COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Elder 

Argued at Richmond, Virginia 

RONNIE LEE ROGERS 

 OPINION BY 

v. Record No. 0210-98-2 JUDGE JAMES W. BENTON, JR. 

 APRIL 27, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG 

John W. Scott, Jr., Judge 

Elizabeth Virginia Killeen (John F. 

Wilkinson, Assistant Public Defender, on 

brief), for appellant. 

Richard B. Smith, Assistant Attorney General 

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

for appellee. 

 The trial judge found that Ronnie Lee Rogers had violated 

conditions of his suspended sentence and ordered Rogers to 

participate in the Diversion Center Incarceration Program. See

Code § 19.2-316.3. Rogers contends the trial judge had no 

authority to order him to participate in the program because the 

trial judge already had revoked part of the suspended sentence. 

He also contends the trial judge violated Code § 19.2-303 and Rule 

1:1 by improperly modifying a sentence that had become final. For 

the reasons that follow, we affirm the judgment. 

 I. 

 In 1995, Rogers pled guilty to a felony charge of concealing 

merchandise in a store with the intent to convert the merchandise 
to his use without paying the purchase price. See Code 

§§ 18.2-103 and 18.2-104. A judge of the circuit court sentenced 

Rogers to two years in prison and suspended all but six months of 

the sentence on the condition that Rogers be of good behavior for 

five years following his release from prison. 

 The proceeding that gives rise to this appeal commenced on 

December 10, 1997, when Rogers appeared in the circuit court to 

show cause "why the sentence previously imposed and suspended 

should not be revoked, in whole or in part," because of an 

allegation that Rogers had violated conditions of his 1995 

suspended sentence and probation. During that hearing, Rogers' 

probation officer testified concerning acts committed by Rogers 

that violated conditions of his suspended sentence and probation. 

The probation officer also testified that she had caused the 

police to arrest Rogers and that she had placed Rogers into an 

in-patient program at the Piedmont House for treatment for 

alcoholism. While on a furlough from Piedmont House, Rogers was 

arrested for committing an offense in Prince William County and 

was terminated from the treatment program. 

 At the conclusion of the testimony, Rogers' attorney 

requested the trial judge to "order [Rogers] back into the 

[Piedmont House] program" and offered in evidence a letter stating 

that Piedmont House was willing to have Rogers return to the 

program. Rogers' attorney also noted that Rogers was required to 

attend a hearing the following week in Prince William County. 

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Stating her unfamiliarity with the Piedmont House program, the 

Assistant Commonwealth's Attorney requested the trial judge to 

consider the Diversion Center Incarceration Program established by 

Code § 19.2-316.3. 

 The trial judge "[found] that [Rogers] has violated the terms 

and conditions of the previously imposed sentence" and then 

recalled the probation officer to testify concerning the Piedmont 

House program. During her testimony, the probation officer said 

she had no dealings with Piedmont House prior to Rogers' 

placement. She also noted that Rogers had not been evaluated to 

determine his eligibility for the Diversion Center Incarceration 

Program. See Code § 19.2-316.3. Following the probation 

officer's testimony, the trial judge entered an order containing 

the following pertinent rulings: 

 It appearing to the Court that on 

December 13, 1995, in the Circuit Court of 

the City of Fredericksburg, Ronnie Lee 

Rogers was convicted of felony shoplifting. 

He was sentenced to serve two (2) years in 

the state penitentiary, and one (1) year and 

six (6) months of said sentence was 

suspended on condition that he remain of 

good behavior for a period of five (5) 

years, supervised probation and payment of 

court costs. 

 After hearing the evidence and argument 

of counsel, the Court finds that [Rogers] is 

in violation of the terms and conditions of 

his suspended sentence, and it is ORDERED 

that he is sentenced to confinement in jail 

through January 5, 1998. 

 It is ORDERED that this case is continued 

to January 5, 1998 at 9:00 a.m., for final 

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disposition, and it is ORDERED that [Rogers] 

remain incarcerated until that time. It 

appearing to the Court that [Rogers] has a 

charge in the Prince William Circuit Court, 

and if he is convicted and sentenced to 

serve an active period of time, the Attorney 

for [Rogers] is instructed to advise the 

Court. If no incarceration is imposed by 

Prince William Circuit Court or if he is 

released by Prince William, he shall be 

returned to the Rappahannock Regional Jail. 

 The Department of Probation and Parole 

shall evaluate [Rogers] for his eligibility 

for participation in the Men's Diversion 

Center Incarceration Program and file their 

report with the Court and with counsel. In 

the alternative, [Rogers'] counsel shall 

inquire of the Piedmont Program to determine 

[Rogers'] eligibility for said program, and 

shall advise the Court by January 5, 1998. 

