Probation & Suspended Sentence Violations

Suspended Sentence

Suspending a sentence is delaying either the execution of an imposed sentence or the imposition of a sentence. § 19.2-303. The court suspends "under terms and conditions which shall be entered in writing." Word v. Commonwealth, 41 Va. App. 496 (2003).

The court does not contract with the defendant. Suspension is "the free gift of the Commonwealth, and not a contract to relieve him from the punishment which fits his crime." Cilwa v. Commonwealth, 298 Va. 259 (2019).

Probation

Probation is "the continued supervision by the court over the convicted offender" and may be either supervised (by a probation officer) or unsupervised (commonly called good behavior). Word v. Commonwealth, 41 Va. App. 496 (2003); Hill v. Commonwealth, 73 Va. App. 206 (2021).

Good Behavior

Good behavior is "conduct conforming to the law." Griffin v. Cunningham, 205 Va. 349 (1964). Good behavior is a long-standing term of art and is implicit in every suspended sentence, with or without probation, whether expressly stated or not. Marshall v. Commonwealth, 202 Va. 217 (1960); Coffey v. Commonwealth, 209 Va. 760 (1969); Burnham v. Commonwealth, 298 Va. 109 (2019). The good-behavior requirement does not disappear because a later sentencing order omits to expressly carry it over. Burnham, 298 Va. at 118.

"Good conduct" and "good behavior" have no materially different ordinarily understood definitions. Diaz-Urrutia v. Commonwealth, 77 Va. App. 182 (2023).

Jurisdictional Timeline Under § 19.2-306(B)

The court must issue process within the earlier of: (1) 90 days of the court receiving notice of the alleged violation; or (2) one year after expiration of the period of probation or suspension. § 19.2-306(B).

Special Timelines

The absconding/out-of-jurisdiction exception. Where a probationer commits a new crime within the probation period, is arrested by another jurisdiction, and thereby places himself beyond the control of the sentencing court, the one-year time constraint is suspended until the other jurisdiction releases him — provided the original court issues a warrant and detainer as soon as practicable. Rease v. Commonwealth, 227 Va. 289, 295 (1984); Pierce v. Commonwealth, 48 Va. App. 660 (2006).

Two Forms of Process — Show Cause vs. Capias

A proper request includes: defendant's identifying information (including last-known address for show cause), full information regarding the suspended sentence and its terms, the factual allegations underpinning the violation, and (for show cause) a requested return date. Local rules may require the prosecutor to prepare the order itself.

Choice of Code Section

Pleading the Allegations

• Every alleged violation must be in writing and given to the defendant. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). The form is not the issue — the fact of notice is. Price v. Commonwealth, 51 Va. App. 443, 447 (2008).
• Adequate mechanisms include the show cause order, prosecutor correspondence (Logan v. Commonwealth, 50 Va. App. 518, 525 (2007)), or inclusion of the MVR (Price, 51 Va. App. at 447).
• Failure to provide notice of an alleged violation prevents the court from finding the defendant in violation on that ground. Copeland v. Commonwealth, 14 Va. App. 754, 756 (1992).
• Amendments to the petition/show cause/capias are available to add allegations. The Double Jeopardy Clause does not bar a fresh petition (Gagnon, 411 U.S. at 782), but § 19.2-306(D) bars relitigation of the same alleged violation after a no-cause finding.

Burden of Proof

Good cause. § 19.2-306(A); Burnham v. Commonwealth, 298 Va. 109, 115 (2019). Lower than beyond a reasonable doubt, lower than clear and convincing — the Commonwealth must show "good cause" the violation occurred.

Defendant's Constitutional Rights (Morrissey/Gagnon)

Morrissey v. Brewer, 408 U.S. 471, 489 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) establish the limited Fourteenth Amendment Due Process floor:

1. Written notice of the claimed violations
2. Disclosure of the evidence against the probationer
3. Opportunity to be heard in person and present witnesses and documentary evidence
4. The right to confront and cross-examine adverse witnesses (unless the court specifically finds good cause for not allowing confrontation)
5. A neutral and detached hearing body
6. A written statement by the factfinder as to the evidence relied on and reasons for revocation

Hearsay and the Confrontation Right

The Rules of Evidence "are not strictly applied" in revocation proceedings and hearsay is "frequently admitted." Jenkins v. Commonwealth, 71 Va. App. 334, 343 (2019); Va. R. Evid. 2:1101(c)(1). Revocation procedure "should be flexible enough to consider evidence that would not be admissible in an adversary criminal trial." Morrissey, 408 U.S. at 489.

