COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Beales and Raphael

Argued at Norfolk, Virginia

DUSTIN LEE HAMILTON

OPINION BY

v. Record No. 1367-22-1 JUDGE RANDOLPH A. BEALES

FEBRUARY 6, 2024

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE

John W. Brown, Judge

Brett P. Blobaum, Senior Appellate Attorney (Virginia Indigent

Defense Commission, on briefs), for appellant.

Victoria Johnson, Senior Assistant Attorney General (Jason S.

Miyares, Attorney General; Andrew T. Hull, Assistant Attorney

General, on brief), for appellee.

At a probation revocation hearing in August 2022, Dustin Hamilton was found to be in

violation of the terms of his probation. The trial court revoked Hamilton’s previously suspended

sentence, and then resuspended a portion of that previously suspended sentence. The trial court

also placed Hamilton back on supervised probation, and it added a new twenty-year period of

good behavior. On appeal, Hamilton argues, “The trial court erred in finding that it had

jurisdiction to revoke Mr. Hamilton’s previously suspended sentences.” Hamilton also argues,

“The trial court erred in returning Mr. Hamilton to supervised probation” and “in ordering

Mr. Hamilton to be of good behavior for twenty (20) years.”

I. BACKGROUND

On appeal, “we will view the evidence received at the revocation hearing in the light 

most favorable to the Commonwealth, as the prevailing party, including all reasonable and 

PUBLISHED
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legitimate inferences that may properly be drawn from it.” Henderson v. Commonwealth, 285 

Va. 318, 329 (2013).

In 2006, Hamilton was found guilty of three counts of distribution of marijuana for

offenses that took place during September 2005. On August 11, 2006, the trial court sentenced

Hamilton to fifteen years of imprisonment with fourteen years and four months suspended.

Specifically, Hamilton was sentenced to five years of imprisonment for each conviction.

Hamilton was placed on supervised probation for an indeterminate period and was also ordered

to be of good behavior for an indeterminate period.

In 2008, Hamilton pleaded guilty to violating the terms of his probation by absconding,

failing to pay restitution, and failing to maintain contact with his probation officer. The trial

court revoked Hamilton’s previously suspended sentence of fourteen years and four months, and

it resuspended thirteen years and ten months of that sentence. Hamilton was again placed on

supervised probation for an indeterminate period and was also ordered to be of good behavior for

an indeterminate period.

In 2010, Hamilton’s probation officer filed a second major violation report stating that

Hamilton had acquired new criminal charges and that he had failed to notify his probation officer

of these new charges. In addition, the violation report detailed that Hamilton was absconding

and that he had failed to report to probation. The trial court found that Hamilton violated the

terms of his probation again, and the trial court then revoked Hamilton’s previously suspended

sentence of thirteen years and ten months. The trial court then resuspended twelve years and ten

months of that sentence “on the same conditions as contained in the previous sentencing order of

this Court.”

In 2014, Hamilton was convicted of robbery, and, on November 18, 2014, he was

sentenced to fifteen years of imprisonment with ten years suspended for a period of suspension
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of twenty years. The trial court also found that Hamilton had violated the terms of his probation

for the third time because he had acquired this new robbery conviction. The trial court revoked

the twelve years and ten months of the suspended sentence for his underlying convictions from

2006. It then resuspended ten years and ten months of that sentence “on the same conditions as

contained in the previous sentencing order,” and it also placed Hamilton on supervised probation

“for three (3) additional years.”

In 2022, Hamilton’s probation officer filed a fourth major violation report alleging that

Hamilton had failed to report to probation and that Hamilton had tested positive for Fentanyl in

September and November 2021. At the probation revocation hearing, Hamilton pleaded guilty to

both probation violations, but he later moved to set aside the circuit court’s verdict. In his

motion to set aside the verdict, Hamilton cited the 2021 amendments to Code § 19.2-306, and he

argued, “Any sentence for a probation violation after July of 2021 for the Possession with the

Intent to Distribute Marijuana charge from 2006 could not be imposed after 2016 because the

‘period of probation’ is limited to the maximum period for which the defendant might have been

imprisoned.”

1 He then argued, “Since Mr. Hamilton was sentenced more than ten years ago, this

court lacks subject matter or active jurisdiction over the defendant and any violation filed after

July 1, 2021.”

