COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Elder and 

 Senior Judge Hodges 

Argued at Salem, Virginia 

CHARLES STEVE ALLISON OPINION BY 

v. Record No. 2498-01-3 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 APRIL 29, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Clifford R. Weckstein, Judge 

 John P. Varney (Office of the Public 

Defender, on brief), for appellant. 

 Paul C. Galanides, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 Charles Steve Allison (appellant) appeals the trial court's 

decision to revoke his probation and impose twelve months of a 

previously suspended sentence. Appellant contends the trial court 

erred in finding he absconded and as a result revoked his 

probation more than one year after the probation period ended in 

violation of Code § 19.2-306. Finding no error, we affirm. 

I. BACKGROUND 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

the prevailing party below, granting to that evidence all 

reasonable inferences fairly deducible therefrom. See Juares v. 

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

 On June 23, 1998, appellant was convicted of possession of 

cocaine and sentenced to 2 years incarceration with 20 months 
suspended and one year of probation upon release. Appellant's one 

year of probation began October 9, 1998. Appellant signed his 

conditions of probation form on October 20, 1998. Those 

conditions of probation included, inter alia, appellant's 

agreement to obey all federal, state and local laws and 

ordinances; report any arrests, including traffic tickets, within 

three days to the probation officer; report in person, by 

telephone, and as otherwise instructed by the probation officer; 

not change his residence without the permission of the probation 

officer nor leave the Commonwealth of Virginia or travel outside 

of a designated area without permission of the probation officer, 

and condition 11 which specifically stated he would be considered 

an absconder when his whereabouts were no longer known to his 

supervising officer. 

 Initially, he met with his probation officer, Michael Smith 

(Smith), as required; however, he failed to meet with him after 

December 16, 1998. In February, 1999, Smith attempted to contact 

appellant at his last known address and was unable to do so. 

Appellant had numerous criminal charges filed against him during 

the time he failed to contact his probation officer. On January 

8, 1999 appellant was charged with assault and battery and 

malicious wounding. On March 9, 1999, he failed to appear on 

those charges in the Juvenile and Domestic Relations District 

Court of Roanoke City, and a capias was issued. He was convicted 

of two counts of assault and battery and for failure to appear on 

June 4, 2001. Smith also later determined that appellant was 

charged with first-degree battery in Arkansas sometime between 

December 16, 1998 and April 2001. On June 14, 2001 the 

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Commonwealth filed a motion to revoke appellant's suspended 

sentence, and on June 22, 2001 the trial court revoked twelve 

months of appellant's suspended sentence. 

 At the close of the Commonwealth's case at the revocation 

hearing, appellant moved to strike stating: 

I'm not sure what the definition of 

absconding is but I don't think this is it. 

This probation statute says "In the event 

any person placed on probation shall leave 

the jurisdiction of the court without the 

consent of a judge or having obtained leave 

to remove to another locality violated any 

of the terms of this probation, he may be 

apprehended and returned to the court and 

dealt with as provided.["] But I'm not sure 

that's a tolling cause or not. But if it is 

a tolling cause and if that's the provision 

by which the Commonwealth wants to take 

advantage of, there's no proof that he left 

the jurisdiction of the court. 

The trial court overruled the motion to strike and found the 

"language [appellant] just discussed . . . manifestly applies to a 

person who absents himself." Appellant presented no evidence, and 

the trial court stated: 

I am satisfied beyond any doubt that during 

the probation period [appellant] violated 

the conditions of probation and suspended 

sentence. In light of the case law holding 

such as it is, I am of [the] opinion that 

[appellant] cannot afford himself the 

benefit of that period of time during which 

he was not in contact with his probation 

officer. And I find that he has violated 

the conditions of suspended sentence and 

probation. 

 Appellant appeals from that decision. 

II. ANALYSIS 

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 Appellant contends that the trial court abused its discretion 

by revoking his suspended sentence more than one year after his 

period of probation expired. Appellant argues that the evidence 

failed to show he "absconded" and, thus, the tolling provisions of 

Code § 19.2-306 did not apply. We disagree and affirm the trial 

court. 

Code § 19.2-306 provides: 

 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 . . . revoke the suspension of 

sentence and any probation, if the defendant 

be on probation, and cause the defendant to 

be arrested and brought before the court at 

any time within one year after the probation 

period . . . . In the event that any person 

placed on probation shall leave the 

jurisdiction of the court without the 

consent of the judge, or having obtained 

leave to remove to another locality violates 

any of the terms of his probation, he may be 

apprehended and returned to the court and 

dealt with as provided above.1

 "A trial court has broad discretion to revoke a suspended 

sentence and probation based on Code § 19.2-306, which allows a 

court to do so 'for any cause deemed by it sufficient.' The 

court's findings of fact and judgment will not be reversed unless 

there is a clear showing of abuse of discretion." Davis v. 

Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 686 (1991) 

(citations omitted). 

 "The cause deemed by the court to be 

sufficient for revoking a suspension must be 

reasonable cause. The sufficiency of the 

evidence to sustain an order of revocation 

 1

 Code § 19.2-306 was amended in 2002. 

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'is a matter within the sound discretion of 

the trial court. Its findings of fact and 

judgment thereon are reversible only upon a 

clear showing of abuse of discretion.' The 

discretion required is a judicial 

discretion, the exercise of which 'implies 

conscientious judgment, not arbitrary 

action.'" 

Hamilton v. Commonwealth, 217 Va. 325, 327, 228 S.E.2d 555, 556 

(1976) (quoting Marshall v. Commonwealth, 202 Va. 217, 220, 116 

S.E.2d 270, 273 (1960) (quoting Slayton v. Commonwealth, 185 Va. 

357, 367, 38 S.E.2d 479, 484 (1946))). 

 In the instant case, appellant signed his conditions of 

probation on October 20, 1998. Condition 11 clearly defines 

"absconding" from supervision. "I understand I will be considered 

an absconder when my whereabouts are no longer known to my 

supervising officer." This triggering event began shortly after 

appellant last met with his probation officer in December 1998 and 

could not thereafter be located. Appellant left the 

"jurisdiction" of the court when he made his whereabouts unknown 

to Smith. There is no requirement that appellant leave the state 

to engage the tolling provision. However, even if this was a 

requirement, the evidence proved that during the period of time 

appellant was not in contact with Smith, he was arrested in 

Arkansas where he was charged with assault and battery. This 

evidence is uncontroverted. "[W]hen [appellant], due to his own 

conduct, is no longer under [the broad control of the court and 

the direct supervision of the court's probation officer], the act 

of grace in granting probation in the first place is rendered a 

nullity." Rease v. Commonwealth, 227 Va. 289, 295, 316 S.E.2d 

148, 151 (1984). 

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Under Code § 19.2-306, the circuit court retained 

jurisdiction over the suspended portion of appellant's sentence 

during the one-year period of his probation and for one year 

thereafter. Thus, the circuit court had jurisdiction to revoke 

appellant's suspended sentence October 9, 1998 through October 

9, 2000. However, appellant's failure to maintain contact with 

his probation officer after December 1998 and his additional 

out-of-state charges proved that he absconded from probation 

supervision and the jurisdiction of the trial court. Thus, the 

tolling provisions of Code § 19.2-306 were triggered, and the 

trial court did not err when it revoked appellant's probation on 

June 22, 2001. 

 Accordingly, we affirm the judgment of the trial court. 

 Affirmed.

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