12.6 Probation or Suspension of Sentence

LibraryDefending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

12.6 PROBATION OR SUSPENSION OF SENTENCE

12.601 In General. After a defendant's conviction of a felony or specified misdemeanors, the court may suspend execution of sentence in whole or in part, may suspend imposition of sentence, may place the defendant on probation and set the conditions of probation, including monitoring by a Global Positioning System (GPS) tracking device, or other similar device and payment by defendant of the costs of that device, or may, as a condition of a suspended sentence, require the accused to make restitution, perform community service, or both. 152 This authority may be exercised in a bench or jury trial. 153 However, if the court suspends or modifies a sentence fixed by a jury, the court must file with the records of the case a statement of the reasons for the suspension or modification. 154 The court's authority to suspend sentence is entirely discretionary 155 and extends to a sentence imposed pursuant to a plea agreement. The Virginia Court of Appeals has held that a trial court also retains jurisdiction to modify a felon's sentence even when that person is in federal prison, reading literally that the only event terminating the sentencing court's jurisdiction is the prisoner's transfer to the Virginia Department of Corrections. 156 However, if special sentencing provisions are applicable and they prohibit or restrict suspension of sentence or probation, the special provisions must be obeyed. 157 Although the Virginia Code requires a court to consider the reports of probation officers, the court is not bound by the conclusions they contain. 158

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Section 19.2-303 of the Virginia Code empowers courts to place conditions on suspended sentences. The specific authority conferred under section 19.2-305 of the Virginia Code to require a defendant to pay restitution to an aggrieved party does not limit the general authority to impose reasonable conditions on suspended sentences under section 19.2-303. Thus, under section 19.2-303, the court could order the defendant to return funds received from a government agent in a controlled drug buy even though the repayment was not "restitution to an aggrieved party." 159

The court also may place the defendant on probation pursuant to its authority to fix reasonable terms and conditions for suspending execution of the sentence. 160 The period of suspension must be reasonable, having due regard for the nature of the offense, the background of the offender, and the surrounding circumstances. The Virginia Supreme Court has held that subjecting a defendant's property, residence, and vehicle to searches at any time as a condition of probation, over the defendant's objection, is unreasonable in light of the defendant's offenses, his background, and the surrounding circumstances. 161 Probation must be concurrent with a coordinate term of suspension of the sentence. 162

There is some confusion about the court's authority to suspend or modify the sentence after the defendant has been sentenced.

1. The defendant is convicted of a misdemeanor or felony and is sentenced to confinement in the county or city jail: at any time before the sentence is completely served, the court may modify or suspend the unserved portion of the sentence or place the defendant on probation; 163

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2. The defendant is convicted of a felony and is sentenced to confinement in a receiving unit of the Department of Corrections but has not yet been committed and delivered to the unit: the court may modify or suspend the unserved portion of the sentence or place the defendant on probation; 164
3. The defendant is delivered to the state prison before the 21-day period expires in which the court retains jurisdiction of the case: until the 21-day period ends, the court may modify or suspend the sentence or place the defendant on probation; 165
4. The defendant is not committed to the state prison or has been committed but not actually transferred to the state prison, but the 21-day period has expired: until the defendant is transferred into the custody of the Department of Corrections, the court may modify or suspend the sentence or place the defendant on probation; 166
5. The defendant has been delivered to the state prison, and the 21-day period has expired: the court no longer has authority to act, 167 even if the defendant is mistakenly transported to the Department of Corrections in violation of an order to hold him locally. 168

Although the court retains authority under Section 19.2-303 to modify a sentence until the defendant is transferred to the Department of Corrections, it may do so only if the defendant has been sentenced to a term of incarceration in a department facility. The Virginia Court of Appeals has held that if a sentence of incarceration is not imposed, Rule 1:1 of the Rules of

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the Supreme Court of Virginia prohibits modification of the sentence after 21 days from the entry of the final order of conviction. 169

Occasionally, a court sentences a defendant to a specific prison term "but takes under advisement suspension of a portion of the sentence." Taking under advisement a motion to modify or set aside a sentence does not amount to a suspension or modification of the sentence that would toll the 21-day time limit. If no action is taken on the judgment within 21 days, the sentencing order becomes final and the court loses jurisdiction to act on the motion. 170

12.602 Terms and Conditions. Inherent in the authority to suspend sentence "is the power of the court to attach such reasonable terms and conditions to the suspension as it may deem proper." 171 The condition of good behavior is implied in every suspension, with or without probation. This condition need not be explicitly stated in the record or judgment order. 172 Furthermore, the period of good behavior attaches from the moment following the pronouncement of a suspended sentence, not only after release from serving the active portion of a sentence. 173 The use of probation and suspension of sentences is viewed as a remedial tool in the rehabilitation of convicted persons and should be liberally construed by the courts. 174

While on probation, the defendant may be required to pay his or her fine and court costs as a condition of probation. 175 In addition, the defendant may be required to support his or her spouse or others for whose support the defendant is responsible. 176 The defendant may submit a payment plan to the court. 177 A defendant may not be kept under supervised probation solely

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because he or she has failed to make full payment of fines, fees, or costs, as long as, after notification by the probation and parole officer to each court and commonwealth's attorney in whose jurisdiction any fines, fees, or costs are owed by the defendant, the court or commonwealth's attorney does not object to the defendant's removal from supervised probation. 178

The defendant also may be required to make restitution or reparation to the victims of his or her offense, 179 but the restitution must be connected to the crime. 180 Section 19.2-305.1 of the Virginia Code provides that a person convicted of any crime in violation of Title 18.2 must make at least partial restitution for any property damage or medical or funeral expenses resulting from the crime and may be compelled to perform community services. Furthermore, if property damage resulted, that section forbids granting probation or suspending sentence unless the defendant submits a plan for making, or makes, at least partial restitution. The court must consider any plan submitted in light of what is "reasonable and practical under the circumstances." The terms and conditions of restitution must be included in the judgment order. 181

When a defendant is convicted of certain drug- and alcohol-related offenses, the court must order a substance abuse screening as a condition of supervised probation. 182 A defendant convicted of manufacturing a controlled substance may be ordered to reimburse the Commonwealth or locality for removal and remediation costs associated with the illegal manufacture when suitable evidence of the costs is presented. 183

At the time of sentencing, the court will determine the amount of restitution, if any, that the defendant must pay and the terms of any community service work. 184 If return of the property is impossible or impractical, the defendant must pay an amount equal to the greater of the value of the property at the time of the offense or the value of the property at the

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time of sentencing. 185 The amount of loss must be proved by a preponderance of the evidence. 186 The court may also require the defendant to pay interest on the amount of restitution ordered. If a court orders the payment of interest when ordering restitution, the interest shall accrue from the date of loss or damage unless a different date is specified. 187 The amount of restitution that may be imposed as a condition of probation is not an element of the offense that must be proved at trial. 188 A sentencing court may consider hearsay evidence to establish the amount of restitution, as long as the information bears some indicia of reliability and the defendant is given the opportunity to refute the evidence. 189

The period of suspension may be set by the court for a reasonable time, having due regard for the gravity of the offense and without regard to the maximum period for which the defendant might have been sentenced. 190 If no period of probation or suspension was expressly set by the court, the period of suspension is the maximum period for which the offender might have been sentenced. 191

Any person who has not previously been found guilty of a felony and who either pleads guilty to or is convicted, whether with or without jury, of a crime against property constituting a misdemeanor may be placed on probation and, upon satisfactory completion of...

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