But testimonial hearsay is subject to the limited Fourteenth Amendment confrontation right. Henderson v. Commonwealth, 285 Va. 318 (2013). A statement is testimonial if its primary purpose is "for use in an investigation or prosecution of a crime." Cody v. Commonwealth, 68 Va. App. 638, 658-59 (2018).

Two Tests for Admitting Testimonial Hearsay Without Confrontation

Both tests have overlapping components and the court may apply either or both. Henderson, 285 Va. at 327-28.

The reliability test. Testimonial hearsay is admissible if it possesses substantial guarantees of trustworthiness. Henderson, 285 Va. at 327. Factors:

• Detailed police reports (as opposed to mere summaries by probation officers)
• Affidavits or other hearsay given under oath
• Statements by the probationer that directly or circumstantially corroborate the accusations
• Corroboration of accusers' hearsay by third parties or physical evidence
• Statements that fall within a well-established hearsay exception
• Evidence of substantial similarities between past and current accusations
• A probationer's failure to offer contradictory evidence

The balancing test. Weighs the defendant's interest in cross-examination against the prosecution's interest in denying confrontation. Henderson, 285 Va. at 327-28.

Illustrative Applications

• Polygraph results 'fall far short of the demonstrably reliable hearsay evidence' admissible in revocation. Turner v. Commonwealth, 278 Va. 739 (2009).
• Detective's testimony regarding two robbery victims' statements properly admitted where corroborated by the victims' accounts and the defendant's documented witness-intimidation. Henderson, 285 Va. 318.
• Officer's testimony that two underage girls identified the defendant as the man who solicited them by text properly admitted under the reliability test. Johnson v. Commonwealth, 296 Va. 266, 278 (2018).

Hearing Sequence

1. Case called; parties confirmed
2. Court recites the date of the MVR/petition, any addenda, and the allegations; formally admits them
3. Court asks defendant for plea to the violation
4. If stipulating: Commonwealth offers any additional evidence
5. If contesting: Commonwealth offers evidence (often relying on the MVR; may call PO or victim where appropriate)
6. Defense evidence
7. Commonwealth rebuttal (if any)
8. Argument
9. Court's ruling on the violation
10. Sentencing (both parties may present evidence; defendant may allocute); court pronounces sentence

Statutory Double Jeopardy — § 19.2-306(D)

"If any court has, after hearing, found no cause to impose a sentence ... or to revoke a suspended sentence or probation, then any further hearing ... based solely on the alleged violation for which the hearing was held, shall be barred." § 19.2-306(D). A statutory bar that operates like double jeopardy on the same underlying allegation.

Failure to Pay — The Bearden Floor

When the alleged violation is failure to pay restitution, fines, or costs, the defendant has an affirmative defense that the failure was "not attributable to an intentional refusal to obey ... or a failure to make a good faith effort to obtain the necessary funds." § 19.2-358(B).

The same rule applies under § 19.2-306. "When § 19.2-305.1 and § 19.2-306 are applied in conjunction, only an 'unreasonable' failure to pay restitution shall result in revocation." Duff v. Commonwealth, 16 Va. App. 293, 298 (1993). Where the failure resulted solely from inability, it is an abuse of discretion to revoke without considering alternatives. Id. at 298-99.

For court costs: the court must inquire into the reasons for the defendant's failure to pay. The burden of proving inability rests with the defendant. Commonwealth v. Brawner, 304 Va. 563, 567 (2025). The underlying rule is also grounded in Duff and Ohree v. Commonwealth, 26 Va. App. 299 (1998).

Applicability and Retroactivity

§ 19.2-306.1 applies to any violation initiated under § 19.2-306 (general) or § 19.2-295.2 (post-release supervision). It applies equally to misdemeanors and felonies — the statute makes no distinction.

Not retroactive to violations committed before July 1, 2021, unless both parties agree to apply it. Green v. Commonwealth, 75 Va. App. 69 (2022); Hannah v. Commonwealth, 303 Va. 109 (2024). Where the parties proceed under the statute (e.g., the Commonwealth elects to apply it under § 1-239), the approbate-reprobate bar prevents the Commonwealth from later disclaiming it. Commonwealth v. Delaune, 302 Va. 644 (2023).

