Cook v. Com.
| Decision Date | 12 October 1970 |
| Citation | 176 S.E.2d 815,211 Va. 290 |
| Court | Virginia Supreme Court |
| Parties | Clarence Junior COOK v. COMMONWEALTH of Virginia. |
Richard F. McPherson, Thomas H. Wood, Staunton (Nelson, McPherson, Summers & Wood, Staunton, on brief), for plaintiff in error.
Anthony F. Troy, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
On July 27, 1965, Clarence Junior Cook, who had theretofore entered a plea of guilty and had been convicted of grand larceny, was sentenced by the trial court to a term of three years in the penitentiary.
The court, exercising the discretion vested in it by law, suspended two years of the three year sentence and directed that the defendant serve a 12 month sentence at Bland Correctional Farm in lieu of serving one year in the penitentiary. The court further directed that, upon his release from custody at Bland Correctional Farm, defendant would be on probation for three years from July 27, 1965.
On July 26, 1968, the trial court was advised by a probation officer that defendant was in jail in Rockingham County, Virginia, where he was charged with two counts of forgery. The court entered an order on that date which reads, in part, as follows: '* * * for reasons appearing to the court and for cause deemed sufficient, it is adjudged and ordered that the probationary period of the said Clarence Junior Cook be, and the same hereby is extended for a period of one (1) year, on until July 27, 1969.' The defendant was not present when this order was entered and the record shows that he received no notice of the proposed action.
A hearing to determine whether his probation should be revoked was convened on September 6, 1968, at which time defendant was present and was represented by appointed counsel. The evidence at this hearing established that the defendant had entered a plea of guilty and had been convicted of two felonies, check forgeries, in the Rockingham County Circuit Court on August 20, 1968. He was sentenced by the Rockingham County Circuit Court to two consecutive sentences of two years each in the penitentiary. The evidence also shows that defendant had been arrested or charged with several misdemeanors at various times in the early part of 1968 but the evidence does not reveal what disposition, it any, had been made of those charges.
From this evidence the trial court found that defendant had violated the terms and conditions of probation and directed '* * * that the suspension of the execution of the two (2) years of the three (3) year sentence imposed by the aforesaid judgment be, and the same hereby is revoked, and doth further adjudge and order that the defendant, Clarence Junior Cook, be confined in the penitentiary for a term of two (2) years, in accordance with the aforesaid Judgment.'
Defendant's position is that the trial court did not validly extend his period of probation since he had no prior notice of the action which was taken on July 28, 1968, and was not present at that time. He further argues that since his probation was not validly extended by the court's action, his probation and suspended sentence expired on July 27, 1968, and the court had no jurisdiction to revoke his probation on September 6, 1968.
The Attorney General, on the contrary, argues that the trial court's order of July 26, 1968, effected a valid extension of defendant's period of probation under the provisions of Code § 53--273, which provides:
'The court may subsequently increase or decrease the probation period and may revoke or modify any condition of probation.'
From this statute it is quite clear that the trial courts of the Commonwealth are vested with power to extend the period of probation if such an extension is validly effected by an appropriate procedure. Since Code § 53--273 provides no procedure to be followed, we look for guidance to the other sections of our probation act and to the case law.
In 1918 the General Assembly enacted what is generally known as the probation act enabling our courts to place defendants on probation and to provide our courts with the power to suspend the execution or imposition of sentences. Acts of 1918, Ch. 349, p. 528.
Our present statutes, Code §§ 53--266 to 53--280 inclusive, have evolved by amendments to the original act.
The other key section of the probation act which is relevant here is Code § 53--275 which deals with the power of the court to...
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