COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

BETTYE RENEE NICHOLS 

 MEMORANDUM OPINION* BY 

v. Record No. 1549-97-1 JUDGE RICHARD S. BRAY 

 JUNE 9, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

E. Preston Grissom, Judge 

 Heather Buyrn Crook (Buyrn & Crook, on 

brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Bettye Renee Nichols (defendant) appeals the revocation of a 

suspended sentence resulting from violations of the terms and 

conditions of attendant probation, complaining that the court 

imposed a "term of confinement . . . [which] was 

[unconstitutionally] disproportionate and excessive" and beyond 

the maximum penalty allowed by statute. We affirm the revocation 

but remand for resentencing consistent with this opinion. 

 The parties are conversant with the record and this 

memorandum opinion recites only those facts necessary to 

disposition of the appeal. 

 I. 

 On May 20, 1996, defendant was convicted of an "Attempt To 

 

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

designated for publication. 
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Obtain Drug By Fraud," a violation of Code § 18.2-258.1, and 

sentenced to seven years in the penitentiary, suspended upon 

certain conditions, including supervised probation and the 

requirement that defendant remain "drug free." Subsequently, on 

January 27, 1997, defendant was convicted of several additional 

offenses and, again, sentenced to incarceration, suspended upon 

"special conditions" of supervised probation. 

 Acting on a "Probation Violation Report," dated February 26, 

1997, which advised that defendant had submitted a "urine screen 

positive for heroin and cocaine on February 1, 1997," the court 

issued a capias for her arrest. At the subsequent probation 

revocation hearing, the test results, together with other 

evidence of defendant's noncompliance with the terms of 

probation, were received into evidence. At the conclusion of the 

proceeding, the court found defendant in violation of probation, 

revoked the suspended sentences and sentenced defendant to six 

years and nine months in the penitentiary for the initial drug 

offense, a year in jail for one among the later offenses, and 

resuspended the remaining sentences. 

 II. 

 By statute, a trial judge in Virginia 

"may, for any cause deemed by [the judge] 

sufficient which occurred at any time within 

the probation period . . . revoke the 

suspension of sentence." The revocation of 

the suspended sentence "must be based on 

reasonable cause," and must be based upon 

cause that occurred within the suspension or 

probation period. 

 
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Bailey v. Commonwealth, 19 Va. App. 355, 357, 451 S.E.2d 686, 687 

(1994) (citations omitted); Code § 19.2-306. "[T]he power of the 

courts to revoke suspensions and probation for breach of 

conditions must not be restricted beyond the statutory 

limitations." Briggs v. Commonwealth, 21 Va. App. 338, 344, 464 

S.E.2d 512, 514 (1995) (citations omitted). Thus, "the issue on 

review of a revocation is 'simply whether there has been an abuse 

of discretion.'" Connelly v. Commonwealth, 14 Va. App. 888, 890, 

420 S.E.2d 244, 245 (1992) (citations omitted); Code § 19.2-306. 

 "The legislature has set the range for punishment for those 

who violate the [criminal] code provisions. In establishing the 

sentencing range it endowed the trial court with inherent and 

discretionary power to impose appropriate sentences." Hudson v. 

Commonwealth, 10 Va. App. 158, 160, 390 S.E.2d 509, 510 (1990) 

(citations omitted). "We have held in numerous cases that when a 

statute prescribes a maximum imprisonment penalty and the 

sentence does not exceed that maximum, the sentence will not be 

overturned as being an abuse of discretion." Abdo v. 

Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977) 

(citations omitted). Moreover, "[a] sentence in excess of one 

prescribed by law is not void ab initio because of the excess, 

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

invalid only as to the excess." Deagle v. Commonwealth, 214 Va. 

304, 305, 199 S.E.2d 509, 510-11 (1973) (citations omitted). 

 The offense of obtaining drugs by fraud in violation of Code 
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§ 18.2-258.1 is a Class 6 felony, punishable by a prison term of 

"not more than five years." Code §§ 18.2-10(f), -258.1(h). 

However, the trial court in this instance initially sentenced 

defendant to seven years for the crime and, upon revocation, 

imposed the remainder of the term, six years and nine months. 

Thus, "[t]he excessive portion of [defendant's] sentence is 

invalid." See Bell v. Commonwealth, 11 Va. App. 530, 534, 399 

S.E.2d 450, 453 (1991) (citations omitted). "Because we cannot 

summarily reduce [defendant's] sentence, we remand the case to 

the trial court for resentencing." Id. (citations omitted). 

 Accordingly, we affirm the disputed revocation but remand 

for the trial court to resentence defendant consistent with Code 

§ 18.2-258.1 and this opinion. 

 Affirmed in part,

reversed in part,

and remanded.