COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Lemons∗

Argued at Richmond, Virginia 

RONALD D. McCRAY 

 MEMORANDUM OPINION∗∗ BY 

v. Record No. 1276-99-2 JUDGE JAMES W. BENTON, JR. 

 MARCH 21, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS 

William R. Shelton, Judge 

 William B. Bray for appellant. 

 (Mark L. Earley, Attorney General; Richard B. 

Smith, Assistant Attorney General, on brief), 

for appellee. Appellee submitting on brief. 

 ∗

 Justice Lemons participated in the hearing and decision of 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 

∗∗ Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 This appeal arises from orders revoking suspended prison 

sentences previously given to Ronald Donnell McCray. McCray 

contends that his sentences for two felony larceny convictions 

were void, rendering the trial judge's revocation of the suspended 

sentences given pursuant to those convictions a nullity. He also 

contends that the trial judge erred in revoking the suspended 

sentence given to him for a possession of cocaine conviction 

because that revocation occurred during the same proceeding in 
which the trial judge revoked the suspensions involving the 

larceny sentences. For the reasons that follow, we reverse the 

orders revoking the suspended sentences related to the larceny 

convictions and dismiss those cases, and we affirm the revocation 

of the suspended sentence in the case of possession of cocaine. 

I. 

 On May 10, 1988, the trial judge entered judgment orders 

convicting Ronald Donnell McCray of three felonies. The judge 

convicted McCray for possession of cocaine and sentenced him to 

ten years in prison with five years suspended. He also convicted 

McCray for felony larceny, issuing a bad check in violation of 

Code § 18.2-181, and sentenced him to twenty years in prison with 

fifteen years suspended. On another felony larceny conviction for 

issuing a bad check, the trial judge sentenced McCray to twenty 

years in prison with all twenty years suspended. The larceny 

sentences were to be served consecutive to the cocaine sentence. 

 Following a hearing on August 22, 1995, and a finding that 

McCray violated the conditions of the suspended sentences, the 

trial judge "revoke[d] the previously suspended sentence[s] [on 

all three convictions] but resuspend[ed]" the sentences on 

specified conditions. At a hearing on November 21, 1995, the 

trial judge made a finding that McCray violated the conditions of 

the 1995 "resuspen[sion]." The trial judge then "revoke[d] five 

years of [the] previously suspended sentence on the charge of 

possession of cocaine, but re-suspend[ed] two years under the same 

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terms and conditions as previously set out." The judge ordered 

McCray placed on supervised probation upon his release from 

prison. 

 On March 30, 1999, at a hearing to determine whether McCray 

had failed to comply with the conditions of his suspended 

sentences, McCray's counsel stipulated that McCray committed the 

charged infractions. He also informed the trial judge that the 

1988 convictions for issuing bad checks "are Class 6 felonies" and 

that the maximum sentence that should have been imposed was five 

years for each charge. Nonetheless, the trial judge ruled as 

follows: 

 It's the judgement of the Court . . . 

[that] you have about 37 years remaining 

here [and] that we're suspending 2 [years] 

on your cocaine and 15 [years] on your 

worthless checks, and 37 years in all. It's 

the judgment of the Court that the suspended 

time be revoked and that you be sentenced to 

the penitentiary to serve all the suspended 

time that you have remaining here. I will 

again suspend all of that time that you have 

here with the exception of three years. 

Consistent with that ruling, the trial judge entered an order on 

May 2, 1999, containing the following: 

The Court SENTENCES the defendant to: 

Incarceration . . . for the term of: 2 years 

for Possession of Cocaine, 15 years for 

Felony Worthless Check, CR88B-615-02 and, 20 

years for Felony Worthless Check, 

CR88B-615-03. The total sentence imposed is 

37 years. 

The sentence shall run consecutively with 

all other sentences. 

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The Court SUSPENDS 14 years of the Felony 

worthless Check, CR88-615-02 sentence, and 

20 years of the Felony Worthless Check, 

CR88B-615-03 sentence, for a total 

suspension of 34 years . . . . 

McCray appeals from this order. 

II. 

 The Commonwealth concedes that, when McCray was convicted 

in 1988 on two felony bad check charges, Code § 18.2-181 

provided that such a violation was a Class 6 felony and that the 

maximum sentence the trial judge could have imposed for such a 

conviction was five years in prison. See Code § 18.2-10(F). 

Accordingly, the Commonwealth agrees that after the trial judge 

sentenced McCray in 1988 to serve five years in prison on one 

bad check conviction, the trial judge could not have later 

revoked any portion of that sentence. 

 The Commonwealth also agrees that the trial judge did not 

specify either a period of probation or suspension when 

suspending all of the sentence on the second bad check charge. 

Thus, for any sufficient cause occurring within five years from 

1988, the trial judge had a maximum of one year after that five 

year period within which he could have revoked McCray's 

suspended sentence on that charge. See Code § 19.2-306. The 

trial judge did not do so. 

 The Supreme Court has ruled that "a sentence in excess of 

one proscribed by law is not void ab initio because of the 

excess, but is good insofar as the power of the court extends, 

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and is invalid only as to the excess." Deagle v. Commonwealth, 

214 Va. 304, 305, 199 S.E.2d 509, 511 (1973). Applying this 

principle, we hold that the trial judge erred in 1988 by 

imposing a prison sentence in excess of five years on each of 

the bad check convictions and that, therefore, the trial judge 

had no authority on May 2, 1999 to revoke suspended sentences 

with respect to the bad check convictions and incarcerate McCray 

on those revocations. 

III. 

 At the hearing on March 30, 1999, McCray stipulated that he 

had violated the terms of the suspended sentence. Moreover, the 

record establishes that the suspended sentence for the 

possession of cocaine conviction was then still in effect. 

 Although McCray did not raise any objection at trial 

concerning the revocation of the sentence for possession of 

cocaine, he contends on appeal that the trial judge also erred 

in revoking that sentence because it was done during "a unitary 

revocation procedure based upon a Show Cause for violating both 

void and valid sentences." Absent an objection at trial, we are 

precluded by Rule 5A:18 from considering this issue. 

 Furthermore, the record does not affirmatively show that a 

miscarriage of justice has occurred. See Mounce v. 

Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). 

McCray stipulated that he violated the conditions upon which the 

suspended sentence for possession of cocaine was imposed. 

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Furthermore, the record clearly established that at each 

proceeding since 1988, the trial judge separated and tailored 

each revocation to each conviction. Indeed, the order appealed 

from specifies the precise portion of the revoked suspended 

sentence attributable to the possession of cocaine conviction. 

Accordingly, we affirm this portion of the order. 

 Affirmed, in part and 

reversed and dismissed, 

in part. 

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