Published: August 1, 2012
Tags: Attorney General Ken Cuccinelli, Criminal
Convicted felons who want to keep their jobs and serve their time one weekend at a time may no longer be able to do so, following a new opinion from Attorney General Ken Cuccinelli.
A bill passed in 1999 apparently eliminated a provision giving judges the authority to order felons to serve jail time on weekends or nonconsecutive days.
The change was little noticed until recently, several lawyers said. A commonwealth’s attorney asked the AG to opine on the state of the law, and Cuccinelli said he thought the law barred weekend time for felons.
Weekend jail time is routinely allowed in many Virginia jurisdictions, defense lawyers say. Defense attorneys often persuade judges that defendants should be allowed to keep their jobs or provide child care, despite their jail sentences. Continued employment allows for paying court fines and costs and helps with rehabilitation, the reasoning goes.
Few courts seemed to draw any distinction between those convicted of misdemeanors and those with felony charges.
Virginia Beach Commonwealth’s Attorney Harvey L. Bryant said he was approached by the local sheriff’s office and asked if felons could be sentenced to weekend jail in light of the statute, Va. Code § 53.1-131.1.
“I don’t guess it was on a lot of people’s radar,” Bryant said.
He agreed the law seemed to bar weekend jail for felons, but he asked Cuccinelli for an official opinion. In his request, Bryant cited the case of a Virginia Beach defendant charged with a felony probation violation in 2011. A circuit judge revoked the defendant’s 10-year sentence, re-suspended nine years and ordered the one year term be served at the city jail on weekends.
Bryant told Cuccinelli the issue of weekend jail for felons “arises regularly” in Virginia Beach Circuit Court. In an interview, Bryant said there was some difference of opinion among judges.
In his July 20 opinion letter, Cuccinelli agreed with Bryant’s analysis of the statute. Before 1999, the law allowed structured jail time for those convicted of a “criminal offense or traffic offense.” The 1999 legislation changed that language to “misdemeanor or traffic offense.”
“By intentionally changing the language from ‘criminal offense’ to ‘misdemeanor’ the intent was to limit the statute to only cases involving misdemeanors, traffic offense and violations of Chapter 5 of Title 20,” Cuccinelli wrote.
Based on the opinion, “We will be opposing weekend time for felons,” Bryant said.
Not every judge may be receptive to the prosecutor’s position, said one defense lawyer. Virginia Beach attorney Moody E. “Sonny” Stallings said some judges may find a way around the law or may simply forgo jail time if they feel the loss of a job would be an unwarranted penalty.
Stallings said a judge confronted with an objection to weekend jail for a felony defendant might decide to suspend all official jail time, conditioned on the defendant reporting to the jail for the next five weekends. “I think a judge has the inherent authority to put a condition on it to do that,” Stallings said.
While a judge might want to give a break to a young offender, the judge still thinks it would be good for the defendant to “see the inside of a jail,” Stallings said. Weekend jail time allows that penalty without jeopardizing the offender’s livelihood. “It’s done all the time in Virginia Beach,” he said.
“I think a lot of our judges will try to find their way around it,” Stallings said. “If they can’t because the commonwealth opposes it, they might just suspend all jail time. It might just backfire on the commonwealth,” he said.
Charlottesville criminal defense attorney David L. Heilberg said he was surprised at Cuccinelli’s opinion and expects it to affect practices in his area and elsewhere in Virginia. Like Stallings, he predicted defense lawyers will get creative in their efforts to avoid the impact of the opinion.
Not every jurisdiction will feel an impact from Cuccinelli’s views. In both Botetourt County and Henry County, for instance, prosecutors report the sheriffs discourage any weekend jail terms because of security concerns.
“The more you check into the jail, the more likely you’ll be able to successfully smuggle something into the jail, based on experience,” said Henry County Commonwealth’s Attorney Bob Bushnell.
The 1999 legislation that apparently eliminated felony weekend jail time was sponsored by Sen. Thomas K. Norment Jr., R-Williamsburg. The primary purpose of the bill was establishing fees to be paid by convicted defendants. Norment had not returned a request for comment as of press time.
Interesting article.
Tucker Griffin Barnes P.C.
Charlottesville, VA (434-973-7474)
Inquire@TGBlaw.com
www.TGBLaw.com
No comments:
Post a Comment