Atkins v. Com.

• Decision Date: 06 May 1986
• Docket Number: No. 0011-84,0011-84
• Parties: Larry Donell ATKINS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 385

343 S.E.2d 385

2 Va.App. 329

Larry Donell ATKINS v. COMMONWEALTH of Virginia.

Record No. 0011-84.

Court of Appeals of Virginia.

May 6, 1986.

Ben R. Lacy, IV, Cecil H. Creasey, Jr. (Woodward, Fox, Wooten & Hart, P.C., Roanoke, on brief), for appellant.

John H. McLees, Jr., Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., Richmond, on brief), for appellee.

Present: DUFF, BENTON and COLE, JJ.

COLE, Judge.

At issue in this case is whether the trial court erred when it refused to dismiss the proceeding against the appellant, Larry Donell Atkins (Atkins) to revoke the suspended portions of terms of imprisonment. Atkins alleges that his constitutional rights to a speedy trial were violated. We agree with the trial court and affirm.

On May 9, 1975, Atkins was sentenced to 35 years in the penitentiary, 17 years of which was suspended, for various charges arising out of an armed bank robbery. On July 22, 1982, Atkins was released from the penitentiary on supervised parole. He was convicted in federal court of passing counterfeit currency on January 25, 1983, and sentenced to 18 months in prison with 12 months suspended. Upon receiving notice of the conviction, Atkins' parole officer wrote to the Commonwealth's Attorney recommending that his suspended sentences be revoked. Atkins was released from federal custody on April 19, 1983, and transferred to the Brunswick Correctional Center for parole revocation proceedings. His parole was revoked.

On March 11, 1983, the Circuit Court for the City of Richmond issued a capias and order for Atkins to show cause why the suspended portions of his sentences should not be revoked. However, these orders were not sent to the Sheriff of Brunswick County until August 20, 1984. They were served on Atkins on August 22, 1984.

Counsel was promptly appointed for Atkins, and on October 12, 1984, the show cause hearing was held. The Commonwealth moved to revoke the suspended portions of the sentences based upon the federal conviction. Atkins moved the court to dismiss the motion, arguing that the 17 month period between the issuance of the capias and show cause order and their service upon him was a violation of his due process right to a speedy trial.

On appeal Atkins submits that the delay from the time the capias was issued until the time of his revocation hearing violated his right to a speedy trial guaranteed by both the Sixth Amendment of the United States Constitution ¹ and Article I, § 8 of the Virginia Constitution. ² The rights under both Constitutions are applicable by their terms only in "criminal prosecutions," and it is well settled that "[p]robation revocation, like parole revocation, is not a stage of a criminal prosecution." Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973). There is no merit to Atkins' claim that his right to a speedy trial has been violated under the Sixth Amendment or under Art. I § 8 of the Virginia Constitution.

While this type of proceeding is not a stage of a "criminal prosecution," it may result in a loss of liberty. The liberty interest, if any, which Atkins may have comes from the due process clause of the Fourteenth Amendment to the United States Constitution, which precludes the termination of the conditional liberty interest of parolees and probationers in the absence of appropriate due process safeguards. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) held that a hearing was mandated to serve the parallel interests of society and the parolee in establishing whether a parole violation occurred and whether the circumstances surrounding the violation warranted a parole revocation. The Court held that the revocation hearing must be tendered within a reasonable time after the parolee is taken into custody. Id. at 484-88, 92 S.Ct. at 2601-04.

The procedural time limits prescribed by statute to safeguard the due process rights of persons receiving suspended sentences or probation are set out in Code § 19.2-306. That section provides, in pertinent part, that when the sentencing court has set a fixed period for the suspension of sentence, as in this case, the suspension must be revoked (if at all) within one year after the expiration of the period of suspension. Atkins' sentencing order specified that the balance of his sentence was to be "suspended for a period of ten (10) years upon release from custody...." Atkins was released from the state penitentiary on July 22, 1982. Applying the statutory time limit set out above, Atkins would have remained liable to have had the suspended portion of his sentence revoked through July 22, 1993. Clearly, the revocation proceedings against Atkins culminating in 1984 were in compliance with the authority conferred by Code § 19.2-306.

The only question remaining is whether some protected interest of Atkins was compromised by the fact that he was not given an immediate hearing upon the issuance of the capias and show cause order, even though he was already incarcerated at the time. We find Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) dispositive on this issue.

In Moody, the Supreme Court stated the issue to be "whether a federal parolee imprisoned for a crime committed while on parole is constitutionally entitled to a prompt parole revocation hearing when a parole violation warrant is issued and lodged with the institution of his confinement but not served on him." Id. at 79, 97 S.Ct. at 275. I...