COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner 

Argued at Salem, Virginia 

DENNIS JAMES HARTLESS 

 OPINION BY 

v. Record No. 0433-98-3 JUDGE JERE M. H. WILLIS, JR. 

 FEBRUARY 23, 1999 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Richard S. Miller, Judge 

 Elizabeth P. Murtagh, Assistant Public 

Defender, for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 On appeal from his conviction of indecent exposure, in 

violation of Code § 18.2-387, Dennis James Hartless contends that 

the trial court abused its discretion in sentencing him to an 

indefinite term of probation. He argues further that his 

sentence violated his Eighth Amendment right against cruel and 

unusual punishment. We modify Hartless's term of probation to be 

coterminous with his term of suspension of sentence. We affirm 

the judgment of the trial court thus modified. 

 Hartless pled guilty to indecent exposure, in violation of 

Code § 18.2-387. The trial court sentenced him to serve twelve 

months in jail, with two months suspended upon the following 

conditions: 

 Good behavior. The defendant shall be of 

good behavior for 1 year from the defendant's 

release from confinement. 

 Supervised probation. The defendant is 

placed on intensive probation to commence on 
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release from incarceration, under the 

supervision of a Probation Officer for an 

indefinite period of time, to be reviewed 

yearly. The defendant shall comply with all 

the rules and requirements set by the 

Probation Officer. The Court doth order that 

the defendant seek and obtain treatment 

through the sex group program that was 

recommended by Dr. Sloop. 

 This case is governed by two statutes. Code § 19.2-303 

provides, in pertinent part: 

 After conviction, . . . the court may suspend 

. . . the sentence in whole or part and in 

addition may place the accused on probation 

under such conditions as the court shall 

determine . . . . 

Code § 19.2-306 provides, in pertinent part: 

 The court may, for any cause deemed by it 

sufficient which occurred at any time within 

the probation period, or if none, within the 

period of suspension fixed by the court, or 

if neither, within the maximum period for 

which the defendant might originally have 

been sentenced to be imprisoned, revoke the 

suspension of sentence and any probation 

. . . . 

 Code § 19.2-303 grants a trial court the authority to fix 

reasonable terms and conditions for the suspension of execution 

of a sentence, including the imposition of probation. See

Nuckoles v. Commonwealth, 12 Va. App. 1083, 1085-86, 407 S.E.2d 

355, 356 (1991). "The only limitation placed upon the discretion 

of the trial court in its determination of what conditions are to 

be imposed is that a condition be 'reasonable.'" Dyke v. 

Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952). 

 A court's ability to revoke the suspension of a sentence and 

to impose that sentence permits it to enforce a probationary 
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requirement as a condition of suspension. To be effective, 

probation must be concurrent with a coordinate term of suspension 

of sentence. 

 Code § 19.2-306 governs the ability of a court to revoke the 

suspension of a sentence. In the absence of a specified period 

of probation or a specified period of suspension, a trial court 

may revoke a suspension of sentence for a probation violation 

only when the violation occurs within the maximum period for 

which the defendant might originally have been sentenced to be 

imprisoned. 

 Hartless contends that the trial court abused its discretion 

in sentencing him to an indefinite period of probation. We 

agree. The nature of the crime and Hartless's history of similar 

offenses support a decision to impose extended probation upon him 

as a condition of the suspension of his sentence. However, the 

trial court specified no period of probation. The good behavior 

requirement sufficiently defined a period of suspension 

continuing for one year from Hartless's release from confinement. 

Because probation depends for enforceability upon the existence 

of a term of sentence suspension, the duration of Hartless's 

probation cannot extend beyond one year from Hartless's release 

from confinement, the specified period of suspension. 

 Hartless further contends that the indefinite term of 

probation is an unreasonable restraint on his liberty and 

constitutes cruel and unusual punishment, violating the Eighth 

Amendment. Hartless is barred from raising this issue on appeal 
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because he did not raise it at trial. Rule 5A:18. See also

Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 

631 (1991); Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 

S.E.2d 438, 441 (1991). 

 We modify Hartless's term of probation such that it shall 

continue for a term ending one year following his release from 

confinement. With that modification, the judgment of the trial 

court is affirmed. 

 Modified and affirmed.