                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia


RONNIE LEE ROGERS
                                                OPINION BY
v.   Record No. 0210-98-2               JUDGE JAMES W. BENTON, JR.
                                               APRIL 27, 1999
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                    John W. Scott, Jr., Judge

          Elizabeth Virginia Killeen (John F.
          Wilkinson, Assistant Public Defender, on
          brief), for appellant.

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


     The trial judge found that Ronnie Lee Rogers had violated

conditions of his suspended sentence and ordered Rogers to

participate in the Diversion Center Incarceration Program.    See

Code § 19.2-316.3.   Rogers contends the trial judge had no

authority to order him to participate in the program because the

trial judge already had revoked part of the suspended sentence.

He also contends the trial judge violated Code § 19.2-303 and Rule

1:1 by improperly modifying a sentence that had become final.    For

the reasons that follow, we affirm the judgment.

                               I.

     In 1995, Rogers pled guilty to a felony charge of concealing

merchandise in a store with the intent to convert the merchandise
to his use without paying the purchase price.   See Code

§§ 18.2-103 and 18.2-104.   A judge of the circuit court sentenced

Rogers to two years in prison and suspended all but six months of

the sentence on the condition that Rogers be of good behavior for

five years following his release from prison.

     The proceeding that gives rise to this appeal commenced on

December 10, 1997, when Rogers appeared in the circuit court to

show cause "why the sentence previously imposed and suspended

should not be revoked, in whole or in part," because of an

allegation that Rogers had violated conditions of his 1995

suspended sentence and probation.   During that hearing, Rogers'

probation officer testified concerning acts committed by Rogers

that violated conditions of his suspended sentence and probation.

The probation officer also testified that she had caused the

police to arrest Rogers and that she had placed Rogers into an

in-patient program at the Piedmont House for treatment for

alcoholism.   While on a furlough from Piedmont House, Rogers was

arrested for committing an offense in Prince William County and

was terminated from the treatment program.

     At the conclusion of the testimony, Rogers' attorney

requested the trial judge to "order [Rogers] back into the

[Piedmont House] program" and offered in evidence a letter stating

that Piedmont House was willing to have Rogers return to the

program.   Rogers' attorney also noted that Rogers was required to

attend a hearing the following week in Prince William County.

                               - 2 -
Stating her unfamiliarity with the Piedmont House program, the

Assistant Commonwealth's Attorney requested the trial judge to

consider the Diversion Center Incarceration Program established by

Code § 19.2-316.3.

     The trial judge "[found] that [Rogers] has violated the terms

and conditions of the previously imposed sentence" and then

recalled the probation officer to testify concerning the Piedmont

House program.    During her testimony, the probation officer said

she had no dealings with Piedmont House prior to Rogers'

placement.    She also noted that Rogers had not been evaluated to

determine his eligibility for the Diversion Center Incarceration

Program.   See Code § 19.2-316.3.   Following the probation

officer's testimony, the trial judge entered an order containing

the following pertinent rulings:

                It appearing to the Court that on
             December 13, 1995, in the Circuit Court of
             the City of Fredericksburg, Ronnie Lee
             Rogers was convicted of felony shoplifting.
             He was sentenced to serve two (2) years in
             the state penitentiary, and one (1) year and
             six (6) months of said sentence was
             suspended on condition that he remain of
             good behavior for a period of five (5)
             years, supervised probation and payment of
             court costs.

                After hearing the evidence and argument
             of counsel, the Court finds that [Rogers] is
             in violation of the terms and conditions of
             his suspended sentence, and it is ORDERED
             that he is sentenced to confinement in jail
             through January 5, 1998.

                It is ORDERED that this case is continued
             to January 5, 1998 at 9:00 a.m., for final

                                 - 3 -
          disposition, and it is ORDERED that [Rogers]
          remain incarcerated until that time. It
          appearing to the Court that [Rogers] has a
          charge in the Prince William Circuit Court,
          and if he is convicted and sentenced to
          serve an active period of time, the Attorney
          for [Rogers] is instructed to advise the
          Court. If no incarceration is imposed by
          Prince William Circuit Court or if he is
          released by Prince William, he shall be
          returned to the Rappahannock Regional Jail.

             The Department of Probation and Parole
          shall evaluate [Rogers] for his eligibility
          for participation in the Men's Diversion
          Center Incarceration Program and file their
          report with the Court and with counsel. In
          the alternative, [Rogers'] counsel shall
          inquire of the Piedmont Program to determine
          [Rogers'] eligibility for said program, and
          shall advise the Court by January 5, 1998.

