Can a Virginia trial court let a person convicted of a felony serve jail time on weekends or nonconsecutive days to keep working?

Plain-English summary

The Virginia Beach Commonwealth's Attorney asked whether a trial court could allow a felon sentenced to jail time to serve it on weekends or nonconsecutive days so the defendant could keep his job. The AG concluded that the statute, § 53.1-131.1, didn't allow it.

The statute reads: "Any court having jurisdiction for the trial of a person charged with a misdemeanor or traffic offense or charged with any offense under Chapter 5 (§ 20-61 et seq.) of Title 20 may, if the defendant is convicted and sentenced to confinement in jail, impose the time to be served on weekends or nonconsecutive days to permit the convicted defendant to retain gainful employment."

Some had read that to authorize weekend time for felony convictions as long as the court hearing the case was a court that also had jurisdiction over misdemeanors and traffic cases. The AG rejected that reading. The phrase "having jurisdiction for the trial of a person charged with a misdemeanor or traffic offense" modifies "court" with a definite article, so it ties the authority to courts presiding over those specific cases, not to courts generally with broad criminal jurisdiction. As the Court of Appeals of Virginia has explained, "the" is a definite article that particularizes the noun it precedes, a word of limitation (citing American Bus Ass'n v. Slater).

Legislative history reinforced the conclusion. Before 1999, the statute read "criminal offense." The 1999 amendment changed it to "misdemeanor," a deliberate narrowing. When the legislature amends a statute, courts presume the change was intended.

Currency note

This opinion was issued in 2012. 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.

Common questions

Why does Virginia even have a weekend sentencing option?
Section 53.1-131.1's purpose is to let people convicted of less serious offenses keep their jobs. The legislature decided that for misdemeanors, traffic offenses, and certain family-support violations, the public interest in continued employment outweighed the marginal cost of interrupting the jail sentence.

What was the 1999 change exactly?
The statute used to apply to any "criminal offense." The 1999 amendment narrowed it to "misdemeanor." That's a substantive change; "criminal offense" includes both felonies and misdemeanors, while "misdemeanor" excludes felonies.

What about courts that hear both felony and misdemeanor cases?
The statute applies based on what offense the defendant was charged with and convicted of, not on the court's general jurisdiction. A circuit court that has felony jurisdiction can still use § 53.1-131.1 for misdemeanor convictions it handles, but not for felonies.

Did the AG suggest the legislature should change this?
No. The opinion was strictly about what the statute says now. Policy arguments for or against the result were not addressed.

Background and statutory framework

Section 53.1-131.1 lets a trial court impose intermittent (weekend or nonconsecutive day) jail confinement on persons convicted of misdemeanors, traffic offenses, or Chapter 5 of Title 20 (failure-to-support) offenses, "to permit the convicted defendant to retain gainful employment." Before 1999 the provision used the broader phrase "criminal offense"; the 1999 amendment narrowed it to "misdemeanor or traffic offense or charged with any offense under Chapter 5 . . . of Title 20."

The interpretive canons relied upon include the plain meaning rule, the rule that the definite article "the" particularizes and limits the noun it precedes (the Court of Appeals of Virginia, citing American Bus Ass'n v. Slater), and the presumption that a statutory amendment is intended to change the law.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 20-61 et seq. (Chapter 5 of Title 20; failure to support)
• Va. Code § 53.1-131.1 (intermittent confinement for misdemeanors)
• American Bus Ass'n v. Slater, 231 F.3d 1 (D.C. Cir. 2000) (federal appeals court; definite-article canon, quoted in body)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/12-062_Bryant.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 20, 2012

The Honorable Harvey L. Bryant
Commonwealth's Attorney, City of Virginia Beach
2425 Nimmo Parkway
Virginia Beach, Virginia 23456-9050

Dear Mr. Bryant:
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 whether, pursuant to § 53.1-131.1, a person convicted of a felony and sentenced to confinement in jail may serve this time on the weekends or nonconsecutive days.

Response
It is my opinion that a trial court may not order a person convicted of a felony to serve any confinement in jail on weekends or nonconsecutive days.

Applicable Law and Discussion
Section 53.1-131.1 provides, in relevant part:

Any court having jurisdiction for the trial of a person charged with a misdemeanor or traffic offense or charged with any offense under Chapter 5 (§ 20-61 et seq.) of Title 20 may, if the defendant is convicted and sentenced to confinement in jail, impose the time to be served on weekends or nonconsecutive days to permit the convicted defendant to retain gainful employment.

In construing § 53.1-131.1, the primary objective is "to ascertain and give effect to legislative intent," as expressed by the language used in the statute. You relate that some construe the statute to mean that a court may impose on felony convictions a sentence to be served on weekends or nonconsecutive days provided the court has jurisdiction over misdemeanor and traffic cases. The plain language, however, limits the court's authority to impose such a sentence only to convictions for misdemeanors, traffic offenses and violations of Chapter 5 Title 20.

The dispositive portion of the statute is the phrase modifying "court": the court must be one "having jurisdiction for the trial of a person charged with a misdemeanor or traffic offense or charged with any offense under Chapter 5 (§ 20-61 et seq.) of Title 20[.]" Note that the General Assembly did not grant the authority to a court having jurisdiction over cases involving such charges generally. Rather, a court must have jurisdiction for "the trial of a person" so charged who is thereafter convicted. As the Court of Appeals of Virginia has explained:

The word "the" is used grammatically in the statute as a definite article -- a word that, when used before a noun, specifies or particularizes the meaning of the noun that follows, as opposed to the indefinite article "a." See American Bus Ass'n v. Slater, 231 F.3d 1, 4-5, 343 U.S. App. D.C. 367 (D.C. Cir. 2000) (explaining that "[i]t is a rule of law well established that the definite article 'the' particularizes the subject which it precedes. It is a word of limitation as opposed to the indefinite or generalizing force of 'a' or 'an.'" (citing Black's Law Dictionary 1477 (6th ed. 1990))).

The application of § 53.1-131.1, therefore, clearly is limited to a court presiding over one of the enumerated offenses.

This interpretation is further bolstered by the provision's legislative history. Prior to 1999, the relevant portion of the statute read, "[a]ny court having jurisdiction for the trial of a person charged with a criminal offense or traffic offense . . . ." In 1999, the legislature changed the language, thereby limiting the provision to courts exercising jurisdiction over the specifically enumerated offenses. When the legislature amends a particular statute, it is normally presumed that "a change in law was intended." Moreover, "it is well established that every act of the legislature should be read so as to give reasonable effect to every word and to promote the ability of the enactment to remedy the mischief at which it is directed."

Here, the legislature clearly intended to limit the applicability of this statute. 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.

Conclusion
Accordingly, it is my opinion that § 53.1-131.1 does not authorize a trial court to order a person convicted of a felony to serve any confinement in jail on weekends or nonconsecutive days.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General