The highlight of this week's new opinions from the Virginia Court of Appeals is Barrow v. Commonwealth, AUG24, VaApp no. 0769-23-1. In a technical decision having to do with how long a suspended sentence can be held over a probationer's head, the Court had to address a change in the law which limited a trial court's ability to resuspend the suspended sentence beyond a date certain in a probation violation hearing. The difficulty is that this creates a soft directive from the General Assembly for judges in probation violation hearings to give the entire suspended sentence. If the trial judge cannot keep time over the person's head after she serves a chunk of it, the trial judge doesn't have the probation tool and since probation is given in lieu of incarceration the judge should in theory impose all the time hanging over the violator's head. While that is unlikely to happen in reality it is a heck of a reason for the judge to give a more significant punishment to an unreformed probationer for whom the trial court can take no further steps in an attempt to put them on the straight and narrow. That's how you get footnotes like this:
We acknowledge that our holding today has the potential to create a “use-it-or-lose-it” incentive for future trial courts in similar positions. For instance, in a scenario wherein the trial court judge may feel that a defendant deserves some, but not all, of his or her active time and would prefer to suspend the remainder of the original sentence, future trial courts might still opt to impose the full balance of the remaining sentence, given that the period of suspension would be extinguished after the offender’s release (as in this case). This is, of course, a policy decision the General Assembly has spoken on, and it is not the role of the judiciary to question the wisdom of the legislature. Instead, we simply interpret and apply the law as written.
For those of you who don't know how Virginian judges come into office, they are solely chosen and continue to serve at the unfettered discretion of the General Assembly. They don't often tell the General Assembly that it screwed up anything. This is as close as I've seen them come to telling the GA that it did something stupid in a loooooonnng time.