Fuller v. Commonwealth, Record No. 3511.

• Citation: 189 Va. 327
• Decision Date: 27 April 1949
• Docket Number: Record No. 3511.
• Court: Virginia Supreme Court
• Parties: GUY H. FULLER v. COMMONWEALTH OF VIRGINIA.

Page 327

189 Va. 327

GUY H. FULLER v. COMMONWEALTH OF VIRGINIA.

Record No. 3511.

Supreme Court of Virginia, Richmond.

April 27, 1949.

Present, All the Justices.

1. APPEAL AND ERROR — Appealable Judgments, Orders and Decrees — Finality of Judgment under Code Section 1922b Authorizing Probation. — In the absence of statute the pronouncement of sentence is a prerequisite to the finality of a judgment. Consequently, where an appeal is limited to a final judgment, an order wherein the pronouncement of sentence is suspended is ordinarily not appealable. But the legislature may, by appropriate statute, permit an appeal from, or a writ of error to, such a judgment or order, either by express language granting the right of review of such an order, or by giving the judgment or order the necessary characteristics of a final judgment so as to be reviewable under the general law. The Virginia statute, providing for the use of probation and suspension of sentence in criminal and juvenile courts (section 1922b of the Code of 1942 (Michie)), falls within the latter category.

2. SENTENCE AND PUNISHMENT — Suspension of Sentence — Code Section 1922b Authorizing Probation to Be Liberally Construed. — Section 1922b of the Code of 1942 (Michie), providing for the use of probation and suspension of sentence in criminal and juvenile courts is highly remedial and should be liberally construed.

3. APPEAL AND ERROR — Appealable Judgments, Orders and Decrees — Finality of Judgment under Code Section 1922b Authorizing Probation. — After a trial court has adjudged a defendant "guilty" and has suspended either "the imposition or the execution of sentence, or commitment" of the defendant, and has fixed the terms of his probation, under section 1922b of the Code of 1942 (Michie), it has made a complete disposition of the case within the purview of the statute and its action is then final and subject to review. It is true that the statute authorizes the court "for any cause deemed by it sufficient" to revoke the suspension of sentence and probation, but such "cause", of course, refers to a matter or matters which may arise subsequent to the court's original disposition of the case, and the happening of such an event, which brings into operation the right of revocation, does not alter the finality of the judgment previously entered. To hold to the contrary, that a defendant must surrender his right to a suspension of the imposition of sentence and submit to a judgment, perhaps branding him as a felon, as a condition to his right of appeal, would strip this highly remedial statute of much of its usefulness, and the statute clearly does not contemplate that a defendant should be put in that position.

4. APPEAL AND ERROR — Appealable Judgments, Orders and Decrees — Judgment Not Final Where Trial Court Fails to Impose Sentence or Fix Terms of Probation — Case at Bar. — In the instant case, a prosecution for seduction, upon a verdict of guilty the trial court entered an order which adjudicated that defendant was guilty as charged but recited that there were mitigating circumstances of sufficient nature to justify suspension of sentence, and stated that before taking action the court desired to have a report of the probation officer. It further stated that because of defendant's desire to take an appeal the court suspended imposition of any sentence temporarily for the purpose of allowing defendant time for presentation of a writ of error to the Supreme Court of Appeals. Section 1922b of the Code of 1942 (Michie) provides that a court may suspend imposition or execution of sentence and place a defendant on probation. Section 4930 of the Code of 1942 (Michie) provides for suspension of the execution of sentence to allow a defendant time to apply for a writ of error.

Held: That the order was not a final judgment of the trial court as contemplated by section 1922b. The matter was clearly still in the breast of the court because the terms of probation were not fixed but were to await the probation officer's report, and if the report was unfavorable the court might not adopt such a lenient course but might sentence the defendant to the penitentiary. The suspension provided in the order was not under authority of the probation statute but merely for the purpose of perfecting an appeal. Since the order was not final the Supreme Court of Appeals was without jurisdiction.

Error to a judgment of the Circuit Court of Arlington county. Hon. Walter T. McCarthy, judge presiding.

The opinion states the case.

Davis & Harth, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General, and Henry T. Wickham, Assistant Attorney General, for the Commonwealth.

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

Guy H. Fuller, nineteen years of age, was convicted by a jury on an indictment charging him with seducing under promise of marriage Shirley M. Jackson, an unmarried female of previous chaste character. The verdict fixed his punishment at confinement in the penitentiary for two years. Upon the verdict the lower court entered the following order to which a writ of error has been allowed:

"This day came the defendant, Guy H. Fuller, in person and by counsel, and the Commonwealth, by the Commonwealth's attorney, pursuant to the order heretofore entered in this case on July 6, 1948, and upon the motions heretofore made by the defendant to set aside the verdict of the jury and discharge the defendant or to award the defendant a new trial upon grounds therein assigned and upon the argument of counsel.

"The court being of the opinion that the verdict of the jury is right and proper and should not be set aside, doth deny the motions of the defendant and doth adjudge and order that the defendant is guilty as charged, and the court being of the further opinion that there are mitigating circumstances of sufficient nature to justify suspension of the sentence in accordance with provisions of section 1922b of the Code of Virginia, and particularly to justify the suspension of the imposition of sentence, and having so indicated to counsel, and being desirous of first having a report of the probation officer of this court but having been notified by counsel for the defendant of his desire to take an appeal from the judgment of the court, doth now suspend the imposition of any sentence for a period of sixty days in order to allow the defendant time for the presentation of a petition for a writ of error to the Supreme Court of Appeals of this State.

"The denial of which motions heretofore made and to this final judgment of the court, the defendant, by counsel, excepts.

"Thereupon the defendant, by counsel, having signified his intention of applying to the Supreme Court of Appeals of this State for the award of a writ of error and supersedeas to the judgment of the court for a period of sixty days from the entry hereof within which to make such application,

"It is ordered by the court that the execution of the judgment be suspended for a period of sixty days from entry hereof.

"Thereupon the bail herein given was continued."

In Sturgill Commonwealth, 175 Va. 584, 588, 7 S.E.(2d) 141, 142, we pointed out that the judgment to...