non-technical violation in Virginia

2025These “other,” non-technical conditions imposed by the sentencing court are often called “special conditions.” Burford v. Commonwealth, 78 Va. App. 170 , 183 (2023).

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

2024Finally, the majority cites Delaune v. Commonwealth, 76 Va. App. 372 (2023), for the proposition that “[a] violation of a ‘special condition’ of probation is not necessarily a non-technical violation under Code § 19.2-306.1.” While I of course agree with this general proposition, in this particular case, Watts’s violation of the gang-related probation provisions is a special, non-technical violation because the trial court explicitly said so.

2024Finally, the majority cites Delaune v. Commonwealth, 76 Va. App. 372 (2023), for the proposition that “[a] violation of a ‘special condition’ of probation is not necessarily a non-technical violation under Code § 19.2-306.1.” While I of course agree with this general proposition, in this particular case, Watts’s violation of the gang-related probation provisions is a special, non-technical violation because the trial court explicitly said so.

2024Goss argues that the trial court erred by finding the -06 violation to be a non-technical violation and sentencing him to eight months of active incarceration. “[O]n appeal[,] the judgment of the lower court is presumed to be correct and the burden is on the appellant to present to us a sufficient record from which we can determine whether the lower court has erred in the respect complained of.” Smith v. Commonwealth, 16 Va. App. 630, 635 (1993) (quoting Justis v. Young, 202 Va. 631, 632 (1961)).

2024Goss argues that the trial court erred by finding the -06 violation to be a non-technical violation and sentencing him to eight months of active incarceration. “[O]n appeal[,] the judgment of the lower court is presumed to be correct and the burden is on the appellant to present to us a sufficient record from which we can determine whether the lower court has erred in the respect complained of.” Smith v. Commonwealth, 16 Va. App. 630, 635 (1993) (quoting Justis v. Young, 202 Va. 631, 632 (1961)).

2024“Rule 5A:8 provides that the transcript of any proceeding is a part of the record when it is filed in the office of the clerk of the trial court within 60 days after entry of the final judgment.” Bay v. Commonwealth, 60 Va. App. 520, 528 (2012).

2024“Rule 5A:8 provides that the transcript of any proceeding is a part of the record when it is filed in the office of the clerk of the trial court within 60 days after entry of the final judgment.” Bay v. Commonwealth, 60 Va. App. 520, 528 (2012).

2024Goss argues that the trial court erred by finding the -06 violation to be a non-technical violation and sentencing him to eight months of active incarceration. “[O]n appeal[,] the judgment of the lower court is presumed to be correct and the burden is on the appellant to present to us a sufficient record from which we can determine whether the lower court has erred in the respect complained of.” Smith v. Commonwealth, 16 Va. App. 630, 635 (1993) (quoting Justis v. Young, 202 Va. 631, 632 (1961)).

2024Goss argues that the trial court erred by finding the -06 violation to be a non-technical violation and sentencing him to eight months of active incarceration. “[O]n appeal[,] the judgment of the lower court is presumed to be correct and the burden is on the appellant to present to us a sufficient record from which we can determine whether the lower court has erred in the respect complained of.” Smith v. Commonwealth, 16 Va. App. 630, 635 (1993) (quoting Justis v. Young, 202 Va. 631, 632 (1961)).

2025As explained below, we conclude that the first assignment of error has merit and, therefore, we need not address the second.4 “The ‘revocation of a suspended sentence lies in the discretion of the trial court and that . . . discretion is quite broad.’” Clarke v. Commonwealth, 60 Va. App. 190, 195 (2012) (alteration in original) (quoting Peyton v. Commonwealth, 268 Va. 503, 508 (2004)).

2025As explained below, we conclude that the first assignment of error has merit and, therefore, we need not address the second.4 “The ‘revocation of a suspended sentence lies in the discretion of the trial court and that . . . discretion is quite broad.’” Clarke v. Commonwealth, 60 Va. App. 190, 195 (2012) (alteration in original) (quoting Peyton v. Commonwealth, 268 Va. 503, 508 (2004)).

2025By this statutory scheme, the legislature made clear that courts lack authority to impose active time for a first technical violation. -9- Before Matheson could be adjudicated in violation of probation, she was entitled to “written notice of the claimed violations.” Price v. Commonwealth, 51 Va. App. 443, 446-47 (2008) (emphasis added) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)).

2025By this statutory scheme, the legislature made clear that courts lack authority to impose active time for a first technical violation. -9- Before Matheson could be adjudicated in violation of probation, she was entitled to “written notice of the claimed violations.” Price v. Commonwealth, 51 Va. App. 443, 446-47 (2008) (emphasis added) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)).

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)).

2023Under the invited error doctrine, “[w]e will not ‘notice error which has been invited by the [appellant].’” Muhammad v. Commonwealth, 269 Va. 451, 525 (2005) (quoting Saunders v. Commonwealth, 211 Va. 399, 400 (1970)).

2023Under the invited error doctrine, “[w]e will not ‘notice error which has been invited by the [appellant].’” Muhammad v. Commonwealth, 269 Va. 451, 525 (2005) (quoting Saunders v. Commonwealth, 211 Va. 399, 400 (1970)).