     On January 5, 1998, the trial judge again heard testimony

from the probation officer, who testified that Rogers was

eligible for both programs.   Noting Rogers' history of arrests

for alcohol-related offenses and the program costs, the

probation officer recommended placing Rogers in the Diversion

Center Incarceration Program.   Rogers' attorney argued that the

Piedmont House program was the appropriate placement and further

argued that because at the previous hearing, the trial judge

revoked several weeks of the suspended sentence, the trial judge

did "not [now have] an option to send [Rogers] to [the Diversion

Center Incarceration] program."

     The trial judge again ruled that Rogers "is in violation of

the terms and conditions of the previously" suspended sentence

and probation.   Invoking Code § 19.2-316.3, the trial judge

                                - 4 -
revoked the "balance of the entire sentence and resuspended" it

on condition that Rogers successfully complete the Diversion

Center Incarceration Program.   Rogers' attorney objected and

stated that the trial judge's December 10, 1997 ruling, which

incarcerated Rogers until January 5, 1998, was a sentence that

Rogers had served.   The trial judge overruled the objection and

explained that Rogers' incarceration had been "transition time"

for which the trial judge gave Rogers "credit for the time

served while . . . waiting to enter" the Diversion Center

Incarceration Program.

                                 II.

     In pertinent part, Code § 19.2-316.3 provides as follows:

          1. Following . . . a finding that the
          defendant's probation should be revoked,
          upon motion of the defendant, the court may
          order such defendant committed to the
          Department of Corrections for a period not
          to exceed forty-five days from the date of
          commitment for evaluation and diagnosis by
          the Department to determine suitability for
          participation in the Diversion Center
          Incarceration Program. . . .

          2. Upon determination that (i) such
          commitment is in the best interest of the
          Commonwealth and the defendant and (ii)
          facilities are available for the confinement
          of the defendant, the Department shall
          recommend to the court in writing that the
          defendant be committed to the Diversion
          Center Incarceration Program.

          3. Upon receipt of such recommendation and
          a determination by the court that the
          defendant will benefit from the program and
          is capable of returning to society as a
          productive citizen following successful

                                - 5 -
          completion of the program, and if the
          defendant would otherwise be committed to
          the Department, the court (i) shall impose
          sentence, suspend the sentence, and place
          the defendant on probation pursuant to this
          section or (ii) following a finding that the
          defendant has violated the terms and
          conditions of his probation previously
          ordered, shall place the defendant on
          probation pursuant to this section. Such
          probation shall be conditioned upon the
          defendant's entry into and successful
          completion of the Diversion Center
          Incarceration Program.

(Emphasis added).

     Rogers contends the trial judge had no authority to

sentence him pursuant to Code § 19.2-316.3 because the trial

judge had earlier revoked a part of Rogers' suspended sentence

and sentenced him to a period of incarceration for violating his

suspended sentence and probation.   The Commonwealth argues that

Rogers failed to object at the earlier hearing and thereby sent

the unmistakable message that the trial judge's proposal was a

permissible resolution of the matter.   We agree in part with

both positions.

     At the December 1997 hearing, the trial judge ruled "that

[Rogers] has violated the terms and conditions of the previously

imposed probation, . . . [and] sentence[d] him to serve . . . a

period of incarceration through January 5, 1998."   Although the

trial judge expressly stated that "[t]his is a conditional

order," he also noted that, "[b]y being incarcerated for a

period approaching two months, [Rogers] would also have been, in


                              - 6 -
essence, punished for his violation of the terms and conditions

of the previously imposed sentence."   It is likely that Rogers

did not object at that time because the trial judge made the

following oral ruling which left open the possibility of a

referral to the Piedmont House program that Rogers sought:

             The Office of Probation and Parole shall
          evaluate [Rogers] to determine his
          eligibility for the Men's Diversion Center
          Incarceration Program between now and
          January 5 returning a report to the Court
          and to all parties in ample time for a
          hearing on that date.

             In the alternative, Counsel for [Rogers],
          if he is found to be ineligible for the
          Men's Diversion Center Incarceration
          Program, shall inquire of the Piedmont
          program as to his ability to return and be
          readmitted into that program effective
          January 5, 1998, and shall report that fact
          to the Court at the hearing on January 5th.

             That way the Court will be advised as to
          whether or not both options are still
          available and will then choose on that date
          what the Court feels to be an appropriate
          program.

