Tammy Mae Frazier v. Commonwealth , 20 Va. App. 719 ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Norfolk, Virginia
TAMMY MAE FRAZIER
v. Record No. 0418-93-2 OPINION BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA AUGUST 29, 1995
FROM THE CIRCUIT COURT OF HANOVER COUNTY
William H. Ledbetter, Jr., Judge
Anthony G. Spencer (Eric D. White; Morchower, Luxton &
Whaley, on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (James
S. Gilmore, III, Attorney General, on brief), for appellee.
Tammy Mae Frazier (defendant) was convicted in the trial court
on twenty-three counts of grand larceny and one count of misuse of
public funds and sentenced on November 18, 1992, to two years for
each larceny offense and four years for misuse of public funds, a
total of fifty years imprisonment. The court suspended forty-seven
years of these sentences on several conditions, including
restitution of $27,000 to the Circuit Court of Hanover County and
$23,000 to the victim of the offenses and supervised probation for
an unspecified term. The court further ordered that defendant pay
court costs of $1,611.50.
On November 25, 1992, the Commonwealth moved the trial court
to order the "judgment" for restitution and court costs docketed in
the "Judgement [sic] Book of Hanover County." Following an ore
tenus hearing on January 27, 1993, the court granted the motion
with respect to the restitution and "[o]rdered, as provided in
. . . Code § 8.01-446, and . . . § 19.2-305.2(B), that restitution
. . . be docketed in the Judgment Book of the Hanover Circuit
Court."
On appeal, defendant contends that docketing of the
restitution as a "judgment against a person has serious adverse
consequences for that person" which "changed the terms and
conditions of the restitution obligation specified in the
sentencing order" in violation of Rule 1:1. 1 Defendant also
complains that the disputed order was not docketed "without delay"
in accordance with Code § 8.01-446. Finding no error, we affirm
the disputed order.
In imposing sentence for a criminal offense, trial courts are
vested with "'wide latitude' and much 'discretion in matters of
suspension and probation . . . to provide a remedial tool . . . in
the rehabilitation'" of offenders. Deal v. Commonwealth, 15 Va.
App. 157, 160, 421 S.E.2d 897, 899 (1992) (citations omitted). The
court may "suspend the sentence in whole or part," "suspend [its]
imposition," and "in addition . . . place the accused on
probation," subject to specified "conditions." Code § 19.2-303.
"Among such conditions, restitution for 'damages or loss' caused by
the offense" is a well established sentencing component, intended
to benefit both offender and victim. Deal, 15 Va. App. at 160, 421
S.E.2d at 899; see Code §§ 19.2-303, -305, -305.1, -305.2.
Sentencing statutes must be liberally construed, Deal, 15 Va. App.
1
Rule 1:1 states, in pertinent part, that "[a]ll final
judgments, orders, and decrees, irrespective of terms of court,
shall remain under the control of the trial court and subject to be
modified, vacated, or suspended for twenty-one days after the date
of entry, and no longer."
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at 160, 421 S.E.2d at 899, and those "dealing with restitution
. . . 'should be read, construed and applied together'" to promote
their intended purposes. Alger v. Commonwealth, 19 Va. App. 252,
256, 450 S.E.2d 765, 767 (1994) (citation omitted).
Code § 19.2-305.1(A) provides, inter alia, that "no person
convicted of a crime, . . . which resulted in property . . . loss,
shall be placed on probation or have his sentence suspended unless
such person shall make at least partial restitution for such . . .
loss." The "amount [of restitution] to be repaid by the defendant
and the terms and conditions thereof" shall be determined by the
court "[a]t the time of sentencing" and specified in the "judgment
order." Code § 19.2-305.1(C); see Russnak v. Commonwealth, 10 Va.
App. 317, 321-22, 392 S.E.2d 491, 493 (1990).