The trial court rejected Hamilton’s argument, and it determined that it still had

jurisdiction over Hamilton’s previously suspended sentence. According to the September 20,

2022 revocation order, the trial court revoked a total of twenty years and ten months of the

previously suspended sentence (combining the ten years and ten months of the suspended

sentence remaining from the 2006 convictions with the ten years of the suspended sentence from

1 The record actually shows that Hamilton was previously convicted of a Class 5 felony 

for each of his Distribution of Marijuana convictions. See Code § 18.2-248.1(a)(2). A Class 5

felony, both today and in 2006, carries a maximum sentence of ten years of imprisonment. See 

Code § 18.2-10(e). 
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the 2014 robbery conviction), and it then resuspended a total of eighteen years and six months,

giving him an active sentence of two years and four months. In addition, the trial court ordered,

“Sentence suspended on the same conditions as contained in the previous sentencing order of this

Court with the following additions or changes: 1. Good behavior. The defendant shall be of

good behavior for twenty (20) years.” The trial court also placed Hamilton on supervised

probation for an indeterminate period. Hamilton now appeals.

II. ANALYSIS

A. The trial court’s jurisdiction over Hamilton’s suspended sentence

On appeal to this Court, Hamilton argues, “The trial court erred in finding that it had

jurisdiction to revoke Mr. Hamilton’s previously suspended sentences.” Specifically, Hamilton

argues that, under the 2021 amendments to Code § 19.2-306(C), the trial court lost jurisdiction

over his previously suspended sentence on August 11, 2016 because his 2006 convictions only

resulted in a period of suspension for that suspended sentence of ten years. Hamilton contends

that the trial court here erred when it combined the maximum possible sentences of his three

2006 convictions to calculate the period of suspension for Hamilton’s previously suspended

sentence.

This appeal requires us to interpret Code § 19.2-306 to determine whether the trial court

had jurisdiction to revoke and resuspend Hamilton’s suspended sentence. A trial court’s decision

to revoke a suspended sentence “will not be reversed unless there is a clear showing of abuse of

discretion.” Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013) (quoting Davis v.

Commonwealth, 12 Va. App. 81, 86 (1991)). However, “[t]he question of the authority of the 

trial court to revoke appellant’s suspended sentence is one of statutory interpretation and presents 

a pure question of law, which this Court reviews de novo.” Hodgins v. Commonwealth, 61

Va. App. 102, 107 (2012).
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“When coupled with a suspended sentence, probation represents ‘an act of grace on the 

part of the Commonwealth to one who has been convicted and sentenced to a term of 

confinement.’” Price v. Commonwealth, 51 Va. App. 443, 448 (2008) (quoting Pierce v. 

Commonwealth, 48 Va. App. 660, 667 (2006)). The Supreme Court has stated, “When a trial 

judge suspends a sentence, however, he does not make a contract with the accused, but only 

extends to him the opportunity which the State affords him to repent and reform.” Richardson v. 

Commonwealth, 131 Va. 802, 810 (1921). “It is the free gift of the Commonwealth, and not a 

contract to relieve him from the punishment which fits his crime.” Id. The Supreme Court has

consistently reiterated, “[P]robation statutes are highly remedial and should be liberally 

construed to provide trial courts a valuable tool for rehabilitation of criminals.” Burnham v.

Commonwealth, 298 Va. 109, 116 (2019) (quoting Grant v. Commonwealth, 223 Va. 680, 684

(1982)). In addition, the Supreme Court has directed that “the power of the courts to revoke 

suspensions and probation for breach of conditions must not be restricted beyond the statutory 

limitations.” Grant, 223 Va. at 684.

After a defendant has been convicted of a criminal offense, the trial court “may suspend 

imposition of sentence or suspend the sentence in whole or part and in addition may place the 

defendant on probation under such conditions as the court shall determine.” Code § 19.2-303.

Code § 19.2-303.1 sets the trial court’s jurisdictional time limit over the defendant’s suspended

sentence – referred to as the “period of suspension.” This statute states, “In any case where a 

court suspends the imposition or execution of a sentence, it may fix the period of suspension for 

up to the statutory maximum period for which the defendant might originally have been 

sentenced to be imprisoned.” Code § 19.2-303.1. If a trial court does not explicitly fix a period

of suspension for the defendant’s suspended sentence, then the period of suspension is “the 

maximum period for which the defendant might originally have been sentenced to be 
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imprisoned.” Code § 19.2-306(A). Under the 2021 amendments to Code § 19.2-306(C), “The 

court shall measure the period of any suspension of sentence from the date of the entry of the 

original sentencing order.”

If a defendant violates the terms of his suspended sentence during the period of

suspension, then Code § 19.2-306(C) authorizes the trial court to “revoke the suspension and 

impose a sentence in accordance with the provisions of § 19.2-306.1.” According to the

amendments to Code § 19.2-306(C), when the trial court issues this new sentence after finding

that the defendant violated the terms of his suspended sentence, “[t]he court may again suspend 

all or any part of this sentence for a period up to the statutory maximum period for which the 

defendant might originally have been sentenced to be imprisoned, less any time already served, 

and may place the defendant upon terms and conditions or probation.” Code § 19.2-306(C).

