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Date: 03-21-2023
Case Style:
Case Number: CR09000085
Judge: W. Revell Lewis, III
Court: Circuit Court, Northmpton County, Virginia
Plaintiff's Attorney: Northampton County Virginia Commonwealth Attorney's Office
Defendant's Attorney:
Description: Eastville, Virginia criminal defense lawyer represented Defendant violation of probation.
On September 29, 2009, appellant was convicted of breaking and entering and felony destruction of property; on January 29, 2010, on each conviction, he was sentenced to five years' incarceration, with five years suspended. In 2011, appellant was found in violation of his probation for failing to follow his probation officer's instructions. In 2012, he was found in violation of his probation for again failing to follow his probation officer's instructions and for marijuana use. Appellant was found in violation of his probation for a third time in 2015.[3]
On September 14, 2020, the trial court issued a capias for appellant following his probation officer's report alleging that appellant had violated his probation by: failing to report new arrests for firearm offenses and a speeding citation, possessing a controlled substance, failing to follow his probation officer's instructions, failing a drug screen, and traveling out of state without permission. The capias was executed on April 6, 2021, after appellant waived extradition from Delaware.
At the revocation hearing on August 23, 2021, appellant stipulated that he had violated his probation. Nevertheless, he asserted that his violations collectively constituted a single "technical violation" under Code § 19.2-306.1 because "[t]he statute . . . provi[ded] that multiple technical violations in the same revocation period should not be considered separate technical violations." Appellant maintained that none of his earlier probation violations could be included in the tally of his "technical violations" under Code § 19.2-306.1 because "technical violations"
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did not exist until Code § 19.2-306.1 was enacted on July 1, 2021. Thus, appellant argued that the current violations were his first "technical violations."
The Commonwealth did not dispute that Code § 19.2-306.1 applied to the revocation proceedings. Instead, it challenged appellant's argument that "technical violations" did not exist before the statute's enactment in July 2021. It presented testimony from appellant's probation officer that the term "technical violation" had been used by parole and probation as early as 2010 to refer to violations of Conditions 2 through 7 of supervised probation. Appellant's probation officer testified that, before the revocation hearing, appellant had a technical violation of "Condition 6" in 2011 and another technical violation of "Condition[s] 6 and . . . 8" in 2012. The probation officer testified that appellant had a third technical violation in 2015, but he did not specify the nature of that violation. Moreover, the probation officer testified that appellant had a "law" violation in 2015 that was not a "technical" violation. The Commonwealth argued that the term "technical violation" in Code § 19.2-306.1 was not a new legal concept, but rather "a word . . . in common usage . . . [adopted] by the legislature."
The trial court found that appellant had at least three "technical violations." It revoked the balance of appellant's suspended sentences on his convictions for breaking and entering and destruction of property.[4] This appeal followed.
Outcome: Conviction affirmed on appeal.
Plaintiff's Experts:
Defendant's Experts:
Comments: