Edward L. Mohler, Jr. v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Senior Judges Duff and Hodges
EDWARD L. MOHLER, JR.
v. Record No. 0678-94-3 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA AUGUST 8, 1995
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
William E. Bobbitt, Jr., Public Defender, for
appellant.
Marla Lynn Graff, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Edward L. Mohler, Jr. appeals the circuit court's order
revoking previously suspended sentences for violating the terms
of his probation. On appeal, Mohler contends that the trial
court's order must be reversed because he was denied a
preliminary revocation hearing. Mohler also argues that the
delay in the court's taking action in regard to his detention
prior to the final revocation hearing violated his due process
rights. We disagree and affirm.
"The absence of a preliminary hearing to determine temporary
detention is irrelevant after a full evidentiary hearing has been
conducted to determine whether probation or parole should be
revoked." Howie v. Commonwealth, 222 Va. 625, 631, 283 S.E.2d
197, 200 (1981). After Mohler was advised in writing of the
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
probation conditions he was alleged to have violated, he was
afforded a full evidentiary hearing at which he both cross-
examined witnesses and presented evidence in his behalf. At the
conclusion of the hearing, the trial judge decided to revoke
appellant's suspended sentences and probation. The record does
not show that Mohler's due process rights were violated because
he was not given a preliminary hearing. See id.
Lastly, Mohler's argument that the two month delay before
the final revocation hearing was "so great so as to violate his
due process rights" is barred from appeal because he failed to
raise this question before the trial court. Rule 5A:18; see also
Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d 438,
441 (1991) (holding that this procedural bar applies even to a
defendant's constitutional claim). Moreover, we find nothing
inherently prejudicial about Mohler's two month wait for his
hearing which, according to the record, was "scheduled as soon as
feasible."
Affirmed.
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