Here, Hamilton was found guilty of three counts of distribution of marijuana for offenses

that took place in September 2005. On August 11, 2006, Hamilton was sentenced to a total of

fifteen years of imprisonment with fourteen years and four months suspended for those

convictions. While Hamilton was given a sentence of five years of imprisonment for each of his

three underlying convictions, he could have been sentenced to a maximum of ten years of

imprisonment for each of those convictions. See Code §§ 18.2-10(e) and 18.2-248.1(a)(2). In

addition, Hamilton would have served those three sentences consecutively because Code

§ 19.2-308 requires, “When any person is convicted of two or more offenses, and sentenced to 

confinement, such sentences shall not run concurrently, unless expressly ordered by the court.”

Given that the August 11, 2006 sentencing order does not indicate that the sentences for

Hamilton’s three underlying convictions must run concurrently, the sentences for these three

convictions must be served consecutively under Code § 19.2-308. Furthermore, because the

August 11, 2006 sentencing order did not fix a period of suspension for the suspended sentence,
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the period of suspension for Hamilton’s suspended sentence is “the maximum period for which

the defendant might originally have been sentenced to be imprisoned.” Code § 19.2-306(A).

Consequently, because Hamilton’s three underlying sentences would run consecutively and

because Hamilton’s underlying offenses each have a maximum possible sentence of ten years of

imprisonment, “the maximum period for which the defendant might originally have been 

sentenced to be imprisoned” is thirty years of imprisonment. Id. Therefore, Hamilton has a

thirty-year period of suspension on the suspended sentence for his three August 11, 2006

convictions for distribution of marijuana. Given that the trial court must measure the period of

suspension “from the date of the entry of the original sentencing order,” the period of suspension

(and therefore the trial court’s jurisdiction) over these three convictions will be in effect until

August 11, 2036. Code § 19.2-306(C).

By combining the maximum sentences that Hamilton could have received for each

respective conviction, the trial court was simply calculating “the maximum period for which the 

defendant might originally have been sentenced to be imprisoned.” Code § 19.2-306(A).

Furthermore, this Court has already recognized that a trial court may combine the maximum

potential sentences from a defendant’s multiple underlying convictions in order to calculate the

period of suspension when all of those convictions arose out of the same case. See Davis v.

Commonwealth, 70 Va. App. 722, 733 n.3 (2019) (applying Rule 3A:6(b) to combine the

maximum sentences of two convictions that were tried together but were given separate

sentencing orders). Indeed, the trial court would have certainly been authorized to order

Hamilton to serve an active sentence consisting of three ten-year sentences that ran

consecutively. Cf. Minh Duy Du v. Commonwealth, 292 Va. 555, 564 (2016) (“[W]hen a statute 

prescribes a maximum imprisonment penalty and the sentence does not exceed that maximum, 
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the sentence will not be overturned as being an abuse of discretion.” (quoting Alston v.

Commonwealth, 274 Va. 759, 771-72 (2007))).

We also note that the trial court’s jurisdiction in this case is not changed by the fact that

Hamilton has already served a portion of his suspended sentence. Unlike the suspended sentence

itself, the period of suspension is not affected by the amount of time that a defendant actively

serves in prison. While a trial court must, of course, reduce the remaining time of the suspended

sentence as the defendant actively serves that time, the period of suspension does not get reduced

as the defendant actively serves these portions of his suspended sentence. See Code

§ 19.2-306(C). For example, if the trial court here had originally sentenced Hamilton to thirty

years of imprisonment (with sixteen years of active imprisonment and with fourteen years

suspended), the trial court would not lose jurisdiction over Hamilton’s fourteen-year suspended

sentence once Hamilton had served more than fifteen years of active imprisonment. If the period

of suspension were reduced as the defendant actively served time, then a trial court would always

lose jurisdiction over a defendant’s suspended sentence when that defendant had served enough

active time that was more than half of his period of suspension. Consequently, given that

Hamilton’s thirty-year period of suspension began on August 11, 2006 and given that a trial

court must “measure the period of any suspension of sentence from the date of the entry of the 

original sentencing order,” the trial court will lose jurisdiction over Hamilton’s suspended

sentence on August 11, 2036 – regardless of how much time Hamilton actively serves of that

previously suspended sentence. Code § 19.2-306(C).

In short, the trial court still has jurisdiction to revoke the remaining ten years and ten

months of Hamilton’s previously suspended sentence from his 2006 convictions, impose two

years and four months of that sentence as it did, and then resuspend eight years and six months.

