                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Felton and Kelsey
Argued at Richmond, Virginia


JOE EARL HARRISON
                                                             MEMORANDUM OPINION* BY
v.     Record No. 0556-04-2                                  JUDGE WALTER S. FELTON, JR.
                                                                   MARCH 22, 2005
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                                Thomas V. Warren, Judge

                 Linda M. H. Tomlin (Fitzgerald, Tomlin & McKeen, PLLC, on
                 brief), for appellant.

                 Stephen R. McCullough, Assistant Attorney General (Jerry W.
                 Kilgore, Attorney General, on brief), for appellee.


       On March 1, 2004, the trial court found Joe Earl Harrison (appellant) guilty of violating

the terms of his probation of his 1989 suspended sentence.1 It then revoked twelve months of his

1989 suspended sentence, and re-suspended the remaining unserved portion of that sentence. On

appeal, appellant contends that since the trial court did not impose a condition of indefinite

supervised probation at the time it entered the 1989 order, it lacked authority to modify that

sentencing order by adding that condition in January 20022 as a condition for continuing to

suspend the unserved portion of the 1989 sentence. He argues that the 1989 sentencing order


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         The record reflects that appellant was convicted on November 6, 1989 of the offense
that occurred on May 12, 1989. The trial court signed the sentencing order January 8, 1990.
Throughout the record and in all of the subsequent orders, this sentencing order is referred to as
the 1989 order. For clarity, we refer to the original sentencing order as the 1989 order.
       2
         The probation violation hearing was held in October 2001, but the final order was not
entered until January 2002.
was not modifiable 21 days after its entry under Rule 1:1, or the exceptions to Rule 1:1 in Code

§ 19.2-303.3 Ipso facto, he contends that the trial court lacked authority in March 2004 to find

him guilty of violation of any condition of supervised probation first imposed in its January 2002

order. For the following reasons, we affirm the judgment of the trial court.

                                          BACKGROUND

       The relevant facts and procedural posture in this case are not in dispute. On December

29, 1989 (the 1989 order), the trial court sentenced appellant to forty years imprisonment for

distributing cocaine in violation of Code § 18.2-248. Of the forty-year sentence imposed, the

trial court suspended “thirty (30) years upon the condition that the defendant keep the peace and

be of good behavior for a period of twenty-five years following his release from incarceration.”

        In April 2001, subsequent to his release from incarceration from the 1989 sentence,

appellant pled guilty to felony driving after having been adjudicated an habitual offender and to two

misdemeanor counts of unauthorized use of a vehicle. For these new convictions, the trial court

sentenced appellant to five years imprisonment, with all five years suspended for ten years,

conditioned on his good behavior, his being placed on indefinite supervised probation, his eligibility

for twelve months work release, and his payment of a $200 fine and court costs. The trial court

further advised appellant that he was in violation of the conditions of his 1989 suspended sentence

and requested that a show cause be issued for that violation.




       3
         Code § 19.2-303 provides authority for the trial court to suspend the unserved portion of
an imposed sentence to jail, or for a felony sentence to the Department of Corrections if the
prisoner has not been transferred to the Department, more than 21 days after the entry of the
sentencing order.
        Rule 1:1 of the Rules of the Supreme Court of Virginia provides that a court can modify a
final judgment only within 21 days of its entry and not thereafter.

                                                 -2-
       In October 2001, as a result of the new convictions, the trial court found appellant guilty of

“VIOLATION OF HIS PROBATION CASE # F89-110 OFFENSE DATE: MAY 12, 1989.” 4 In

its revocation order entered January 17, 2002, the trial court sentenced “the defendant to

incarceration with the Department of Corrections for a term of Two (2) Years.” The order

continued:

               It is further Ordered that the defendant is placed on supervised
               probation to commence on his release from incarceration, under
               the supervisors [sic] of Probation Officer for an indefinite period of
               time or unless sooner released by the court or by the Probation
               Officer. The defendant shall comply with all the rules and
               requirements set by the Probation Officer.

Appellant did not appeal, or otherwise challenge, the January 17, 2002 revocation order. It is this

sentencing order, placing appellant on indefinite supervised probation following his serving the

two-year sentence for violating the conditions of the 1989 suspended sentence, that appellant

contends is the invalid modification of the 1989 sentencing order.