 On January 5, 1998, the trial judge again heard testimony 

from the probation officer, who testified that Rogers was 

eligible for both programs. Noting Rogers' history of arrests 

for alcohol-related offenses and the program costs, the 

probation officer recommended placing Rogers in the Diversion 

Center Incarceration Program. Rogers' attorney argued that the 

Piedmont House program was the appropriate placement and further 

argued that because at the previous hearing, the trial judge 

revoked several weeks of the suspended sentence, the trial judge 

did "not [now have] an option to send [Rogers] to [the Diversion 

Center Incarceration] program." 

 The trial judge again ruled that Rogers "is in violation of 

the terms and conditions of the previously" suspended sentence 

and probation. Invoking Code § 19.2-316.3, the trial judge 

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revoked the "balance of the entire sentence and resuspended" it 

on condition that Rogers successfully complete the Diversion 

Center Incarceration Program. Rogers' attorney objected and 

stated that the trial judge's December 10, 1997 ruling, which 

incarcerated Rogers until January 5, 1998, was a sentence that 

Rogers had served. The trial judge overruled the objection and 

explained that Rogers' incarceration had been "transition time" 

for which the trial judge gave Rogers "credit for the time 

served while . . . waiting to enter" the Diversion Center 

Incarceration Program. 

II. 

 In pertinent part, Code § 19.2-316.3 provides as follows: 

1. Following . . . a finding that the 

defendant's probation should be revoked, 

upon motion of the defendant, the court may 

order such defendant committed to the 

Department of Corrections for a period not 

to exceed forty-five days from the date of 

commitment for evaluation and diagnosis by 

the Department to determine suitability for 

participation in the Diversion Center 

Incarceration Program. . . . 

2. Upon determination that (i) such 

commitment is in the best interest of the 

Commonwealth and the defendant and (ii) 

facilities are available for the confinement 

of the defendant, the Department shall 

recommend to the court in writing that the 

defendant be committed to the Diversion 

Center Incarceration Program. 

3. Upon receipt of such recommendation and 

a determination by the court that the 

defendant will benefit from the program and 

is capable of returning to society as a 

productive citizen following successful 

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completion of the program, and if the 

defendant would otherwise be committed to 

the Department, the court (i) shall impose 

sentence, suspend the sentence, and place 

the defendant on probation pursuant to this 

section or (ii) following a finding that the 

defendant has violated the terms and 

conditions of his probation previously 

ordered, shall place the defendant on 

probation pursuant to this section. Such 

probation shall be conditioned upon the 

defendant's entry into and successful 

completion of the Diversion Center 

Incarceration Program. 

(Emphasis added). 

 Rogers contends the trial judge had no authority to 

sentence him pursuant to Code § 19.2-316.3 because the trial 

judge had earlier revoked a part of Rogers' suspended sentence 

and sentenced him to a period of incarceration for violating his 

suspended sentence and probation. The Commonwealth argues that 

Rogers failed to object at the earlier hearing and thereby sent 

the unmistakable message that the trial judge's proposal was a 

permissible resolution of the matter. We agree in part with 

both positions. 

 At the December 1997 hearing, the trial judge ruled "that 

[Rogers] has violated the terms and conditions of the previously 

imposed probation, . . . [and] sentence[d] him to serve . . . a 

period of incarceration through January 5, 1998." Although the 

trial judge expressly stated that "[t]his is a conditional 

order," he also noted that, "[b]y being incarcerated for a 

period approaching two months, [Rogers] would also have been, in 

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essence, punished for his violation of the terms and conditions 

of the previously imposed sentence." It is likely that Rogers 

did not object at that time because the trial judge made the 

following oral ruling which left open the possibility of a 

referral to the Piedmont House program that Rogers sought: 

 The Office of Probation and Parole shall 

evaluate [Rogers] to determine his 

eligibility for the Men's Diversion Center 

Incarceration Program between now and 

January 5 returning a report to the Court 

and to all parties in ample time for a 

hearing on that date. 

 In the alternative, Counsel for [Rogers], 

if he is found to be ineligible for the 

Men's Diversion Center Incarceration 

Program, shall inquire of the Piedmont 

program as to his ability to return and be 

readmitted into that program effective 

January 5, 1998, and shall report that fact 

to the Court at the hearing on January 5th. 

 That way the Court will be advised as to 

whether or not both options are still 

available and will then choose on that date 

what the Court feels to be an appropriate 

program. 

