If a Virginia defendant gets a real prison sentence and a sentence to the Detention Center or Diversion Center on the same day, how does the Department of Corrections actually carry out both?

Plain-English summary

Judge G. Carter Greer of the Twenty-First Judicial Circuit (Martinsville) faced a sentencing question that did not have an obvious answer. A defendant had appeared before the court the same day on a probation violation (one year active in the Department of Corrections) and a new criminal conviction (sentenced to the Detention Center Incarceration Program). The Department of Corrections told the court it interpreted the relevant Code sections to forbid that combination. Could it really be done?

Acting Attorney General William Mims gave a layered answer. As a matter of legislative intent, the General Assembly amended §§ 19.2-316.2(A)(3) and 19.2-316.3(A)(3) in 2005 to add: "A sentence to the [Detention/Diversion Center] Incarceration Program shall not be imposed as an addition to an active sentence to a state correctional facility." That amendment ended the prior practice of using the Detention Center as a bridge between prison and community release. So a single court should not combine the two.

But the harder scenario is when two different courts, often at different times in different jurisdictions, impose sentences that conflict. One court orders Detention Center; another orders an active sentence with the Department. The AG concluded that the Department cannot pick which court order to honor and ignore the other. It must give effect to both sentences, despite the policy preference against combinations. The General Assembly did not intend to give a later court the power to undo an earlier court's sentence (or vice versa) just by labeling its own sentence in a particular way.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Virginia's Detention Center Incarceration Program (§ 19.2-316.2) and Diversion Center Incarceration Program (§ 19.2-316.3) are statutory alternatives to traditional active prison sentences. Both are regimented residential programs intended for nonviolent felony offenders who "otherwise would have been sentenced to incarceration." The programs are designed to divert offenders away from the Department of Corrections, not to layer onto a Department sentence.

Before 2005, the statutes did not expressly forbid combining program sentences with active sentences. Some courts had used the Detention Center as a bridge: a defendant would serve an active sentence with the Department, then move to the Detention Center, then move into community supervision. The 2005 Session of the General Assembly amended both program statutes to add subsection (A)(3) language explicitly prohibiting that combination:

A sentence to the [Detention Center / Diversion Center] Incarceration Program shall not be imposed as an addition to an active sentence to a state correctional facility.

The amendment took effect for both programs in 2005 Va. Acts chs. 512, 580 (Detention Center) and ch. 604 (Diversion Center).

Two distinctions matter for tracking how sentences land. Under § 53.1-20(B), a person convicted of a felony and sentenced to one year or more goes to the Department of Corrections. Under § 53.1-21(B)(3), a person sentenced to twelve months or less stays in jail. The dividing line between "a year" and "twelve months" is the dividing line between Department custody and local jail custody. The Word and Peyton cases confirm that confinement in a Detention Center is itself a form of incarceration, but it is an alternative to traditional Department incarceration.

What the AG concluded

The 2005 amendments banned single-court combinations. A single court cannot impose both an active Department sentence and a Detention/Diversion Center sentence in the same case. The amendments make that explicit.

The legislative intent extends beyond the textual prohibition. Even where the 2005 language might not literally apply (because two different courts are involved), the underlying intent is the same: the programs are alternatives to active sentences, not add-ons. A court imposing one of the program sentences is saying that traditional incarceration is unnecessary; a later active sentence frustrates that judgment.

But the Department must follow both court orders when conflicts arise across courts. This is the practical thrust of the opinion. The AG cannot read the statute to authorize the Department to disobey one court's order in favor of another's. The courts are coequal trial courts. The Department's role is to carry out the sentences as ordered, not to choose between them. So in the rare case where one court imposes a Detention Center sentence and another imposes an active Department sentence, both orders stand and the Department must figure out how to give effect to both.

The "bridge" use is over for single-court cases. Before 2005, a court could (and some did) impose an active sentence followed by a Detention Center sentence to ease the transition back into the community. The 2005 amendments cut that off. A defendant either goes to the Department for incarceration or goes to the Detention Center as an alternative.

Common questions

What is the Detention Center Incarceration Program?
A residential program with a "regimented environment with demanding structured programs," confined to nonviolent felony offenders who would otherwise be sent to traditional incarceration. The program emphasizes discipline, education, and substance abuse treatment.

What is the Diversion Center Incarceration Program?
Similar in structure, also for nonviolent felony offenders. It functions as another diversion path from Department incarceration.

