Marshall v. Commonwealth, 116 S.E.2d 270 (Va. 1960). · Go Syfert
Marshall v. Commonwealth, 116 S.E.2d 270 (Va. 1960). Cases Citing This Book View Copy Cite
223 citation events (115 in the last 25 years) across 19 distinct courts.
Strongest positive: Logan James Lentz v. Commonwealth of Virginia (vactapp, 2025-12-09)
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Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (rule) Logan James Lentz v. Commonwealth of Virginia
Va. Ct. App. · 2025 · confidence medium
Under Code § 19.2-306(C), “[i]f the court, after hearing, finds good cause to believe that the defendant has violated the terms of suspension, then the court may revoke the suspension and impose a sentence in accordance with the provisions of § 19.2-306.1.”4 The Supreme Court of Virginia has explained that “[t]he cause deemed . . . sufficient for revoking a suspension must be a reasonable cause.” Carroll v. Commonwealth, 280 Va. 641, 654 (2010) (alterations in original) (quoting Hamilton, 217 Va. at 326-27 ); Marshall v. Commonwealth, 202 Va. 217, 220 (1960).
discussed Cited as authority (rule) Reginald James Hall v. Commonwealth of Virginia
Va. Ct. App. · 2025 · confidence medium
“The abuse of discretion standard draws a line—or rather, demarcates a region—between the unsupportable and the merely mistaken, between the legal error . . . that a reviewing court may always correct, and the simple disagreement that, on this standard, it may not.” Jefferson v. Commonwealth, 298 Va. 1 , 10-11 (2019) (alteration in original) (quoting Reyes v. Commonwealth, 297 Va. 133 , 139 (2019)). “[T]he abuse of discretion standard requires a reviewing court to show enough deference to a primary decisionmaker’s judgment that the [reviewing] court does not reverse -4- merely beca…
discussed Cited as authority (rule) Jamarr Andre Graves v. Commonwealth of Virginia
Va. Ct. App. · 2025 · confidence medium
The court found that Graves’s conduct towards Winstanley violated the good behavior conditions of his probation and provided a “reasonable cause for revocation.” Marshall v. Commonwealth, 202 Va. 217, 220 (1960).
discussed Cited as authority (rule) Coley Wesley Watkins v. Commonwealth of Virginia
Va. Ct. App. · 2024 · confidence medium
“The sufficiency of the evidence to sustain an order of revocation ‘is a matter within the sound discretion of the trial court.’” Marshall v. Commonwealth, 202 Va. 217, 220 (1960) (quoting Slayton v. Commonwealth, 185 Va. 357, 367 (1946)).
discussed Cited as authority (rule) Marquis Jerome Fore v. Commonwealth of Virginia
Va. Ct. App. · 2024 · confidence medium
ANALYSIS A. Standard of Review “[T]he issue on review of a revocation is ‘simply whether there has been an abuse of discretion.’” Connelly v. Commonwealth, 14 Va. App. 888, 890 (1992) (quoting Marshall v. Commonwealth, 202 Va. 217, 221 (1960)).
cited Cited as authority (rule) Ashlee Nicole Phoenix v. Commonwealth of Virginia
Va. Ct. App. · 2024 · confidence medium
But “[t]he cause deemed by the court to be sufficient for revoking a suspension must be a reasonable cause.” Marshall v. Commonwealth, 202 Va. 217, 220 (1960).
cited Cited as authority (rule) Robert Leonard Huffman v. Commonwealth of Virginia
Va. Ct. App. · 2023 · confidence medium
Nevertheless, “[t]he cause deemed by the court to be sufficient for revoking a suspension must be a reasonable cause.” Marshall v. Commonwealth, 202 Va. 217, 220 (1960).
cited Cited as authority (rule) Orlando Mitchell Hill v. Commonwealth of Virginia
Va. Ct. App. · 2023 · confidence medium
Nevertheless, “[t]he cause deemed by the court to be sufficient for revoking a suspension must be a reasonable cause.” Marshall v. Commonwealth, 202 Va. 217, 220 (1960).
cited Cited as authority (rule) Perry Allen Miller v. Commonwealth of Virginia
Va. Ct. App. · 2023 · confidence medium
Nevertheless, “[t]he cause deemed by the court to be sufficient for revoking a suspension must be a reasonable cause.” Marshall v. Commonwealth, 202 Va. 217, 220 (1960).
cited Cited as authority (rule) Jason Lamont Burford v. Commonwealth of Virginia
Va. Ct. App. · 2023 · confidence medium
Thus, “proof beyond a reasonable doubt of [a probation violation] is not required.” Marshall v. Commonwealth, 202 Va. 217, 221 (1960).
discussed Cited as authority (rule) Octavian Javon Holcomb v. Commonwealth of Virginia
Va. Ct. App. · 2023 · confidence medium
“The legislature did not enact statutes authorizing suspension of all or a portion of a sentence ‘without regard to the subsequent behavior of the defendant.’” Burnham v. Commonwealth, 298 Va. 109 , 115 (2019) (quoting Marshall v. Commonwealth, 202 Va. 217, 220 (1960)).
