery conviction.

       After reviewing Code § 19.2-311(A), the trial court determined it had erred by failing to

impose a suspended sentence on the malicious wounding charge when originally sentencing


       3
         At the beginning of the hearing, the clerk informed the trial court that the court file
could not be located; therefore, the trial court had to rely upon a summary sheet and the attorneys
for specific details of the sentencing history.

                                                -3-
Gautier. In attempting to correct the error, the trial court ordered that the original sentencing

order be amended to reflect the following:

               [O]n the charge of malicious wounding the sentence is five years
               suspended upon the indeterminate commitment to the Department
               of Corrections to complete the Youthful Offender Program which
               the statute requires that I should have done on that date, if I did not
               do so. With that correction, then, there are five-year sentences
               suspended on each charge which is the minimum sentences I could
               impose.

       In response to the trial court’s decision to amend the original sentence, Gautier objected

because the trial court’s action exposed him to an increased penalty upon violation of his

probation. The trial court noted the objection, and proceeded to orally pronounce the following

sentence on Gautier for violating the terms of his probation:

               What I’m going to do is . . . effectively . . . the same thing I did last
               time. I’m going to order that the five years on the robbery be
               executed. I’ll order that five years on the malicious wounding be
               executed. I’ll resuspend all but time served on that on the
               condition that he be of . . . uniform good behavior while in custody
               for a period of ten years upon his release an indeterminate period
               will be supervised.

       Following this hearing, the trial court entered written orders reflecting this sentence.

Gautier appeals the entry of the amended original sentencing order.

                                          II. ANALYSIS

       Gautier asserts, as he did below, that the trial court committed reversible error by

amending his original sentence when it no longer had jurisdiction to do so. We agree.

       Rule 1:1 provides that “[a]ll final judgments, orders, and decrees, irrespective of terms of

court, shall remain under the control of the trial court and subject to be modified, vacated, or

suspended for twenty-one days after the date of entry, and no longer.” The Commonwealth

asserts, however, that when the trial court initially failed to impose a suspended sentenced on




                                                 -4-
Gautier for malicious wounding, the trial court never lost jurisdiction to amend the original order

to impose a correct sentence.4

       Although the trial court arguably committed a sentencing error by imposing a sentence

below the statutory minimum and by failing to impose a suspended sentence,5 these errors did

not render the sentence void. A sentence imposed below the statutory minimum permitted by

law is voidable, not void. See Smith v. Commonwealth, 195 Va. 297, 300, 77 S.E.2d 860, 862

(1953). This distinction is crucial because

               [w]hile a void judgment can be attacked at any time, a judgment
               that is merely voidable may only be attacked within twenty-one
               days from its date of entry or, after that period, by seeking
               appellate review. Failure to seek correction of a voidable
               judgment renders it final and conclusive.

Id. at 300, 77 S.E.2d at 863.

       Because more than twenty-one days had passed since the entry of Gautier’s original

sentencing order, the trial court no longer had jurisdiction to enter the amended order, and could

not reacquire jurisdiction, even by entry of a nunc pro tunc order. See Davis v. Mullins, 251 Va.

141, 149, 466 S.E.2d 90, 94 (1996). As explained by our Commonwealth’s Supreme Court:

               To permit a trial court . . . to consider at any time what judgment it
               might have rendered while it still retained jurisdiction over a case
               and then to enter that judgment nunc pro tunc would render




       4
          The Commonwealth relies upon Carter v. Commonwealth, 199 Va. 466, 100 S.E.2d 681
(1957), to support its position. We find that Carter is inapposite because in Carter, “[w]hile the
trial court no doubt intended to sentence the defendant, the order does not in fact show any
pronouncement of sentence.” Id. at 469, 100 S.E.2d at 683 (emphasis added). Here, the trial
court imposed a sentence upon Gautier, but failed to comply with the mandatory statutory
requirements.
       5
        The appendix does not contain a transcript of the original sentencing hearing.
Moreover, “[a] court speaks only through its orders.” Cunningham v. Smith, 205 Va. 205, 208,
135 S.E.2d 770, 773 (1964). The original sentencing order contains no provision imposing a
suspended sentence for malicious wounding.

                                                -5-
               meaningless the mandate of Rule 1:1 and would do great harm to
               the certainty and stability that the finality of judgments brings.

Id. at 150, 466 S.E.2d at 94.

       Also, because the probation violation order attempts to revoke a sentence imposed by the

amended sentencing order, it too is invalid.

                                       III. CONCLUSION

       For these reasons, we vacate the amended sentencing order and the probation violation

order, both of which were entered on February 14, 2006, and we remand for further proceedings

consistent with this opinion.

                                                                          Vacated and remanded.




                                               -6-