Why did the General Assembly stop the "bridge" use in 2005?
The reasoning is not in the statutory text, but the policy is consistent with the programs' design. The Detention and Diversion Centers were meant as substitutes for prison, not as decompression chambers. Adding Detention Center after Department prison time was inconsistent with the alternative-sentencing rationale; if the defendant needed a Detention Center, the prison time was unnecessary, and vice versa.

What does the Department of Corrections do when two courts give conflicting orders?
The AG's opinion gives the Department a clear duty to give effect to both. Mechanically that may mean serving the active sentence first and then transitioning to the Detention Center, or some other sequencing the Department devises. The opinion does not prescribe the sequence, only that both orders must be honored.

Does this affect probation violations differently from new convictions?
The 2005 amendments do not distinguish probation violations from new convictions. The AG's view is the same in both cases. A single sentencing event should not combine an active Department sentence with a program sentence.

Has the General Assembly amended these programs since 2009?
The opinion was issued in 2009. The statutes have likely been amended in the years since. Anyone advising on a current sentencing question should pull the current versions of §§ 19.2-316.2 and 19.2-316.3 and check for recent case law.

Citations

• Va. Code Ann. §§ 19.2-316.2, 19.2-316.3 (Detention and Diversion Center programs)
• 2005 Va. Acts chs. 512, 580 (amending § 19.2-316.2(A)(3))
• 2005 Va. Acts ch. 604 (amending § 19.2-316.3(A)(3))
• Va. Code Ann. §§ 53.1-20(B), 53.1-21(B)(3) (custody of felons by sentence length)
• Word v. Commonwealth, 41 Va. App. 496 (2003)
• Rhodes v. Commonwealth, 45 Va. App. 645 (2005)
• Peyton v. Commonwealth, 268 Va. 503 (2004)
• Charles v. Commonwealth, 270 Va. 14 (2005)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/08-108-Greer.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

February 25, 2009

The Honorable G. Carter Greer
Judge, Twenty-First Judicial Circuit
City of Martinsville Circuit Court
P.O. Box 1347
Martinsville, Virginia 24114

Dear Judge Greer:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask under what circumstances a criminal defendant may receive an active sentence to a state correctional facility and a sentence to the Detention Center Incarceration Program or the Diversion Center Incarceration Program.

Response

It is my opinion that the General Assembly intended that a court should not sentence the same defendant to active incarceration with the Department of Corrections and to the Detention Center Incarceration Program or the Diversion Center Incarceration Program. It further is my opinion that in a situation where one court imposes a Detention or Diversion Center sentence that would be countermanded by another court's sentence for incarceration with the Department, the Department must give effect to the sentences imposed by both courts. This is so notwithstanding the general legislative intent that a Detention or Diversion Center sentence is an alternative to an active sentence and should not be imposed as a "bridge" between a prison sentence and release into the community.

Background

You describe a situation where the criminal defendant has received an active sentence for incarceration with the Department of Corrections (the "Department") for a period of one year for a probation violation and a sentence to the Detention Center Incarceration Program for a new criminal conviction. You state that the same court imposed both sentences after conducting sentencing hearings for both events on the same day. You relate that a Department representative has advised the court that it interprets the applicable Code sections to preclude sentencing of the same defendant to active terms of incarceration with both the Department and the Detention Center. Therefore, you seek guidance on this matter.

Applicable Law and Discussion

The General Assembly has afforded the judiciary a variety of sentencing options to impose punishment for a criminal conviction without imposing an active prison sentence. Two such alternatives are the Detention Center Incarceration Program (the "Detention Center")[1] and the Diversion Center Incarceration Program (the "Diversion Center")[2] (collectively, the "Programs"). The Programs are intended for defendants "who otherwise would have been sentenced to incarceration for a nonviolent felony."[3] However, prior to 2005, there was no prohibition against a court combining an active sentence with a sentence to the Programs.[4] Some courts did just that.[5]

The 2005 Session of the General Assembly amended §§ 19.2-316.2(A)(3) and 19.2-316.3(A)(3) (the "2005 Amendments") to provide that "[a] sentence to the [Detention Center] [Diverson Center] Incarceration Program shall not be imposed as an addition to an active sentence to a state correctional facility."[6] Thus, after the effective date of the 2005 Amendments, a court could not sentence a defendant to the Department while also imposing a sentence to one of the Programs.[7] The 2005 Amendments effectively ended the authority for a court to utilize a Detention or Diversion Center as a bridge between confinement with the Department and release into the community.