cited Cited as authority (rule) Marco Antrione Cherry, Jr. v. Commonwealth of Virginia
Va. Ct. App. · 2023 · confidence medium
Nevertheless, “[t]he cause deemed by -4- the court to be sufficient for revoking a suspension must be a reasonable cause.” Marshall v. Commonwealth, 202 Va. 217, 220 (1960).
discussed Cited as authority (rule) Edgar Alexander Diaz-Urrutia v. Commonwealth of Virginia
Va. Ct. App. · 2023 · confidence medium
In Marshall v. Commonwealth, 202 Va. 217, 220 (1960), the Virginia Supreme Court held that “‘good behavior’ qualifies the power to suspend . . . and that good behavior is a condition of every suspension, with or without probation, whether expressly so stated or not.” In Marshall, the Court held that the “failure of a defendant to be of good behavior, amounting to substantial misconduct, during the period of suspension would provide reasonable cause for the revocation of the [sentence].” Id. at 220-21 .
discussed Cited as authority (rule) Hill v. Commonwealth
Va. · 2022 · confidence medium
An order suspending a sentence, for example, implicitly conditions the suspension on the defendant’s future good behavior, “whether expressly so stated or not.” Burnham v. Commonwealth, 298 Va. 109 , 115 (2019) (quoting Marshall v. Commonwealth, 202 Va. 217, 220 (1960)).
discussed Cited as authority (rule) Jessica Ann McCauley v. Commonwealth of Virginia
Va. Ct. App. · 2022 · confidence medium
A revocation of a suspended sentence must be based on reasonable cause, Marshall v. Commonwealth, 202 Va. 217, 220 (1960), but a court has broad discretion in making such a determination, Hamilton v. Commonwealth, 217 Va. 325, 326 (1976).
cited Cited as authority (rule) Deja Lachee McNair v. Commonwealth of Virginia
Va. Ct. App. · 2020 · confidence medium
Nevertheless, “[t]he cause deemed by the court to be sufficient for revoking a suspension must be a reasonable cause.” Marshall v. -4- Commonwealth, 202 Va. 217, 220 (1960).
cited Cited as authority (rule) Jennings v. Winston
W.D. Va. · 2019 · confidence medium
Marshall v. Commonwealth, 116 S.E.2d 270, 274 (Va. 1960).
discussed Cited as authority (rule) Burnham v. Commonwealth (2×)
Va. · 2019 · confidence medium
The legislature did not enact statutes authorizing suspension of all or a portion of a sentence “without regard to the subsequent behavior of the defendant.” Marshall v. Commonwealth, 202 Va. 217, 220 (1960).
discussed Cited as authority (rule) Burnham v. Commonwealth (2×)
Va. · 2019 · confidence medium
The legislature did not enact statutes authorizing suspension of all or a portion of a sentence “without regard to the subsequent behavior of the defendant.” Marshall v. Commonwealth, 202 Va. 217, 220 (1960).
discussed Cited as authority (rule) Sonny James Kelly v. Commonwealth of Virginia
Va. Ct. App. · 2019 · confidence medium
While acknowledging that he did not raise this issue below, he seeks review under the “ends of justice” exception to Rule 5A:18.3 1 See Marshall v. Commonwealth, 202 Va. 217, 220 (1960) (holding that “good behavior is a condition of every suspension, with or without probation, whether expressly so stated or not”). 2 Appellant was sentenced for all of the offenses at the same hearing.
discussed Cited as authority (rule) Dorothy Elizabeth Cilwa v. Commonwealth of Virginia
Va. Ct. App. · 2018 · confidence medium
See Berry v. Commonwealth, 200 Va. 495, 498 , 106 S.E.2d 590, 593 (1959) (probation); Richardson v. Commonwealth, 131 Va. 802, 810 , 109 S.E. 460, 462 (1921) (suspension), quoted with approval in Marshall v. Commonwealth, 202 Va. 217, 219 , 116 S.E.2d 270, 273 (1960).
discussed Cited as authority (rule) Rashid Hakim Holman v. Commonwealth of Virginia
Va. Ct. App. · 2018 · confidence medium
In revocation proceedings, “proof beyond a reasonable doubt is not required.” Marshall v. Commonwealth, 202 Va. 217, 221 , 116 S.E.2d 270, 274 (1960) (citing Slayton v. Commonwealth, 185 Va. 357, 366 , 38 S.E.2d 479, 483 (1946)).
discussed Cited as authority (rule) Keith Jerome Anderson v. Commonwealth of Virginia
Va. Ct. App. · 2016 · confidence medium
In Marshall v. Commonwealth, 202 Va. 217, 220-21 , 116 S.E.2d 270, 273-74 (1960) (decided under Code § 53-275, as amended by Acts 1958, ch. 468, p. 600, a predecessor to current Code § 19.2-306), the Supreme Court observed that “the failure of a defendant to be of good behavior, amounting to substantial misconduct, during the period of the suspension would provide reasonable cause for revocation.” However, revoking a suspended sentence “should not, under any circumstances, be arbitrary.” Griffin v. Cunningham, 205 Va. 349, 354 , 136 S.E.2d 840, 844 (1964).
discussed Cited as authority (rule) Bernard Vernon West v. Commonwealth of Virginia
Va. Ct. App. · 2015 · confidence medium
Finally, when coupled with a suspended sentence, probation represents “an act of grace,” Price v. Commonwealth, 51 Va. App. 443, 448 , 658 S.E.2d 700, 703 (2008) (internal quotation marks and citation omitted), which allows the criminal defendant the opportunity to “repent and reform,” Marshall v. Commonwealth, 202 Va. 217, 219 , 116 S.E.2d 270, 273 (1960) (internal quotation marks and citation omitted).
cited Cited as authority (rule) Lee Alden Mooney v. Commonwealth of Virginia
Va. Ct. App. · 2013 · confidence medium
To revoke a suspended sentence or probation, “proof beyond a reasonable doubt is not required.” Marshall v. Commonwealth, 202 Va. 217, 221 , 116 S.E.2d 270, 274 (1960).
discussed Cited as authority (rule) Joseph Wiley v. Commonwealth of Virginia
Va. Ct. App. · 2013 · confidence medium
In doing so, the trial court “does not make a contract with the accused, but only extends to him the opportunity which the State affords him to repent and reform.” Marshall v. Commonwealth, 202 Va. 217, 219 , 116 S.E.2d 270, 273 (1960) (quoting Richardson v. Commonwealth, 131 Va. 802, 810 , 109 S.E. 460, 462 (1921)).
discussed Cited as authority (rule) Gary Don Castle, Jr. v. Commonwealth of Virginia
Va. Ct. App. · 2011 · confidence medium
In revocation proceedings, “proof beyond a reasonable doubt is not required,” Marshall v. Commonwealth, 202 Va. 217 , 3 “This principle applies not merely to the literal holding of the case, but also to its ratio decidendi — the essential rationale in the case that determines the judgment.” Williams v. Commonwealth, 50 Va. App. 337 , 341 n.1, 649 S.E.2d 717 , 718 n.1 (2007) (quoting Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73-74 , 577 S.E.2d 538, 540 (2003)). -5- 221, 116 S.E.2d 270, 274 (1960) (citing Slayton v. Commonwealth, 185 Va. 357, 366 , 38 S.E.2d 479, 483 (1946)), and �…
discussed Cited as authority (rule) Tony Lee Myers v. Commonwealth of Virginia
Va. Ct. App. · 2009 · confidence medium
Its finding of fact and judgment thereon are reversible only upon a clear showing of abuse of such discretion.” The discretion required is a judicial discretion, the exercise of which “implies conscientious judgment, not arbitrary action.” Marshall v. Commonwealth, 202 Va. 217, 220 , 116 S.E.2d 270, 273 (1960) (quoting Slayton v. Commonwealth, 185 Va. 357, 367 , 38 S.E.2d 479, 484 (1946)).
cited Cited as authority (rule) Commonwealth v. Flinchum
Salem Cir. Ct. · 2009 · confidence medium
“Good behavior is a condition of every suspension, with or without probation, whether expressly so stated or not” Marshall v. Commonwealth, 202 Va. 217, 220 (1960).
discussed Cited as authority (rule) Carroll v. Commonwealth (2×)
Va. Ct. App. · 2009 · confidence medium
The discretion required is a judicial discretion, the exercise of which implies conscientious judgment, not arbitrary action.'" Peyton, 268 Va. at 508-09 , 604 S.E.2d at 19 (quoting Marshall v. Commonwealth, 202 Va. 217, 220 , 116 S.E.2d 270, 273 (1960)).
discussed Cited as authority (rule) White v. Commonwealth
Va. Ct. App. · 2007 · confidence medium
In Coffey v. Commonwealth, 209 Va. 760, 762-63 , 167 S.E.2d 343, 345 (1969), the Supreme Court discussed whether an order that continued the suspension of a prison sentence also implicitly ordered that the defendant remain of “good behavior.” The Court noted: In Marshall v. Commonwealth, 202 Va. 217, 219-221 , 116 S.E.2d 270, 273-274 (1960), sentences imposed upon the accused were suspended, but there was no provision in the sentencing court’s order that the suspensions were on condition of good behavior.
discussed Cited as authority (rule) Alvin Parkins, s/k/a Alvin Parkins, III v. Commonwealth
Va. Ct. App. · 2006 · confidence medium
Although we granted an appeal on this issue, as well, appellant states on brief that the Department of Corrections has since awarded him credit for this time and, as a “A trial court has broad discretion to revoke a suspended sentence and probation based on Code § 19.2-306.” Davis v. Commonwealth, 12 Va. App. 81, 86 , 402 S.E.2d 684, 687 (1991). “[C]onviction of a subsequent offense . . . is [not] required to justify a revocation of suspension due to misconduct. ‘[T]he failure of a defendant to be of good behavior, amounting to substantial misconduct, . . . provide[s] reasonable cause…
discussed Cited as authority (rule) Herbert Ray Palmer v. Commonwealth
Va. Ct. App. · 2006 · confidence medium
The Supreme Court of Virginia has interpreted this language to mean a “reasonable cause,” Slayton v. Commonwealth, 185 Va. 357, 367 , 38 S.E.2d 479, 484 (1946), and to permit “revo[cation of] a defendant’s suspended sentence for substantial misconduct not involving violation of law,” Holden v. Commonwealth, 27 Va. App. 38, 44 , 497 S.E.2d 492, 495 (1998) (citing Marshall v. Commonwealth, 202 Va. 217, 220-21 , 116 S.E.2d 270, 273-74 (1960)). “[T]he condition of good behavior is implicit in every order suspending sentence[;] is a condition of every such suspension, whether probation …
discussed Cited as authority (rule) Jerome Artis, Jr. v. Commonwealth
Va. Ct. App. · 2006 · confidence medium
“Good behavior is not limited to an avoidance of criminal activity.” Holden v. Commonwealth, 26 Va. App. 403, 409 , 494 S.E.2d 892, 895 (1998). “[I]niquitous, but not necessarily illegal, conduct [also] justifies a court’s revocation of a suspended sentence.” Holden v. Commonwealth, 27 Va. App. 38, 42 , 497 S.E.2d 492, 494 (1998) (citing Bryce v. Commonwealth, 13 Va. App. 589, 591 , 414 S.E.2d 417, 418 (1992)). “[A] court may revoke a defendant’s suspended sentence for substantial misconduct not involving violation of law.” Id. at 44, 497 S.E.2d at 495 (citing Marshall v. Commo…
discussed Cited as authority (rule) Joe Earl Harrison v. Commonwealth
Va. Ct. App. · 2005 · confidence medium
The Court “observed that the condition of good behavior is implicit in every order suspending sentence, is a condition of every such suspension, whether probation is provided for or not . . . . ” Id. at 146, 607 S.E.2d at 721 (citing Marshall v. Commonwealth, 202 Va. 217, 219-21 , 116 S.E.2d 270, 273-74 (1960)). -3- Appellant was released from the Department of Corrections in March 2003.
discussed Cited as authority (rule) Juleian Cappell v. Commonwealth
Va. Ct. App. · 2003 · confidence medium
Its finding of fact and judgment thereon are reversible only upon a clear showing of abuse of discretion." The discretion required is a judicial discretion, the exercise of which "implies conscientious judgment, not arbitrary action." Marshall v. Commonwealth, 202 Va. 217, 220 , 116 S.E.2d 270, 273 (1960) (quoting Slayton v. Commonwealth, 185 Va. 357, 367 , 38 S.E.2d 479, 484 (1946)).
discussed Cited as authority (rule) Allison v. Commonwealth
Va. Ct. App. · 2003 · confidence medium
Its findings of fact and judgment thereon are reversible only upon a clear showing of abuse of discretion.’ The discretion required is a judicial discretion, the exercise of which ‘implies conscientious judgment, not arbitrary action.’ ” Hamilton v. Commonwealth, 217 Va. 325, 327 , 228 S.E.2d 555, 556 (1976) (quoting Marshall v. Commonwealth, 202 Va. 217, 220 , 116 S.E.2d 270, 273 (1960) (quoting Slayton v. Commonwealth, 185 Va. 357, 367 , 38 S.E.2d 479, 484 (1946))).
discussed Cited as authority (rule) McFarland v. Commonwealth
Va. Ct. App. · 2002 · confidence medium
Because being of good behavior was an express condition of the suspension of appellant’s sentence, we need not examine appellant’s challenge to the ongoing validity of the assertion that “ ‘good behavior is a condition of every suspension, with or without probation, whether expressly so stated or not.’ ” Resio v. Commonwealth, 29 Va.App. 616, 622 , 513 S.E.2d 892, 895 (1999) (quoting Marshall v. Commonwealth, 202 Va. 217, 220 , 116 S.E.2d 270, 273 (1960)) (decided under former Code § 53-272).
discussed Cited as authority (rule) Jeffrey Scott Kibler v. Commonwealth
Va. Ct. App. · 2002 · confidence medium
The Virginia Supreme Court has repeatedly confirmed the breadth of this discretion lodged with the trial court. "[A] revocation of a suspended sentence lies in the discretion of the trial court and that . . . discretion is quite broad." Hamilton v. Commonwealth, 217 Va. 325, 326 , 228 S.E.2d 555, 556 (1976) (citing Slayton v. Commonwealth, 185 Va. 357 , 38 S.E.2d 479 (1946)). "[T]he issue on review of a revocation 'is simply whether there has been an abuse of discretion.'" Connelly v. Commonwealth, 14 Va. App. 888, 890 , 420 S.E.2d 244, 245 (1992) (quoting Marshall v. Commonwealth, 202 Va. 217…
discussed Cited as authority (rule) Alsberry v. Commonwealth
Va. Ct. App. · 2002 · confidence medium
Its findings of fact and judgment thereon are reversible only upon a clear showing of abuse of discretion.’ The discretion required is a judicial discretion, the exercise of which ‘implies conscientious judgment, not arbitrary action.’ ” Hamilton v. Commonwealth, 217 Va. 325, 327 , 228 S.E.2d 555, 556 (1976) (quoting Marshall v. Commonwealth, 202 Va. 217, 220 , 116 S.E.2d 270, 273 (1960) (quoting Slayton v. Commonwealth, 185 Va. 357, 367 , 38 S.E.2d 479, 484 (1946))).
discussed Cited as authority (rule) Keith Williams, s/k/a Keith N. Williams v. CW
Va. Ct. App. · 2002 · confidence medium
Its finding of fact and judgment thereon are reversible only upon a clear showing of abuse of discretion.' The discretion required is a judicial discretion, the exercise of which 'implies conscientious judgment, not arbitrary action.'" Hamilton v. Commonwealth, 217 Va. 325, 327 , 228 S.E.2d 555, 556 (1976) (quoting Marshall v. Commonwealth, 202 Va. 217, 220 , 116 S.E.2d 270, 273 (1960) (quoting Slayton v. Commonwealth, 185 Va. 357, 367 , 38 S.E.2d 479, 484 (1946))).
discussed Cited as authority (rule) Shaheem Labeeb Rasheed,a/k/a Alvin A. Barnes v. CW
Va. Ct. App. · 2002 · confidence medium
Thus, "the issue on review of a revocation is 'simply whether there has been an abuse of discretion.'" Connelly v. Commonwealth, 14 Va. App. 888, 890 , 420 S.E.2d 244, 245 (1992) (quoting Marshall v. Commonwealth, 202 Va. 217, 221 , 116 S.E.2d 270, 274 (1960).
cited Cited as authority (rule) Pannell v. Commonwealth
Va. Ct. App. · 2001 · confidence medium
Marshall v. Commonwealth, 202 Va. 217, 220-21 , 116 S.E.2d 270, 273-74 (1960).
cited Cited as authority (rule) United States v. Johnnie C. Gore
4th Cir. · 1999 · confidence medium
The condition of good behavior "constitutes the origin and pur- pose of the suspension and probation statutes." Marshall v. Commonwealth, 116 S.E.2d 270, 273 (Va. 1960).
discussed Cited as authority (rule) Holden v. Commonwealth
Va. Ct. App. · 1998 · confidence medium
“Therefore, the issue on review of a revocation is ‘simply whether there has been an abuse of discretion.’ ” Connelly v. Commonwealth, 14 Va.App. 888, 890 , 420 S.E.2d 244, 245 (1992) (quoting Marshall v. Commonwealth, 202 Va. 217, 221 , 116 S.E.2d 270, 274 (1960)). “[T]he power of the courts to revoke suspensions and probation for breach of conditions must not be restricted beyond the statutory limitations.” Grant v. Commonwealth, 223 Va. 680, 684 , 292 S.E.2d *42 348, 350 (1982) (citing Dyke v. Commonwealth, 193 Va. 478, 484 , 69 S.E.2d 483, 487 (1952)).
discussed Cited as authority (rule) Reinemer v. Commonwealth (2×)
Va. Ct. App. · 1993 · confidence medium
When a trial , court suspends a sentence it “does not make a contract with the accused, but only extends to him the opportunity which the State affords him to repent and reform.” Marshall v. Commonwealth, 202 Va. 217, 219, 116 S.E.2d 270, 273 (1960) (decided under former Code § 53-272) (quoting Richardson v. Commonwealth, 131 Va. 802, 810 , 109 S.E. 460, 462 (1921)).
discussed Cited as authority (rule) Duff v. Commonwealth
Va. Ct. App. · 1993 · confidence medium
Its finding of fact and judgment thereon are reversible only upon a clear showing of abuse of such discretion.’ The discretion required is a judicial discretion, the exercise of which ‘implies conscientious judgment, not arbitrary action.’ ” Hamilton v. Commonwealth, 217 Va. 325, 327 , 228 S.E.2d 555, 556 (1976) (per curiam) (quoting Marshall v. Commonwealth, 202 Va. 217, 220 , 116 S.E.2d 270, 273 (1960)).
examined Cited as authority (rule) Connelly v. Commonwealth (3×) also: Cited "see"
Va. Ct. App. · 1992 · confidence medium
Probation is a disposition intended to “reform” the offender, appropriate in “mitigating circumstances” or to promote the “public interest.” Marshall v. Commonwealth, 202 Va. 217, 219 , 116 S.E.2d 270, 273 (1960); see Singleton v. Commonwealth, 11 Va. App. 575, 578 , 400 S.E.2d 205, 207 (1991).
discussed Cited as authority (rule) Patterson v. Commonwealth
Va. Ct. App. · 1991 · confidence medium
A revocation of a suspended sentence must be based on reasonable cause, Marshall v. Commonwealth, 202 Va. 217, 220 , 116 S.E.2d 270, 275 (1960), but a court has broad discretion in making such a determination, Hamilton v. Commonwealth, 217 Va. 325, 326 , 228 S.E.2d 555, 556 (1976).
discussed Cited as authority (rule) Petterson v. Com.
Va. Ct. App. · 1991 · confidence medium
A revocation of a suspended sentence must be based on reasonable cause, Marshall v. Commonwealth, 202 Va. 217, 220 , 116 S.E.2d 270, 275 (1960), but a court has broad discretion in making such a determination.
James Nelson Marshall
v.
Commonwealth of Virginia and City of Norfolk
Record 5153.
Supreme Court of Virginia.
Oct 10, 1960.
116 S.E.2d 270
Howard 1. Legum {Fine, Fine, Legum, Weinberg & Schwan, on brief), for the appellant., Reno S. Harp, 111, Assistant Attorney General and Virgil S. Gore, Jr., Assistmt City Attorney (A. S. Harrison, Jr., Attorney General; Leonard H. Davis, City Attorney, on brief), for the appellees.
Buchanan.
Cited by 97 opinions  |  Published
Buchanan, J.,

delivered the opinion of the court.

This appeal is from an order of the Corporation Court which affirmed the action of the Police Court of the City of Norfolk in revoking the suspension of four jail sentences against the appellant, James Nelson Marshall, who will be referred to herein as defendant.

On August 4, 1958, in the Police Court, the defendant was found guilty of violating penal laws of the Commonwealth and of the City in four separate cases and was sentenced to thirty days in jail and a fine in each case. The jail sentences were suspended for twelve months in this language, endorsed upon each warrant with a rubber stamp: “Jail sentence suspended 12 mos. on payment of fine & cost”.

On May 26, 1959, the defendant was tried in the Corporation Court on an indictment charging him with receiving stolen goods, grand larceny and as accessory after the fact, and was found not guilty by a jury. On June 2, 1959, the defendant was brought before the Police Justice, the suspensions of his jail sentences were revoked, and he appealed to the Corporation Court, as allowed by § 53-275 of the Code. After a hearing in that court the revocation of the suspensions was affirmed, the defendant was ordered to jail to serve the jail sentences which had been suspended, and we granted him this appeal.

On the hearing in the Corporation Court the Commonwealth offered the evidence of a Norfolk police officer who introduced a written statement made by the defendant on March 8, 1959. In this statement the defendant related the part he had played in disposing of an adding machine which the officer testified had been stolen, and which was also exhibited in evidence. In substance the statement was that in a store in Norfolk defendant met one Roger (a sailor), who told him he was going back to New York that night and was running short of cash; that he had an adding machine outside in his car that he wanted to sell and asked the defendant if he knew anybody who could use it or wanted to buy it. After making one effort which failed, the defendant asked a woman who came into the store if she would be interested and told her of Roger’s hard-luck[*219] story. Roger gave defendant the keys to his car and defendant took her out and showed her the machine, which was in a pasteboard box in the back of the car. He told her she was getting a bargain because it looked brand new, and that “it may be stolen or ‘hot’ ”. She agreed to buy, paid defendant $45, he delivered the machine to her and went back into the store where he gave Roger the money and Roger gave him back $15 for making the sale.

The defendant introduced three witnesses whose testimony related primarily to defendant’s behavior and did not controvert the evidence for the Commonwealth.

The defendant now contends that the Police Court and the Corporation Court did not have jurisdiction to revoke the suspensions of the jail sentences because there was no condition of good behavior attached to the suspensions, but only that the fine and costs be paid, which had been done.

Defendant did not make that contention in the court below. He relied there on the proposition that there could be no revocation since the jury had found him not guilty of the charges on which the revocation was based. The record does not show upon what ground the police court revoked the suspensions. The presumption is that it was upon a valid finding that the defendant had in some manner violated the conditions of the suspensions. Slayton v. Commonwealth, 185 Va. 357, 369, 38 S. E. 2d 479, 485.

While the language of the suspensions does not in terms include a condition of good behavior, that condition is implicit in every such suspension and constitutes the origin and purpose of the suspension and probation statutes. The Commonwealth desires the reformation of the criminal and in furtherance of.that purpose its statutes provide for suspension and probation in cases where there are mitigating circumstances or when it is compatible with the public interest. These statutes are highly remedial and are to be liberally construed. When a trial court suspends a sentence it “does not make a contract with the accused, but only extends to him the opportunity which the State affords him to repent and reform.” Richardson v. Commonwealth, 131 Va. 802, 810-11, 109 S. E. 460, 462.

The statutes here involved are §§ 53-272 and 53-275. The first provides that “the court may suspend the execution of sentence * * * and may also place the defendant on probation under the supervision of a probation officer, during good behavior, for such time and under such conditions of probation as the court shall determine.”

