J.E. Smith, Jr. v. Commonwealth

Full title: JAMES EDWARD SMITH, JUNIOR v. COMMONWEALTH OF VIRGINIA

Court: Supreme Court of Virginia

Date published: Dec 4, 1981

222 Va. 700 (Va. 1981)

284 S.E.2d 590

Opinion

44220 Record No. 801941.

December 4, 1981

Present: All the Justices.

The disjunctive language of Code Sec. 18.2-10(f) (Class 6 felony) providing penalties in the alternative, when the Trial Court revoked its suspension of imposition of sentence and imposed a ten month jail term, the sentencing authority vested in it by Code Sec. 19.2-306 was exhausted and the Court could not impose a penitentiary sentence for a second probation violation.

(1) Criminal Procedure — Statutory Construction — Revocation of Suspension of Sentence and Probation (Code Sec. 19.2-306) — Sentencing Authority Stated of Court Which Has Found Probation Violation.

(2) Criminal Procedure — Statutory Construction — Revocation of Suspension of Sentence and Probation (Code Sec. 19.2-306) — Punishment of Conviction of Felony [Code Sec. 18.2-10(f)] — When Trial Court Revokes Suspension of Imposition of Sentence for First Probation Violation and Imposes Jail Term, Sentencing Authority Under Code Sec. 19.2-306 is Exhausted.

The Trial Court, in a bench trial, convicted defendant of unauthorized use of a motor vehicle. This was a Class 6 felony at that time. Under Code Sec. 18.2-10(f) alternative penalties for Class 6 felonies are stated. The defendant may be sentenced to imprisonment in the penitentiary for not less than one year or more than five years or, at the discretion of the Jury or the Court trying the case without a Jury, confinement in jail for not more than twelve months and a fine of not more than $1,000, either or both. However, the Court suspended imposition of sentence and provided that defendant serve six months in jail and upon his release, be placed on supervised probation. In a "show cause" hearing conducted March 12, 1979, the Trial Court found that the defendant had violated certain conditions of probation and revoked suspension of imposition of sentence for the first probationary violation, imposing a ten-month jail term under Code Sec. 19.2-306. Upon his release after serving this sentence, defendant violated the probation conditions again. The Trial Court then entered an order on September 5, 1980 providing that "three years and eight months, the balance of the five years of the suspended imposition of sentence" are revoked. The defendant does not question the first suspension of imposition of sentence under Code Sec. 19.2-306 but appeals from the second suspension.

1. Code Sec. 19.2-306 defines the sentencing authority of a Trial Court which has found a probationary violation. In the event a sentence has been imposed upon a conviction and execution of sentence has been suspended for a probationary period, a Trial Court may revoke the suspension. In such a case, the original sentence shall be in full force and effect. But in case the imposition of sentence has been suspended, the Court may pronounce whatever sentence might have been originally imposed.

2. The disjunctive language of Code Sec. 18.2-10(f) prescribes penalties in the alternative in a case of suspension of imposition of sentence. Here the Trial Court might originally have imposed up to five years in the penitentiary or up to twelve months in jail and a fine. However, when the Trial Court revoked suspension of imposition of sentence for the first probation violation and imposed a ten-month jail term, the sentencing authority vested in it by Code Sec. 19.2-306 was exhausted. The Trial Court was without jurisdiction to impose a penitentiary sentence for a second probation violation.

Appeal from a judgment of the Circuit Court of the City of Richmond, Division I. Hon. James M. Lumpkin, judge presiding.

Reversed.

B. Randolph Wellford (Wellford and Taylor, on brief), for appellant.

Alan Katz, Assistant Attorney General (Marshall Coleman, Attorney General; James T. Moore, Assistant Attorney General, on brief), for appellee.

PER CURIAM.

In a bench trial, the trial court convicted James Edward Smith, Jr., of unauthorized use of a motor vehicle valued at more than $100. At that time, Code Sec. 18.2-102 classified that offense as a class 6 felony. A class 6 felony is punishable by "a term of imprisonment of not less than one year nor more than five years, or . . . confinement in jail for not more than twelve months and a fine of not more than one thousand dollars, either or both." Code Sec. 18.2-10(f). The order entered August 22, 1977, upon that conviction provided that "the court . . . doth now . . . suspend the imposition of sentence . . . during [defendant's] good behavior conditioned that he serve six months in jail." The order further provided that "upon his release from incarceration, the defendant is placed on supervised probation".

In a "show cause" hearing conducted March 12, 1979, the trial court found that defendant had violated certain conditions of probation and ordered that "the sentence heretofore suspended is hereby revoked to the extent that you are sentenced to ten months in the City Jail". The trial court advised defendant that "the imposition of a penitentiary sentence is still suspended" and warned him that "[t]his will be your last chance not to go to the penitentiary."

Upon his release after serving this sentence, defendant violated the conditions of probation again. The trial court entered an order September 5, 1980, providing that "three years and eight months, the balance of the five years of the suspended imposition of sentence, are this day revoked."¹

1 Manifestly, the trial court mistakenly believed that it had pronounced a sentence of five years' imprisonment at the time of conviction.

On appeal from that order, defendant invokes the constitutional guarantees against double jeopardy. U.S. CONST. amend. V; Va. CONST. art. I, Sec. 8. We need not consider the double jeopardy question.

Defendant does not challenge the trial court's authority to fix the initial six-month jail term as a condition of probation, and he conceded on brief that the ten-month sentence "was within the Court's authority under Sec. 19.2-306 of the Virginia Code". For purposes of this opinion, we accept these concessions. Code Sec. 19.2-306 defines the sentencing authority of a trial court which has found a probationary violation. In the event a sentence has been imposed upon a conviction and execution of sentence has been suspended for a probationary period, a trial court may revoke the suspension; in such case, "the original sentence shall be in full force and effect". But "in case the imposition of sentence has been suspended, the Court may pronounce whatever sentence might have been originally imposed."

This is a case of suspension of imposition of sentence. The trial court might originally have imposed up to five years in the penitentiary or up to twelve months in jail and a fine. Code Sec. 18.2-10(f). The disjunctive language of the statute prescribes penalties in the alternative. When the trial court revoked suspension of imposition of sentence for the first probationary violation and imposed a ten-month jail term, the sentencing authority vested in it by Code Sec. 19.2-306 was exhausted. Because the trial court was without jurisdiction to impose the penitentiary sentence, the order appealed from is null and void. Accordingly, that order will be vacated and defendant, having served the sentence imposed, will be released from custody and probation.

Reversed.