COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Overton 

Argued at Norfolk, Virginia 

JAMES BOWE, S/K/A 

 JAMES ADAM BOWE 

 MEMORANDUM OPINION*

v. Record No. 0072-96-1 BY JUDGE JOSEPH E. BAKER 

 FEBRUARY 11, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Dennis F. McMurran, Judge 

 Gregory W. Copeland (Brenda C. Spry, Deputy 

Public Defender, on brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 James Adam Bowe (appellant) appeals from an order entered by 

the Circuit Court of the City of Portsmouth (trial court) 

revoking a previous order of the court that suspended a five-year 

penitentiary sentence imposed on appellant. The sole issue 

presented on appeal is whether the trial court abused its 

discretion when it revoked the suspended sentence. Finding no 

error, we affirm. 

 The record discloses that on August 9, 1994, appellant was 

convicted of "fail to perform contract" (Portsmouth offense) by 

the trial court. On October 26, 1994, appellant was sentenced to 

serve five years in prison for the Portsmouth offense. All of 

his sentence was suspended on the condition that he submit to 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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five years supervised probation, not violate any laws, pay $600 

restitution to the victim, and pay court costs. The restitution 

and costs totaled $1,237.50. The trial court ordered appellant 

to make payments of $30 per month commencing November 28, 1994 

until his obligation was paid in full. This appeal arises from 

the trial court's revocation of that suspension order. 

 On May 3, 1995, appellant was convicted in Norfolk on a 

charge of failure to perform promise of construction (Norfolk 

offense). For the Norfolk offense, he was sentenced to three 

years in a Virginia correctional facility. That sentence was 

also suspended, and appellant was placed on supervised probation 

for three years or until restitution and costs totalling 

$1,347.50 were paid in full. 

 Following appellant's Norfolk conviction, a show cause was 

issued directing that appellant show cause why his probation 

granted by the trial court should not be revoked. At the 

probation violation hearing, appellant testified that the conduct 

for which he was convicted in the Norfolk offense occurred prior 

to his conviction for the Portsmouth offense; however, he 

admitted that although he and his family had paid $9,000 in 

restitution in other jurisdictions and had even obtained a loan 

to do so, he had paid none of the restitution required as a 

condition of the Portsmouth suspension order. Thus, appellant 

preferred others by paying restitution in other jurisdictions 

rather than meeting the requirement imposed by the trial court. 
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 The standard of review in an appeal from a trial court's 

revocation of a suspended sentence is whether the record 

discloses that the trial court abused its broad discretion in 

such matter. Hess v. Commonwealth, 17 Va. App. 738, 741, 441 

S.E.2d 29, 31 (1994). 

 On appeal, appellant contends (1) that it was error for the 

trial court to consider the Norfolk offense because the conduct 

supporting the Norfolk offense occurred before appellant's 

conviction for the Portsmouth offense, and (2) that it was error 

for the trial court to consider appellant's failure to pay 

restitution because it was not mentioned in appellant's probation 

violation report. 

 At the probation revocation hearing, appellant did not 

properly preserve the issue concerning conduct occurring prior to 

his Portsmouth suspension. During his argument before the trial 

court he conceded that he had violated a condition of his 

Portsmouth probation. Argument on that issue is moot. 

 Further, at the hearing, appellant introduced the evidence 

of his failure to pay restitution as ordered by the trial court. 

On appeal, he will not be heard to say that the trial court 

should not have considered the evidence he introduced. 

 Appellant's failure to pay restitution alone is sufficient 

to support the revocation of his probation. Accordingly, we find 

that appellant has not shown that the trial court abused its 
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discretion and, therefore, the judgment of the trial court is 

affirmed. 

 Affirmed.
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Benton, J., dissenting. 

 I would hold that Bowe properly preserved the issues he 

presents on appeal and that the trial judge erred. Thus, I would 

reverse the revocation of the suspension of Bowe's sentence. 

 The record reveals that Bowe was indicted in the City of 

Portsmouth for failure to perform a contract after fraudulently 

obtaining an advance on May 11, 1993, in violation of Code 

§ 18.2-200.1. Bowe was convicted in the Circuit Court of the 

City of Portsmouth and sentenced on October 26, 1994 to five 

years in prison, which was suspended. The trial judge also 

placed Bowe on probation and ordered him to pay restitution and 

costs. Bowe later signed an agreement to pay $600 in restitution 

and $637.50 in fines and costs in installments beginning on 

November 28, 1994. Bowe signed a separate agreement promising to 

abide by the conditions of his probation, including paying $600 

in restitution and obeying all laws. 

 On May 3, 1995, Bowe appeared in the Circuit Court of the 

City of Norfolk on charges that he had failed to perform a 

different contract after fraudulently obtaining an advance, in 

violation of Code § 18.2-200.1. Upon Bowe's plea of guilty, a 

judge convicted him and sentenced him to three years in prison, 

all of which was suspended. The judge placed Bowe on supervised 

probation for a period of three years or until Bowe paid 

restitution in the amount of $700. Bowe was also ordered to pay 

costs in the amount of $647.50. The date of the offense was not 
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included in the order of conviction. 

 On October 31, 1995, Bowe's probation officer wrote a letter 

to the judge of the Circuit Court of the City of Portsmouth 

alleging that Bowe had violated the following condition of his 

probation: 

 Condition #1: "I will obey all Federal, 

State and local laws and ordinances." 

 On May 3, 1995 James A. Bowe was convicted in 

the City of Norfolk, of Fail to Perform 

Promise of Construction in Norfolk Circuit 

Court. He was sentenced to three (03) years 

VA Correctional Facility, suspended, placed 

on three (03) years supervised probation or 

until restitution of $700 is paid in full. 

