Dyke v. Com.

• Decision Date: 10 March 1952
• Docket Number: No. 3944,3944
• Citation: 193 Va. 478,69 S.E.2d 483
• Parties: FRANCIS WOODROW DYKE v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 483

69 S.E.2d 483

193 Va. 478

FRANCIS WOODROW DYKE v. COMMONWEALTH OF VIRGINIA.

Record No. 3944.

Supreme Court of Appeals of Virginia

March 10, 1952.

Samuel Goldblatt, for the appellant.

J. Lindsay Almond, Jr., Attorney General and Frederick T. Gray, Assistant Attorney General, for the Commonwealth.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

The question on this appeal is whether the trial court had jurisdiction to revoke the suspension of the execution of the jail sentence previously imposed on the defendant. The answer is to be found in the construction of some of the provisions of sections 53-272 and 53-275 of the Code of 1950.

The defendant, Dyke, was indicted for manslaughter. He pleaded not guilty, was tried by the court on February 28, 1950, found guilty of involuntary manslaughter, but sentence was deferred to await the report of the probation officer of Norfolk county, to whom the case was referred. No question is raised about that procedure. Cf. Linton v. Commonwealth, 192 Va. 437, 65 S.E. (2d) 534.

Thereafter, by order entered on April 25, 1950, the defendant was sentenced to jail for twelve months and fined $100. This order concluded thus:

'After having this day received a report from the Probation Officer in regards to this case, and the Court deeming it compatible with the public interest, that the said Twelve (12) Months jail sentence herein imposed upon the said defendant, be, and the same is hereby suspended and doth place the defendant Francis Woodrow Dyke, upon his good behavior for a period of one year from this date, upon condition that he keep the peace and dignity and not violate any of the laws of the Commonwealth of Virginia, or the County of Norfolk for a period of one year from this date, and the case is continued in order to give the defendant time to pay the aforesaid fine and costs.'

On October 16, 1950, the defendant was convicted of reckless driving and fined; and again on December 9, 1950, he was convicted and fined on two charges, one of disorderly conduct and the other of destroying private property. The probation officer knew of these convictions prior to April 25, 1951, but the defendant had not been placed on probation supervision and the probation officer did not report these convictions either to the Commonwealth's attorney or to the judge. These facts are not disputed, but are set out in an agreed statement of facts, which also sets forth that on May 2, 1951, a rule was issued against the defendant to show cause 'why the suspended sentence aforesaid should not be revoked;' and that upon the matter being heard on June 4, 1951, the court 'did thereupon revoke the said suspended sentence and remanded him, the said Francis Woodrow Dyke to the custody of the Sheriff of Norfolk County, Virginia, to be confined in jail for twelve (12) months.'

The order entered on June 4, 1951, refers to the order of April 25, 1950, recites that the defendant's sentence was suspended 'upon the condition that he keep the peace and dignity, and not violate any of the laws of the Commonwealth of Virginia, or the County of Norfolk, for a period of one (1) year,' and concluded thus: 'It appearing to the Court that the defendant, Francis Woodrow Dyke has violated the terms of the probation order, it is ordered that his probation period be, and the same is hereby revoked.'

The defendant contended below and contends here that the trial court had no jurisdiction of the matter 'after the expiration of the period of suspension of said sentence, to-wit, after April 25th, 1951.'

The Commonwealth contends on the other hand that the defendant was not placed on probation; that no period of suspension was fixed by the trial court, and that the trial court could revoke the suspension of the sentence at any time within five years, that being the maximum period for which the defendant might originally have been sentenced to be imprisoned. Its argument is that by the order of April 25, 1950, the court did not prescribe a period of probation within the meaning of section 53-275 but suspended the sentence upon the condition that the defendant be of good behavior for one year, which condition the defendant admittedly did not keep.

The probation law of this State was enacted in 1918, Acts 1918, ch. 349, p. 528. It has remained unchanged except for amendments to section 2, made by Acts 1938, ch. 122, p. 188. The 1918 act as so amended appears as sections 53-266 through 53-279 of the Code, except sections 53-276 and 53-278.1, with which we are not now concerned.

