Opinion
Record No. 2087-91-1
February 16, 1993
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH PHILIP L. RUSSO, JUDGE
Cal T. Bain (Jean Veness, on brief), for appellant.
Thomas D. Bagwell, Senior Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for Appellee.
Present: Judges Willis, Elder and Bray
Argued at Norfolk, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
James T. Withrow appeals from the trial court's revocation of a suspended sentence, arguing that the court lacked jurisdiction to do so under Code § 19.2-306 based on expiration of the applicable statute of limitations. After examining the record, we conclude that the statute of limitations did not bar the revocation proceedings. Accordingly, we affirm the ruling of the lower court.
I.
On January 8, 1986, appellant was convicted in the Virginia Beach Circuit Court on two counts of issuing bad checks under Code § 18.2-181 and was sentenced to four years in the state penitentiary on each count, to run concurrently. The court suspended execution of the sentence
conditioned on the defendant's good behavior for a period of 4 years, the defendant being on supervised probation and complying with all the rules and regulations of the Probation Office for a period of 2 years upon release from confinement, the defendant serving 6 months in the jail of this City, and the defendant paying restitution . . . and . . . court costs.
On August 4, 1986, Withrow and his probation officer reviewed those conditions and on August 19, 1986, Withrow signed his copy.
Appellant subsequently committed repeated probation violations, including failing to show up for appointments and drug counseling sessions and failing to pay restitution and court costs. He also failed to report his subsequent convictions for possession of heroin, driving on a suspended license, and reckless driving. Eventually, following several months of appellant's noncompliance and his apparent disappearance from the jurisdiction, appellant's probation officer filed a letter requesting a capias, which was issued on January 26, 1987. Appellant later admitted that he had left the state at that time and that his probation officer did not know his whereabouts again until he was arrested in Pennsylvania on July 30, 1988, at which time he became aware that the Virginia Beach authorities had placed a detainer against him. On January 17, 1989, appellant was extradited from Pennsylvania and sent back to Norfolk, where he was ultimately convicted and sentenced to serve a period of years in the state system. Prior to this conviction, the capias issued by the Virginia Beach Circuit Court was forwarded to Norfolk to serve as a detainer. Appellant tried to have the probation violation charge heard while he was still incarcerated, but he was unsuccessful, and the capias was executed when he was released on mandatory parole on July 22, 1991.
Appellant's parole revocation hearing was held on September 11, 1992. Prior to the presentation of the evidence, appellant argued his previously filed motion to dismiss the charge on the ground that the court lacked jurisdiction based on expiration of the applicable statute of limitations. The court denied appellant's motion, and after hearing the evidence, it revoked appellant's four-year suspended sentence.
II.
On appeal, Withrow challenges the denial of his motion to dismiss based on expiration of the statute of limitations. The parties apparently agree that the terms of Code § 19.2-306 govern the outcome of this case, but they disagree on its application. The relevant portions of that statute provide the following:
The court may, for any cause deemed by it sufficient which occurred at any time within the probation period, or if none, within the period of suspension fixed by the court, or if neither, within the maximum period for which the defendant might originally have been sentenced to be imprisoned, revoke the suspension of sentence and any probation, if the defendant be on probation, and cause the defendant to be arrested and brought before the court at any time within one year after the probation period, or if no probation period has been prescribed, then within one year after the period of suspension fixed by the court, or if neither a probation period nor a period of suspension has been prescribed then within one year after the maximum period for which the defendant might originally have been sentenced to be imprisoned, whereupon, in case the imposition of sentence has been suspended, the court may pronounce whatever sentence might have been originally imposed. In case the execution of the sentence has been suspended, the original sentence shall be in full force and effect, and neither the time of probation or of suspension shall be taken into account to diminish the original sentence.
The Supreme Court's holding in Rease v. Commonwealth, 227 Va. 289, 316 S.E.2d 148 (1984), sets forth principles applicable to the tolling of the statute of limitations regarding revocation of suspended sentences and probation under Code § 19.2-306:
When . . . the probationer [voluntarily absconds from the jurisdiction or] commits another crime within the probation period and is arrested by another jurisdiction, thereby placing himself beyond the jurisdiction and control of the sentencing court, the one-year time constraint of § 19.2-306 is suspended. The time limit remains suspended, when the probation period expires during the incarceration in the other jurisdiction, until the probationer is released by such other jurisdiction, provided the original court as soon as practicable has issued a warrant charging violation of probation and a detainer.
Id. at 295, 316 S.E.2d at 151-52. The holding in Rease, by its terms, applies to a probationer's absence from the jurisdiction. Under the facts of this case, appellant was out of the jurisdiction, in Pennsylvania, for at least the period of January 26, 1987 through January 17, 1989. From January 17, 1989 until July 22, 1991, when he was released on parole, he was incarcerated within this jurisdiction pursuant to a conviction rendered in Norfolk.
Had the statute not been tolled, the trial court could have revoked appellant's suspended sentence up until January 8, 1991 — four years plus one year following his conviction on January 8, 1986, as provided under Code § 19.2-306. However, by including in the calculations the fact that he absconded from the jurisdiction for two years less nine days — thereby tolling the statute of limitations for that period of time — we agree with the Commonwealth that the trial court's jurisdiction continued until December 31, 1992. The trial court had jurisdiction when it revoked appellant's suspended sentence on September 11, 1991. Accordingly, we affirm the judgment of the trial court.
Affirmed.