[*220] Since the original statute, Acts 1918, ch. 349, p. 528, we have recognized that the power thus given is to be exercised on condition that the defendant be of good behavior and we said so in Slayton v. Commonwealth, supra, 185 Va. at 365, 38 S. E. 2d at 483; and in Dyke v. Commonwealth, 193 Va. 478, 484, and at 490 (dissenting opinion), 69 S. E. 2d 483, 486, 490. While the precise point has not previously been in issue, we now hold, in view of the purpose and history of the statute and the liberal construction to be given it, that the proper construction is that the phrase “during good behavior” qualifies the power to suspend, as well as the power to place “on probation under the supervision of a probation officer,” and that good behavior is a condition of every suspension, with or without probation, whether expressly so stated or not.

The suspension in this case is obviously badly worded. Literally it says that the jail sentence is suspended for twelve months on payment of fine and costs. Literally that means a temporary suspension of twelve months, after which the defendant would have to serve the jail sentences regardless. The legislature has provided that no court shall suspend the execution of a sentence in a criminal case except when authorized by statute. Code § 19-272. Clearly, we think, § 53-272 was not intended to authorize the suspension of sentence in any and all criminal cases without regard to the subsequent behavior of the defendant.

Revocation of the suspension of sentence and of probation is provided for by § 53-275, as amended by Acts 1958, ch. 468, p. 600. It says, so far as we are now concerned, that the court may “for any cause deemed by it sufficient, revoke the suspension of sentence * * within the period of suspension fixed by the court,” in which case “the original sentence shall be in full force and effect”.

The cause deemed by the court to be sufficient for revoking a suspension must be a reasonable cause. The sufficiency of the evidence to sustain an order of revocation “is a matter within the sound discretion of the trial court. Its finding of fact and judgment thereon are reversible only upon a clear showing of abuse of such discretion.” The discretion required is a judicial discretion, the exercise of which “implies conscientious judgment, not arbitrary action.” Slayton v. Commonwealth, supra, 185 Va. at 367, 38 S. E. 2d at 484.

It seems entirely clear that the failure of a defendant to be of good behavior, amounting to substantial misconduct, during the period of the suspension would provide reasonable cause for revocation of the[*221] suspension whether or not good behavior was expressly stated to be a condition of the suspension. It follows that in either aspect of the matter, whether good behavior was a condition of the suspension under § 53-272, or bad behavior a sufficient cause for revolting the suspension under § 53-275, the question here is simply whether there has been an abuse of discretion. Slayton v. Commonwealth, supra, 185 Va. at 367, 38 S. E. 2d at 484; Berry v. Commonwealth, 200 Va. 495, 497,106 S. E. 2d 590, 592.

The cause deemed sufficient by the court below, and inferentially by the Police Court, was the defendant’s conduct after the suspensions, as described in his written statement given to the police officer and referred to above. From that statement the court below was warranted in concluding that the defendant had, during the term of the suspensions, engaged in the disposal of property which he thought might be stolen, as he himself said, and which, under the circumstances shown, it could reasonably be concluded that he knew was stolen.

The defendant argues that since this statement was put into evidence on the trial in which the jury found the defendant not guilty, it was insufficient to support the revocation and it was an abuse of discretion to revoke the suspensions for that cause. But the conviction of a subsequent criminal offense is not essential to warrant a revocation of suspension. In a revocation proceeding proof beyond a reasonable doubt of the offense alleged is not required, and the evaluation and weight of the testimony are for the court; otherwise, “it would give to a jury the exercise of discretion and the right to determine the issue of fact which the statute plainly lodges in the trial court.” Slayton v. Commonwealth, supra, 185 Va. at 366-8, 38 S. E. 2d at 483-4.

It happened that the Judge of the Corporation Court who heard the present case also presided over the trial in which the defendant was acquitted, and he expressed strong disapproval of the jury’s verdict.

The remaining contentions of the defendant are that the police officer was allowed to give hearsay testimony and that after the Commonwealth had closed its case it was allowed to prove that the adding machine had been stolen. Both points are without substance and require no discussion.

The action of the court below in affirming the revocation of the suspensions and ordering the defendant to serve the jail sentences[*222] was warranted by the evidence and was not an abuse of discretion.

The order appealed from is accordingly

Affirmed.