THE CIRCUIT COURT OF THE CITY OF SUFFOLK Carl E. Eason, Jr.,
E. Harris, Senior Trial Attorney (Office of Public Defender,
on briefs), for appellant.
Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Beales, Huff and Athey Argued at Norfolk,
RANDOLPH A. BEALES JUDGE.
case concerns the question of when the period of suspension
of a suspended sentence begins to run. In January 2014,
appellant Gerard Lamontese Lee was sentenced to multiple
terms of incarceration with a portion of those sentences
suspended for a period of three years. In December 2018, the
trial court revoked the suspensions and reimposed a portion
of the original sentences to be served. On appeal, Lee argues
that the period of suspension of a suspended sentence must
begin running upon the trial court's pronouncement of the
means of sentencing orders entered on January 27, 2014, Lee
was sentenced for several crimes for which he had been
convicted. For grand larceny, he was sentenced to four years
of incarceration, with two years and six months suspended.
For felony failure to appear, he was sentenced to one year of
incarceration, with nine months suspended. Both sentencing
orders included the following language:
The Court SUSPENDS [the suspended portion of the sentence]
for a period of THREE (3) YEARS, upon the following
Good Behavior. The defendant shall be of good behavior for a
period of THREE (3) YEARS from the defendant's release
Supervised Probation. The defendant is placed on probation on
his release from incarceration, under the supervision of a
Probation Officer for a period of THREE (3) YEARS, or unless
sooner released by the court or by the probation officer.
released from incarceration on or about April 12, 2016. On
September 11, 2017, the trial court issued capiases to show
cause why Lee's suspended sentences should not be revoked
for failure to comply with the terms and conditions of his
probation. Lee made a motion to dismiss the probation
violation charges against him, arguing that "the alleged
misbehavior in this case . . . all occurred after
Defendant's period of suspension expired." On
December 10, 2018, the trial court denied Lee's motion to
dismiss. The Commonwealth made proffers of evidence of
numerous violations of probation including, among other
things, failure to turn himself in because of an arrest
warrant in June 2017; April 26, 2018 convictions for traffic
violations that occurred in February 2018; and July 23, 2018
convictions for felonious eluding police and child abuse. The
trial court found that by the new convictions, Lee had
violated the condition of good behavior in his suspended
orders entered December 11, 2018, the trial court revoked and
reimposed Lee's suspended sentences - two years and six
months (with two years re-suspended) for Lee's grand
larceny sentence, and nine months for Lee's failure to
appeal, Lee, relying on Green v. Commonwealth, 69
Va.App. 99 (2018), argues that since "a sentence is
suspended 'from the moment following its pronouncement,
'" id. at 104 (quoting Coffey v.
Commonwealth, 209 Va. 760, 763 (1969)), a period of
suspension must also start at the pronouncement of the
sentence. He also argues that certain language from
Green provides that there is no tolling provision
within Code § 19.2-306 to toll the period of suspension.
Based on those premises, Lee further argues that since the
original sentencing orders were entered in January 2014, the
three-year period of suspension expired in January 2017, and
consequently "the court was ...