                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia


RONALD D. McCRAY
                                            MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1276-99-2                 JUDGE JAMES W. BENTON, JR.
                                                MARCH 21, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
                       William R. Shelton, Judge

             William B. Bray for appellant.

             (Mark L. Earley, Attorney General; Richard B.
             Smith, Assistant Attorney General, on brief),
             for appellee. Appellee submitting on brief.


     This appeal arises from orders revoking suspended prison

sentences previously given to Ronald Donnell McCray.    McCray

contends that his sentences for two felony larceny convictions

were void, rendering the trial judge's revocation of the suspended

sentences given pursuant to those convictions a nullity.     He also

contends that the trial judge erred in revoking the suspended

sentence given to him for a possession of cocaine conviction

because that revocation occurred during the same proceeding in


     ∗
       Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
which the trial judge revoked the suspensions involving the

larceny sentences.   For the reasons that follow, we reverse the

orders revoking the suspended sentences related to the larceny

convictions and dismiss those cases, and we affirm the revocation

of the suspended sentence in the case of possession of cocaine.

                                 I.

     On May 10, 1988, the trial judge entered judgment orders

convicting Ronald Donnell McCray of three felonies.   The judge

convicted McCray for possession of cocaine and sentenced him to

ten years in prison with five years suspended.   He also convicted

McCray for felony larceny, issuing a bad check in violation of

Code § 18.2-181, and sentenced him to twenty years in prison with

fifteen years suspended.   On another felony larceny conviction for

issuing a bad check, the trial judge sentenced McCray to twenty

years in prison with all twenty years suspended.   The larceny

sentences were to be served consecutive to the cocaine sentence.

     Following a hearing on August 22, 1995, and a finding that

McCray violated the conditions of the suspended sentences, the

trial judge "revoke[d] the previously suspended sentence[s] [on

all three convictions] but resuspend[ed]" the sentences on

specified conditions.   At a hearing on November 21, 1995, the

trial judge made a finding that McCray violated the conditions of

the 1995 "resuspen[sion]."   The trial judge then "revoke[d] five

years of [the] previously suspended sentence on the charge of

possession of cocaine, but re-suspend[ed] two years under the same

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terms and conditions as previously set out."   The judge ordered

McCray placed on supervised probation upon his release from

prison.

     On March 30, 1999, at a hearing to determine whether McCray

had failed to comply with the conditions of his suspended

sentences, McCray's counsel stipulated that McCray committed the

charged infractions.   He also informed the trial judge that the

1988 convictions for issuing bad checks "are Class 6 felonies" and

that the maximum sentence that should have been imposed was five

years for each charge.   Nonetheless, the trial judge ruled as

follows:

              It's the judgement of the Court . . .
           [that] you have about 37 years remaining
           here [and] that we're suspending 2 [years]
           on your cocaine and 15 [years] on your
           worthless checks, and 37 years in all. It's
           the judgment of the Court that the suspended
           time be revoked and that you be sentenced to
           the penitentiary to serve all the suspended
           time that you have remaining here. I will
           again suspend all of that time that you have
           here with the exception of three years.

Consistent with that ruling, the trial judge entered an order on

May 2, 1999, containing the following:

           The Court SENTENCES the defendant to:

           Incarceration . . . for the term of: 2 years
           for Possession of Cocaine, 15 years for
           Felony Worthless Check, CR88B-615-02 and, 20
           years for Felony Worthless Check,
           CR88B-615-03. The total sentence imposed is
           37 years.

           The sentence shall run consecutively with
           all other sentences.

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          The Court SUSPENDS 14 years of the Felony
          worthless Check, CR88-615-02 sentence, and
          20 years of the Felony Worthless Check,
          CR88B-615-03 sentence, for a total
          suspension of 34 years . . . .

McCray appeals from this order.

                                  II.

     The Commonwealth concedes that, when McCray was convicted

in 1988 on two felony bad check charges, Code § 18.2-181

provided that such a violation was a Class 6 felony and that the

maximum sentence the trial judge could have imposed for such a

conviction was five years in prison.      See Code § 18.2-10(F).

Accordingly, the Commonwealth agrees that after the trial judge

sentenced McCray in 1988 to serve five years in prison on one

bad check conviction, the trial judge could not have later

revoked any portion of that sentence.

     The Commonwealth also agrees that the trial judge did not

specify either a period of probation or suspension when

suspending all of the sentence on the second bad check charge.

Thus, for any sufficient cause occurring within five years from

1988, the trial judge had a maximum of one year after that five

year period within which he could have revoked McCray's

suspended sentence on that charge.      See Code § 19.2-306.   The

trial judge did not do so.

     The Supreme Court has ruled that "a sentence in excess of

one proscribed by law is not void ab initio because of the

excess, but is good insofar as the power of the court extends,

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and is invalid only as to the excess."     Deagle v. Commonwealth,

214 Va. 304, 305, 199 S.E.2d 509, 511 (1973).    Applying this

principle, we hold that the trial judge erred in 1988 by

imposing a prison sentence in excess of five years on each of

the bad check convictions and that, therefore, the trial judge

had no authority on May 2, 1999 to revoke suspended sentences

with respect to the bad check convictions and incarcerate McCray

on those revocations.

                               III.

     At the hearing on March 30, 1999, McCray stipulated that he

had violated the terms of the suspended sentence.    Moreover, the

record establishes that the suspended sentence for the

possession of cocaine conviction was then still in effect.

     Although McCray did not raise any objection at trial

concerning the revocation of the sentence for possession of

cocaine, he contends on appeal that the trial judge also erred

in revoking that sentence because it was done during "a unitary

revocation procedure based upon a Show Cause for violating both

void and valid sentences."   Absent an objection at trial, we are

precluded by Rule 5A:18 from considering this issue.

     Furthermore, the record does not affirmatively show that a

miscarriage of justice has occurred.     See Mounce v.

Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987).

McCray stipulated that he violated the conditions upon which the

suspended sentence for possession of cocaine was imposed.

                               - 5 -
Furthermore, the record clearly established that at each

proceeding since 1988, the trial judge separated and tailored

each revocation to each conviction.   Indeed, the order appealed

from specifies the precise portion of the revoked suspended

sentence attributable to the possession of cocaine conviction.

Accordingly, we affirm this portion of the order.

                                         Affirmed, in part and
                                         reversed and dismissed,
                                         in part.




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