                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Frank and Petty
Argued at Richmond, Virginia


ANGELINA LYNN HEIDERSCHEIDT
                                                               MEMORANDUM OPINION * BY
v.     Record No. 1298-08-4                                     JUDGE WILLIAM G. PETTY
                                                                      JUNE 9, 2009
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                          Herman A. Whisenant, Jr., Judge Designate

                 Kevin J. Gerrity, Assistant Public Defender, for appellant.

                 Leah A. Darron, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General; William C. Mims, Attorney
                 General, on briefs), for appellee.


       On appeal, Angelina Lynn Heiderscheidt argues that the trial court lacked jurisdiction to

determine that she had violated the conditions of her probation because the period of her probation

had expired at the time the violations occurred. For the reasons stated below, we affirm the

conviction.

                                                  I.

       On June 22, 1995, the Circuit Court of Fauquier County entered a standing order providing

that “all persons granted and placed on probation” in Fauquier County from that time forward

would be “probationed . . . under the terms and conditions ordered by the Court set out as conditions

eleven (11) through sixteen (16) below, which shall automatically become a part of every probation




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
order[.]” 1 The order was recorded in the court’s Miscellaneous Order Book 5, page 1769.

Paragraph fourteen of the order requires that all persons on probation:

                Shall pay the fine, if any, and costs of this prosecution together
                with interest to the Clerk of this Court within six (6) months. (If
                said fine and costs are not paid prior to the termination of
                probation, probation shall automatically be extended until a
                hearing shall be conducted.)

        Five years later, in June 2000, Heiderscheidt pleaded guilty to one count of prescription

fraud in violation of Code § 18.2-258.1. The trial court sentenced Heiderscheidt to serve three

years’ incarceration to run consecutive to any other sentence she had to serve, and assessed costs in

the total amount of $666 against Heiderscheidt. The trial court then suspended all but twelve

months of the sentence and placed Heiderscheidt on probation for a period of three years to

commence upon her release from custody. Heiderscheidt was to “comply with all of the terms and

conditions of probation as set forth in the order of this Court entered on June 22, 1995 in

Miscellaneous Order Book 5, page 1769.”

        Heiderscheidt began her term of probation upon her release from incarceration on

November 3, 2003. 2 At the time of her release, Heiderscheidt’s probation officer reviewed the

terms and conditions of her probation with her and advised her that “her minimum date of release

from supervision was November of 2006, but she would remain under supervision until she

received a final release.”

        On May 8, 2007—six months after her specific three-year term of probation expired on

November 4, 2006—Heiderscheidt’s probation officer sent a letter to the trial court requesting

that Heiderscheidt’s probation be extended two more years because Heiderscheidt never had paid


        1
         Paragraphs one through ten of the 1995 order enumerated “the terms and conditions
prescribed by the Virginia Department of Corrections . . . .”
        2
        Heiderscheidt’s active sentence on the charge that underlies this appeal was served
consecutive to sentences on other, unrelated charges.
                                               -2-
her court costs. On May 18, 2007, the trial court entered an order that extended her supervised

probation for an additional two years, until November 4, 2008. Although Heiderscheidt

endorsed the order, the record does not reflect whether there was a hearing prior to the extension

of Heiderscheidt’s probation.

        On January 16, 2008, Heiderscheidt’s probation officer sent a letter to the trial court,

alleging that Heiderscheidt had violated her supervised probation. The probation officer reported

that Heiderscheidt (1) failed to abide by all federal, state, and local laws as demonstrated by a

September 13, 2007 misdemeanor conviction of driving on a suspended driver’s license as well

as a misdemeanor embezzlement conviction in another jurisdiction on January 1, 2008;

(2) changed her residence several times since 2007 without notifying her probation officer; and

(3) failed to pay her court costs in full.

        In response, the trial court issued a capias for Heiderscheidt to show cause why her

probation should not be revoked. Heiderscheidt filed a motion to dismiss, arguing that the trial

court lacked jurisdiction. At the hearing on the motion to dismiss, Heiderscheidt argued that the

behavior alleged in the probation violation letter all took place after her original term of

probation ended on November 4, 2006. She also argued that the May 18, 2007 order that

purported to extend the period of her supervised probation until November 4, 2008 was not

legitimate under Code § 19.2-304 because she was denied her right to a hearing before her

probation was extended.

        Following the hearing, the trial court denied Heiderscheidt’s motion to dismiss,

explaining that she had adequate notice of the conditions of her probation and that the probation

was for a set duration:

                It wasn’t indefinite probation. There was a term of probation. But
                that term was predicated on her fulfilling certain conditions. One
                is paying fines and costs. She didn’t do that.

                                                -3-
                           *       *       *       *         *     *       *

               I don’t think there’s any question that she was on probation. So
               the motion to dismiss is going to be denied at this time and we’ll
               proceed on the revocation.

       The trial court then took evidence regarding the probation violations and revoked one

year of Heiderscheidt’s previously suspended sentence. This appeal followed.

                                                       II.

