Reinemer v. Commonwealth

Opinion

WILLIS, J.

On May 4, 1981, the Circuit Court of Fairfax County convicted Jonathan Reinemer of four counts of manslaughter and sentenced him to three years incarceration on each charge. The court then suspended ten years of the twelve year sentence. On November 15, 1991, the trial court revoked the suspension of the sentences. On appeal, Reinemer contends that the trial court did not have jurisdiction to revoke the suspension of his sentences and that it should not have considered all the probation violations alleged. We agree and reverse the judgment of the trial court.

A court may suspend the execution of a sentence, in whole or in part, and place the accused on probation. See Code § 19.2-303; Duncan v. Commonwealth, 2 Va. App. 342, 344, 343 S.E.2d 392, 393-94 (1986). “It is beyond question that ‘[a] court which has ordered a suspension of sentence undoubtedly has the power to revoke it when the defendant has failed to comply with the conditions of the suspension.’ ” Russnak v. Commonwealth, 10 Va. App. 317, 321, 392 S.E.2d 491, 493 (1990) (quoting Griffin v. Cunningham, 205 Va. 349, 354, 136 S.E.2d 840, 844 (1964)). Whether to revoke the suspension of a sentence lies within the sound discretion of the trial court. Singleton v. Commonwealth, 11 Va. App. 575, 580, 400 S.E.2d 205, 208 (1991).

Upon Reinemer’s conviction on May 4, 1981, the trial court suspended ten years of the twelve year sentence. The order conditioned the suspension upon, in pertinent part:

[T]he Defendant’s good behavior and that he be placed on active probation subject to the conditions as set forth in P.B. Form 2-revised 1-76 for a period of five (5) years upon his release from confinement and . . . further conditioned that the Defendant not operate a motor vehicle for a period of ten (10) years.

These were conditions of suspension of Reinemer’s sentence, not terms of probation.

On April 8, 1986, the trial court modified its previous order. The April 8, 1986 order states, in pertinent part: “The conditions of probation for the Defendant, Jonathan Reinemer, are hereby amended to specifically allow him to drive . . . [under specified circumstances].” The 1986 order continued by “clarifying” the 1981 order, stating:

The court has never suspended the driver’s license of Jonathan Reinemer. The court specifically acknowledges that Jonathan Reinemer may be issued a driver’s license by the Division of Motor Vehicles for the Commonwealth of Virginia. Any restrictions on the use of the motor vehicle are to be construed as conditions of his probation and not restrictions upon his ability to obtain a driver’s license or as a restriction on the license.

By the explicit language “conditions of his probation,” the order modified the driving restriction, changing it from a condition of suspension to a condition of probation subject to the terms and limits of Reinemer’s probation. It thereby brought the driving restriction within the five year probation term limitation.

On May 4, 1987, the trial court entered an “Early Termination and Discharge from Probation” order. This order states that “the probation ... is hereby terminated and the probationer is discharged.” This order, effective May 4, 1987, ended all of Reinemer’s probation restrictions, including the restriction on driving, and discharged him from the court’s jurisdiction.

On August 22, 1991, the trial judge issued a bench warrant requiring Reinemer to show cause why the suspension of his sentences should not be revoked. The warrant alleged that on May 31, 1986, a Delaware court convicted Reinemer of speeding; on September 28, 1989, a New Jersey court convicted him of a drug possession charge; on November 13, 1990, a Fairfax court convicted him for driving while intoxicated on April 29, 1989; on October 18, 1990, a Fairfax court convicted him of driving while intoxicated on June 14, 1990; and on May 21, 1991, he was convicted for driving while intoxicated on October 31, 1990. The bench warrant alleged that on April 18, 1991, the Fairfax County Circuit Court adjudicated Reinemer an habitual offender, and that on August 17, 1991, police arrested him for driving after being declared an habitual offender.

Except for the May 31, 1986 Delaware speeding charge, all of Reinemer’s alleged offenses and convictions occurred after the May 4, 1987 termination of his probation. The trial court erred in considering the post-May 4, 1987 convictions as grounds for revoking the suspension of his sentences.

Moreover, the August 26, 1991 bench warrant issued more than one year after the conclusion of Reinemer’s probation, and, thus, was untimely under Code § 19.2-306.

The Commonwealth argues that although the term of Reinemer’s formal supervised probation had expired, he remained on implied informal probation, conditioned upon non-operation of a motor vehicle, for ten years from May 4, 1981. This position contradicts the express terms of the trial court’s orders. Furthermore, probation cannot be implied. A restraint on an individual’s freedom, and the imposition of potential liability for punishment, must be expressly and clearly stated.

The judgment of the trial court is reversed, and the appellant is discharged.

Reversed.

Barrow, J., concurred.