COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fe lton, Judges Frank and Petty Argued at Richmond, Virginia

ANGELINA LYNN HEIDERSCHEIDT MEMORANDUM OPINION * BY v. Record No. 1298-08-4 JUDGE WILLIAM G. PETTY JUNE 9, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAUQUIER COUNTY Herman A. Whisenant, Jr., Judge Designate Kevin J. Gerrity, Assistant Public Defender, for appellant. Leah A. Darron, Senior Assist ant Attorney General (Robert F. McDonnell, Attorney General; William C. Mims, Attorney General, on briefs), for appellee.

On appeal, Angelina Lynn Heider scheidt argues that the trial court lacked jurisdiction to

determine that she had violated th e conditions of her probation beca use the period of her probation had expired at the time the violations occurred. For the reasons stated below, we affirm the

conviction.

I. On June 22, 1995, the Circuit Court of Fauquier County en tered a standing order providing that “all persons granted and placed on probatio n” in Fauquier County from that ti me forward would be “probationed . . . under the terms and co nditions ordered by the Court set out as conditions eleven (11) through sixteen (16) below, which sha ll automatically become a part of every probation

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - order[.]” 1 The order was recorded in the court’s Miscellaneous Order Book 5, page 1769. Paragraph fourteen of the order requires that all persons on probation: Shall pay the fine, if any, and cost s of this prosecution together with interest to the Clerk of this Court within six (6) months. (If said fine and costs are not paid prior to the termination of probation, probation shall automati cally be extended until a hearing shall be conducted.) Five years later, in June 2000, Heiderscheidt pleaded gu ilty to one count of prescription

fraud in violation of C ode § 18.2-258.1. The tr ial court sentenced Heider scheidt to serve three years’ incarceration to run consecutive to any other sentence she had to serve, and assessed costs in the total amount of $666 against Heiderscheidt. The trial court then su spended all but twelve months of the sentence and placed Heiderscheid t on probation for a peri od of three years to commence upon her release from custody. Heiderscheidt was to “c omply with all of the terms and conditions of probation as set forth in the order of this Court entered on June 22, 1995 in

Miscellaneous Order Book 5, page 1769.” Heiderscheidt began her term of prob ation upon her release from incarceration on November 3, 2003. 2 At the time of her release, Heiderscheidt’s probation officer reviewed the terms and conditions of her proba tion with her and advised her that “her minimum date of release from supervision was November of 2006, but she would rema in under superv ision until she

received a final release.” On May 8, 2007—six months after her specific three-year term of probation expired on November 4, 2006—Heiderscheidt’s probation officer sent a letter to the trial court requesting that Heiderscheidt’s probation be extended two mo re years because Heiderscheidt never had paid

1 Paragraphs one through ten of the 1995 or der enumerated “the terms and conditions prescribed by the Virginia Department of Corrections . . . .”

2 Heiderscheidt’s active sentence on the charge that underlies this appeal was served consecutive to sentences on other, unrelated charges.- 3 - her court costs. On May 18, 2007, the trial court entered an order that extended her supervised probation for an additional two years, until November 4, 2008. Although Heiderscheidt endorsed the order, the record doe s not reflect whether there was a hearing prior to the extension of Heiderscheidt’s probation. On January 16, 2008, Heiderscheidt’ s probation officer sent a le tter to the trial court, alleging that Heiderscheidt had violated her s upervised probation. The probation officer reported that Heiderscheidt (1) failed to abide by all federa l, state, and local laws as demonstrated by a September 13, 2007 misdemeanor conviction of driv ing on a suspended driver’s license as well as a misdemeanor embezzlement conviction in another jurisdiction on January 1, 2008; (2) changed her residence several times since 2007 without notifying her probation officer; and (3) failed to pay her court costs in full. In response, the trial court issued a capias for Heidersc heidt to show cause why her probation should not be revoked. He iderscheidt filed a motion to di smiss, arguing that the trial court lacked jurisdiction. At th e hearing on the motion to dismiss, Heiderscheidt argued that the behavior alleged in the probati on violation letter all took place after her original term of probation ended on November 4, 2006. She also argued that the May 18, 2007 order that purported to extend the period of her superv ised probation until November 4, 2008 was not legitimate under Code § 19.2-304 because she was de nied her right to a hearing before her probation was extended. Following the hearing, the trial court deni ed Heiderscheidt’s motion to dismiss, explaining that she had adequate notice of the conditions of her probati on and that the probation

was for a set duration: It wasn’t indefinite probation. Th ere was a term of probation. But that term was predicated on her fulfilling certain conditions. One is paying fines and costs. She didn’t do that.- 4 - * * * * * * * I don’t think there’s any question that she was on probation. So the motion to dismiss is going to be denied at this time and we’ll proceed on the revocation. The trial court then took evidence regardi ng the probation violations and revoked one year of Heiderscheidt’s pr eviously suspended sentence. This appeal followed.