       On appeal, Heiderscheidt asks this Court to determine whether the trial court erred “in

denying appellant’s motion to dismiss, finding it still maintained jurisdiction over the appellant,

and that her term of supervised probation had been validly extended beyond its original

expiration date.” Because the trial court’s refusal to grant the motion to dismiss involves a

purely legal determination, we review it de novo on appeal. See Young v. Commonwealth, 273

Va. 528, 533, 643 S.E.2d 491, 493 (2007).

       According to Code § 19.2-303, “[a]fter conviction, whether with or without jury, the

court may suspend imposition of sentence or suspend the sentence in whole or part and in

addition may place the defendant on probation under such conditions as the court shall determine

. . . .” This “statute places wide discretion in the trial court to determine what conditions are to

be imposed in each particular case.” Jackson v. Commonwealth, 29 Va. App. 418, 423, 512

S.E.2d 838, 841 (1999). A trial court may modify both the conditions of probation and the

period of probation “but only upon a hearing after reasonable notice to both the defendant and

the attorney for the Commonwealth.” Code § 19.2-304. Our Supreme Court has “noted the

wide latitude the legislature has afforded trial courts in fashioning rehabilitative programs for

defendants.” Nuckoles v. Commonwealth, 12 Va. App. 1083, 1085, 407 S.E.2d 355, 356 (1991)

(citing Grant v. Commonwealth, 223 Va. 680, 685, 292 S.E.2d 348, 351 (1982)). Accordingly,

the “probation statutes . . . should be liberally construed to provide trial courts a valuable tool for

                                                 -4-
rehabilitation of criminals.” Grant, 223 Va. at 685, 292 S.E.2d at 350 (citing Dyke v.

Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952)).

       Heiderscheidt reasons that the trial court was without jurisdiction to revoke her probation

in January 2008 because the three-year term of probation set forth in her original sentencing

order expired in November of 2006. Thus, she argues, the May 2007 order extending her

probation was invalid and she was no longer subject to the terms of her probation when her

probation was revoked in January 2008. At the same time, though, Heiderscheidt does not

dispute that she failed to pay her court costs during the original term of probation, nor does she

dispute that the 1995 standing order was incorporated into her sentencing order and constituted

the terms and conditions of her probation. 3

       We do not agree with Heiderscheidt’s premise. While Heiderscheidt’s sentencing order

set a three-year probation period, the 1995 order further provided that—in the event court costs

were not paid during the probation period—probation would be extended until the court held a

hearing. Thus, by operation of the 1995 order, Heiderscheidt remained under the trial court’s

jurisdiction after the specific three-year term expired and she was still under the trial court’s

jurisdiction when it entered the May 2007 order extending her probation another two years for

failure to pay her court costs. 4 Because of that extension, Heiderscheidt was still bound by the


       3
          We note that the trial court entered another standing order in 2002 that modified the
terms of the 1995 order and applied “henceforth [to] all persons granted and placed on probation
. . . .” However, the record does not indicate whether this modification complied with the notice
and hearing provisions of Code § 19.2-304, which states in pertinent part that a trial court “may
subsequently . . . modify any condition of probation, but only upon a hearing after reasonable
notice to both the defendant and the attorney for the Commonwealth.” Accordingly, we do not
consider the terms of the 2002 order.
       4
         Because the end of the period of probation in this case was predicated on the occurrence
of two definite events—the expiration of three years and, if not already paid during that three
years, the payment of court costs—we note that this case does not involve an indefinite term of
probation. Cf. Hartless v. Commonwealth, 29 Va. App. 172, 510 S.E.2d 738 (1999).

                                                 -5-
terms and conditions of her probation that she was found to have violated at the time of the

revocation hearing below.

       Heiderscheidt, however, claims that the May 2007 order was void because she was not

afforded a hearing as required by Code § 19.2-304. We disagree. Even assuming arguendo that

the May 2007 order was entered without a hearing, the order would merely be voidable. 5

               If the [trial] court has jurisdiction of the subject matter of the
               controversy, and the parties are before it, . . . a mistaken exercise
               of that jurisdiction does not render its judgment void. The court
               has jurisdiction to err, as well as to correctly adjudicate the
               questions before it for decision, and the remedy to correct the
               errors of the court is solely by appeal.

Erickson-Dickson v. Erickson-Dickson, 12 Va. App. 381, 388-89, 404 S.E.2d 388, 392 (1991)

(citations omitted). Therefore, the May 2007 order was binding because it was neither vacated

by the court that issued it within the twenty-one-day time period of Rule 1:1, nor overturned by

an appellate court. Wright v. Commonwealth, 52 Va. App. 690, 704, 667 S.E.2d 787, 794

(2008) (citations omitted).

                                                 III.

       For the foregoing reasons, the trial did not err when it denied Heiderscheidt’s motion to

dismiss. At the time of the revocation hearing at issue in this case, the trial court had jurisdiction

over Heiderscheidt. We therefore affirm.

                                                                                       Affirmed.




       5
         Heiderscheidt endorsed the order extending her probation, and she does not contest that
she had notice of the extension.
                                              -6-