Two-Tier Structure

The statute "establishes 'two tiers' of violations: (1) technical violations (i.e., violations that are based on statutorily enumerated conduct), and (2) non-technical violations (i.e., violations that are based on other conduct)." Commonwealth v. Delaune, 302 Va. 644, 655-56 (2023). Non-technical violations are commonly called special condition violations.

The Ten Enumerated Technical Violations — § 19.2-306.1(A)

A "technical violation" is a failure to:

Sentencing Scheme — § 19.2-306.1(C)

How Technical Violations Are Counted (the Canales Test)

Multiple technical violations are counted as one technical violation for sentencing under § 19.2-306.1(A) if they arise from any of the following:

1. A single course of conduct
2. A single incident
3. Considered at the same revocation hearing

A trial court is not required to consolidate. It may properly split violations into separate hearings. Castillo Canales v. Commonwealth (CoA), 78 Va. App. 353 (2023), aff'd Commonwealth v. Canales, 304 Va. 200 (2025). If it does, it must then determine whether violations heard separately were nonetheless part of a "single course of conduct."

"Single course of conduct" defined. "An uninterrupted and unbroken series of actions ... necessarily connected by time, place, and other circumstances." Commonwealth v. Canales, 304 Va. 200, 214 (2025). The inquiry is fact-intensive; a trial court's finding gets deference on appeal.

Firearm (viii) and Absconding (x) Treatment

• First technical based on (viii) or (x) → punished as a 2nd (max 14 days active)
• Second technical based on (viii) or (x) → punished as a 3rd (full revocation authority)

A first (viii) or (x) violation does not bank two technical violations — it is still counted as one technical violation for purposes of the running tally, but punished one tier up. The "punished as a 2nd" reading was affirmed in Nalls v. Commonwealth, 79 Va. App. 712 (2024).

Technical Violations Counted Separately Per File

Where a defendant is on probation for multiple sentencing events simultaneously, the technical-violation count runs separately per file. If CR24-01 is on a 2nd technical and CR25-999 is on a 1st, the court may not impose any active jail on CR25-999 — but may impose up to 14 days on CR24-01.

Subsection (D) Treatment Exception

The sentencing limits do not apply "to the extent that an additional term of incarceration is necessary to allow a defendant to be evaluated for or to participate in a court-ordered drug, alcohol, or mental health treatment program." § 19.2-306.1(D). The court must impose the shortest term necessary to achieve that evaluation or participation.

Non-Technical (Special-Condition) Violations — § 19.2-306.1(B)

For non-technical violations, the court may "revoke the suspension and impose or resuspend any or all of that period previously suspended." § 19.2-306.1(B). Examples identified in published cases or by statute:

• New criminal convictions — § 19.2-306.1(B)
• No-contact orders — Diaz-Urrutia v. Commonwealth, 77 Va. App. 182 (2023)
• Failure to complete court-ordered treatment — Shifflett v. Commonwealth, 81 Va. App. 277 (2024) (en banc); Burford v. Commonwealth, 78 Va. App. 170 (2023)
• Alcohol use when the court specifically prohibited any alcohol — Thomas v. Commonwealth, 77 Va. App. 613 (2023)
• Gang conditions imposed by the trial court — Commonwealth v. Watts (Va. Sup. Ct. Mar. 5, 2026, unpublished order)
• GPS-monitoring violations where GPS was imposed by the trial court — Anderson v. Commonwealth (Va. Ct. App. Aug. 20, 2024, unpublished); Ward v. Commonwealth (Va. Ct. App. Dec. 30, 2025, unpublished)

Non-technical violations do not count toward the technical-violation total. They are entirely separate. Heart v. Commonwealth, 75 Va. App. 453, 469 (2022).

The Shifflett / Burford / Ellis Trilogy — Who Imposed the Condition?

The single most contested category: when the condition involves treatment, counseling, or special instructions, was it the court or the probation officer who imposed it? That answer determines whether the violation is technical (PO-imposed, falling under (A)(v)) or non-technical (court-imposed special condition).

Key Takeaways

• The specific language in the court's sentencing order controls.
• Court-imposed condition + PO delegated to execute = non-technical violation when the defendant fails to comply.
• PO-imposed condition (no corresponding court order) = technical violation under (A)(v).