       4
          The use of the term “probation violation” at first glance may seem confusing in that the
trial court did not use the term “probation” in its 1989 sentencing order. The trial court, at the
2001 revocation hearing and in its January 2002 order, appears to equate “probation” with “good
behavior” as distinguished from “supervised probation.” See Dyke v. Commonwealth, 193 Va.
478, 484, 69 S.E.2d 483, 486 (1952) (terms and conditions, such as good behavior, “are
probation only in the sense that they require the defendant to observe a specified course of
conduct; but they are not the supervised probation referred to in the statute”).
         Black’s Law Dictionary defines “probation” as “[a] court-imposed criminal sentence that,
subject to stated conditions, releases a convicted person into the community instead of sending
the criminal to jail or prison.” Black’s Law Dictionary 1240 (8th ed. 1999). Black’s further
defines “bench probation” as “Probation in which the offender agrees to certain conditions or
restrictions and reports only to the sentencing judge rather than a probation officer.” Id.
         The Virginia Supreme Court recently had occasion in Collins v. Commonwealth, 269 Va.
141, 607 S.E.2d 719 (2005), to distinguish between suspension of sentence and probation. It
noted that “[t]he concepts are distinct but overlapping, in the sense that a sentence of
confinement may be suspended without admitting the defendant to probation while a prerequisite
to probation is that any sentence of confinement be first suspended.” Id. at 145, 607 S.E.2d at
721 (discussing Code § 19.2-306). The Court “observed that the condition of good behavior is
implicit in every order suspending sentence, is a condition of every such suspension, whether
probation is provided for or not . . . . ” Id. at 146, 607 S.E.2d at 721 (citing Marshall v.
Commonwealth, 202 Va. 217, 219-21, 116 S.E.2d 270, 273-74 (1960)).

                                                 -3-
        Appellant was released from the Department of Corrections in March 2003. In September

2003, appellant’s probation officer advised the trial court that appellant’s adjustment to probation

had been unsatisfactory. Appellant was charged with abduction and kidnapping, stalking, and

destruction of property5 and with violating specific conditions of his supervised probation, including

failure to report the new charges, failure to report to the probation office as directed, and change of

residence without the permission of the probation officer.

        Following a hearing on February 23, 2004, the trial court again found defendant guilty of

“VIOLATION OF PROBATION CASE # F89-110 OFFENSE DATE: MAY 12, 1989.” It then

imposed a sentence of twelve months in jail from the 1989 suspended sentence. At the revocation

hearing, appellant pled not guilty to violating his probation. He argued that because the trial court

lacked authority to place him on supervised probation in its January 2002 order, he could not be

found guilty of violating that condition of his 1989 suspended sentence. The Commonwealth

acknowledged that appellant was not placed on supervised probation until entry of the January 2002

order revoking a portion of the 1989 suspended sentence.

        During the 2004 probation violation proceedings that are the subject of this appeal, appellant

acknowledged that his conduct violated the terms of his supervised probation, “regardless of

whether or not it was the one dealing with the October 2001 [January 2002 revocation order] or the

April 2001 judgment of the trial court.” Nor did he challenge that at the time the trial court entered

the January 2002 revocation order, he was already on indefinite supervised probation as a condition

of the five-year suspended sentence for the April 2001 convictions. He simply argued that because

he was not lawfully placed on supervised probation in January 2002, any violation of supervised




        5
        These charges were subsequently nolle prossed. He was, however, found guilty of
contempt for failing to appear.

                                                  -4-
probation would have to be based on the suspended sentence for the April 2001 convictions. The

trial court noted that:

                The situation here is . . . he was sentenced in ‘89 to a term of years
                suspended to 25 years. Not until 2001 when he violated the law by
                those earlier convictions was he put on supervised probation. And
                the Court certainly has inherent power to put a person on
                supervised probation that earlier was not supervised and the
                supervised probation was a lawful order of the Court . . . .

         On March 1, 2004, the trial court found appellant guilty of violating his probation, revoked

twelve months of appellant’s 1989 suspended sentence and ordered him to remain on supervised

probation following his release from incarceration. Appellant appealed the judgment of the trial

court.

