10.13 Suspension or Modification of Sentence

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

10.13 SUSPENSION OR MODIFICATION OF SENTENCE

After conviction and before both the completion of the sentence and the transfer of the defendant to the receiving unit of the department of corrections the court may suspend in whole or in part the sentence of a defendant upon the defendant's motion. ¹⁸¹ Va. Code § 19.2-303 operates as a statutory exception to the 21-day rule. ¹⁸² The statute is "rehabilitative in nature" and should be "liberally construed." ¹⁸³ The transfer of the defendant to the Department of Corrections is a strict bar to the circuit court's jurisdiction to rule on a motion to suspend or modify a sentence. So when a motion to suspend or modify a sentence is filed, a motion and proposed order to hold the defendant in the local jail must also be filed. Still, when a trial court orders that a defendant remain in the jail but the jail mistakenly transfers the defendant to the Department of Corrections, the court loses jurisdiction to rule on the motion. ¹⁸⁴ If an inmate is transferred out of the jail but not to the Department of Corrections, the trial court still has jurisdiction to rule on a motion to suspend or modify a sentence. ¹⁸⁵

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