                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Clements
Argued at Salem, Virginia


RUDOLPH LEE CRAWLEY
                                                            MEMORANDUM OPINION* BY
v.     Record No. 2374-05-3                               JUDGE JEAN HARRISON CLEMENTS
                                                                   MAY 22, 2007
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                                 David A. Melesco, Judge

                 John Gregory, Jr., for appellant.

                 Kathleen B. Martin, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       On appeal from the October 12, 2005 order of the trial court finding he violated the

conditions of his probation and revoking his suspended sentences, Rudolph Lee Crawley

(appellant) contends the trial court lacked authority to make such a finding and revoke his

suspended sentences because he was not on probation at the time of the charged probation

violation. For the reasons that follow, we affirm the judgment of the trial court.

       As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                       I. BACKGROUND

       By order entered April 29, 1996, the trial court sentenced appellant to five years in prison

on his conviction for statutory burglary and three years in prison on his conviction for possession

of cocaine. The trial court suspended six years and three months of the sentences on the

condition that appellant successfully complete one year of supervised probation and “be of good

behavior for a period of five . . . years following his release from probation.” The order did not

state when the one-year period of supervised probation was to begin.

       On April 3, 2002, the trial court issued a capias for appellant’s arrest for failing to comply

with the terms of his suspended sentences. The capias was executed on May 5, 2002, and the

court conducted a revocation hearing on July 3, 2002. By order entered July 30, 2002, the court

revoked appellant’s suspended sentences and resuspended the entirety of those sentences on the

condition that appellant serve nine months in jail, with credit for time served while awaiting the

revocation hearing, and successfully complete one year of supervised probation upon his release

from jail. Although the court’s order stated that the court considered “the evidence of the

Probation Officer and the additional evidence adduced in open court” regarding “the violations

of probation alleged to have been committed by” appellant, it did not contain an explicit finding

by the court that appellant had violated the terms of his suspended sentences.

       By order entered October 23, 2003, the court again revoked appellant’s suspended

sentences and resuspended those sentences on the condition that appellant serve twelve months

in jail, successfully complete two years of supervised probation, and be of good behavior for

eight years.

       By order entered June 7, 2005, the court found appellant had violated the conditions of

his probation and revoked the suspension of his previously suspended sentences. The court then

resuspended the entirety of those sentences on the condition that appellant successfully complete

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six months of supervised probation beginning May 26, 2005, and be of good behavior for two

years beginning May 26, 2005.

       In June 2005, appellant failed to report in person to his probation officer as required and a

capias for his arrest was issued. The trial court conducted a revocation hearing on September 15,

2005. By order dated October 12, 2005, the court found appellant had violated the conditions of

his probation and revoked the suspension of his previously suspended sentences. The court then

reimposed the four years and six months appellant had remaining on his sentences and

resuspended two years of those sentences on the condition that appellant be of good behavior for

five years beginning September 15, 2005.

       This appeal followed.

                                         II. ANALYSIS

       Appealing from the October 12, 2005 revocation order, appellant contends the trial court

lacked authority to revoke his suspended sentences in October 2005 because “he was not on

probation at the time of the probation violation in 2005.” He maintains he was not on probation

in 2005 because he had completed the one-year probationary period imposed by the trial court in

its April 29, 1996 order before he violated the terms of his suspended sentences in 2002. Thus,

he argues, the court lacked jurisdiction to enter the July 30, 2002 order revoking his suspended

sentences and imposing an additional period of probation. As a result, appellant’s argument

continues, that order and all of the subsequent revocations orders, including the June 7, 2005

order imposing the period of probation at issue here, were invalid and of no force and effect.

Alternatively, he argues he was not on probation in 2005 because the order entered by the court

on July 30, 2002, was “not sufficiently clear enough to extend probation past 2002.” We will

address each of these arguments separately.




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                         A. Jurisdiction to Enter the July 30, 2002 Order

       “[U]nder Virginia law once a defendant receives a suspended sentence, a judge’s power

to revoke the suspension of sentence and probation is governed by statute.” Carbaugh v.

