Dale Chester Bolesta v. Commonwealth of Virginia , 26 Va. App. 503 ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
DALE CHESTER BOLESTA
OPINION BY
v. Record No. 2842-96-1 JUDGE NELSON T. OVERTON
FEBRUARY 3, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kenneth N. Whitehurst, Jr., Judge
Theresa B. Berry (Samford & Berry, P.C., on
brief), for appellant.
(Richard Cullen, Attorney General; John K.
Byrum, Assistant Attorney General, on brief),
for appellee.
Dale Chester Bolesta (defendant) appeals the decision of the
Circuit Court of the City of Virginia Beach revoking the
suspension of his seven year sentence arising from his conviction
for cocaine possession with intent to distribute. He claims that
a March 1993 revocation and re-suspension of that sentence was
void because it occurred outside of the statutory time limit set
by Code § 19.2-306. Because we agree that the revocation and
re-suspension violated the statute, we reverse.
The facts in this case are undisputed. On March 20, 1984
defendant was found guilty of possession of cocaine with intent
to distribute and was sentenced to seven years incarceration.
The trial judge suspended the sentence for seven years on the
condition that the defendant comply with his probation
requirements and enter a drug counseling program. On March 24,
1993, nine years and four days later, the trial court conducted a
hearing pursuant to Code § 19.2-306 in which it revoked and
re-suspended the sentence for another seven years. On October
21, 1996 the trial court again conducted a revocation hearing.
At this third proceeding, the trial court revoked the suspended
sentence and ordered that defendant serve the entire seven years.
"[W]hen the language of an enactment is free from ambiguity,
resort to legislative history and extrinsic facts is not
permitted because we take the words as written to determine their
meaning." Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87
(1985). Code § 19.2-306 states in pertinent part:
The court may . . . 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, in case the imposition of sentence
has been suspended, the court may pronounce
whatever sentence might have been originally
imposed.
Therefore, the outside time limit within which the court may
recall a defendant is the period of suspension plus one year,
which in this case was eight years. See Grant v. Commonwealth,
223 Va. 680, 684, 282 S.E.2d 348, 350 (1981) (holding that if a
period of probation was prescribed, the time for revocation
extends until one year later). The March 24, 1993 revocation
hearing was conducted over nine years after the original order
was entered. Therefore, the order was void ab initio because the
court lacked jurisdiction to enter it. See, e.g., Cofer v.
Cofer, 205 Va. 834, 837, 140 S.E.2d 663, 665-66 (1965) ("It is
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well settled that a void decree or order is a nullity and may on
proper application be vacated at any time."). Without the March
1993 suspended sentence, the trial court had no authority to
order defendant incarcerated on October 21, 1996.
Because the trial court lacked jurisdiction, we reverse the
imposition of his sentence.
Reversed.
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