Oliver v. Commonwealth

• Decision Date: 17 April 2001
• Docket Number: Record No. 0933-00-2.
• Citation: 35 Va. App. 286,544 S.E.2d 870
• Court: Virginia Court of Appeals
• Parties: Winston Sylvester OLIVER, II v. COMMONWEALTH of Virginia.

544 S.E.2d 870

35 Va. App. 286

Winston Sylvester OLIVER, II v. COMMONWEALTH of Virginia.

Record No. 0933-00-2.

Court of Appeals of Virginia, Alexandria.

April 17, 2001.

Douglas A. Ramseur (Bowen, Bryant, Champlin & Carr, on brief), Richmond, for appellant.

Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and WILLIS and CLEMENTS, JJ. CLEMENTS, Judge.

Winston Sylvester Oliver, II, was convicted in a bench trial of forgery and uttering, each in violation of Code § 18.2-172, and of failing to appear in court, a felony, in violation of Code § 19.2-128. He was sentenced to ten years imprisonment, with seven years suspended, on the forgery conviction. The court suspended the imposition of sentence on the other two convictions. On appeal, Oliver contends the trial court erred in finding the evidence sufficient to sustain his convictions.

In awarding this appeal, we directed the parties to address the jurisdictional issue of whether the trial court's sentencing order is a final, appealable order of conviction for uttering and failing to appear in court. Finding that order to be a final, appealable order as to those convictions and finding no error by the trial court, we affirm the convictions.

I. BACKGROUND

On September 26, 1998, at 11:37 a.m., Oliver purchased a can of juice at the Styles BiRite Store in Chesterfield County. In payment for the juice, he presented a check made out to him for $645. The check, dated September 25, 1998, and drawn on a bank account of Putnam's Maintenance Service, was purportedly signed by Richard Putnam. It bore a notation that it was "For: Working."

Oliver was charged $0.52 for the juice and $12.90 to cash the check and was paid the balance in cash. The total charge and the amount of the check, as well as the date and time of the transaction, were recorded by the cash register on the back of the check. Before cashing the check, Ruth Poling, the cashier who handled the transaction, made a photocopy of the check and Oliver's driver's license, noted the date and time of the transaction on the photocopy, and initialed the front of the check. The check was subsequently returned to the store by the bank, stamped, "PAYMENT STOPPED."

In addition to the returned check and the photocopy of the check and Oliver's license made by Poling, the Commonwealth also introduced into evidence a videotape recording of the transaction. The videotape was from the store's video surveillance system. It showed Oliver paying for the juice by check and the cashier making a photocopy of the check and Oliver's license and paying Oliver the balance of the amount of the check in cash. Poling did not appear at trial, but Dean Goins, the store's assistant manager, identified the videotape as being from the store's surveillance system. He also identified, from the videotape, the date and time of the transaction in question and verified that it matched the date and time shown on the check and the photocopy made by Poling. Goins also testified that the videotape showed that Poling correctly followed the store's check-cashing policy by making a photocopy of the check and Oliver's driver's license, noting the date and time of the transaction on the photocopy, and initialing the front of the check before she cashed the check.

Richard A. Putnam, the owner-operator of Putnam's Maintenance Service, testified that Oliver worked for his company for three days during the period of September 21, 1998 through September 24, 1998. Putnam also testified that, during that time period, he kept his checkbook in a vehicle to which Oliver had access. He identified Oliver as the person seen on the store's videotape cashing the check. He also identified the check cashed by Oliver at the store as being one of his business checks but testified that he did not write or sign the check or authorize Oliver or anyone else to sign his name on it.

As to the failure to appear charge, Officer Bradley E. Harter testified that he was present in the general district court for Oliver's preliminary hearing on a separate charge on September 3, 1998, but Oliver was not there. Without objection, the trial court took judicial notice of its own records from the district court concerning the notice that was given to Oliver of the date and time of the preliminary hearing.

