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Present: All the Justices
DOUGLAS ALBERT JACCARD
v. Record No. 031507 JUSTICE LAWRENCE L. KOONTZ, JR.
June 10, 2004
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether evidence of a prior
probation revocation is admissible in the penalty determination
phase of a bifurcated criminal jury trial as part of "the record
of conviction" of the defendant's "prior criminal convictions"
pursuant to Code 19.2-295.1.
On July 15, 2002, the grand jury of Wythe County indicted
Douglas Albert Jaccard on a charge of malicious wounding in
violation of Code 18.2-51. Prior to his trial on that
indictment in the Circuit Court of Wythe County, the
Commonwealth provided Jaccard with notice of its intention to
introduce evidence of his prior criminal convictions during the
penalty determination phase of the trial in accord with the
requirements of Code 19.2-295.1. The notice listed five
criminal convictions on two separate dates, all in the Circuit
Court of Wythe County.
Jaccard was tried before a jury on September 4, 2002.
After the jury returned its verdict finding Jaccard guilty of
malicious wounding, the penalty determination phase of the trial
immediately commenced. The Commonwealth sought to introduce
into evidence certified records of Jaccard's five prior criminal
convictions and "a probation revocation conviction." Jaccard's
counsel objected to the introduction of evidence of the
probation revocation, stating: "A history of his prior
convictions is certainly proper at this point but a probation
revocation proceeding [is] not a conviction." The trial court
responded that "a violation of probation is an offense" and
overruled the objection.
The jury sentenced Jaccard to ten years of imprisonment and
a fine of $30,000. The trial court imposed the jury's sentence
in a final order dated November 12, 2002. Jaccard appealed his
conviction to the Court of Appeals of Virginia. In an
unpublished order dated May 28, 2003, the Court of Appeals
refused Jaccard's petition for appeal, citing Merritt v.
Commonwealth, 32 Va. App. 506, 528 S.E.2d 743 (2000). We
awarded Jaccard this appeal.
In relevant part, Code 19.2-295.1 provides that:
In cases of trial by jury, upon a finding that
the defendant is guilty of a felony . . . a separate
proceeding limited to the ascertainment of punishment
shall be held as soon as practicable before the same
jury. At such proceeding, the Commonwealth shall
present the defendant's prior criminal convictions by
certified, attested or exemplified copies of the
record of conviction . . . .
In Merritt, addressing the application of Code 19.2-295.1, the
Court of Appeals held that "[a] probation violation is not
itself a criminal conviction. It is, however, a continuation
and part of the sentencing process imposed for a criminal
conviction and is, thus, admissible as part of the sentence
imposed for the prior conviction." Merritt, 32 Va. App. at 509,
528 S.E.2d at 744.
Although neither Jaccard nor the Commonwealth cites them in
support of their positions in this appeal, we are of opinion
that two of our decisions rendered subsequent to Merritt guide
our resolution of this appeal. In Green v. Commonwealth, 263
Va. 191, 557 S.E.2d 230 (2002), we considered whether an appeal
from a circuit court order revoking a defendant's probation
initially lies within the jurisdiction of this Court or the
Court of Appeals. Id. at 192, 557 S.E.2d at 231. We concluded
that the Court of Appeals initially has jurisdiction in
probation revocation appeals. In reaching that conclusion, we
held that "[a]lthough a probation revocation hearing is not a
stage of a criminal prosecution, and thus does not afford a
convict all rights attending a criminal prosecution, such
revocation hearing is nevertheless a criminal proceeding." 263
Va. at 195-96, 557 S.E.2d at 233 (citation omitted).
Subsequently, following the Court of Appeals decision in
the present case, we applied our decision in Green in
Commonwealth v. Jackson, 267 Va. 226, 590 S.E.2d 518 (2004). In
doing so, we expressly stated that "[o]ur decision in Green
overrules any implication to the contrary in Merritt" that a
probation revocation proceeding is a continuation of the prior
criminal conviction. Id. at 229, 590 S.E.2d at 519. The issue
we considered in Jackson was whether a trial judge, who had
served as Commonwealth's Attorney at the trial in which the
suspended sentence and terms of probation were imposed, was
required to recuse himself from the subsequent probation
revocation proceeding. Because the initial trial and the
subsequent probation revocation proceeding were not the same
proceeding, we held that the issue of recusal was properly
within the discretion of the trial judge. Id. at 229-30, 590
S.E.2d at 520.
While we did not expressly address the issue raised in
Merritt regarding the admissibility of a probation violation in
either Green or Jackson, it is nonetheless certain that the
Court of Appeals' stated rationale for the holding in Merritt
has been rejected by this Court. Moreover, we are of the
opinion that a probation revocation is not a criminal conviction
and, accordingly, we hold that a probation revocation is not
part of the "record of conviction" contemplated by the
provisions of Code 19.2-295.1. Thus, we further hold that the
record of Jaccard's probation revocation was not admissible in
the penalty determination phase of his criminal jury trial. In
reaching this holding, we now expressly overrule Merritt.
For these reasons, the judgment of the Court of Appeals
will be reversed, the sentence imposed upon Jaccard will be set
aside, and the case remanded to the Court of Appeals with
direction to remand the case to the trial court for a new
Reversed and remanded.
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