Smith v. Com., 801941
| Decision Date | 04 December 1981 |
| Docket Number | No. 801941,801941 |
| Parties | James Edward SMITH, Junior v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
B. Randolph Wellford, Richmond (Wellford & Taylor, Richmond, on brief), for appellant.
Alan Katz, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., James T. Moore, Asst. Atty. Gen., on brief), for appellee.
Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.
In a bench trial, the trial court convicted James Edward Smith, Jr., of unauthorized use of a motor vehicle valued at more than $100. At that time, Code § 18.2-102 classified that offense as a class 6 felony. A class 6 felony is punishable by "a term of imprisonment of not less than one year nor more than five years, or ... confinement in jail for not more than twelve months and a fine of not more than one thousand dollars, either or both." Code § 18.2-10(f). The order entered August 22, 1977, upon that conviction provided that "the court ... doth now ... suspend the imposition of sentence ... during [defendant's] good behavior conditioned that he serve six months in jail." The order further provided that "upon his release from incarceration, the defendant is placed on supervised probation".
In a "show cause" hearing conducted March 12, 1979, the trial court found that defendant had violated certain conditions of probation and ordered that "the sentence heretofore suspended is hereby revoked to the extent that you are sentenced to ten months in the City Jail". The trial court advised defendant that "the imposition of a penitentiary sentence is still suspended" and warned him that "[t]his will be your last chance not to go to the penitentiary."
Upon his release after serving this sentence, defendant violated the conditions of probation again. The trial court entered an order September 5, 1980, providing that "three years and eight months, the balance of the five years of the suspended imposition of sentence, are this day revoked." *
On appeal from that order, defendant invokes the constitutional guarantees against double jeopardy. U.S.Const. amend. V; Va.Const. art. I, § 8. We need not consider the double jeopardy question.
Defendant does not challenge the trial court's authority to fix the initial six-month jail term as a condition of probation, and he conceded on brief that the ten-month sentence "was within the Court's authority under § 19.2-306 of the Virginia Code". For purposes of this opinion, we accept these concessions. Code § 19.2-306 defines the sentencing authority of a trial court which has found a probationary violation. In the event a sentence has been imposed upon a conviction and execution of...
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