Clifford B. Roye v. Commonwealth of Virginia ( 2012 )


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  •                                              COURT OF APPEALS OF VIRGINIA
    Present: Judges Elder, Petty and McCullough
    UNPUBLISHED
    Argued at Richmond, Virginia
    CLIFFORD B. ROYE
    MEMORANDUM OPINION * BY
    v.     Record No. 0183-12-2                                      JUDGE LARRY G. ELDER
    NOVEMBER 6, 2012
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY
    R. Bruce Long, Judge
    Charles E. Haden for appellant.
    John W. Blanton, Assistant Attorney General, (Kenneth T.
    Cuccinelli, II, Attorney General, brief), for appellee.
    Clifford B. Roye (appellant) appeals an order of the trial court revoking his suspended
    sentence. Because the trial court revoked two years of appellant’s suspended sentence when he
    had only one year eleven months remaining, the revocation order is void ab initio, we accept the
    Commonwealth’s concession that the trial court erred, and we reverse and remand the matter to
    the trial court with instructions to recalculate the revoked suspended sentence.
    “In any case in which the court has suspended the execution or imposition of sentence,
    the court may revoke the suspension of sentence for any cause the court deems sufficient that
    occurred at any time within the probation period, or within the period of suspension fixed by the
    court.” Code § 19.2-306(A).
    If the court, after hearing, finds good cause to believe that the
    defendant has violated the terms of suspension, then: (i) if the court
    originally suspended the imposition of sentence, the court shall
    revoke the suspension, and the court may pronounce whatever
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    sentence might have been originally imposed or (ii) if the court
    originally suspended the execution of the sentence, the court shall
    revoke the suspension and the original sentence shall be in full
    force and effect.
    Code § 19.2-306(C). “The ‘revocation of a suspended sentence lies in the discretion of the trial
    court.’” Carroll v. Commonwealth, 
    280 Va. 641
    , 654, 
    701 S.E.2d 414
    , 431 (2010) (quoting
    Hamilton v. Commonwealth, 
    217 Va. 325
    , 326-27, 
    228 S.E.2d 555
    , 556 (1976)).
    Here, the trial court revoked two years of appellant’s suspended sentence believing
    appellant had two years eight months remaining on his suspended sentence. Neither the
    Commonwealth nor appellant’s counsel informed the trial court that appellant had only one year
    eleven months remaining. Although Rule 5A:18 requires a litigant to raise “an objection . . .
    with reasonable certainty at the time of the ruling,” this rule does not apply where a trial court
    imposes a sentence in excess of its statutory authority. See Charles v. Commonwealth, 
    270 Va. 14
    , 20, 
    613 S.E.2d 432
    , 435 (2005) (noting that “[d]enying Charles his liberty on the basis of a
    void sentence would impose a grave injustice upon him”). “[A] sentence imposed in violation of
    a prescribed statutory range of punishment is void ab initio because ‘the character of the
    judgment was not such as the court had the power to render.’” Rawls v. Commonwealth, 
    278 Va. 213
    , 221, 
    683 S.E.2d 544
    , 549 (2009) (quoting Anthony v. Kasey, 
    83 Va. 338
    , 340, 
    5 S.E. 176
    , 177 (1887)). A void sentence may be attacked for the first time on appeal. See Morrison v.
    Bestler, 
    239 Va. 166
    , 170, 
    387 S.E.2d 753
    , 756 (1990). Accordingly, we hold that the trial court
    committed error when it revoked appellant’s suspended sentence in excess of the actual time he
    had remaining.
    For these reasons, we remand the matter to the trial court for imposition of a new revoked
    sentence consistent with the views expressed in this opinion.
    Reversed and remanded.
    -2-
    

Document Info

Docket Number: 0183122

Filed Date: 11/6/2012

Precedential Status: Non-Precedential

Modified Date: 4/18/2021