Leitao v. Com.
| Decision Date | 17 December 2002 |
| Docket Number | Record No. 0512-02-4. |
| Citation | 39 Va. App. 435,573 S.E.2d 317 |
| Parties | Reinadlo D. LEITAO, Jr., s/k/a Reinaldo Leitao, Jr., v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
Seth I. Howard, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: FITZPATRICK, C.J., BUMGARDNER and HUMPHREYS, JJ.
The trial court found Reinadlo D. Leitao, Jr. in violation of probation for the third time and revoked the balance of his original sentence. He contends there was no suspended sentence to impose. Concluding the trial court properly imposed the unserved remainder of the defendant's sentence, we affirm.
On July 22, 1996, the trial court convicted the defendant of breaking and entering, grand larceny, and possession of marijuana with intent to distribute. It sentenced him to six years in prison. It then ordered him to serve six months in jail, suspended the balance of five years and six months, and placed the defendant on probation for two years.
On April 11, 1997, the trial court found the defendant violated probation. It revoked the five years and six months suspended sentence, ordered him to serve 12 months in jail, re-suspended the balance of the sentence, and placed the defendant on probation.
On April 15, 1999, the trial court found the defendant violated probation a second time. It revoked the suspended sentence and probation, ordered him to serve one year of the original sentence, and placed him on probation for two years upon his release.1
On February 13, 2002, the trial court found the defendant violated probation a third time. It revoked the suspension and probation and ordered the defendant to serve the balance of the original sentence, three years and six months. The defendant stipulated he had violated probation for the third time.
The defendant contends no suspended sentence remained for the trial court to revoke. He argues the 1999 order revoked his suspended sentence, sentenced him to serve a portion of it, but failed to re-suspend explicitly the balance of the original sentence. He contends no balance remained suspended for the trial court to order served.
The trial court ruled the 1999 order re-suspended the balance of the defendant's original sentence. It stated: "When the suspension was revoked, the sentence would have gone into effect automatically: And then ... the Court placed him back on probation and [by implication] re-suspended the sentence." We defer to the trial court's interpretation of its own order. Fredericksburg Constr. Co. v. J.W. Wyne Excavating, 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000); Rusty's Welding Serv., Inc. v. Gibson, 29 Va.App. 119, 129, 510 S.E.2d 255, 260 (1999). While the court has broad discretion, "that discretion must be exercised reasonably and not arbitrarily or capriciously." Smoot v. Commonwealth, 37 Va.App. 495, 500, 559 S.E.2d 409, 412 (2002). Absent an abuse of discretion, we will not reverse a trial court's revocation of a suspended sentence under Code § 19.2-306. Hamilton v. Commonwealth, 217 Va. 325, 326, 228 S.E.2d 555, 556 (1976).
The only logical interpretation of the 1999 order is the one the trial court adopted. The order only imposed a portion of the remaining sentence. It placed the defendant back on probation upon his release. Probation was meaningless if no sentence remained for the court to impose if the defendant violated the terms imposed. "To be effective, probation must be concurrent with a coordinate term of suspension of sentence." Hartless v. Commonwealth, 29 Va.App. 172, 175, 510...
To continue reading
Request your trial
-
Roe v. Com.
...Rusty's Welding Serv., Inc. v. Gibson, 29 Va.App. 119, 129, 510 S.E.2d 255, 260 (1999) (en banc)); see also Leitao v. Commonwealth, 39 Va.App. 435, 438, 573 S.E.2d 317, 319 (2002) ("[W]e defer to a trial court's interpretation of its own order."); Smoot v. Commonwealth, 37 Va.App. 495, 500,......
-
Davis v. Commonwealth
...137, 144, 530 S.E.2d 148 (2000). This Court "defer[s] to the trial court’s interpretation of its own order." Leitao v. Commonwealth, 39 Va. App. 435, 438, 573 S.E.2d 317 (2002). "That interpretation, however, must be reasonable, and [this Court] will ‘apply an abuse of discretion standard.’......
-
Harvey v. Commonwealth
...370 S.E.2d 470, 472 (1988).Moreover, we defer to the trial court in the interpretation of its own orders. Leitao v. Commonwealth , 39 Va.App. 435, 438, 573 S.E.2d 317, 319 (2002) (citing Fredericksburg Constr. Co. v. J.W. Wyne Excavating , 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000) ; Rust......
-
Eggleston v. Commonwealth
...is "meaningless if no sentence remain[s] for the court to impose if the defendant violate[s its] terms." See Leitao v. Commonwealth, 39 Va. App. 435, 438, 573 S.E.2d 317, 319 (2002). Significantly, the statutory scheme and related common law principles provide that the authority to set peri......