Release date calculation from incarceration is critical to understand, says Fairfax criminal lawyer

Release dates from jail and prisons are critical for a Virginia criminal defendant to understand. As a Fairfax criminal lawyer, I understand that even the best Virginia criminal defense attorney cannot always avoid a conviction for his client, so minimizing incarceration time is key when a conviction may or will take place, with no incarceration time being the best.

What Virginia law enables cutting non-mandatory misdemeanor jail time in half?

It is counterintuitive to many that they do not have to serve their sentences day for day. Such reduced incarceration time in calculating release dates is covered by the Virginia Code for serving misdemeanor and felony sentences, respectively at the rate of 50% and as low 65% for non-mandatory incarceration time. The key statutory language for the serving only half of non-mandatory misdemeanor jail time reads: “Unless he is serving a mandatory minimum sentence of confinement, each prisoner sentenced to 12 months or less for a misdemeanor or any combination of misdemeanors shall earn good conduct credit at the rate of one day for each one day served, including all days served while confined in jail prior to conviction and sentencing, in which the prisoner has not violated the written rules and regulations of the jail.” Virginia Code § 53.1-116. Being released after serving only half of one’s active non-statutory mandatory minimum misdemeanor jail sentence is the carrot. Here is the stick: “For each violation of the rules prescribed herein, the time so deducted shall be added until it equals the full sentence imposed upon the prisoner by the court.” Id.

Will I only serve 65% of my Virginia felony sentence?

Do not automatically rely on the 2021 statutory amendment that provides in many instances to serve only 65% of your Virginia felony sentence. Virginia Code § 53.1-202.3. First, the foregoing statute does not apply to many types of convictions. Second, the statute is too poorly worded to account for what happens if you start doing a prison-directed program (which is a prerequisite to obtaining the 65% benefit, when directed into a program), and if you are then transferred to a prison that has no such program. At worst, you will be eligible for leaving the prison after serving 85% of your non-mandatory prison time. Watch out about your risk of earning credits towards earlier prison release: “A person’s classification level… may be immediately reviewed and adjusted following removal from a program, job assignment, or educational curriculum that was assigned pursuant to § 53.1-32.1 for disciplinary or noncompliance reasons.” Va. Code § 53.1-202.3.

Make sure your Virginia jail or prison correctly calculates your release date

Make sure your Virginia jail or prison correctly calculates your release date. Soon after you arrive at the jail, ask to be told your departure date, or to be told when your departure date will be calculated. Ask your lawyer to help you check to assure the judge’s written sentencing order is correct and that the court clerk’s communication to the jail on your sentencing period is correct. What good is the judge’s orally stating a sentence that should have you only being in the jail for a few hours or overnight, if the jail receives information that is otherwise, and if that mistake is revealed on a weekend day when the court will not reopen until the next business day? No amount of brilliant advocacy by your lawyer is going to convince any jail personnel to fix a clerical error made by the judge or court clerk personnel in communicating your incarceration sentence to the jail.

Fairfax criminal lawyer Jonathan Katz relentlessly fights for your best defense against Virginia DUI, felony and misdemeanor prosecutions. You owe it to yourself to book a free in-person confidential consultation with Jon Katz about your court-pending prosecution, because you will leave that meeting more knowledgeable and confident about your defenses. Call 703-383-1100 to secure your confidential meeting with Jon.