     In any event, Code § 19.2-316.3 permits the trial judge to

cause a defendant such as Rogers to be temporarily incarcerated

as follows:

          [F]ollowing a finding that the defendant's
          probation should be revoked, upon motion of
          the defendant, the court may order such
          defendant committed to the Department of
          Corrections for a period not to exceed
          forty-five days from the date of commitment
          for evaluation and diagnosis by the
          Department to determine suitability for
          participation in the Diversion Center
          Incarceration Program. The evaluation and

                              - 7 -
          diagnosis may be conducted by the Department
          at any state or local correctional facility,
          probation and parole office, or other
          location deemed appropriate by the
          Department.

Code § 19.2-316.3(1).   Although the trial judge indicated that

the temporary detention of Rogers "would also . . . [be], in

essence, punish[ment] for his violation of the terms and

conditions of the previously [suspended] sentence," we believe

that statement was made within the context of the trial judge's

decision to detain Rogers while the attorneys explored the two

program options.   Certainly, the act of incarcerating Rogers was

permitted by Code § 19.2-316.3 and the incarceration, if done

pursuant to that statute, could have exceeded the period of time

Rogers was in fact incarcerated.

     The trial judge stated the order was "conditional" and

apparently intended to preserve for Rogers the option of a

referral to the Piedmont House program or to the Diversion

Center Incarceration Program.   Any error the trial judge may

have made in stating that the temporary detention would be

punishment was harmless.    The incarceration exposed Rogers to no

greater detriment than he would have experienced had the trial

judge followed the precise strictures of Code § 19.2-316.3 and

stated he was incarcerating Rogers for the sole purpose of

evaluation and diagnosis.   Thus, despite the trial judge's

December 10, 1997 statement that he was incarcerating Rogers as

punishment for violating conditions of the suspended sentence, a

                                - 8 -
review of the entire record shows that the trial judge

substantially followed Code § 19.2-316.3.   Indeed, as credit to

Rogers for the time he was incarcerated pending the suitability

evaluation and diagnosis, the trial judge reduced Rogers'

remaining suspended sentence even though Code § 19.2-316.3 did

not require such a result.

     At oral argument before this Court, Rogers' attorney

contended that referral to the Diversion Center Incarceration

Program may only occur "upon motion of the defendant."   Code

§ 19.2-316.3.   She argued that Rogers did not make any such

motion.   This objection was not made at trial.   See Rule 5A:18.

More significant, however, we believe the record clearly

establishes that when Rogers was before the trial judge and in

jeopardy of having his sentence revoked for probation

violations, Rogers was seeking referral to a treatment program.

Although Piedmont House was clearly his preference, Rogers was

aware at the December hearing that the trial judge was seeking

information regarding referrals for each program.   Thus,

although the motion from Rogers was not specific as to the

Diversion Center Incarceration Program, we conclude that the

trial judge's consideration of both programs upon Rogers' motion

for referral to Piedmont House was not an abuse of discretion.

                               III.

     Rogers also contends the trial judge "erred in modifying a

sentence imposed at the December 10, 1997 hearing on January 5,

                               - 9 -
1998 in violation of Code § 19.2-303 and Rule 1:1."   Thus,

Rogers argues he should be released because he has served the

sentence the trial judge ordered.   We disagree.

     Code § 19.2-303 pertains to initial sentencing decisions

following conviction, not to probation revocation procedures.

Code § 19.2-303 has no applicability to the facts and procedural

posture of this case.   Furthermore, as we earlier noted, the

trial judge was authorized to incarcerate Rogers "for a period

not to exceed forty-five days" pending an evaluation as to

suitability for placement in the Diversion Center Incarceration

Program.   See Code § 19.2-316.3.   The incarceration did not

exceed that limitation.

     Rogers correctly notes that Rule 1:1 prohibits "[a]ll final

judgments, orders, and decrees" from being modified after

twenty-one days.   However, the December 10, 1997 order was not a

final order under Rule 1:1.   The trial judge ruled that he was

"conditional[ly]" ordering Rogers incarcerated until the trial

judge had sufficient information to make a determination

concerning the alternative programs and to issue a final order.

Code § 19.2-316.3 permitted that incarceration as an interim

measure.   Thus, we conclude that the trial judge's December 10,

1997 order was such an interim decision.   At the January 5, 1998

hearing, the trial judge received the evaluation pursuant to

Code § 19.2-316.3 and entered a sentencing order.   That order



                              - 10 -
was the final order, which the trial judge had authority to

enter.

     The judgment is affirmed.

                                                       Affirmed.




                             - 11 -
