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ROUNDTREE v. COMMONWEALTH




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ROUNDTREE

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Clements and Felton

Argued at Chesapeake, Virginia

Record No. 0298-03-1

SHERMAN ROUNDTREE

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]BY
JUDGE LARRY G. ELDER

NOVEMBER 18, 2003

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

Charles D. Griffith, Jr., Judge

Kenneth J. Coughlan, Assistant Public Defender (Norfolk Public

Defender’s Office, on brief), for appellant.

(Jerry W. Kilgore, Attorney General; Richard B. Smith, Senior

Assistant Attorney General, on brief), for appellee. Appellee

submitting on brief.

Sherman Roundtree (appellant) appeals from the revocation of
suspension of sentence

following his violation of probation. On appeal, he contends the
trial court lacked authority,

after imposing the entire sentence previously suspended, to
order postrelease supervision or

additional incarceration in the event of a violation of the
conditions of that supervision. He seeks

a new sentencing hearing.

The Commonwealth concedes the sentence was error to the extent
that it exceeded the

sentence previously pronounced and suspended. However, it
contends the appropriate remedy is

to uphold imposition of the sentence previously suspended and to
nullify only that portion of the

sentence that exceeded the sentence originally pronounced.

We hold the appropriate remedy is the nullification of the
invalid portion of the sentence.

Thus, we affirm the trial court’s revocation of suspension of
the three-year sentence and remand

to the trial court with instructions to vacate the portion of
its prior order sentencing appellant to

two years of postrelease supervision.

I.

PROCEDURAL HISTORY

On February 11, 1999, appellant pleaded guilty to three counts
of forgery pursuant to a

plea agreement. The court sentenced appellant to serve one year
for each conviction but

suspended those sentences on the conditions that he serve three
months in jail for one of those

convictions and that he be on probation "for 3 years from
[his] release from confinement."

The court subsequently found appellant violated the terms of his
probation. It revoked

the previously suspended three-year sentence and placed
appellant on an additional two years of

postrelease supervision. Appellant moved the court to reconsider
on the ground that the three

years of incarceration and two years of postrelease supervision
imposed exceeded the original

sentence of three years.[2]The
trial court did not rule on the motion for reconsideration.

Appellant noted this appeal.

II.

ANALYSIS

The Commonwealth concedes the trial court erred in revoking the
remainder of

appellant’s original three-year suspended sentence and then
attempting to add to that sentence

two years of "postrelease supervision." We agree.

Pursuant to Code ? 19.2-295.2,

At the time the court imposes sentence upon a conviction for any

felony offense committed (i) on or after January 1, 1995, the
court

may, and (ii) on or after July 1, 2000, shall, in addition to
any other

punishment imposed if such other punishment includes an active

term of incarceration in a state or local correctional facility,
except

in cases in which the court orders a suspended term of
confinement

of at least six months, impose a term of postrelease
supervision
of

not less than six months nor more than three years, as the court

may determine. Such additional term shall be suspended and the

defendant placed under postrelease supervision upon release from

the active term of incarceration.

(Emphasis added.) A court has the authority to add a term of
postrelease supervision only when

it originally sentences the defendant, not at the time of a
later revocation of suspension of

sentence. Lamb v. Commonwealth, 40 Va. App. 52, 56-58, 577
S.E.2d 530, 532-33 (2003).

Here, the trial court did not impose a term of postrelease
supervision when it originally

sentenced appellant, and it lacked the authority to do so in the
subsequent revocation proceeding.

Although the Commonwealth concedes this was error, it disagrees
with appellant’s request for a

new sentencing hearing and contends the appropriate remedy is
invalidation of the portion of the

sentence that the trial court lacked authority to enter. We
agree.

Settled principles provide that, "[w]here the sentence
imposed is in excess of that

prescribed by law, only the part that is excessive is
invalid." Brown v. Commonwealth, 26 Va.

App. 758, 763, 497 S.E.3d 147, 150 (1998) (where court imposed
fine in amount greater than

allowed by statute, court reduced fine to statutory limit).
Where a statute permits a court to

impose either of two punishments, a period of incarceration or a
fine, and it erroneously imposes

both the maximum sentence and maximum fine, "[c]ommon sense
and reason dictate that the

[sentencer], if it had been required to choose between the two
punishments it fixed, would have

imposed the greater, the penitentiary sentence . . . ."
Deagle v. Commonwealth, 214 Va. 304,

306, 199 S.E.2d 509, 511 (1973).

Appellant argues the record does not make clear what the trial
court would have done if it

had known it lacked the authority to impose a period of
postrelease supervision. However, we

need not speculate about what the court would have done because
we may invalidate only the

portion of the sentence the trial court lacked the authority to
impose. Here, the trial court had the

authority to revoke suspension of the original three years to
which it sentenced appellant, and we

must affirm that portion of its order. However, it did not have
authority to impose a period of

postrelease supervision. Thus, we may invalidate only that
portion of the sentence.

III.

In sum, we hold the appropriate remedy for the error conceded by
the Commonwealth is

the nullification of the invalid portion of appellant’s
sentence. Thus, we affirm the trial court’s

revocation of suspension of the three-year sentence and remand
to the trial court with

instructions to vacate the portion of its prior order sentencing
appellant to two years of

postrelease supervision.

Affirmed, in part, and remanded.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]Appellant did
not raise the issue of credit for the three months he served in jail as a

condition of the suspension of his three-year penitentiary
sentence. Thus, on appeal, we do not

consider whether he would have been entitled to such credit as
against the three-year sentence

imposed by the trial court in the revocation proceeding.


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