section 19.2-306.1 technical violation in Virginia

2025As explained in Delaune and reiterated in Watts, “the sentencing limits for first and second technical probation violations apply if the violation is based on conduct defined as a ‘technical violation’ in the ten technical violations enumerated in Code § 19.2-306.1(A).” Id. at 458 (citing Delaune, 76 Va. App. at 382-83).

2025“In order for the violation of ‘another condition’ to fall outside of the sentencing limitations that apply to technical violations under Code § 19.2-306.1, the condition at issue must relate to conduct that is wholly independent of the technical violations listed in Code § 19.2-306.1(A).” Delaune, 302 Va. at 657 n.3 (emphasis added).

2024On appellate review of the circuit court’s revocation of a defendant’s probation and suspended sentence, “[t]he evidence is considered in the light most favorable to the Commonwealth, as the prevailing party below.” Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013). “[T]he trial court’s ‘findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion.’” Id. (quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)).

2023ANALYSIS Miller argues that the trial court erred in three ways: by refusing to find that her use of a controlled substance was a technical violation under Code § 19.2-306.1, by abusing its discretion in sentencing her to 364 days of active jail time, and by finding that Miller had violated a special condition of her robbery probation.3 “In revocation appeals, the trial court’s ‘findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion.’” Green v. Commonwealth, 75 Va. App. 69 , 76 (2022) (quoting Jacobs, 61 Va. App. at 535 ). “[B]y definition, a

2024The circuit court erred in ruling that its oral ruling at Watts’s first revocation hearing imposed gang-related probation conditions on Watts. “[I]t is the firmly established law of this Commonwealth that a trial court speaks only through its written orders.” Walton v. Commonwealth, 256 Va. 85, 94 (1998) (quoting Davis v. Mullins, 251 Va. 141, 148 (1996) (applying the principle in a capital murder case in which the trial court’s statement from the bench conflicted with the sentencing order)).

2024The circuit court erred in ruling that its oral ruling at Watts’s first revocation hearing imposed gang-related probation conditions on Watts. “[I]t is the firmly established law of this Commonwealth that a trial court speaks only through its written orders.” Walton v. Commonwealth, 256 Va. 85, 94 (1998) (quoting Davis v. Mullins, 251 Va. 141, 148 (1996) (applying the principle in a capital murder case in which the trial court’s statement from the bench conflicted with the sentencing order)).

2024The circuit court erred in ruling that its oral ruling at Watts’s first revocation hearing imposed gang-related probation conditions on Watts. “[I]t is the firmly established law of this Commonwealth that a trial court speaks only through its written orders.” Walton v. Commonwealth, 256 Va. 85, 94 (1998) (quoting Davis v. Mullins, 251 Va. 141, 148 (1996) (applying the principle in a capital murder case in which the trial court’s statement from the bench conflicted with the sentencing order)).

2024The circuit court erred in ruling that its oral ruling at Watts’s first revocation hearing imposed gang-related probation conditions on Watts. “[I]t is the firmly established law of this Commonwealth that a trial court speaks only through its written orders.” Walton v. Commonwealth, 256 Va. 85, 94 (1998) (quoting Davis v. Mullins, 251 Va. 141, 148 (1996) (applying the principle in a capital murder case in which the trial court’s statement from the bench conflicted with the sentencing order)).

2024On appellate review of the circuit court’s revocation of a defendant’s probation and suspended sentence, “[t]he evidence is considered in the light most favorable to the Commonwealth, as the prevailing party below.” Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013). “[T]he trial court’s ‘findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion.’” Id. (quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)).

2024On appellate review of the circuit court’s revocation of a defendant’s probation and suspended sentence, “[t]he evidence is considered in the light most favorable to the Commonwealth, as the prevailing party below.” Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013). “[T]he trial court’s ‘findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion.’” Id. (quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)).

2024When a probationer fails to comply with a court-ordered probation condition to do or refrain from doing specified conduct that “does not fall within any of the ten enumerated technical violations under Code § 19.2-306.1(A),” the violation conduct is a “failure to follow the instructions of the court.” See Burford v. Commonwealth, 78 Va. App. 170 , 183-84 (2023) (emphases added) (holding that a probationer’s failure to complete a recommended psychosexual evaluation was a non-technical violation under Code § 19.2-306.1 because the recommendation was tied to a direct court order requiring him to

2024When a probationer fails to comply with a court-ordered probation condition to do or refrain from doing specified conduct that “does not fall within any of the ten enumerated technical violations under Code § 19.2-306.1(A),” the violation conduct is a “failure to follow the instructions of the court.” See Burford v. Commonwealth, 78 Va. App. 170 , 183-84 (2023) (emphasis added).

