                                         COURT OF APPEALS OF VIRGINIA
PUBLISHED


            Present: Judges Humphreys, AtLee and Senior Judge Clements
            Argued at Lexington, Virginia


            CHARLIE LUTHER WILSON, JR.
                                                                              OPINION BY
            v.     Record No. 1658-15-3                                JUDGE ROBERT J. HUMPHREYS
                                                                           NOVEMBER 29, 2016
            COMMONWEALTH OF VIRGINIA


                            FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                                         James J. Reynolds, Judge

                           Sharon E. Ashby, Assistant Public Defender, for appellant.

                           Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   Charlie Luther Wilson, Jr. (“Wilson”) appeals the October 13, 2015 decision of the

            Circuit Court of the City of Danville (the “circuit court”) revoking his suspended sentence and

            sentencing him to twelve months’ incarceration. Wilson’s single assignment of error is that the

            circuit court lacked authority to revoke his suspended sentence at the October 13, 2015

            revocation hearing because the circuit court’s February 8, 2011 probation extension order failed

            to properly extend his probation period for two reasons: (1) the October 26, 2005 restitution

            order was improperly delegated to the probation officer, rather than determined by the circuit

            court as required by Code § 19.2-305.1(D), thus any subsequent order is invalid, and (2) his

            probation period had previously expired, on April 23, 2010, by the time the February 8, 2011

            probation extension order was entered.
                                              I. Background

       On October 26, 2005, Wilson, who had theretofore entered nolo contendere pleas and had

been convicted of involuntary manslaughter and possession of a firearm after having been

previously convicted of a felony, was sentenced by the circuit court to a term of five years’

imprisonment with two years and six months suspended for the involuntary manslaughter

conviction, and five years’ imprisonment with three years suspended for possession of a firearm

as a convicted felon. Wilson’s sentences ran consecutively, thus, he was to serve four years and

six months of imprisonment and had five years and six months of suspended time. Additionally,

the circuit court ordered that Wilson “shall pay restitution in the amount to be determined by the

Probation Officer . . . .” (Emphasis added). The October 26, 2005 sentencing order did not

contain a requirement to make specific monthly payments or a date certain by which Wilson

must fulfill his restitution obligation. Further, the circuit court’s October 26, 2005 order “placed

[Wilson] on probation to commence upon release from incarceration, under the supervision of a

Probation Officer for twelve (12) months.”1

       On May 1, 2009, Wilson was placed on probation supervision. Wilson’s date of release

from probation supervision was April 23, 2010. On July 7, 2010 Wilson and his probation

officer, Shawn M. Trimble (“Trimble”), signed a voluntary extension of probation agreement

stating that Wilson “agree[d] to waive his probation revocation hearing . . . , and have [his]

probation supervision extended until all court costs, fines, and restitution are paid in full.” The

record is silent as to whether Wilson had the assistance of legal counsel when he signed the July

7, 2010 voluntary extension of probation agreement.




       1
        The October 26, 2005 sentencing order also directed Wilson to remain on good
behavior for eight years after release from probation and to pay court costs of $1,995.
                                                -2-
        On February 2, 2011, Trimble sent the circuit court a letter titled “REQUEST: Voluntary

Extension of Supervised Probation” asking for Wilson’s supervised probation to be “extended

indefinitely until all restitution is paid in his case.” In this letter to the circuit court, Trimble

explained that Wilson adjusted well to supervised probation “with the exception of paying [his]

restitution.” Further, Trimble informed the circuit court about the July 7, 2010 signed voluntary

probation extension agreement and that Wilson’s restitution balance was $6,046.27. On

February 8, 2011, the circuit court granted Trimble’s request and issued an order stating that

“upon the request of the Probation Officer by letter dated February 2, 2011, and [with] the

written consent of the probationer, the period of probation for the said Charlie Luther Wilson, Jr.

is hereby extended to allow defendant additional time to pay restitution.” This order effectively

placed Wilson on probation indefinitely until he paid his restitution in full.

        Over four years later, on April 1, 2015, Jessica Echols (“Echols”), a probation and parole

officer with the Department of Corrections, issued a major violation report (the “violation

report”) against Wilson. The violation report states that Wilson had not made a restitution

payment since July 11, 2013 and that he still owed restitution in the amount of $3,241.27.

Wilson was sent a letter requesting him to report to the probation office on March 26, 2015.

Because he was in Maryland for a family emergency, Wilson contacted the probation office

explaining that he would be late for his March 26, 2015 appointment. In response, the probation

office told Wilson that he had never been issued a pass to leave the Commonwealth of Virginia

to go to Maryland and told him to return to the probation office immediately. Wilson arrived at

the probation office on March 26, 2015.