                                              ANALYSIS

         Appellant acknowledges that the provisions of Code § 19.2-306, in effect in 1989 and

January 2002, authorized the trial court to revoke the entire unserved portion of the 1989 suspended

sentence for “good cause shown,” but contends it could not add supervised probation as a condition

of continuing to suspend the remaining unserved portion of the 1989 sentence.6 He argues that it

was not until the 2002 amendments to Code § 19.2-306 that the General Assembly granted the trial

court authority to modify an otherwise final sentencing order to add a condition of probation, when

it revoked a previously suspended sentence.




         6
         Code § 19.2-306, in effect at the time of the revocation hearing in 2001 [January 2002
order], provided in pertinent part that

                the court may, for any cause deemed by it sufficient which
                occurred at any time within . . . the period of suspension fixed by
                the court, . . . revoke the suspension of sentence . . . and cause the
                defendant to be arrested and brought before the court at any
                time . . . within one year after the period of suspension fixed by the
                court . . . whereupon . . . the original sentence shall be in full force
                and effect . . . .
                                                 -5-
        Prior to July 1, 2002, Code § 19.2-306 did not explicitly authorize a trial court to impose a

condition of supervised probation when it revoked a previously suspended sentence.7 However,

prior to the 2002 amendment to Code § 19.2-306, both the Supreme Court and this Court have

consistently noted that Code § 19.2-306 is “highly remedial and should be liberally construed to

provide trial courts a valuable tool for rehabilitation of criminals.” Grant v. Commonwealth, 223

Va. 680, 684, 292 S.E.2d 348, 350 (1982); see Briggs v. Commonwealth, 21 Va. App. 338, 344,

464 S.E.2d 512, 514 (1995). In Hartless v. Commonwealth, 29 Va. App. 172, 510 S.E.2d 738

(1999), we said “[a] court’s ability to revoke the suspension of a sentence and to impose that

sentence permits it to enforce a probationary requirement as a condition of suspension.”8 Id. at 175,

510 S.E.2d at 739. Imposing supervised probation as condition of re-suspension, on a finding of

violation of the conditions of a previously suspended sentence, is consistent with the legislative goal

of assisting in the rehabilitation of those convicted of criminal offenses.

        The amendments to Code § 19.2-306 in 2002 simply made explicit that which was implicit

before. Both prior to and after the 2002 amendment, revocation of a previously suspended sentence

and the imposition of all or part of that suspended sentence was a new sentencing event, restricted

only by the limitations that it could not extend the length of the original sentence nor the length of

the period of suspension and that any conditions of suspension be reasonable. See Nuckoles v.



        7
         The 2002 General Assembly amended Code § 19.2-306 to provide, in relevant part, “[i]f
the court, after hearing, finds good cause to believe that the defendant has violated the terms of
suspension . . . [t]he court may again suspend all or any part of its sentence and may place the
defendant upon terms and conditions or probation.” Code § 19.2-306(C).
        8
          In comparison, we held in Russnak v. Commonwealth, 10 Va. App. 317, 392 S.E.2d
491 (1990), that where there had been no revocation of a suspended sentence, the trial court was
without authority to modify a sentencing order, that had become final, by adding a condition of
probation. In Lamb v. Commonwealth, 40 Va. App. 52, 577 S.E.2d 530 (2003), we held that the
trial court had no authority to add post-release supervision under Code § 19.2-295.2 after
revocation of suspended sentence when that supervision was not imposed at the original
sentence.
                                                 -6-
Commonwealth, 12 Va. App. 1083, 1086, 407 S.E.2d 355, 356 (1991); see also Robertson v.

Superintendent of the Wise Correctional Unit, 248 Va. 232, 236, 445 S.E.2d 116, 118 (1994)

(noting that Code § 19.2-306 does not give a court “authority to lengthen the period of

incarceration” once sentence imposed on the underlying charge becomes final).

       Here, appellant failed to abide by the terms and conditions of his 1989 suspended sentence,

that he “keep the peace and be of good behavior.” In 2001, he was convicted of additional criminal

offenses, given an additional suspended sentence and placed on supervised probation. As a result of

those convictions, he was found to have violated his probation; that is, the terms and conditions of

the 1989 suspended sentence. Implicit in the trial court’s sentencing authority was its power to

impose the entire suspended sentence, and then to re-suspend all or a portion of the reimposed

sentence under such terms and conditions it deemed appropriate, including placing the appellant on

supervised probation.