2025The meaning of a statute “is a pure question of law which we review de novo.” Heart v. Commonwealth, 75 Va. App. 453 , 460 (2022) (quoting Green v. Commonwealth, 75 Va. App. 69 , 76 (2022)). “[W]hen construing a statute, our primary objective is ‘to ascertain and give effect to legislative intent,’ as expressed in the language used in the statute.” Shifflett v. Commonwealth, 81 Va. App. 277 , 289 (2024) (en banc) (quoting Diaz-Urrutia v. Commonwealth, 77 Va. App. 182 , 190 (2023)).

2024He maintains that the active sentence imposed exceeded the circuit court’s authority under Code § 19.2-306.1 and the sentencing order therefore was void ab initio. “[I]n any case in which the court has suspended the execution or imposition of sentence, [it] may revoke the suspension of sentence for any cause the court deems sufficient that occurred at any time within the probation period[] or within the period of suspension fixed by the court.” Code § 19.2-306(A) (noting the applicability of Code § 19.2-306.2); see Heart v. Commonwealth, 75 Va. App. 453 , 472 (2022).

2025Watts, 82 Va. App. at 459; see also Delaune, 76 Va. App. at 383 (“When the violation conduct matches the conduct listed in Code § 19.2-306.1(A), it is, by definition, a ‘technical violation.’”).9 We held in Shifflett, 81 Va. App. at 295-96, that considering a violation of any condition required by a trial court and supervised by a probation officer to be a technical violation “would render Code § 19.2-306.1 meaningless” and make the statutory distinctions enacted by the legislature “superfluous.” Similarly, broadly reading the circuit court’s order in Jalal’s case as imposing court-ordered spe

2025A court cannot circumvent the protections of technical violations as described in Code § 19.2-306.1(A) merely by labeling it a violation of some “special condition.” See id.; Shifflett v. Commonwealth, 81 Va. App. 277 , 292 n.5 (2024) (en banc) (“[A] court may articulate a specially identified condition in its sentencing order, but a violation of the condition should still be considered technical, if the conduct is enumerated in Code § 19.2-306.1(A).”).

2026This Court drew that very line in Ellis, holding that “[i]f the circuit court imposed the condition, the condition is not among those listed in Code § 19.2-306.1(A), and the probation officer merely supervised its implementation,” the violation may be treated as non-technical, but that if the probation officer instead imposed the condition without any corresponding special condition articulated by the court, the violation falls under subsection (A)(v). 84 Va. App. at 545 (alteration in original) (quoting Terry, 81 Va. App. at 249).

2025We consider “two questions when deciding whether to apply the ends of justice exception: ‘(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends of justice provision would result in a grave injustice.’” Commonwealth v. Bass, 292 Va. 19, 27 (2016) (quoting Gheorghiu, 280 Va. at 689 ). -5- Turning to the first question, appellant contends that because this is his third probation violation, the trial court could only sentence him to more than 14 days of active incarceration if both his prior violations were also technical, which was not the case be

2025Watts, 82 Va. App. at 459; see also Delaune, 76 Va. App. at 383 (“When the violation conduct matches the conduct listed in Code § 19.2-306.1(A), it is, by definition, a ‘technical violation.’”).9 We held in Shifflett, 81 Va. App. at 295-96, that considering a violation of any condition required by a trial court and supervised by a probation officer to be a technical violation “would render Code § 19.2-306.1 meaningless” and make the statutory distinctions enacted by the legislature “superfluous.” Similarly, broadly reading the circuit court’s order in Jalal’s case as imposing court-ordered spe

2024Id. at *24-25 (Athey, J., concurring). 5 Spencer, 523 U.S. at 17 (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 481 (1990)).

2023ANALYSIS Miller argues that the trial court erred in three ways: by refusing to find that her use of a controlled substance was a technical violation under Code § 19.2-306.1, by abusing its discretion in sentencing her to 364 days of active jail time, and by finding that Miller had violated a special condition of her robbery probation.3 “In revocation appeals, the trial court’s ‘findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion.’” Green v. Commonwealth, 75 Va. App. 69 , 76 (2022) (quoting Jacobs, 61 Va. App. at 535 ). “[B]y definition, a

2023See, e.g., Du v. Commonwealth, 292 Va. 555, 564 (2016).