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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Felton
Argued at Chesapeake, Virginia
Record No. 0298-03-1
COMMONWEALTH OF VIRGINIA
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.
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.The
trial court did not rule on the motion for reconsideration.
Appellant noted this appeal.
The Commonwealth concedes the trial court erred in revoking the
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
may, and (ii) on or after July 1, 2000, shall, in addition to
punishment imposed if such other punishment includes an active
term of incarceration in a state or local correctional facility,
in cases in which the court orders a suspended term of
of at least six months, impose a term of postrelease
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
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.
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
Affirmed, in part, and remanded.
Code ? 17.1-413, this opinion is not designated for publication.
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.