                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia


JAMES BOWE, S/K/A
 JAMES ADAM BOWE
                                             MEMORANDUM OPINION *
v.        Record No. 0072-96-1            BY JUDGE JOSEPH E. BAKER
                                              FEBRUARY 11, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                     Dennis F. McMurran, Judge
          Gregory W. Copeland (Brenda C. Spry, Deputy
          Public Defender, on brief), for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     James Adam Bowe (appellant) appeals from an order entered by

the Circuit Court of the City of Portsmouth (trial court)

revoking a previous order of the court that suspended a five-year

penitentiary sentence imposed on appellant.   The sole issue

presented on appeal is whether the trial court abused its

discretion when it revoked the suspended sentence.   Finding no

error, we affirm.

     The record discloses that on August 9, 1994, appellant was

convicted of "fail to perform contract" (Portsmouth offense) by

the trial court.    On October 26, 1994, appellant was sentenced to

serve five years in prison for the Portsmouth offense.    All of

his sentence was suspended on the condition that he submit to
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
five years supervised probation, not violate any laws, pay $600

restitution to the victim, and pay court costs.   The restitution

and costs totaled $1,237.50.   The trial court ordered appellant

to make payments of $30 per month commencing November 28, 1994

until his obligation was paid in full.   This appeal arises from

the trial court's revocation of that suspension order.

     On May 3, 1995, appellant was convicted in Norfolk on a

charge of failure to perform promise of construction (Norfolk

offense).   For the Norfolk offense, he was sentenced to three

years in a Virginia correctional facility.   That sentence was
also suspended, and appellant was placed on supervised probation

for three years or until restitution and costs totalling

$1,347.50 were paid in full.

     Following appellant's Norfolk conviction, a show cause was

issued directing that appellant show cause why his probation

granted by the trial court should not be revoked.   At the

probation violation hearing, appellant testified that the conduct

for which he was convicted in the Norfolk offense occurred prior

to his conviction for the Portsmouth offense; however, he

admitted that although he and his family had paid $9,000 in

restitution in other jurisdictions and had even obtained a loan

to do so, he had paid none of the restitution required as a

condition of the Portsmouth suspension order.   Thus, appellant

preferred others by paying restitution in other jurisdictions

rather than meeting the requirement imposed by the trial court.




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     The standard of review in an appeal from a trial court's

revocation of a suspended sentence is whether the record

discloses that the trial court abused its broad discretion in

such matter.   Hess v. Commonwealth, 17 Va. App. 738, 741, 441

S.E.2d 29, 31 (1994).

     On appeal, appellant contends (1) that it was error for the

trial court to consider the Norfolk offense because the conduct

supporting the Norfolk offense occurred before appellant's

conviction for the Portsmouth offense, and (2) that it was error

for the trial court to consider appellant's failure to pay

restitution because it was not mentioned in appellant's probation

violation report.
     At the probation revocation hearing, appellant did not

properly preserve the issue concerning conduct occurring prior to

his Portsmouth suspension.   During his argument before the trial

court he conceded that he had violated a condition of his

Portsmouth probation.   Argument on that issue is moot.

     Further, at the hearing, appellant introduced the evidence

of his failure to pay restitution as ordered by the trial court.

On appeal, he will not be heard to say that the trial court

should not have considered the evidence he introduced.

     Appellant's failure to pay restitution alone is sufficient

to support the revocation of his probation.   Accordingly, we find

that appellant has not shown that the trial court abused its




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discretion and, therefore, the judgment of the trial court is

affirmed.

                                                        Affirmed.




                              - 4 -
Benton, J., dissenting.

     I would hold that Bowe properly preserved the issues he

presents on appeal and that the trial judge erred.    Thus, I would

reverse the revocation of the suspension of Bowe's sentence.

     The record reveals that Bowe was indicted in the City of

Portsmouth for failure to perform a contract after fraudulently

obtaining an advance on May 11, 1993, in violation of Code

§ 18.2-200.1.   Bowe was convicted in the Circuit Court of the

City of Portsmouth and sentenced on October 26, 1994 to five

years in prison, which was suspended.    The trial judge also

placed Bowe on probation and ordered him to pay restitution and

costs.   Bowe later signed an agreement to pay $600 in restitution

and $637.50 in fines and costs in installments beginning on

November 28, 1994.   Bowe signed a separate agreement promising to

abide by the conditions of his probation, including paying $600

in restitution and obeying all laws.
     On May 3, 1995, Bowe appeared in the Circuit Court of the

City of Norfolk on charges that he had failed to perform a

different contract after fraudulently obtaining an advance, in

violation of Code § 18.2-200.1.   Upon Bowe's plea of guilty, a

judge convicted him and sentenced him to three years in prison,

all of which was suspended.   The judge placed Bowe on supervised

probation for a period of three years or until Bowe paid

restitution in the amount of $700.     Bowe was also ordered to pay

costs in the amount of $647.50.   The date of the offense was not




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included in the order of conviction.

     On October 31, 1995, Bowe's probation officer wrote a letter

to the judge of the Circuit Court of the City of Portsmouth

alleging that Bowe had violated the following condition of his

probation:
             Condition #1: "I will obey all Federal,
             State and local laws and ordinances."

             On May 3, 1995 James A. Bowe was convicted in
             the City of Norfolk, of Fail to Perform
             Promise of Construction in Norfolk Circuit
             Court. He was sentenced to three (03) years
             VA Correctional Facility, suspended, placed
             on three (03) years supervised probation or
             until restitution of $700 is paid in full.
             This officer requests a capias for James Adam
             Bowe to show cause why his probation should
             not be revoked.