        On March 26, 2015, Wilson explained to the probation office that he had been giving his

wife the money for his restitution payments and she had not been paying it. Additionally,

Wilson told the probation office that he had no new criminal charges against him. However,
                                                   -3-
after the probation officer ran a criminal records check, it was discovered that Wilson had been

arrested on February 15, 2015 in Richmond County, Georgia for driving under the influence

(“DUI”) and driving without a license. Wilson had not been issued a pass from the probation

office to go to Georgia. Finally, Wilson was screened for drugs during his March 26, 2015

probation office visit. The drug screen returned positive for marijuana and cocaine.

       A revocation hearing was held on October 13, 2015, at which time Wilson was present

and was represented by appointed counsel. Wilson denied the allegations of the violation report.

Probation Officer Erica Stump (“Stump”), who was acting as a substitute for Echols, testified

that Wilson’s conditions of probation did have a minimum expiration date of April 23, 2010, but

that his probation term had been indefinitely extended on February 8, 2011 for failure to pay

restitution. Stump testified that Wilson’s only restitution payment since 2013 came on

September 9, 2015 in the amount of $225 and that as of October 6, 2015, Wilson’s restitution

balance was $3,016.27. Further, Stump testified that, on February 15, 2015, Wilson was arrested

in Richmond County, Georgia for DUI and driving without a license and that he did not have

permission from the probation office to travel to Georgia.2

       At the October 13, 2015 revocation hearing, Wilson made a motion to strike arguing that

the October 26, 2005 sentencing order improperly delegated the circuit court’s responsibility to

set the restitution amount by ordering Wilson to “pay restitution in the amount to be determined

by the Probation Officer.” Wilson argued that the probation office did not have the authority to

extend probation. The circuit court overruled Wilson’s motion to strike stating that “to the extent

the Order is incomplete with respect to a restitution figure, it may make the Order voidable, but

not void.”



       2
           Wilson’s DUI charge in Georgia was dismissed.
                                              -4-
          Ultimately, on October 13, 2015, the circuit court entered its revocation order finding

Wilson in violation of the terms and conditions of his suspended sentence and imposed a

sentence of five years and six months with four years and six months suspended. Thus, Wilson

must serve twelve months’ imprisonment.3 Notably, the circuit court did not revoke Wilson’s

suspended sentence for failure to pay restitution. Instead, the list of violations included (1) that

Wilson failed to report an arrest within three days—the arrest cited was the Georgia DUI on

February 15, 2015, (2) that he lied to the probation office on March 26, 2015 about the February

15, 2015 DUI arrest, (3) that he tested positive for a controlled substance on March 26, 2015, and

(4) that he left the Commonwealth of Virginia without permission.

                                             II. Analysis

                                        A. Standard of Review

          “[T]he authority of the trial court to revoke [an] appellant’s suspended sentence is one of

statutory interpretation and presents a pure question of law, which this Court reviews de novo.”

Hodgins v. Commonwealth, 61 Va. App. 102, 107, 733 S.E.2d 678, 680 (2012). Probation

statutes provide a remedial tool in the rehabilitation of criminals and, to that end, should be

liberally construed. Wright v. Commonwealth, 32 Va. App. 148, 151, 526 S.E.2d 784, 786

(2000).

                        B. Improper Delegation of Restitution Determination

          In challenging the circuit court’s authority to revoke his suspended sentence at the

October 13, 2015 revocation hearing, Wilson first argues that the circuit court’s February 8, 2011

probation extension order failed to extend his probation period because the October 26, 2005




          3
         The circuit court also placed Wilson on two years’ probation following his release from
incarceration followed by five years of good behavior.
                                               -5-
restitution order was improperly delegated to the probation officer, rather than determined by

the circuit court as required by Code § 19.2-305.1(D), thus any subsequent order is invalid.

       In relevant part, Code § 19.2-305.1(D) states that “[a]t the time of sentencing, the court

shall determine the amount to be repaid by the defendant and the terms and conditions thereof.”

The amount of restitution to be paid by the defendant is within the sole province of the circuit

court to determine and that determination may not be delegated to another department of

government. See Code § 19.2-305.2; see also McCullough v. Commonwealth, 38 Va. App. 811,

815, 568 S.E.2d 449, 451 (2002) (holding “[p]art of the sentencing phase of trial, the [restitution]

amount is determined following conviction and is a matter resting within the sole province of the

sentencing judge”). In this case, the circuit court’s October 26, 2005 sentencing order stated that

the “defendant shall pay restitution in the amount to be determined by the Probation Officer.”

