Opinion
Record No. 2406-92-3
March 8, 1994
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE JAMES F. INGRAM, JUDGE.
Phyllis Marie Mosby (Office of the Public Defender, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Benton, Koontz, and Willis.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The sole question presented in this appeal is whether the trial judge lacked jurisdiction to revoke the suspended sentence that had been given to Ollie Louis Carroll, Jr., following a prior conviction. For the reasons that follow, we affirm the order revoking the suspended sentence.
The evidence proved that on November 5, 1990, Carroll was convicted of grand larceny. The trial judge sentenced him to three years in the penitentiary, but suspended the sentence upon the conditions that Carroll (a) serve five months in jail, (b) be on probation for a period of one year, (c) be of good behavior for two years following his release from probation, (d) make restitution, and (e) pay the costs of his prosecution for grand larceny. After serving five months in jail, Carroll was released and placed on probation for one year beginning on January 21, 1991.
On June 16, 1992, the general district court convicted Carroll of shoplifting. Carroll appealed from the shoplifting conviction but later withdrew his appeal. After Carroll withdrew the appeal, the trial judge ordered Carroll to show cause why he should not revoke the suspended sentence on the grand larceny conviction.
At the revocation hearing, the trial judge stated that "on February the 10th, . . . 1992, upon waiver of a probation revocation hearing, [Carroll's] probation was extended indefinitely until restitution . . . was paid." Without objection, the probation officer testified consistent with the trial judge's remarks. Carroll testified, however, that he was not informed that on February 10, 1992, his probationary period had been extended indefinitely. Following an evidentiary hearing, the trial judge revoked part of the suspended sentence.
Carroll argues that his probation ended on January 21, 1992, and that at no time prior to the expiration of his probation period was he given notice of a hearing to revoke or extend his probation. Thus, he argues that the trial judge had no jurisdiction to revoke his suspended sentence in September 1992. The record on appeal contains no order extending Carroll's probationary period. However, the question whether Carroll's probation was lawfully extended is not dispositive of our determination whether the trial judge had jurisdiction to revoke Carroll's suspended sentence.
"Inherent in the power granted under [Code] § 19.2-303 . . . to suspend imposition or execution [of sentence,] is the power to place conditions on such suspension." Grant v. Commonwealth, 223 Va. 680, 685, 292 S.E.2d 348, 351 (1982). Indeed, the order convicting Carroll of the grand larceny charge explicitly states that the "sentence . . . [is suspended] upon the condition that [Carroll] . . . be of good behavior for a period of two (2) years following his release from probation." Thus, even if, as Carroll argues, the probationary period was not properly extended and ended on January 21, 1992, the period of suspension did not expire until January 1993. In 1992, when Carroll was convicted of shoplifting and was served with an order to show cause "why the suspended sentence should not be revoked," the trial court had jurisdiction to revoke the suspension of the sentence. Proof that Carroll had been convicted of another criminal offense established that he violated the condition of good behavior. Accordingly, the order revoking part of the suspended sentence is affirmed.
Affirmed.