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Present: Judges Annunziata, Clements and Kelsey

Argued at Salem, Virginia

Record No. 1439-02-3






NOVEMBER 12, 2003


Charles J. Strauss, Judge

J. Patterson Rogers, 3rd, for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

Frank Jason Grooms was convicted in a bench trial of contempt of
court for violating a court

order and probation. On February 10, 2003, this Court granted
Grooms an appeal on the following

questions: (1) whether the evidence was sufficient to establish
that Grooms had violated the terms

of the order placing him on probation and (2) whether the trial
court abused its discretion by

sentencing Grooms to a term of confinement of forty-five days.
Oral argument was heard on

September 16, 2003. On September 25, 2003, this Court ordered
further briefing on the additional

question of whether the trial court, in an order revoking and
imposing Grooms’s previously

suspended sentence, had jurisdiction to place Grooms on
probation upon his release from

incarceration after serving the entire sentence. In its
response, the Commonwealth consents that

Grooms’s conviction for contempt should be reversed. We agree
and thus vacate and dismiss the


As the parties are fully conversant with the record in this
case, and because this

memorandum opinion carries no precedential value, this opinion
recites only those facts and

incidents of the proceedings as are necessary to the parties’
understanding of the disposition of this



The essential facts in this appeal are not in dispute. Grooms
was convicted of grand larceny

and sentenced on October 17, 1997, to a term of two years’
imprisonment. The entire sentence was

suspended on the condition that he be placed on supervised
probation for three years. On July 29,

1999, the trial court found Grooms had violated the terms of his
suspended sentence and probation

and revoked his suspended sentence. The trial court then
re-suspended Grooms’s sentence on the

condition that he complete the Diversion Center Incarceration
Program and, upon his release,

continue supervised probation in accordance with the trial court’s
order entered on October 21,


On November 29, 1999, having found that Grooms had again
violated the terms of his

suspended sentence and probation, the trial court revoked his
suspended sentence and re-imposed

the remaining unserved portion of the two-year sentence on his
grand larceny conviction. The court

also ordered that, upon his release from incarceration, Grooms
be placed on supervised probation

for two years and be of good behavior for five years. The trial
court directed that, while on

probation, Grooms was to comply with the court’s standard
rules of probation and several

enumerated special conditions.

On January 28, 2002, having served the full remaining portion of
his sentence, Grooms was

released from confinement and placed on supervised probation. On
February 7, 2002, Grooms

tested positive for marijuana. On April 8, 2002, he again tested
positive for marijuana and admitted

to his probation officer that he had previously smoked
marijuana. On May 31, 2002, following a

hearing on a rule to show cause, Grooms was found in contempt of
court by violating his probation

and the court’s order of November 29, 1999, and sentenced to
serve forty-five days in jail.

This appeal followed.


Code ? 19.2-303 authorizes a trial court to "suspend
imposition of sentence or suspend the

sentence in whole or in part and in addition place the accused
on probation under such conditions as

the court shall determine." Thereafter, "the court may
revoke the suspension of sentence for any

cause" deemed sufficient that occurs "within the
probation period or within the period of suspension

fixed by the court." Code ? 19.2-306(A). We have noted
that, "[t]o be effective, probation must be

concurrent with a coordinate term of suspension of
sentence." Hartless v. Commonwealth, 29

Va. App. 172, 175, 510 S.E.2d 738, 739 (1999). In Hartless, we
said that, "because probation

depends for enforceability upon the existence of a term of
sentence suspension, the duration of

Hartless’s probation cannot extend beyond . . . the specified
period of suspension." Id. at 175, 510

S.E.2d at 740.

Therefore, when, in this case, the trial court revoked the
suspension of the execution of

Grooms’s original sentence on November 29, 1999, and imposed
the entirety of the remainder of

the unserved portion of that sentence, the court exhausted
"the sentencing authority invested in it

by Code ? 19.2-306" and lost its jurisdiction to impose
any additional terms, conditions, or

supervision upon the accused. Smith v. Commonwealth, 222 Va.
700, 703, 284 S.E.2d 590, 591

(1981) (per curiam). Because the trial court was without
jurisdiction to order Grooms be placed

on probation upon his release from incarceration after serving
his sentence in full, Grooms’s

subsequent contempt conviction for violating that order was
error. See Robertson v.

Commonwealth, 181 Va. 520, 536, 25 S.E.2d 352, 358 (1943)
("Disobedience of, or resistance to

a void order, judgment, or decree is not contempt.").

Accordingly, the judgment of the trial court is reversed and
Grooms’s conviction is

vacated and dismissed.

Reversed, vacated and dismissed.



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