Commonwealth, 19 Va. App. 119, 123, 449 S.E.2d 264, 266 (1994). “The language of Code

§ 19.2-306 specifies the periods in which the events amounting to cause for revocation must

occur in order for a judge to revoke a suspended sentence.” Id. That statute authorizes the trial

court “to revoke the suspended sentence ‘for any cause the court deems sufficient’ that occurs

within the probation period, within the period of suspension, or, if neither is fixed, within the

maximum period for which the defendant might originally have been sentenced to be

imprisoned.” Peyton v. Commonwealth, 268 Va. 503, 508, 604 S.E.2d 17, 20 (2004) (emphasis

added) (quoting Code § 19.2-306). Thus, in determining whether a defendant’s violation of a

condition of the suspension of sentence occurred within the applicable statutory time limitations

of Code § 19.2-306, the courts must look not just at the prescribed probation period, as appellant

suggests, but at the entire period of suspension. See Carbaugh, 19 Va. App. at 126, 449 S.E.2d at

268 (noting that, once a defendant’s “period of suspension expires,” the trial court loses

jurisdiction to revoke his sentence). “[T]he power of the courts to revoke suspensions and

probation for breach of conditions must not be restricted beyond the statutory limitations.” Grant

v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982).

       Here, the original sentencing order entered on April 29, 1996, expressly suspended six

years and three months of appellant’s sentences on the condition that appellant successfully

complete one year of supervised probation and “be of good behavior for a period of five . . .

years following his release from probation.” (Emphasis added.) Because the probation and good

behavior periods ran successively, the overall period of suspension of appellant’s sentences was

six years in length. Although the order did not state when the probationary period was to begin,

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for purposes of this appeal, we assume that the period of supervised probation began, as

appellant’s asserts, on the date of the sentencing order. Thus, the events amounting to cause for

revocation had to occur by April 29, 2002, for the trial court to have jurisdiction to revoke

appellant’s suspended sentences.

       The record establishes that appellant failed to comply with the terms of his suspended

sentences on or before April 3, 2002. Because that violation occurred within the period of

suspension fixed by the court, the trial court had jurisdiction to enter the July 30, 2002 order

revoking appellant’s suspended sentences and resuspending those sentences for a fixed period on

certain conditions. Accordingly, appellant’s contention that the trial court lacked authority to

revoke his suspended sentences in October 2005 because the court exceeded its statutory

authority when it revoked appellant’s sentences in 2002 is without merit.

                              B. Contents of the July 30, 2002 Order

       As previously mentioned, appellant also contends, in the alternative, that he was not on

probation in 2005 because the July 30, 2002 revocation order did not “extend probation past

2002.” He argues that order failed to validly extend probation because it did not contain a

specific finding that he had violated the terms of his suspended sentences and because it

“terminated probation and extended probation at the same time.” Because we hold the July 30,

2002 order is not subject to collateral attack on these grounds, we will not consider the merits of

this contention.

       While an order that is void ab initio may be “challenged at any time,” an order that is

merely voidable “is not subject to collateral attack and is subject to the limitations of Rule 1:1.”

Singh v. Mooney, 261 Va. 48, 51, 541 S.E.2d 549, 551 (2001). Thus, orders that are merely

voidable may only “be set aside by motion filed in compliance with Rule 1:1 or provisions

relating to the review of final orders.” Id. at 52, 541 S.E.2d at 551. “The distinction between an

                                                -5-
action of the court that is void ab initio rather than merely voidable is that the former involves

the underlying authority of a court to act on a matter whereas the latter involves actions taken by

a court which are in error.” Id. at 51, 541 S.E.2d at 551.

       Here, as we previously determined, the trial court had statutory authority to enter the July

30, 2002 order. The instant contention, challenging the contents of the order, raises a question of

trial court error, not jurisdiction. Indeed, the order’s lack of a specific finding that appellant had

violated the terms of his suspended sentences and its arguable lack of clarity did not divest the

court of jurisdiction in this case. At most, such errors or irregularities rendered the order merely

voidable rather than void ab initio. See Robertson v. Commonwealth, 181 Va. 520, 536, 25

S.E.2d 352, 359 (1943) (“‘[A] judgment rendered by a court of competent jurisdiction is not void

[ab initio] merely because there are irregularities or errors of law in connection therewith.’”

(quoting 31 Am. Jur. Judgments § 401)). Appellant could have challenged the court’s entry of

the order upon a timely motion to the trial court or a timely direct appeal to this Court, see Singh,

261 Va. at 52, 541 S.E.2d at 551, but he did not. Thus, the July 30, 2002 order remained in full

force and effect and may not now be collaterally attacked on such grounds. See Simmers v.

Commonwealth, 11 Va. App. 375, 379, 398 S.E.2d 693, 695 (1990) (holding that no collateral

attack was allowed where the trial court had jurisdiction and the defendant failed to challenge the

court’s judgment within twenty-one days or timely petition for an appeal).

       Accordingly, we will not entertain appellant’s alternative arguments.

                                        III. CONCLUSION

       For these reasons, we affirm the judgment of the trial court.

                                                                                            Affirmed.




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