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Simmers v. Commonwealth12/4/1990
DUFF, J.
In June, 1985, Roger Oliver Simmers was convicted of leaving the scene of an accident. On appeal, he contends that the trial court erred in refusing to vacate its sentencing order which suspended his penitentiary sentence on the condition that he not drive a motor vehicle for twenty years. We affirm.
Simmers was indicted for voluntary manslaughter and leaving the scene of an accident, based on his involvement in an automobile accident in which two persons were seriously injured, one of whom subsequently died. The manslaughter count was amended at trial to driving under the influence . Simmers entered pleas of guilty to both counts of the amended indictment. The trial court sentenced him to twelve months in jail and a $1,000 fine on the driving under the influence charge. On the charge of leaving the scene of an accident, the court imposed a sentence of five years in the penitentiary but suspended this sentence upon the following conditions: (1) that the defendant be of good behavior, (2) that he be on active probation for a period of two years, (3) that he undergo substance abuse and mental health evaluation, (4) that he enter and complete programs recommended as a result of the evaluations and (5) that he not drive a motor vehicle for a period of twenty years. Simmers served his time in jail and remained on supervised probation for two years during which time he underwent
all court-ordered evaluations and followed all recommended treatment plans.
At sentencing Simmers did not object to the conditions placed on his suspended sentence. Further, he made no motion within twenty-one days of sentencing that the provisions be vacated, nor did he note an appeal from the decision of the trial court. Since he does not contest that his plea was voluntarily entered, he cannot prevail on appeal unless the trial court either lacked jurisdiction or imposed a sentence greater than that authorized by law. See Stokes v. Slayton, 340 F. Supp. 190, 192-93 (W.D. Va. 1972), aff'd, 473 F.2d 906 (4th Cir. 1973).
On February 23, 1989, over three years after sentencing, Simmers filed his motion to vacate that portion of the trial court's sentencing order which prohibited him from driving for twenty years. The basis of the motion was that the court lacked the authority to impose any condition on the suspended sentence or probation for a period of time in excess of his probation period and that revoking his privilege to operate a motor vehicle exceeded the court's authority. The motion was denied by a letter from the court on February 28, 1989, noting that the prohibition against driving was not part of the sentence but was instead a condition of the suspension of the sentence. This appeal followed.
A careful reading of the sentencing order discloses that the twenty-year prohibition against driving was not a condition of active, supervised probation as Simmers contends. The probation lasted for two years; the prohibition on driving exists for twenty years. Furthermore, the language of the order clearly discloses the court's intent. After imposing a five-year penitentiary sentence, the order stated: "It appearing compatible with the public interest to do so, the court doth now suspend all of the said sentence conditioned upon...that he not drive a motor vehicle for a period of twenty years." Another, and separate, condition of the suspension was that Simmers be on active probation for a period of two years. However, the prohibition against driving was clearly a condition of the suspension of the five-year penitentiary sentence.
We
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