COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Kelsey and Petty 

Argued by teleconference 

ROBERT THURMAN PILSON 

 OPINION BY 

v. Record No. 0668-07-3 JUDGE D. ARTHUR KELSEY 

 JULY 29, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE 

C. Carter Greer, Judge 

Perry H. Harrold for appellant. 

Kathleen B. Martin, Senior Assistant Attorney General 

(Robert F. McDonnell, Attorney General, on brief), for 

appellee. 

The trial court convicted Robert Thurman Pilson of driving as an habitual offender in 

violation of Code § 46.2-357. Pilson was sentenced to one year of active incarceration pursuant 

to the statutory mandatory minimum sentence required by Code § 46.2-357(B)(3) (applicable to 

second or subsequent offenses).1

At the sentencing hearing, the trial court denied Pilson’s request to place him on home 

electronic monitoring in lieu of the one-year period of mandatory incarceration. Pilson also 

asked the sentencing court to “let the sheriff impose” home electronic monitoring if the court 

could not itself do so. The court likewise denied this request. “While it is true that the sheriff 

can impose it on his own,” the court stated from the bench, “it is the court’s opinion that he 

cannot do so when there is a mandatory minimum term of incarceration” required by statute. In 

its sentencing order, however, the court narrowed its holding on this point. The order stated that 

“the Court did not have the authority to authorize the Sheriff” to admit Pilson into the home 

 1

 The sentencing order imposed a five-year sentence, with four years suspended for a 

period of four years, coupled with a four-year period of probation. 
electronic monitoring program. J.A. at 35 (emphasis added). The court then released Pilson on 

an appeal bond. He has remained free on bond since then. 

On appeal, Pilson argues that the sentencing court erred (i) by refusing to order that his 

one-year mandatory minimum sentence be suspended on condition that he participate in a home 

electronic monitoring program, and (ii) by “prohibiting” the sheriff from exercising any 

independent authority he might have to place Pilson in such a program. Appellant’s Br. at 4. 

We can summarily address Pilson’s first argument. The sentencing court correctly held it 

had no authority to place Pilson on home electronic monitoring in lieu of his one-year mandatory 

minimum period of incarceration. “Because the one-year mandatory minimum sentence under 

Code § 46.2-357(B)(2) may not be suspended, probation may not be imposed during this period 

and, thus, electronic incarceration pursuant to Code § 53.1-131.2 may not be employed.” 

Cuffee-Smith v. Commonwealth, 39 Va. App. 476, 483, 574 S.E.2d 294, 297 (2002). 

As for Pilson’s second argument, we believe it overstates what the sentencing court 

actually held. Because a “circuit court speaks only through its orders,” Roe v. Commonwealth, 

271 Va. 453, 458, 628 S.E.2d 526, 529 (2006), we look to the sentencing order — not the court’s 

remark from the bench — to discern its holding. The sentencing order did not prohibit the 

sheriff from considering home electronic monitoring. Instead, the order merely refused to 

authorize the sheriff to do so. By putting it that way, the court did nothing more than recognize 

how the statute subdivides decisionmaking authority. Subsection A of Code § 53.1-131.2 

governs the sentencing court’s authority to place a defendant on home electronic monitoring. 

Subsection C governs the sheriff’s authority to do the same. As an independent constitutional 

officer,2

 the sheriff’s authority under subsection C does not depend upon prior authorization 

 

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2 See generally Jenkins v. Weatherholtz, 909 F.2d 105, 107 (4th Cir. 1990) (“In Virginia, 

a sheriff is an independent constitutional officer whose duties and authority are defined by 
from the sentencing order. Whatever authority the sheriff may have, it comes not from the 

sentencing order but from subsection C of the statute. 

 

It is true that, if the sentencing court disagrees with the sheriff’s decision to place an 

offender in the home electronic monitoring program, the court retains “authority to remove the 

offender” from the program. Code § 53.1-131.2(C) (emphasis added). In our case, however, 

Pilson did not go to jail following his sentencing hearing. Nothing in the record suggests that 

Pilson ever asked the sheriff to release him under the supervision of the home electronic 

monitoring program. Thus, the sheriff has never had an opportunity to decide whether he has 

statutory authority under Code § 53.1-131.2(C) to place Pilson — an inmate serving a 

mandatory, minimum sentence — into the home electronic monitoring program.3

Nor has the sheriff decided, assuming he has such authority, whether Pilson would be an 

appropriate candidate to be released from jail into the program. This discretionary decision 

would require consideration of Pilson’s prior criminal record which includes, among other 

things, convictions for failure to appear, felonious escape, eluding police, resisting arrest, 

assaulting a police officer, escape from custody, hit and run, assault and battery, destroying 

private property, trespass, breaking and entering, unlawful wounding, drunk driving, drunk in 

public, curse and abuse, several grand and petit larcenies, and various probation violations. 

Perhaps the sheriff might nonetheless find it in the public’s interest to release Pilson. We are 

reluctant to offer a prediction one way or another. As Pilson’s counsel conceded at oral 

statute.”); Hilton v. Amburgey, 198 Va. 727, 729, 96 S.E.2d 151, 152 (1957) (recognizing that “a 

sheriff is a constitutional officer and his duties are regulated and defined by the statute”); 

Narrows Grocery Co. v. Bailey, 161 Va. 278, 284, 170 S.E. 730, 732 (1933) (tracing the 

historical roots of the sheriff’s current status as a “constitutional officer”). 

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3

 The Attorney General of Virginia has opined that “a sheriff has statutory authority to 

place a prisoner on home/electronic incarceration while the prisoner is serving a mandatory 

minimum sentence.” Opinion of the Attorney General, 2006 Va. AG 173, 176, 2006 Va. AG 

LEXIS 53, *10 (Dec. 21, 2006). Given our holding, we express no opinion on this issue. 
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argument on appeal: “I don’t think we can speculate as to whether or not the sheriff would or 

would not” because “quite frankly, that issue has not been put before the sheriff as to Mr. Pilson 

himself.” Oral Argument at 1:58 (July 3, 2008). We could not agree more. 

Given these circumstances, we view the trial court’s remark from the bench (concluding 

the sheriff had no independent authority) as an opinion on a hypothetical question not ripe for 

decision. For us to answer that question favorably to Pilson — by holding that the sheriff has 

authority to do under Code § 53.1-131.2(C) what a sentencing court cannot do under Code 

§ 53.1-131.2(A) — we would essentially be issuing an advisory appellate opinion reversing an 

advisory trial court opinion. This we cannot do. “Advisory opinions represent an attenuate 

exercise of judicial power,” Va. State Police v. Elliott, 48 Va. App. 551, 553, 633 S.E.2d 203, 

204 (2006), one which we traditionally avoid in all but the most extenuating circumstances. 

None exist here. 

In sum, we find no error in the sentencing order, which we interpret as doing nothing 

more than recognizing the limitations imposed by Cuffee-Smith on the court’s authority. 

Whether the sheriff has independent authority under Code § 53.1-131.2(C) to grant the relief 

Pilson seeks is a question to be answered if and when the sheriff decides to exercise that putative 

authority. Until then, the issue presents a purely hypothetical question not ripe for appellate 

adjudication. 

 Affirmed.