Therefore, as a matter of law, we hold that the circuit court improperly delegated the

determination of Wilson’s restitution amount to the probation officer.

       While we agree with Wilson that the circuit court improperly delegated the determination

of Wilson’s restitution amount to the probation officer in its October 26, 2005 sentencing order,

we disagree with Wilson that that improper delegation negates any restitution ever being ordered.

               [I]t is a general principle that where a court has jurisdiction over
               the person and the subject matter, no error in the exercise of such
               jurisdiction can make the judgment void, and that a judgment
               rendered by a court of competent jurisdiction is not void merely
               because there are irregularities or errors of law in connection
               therewith. This is true even if there is a fundamental error of law
               appearing upon the face of the record. Such a judgment is, under
               proper circumstances, voidable, but until avoided is regarded as
               valid.

Robertson v. Commonwealth, 181 Va. 520, 536-37, 25 S.E.2d 352, 359 (1943).

       Wilson’s argument that the October 26, 2005 restitution order is invalid is an improper

collateral attack. Any challenge to the validity of the circuit court’s orders must have been made
                                                -6-
within twenty-one days of the entry of the order in question. See Rule 1:1; Simmers v.

Commonwealth, 11 Va. App. 375, 379, 398 S.E.2d 693, 695 (1990) (“When the trial court

rendered judgment, Simmers had two options available to him. He had twenty-one days from

the date of the order to attack it in the trial court, or he could have timely petitioned this Court

for an appeal. He did neither, but instead accepted the benefit of the court’s suspension of

sentence. Since the judgment of the trial court was not void, Simmers may not sustain a

collateral attack at this date.”). Because the circuit court clearly had subject matter jurisdiction

to order restitution in the October 26, 2005 sentencing order, it was not void but merely

voidable. Wilson failed to timely challenge the validity of the circuit court’s sentencing order,

thus his challenge to the order now comes too late and is an impermissible collateral attack on

that order.

                           C. Lack of Jurisdiction: Code § 19.2-306(A)

        Next, Wilson argues that the circuit court’s February 8, 2011 probation extension order

failed to validly extend his probation period because his probation period had previously expired

on April 23, 2010. In other words, Wilson argues that the circuit court no longer could exercise

its jurisdiction pursuant to Code § 19.2-306(A).

        “The imposition and revocation of a suspended sentence is governed by statute.”

Dunham v. Commonwealth, 59 Va. App. 634, 637, 721 S.E.2d 824, 825 (2012). Pursuant to

Code § 19.2-303, a circuit court possesses the authority to “suspend imposition of sentence or

suspend the sentence in whole or part and . . . place the defendant on probation under such

conditions as the court shall determine.” Code § 19.2-303.1 authorizes a circuit court to “fix the

period of suspension for a reasonable time, having due regard to the gravity of the offense,

without regard to the maximum period for which the defendant might have been sentenced.”

Therefore, “[i]n a typical case following a conviction, the sentencing judge might suspend
                                                 -7-
part of a sentence, order probation for a specified period, and also specify a period of

suspension longer than the period of probation.” Carbaugh v. Commonwealth, 19 Va. App.

119, 124, 449 S.E.2d 264, 267 (1994). “Suspension of sentence means ‘either delay in the

imposition of a sentence for a crime or the staying of execution of the sentence imposed.’” Id. at

123, 449 S.E.2d at 266 (quoting Richardson v. Commonwealth, 131 Va. 802, 808, 109 S.E. 460,

461 (1921)).

       Our analysis in this case is complicated by the lack of specificity in the circuit court’s

orders and the paucity of information in the record which resulted in those orders. Nevertheless,

our decision in this case is determined by our application of the plain language of Code

§ 19.2-306 and by the application of that statute to the sentencing and revocation orders, such as

they are, that exist in this case. When interpreting and applying a statute, this Court assumes

“that the General Assembly chose, with care, the words it used in enacting the statute, and we are

bound by those words.” PKO Ventures, LLC v. Norfolk Redevelopment & Hous. Auth., 286 Va.

174, 183, 747 S.E.2d 826, 831 (2013). “The primary objective of statutory construction is to

ascertain and give effect to legislative intent. The plain, obvious, and rational meaning of a

statute is to be preferred over any curious, narrow, or strained construction.” Commonwealth v.

Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). The language of Code § 19.2-306(A)

“specifies the periods in which the events amounting to cause for revocation must occur in order

for a judge to revoke a suspended sentence.” Carbaugh, 19 Va. App. at 123, 449 S.E.2d at 266.

Code § 19.2-306(A) provides, in pertinent part, that a circuit court may revoke a previously

suspended sentence “for any cause the court deems sufficient that occurred at any time within the

probation period, or within the period of suspension fixed by the court.” (Emphasis added).

       Proceedings for revocation of suspended sentences are within the subject matter

jurisdiction of the circuit courts. Dunham, 59 Va. App. at 640, 721 S.E.2d at 827. “A sentencing
                                                -8-
order revoking a suspended sentence is not void when the trial court ‘had jurisdiction over the

subject matter and the parties.’” Id. at 639, 721 S.E.2d at 827 (quoting Simmers, 11 Va. App. at

379, 398 S.E.2d at 695). Thus, a sentencing order revoking a suspended sentence is void when

the circuit court did not have jurisdiction over the subject matter and the parties. As both this

Court and our Supreme Court stated in Ghameshlouy v. Commonwealth, 279 Va. 379, 388, 689

S.E.2d 698, 702 (2010) (quoting Ghameshlouy v. Commonwealth, 54 Va. App. 47, 57, 675

S.E.2d 854, 859 (2009) (Haley, J. dissenting)), “jurisdiction is a word of many, too many

meanings.” However, in Ghameshlouy, our Supreme Court provided the following guidance:

                [S]ubject matter jurisdiction, perhaps best understood as the
                “potential” jurisdiction of a court, is the authority granted to it by
                constitution or statute over a specified class of cases or
                controversies, and becomes “active” jurisdiction, the power to
                adjudicate a particular case upon the merits, only when various
                elements are present.

                “Those elements are subject matter jurisdiction, which is the
                authority granted through constitution or statute to adjudicate a
                class of cases or controversies; territorial jurisdiction, that is,
                authority over persons, things, or occurrences located in a defined
                geographic area; notice jurisdiction, or effective notice to a party
                or if the proceeding is in rem seizure of a res; and the other
                conditions of fact must exist which are demanded by the unwritten
                or statute law as the prerequisites of the authority of the court to
                proceed to judgment or decree. All these elements are necessary to
                enable a court to proceed to a valid judgment.”

Id. at 388-89, 689 S.E.2d at 702-03 (quoting Board of Supervisors v. Board of Zoning Appeals,

271 Va. 336, 343-44, 626 S.E.2d 374, 379 (2006)).

        In Dunham, this Court held that “because the trial court had subject matter jurisdiction

over appellant’s 1998 revocation hearing when it decided to extend the period of suspension, the

1998 sentencing order is not void. As a result, appellant cannot collaterally attack the 1998

sentencing order in this case.” 59 Va. App. at 640, 721 S.E.2d at 827. Put another way, by the

plain language of the statute as it applies to this case, a circuit court has “active” jurisdiction over
                                                 -9-
a defendant to revoke a suspended sentence for any act that occurs at any time either within the

probation period, or within the period of suspension fixed by the court.

       Here, we are presented with the opposite circumstance of what occurred in Dunham. If

the circuit court lacked “active” jurisdiction over Wilson when it extended his probation in its

February 8, 2011 order, Wilson can collaterally seek to void the 2011 probation order that

extended the period of suspension.

        Pursuant to Rule 1:1, “[a]ll final judgments, orders, and decrees, irrespective of terms of

court, shall remain under the control of the trial court and subject to be modified, vacated, or

suspended for twenty-one days after the date of entry, and no longer.” While “[a] court retains

the authority to revoke a suspended sentence despite the proscriptions of Rule 1:1,” Wright v.

Commonwealth, 32 Va. App. 148, 151, 526 S.E.2d 784, 786 (2000), it does not retain the

authority to retroactively extend its “active” jurisdiction to do so. Here, the original October 26,

2005 sentencing order, in pertinent part, sentenced Wilson to be “placed on probation to

commence upon release from incarceration, under the supervision of a Probation Officer for

twelve (12) months.” Wilson was released to supervised probation on May 1, 2009. Pursuant to

the sentencing order, he was scheduled to be released from supervised probation on April 23,

2010. Thus, the circuit court had twenty-one days from April 23, 2010 to extend its “active”

jurisdiction for Wilson to remain on supervised probation.

