Clifford B. Roye v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 6, 2012
• Docket: 0183122
• Status: Unpublished

Opinion

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Present: Judges Elder, Petty and McCullough UNPUBLISHED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-