"An order of restitution may be docketed as provided in
§ 8.01-446 when so ordered by the court or upon written request of
the victim and may be enforced by a victim named in the order to
receive the restitution in the same manner as a judgment in a civil
action." Code § 19.2-305.2(B). Code § 8.01-446 prescribes, in
pertinent part, that "[t]he clerk of each court of every circuit
. . . shall docket without delay, any judgment for money rendered
in his court" in a "judgment docket" book established and
maintained for that purpose. (Emphasis added).
Defendant urges that we view an order of restitution pursuant
to Code § 19.2-305.1 apart from a related, dependent order under
Code § 19.2-305.2(B), which provides for docketing and enforcement
of the award. When considered in this perspective, she argues that
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the later order adding enforcement remedies to the original
restitution order modified the sentence by enhancing the
punishment. However, this construction would subvert the salutary
purposes of rehabilitation for defendant and recovery for the
victim. Clearly, collection through enforcement is inherent in an
order of restitution for the right to have any remedy, and, to that
end, Code §§ 19.2-305.1, -305.2(B), and 8.01-446 2 must be read and
considered together. See Alger, 19 Va. App. at 256, 450 S.E.2d at
767. Thus, any additional burden on defendant attendant to
enforcement was obviously contemplated by the legislature when it
enacted these companion statutes.
Defendant also complains that the docketing order failed to
comply with Code § 8.01-446, which requires that judgments "shall
[be] docket[ed] without delay." However, defendant misunderstands
the statutory scheme. Code § 19.2-305.2 authorizes the trial court
to order the restitution order "docketed as provided in § 8.01-446
. . . in the same manner as a judgment in a civil action." Code
§ 19.2-305.2. Code § 8.01-446 directs the clerk of each circuit
court to "docket, without delay, any judgment for money rendered in
his court" in a "judgment docket" book "maintained for that
purpose." Thus, the promptness directed by Code § 8.01-446 does
not relate to entry of the docketing order by the court, but,
rather, to the clerk's responsibility to comply.
2
Code § 8.01-446 was amended during the 1995 session of the
General Assembly to expressly address an "order of restitution
docketed pursuant to Code § 19.2-305.2."
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Because the record here does not reflect the time that the
clerk actually docketed the restitution order, we are unable to
review compliance with Code § 8.01-446. See Smith v. Commonwealth,
16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993).
Finally, defendant argues that court costs were also
improperly subject of the docketing order. However, a review of
the order discloses no mention of court costs and, therefore, this
is not an issue before the Court.
Accordingly, we affirm the docketing order of the trial court.
Affirmed.
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BENTON, J., concurring.
The narrow issue presented by this appeal is whether the trial
judge had jurisdiction to enter an order allowing the docketing of
a judgment for restitution. The record establishes that when the
trial judge entered an order permitting docketing of the final
order pursuant to Code § 19.2-305.2(B), more than twenty-one days
had elapsed after entry of the final order. I would hold that Rule
1:1 did not bar entry of the order docketing the judgment.
"After the expiration of 21 days from the entry of a judgment,
the court rendering the judgment loses jurisdiction of the case,
and, absent a perfected appeal, the judgment is final and
conclusive." Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758
(1987). Notwithstanding that general rule, the Supreme Court has
recently held that "Rule 1:1 does not preclude the entry of an
order . . . [that] does not alter the substantive provisions of [a]
final judgment" and that merely aids in the execution of the final
judgment. Davidson v. Commonwealth, 246 Va. 168, 171, 432 S.E.2d
178, 179-80 (1993). Even though a final order has been entered, a
judge of the court rendering that judgment "'may still enter such
decrees and orders as may be necessary to carry the decree into
execution.'" Leggett v. Caudill, 247 Va. 130, 133, 439 S.E.2d 350,
351 (1994) (quoting Lee v. Lee, 142 Va. 244, 250, 128 S.E. 524, 526
(1925)). The order that is at issue in this case was not a
modification of a substantive provision of the final order; it
merely aided execution of the final order. Accordingly, I concur
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in the judgment affirming the order of the trial judge.
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