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Eighty-day sentence for failing to report was error

Where the trial court sentenced appellant to 80 days in jail for failing to report to probation, the court incorrectly interpreted the statute that limits sentences for technical violations, such as failing to report, to 14 days.

Technical violation

“At trial, the Commonwealth argued that Code § 19.2-306.1(A)(iii) did not apply in the instant case and thus appellant’s probation violation was not a technical violation. The trial court subsequently sentenced appellant to a term of active incarceration, which would only be permitted under the statute if appellant’s probation violation did not constitute a technical violation.

“Therefore, this case turns on this Court’s interpretation of Code § 19.2-306.1(A)(iii). …

“Code § 19.2-306.1(A)(iii) provides that a probationer’s failure to ‘report within three days of release from incarceration’ is a technical violation. On appeal, the Commonwealth argues that Code § 19.2-306.1(A)(iii) applies when a probationer does in fact report to probation but simply fails to do so ‘within three days of release from incarceration.’

“Therefore, it contends that Code § 19.2-306.1(A)(iii) does not apply here where appellant never reported to probation. The Commonwealth argues that the plain language of the statute supports this interpretation because there is no specific enumerated technical violation for failing to report to probation to initiate supervision.

“Instead, the Commonwealth asserts that ‘[w]hile the General Assembly could have pronounced that “failing to initiate supervision by reporting to the designated probation office” is a mere technical violation, it elected not to do so, and it is not the function of the judiciary to write additional technical violations into the statute.’”

No extra words

“We reject the Commonwealth’s argument because it would have us write additional language into Code § 19.2-306.1(A)(iii) not found in the text of the statute. … [B]because nothing in the plain language of the statute indicates that a probationer must eventually report for their behavior to constitute a technical violation under Code § 19.2-306.1(A)(iii), we reject the Commonwealth’s argument asserting the same. …

“[A]ppellant failed to report to probation within three days of his release from incarceration. Because we hold that a violation of Code § 19.2-306.1(A)(iii) does not require that a probationer must have eventually reported to probation, we conclude that appellant’s behavior fell under Code § 19.2-306.1(A)(iii) and constituted a first technical violation.

“Accordingly, we hold that the trial court erred in sentencing appellant to an active period of incarceration pursuant to Code § 19.2-306.1(C).”

Reversed and remanded.

Henthorne v. Commonwealth, Record No. 0163-22-3, Nov. 22, 2022. CAV (Malveaux). From the Circuit Court of the City of Waynesboro (Russell) Samantha Offutt Thames for appellant. Liam A. Curry, Jason S. Miyares for appellee. VLW 022-7-528, 7 pp.

VLW 022-7-528

Virginia Lawyers Weekly