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Order extending probation also extends sentence suspension

Appellant’s argument that the circuit court lacked jurisdiction to order him to serve the balance of a previously suspended sentence after a probation violation is not well-taken.

Appellant argues that jurisdiction was lacking because the sentence suspension period lapsed before his probation violation. However, the entry of a new probation order also extended the period of the suspended sentence.


“Hill argues that his period of suspension had expired before the circuit court revoked it in February 2020. The three-year period of suspension, he contends, began on March 17, 2015 [when the court entered a sentencing order], and ended on March 17, 2018 [the end of his three-year probation and suspended sentence].

“Hill acknowledges that the period of probation was extended on April 18, 2018 (imposing a new 2-year period of supervised probation upon release from incarceration), but asserts that the order did not expressly or impliedly extend the period of suspension.

“We have not directly ruled on the implicit effect, if any, of a probation extension on an underlying suspended sentence. The Court of Appeals has addressed similar arguments with disparate reasoning.

“In our view, the better reasoned opinions from the Court of Appeals support the conclusion that a revocation order that extends a period of probation necessarily extends the period of sentence suspension.

“Because one without the other would be ‘vain and useless,’ – something our common-law tradition abhors – we believe that an express extension of a period of probation implicitly creates a corresponding period of sentence suspension.”

‘Leitao’ reasoning approved

“We reach this conclusion based upon the reasoning of Leitao v. Commonwealth, which held that a revocation order placing a defendant back on probation necessarily had the effect of resuspending the sentence for the newly imposed period of probation. 39 Va. App. 435, 438 (2002).

“Writing for a unanimous panel, Judge Bumgardner stated: ‘The absence of an explicit recitation re-suspending the balance of the original sentence did not implicitly discharge the remaining sentence; it implicitly re-suspended the balance that the defendant had not served.’ …

“Probation would be ‘meaningless,’ the court reasoned, ‘if no sentence remained for the court to impose if the defendant violated the terms imposed.’ …

Leitao’s reasoning is consistent with Code § 19.2-306(A), which states that in any case ‘in which the court has suspended the execution or imposition of sentence, the court may revoke the suspension of sentence for any cause the court deems sufficient that occurred at any time within the probation period, or within the period of suspension fixed by the court.’

“The disjunctive ‘or’ is the crucial word. As the Court of Appeals pointed out in Hill’s case, the power of revocation can be exercised to address misconduct that ‘occurred within either the period of probation or the period of suspension.’ …

“The statute does not limit the power of revocation to misconduct occurring only during an expressly specified period of suspension. To the contrary, the statute presupposes that an implied suspension always accompanies an expressly declared period of probation.”


Hill v. Commonwealth, Record No. 210569 (Kelsey) Aug. 11, 2022. From the Court of Appeals of Virginia. Shalev Ben-Avraham, Senior Assistant Public Defender, on briefs, for appellant. Katherine Quinlan Adelfio, Assistant Attorney General (Jason S. Miyares, Attorney General of Virginia, on brief), for appellee. VLW 022-6-039, 7 pp.

VLW 022-6-039

Virginia Lawyers Weekly