       We, therefore, conclude that the trial court did not impermissibly modify or extend the

1989 sentencing order in violation of Rule 1:1, or its exceptions in Code § 19.2-303, by placing

appellant on supervised probation as a condition of its continuing to suspend the remaining

portion of the 1989 sentence. Once the trial court found appellant had violated the terms of his

1989 suspended sentence as a result of his convictions in April 2001, nothing in the text of Code

§ 19.2-306 prevented it from imposing supervised probation as a condition of revoking only a

portion of that sentence. In imposing the condition of supervised probation, it did not

impermissibility increase the length of the sentence or the length of time the sentence was

suspended. Nor was there any claim by appellant that the terms of the probation were

unreasonable or any more restrictive than the supervised probation he received as a condition of

the suspended sentences imposed in April 2001. See Nuckoles, 12 Va. App. at 1086, 407 S.E.2d

at 356. Moreover, the condition of supervised probation provided appellant with a less harsh

                                                 -7-
alternative to an increased period of incarceration which would have resulted had the trial court

revoked his entire remaining 1989 suspended sentence, then “in full force and effect.” See Code

§ 19.2-306.

        In resentencing appellant following its revocation of the 1989 suspended sentence, the trial

court had implicit authority to continue to suspend all or a portion of the previously suspended

sentence, under such terms and conditions as it deemed appropriate, considering the remedial and

rehabilitative purposes inherent in suspending sentences. Placing appellant, a person with an

extensive criminal record, on supervised probation following his release from serving the revoked

portion of the formerly suspended sentence, was clearly a reasonable condition.

        “When a trial court suspends a sentence it ‘does not make a contract with the accused, but

only extends to him the opportunity which the State affords him to repent and reform.’”

Marshall, 202 Va. at 219, 116 S.E.2d at 273 (quoting Richardson v. Commonwealth, 131 Va.

802, 810-11, 109 S.E. 460, 462 (1921)). Here, the trial court imposed the conditions it deemed

necessary for continuing to suspend part of appellant’s original sentence, putting into place the

rehabilitative goal inherent in Virginia’s sentencing laws. See Esparza v. Commonwealth, 29

Va. App. 600, 608-09, 513 S.E.2d 885, 889 (1999) (presuming the court “considered this

rehabilitative purpose when it revoked appellant’s suspended sentence and imposed a portion of

the suspended sentence”). It applied the least restrictive condition in light of appellant’s lengthy

criminal history and clear violation of the terms and conditions of his 1989 suspended sentence.

        Moreover, followed to its logical conclusion, appellant’s contention that the trial court

lacked authority under Code § 19.2-306 to impose supervised probation as a condition of continuing

to suspend all or a portion of his lengthy sentence, would limit a trial court, prior to the 2002

amendment, to imposing “the original sentence . . . in full force and effect,” depriving the trial court

of any discretion to impose only a portion of the previously suspended sentence. Such a narrow

                                                  -8-
reading of the statute would deny the trial courts the discretion over sentencing the General

Assembly intended. See Grant, 223 Va. at 684, 292 S.E.2d at 350.

       We conclude that the trial court had authority in January 2002, at the time it first found

appellant to be in violation of the terms of his 1989 suspended sentence, to impose supervised

probation, following appellant’s release from serving the revoked portion of his prior suspended

sentence, as a condition of suspending the remainder of the 1989 sentence. Accordingly, when

appellant was again before the trial court in 2004 charged with violating the conditions of “keeping

the peace” and “being of good behavior” of the 1989 suspended sentence and violating the terms of

his supervised probation, the trial court did not err in revoking part of the remaining 1989 suspended

sentence. The record before us contains ample evidence that appellant violated both the terms of his

supervised probation, imposed in January 2002 and in April 2001, as well as the terms and

conditions that he “keep the peace and be of good behavior” imposed at the time of his initial

sentencing in 1989.

       We hold that in January 2002, the trial court had implicit statutory authority under Code

§ 19.2-306 then in effect, to place appellant on supervised probation as a condition of re-suspending

the 1989 sentence. Accordingly, the trial court did not err in finding appellant guilty of violating

that probation in February 2004 and revoking part of his 1989 suspended sentence.

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

                                                                                       Affirmed.




                                                 -9-
