Virginia Criminal Law: Post-Conviction Sentence Modification

Have you or a loved one been convicted of a crime and received an unfair sentence? Many people often feel that they did not receive a fair shake in the trial court. Whenever this happens, there are really only two methods to address the unfair sentence. The first is to appeal in time, and the second is to file a request with the Court to modify the sentence.

This article is about post-conviction sentence modification, and addresses the second option. So what is the law behind post-conviction sentence modification?

What Does the Law Say?

Post-conviction sentence modification is governed by Virginia Code Section 19.2-303. The law grants judges the ability to modify a sentence after a conviction. The law states that:

After conviction, whether with or without jury, the court may suspend imposition of sentence or suspend the sentence in whole or part and in addition may place the defendant on probation under such conditions as the court shall determine, including monitoring by a GPS (Global Positioning System) tracking device, or other similar device, or may, as a condition of a suspended sentence, require the defendant to make at least partial restitution to the aggrieved party or parties for damages or loss caused by the offense for which convicted, or to perform community service, or both, under terms and conditions which shall be entered in writing by the court.

Restrictions on the Judge’s Power to Grant a Modification

However, the Court’s power to modify a sentence is not absolute. There are two types of restrictions on the Court’s ability to modify the sentence; timing and extent of modification.

TYPE OF MODIFICATION: LENGTH OF SENTENCE

The first type of modification is a modification on the length of an imposed sentence. The Supreme Court of Virginia has decided that a request to modify the length of a sentence must either be brought within twenty-one (21) days from the date the judge signed the sentencing order, or before the inmate is transferred to the Department of Corrections. The specific amount of time used it whichever occurs last.

TYPE OF MODIFICATION: TERMS OF SUSPENSION

The Supreme Court of Virginia has been less clear about post-conviction modification of the terms of any suspended sentence. For example, if you entered into a suspended sentence plea agreement requiring home electronic monitoring, the Court may theoretically be able to address your request to remove home electronic monitoring outside these time limits. However, this is unsettled law.

What You Need to Prove

In order to have post-conviction sentencing relief, you must have a very good reason for doing so. Common reasons include new evidence that was not available at trial or new family demands.

Why You Need a Lawyer

If you or a loved one need to modify their sentence, it is important to consult a lawyer as soon as possible after trial. There are deadlines to file these requests, and a lot of things need to be proven even if you timely file the request. Talk to a lawyer if you are charged with a crime.