Marc Klokow, s/k/a, etc. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 13, 1996
• Docket: 2659943
• Status: Unpublished

Opinion

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

- 2 - 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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