Grant v. Com.

• Decision Date: 18 June 1982
• Docket Number: No. 811421,811421
• Citation: 223 Va. 680,292 S.E.2d 348
• Parties: Jerry Lee GRANT v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 348

292 S.E.2d 348

223 Va. 680

Jerry Lee GRANT v. COMMONWEALTH of Virginia.

Record No. 811421.

Supreme Court of Virginia.

June 18, 1982.

John H. Herbig, Richmond (Harris, Tuck & Freasier, Richmond, on briefs), for appellant.

Richard B. Smith, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

COMPTON, Justice.

In this revocation proceeding in a criminal case, the question is whether the trial court had jurisdiction to sentence the defendant, the imposition of punishment previously having been suspended.

The facts are undisputed. On August 19, 1976, defendant Jerry Lee Grant was found guilty in the court below of receiving stolen property. At the sentencing hearing on September 28, 1976, after review of a probation officer's report, a judge of the trial court entered an order providing:

"[T]he Court doth now, on motion of the defendant, suspend the imposition of sentence in this case conditioned upon the following: that the defendant keep the peace and be of good behavior; that he be placed on supervised probation; that he obtain a GED certificate; that he seek employment part-time while obtaining a GED certificate; that he live with his mother unless his Probation Officer permits otherwise; that he pay $50.00 of the cost of Court in this case by 4:30 o'clock p. m. this day."

Almost two years later, on July 26, 1978, the same trial judge entered another order as follows:

"This day, Joseph E. Lee, State Probation and Parole Officer, having represented to the Court that the said defendant, Jerry Lee Grant, who was on September 28, 1976, placed on probation under supervision of this Officer, has satisfactorily complied with all conditions of probation, it is hereby ordered that the said defendant be released from supervised probation."

About 33 months later, on April 22, 1981, defendant was convicted in the court below of several drug distribution charges. Almost three weeks later, upon motion of the Attorney for the Commonwealth, an order was issued on May 11, 1981, and served on defendant, requiring him to show cause "why his suspended sentence should not be revoked for his failure to comply with the terms and conditions of the judgment of this Court."

On June 2, 1981, defendant was sentenced on the drug charges, and his motion to dismiss the show cause proceeding was denied. The present trial judge entered an order providing:

"Evidence and arguments of counsel having this day been presented as to the matter of possible revocation of the suspended imposition of sentence entered herein on September 28, 1976, pursuant to the said show cause order previously entered, for reasons satisfactory to the Court, the said suspended imposition of sentence is this day revoked, and the Court doth ascertain the defendant's term of confinement in the State Penitentiary at Two Years."

On appeal from the foregoing order, defendant argues that when the court suspends imposition of sentence following a criminal conviction and places a defendant on supervised probation, and by a subsequent order removes the defendant from supervised probation, the trial court does not have jurisdiction to revoke the suspended imposition of sentence unless defendant is arrested and brought before the court within one year from the date he was removed from supervised probation. Relying on Code § 19.2-306, defendant says that because more than one year elapsed from the July 1978 order, releasing him from supervised probation, to the 1981 show cause proceeding, the trial court erroneously revoked the suspended imposition of sentence and incorrectly assessed the two-year penitentiary term.

The foregoing statute provides, in part:

" § 19.2-306. Revocation of suspension of sentence and probation.--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 the defendant might originally have been sentenced to be imprisoned, 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 one year after the probation period, or if no probation period has been prescribed then within one year after the period of suspension fixed by the court, or if neither a probation period nor a period of suspension has been prescribed then within one year after the maximum period for which the defendant might originally have been sentenced to be imprisoned, whereupon, in case the imposition of sentence has been suspended, the court may pronounce whatever sentence might have been originally imposed."

Recognizing that no fixed period of probation or suspension was specified in the September 1976 order, defendant reasons that the July 1978 order terminating supervised probation effectively set an ending to a period of probation that began in September 1976. Thus, defendant says, his "probation period," within the meaning of § 19.2-306, was established. He further argues that because the "probation period" plus one year had elapsed before his 1981 acts giving rise to the show cause order, the trial court lacked power to revoke the suspension.

The Attorney General contends that no "probation period" or "period of suspension" was fixed under the circumstances of this case. Consequently, he argues, the trial court's power to revoke the suspension, under § 19.2-306, lasted until one year expired after the maximum period for which defendant might originally have been sentenced to imprisonment, which was 20 years. Code § 18.2-108 and § 18.2-95. We agree with the Attorney General.

The probation statutes are highly remedial and should be liberally construed to provide trial courts a valuable tool for rehabilitation of criminals. Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952). In addition, the power of the courts to revoke suspensions and probation for breach of conditions must not be restricted beyond the statutory limitations. Id., 69 S.E.2d at 486-87.

Against that background, the primary inquiry under these facts is whether a probation period or a period of suspension had been "prescribed" within the meaning of § 19.2-306. If such period had been "prescribed," then running of the shorter time within which the court could revoke will be triggered; if such period had not been "prescribed," then the time for revocation extends through the maximum period for which defendant could originally have been sentenced.

Words in a statute are to be construed according to their ordinary meaning, given the context in which they are used. Loyola Federal Sav. & Loan v. Herndon Lumber, 218 Va. 803, 805, 241 S.E.2d 752, 753 (1978). To "prescribe" means "to lay down authoritatively as a guide, direction, or rule of action." Webster's Third New International Dictionary 1792 (1981). Use of "prescribe" ordinarily indicates that the action shall have prospective rather than retrospective effect. Commonwealth, ex rel. Town of Appalachia v. Old Dominion Power Co., 184 Va. 6, 15, 34 S.E.2d 364,...