 In any event, Code § 19.2-316.3 permits the trial judge to 

cause a defendant such as Rogers to be temporarily incarcerated 

as follows: 

[F]ollowing a finding that the defendant's 

probation should be revoked, upon motion of 

the defendant, the court may order such 

defendant committed to the Department of 

Corrections for a period not to exceed 

forty-five days from the date of commitment 

for evaluation and diagnosis by the 

Department to determine suitability for 

participation in the Diversion Center 

Incarceration Program. The evaluation and 

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diagnosis may be conducted by the Department 

at any state or local correctional facility, 

probation and parole office, or other 

location deemed appropriate by the 

Department. 

Code § 19.2-316.3(1). Although the trial judge indicated that 

the temporary detention of Rogers "would also . . . [be], in 

essence, punish[ment] for his violation of the terms and 

conditions of the previously [suspended] sentence," we believe 

that statement was made within the context of the trial judge's 

decision to detain Rogers while the attorneys explored the two 

program options. Certainly, the act of incarcerating Rogers was 

permitted by Code § 19.2-316.3 and the incarceration, if done 

pursuant to that statute, could have exceeded the period of time 

Rogers was in fact incarcerated. 

 The trial judge stated the order was "conditional" and 

apparently intended to preserve for Rogers the option of a 

referral to the Piedmont House program or to the Diversion 

Center Incarceration Program. Any error the trial judge may 

have made in stating that the temporary detention would be 

punishment was harmless. The incarceration exposed Rogers to no 

greater detriment than he would have experienced had the trial 

judge followed the precise strictures of Code § 19.2-316.3 and 

stated he was incarcerating Rogers for the sole purpose of 

evaluation and diagnosis. Thus, despite the trial judge's 

December 10, 1997 statement that he was incarcerating Rogers as 

punishment for violating conditions of the suspended sentence, a 

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review of the entire record shows that the trial judge 

substantially followed Code § 19.2-316.3. Indeed, as credit to 

Rogers for the time he was incarcerated pending the suitability 

evaluation and diagnosis, the trial judge reduced Rogers' 

remaining suspended sentence even though Code § 19.2-316.3 did 

not require such a result. 

 At oral argument before this Court, Rogers' attorney 

contended that referral to the Diversion Center Incarceration 

Program may only occur "upon motion of the defendant." Code 

§ 19.2-316.3. She argued that Rogers did not make any such 

motion. This objection was not made at trial. See Rule 5A:18. 

More significant, however, we believe the record clearly 

establishes that when Rogers was before the trial judge and in 

jeopardy of having his sentence revoked for probation 

violations, Rogers was seeking referral to a treatment program. 

Although Piedmont House was clearly his preference, Rogers was 

aware at the December hearing that the trial judge was seeking 

information regarding referrals for each program. Thus, 

although the motion from Rogers was not specific as to the 

Diversion Center Incarceration Program, we conclude that the 

trial judge's consideration of both programs upon Rogers' motion 

for referral to Piedmont House was not an abuse of discretion. 

III. 

 Rogers also contends the trial judge "erred in modifying a 

sentence imposed at the December 10, 1997 hearing on January 5, 

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1998 in violation of Code § 19.2-303 and Rule 1:1." Thus, 

Rogers argues he should be released because he has served the 

sentence the trial judge ordered. We disagree. 

 Code § 19.2-303 pertains to initial sentencing decisions 

following conviction, not to probation revocation procedures. 

Code § 19.2-303 has no applicability to the facts and procedural 

posture of this case. Furthermore, as we earlier noted, the 

trial judge was authorized to incarcerate Rogers "for a period 

not to exceed forty-five days" pending an evaluation as to 

suitability for placement in the Diversion Center Incarceration 

Program. See Code § 19.2-316.3. The incarceration did not 

exceed that limitation. 

 Rogers correctly notes that Rule 1:1 prohibits "[a]ll final 

judgments, orders, and decrees" from being modified after 

twenty-one days. However, the December 10, 1997 order was not a 

final order under Rule 1:1. The trial judge ruled that he was 

"conditional[ly]" ordering Rogers incarcerated until the trial 

judge had sufficient information to make a determination 

concerning the alternative programs and to issue a final order. 

Code § 19.2-316.3 permitted that incarceration as an interim 

measure. Thus, we conclude that the trial judge's December 10, 

1997 order was such an interim decision. At the January 5, 1998 

hearing, the trial judge received the evaluation pursuant to 

Code § 19.2-316.3 and entered a sentencing order. That order 

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was the final order, which the trial judge had authority to 

enter. 

 The judgment is affirmed. 

 Affirmed. 

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