Nov 29, 2016 Virginia – Question whether a judge has jurisdiction to violate probation in the first place
In law school, we learn legal rules, legal tests, legal analysis, legal counter-analysis, legal theory, legalese, and legal jargon.
As criminal trial lawyers, we often spend so much time dealing with evidence, investigation, discovery and persuasion that we need to remember at each step to keep in mind the applicable law and arguments about the law.
Thanks to Virginia Assistant Public Defender Sherron E. Ashby for applying that maxim in today obtaining a reversal of the probation revocation of her client Charlie Luther Wilson, Jr. Wilson v. Com. ___ Va. App. ___ (Nov. 29, 2016). Essentially, the trial court extended Ashby’s probation indefinitely until all restitution was paid, but was without legal authority to do so because the original probation period had already ended by the time the probation extension order was issued. Furthermore, any alleged restitution violation happened after the end of Ashby’s suspended sentence period.
Wilson is an important read concerning (1) the circumstances under which a defendant waives the opportunity to challenge judicial orders, (2) how to determine when a trial judge loses the authority to extend a probation period, (3) how to determine the timeframe during which a defendant is obligated to satisfy a suspended sentence, and (4) how a criminal defense lawyer can try to exploit the lack of specificity in a trial judge’s written orders.
In isolation, Wilson looks like a dry opinion about procedure. In application, Wilson earned the defendant his liberty.