In one of two opinions released today, the Supreme Court of Virginia held that a sentencing order imposing supervised probation “until released by the Court or the Probation Officer” did not violate Code § 19.2-303’s five-year cap on supervised probation.
Frederick Lewis Moncrea pleaded guilty under a plea agreement to two counts of possession with intent to distribute a Schedule I or II controlled substance and one count of possession of a firearm by a felon. He received a 25-year sentence with 22 years suspended and was placed on supervised probation. The sentencing order, however, did not specify a fixed probation term. Instead, it stated that probation would continue “until released by the Court or the Probation Officer.” Moncrea did not object to this language at the time.
On appeal, however, Moncrea argued that the open-ended probation language rendered the sentencing order void ab initio because it could result in supervised probation far exceeding the five-year statutory maximum set by Code § 19.2-303. The Commonwealth agreed that the order was erroneous but argued that it was merely voidable. The Court of Appeals agreed with Moncrea, holding the order void to the extent it exceeded five years. The Commonwealth appealed to the Supreme Court.
The Supreme Court disagreed with both parties’ shared premise that the sentencing order was erroneous. The Court held that Code § 19.2-303 caps supervised probation at five years but does not require the trial court to specify a particular duration. The statute gives trial courts flexibility to tailor probation to the needs of the case, and the Court presumed, as it was required by precedent, that the trial court knew and would not exceed the statutory limit. Moncrea’s argument that the indefinite language could lead to a period exceeding five years was, in the Court’s view, speculative; it would require the Court to assume the trial court would violate the statute in its future exercise of discretion, which the Court declined to do. Nothing in the record suggested the trial court intended probation to exceed the statutory cap, and Moncrea had not yet served more than five years.
As the Court found no error in the sentencing order at all, it did not reach the void-versus-voidable question.
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