Hamilton v. Com.

• Decision Date: 08 October 1976
• Docket Number: No. 760122,760122
• Citation: 217 Va. 325,228 S.E.2d 555
• Parties: Franklin E. HAMILTON, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 555

228 S.E.2d 555

217 Va. 325

Franklin E. HAMILTON, Jr. v. COMMONWEALTH of Virginia.

Record No. 760122.

Supreme Court of Virginia.

Oct. 8, 1976.

Robert A. Payne, Alexandria, for plaintiff-in-error.

Jim L. Chin, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant-in-error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

PER CURIAM.

On September 26, 1974 Franklin E. Hamilton, Jr. was convicted in the court below on a charge of statutory burglary. The defendant was sentenced on March 28, 1975 to serve three years in the penitentiary. The trial judge suspended two years and six months of the sentence 'conditioned upon the defendant's good behavior. . . .'

On July 17, 1975, the lower court ordered defendant to show cause why his suspended sentence should no be revoked, it having been represented to the court that defendant had violated the terms of his suspended sentence in that he had been arrested on March 26, 1975 by federal authorities, and, on June 29, 1975, had been sentenced by the United States District Court to a term of eight years for conspiracy and to a term of five years for manufacturing approximately 600 bags of heroin. Following a hearing on the show cause order, held October 1, 1975, the court found that defendant had violated the conditions of the suspended sentence and ordered a revocation of one year thereof. It is from this order that we granted defendant a writ of error.

Defendant was taken into custody immediately after being sentenced on March 28, 1975, and remained incarcerated in state and federal penal institutions until the October 1, 1975 revocation hearing. The record does not show any violation of the rules and regulations of any penal institution or anything other than good behavior on the part of defendant during this period of incarceration.

The transcript of the March 28, 1975 hearing discloses that the court was at that time advised that defendant had been charged with a violation of the Federal Narcotics Act but had not been arraigned. Hamilton testified that a charge was pending against him in Arlington for possession of heroin with intent to distribute. The Assistant Commonwealth's Attorney and the trial judge were therefore aware that there were criminal charges pending against defendant in other jurisdictions. The trial judge observed at the time defendant was sentenced that he was requiring defendant to serve six months of the sentence 'because of the nature of the offense and your background. . . .'

The authority of a trial court to suspend the execution of a sentence, in whole or in part, if there are circumstances in mitigation of the offense, or if it appears compatible with the public interest, is expressly provided by Code § 53--272. Its authority to revoke such suspension for any cause deemed by it sufficient which occurs within the period of suspension fixed by the court is provided by Code § 19.2--306.

In Slayton v. Commonwealth, 185 Va. 357, 38 S.E.2d 479 (1946), we observed that a revocation of a suspended sentence lies in the discretion of the trial court and that this discretion is quite broad. There we held that a conviction of a subsequent criminal offense was not essential to warrant a revocation of suspension, and that an alleged violation upon which revocation is based need not be proven beyond a reasonable doubt.

In Marshall v. Commonwealth, 202 Va. 217, 116 S.E.2d 270 (1960), we held that 'good behavior' is the condition of every suspension, with or without probation, and whether expressly so stated or not. The Court concluded, referring to the revocation of a suspended sentence, that:

'The cause deemed by the court to be sufficient for revoking a suspension must be a reasonable cause. The sufficiency of the evidence to sustain an order of revocation 'is a matter within the sound discretion of the trial court. Its finding of fact and judgment thereon are reversible only upon a clear showing of abuse of such discretion.' The discretion required is a judicial discretion, the exercise of which 'implies conscientious judgment, not arbitrary action.' Slayton v. Commonwealth, supra, 185 Va. at 367, 38 S.E.2d at 484.

'It seems entirely clear that the failure of a defendant to be of good behavior, amounting to substantial misconduct, during the period of the suspension would provide reasonable...