 This officer requests a capias for James Adam 

Bowe to show cause why his probation should 

not be revoked. 

The trial judge entered a show cause order. 

 At trial, the probation officer testified that the Norfolk 

conviction was the only violation that was at issue. Bowe 

attempted to show that he committed the Norfolk offense at 

approximately the same time he committed the Portsmouth offense. 

 In addition, Bowe testified that he was trying to pay all of his 

debts but that because he was incarcerated and could not work, he 

was having difficulty. Bowe asked the trial judge to put him on 

work release so he could "work and pay back the victims." 

 The majority concludes that Bowe did not preserve for appeal 

the issue whether the trial judge erred in considering as a 

ground for revoking his sentence the Norfolk conviction, which 

was based upon conduct that occurred before he was sentenced in 
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Portsmouth. I disagree. At trial, Bowe's counsel and the judge 

made the following statements: 

 [JUDGE]: [I]f your defense is that this 

occurred around May 11, 1993 -- ask him when 

the one in Norfolk occurred; . . . . I want 

to know if it occurred around the same time 

 . . . . 

 [BOWE'S COUNSEL]: These are all things that 

happened around the same time. That's the 

only thing I'm trying to bring before the 

Court. 

This record establishes that Bowe made "known to the court the 

action which he desire[d] the court to take." Code § 8.01-384. 

Requiring Bowe to object further to the trial judge's ruling 

"would, in effect, recreate the requirement of noting an 

exception to a final adverse ruling of the trial judge." Martin 

v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 

(1992). 

 Moreover, the evidence proved that the conduct that gave 

rise to the Norfolk conviction occurred before Bowe was sentenced 

in Portsmouth. Bowe testified that he signed the contract that 

was the subject of the Norfolk conviction "before [he] came to 

[trial in the Portsmouth] court [on the original charge]." No 

evidence contradicts that testimony. "[T]he record discloses no 

concealment or misrepresentation of fact by [Bowe] which prompted 

the [Portsmouth] suspension of sentence." Hamilton v. 

Commonwealth, 217 Va. 325, 328, 228 S.E.2d 555, 557 (1976). 

Thus, a conviction based on Bowe's conduct that occurred before 

the sentencing cannot serve as grounds for revoking the 
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suspension of the sentence. See id. I would, therefore, hold 

that the trial judge erred in suspending the sentence on these 

grounds. 

 The majority also holds that Bowe's failure to pay 

restitution was a sufficient independent ground to warrant 

revoking the suspension of his sentence. The record does not 

establish, however, that the trial judge revoked Bowe's probation 

because of the restitution. The probation officer testified that 

the conviction was the only violation at issue. When the trial 

judge ruled, he did not state that the revocation was based upon 

any ground other than that for which Bowe received notice and 

which gave rise to the hearing. 

 In addition, Bowe argues that his failure to pay restitution 

cannot serve as a ground to revoke the suspension of his sentence 

because he was not given notice before trial that he was being 

charged with a violation of this condition of his probation. The 

majority resolves Bowe's notice argument by concluding that 

because the evidence showing that Bowe had not paid restitution 

was introduced by Bowe himself, Bowe is precluded from objecting 

to the trial judge's decision to consider the evidence. 

 The principle is well established that "[a] litigant will 

not be permitted to invite a trial court to commit error, either 

through agreeing or failing to object, and then be permitted to 

successfully complain of such error on appeal." Wright v. 

Norfolk and W. Ry. Co., 245 Va. 160, 170, 427 S.E.2d 724, 729 
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(1993). However, that principle is not applicable to this case. 

 At trial, Bowe testified that he had not yet paid restitution to 

the Portsmouth complainants because he had been making payments 

on debts he owed in other cities pursuant to other circuit court 

orders. Bowe offered the evidence to show the efforts he had 

made to pay his debts. In fact, after Bowe testified about his 

financial difficulties, he asked the trial judge to allow him to 

work. Bowe obviously wanted the judge to consider his testimony 

in deciding whether to allow Bowe to work. If the trial judge 

used that evidence to support an additional ground for 

revocation, a fact the record does not prove, the trial judge 

erroneously applied the evidence to an issue he raised sua 

sponte. 

 Moreover, Bowe correctly argues that the use of the evidence 

in this fashion violated his due process right to notice. 

 A court may not summarily revoke a previously 

suspended sentence without notice, hearing, 

and benefit of counsel. Due process 

procedural protections are required if an 

individual may suffer loss of liberty or 

property protected by the fourteenth 

amendment. 

Copeland v. Commonwealth, 14 Va. App. 754, 756, 419 S.E.2d 294, 

295 (1992). Bowe's defense against the charge that he violated 

his probation by failing to obey the law did not require him to 

defend against accusations that he had failed to pay restitution. 

Indeed, the record reveals that if Bowe had received notice that 

the judge would proceed on the additional grounds, Bowe could 
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have offered additional evidence. Bowe testified that his "wife 

has all of the receipts for everyone that [he] paid" and that he 

"ran out of money." To show that he was unable to pay 

restitution, a mitigating circumstance a trial judge must 

consider, see Duff v. Commonwealth, 16 Va. App. 293, 298-99, 429 

S.E.2d 465, 468 (1993), Bowe could have offered evidence to show 

that he was unable to pay or that he could not have 

simultaneously satisfied the orders issued by both circuit 

judges. 

 For these reasons, I would reverse the trial judge's ruling 

revoking the suspension of Bowe's sentence.