The trial judge entered a show cause order.

     At trial, the probation officer testified that the Norfolk

conviction was the only violation that was at issue.    Bowe

attempted to show that he committed the Norfolk offense at

approximately the same time he committed the Portsmouth offense.

In addition, Bowe testified that he was trying to pay all of his

debts but that because he was incarcerated and could not work, he

was having difficulty.    Bowe asked the trial judge to put him on

work release so he could "work and pay back the victims."

     The majority concludes that Bowe did not preserve for appeal

the issue whether the trial judge erred in considering as a

ground for revoking his sentence the Norfolk conviction, which

was based upon conduct that occurred before he was sentenced in


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Portsmouth.   I disagree.   At trial, Bowe's counsel and the judge

made the following statements:
          [JUDGE]: [I]f your defense is that this
          occurred around May 11, 1993 -- ask him when
          the one in Norfolk occurred; . . . . I want
          to know if it occurred around the same time
          . . . .

          [BOWE'S COUNSEL]: These are all things that
          happened around the same time. That's the
          only thing I'm trying to bring before the
          Court.


This record establishes that Bowe made "known to the court the

action which he desire[d] the court to take."   Code § 8.01-384.

Requiring Bowe to object further to the trial judge's ruling

"would, in effect, recreate the requirement of noting an

exception to a final adverse ruling of the trial judge."     Martin

v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404

(1992).

     Moreover, the evidence proved that the conduct that gave

rise to the Norfolk conviction occurred before Bowe was sentenced

in Portsmouth.   Bowe testified that he signed the contract that

was the subject of the Norfolk conviction "before [he] came to

[trial in the Portsmouth] court [on the original charge]."    No

evidence contradicts that testimony.    "[T]he record discloses no

concealment or misrepresentation of fact by [Bowe] which prompted

the [Portsmouth] suspension of sentence."    Hamilton v.

Commonwealth, 217 Va. 325, 328, 228 S.E.2d 555, 557 (1976).

Thus, a conviction based on Bowe's conduct that occurred before

the sentencing cannot serve as grounds for revoking the


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suspension of the sentence.   See id.   I would, therefore, hold

that the trial judge erred in suspending the sentence on these

grounds.

     The majority also holds that Bowe's failure to pay

restitution was a sufficient independent ground to warrant

revoking the suspension of his sentence.   The record does not

establish, however, that the trial judge revoked Bowe's probation

because of the restitution.   The probation officer testified that

the conviction was the only violation at issue.   When the trial

judge ruled, he did not state that the revocation was based upon

any ground other than that for which Bowe received notice and

which gave rise to the hearing.
     In addition, Bowe argues that his failure to pay restitution

cannot serve as a ground to revoke the suspension of his sentence

because he was not given notice before trial that he was being

charged with a violation of this condition of his probation.     The

majority resolves Bowe's notice argument by concluding that

because the evidence showing that Bowe had not paid restitution

was introduced by Bowe himself, Bowe is precluded from objecting

to the trial judge's decision to consider the evidence.

     The principle is well established that "[a] litigant will

not be permitted to invite a trial court to commit error, either

through agreeing or failing to object, and then be permitted to

successfully complain of such error on appeal."    Wright v.
Norfolk and W. Ry. Co., 245 Va. 160, 170, 427 S.E.2d 724, 729




                               - 8 -
(1993).    However, that principle is not applicable to this case.

At trial, Bowe testified that he had not yet paid restitution to

the Portsmouth complainants because he had been making payments

on debts he owed in other cities pursuant to other circuit court

orders.    Bowe offered the evidence to show the efforts he had

made to pay his debts.    In fact, after Bowe testified about his

financial difficulties, he asked the trial judge to allow him to

work.    Bowe obviously wanted the judge to consider his testimony

in deciding whether to allow Bowe to work.    If the trial judge

used that evidence to support an additional ground for

revocation, a fact the record does not prove, the trial judge

erroneously applied the evidence to an issue he raised sua

sponte.

        Moreover, Bowe correctly argues that the use of the evidence

in this fashion violated his due process right to notice.
          A court may not summarily revoke a previously
          suspended sentence without notice, hearing,
          and benefit of counsel. Due process
          procedural protections are required if an
          individual may suffer loss of liberty or
          property protected by the fourteenth
          amendment.

Copeland v. Commonwealth, 14 Va. App. 754, 756, 419 S.E.2d 294,

295 (1992).    Bowe's defense against the charge that he violated

his probation by failing to obey the law did not require him to

defend against accusations that he had failed to pay restitution.

Indeed, the record reveals that if Bowe had received notice that

the judge would proceed on the additional grounds, Bowe could




                                 - 9 -
have offered additional evidence.   Bowe testified that his "wife

has all of the receipts for everyone that [he] paid" and that he

"ran out of money."   To show that he was unable to pay

restitution, a mitigating circumstance a trial judge must

consider, see Duff v. Commonwealth, 16 Va. App. 293, 298-99, 429

S.E.2d 465, 468 (1993), Bowe could have offered evidence to show

that he was unable to pay or that he could not have

simultaneously satisfied the orders issued by both circuit

judges.
     For these reasons, I would reverse the trial judge's ruling

revoking the suspension of Bowe's sentence.




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