October 22, 2013:
The Virginia Court of Appeals upheld the result, but not the process, of the Circuit Court Henry County, invalidating the suspension of execution of appellant’s sentence. In 1990, appellant was convicted of receiving stolen goods and sentenced to seven years’ incarceration. Appellant was unable to immediately begin his state sentence, as he was serving a federal sentence at that time. Appellant petitioned for a reduction in sentence and received a modification of seven years, with six years and six months suspended. While serving his federal sentence, appellant violated his probation, and so his state sentence modification was revoked, and appellant was then required to serve one year and six months on the state charge with the remaining five years to run concurrent with his federal sentence.
On November 2, 2011, the day before his scheduled release from federal prison, appellant petitioned the Circuit Court of Henry County with a motion to suspend or modify the remaining active state sentence pursuant to Virginia Code §19.2-303. This portion of the code provides that, if a person has been sentenced for a felony but hasn’t been transferred to the Department of Corrections (DOC), then the court which heard the case may suspend or modify the unserved portion of the sentence, provided that it is compatible with the public interest, there are circumstances in mitigation of the offense, and the defendant has not yet been transferred to DOC. On November 2, the circuit court granted a suspension pending a full evidentiary hearing. On November 3, 2011, appellant was transferred to DOC.
At a hearing on November 17, 2011, appellant argued that as of November 3, the circuit court had lost jurisdiction due to his transfer, and so the suspension on November 2 was indefinite. The circuit court disagreed and issued its order from the bench upholding the sentence, but never filed the order in writing. Upon a motion to reconsider on May 1, 2012, the circuit court determined that the order on November 2 gave the court jurisdiction to oversee the case to its conclusion, and upheld its prior ruling. On appeal, appellant argued that the circuit erred in finding that it had jurisdiction over the case. Further, appellant argued that the circuit court erred in failing to grant his motion for suspension or modification of remaining sentence pursuant to Virginia Code §19.2-303.
The Virginia Court of Appeals cited Virginia Rule 1:1 that all final orders, judgments, and decrees remain under the jurisdiction of the circuit court for twenty-one days after the date of entry or the court loses jurisdiction, unless an exception applies. Virginia Code §19.2-303 is such an exception, as it allows the court to maintain jurisdiction to consider modification of a sentence, so long as the defendant has not yet been transferred to DOC at the time of the hearing. The November 17, 2011 ruling was not final, as the court did not issue a written order, and, as the Virginia Court of Appeals pointed out, the court only speaks through writing. As such, because the appellant was transferred to DOC on November 3, 2011, the circuit court lacked jurisdiction, and the ruling on May 1, 2012 was void.
The final order was in fact issued on May 5, 2006, as it was the original order in response to appellant’s violation of probation while serving his federal sentence, causing the court to require him to serve one year and six months. Though more than twenty-one days had passed, per Virginia Rule 1:1, Virginia Code §19.2-303 gave the court jurisdiction to review the motion and modify the sentence on November 2, 2011. Despite having jurisdiction, the statute requires further fact-finding by the court. Specifically, the court must determine that modification or suspension of a sentence is compatible with the public interest and that there are circumstances in mitigation of the offense. On November 2 no evidence was presented, but rather a suspension was granted pending a later evidentiary hearing.
The Virginia Court of Appeals held that the Circuit Court of Hendry County erred in suspending the sentence because it did not make the requisite findings. Further, once appellant had been transferred to DOC, the court lost the jurisdiction to hold any hearing on the motion. Thus, the order on November 2 was rendered void by operation of the law. As such, the final order from May 9, 2006 was still in effect, and appellant was required to serve one year and six months of his sentence. Because both the November 2 and May 1 orders of the circuit court were void, the Virginia Court of Appeals declined to reach appellant’s second argument.