At the close of the evidence, Oliver moved to strike all three of the charges against him, arguing that the Commonwealth failed to prove he was the person who forged and uttered the check or that he was aware of the September 3, 1998 preliminary hearing court date. The trial court overruled the motion and found Oliver guilty as charged. On the forgery conviction, the court sentenced Oliver to ten years in prison, with seven years suspended for twenty years upon certain conditions, including his being placed on supervised probation following his release from confinement. On the convictions of uttering and failing to appear in court, the trial court suspended the imposition of sentence for twenty years upon the same conditions.

II. FINALITY OF ORDER

As a threshold matter, we must decide whether the trial court's sentencing order suspending the imposition of Oliver's sentence on the uttering and failing to appear in court convictions is a final, appealable order as to those convictions. If it is not, we have no jurisdiction over the appeals from those convictions. See Fuller v. Commonwealth, 189 Va. 327, 333, 53 S.E.2d 26, 29 (1949); Code § 17.1-406.¹ Both Oliver and the Commonwealth maintain that the April 5, 2000 sentencing order is a final, appealable order of conviction for uttering and failing to appear in court, respectively. We agree.

The Supreme Court's reasoning in Fuller guides our analysis. In that case, the jury found Fuller guilty of seducing an unmarried female of previously chaste character and fixed his sentence at two years in prison. However, the trial court found, according to its order under review by the Supreme Court, that "there [were] mitigating circumstances of sufficient nature to justify suspension of the sentence in accordance with provisions of section 1922b of the Code of Virginia." The trial court, though, decided to wait for a report from the probation officer before taking such action. Furthermore, upon being advised that Fuller wished to appeal his conviction, the trial court suspended the imposition of the sentence "for a period of sixty days" to allow for the appeal.

On appeal, the Supreme Court raised the threshold issue of whether the trial court's order suspending the imposition of the defendant's sentence was a final, appealable order. It examined the two distinct suspensions of the imposition of the defendant's sentence raised in the trial court's order, namely, the contemplated suspension under Code § 1922b based on mitigating circumstances and the ordered sixty-day suspension to allow for the appeal. The Supreme Court noted

that 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, of course, by appropriate statute permit an appeal from, or a writ of error to, such a judgment or order. This may be done 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.

Id. at 330, 53 S.E.2d at 27.

The Court found that Code § 1922b, which allowed a court to suspend the imposition or the execution of a defendant's sentence and place the defendant on probation, fell "within the latter category." Id. "After the trial court has adjudged the 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, it has," according to the Court, "made a complete disposition of the case within the purview of the statute. Its action is then final and subject to review." Id. at 332, 53 S.E.2d at 28 (quoting Code 1922b). To conclude otherwise, the Court opined, "would strip this highly remedial statute of much of its usefulness." Id. Clearly, the Court added, the statute did not contemplate putting the defendant in the position of having to "surrender his right to a suspension of the imposition of sentence and submit to a judgment, perhaps branding him a felon, as a condition to his right of appeal." Id. at 332-33, 53 S.E.2d at 28.

Ultimately, though, the Supreme Court decided that the particular order before it was not a final, appealable order, as contemplated by Code § 1922b, because it was "not a complete disposition of the case." Id. at 333, 53 S.E.2d at 28. The temporary suspension the trial court ordered of the imposition of Fuller's sentence was "not under the authority of the probation statute but merely for the purpose of perfecting an appeal." Id. at 333, 53 S.E.2d at 29. Because the trial court was awaiting the probation report, the order did not fix the terms of the probation or the sentence. Id. at 333, 53 S.E.2d at 28-29. "Clearly, then," as the Supreme Court concluded, "the matter [was] still in the breast of the [trial court]." Id. at 333, 53 S.E.2d at 28.

The Supreme Court's reasoning in Fuller is equally applicable here. The current "probation" statute, a successor of Code § 1922b and applicable to the case before us, is Code § 19.2-303. It provides, in pertinent part, that, "[a]fter conviction, whether with or without jury, the court may suspend imposition of sentence or suspend the sentence in whole or part and in addition may place the accused on probation under such conditions as the court shall determine." We conclude, under the principles set forth in Fuller, that Code § 19.2-303...