Andrew McQuay Jacobs v. Commonwealth of Virginia
61 Va. App. 529
| Va. Ct. App. | 2013Background
- Appellant pled guilty to Counts I–III in 2006 and received concurrent-tenure-like sentences: Count I 20 years with 18 suspended, Count II 5 years with 3 suspended, Count III 5 years with 3 suspended; all consecutive, plus five years of intensive probation.
- In 2011, appellant violated probation; April 20, 2011 order revoked 90 days of the Count III suspended portion and extended probation to December 31, 2021, but did not explicitly address Counts I and II.
- November 18, 2011 probation violation hearing led to a December 5, 2011 revocation order: it revoked the entirety of the suspended sentence on Count I and re-suspended all but six months for five years; revoked all suspended time on Counts II and III but re-suspended them for five years; placed appellant on intensive probation for five years.
- Appellant contends the December 5, 2011 order was void or erroneous because the April 20, 2011 order did not explicitly re-suspend the remaining suspended sentences; he argues the court had no authority to impose six months.
- Virginia appellate court affirms the December 5, 2011 order, finds implicit re-suspension in the April 20, 2011 order consistent with Code § 19.2-306(C), and remands to correct a clerical mistake in the order.
- Court emphasizes limits of trial court power over final sentences and adopts Leitao framework, holding that suspensions may be implicitly interpreted and that clerical corrections may be appropriate while preserving the underlying authority to revoke and re-suspend sentences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the December 5, 2011 order imposing six months of incarceration was valid | Jacobs argues the April 20, 2011 order did not re-suspend remaining time | Commonwealth argues implicit re-suspension occurred and was proper under Leitao | Affirmed; implicit re-suspension valid; remanded to fix clerical error |
| Whether the April 20, 2011 order effectively re-suspended remaining suspended sentences | Jacobs asserts no explicit re-suspension happened | Commonwealth contends the implicit re-suspension complies with 19.2-306(C) | Affirmed; implicit interpretation permissible under Leitao; no abuse of discretion |
| Whether Code § 19.2-306(C) requires explicit re-suspension in revocation orders | Explicit recitation required | Directory nature of 'shall' allows implicit action | Held to be directory; implicit re-suspension permissible; not reversible error |
Key Cases Cited
- Leitao v. Commonwealth, 39 Va. App. 435, 573 S.E.2d 317 (2002) (approval of implicit interpretation of revocation orders; cannot shorten original suspended sentence; balance implicitly re-suspended)
- Hartless v. Commonwealth, 29 Va. App. 172, 510 S.E.2d 738 (1999) (probation meaningful only with available suspended sentence)
- Alsberry v. Commonwealth, 39 Va. App. 314, 572 S.E.2d 522 (2002) (revocation proceedings focus on continuing or terminating suspended sentences)
- Commonwealth v. Rafferty, 241 Va. 319, 402 S.E.2d 17 (1991) (shall as directory; mode-of-proceeding statute interpretation)
- Taylor v. Commonwealth, 58 Va. App. 435, 710 S.E.2d 518 (2011) (probation continuation and suspended sentence framework)