II. On appeal, Heiderscheidt asks this Court to determine whether the trial court erred “in denying appellant’s motion to dismiss, finding it s till maintained jurisdiction over the appellant, and that her term of supervised probation ha d been validly extended beyond its original expiration date.” Because the trial court’s re fusal to grant the motion to dismiss involves a purely legal determination, we review it de novo on appeal. See Young v. Commonwealth , 273 Va. 528, 533, 643 S.E.2d 491, 493 (2007). According to Code § 19.2-303, “[a]fter convi ction, whether with or without jury, the court may suspend imposition of sentence or susp end the sentence in whole or part and in addition may place the defendant on probation under such conditions as the court shall determine . . . .” This “statute places wide discretion in the trial court to determin e what conditions are to be imposed in each particular case.” Jackson v. Commonwealth , 29 Va. App. 418, 423, 512 S.E.2d 838, 841 (1999). A trial court may modify both the conditions of probation and the period of probation “but only upon a hearing after reasonable notice to both the defendant and the attorney for the Commonwealth.” Code § 19.2-304

. Our Supreme Court has “noted the wide latitude the legislature has afforded trial courts in fashioning reha bilitative programs for

defendants.” Nuckoles v. Commonwealth , 12 Va. App. 1083, 1085, 407 S.E.2d 355, 356 (1991) (citing Grant v. Commonwealth , 223 Va. 680, 685, 292 S.E.2d 348, 351 (1982)). Accordingly, the “probation statutes . . . should be liberally construed to provide trial courts a valuable tool for- 5 - rehabilitation of criminals.” Grant , 223 Va. at 685, 292 S.E.2d at 350 (citing Dyke v.

Commonwealth , 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952)).

Heiderscheidt reasons that the trial court was without jurisd iction to revoke her probation in January 2008 because the three-year term of probation set forth in her original sentencing order expired in November of 2006. Thus, she argues, the May 2007 order extending her probation was invalid and she was no longer subj ect to the terms of her probation when her probation was revoked in January 2008. At th e same time, though, Heiderscheidt does not dispute that she failed to pay he r court costs during the original term of probation, nor does she dispute that the 1995 standing order was incorpor ated into her sentencing order and constituted the terms and conditions of her probation. 3 We do not agree with Heiderscheidt’s premis e. While Heiderscheidt’s sentencing order set a three-year proba tion period, the 1995 order further provid ed that—in the event court costs were not paid during the probation period—probati on would be extended until the court held a hearing. Thus, by operation of the 1995 order, Heiderscheidt remained under the trial court’s jurisdiction after the specific three-year term expired and she was still under the trial court’s jurisdiction when it entered th e May 2007 order extending her pr obation another two years for failure to pay her court costs. 4 Because of that extension, Heiderscheidt was still bound by the

3 We note that the trial cour t entered another standing orde r in 2002 that modified the terms of the 1995 order and applied “henceforth [t o] all persons granted and placed on probation . . . .” However, the record does not indicate whether this modification complied with the notice and hearing provisions of Code § 19.2-304, which states in pertinent part that a trial court “may subsequently . . . modify any condition of pr obation, but only upon a hearing after reasonable notice to both the defendant and the attorney for the Commonwea lth.” Accordingly, we do not consider the terms of the 2002 order.

4 Because the end of the period of probation in this case was predicated on the occurrence of two definite events—the expiration of three years and, if not already paid during that three years, the payment of court costs— we note that this case does not involve an indefinite term of probation. Cf. Hartless v. Commonwealth , 29 Va. App. 172, 510 S.E.2d 738 (1999).- 6 - terms and conditions of her probation that she wa s found to have violated at the time of the revocation hearing below. Heiderscheidt, however, claims that the May 2007 order was void because she was not afforded a hearing as required by Code § 19.2-304. We disagree. Even assuming arguendo that the May 2007 order was entered without a he aring, the order would merely be voidable. 5 If the [trial] court has jurisdic tion of the subject matter of the controversy, and the parties are befo re it, . . . a mistaken exercise of that jurisdiction does not re nder its judgment void. The court has jurisdiction to err, as well as to correctly adjudicate the questions before it for decision, and the remedy to correct the errors of the court is solely by appeal.

Erickson-Dickson v. Erickson-Dickson , 12 Va. App. 381, 388-89, 404 S.E.2d 388, 392 (1991) (citations omitted). Therefore, the May 2007 or der was binding because it was neither vacated by the court that issued it with in the twenty-one-day time peri od of Rule 1:1, nor overturned by an appellate court. Wright v. Commonwealth , 52 Va. App. 690, 704, 667 S.E.2d 787, 794 (2008) (citations omitted).

III. For the foregoing reasons, the trial did not err when it denied Heiderscheidt’s motion to dismiss. At the time of the revocation hearing at issue in this case, the trial court had jurisdiction

over Heiderscheidt. We therefore affirm.

Affirmed.

5 Heiderscheidt endorsed the order extending her probation, and she does not contest that she had notice of the extension.