       Here, more than ten weeks had elapsed after the expiration of the period of suspension

fixed by the court in its sentencing order until Trimble had Wilson sign an agreement on July 7,

2010 for extension of probation supervision, stating that Wilson “agreed to waive a probation

revocation hearing in the [] [c]ircuit [c]ourt and have [his] probation supervision extended until

all court costs, fines, and restitution are paid in full.” “A court speaks through its orders and

those orders are presumed to accurately reflect what transpired.” Hodgins, 61 Va. App. at 108,
                                                - 10 -
733 S.E.2d at 681 (quoting McBride v. Commonwealth, 24 Va. App. 30, 35, 480 S.E.2d 126,

128 (1997)). It took well over nine months from April 23, 2010 for the circuit court, on February

8, 2011, to enter an order stating that “the period of probation for [Wilson] is hereby extended to

allow defendant additional time to pay restitution.” This was error. By the time it entered its

order doing so, the circuit court no longer had active jurisdiction to extend Wilson’s probation

and Wilson’s signature on an agreement to extend jurisdiction was ineffective. See Andrews v.

Richmond Redevelopment & Hous. Auth., 292 Va. 79, 84, 787 S.E.2d 96, 99 (2016) (“Under

settled principles, such jurisdiction ‘cannot be conferred on the court by the litigants’ and a

challenge to it ‘cannot be waived.’” (quoting Virginian-Pilot Media Cos. v. Dow Jones & Co.,

280 Va. 464, 468, 698 S.E.2d 900, 902 (2010))). Thus, applying the plain language of the

statute, we hold that Wilson was not on supervised probation after April 23, 2010 nor at the time

the circuit court revoked his suspended sentence on October 13, 2015.

       However, this does not end our analysis because notwithstanding any probation status,

Code § 19.2-306(A) extends jurisdiction to a circuit court to revoke a previously suspended

sentence “for any cause the court deems sufficient that occurred at any time within the probation

period, or within the period of suspension fixed by the court.” Although we have determined that

the probation period was no longer in effect by the time the circuit court revoked Wilson’s

suspended sentence on October 13, 2015, under the plain language of the statute, the circuit court

still had the jurisdiction and authority to revoke Wilson’s suspended sentence for any cause

deemed sufficient that occurred at any time within the period of suspension fixed by the circuit

court. Nevertheless, it failed to do so.

       Upon his release from confinement on May 1, 2009, Wilson still had five years and six

months of suspended time. The October 13, 2015 revocation order lists the reasons for

revocation. The list of alleged violations included (1) that Wilson failed to report an arrest
                                                - 11 -
within three days—the Georgia DUI arrest on February 15, 2015, (2) that he lied to the probation

office on March 26, 2015 about the February 15, 2015 DUI arrest, (3) that he tested positive for a

controlled substance on March 26, 2015, and (4) that he left the Commonwealth of Virginia

without permission on February 15, 2015.

       Applying the language of Code § 19.2-306(A), the authority of the circuit court to revoke

Wilson’s suspended sentence extended from the day of his release from incarceration until

November 1, 2014 which represents the five years and six months of his suspended sentence.4

Therefore, the circuit court had “active” jurisdiction to find Wilson in violation of the conditions

for his suspended sentence during the period of five years and six months from May 1, 2009.

Thus, the “active” jurisdiction of the circuit court to revoke Wilson’s suspended sentence

terminated, by operation of the statute, for any action by Wilson that occurred after November 1,

2014. Not one of the four cited violations in the list of revocation violations occurred prior to

November 1, 2014. Therefore, the circuit court erred in revoking Wilson’s suspended sentence

because it no longer had “active” jurisdiction to do so.5 See Code § 19.2-306(A).




       4
         The record is unclear as to Wilson’s exact incarceration release date. May 1, 2009 is
the date closest in time to his incarceration release date because it was the date he was released to
probation supervision which, given the presumption of regularity should have occurred
immediately upon his release from confinement. However, even the later May 1, 2009 date does
not affect our calculation regarding the expiration of the circuit court’s jurisdiction.
       5
         We acknowledge that the original October 26, 2005 sentencing order also placed
Wilson on good behavior for eight years. However, the circuit court’s October 13, 2015
revocation order did not revoke Wilson for failure to be of good behavior during the time it
retained jurisdiction over Wilson. Therefore, because a court speaks only through its orders we
cannot consider whether Wilson violated the good behavior requirement of his original
sentencing order.
                                              - 12 -
                                                 Conclusion

       Because the circuit court lacked jurisdiction to do so, we reverse the circuit court’s

October 13, 2015 judgment finding Wilson in violation of his probation and we remand this

matter to the circuit court for the entry of an order consistent with this opinion.

                                                                            Reversed and remanded.




                                                - 13 -