Therefore, we cannot say that the trial court erred when it ordered Hamilton to serve a portion of
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his previously suspended sentence. In addition, given that the trial court had jurisdiction to

revoke and resuspend Hamilton’s previously suspended sentence, the trial court also had

jurisdiction to place Hamilton back on supervised probation. Consequently, we also cannot say

that the trial court erred when it ordered Hamilton to be returned to supervised probation upon

his release from prison.

B. Hamilton’s new good behavior requirement

While the trial court correctly determined that it had jurisdiction over Hamilton’s

suspended sentence, the trial court erred when it added a new requirement that Hamilton be of

good behavior for an additional twenty years. In its September 20, 2022 order, the trial court

revoked Hamilton’s previously suspended sentence and then resuspended a portion of that

sentence – none of which is a problem. The order then states, “Sentence suspended on the same

conditions as contained in the previous sentencing order of this Court with the following

additions or changes: 1. Good behavior. The defendant shall be of good behavior for twenty

(20) years.” (Emphasis added). The Supreme Court has consistently stated, “It is the firmly

established law of this Commonwealth that a trial court speaks only through its written orders.”

Davis v. Mullins, 251 Va. 141, 148 (1996). Therefore, this Court must read the September 20,

2022 order to mean that the trial court has now added a new twenty-year period of good behavior

because the order actually says that this condition is one of the “additions or changes.”

Code § 19.2-306(A) allows a trial court to revoke a defendant’s suspended sentence if the

defendant violates the terms of his probation or suspended sentence “within the period of

suspension.” Effective July 1, 2021, the General Assembly amended the statute to make clear

that “[t]he court shall measure the period of any suspension of sentence from the date of the

entry of the original sentencing order.” Code § 19.2-306(C). This Court has previously

explained that “once that period of suspension expires the defendant is no longer subject to 
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having the suspension revoked.” Carbaugh v. Commonwealth, 19 Va. App. 119, 126 (1994). As

noted supra, the period of suspension for Hamilton’s 2006 convictions ends on August 11, 2036.

In addition, Hamilton’s November 18, 2014 sentencing order for his robbery conviction

expressly provided for a twenty-year period of suspension. Given that the trial court must now

measure the period of suspension “from the date of the entry of the original sentencing order,”

the period of suspension for Hamilton’s 2014 robbery conviction will end on November 18,

2034. Code § 19.2-306(C). However, the new twenty-year period of good behavior in the

September 20, 2022 order will not expire until September 20, 2042 – which clearly ends well

after both of the respective periods of suspension. Consequently, the trial court entered an order

beyond a period that the recently amended statute allows the trial court to enforce it. Therefore,

the trial court erred by ordering Hamilton to be of good behavior for twenty additional years

because the trial court will lose jurisdiction over both of Hamilton’s suspended sentences long

before that new twenty-year period requiring good behavior ends.

III. CONCLUSION

In short, the trial court did not err in determining in its September 20, 2022 order that it still

had jurisdiction over Hamilton’s suspended sentence. The period of suspension for Hamilton’s

suspended sentence that was entered by order on August 11, 2006 will end on August 11, 2036

because he could have originally been sentenced to a maximum of thirty years of imprisonment.

The trial court explicitly stated that the period of suspension for his suspended sentence for his 2014

robbery conviction is twenty years, and it therefore ends on November 18, 2034. Therefore, on

September 20, 2022, the trial court was well within the period of suspension for either of

Hamilton’s previously suspended sentences and certainly had jurisdiction then to revoke his

previously suspended sentence, impose two years and four months of active incarceration, and

resuspend the remainder of that previously suspended sentence. Furthermore, the trial court also did
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not err when it ordered Hamilton to be returned to supervised probation upon his release from

confinement. Consequently, we affirm the trial court’s decision to revoke Hamilton’s suspended

sentence, to impose an active sentence of two years and four months, to resuspend the remainder of

that previously suspended sentence, and to have Hamilton returned to supervised probation upon his

release from incarceration. However, we hold that the trial court erred in ordering that Hamilton be

of good behavior for an additional twenty years from the date of the trial court’s September 20,

2022 order until September 20, 2042. We must reverse that requirement in the trial court’s order

because the trial court will lose jurisdiction over a large portion of that time requiring good behavior

no later than August 11, 2036, and the General Assembly has been clear that a court does not have

authority to impose requirements for a suspended sentence when the period of suspension for that

suspended sentence has expired.

For all of these reasons, we uphold the judgment of the trial court, except that we remand to

the trial court only for it to correct its September 20, 2022 order regarding the good behavior

requirement.

Affirmed in part, and reversed and remanded in part.