Shifflett (en banc). Court ordered sex-offender counseling and required the defendant to "successfully complete any screening, assessment, testing, treatment and/or education as directed by the probation officer." Defendant enrolled but did not complete treatment. Failure was a non-technical violation because the court's order imposed the obligation; the PO merely helped administer it. Shifflett v. Commonwealth, 81 Va. App. 277 (2024) (en banc).

Burford. Court ordered sex-offender treatment as a condition of suspension. Defendant refused even to do the referral. Non-technical — the defendant defied the court, not the PO. Burford v. Commonwealth, 78 Va. App. 170 (2023).

Ellis. Court's order required only that the defendant "fully comply with all the terms and provisions of the contract with the Adult Probation and Parole Department." Probation then imposed sex-offender special instructions (curfew, social media, GPS). Failures were technical, not non-technical — the order did not impose those specific conditions; the PO did. Ellis v. Commonwealth, 84 Va. App. 531 (2025).

Controlled Substance and Firearm Possession Treatment

• Controlled substance use (marijuana included): always a technical violation, even where the court imposed 'be drug free' as a special condition. Commonwealth v. Delaune, 302 Va. 644 (2023); Thomas v. Commonwealth, 77 Va. App. 613 (2023); Lane v. Commonwealth, 82 Va. App. 658 (2024).
• Firearm possession not resulting in a separate criminal conviction: technical, but punished one tier up under the (viii)/(x) treatment rule.

Good Conduct Violations — The Unresolved Sentencing Question

Diaz-Urrutia v. Commonwealth, 77 Va. App. 182 (2023), makes clear that good conduct (good behavior) violations continue to exist after § 19.2-306.1. The unresolved question: what sentence may a court impose for a good-conduct violation that did not result in a criminal conviction?

One view: § 19.2-306.1(B)'s plain text removes good-conduct violations from the class of violations for which the court "may revoke the suspension and impose or resuspend any or all of that period previously suspended" — so active incarceration may not be imposed. The counter-argument: the statute is silent on good-conduct sentencing and Marshall's pre-statute authority controls — active incarceration is available. The Court of Appeals has not resolved the issue.

First Amendment

Content-neutral conditions are subject to intermediate scrutiny — they must be "narrowly tailored to serve a significant governmental interest." Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017). Narrowly-tailored conditions serving rehabilitation or public safety survive (e.g., specific restrictions on a sex offender's online contact with minors). Fazili v. Commonwealth, 71 Va. App. 239, 253 (2019).

Fourth Amendment

A warrantless search of a probationer's home, supported by reasonable suspicion and authorized by a probation condition, is reasonable. Griffin v. Wisconsin, 483 U.S. 868, 880 (1987); Knights, 534 U.S. at 122.

Underlying Offense Severity

• The more dangerous the underlying offense (violence, child exploitation), the more seriously the violation should be treated.
• More dangerous underlying offenses make it less likely the defendant should be removed from supervision — keep the leash.
• The more the violation resembles the underlying offense, the more seriously to treat it. Exception: drug addicts using again, where a treatment-mandated disposition may be preferable.

Number and Nature of Violations

• Varied or voluminous violations warrant more serious treatment.
• More dangerous violation conduct (robbery vs. shoplifting) warrants more serious treatment.
• The more times the defendant has violated, the more serious — by violation 3 or 4, generally prepared to ask for full revocation (subject to § 19.2-306.1 limits).
• Similar repeated violations warrant escalation.

File Age

• Longer compliant periods support leniency — but discount active time served. A robbery defendant who went 10 years between convictions but spent 8 in prison is not comparable to a grand-larceny defendant with an all-suspended sentence and 10 years clean.
• Older files: more reasonable to consider releasing the defendant from supervision after the current violation.

Defendant's Rehabilitation Efforts

• Proactive steps to address the violation support leniency.
• Track record of prior rehabilitation efforts matters.
• Defendant's prior expressed willingness to engage in treatment.

Defendant's Prior Sentences

• Generally, the sentence sought should escalate from the past sentence imposed on prior violations.
• Subject to § 19.2-306.1 caps on technical violations.

Foundational (Suspension / Probation / Good Behavior)

Period of Suspension / Voidable Orders

Hearing Procedure / Due Process

§ 19.2-306.1 — Technical / Non-Technical

Payment / Inability to Pay

Probation Conditions — Constitutional Limits

Unpublished / Recent Authorities (Use Cautiously)