Section 53-272 provides, so far as now pertinent, that after a plea, verdict or judgment of guilty, 'the court may suspend the imposition or the execution of sentence, or commitment, and may also place the defendant on probation under the supervision of a probation officer, during good behavior, for such time and under such conditions of probation as the court shall determine.'

Section 53-275 provides: 'The court may, for any cause deemed by it sufficient, revoke the suspension of sentence and any probation, if the defendant be on probation, and cause the defendant to be arrested and brought before the court at any time within the probation period, or if no probation period has been prescribed then within the maximum period for which the defendant might originally have been sentenced to be imprisoned,' whereupon in case the execution of the sentence has been suspended, 'the original sentence shall be in full force and effect.'

In Richardson v. Commonwealth, 131 Va. 802, 109 S.E. 460, decided under the 1918 act, the accused was sentenced on November 10, 1919, to thirty days in jail and a fine of $50, but the court suspended the jail sentence 'during good behavior,' and upon payment of the fine and cost 'the accused is discharged from custody until the further order of this court. ' On September 14, 1920, the accused was again convicted of a misdemeanor and on February 21, 1921, an order was entered annulling the suspension and committing the defendant to jail to serve the thirty-day sentence.

Against the contention that the court had no jurisdiction to revoke the suspension because the order of November 10 had become final, it was held: 'When the execution of a sentence is thus suspended, under the Virginia statute, the case remains pending and the court does not thereby lose its control over the accused or his case.' 131 Va. at p. 807, 109 S.E. at p. 461.

The court then held that under section 2 of the 1918 act (now § 53-275 as amended) the trial court could revoke the suspension either (1) within the period of probation if one was prescribed in the suspending order; or (2) if none was prescribed, then within the maximum period for which the accused could have been originally imprisoned. * It was then held that since the trial court 'did not prescribe a definite period during which the suspension of the sentence should continue,' the second alternative applied and the court's power to revoke continued for the maximum period for which the defendant could have been imprisoned, which in that case was six months.

In White v. Commonwealth, 170 Va. 641, 196 S.E. 610, it was held that the maximum period for which the defendant might originally have been sentenced to be imprisoned meant the maximum period under the indictment and the evidence, not under the indictment alone. In that case the jail sentence was also suspended 'during the good behavior of the defendant.'

Both the Richardson Case and the White Case were decided under the 1918 act and both stated two alternatives as being open to the trial judge.

In the Richardson Case it is said: 'The draftsman of the act appears to have had in mind that in the discretion of the judge there might be two alternatives: (1) That the convicted person might be placed on probation -- that is, discharged on condition that he would be of good behavior, either with or without supervision and without any express limitation of the period during which this probation should continue; (2) There might be such a suspension of the sentence either with or without the supervision of a probation officer for a definite period until the further order of the court.' 131 Va. at p. 811, 109 S.E. at pp. 462-3.

It is to be noted, however, with respect to the first alternative, that the statute (now § 53-272) provides only for probation with supervision, and for prescribing the time and conditions thereof.

In the White Case the alternatives are thus stated: '(1) That the convicted person may be placed on probation conditioned upon his good behavior for a definite period until the further order of the court and (2) that his sentence may be suspended without any express limitation as to the duration of the suspension.' 170 Va. at p. 647, 196 S.E. at p. 612.

It is then said that when the second alternative is chosen, the second revocation limit applies; i.e., the court may revoke the suspension at any time within the maximum period for which the defendant might have been imprisoned.

In the present case, as in the White Case, there was no express limitation as to the duration of the suspension, and hence the jurisdiction of the court to revoke the suspension continued for the maximum period for which the defendant might originally have been imprisoned; i.e., five years from April 25, 1950.

It is obvious that a distinction is made in both sections 53-273 and 53-275 between suspension of sentence and probation. Sentence may be suspended without putting the defendant on probation. Section 53-272 says that the court may suspend sentence, 'and may also place the defendant on probation under the supervision of a probation officer,' during good behavior, for such time and under such conditions of probation as the court shall determine. Section 53-275 provides that the court may revoke the suspension 'and any probation, if the defendant be on probation.'

Section 53-278 emphasizes the...