Marc Klokow, s/k/a, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Richmond, Virginia
MARC KLOKOW, S/K/A
MARC SERGE KLOKOW
v. Record No. 2659-94-3 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA FEBRUARY 13, 1996
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Michael Gamble, Judge
Bryan K. Selz (Overbey, Hawkins & Selz, on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On July 28, 1992, the General District Court of Campbell
County sentenced Marc Serge Klokow to a $3,000 fine and twelve
months in jail. The court then suspended the entire sentence on
condition that "defendant [was] not to contact Mary Katherine
Lemon or enter Fairfields Subdivision or trespass on the property
of Ms. Lemon or Ms. Raasch or call their phone numbers." The
order specified no term of suspension.
On June 16, 1994, the general district court issued a show-
cause summons against Klokow, alleging that he had violated the
condition of the suspension of his sentence by conduct in which
he had engaged on May 24, 1994. The general district court
thereafter revoked the suspension of sentence and sentenced
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Klokow to serve twelve months in jail. Upon trial de novo, the
trial court made the same finding and imposed the same judgment
and sentence. On appeal, Klokow contends that the trial court
erred because on May 24, 1994, the time period covered by the
suspended sentence had expired. We agree and reverse the
judgment of the trial court.
Code § 19.2-306 provides, in pertinent part:
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 defendant might originally have been sentenced to
be imprisoned, revoke the suspension . . . and 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 . . . .
The sentencing order imposed no term of suspension. Thus,
the term of suspension was "the maximum period for which the
defendant might originally have been sentenced to be imprisoned."
Code § 19.2-306; see Grant v. Commonwealth, 223 Va. 680, 686,
292 S.E.2d 348, 351 (1982). The maximum period that Klokow could
have been imprisoned was twelve months. Twelve months from the
date of the sentencing order expired on July 28, 1993. The
conduct which was the cause of the suspension proceeding occurred
on May 24, 1994. Because the term of suspension of Klokow's
sentence had expired, his conduct on May 24, 1994, could not
support the revocation of the suspension.
The Commonwealth argues that the term of Klokow's suspended
sentence that "defendant [was] not to contact Mary Katherine
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Lemon," meant that he should not contact her forever. Such a
requirement was not made clear in the sentencing order. "A
restraint on an individual's freedom, and the imposition of
potential liability for punishment, must be expressly and clearly
stated." Reinemer v. Commonwealth, 16 Va. App. 462, 465, 431
S.E.2d 68, 70 (1993).
The judgment of the trial court is reversed, and the
appellant is discharged.
Reversed.
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