The principle objective when interpreting a statute is to determine and give effect to the legislative intent.[8] "The ascertainment of legislative intention involves appraisal of the subject matter, purposes, objects and effects of the statute, in addition to its express terms."[9] Where a statute is not ambiguous the rules of statutory construction are not necessary, and the statute is given effect in accordance with its plain meaning.[10]

The legislative intent of § 19.2-316.2 is to provide one of a number of "alternative sentencing sanctions to the trial courts in the form of a state-wide community based system of programs."[11] Both the Detention Center and the Diversion Center are intended for a defendant "who otherwise would have been sentenced to incarceration."[12] While the nature of the conviction determines the individual's eligibility for the Programs, the ascertainment of his suitability after evaluation is specific to the individual.[13] Therefore, the primary factor in determining whether the defendant is admitted to the Detention or Diversion Center is based on determinations peculiar to the person, not to the offense. It is my opinion that the legislative intent is to divert the person away from traditional incarceration with the Department. The Programs are not designed to authorize incarceration with the Department for one criminal offense while diverting the defendant to the Detention or Diversion Center for another conviction.[14]

Finally, I cannot conclude that the General Assembly has intended to allow one court to undo another court's sentence by imposing an active sentence after a defendant is sentenced to a Detention or Diversion Center by another court. Similarly, I cannot conclude that the General Assembly intended to allow one court, by first imposing an active sentence to the Department, to preclude another court's finding for incarceration in either a Detention or Diversion Center. Thus, where different courts make contrary conclusions about incarceration in the Detention Center and with the Department, the Department must give effect to the sentencing orders of both courts.

Conclusion

Accordingly, it is my opinion that the General Assembly intended that a court should not sentence the same defendant to active incarceration with the Department of Corrections and to the Detention Center Incarceration Program or the Diversion Center Incarceration Program. It further is my opinion that in a situation where one court imposes a Detention or Diversion Center sentence that would be countermanded by another court's sentence for incarceration with the Department, the Department must give effect to the sentences imposed by both courts. This is so notwithstanding the general legislative intent that a Detention or Diversion Center sentence is an alternative to an active sentence and should not be imposed as a "bridge" between a prison sentence and release into the community.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims
Acting Attorney General
3:37; 1:941/08-108

1. See VA. CODE ANN. § 19.2-316.2 (2008).
2. See § 19.2-316.3 (2008). Both of these Programs provide regimented environments with demanding structured programs. See Word v Commonwealth, 41 Va. App. 496, 503, 586 S.E.2d 282, 285 (2003).
3. Sections 19.2-316.2(A); 19.2-316.3(A).
4. See §§ 19.2-316.2, 19.2-316.3 (2004).
5. See, e.g., Rhodes v Commonwealth, 45 Va. App. 645, 647, 613 S.E.2d 466, 467-68 (2005) (noting that trial court imposed three year active sentence to be followed by Detention and Diversion Centers).
6. See 2005 Va. Acts chs. 512, 580, at 703, 704, 769, 770, respectively (amending § 19.2-316.2(A)(3)); see id. ch. 604, at 799, 800 (amending § 19.2-316.3(A)(3)).
7. It is important to note that a sentence of one year is a sentence to the Department, while a sentence of twelve months is a jail sentence. Compare VA. CODE ANN. § 53.1-20(B) (2005) (mandating that persons convicted of felonies and sentenced to the Department or to confinement in jail for year or more are placed in custody of the Department and received into state corrections system) with § 53.1-21(B)(3) (2005) (providing that no persons convicted of misdemeanors or felonies who receive jail sentences of twelve months or less will be committed or transferred to custody of the Department without consent).
8. See 1998 Op. Va. Att'y Gen. 3, 4.
9. Vollin v Arlington Co. Electoral Bd., 216 Va. 674, 679, 222 S.E.2d 793, 797 (1976), quoted in 1998 Op. Va. Att'y Gen., supra note 8, at 4.
10. Ambrogi v Koontz, 224 Va. 381, 386, 297 S.E.2d 660, 662 (1982); 1999 Op. Va. Att'y Gen. 150, 151.
11. Peyton v Commonwealth, 268 Va. 503, 509, 604 S.E.2d 17, 20 (2004).
12. Sections 19.2-316.2(A), 19.2-316.3(A) (emphasis added).
13. See §§ 19.2-316.2(A)(1)-(3), 19.2-316.3(A)(1)-(3).
14. Confinement in a Detention Center is incarceration. See Charles v Commonwealth, 270 Va. 14, 18, 613 S.E.2d 432, 434 (2005). The Detention Center is an alternative sanction to the traditional penal confinement in a Department prison. See Peyton, 268 Va. at 509, 604 S.E.2d at 20.