Fuller v. Commonwealth
In Fuller v. Commonwealth, 189 Va. 327, 333, 53 S.E.2d 26, 29 (1949), the jury found Fuller guilty of seducing an unmarried female of previously chaste character and fixed his sentence at two years in prison.
However, the trial court found, according to its order under review by the Supreme Court, that "there were mitigating circumstances of sufficient nature to justify suspension of the sentence in accordance with provisions of section 1922b of the Code of Virginia."
The trial court, though, decided to wait for a report from the probation officer before taking such action.
Furthermore, upon being advised that Fuller wished to appeal his conviction, the trial court suspended the imposition of the sentence "for a period of sixty days" to allow for the appeal.
On appeal, the Supreme Court raised the threshold issue of whether the trial court's order suspending the imposition of the defendant's sentence was a final, appealable order.
It examined the two distinct suspensions of the imposition of the defendant's sentence raised in the trial court's order, namely, the contemplated suspension under Code 1922b based on mitigating circumstances and the ordered sixty-day suspension to allow for the appeal.
The Supreme Court noted that in the absence of statute the pronouncement of sentence is a prerequisite to the finality of a judgment. Consequently, where an appeal is limited to a final judgment, an order wherein the pronouncement of sentence is suspended is ordinarily not appealable.
But the legislature may, of course, by appropriate statute permit an appeal from, or a writ of error to, such a judgment or order.
This may be done either by express language granting the right of review of such an order, or by giving the judgment or order the necessary characteristics of a final judgment so as to be reviewable under the general law. Id. at 330, 53 S.E.2d at 27.
The Court found that Code 1922b, which allowed a court to suspend the imposition or the execution of a defendant's sentence and place the defendant on probation, fell "within the latter category." Id.
"After the trial court has adjudged the defendant 'guilty' and has suspended either 'the imposition or the execution of sentence, or commitment' of the defendant, and has fixed the terms of his probation, it has," according to the Court, "made a complete disposition of the case within the purview of the statute.
Its action is then final and subject to review." Id. at 332, 53 S.E.2d at 28 (quoting Code 1922b).
To conclude otherwise, the Court opined, "would strip this highly remedial statute of much of its usefulness." Id.
Clearly, the Court added, the statute did not contemplate putting the defendant in the position of having to "surrender his right to a suspension of the imposition of sentence and submit to a judgment, perhaps branding him a felon, as a condition to his right of appeal." Id. at 332-33, 53 S.E.2d at 28.
Ultimately, though, the Supreme Court decided that the particular order before it was not a final, appealable order, as contemplated by Code 1922b, because it was "not a complete disposition of the case." Id. at 333, 53 S.E.2d at 28.
The temporary suspension the trial court ordered of the imposition of Fuller's sentence was "not under the authority of the probation statute but merely for the purpose of perfecting an appeal." Id. at 333, 53 S.E.2d at 29.
Because the trial court was awaiting the probation report, the order did not fix the terms of the probation or the sentence. Id. at 333, 53 S.E.2d at 28-29.
"Clearly, then," as the Supreme Court concluded, "the matter was still in the breast of the trial court." Id. at 333, 53 S.E.2d at 28.