COURT OF APPEALS OF VIRGINIA 

Present: Judges Petty, O’Brien and Russell 

Argued at Alexandria, Virginia 

DOROTHY ELIZABETH CILWA 

 MEMORANDUM OPINION*

 BY 

v. Record No. 0481-15-4 JUDGE MARY GRACE O’BRIEN 

 NOVEMBER 29, 2016 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jane Marum Roush, Judge 

 Shalev Ben-Avraham, Assistant Public Defender, for appellant. 

 Christopher Schandevel, Assistant Attorney General (Mark R. 

Herring, Attorney General, on brief), for appellee. 

 Dorothy Cilwa (“appellant”) contends that the trial court erred by finding her in violation of 

probation. Appellant asserts the following assignments of error: 

1. The trial court erred by finding Ms. Cilwa in violation of 

probation as the trial court had no jurisdiction to hear the case. 

2. The trial court erred by finding Ms. Cilwa was properly noticed 

and served in compliance [with] the Virginia Code, and the Due 

Process Clauses of the United States and Virginia Constitutions 

for the alleged probation violation of new criminal charges. 1 

Because we find that the court did not have jurisdiction to find appellant in violation of probation, 

we reverse the judgment. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1

 We do not address appellant’s second assignment of error because we dispose of the 

case based on the trial court’s lack of jurisdiction. 

UNPUBLISHED 
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PROCEDURAL HISTORY 

 Appellant pled guilty to two counts of grand larceny, in violation of Code § 18.2-95, and the 

court entered an order sentencing her on January 28, 2010. The court imposed two years of 

incarceration for each conviction, with the sentences to run concurrently. One year and one month 

of each sentence was suspended for a period of three years, and appellant was ordered to complete 

two years of supervised probation upon her release from incarceration. 

 At a hearing on January 27, 2012, the court found appellant in violation of her probation and 

imposed ninety days of incarceration on each suspended sentence, with the time to run concurrently. 

In an order dated February 13, 2012 the court extended appellant’s probation for two years “from 

today’s date.” The order did not specifically impose and re-suspend the remaining ten-month 

sentence for each charge and did not extend the three-year time period for which the sentences were 

suspended. 

 On June 9, 2014 the court issued a bench warrant for appellant alleging that she had again 

violated her probation conditions. Appellant was served with this bench warrant on February 5, 

2015. On February 20, 2015 the court heard appellant’s motion to dismiss the bench warrants based 

on lack of jurisdiction and failure to properly serve her with notice of the violations. The court 

denied the motion and found that appellant violated her probation. It sentenced her to the time she 

had served awaiting the hearing and terminated her probation. This appeal followed. 

ANALYSIS 

 Appellant contends that the court did not have jurisdiction on February 20, 2015 to impose 

the previously suspended sentences because her sentence expired on January 28, 2013. Because this 

is a question of statutory construction, we review the court’s conclusion using a de novo standard of 

review. Harris v. Commonwealth, 274 Va. 409, 413, 650 S.E.2d 89, 91 (2007). 
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 Code § 19.2-303 grants a court the authority to “suspend imposition of sentence or suspend 

the sentence in whole or part and . . . place the defendant on probation . . . as a condition of a 

suspended sentence.” Further, when the court suspends the imposition of the sentence, or suspends 

a portion of the sentence, it has the authority to set a time period for which the sentence is not 

imposed. Code § 19.2-303.1. In setting that period of time, the court is not constrained by the 

maximum sentence that the defendant could receive on the original conviction. Id. Additionally, a 

court “may revoke the suspension of sentence for any cause the court deems sufficient that occurred 

at any time within the probation period, or within the period of suspension fixed by the court.” 

Code § 19.2-306(A). 

 Here, on January 28, 2010 the court initially suspended a portion of appellant’s two-year 

sentences for a period of three years and placed her on probation for two years upon her release 

from incarceration. On February 13, 2012, the court imposed ninety days of the previously 

suspended sentences and extended appellant’s probation for two years. The court did not 

specifically re-suspend the remaining sentences and also did not extend the three-year period of 

suspension. Accordingly, appellant contends that when she appeared before the court in February 

2015, she was not subject to the court’s jurisdiction because her sentence expired on January 28, 

2013, three years from the date of the court’s original sentencing order. 

 Appellant concedes that the previously un-served portion of the sentences, totaling ten 

months concurrently, was implicitly imposed and re-suspended by the February 13, 2012 order. See 

Leitao v. Commonwealth, 39 Va. App. 435, 438, 573 S.E.2d 317, 319 (2002) (holding that “[t]he 

absence of an explicit recitation re-suspending the balance of the original sentence did not implicitly 

discharge the remaining sentence; it implicitly re-suspended the balance that the defendant had not 

served” because “[p]robation was meaningless if no sentence remained for the court to impose if the 
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defendant violated the terms imposed”). See also Jacobs v. Commonwealth, 61 Va. App. 529, 538, 

738 S.E.2d 519, 523-24 (2013). 

 The Commonwealth argues that the circuit court also implicitly extended the time period for 

which appellant’s sentence was suspended when it extended her probationary period on February 

13, 2012. However, “probation and suspension of sentence are separate and distinct concepts.” 

Carbaugh v. Commonwealth, 19 Va. App. 119, 126, 449 S.E.2d 264, 268 (1994). We have held 

that “if the sentencing judge suspends a portion of a sentence and prescribes a period of suspension, 

once that period of suspension expires the defendant is no longer subject to having the suspension 

revoked.” Id. When the court extended appellant’s probation, it did not explicitly or implicitly 

extend the three-year period for which the sentence was suspended. Any period of probation that 

was no longer concurrent with the three-year time period that began on January 28, 2010 was 

ineffective. Accordingly, because the trial court suspended appellant’s sentence for a three-year 

period, which expired on January 28, 2013, the trial court lacked jurisdiction when it found 

appellant in violation of probation in February 2015.

CONCLUSION 

 For these reasons, we reverse the judgment of the trial court. 

Reversed and dismissed.