Does a Virginia inmate's jail sentence stop running when he's transported to another jurisdiction for a court appearance?

Plain-English summary

Alexandria's sheriff asked the AG a workhorse jail-administration question: when one of his inmates is shipped to another jurisdiction for a one-day court appearance and shipped back, does the inmate's Alexandria sentence stop running on those travel and court days? Specifically, on the facts the sheriff laid out, an inmate sentenced to 12 months on May 1, 2012, with a projected October 31 release was transported out to another jurisdiction June 1-2, 2012. Did the sentence pause for those two days, pushing release back?

The AG said no. A prior opinion of the Office already held that "an inmate be given credit for all time spent in jail awaiting trial regardless of the jurisdiction so long as there is no duplication." That doctrine is anchored in Va. Code § 53.1-187, which directs that anyone sentenced to confinement "shall have deducted from any such term all time actually spent by the person in a state hospital for examination purposes or treatment prior to trial, in a state or local correctional facility awaiting trial or pending an appeal, or in a juvenile detention facility awaiting trial." Time in custody is time in custody, regardless of who's holding the keys, so long as the same time isn't credited twice.

The AG drew a hard administrative conclusion from that: the Alexandria Detention Center, as the inmate's custodian, must give him credit for the temporary transfer days, and failure to do so risks a writ of habeas corpus. The outside jurisdiction has no authority to prevent Alexandria from giving the credit.

If the inmate is later convicted in the outside jurisdiction, that jurisdiction may credit the same June 1-2 only if its sentencing court "expressly" orders that period to run concurrently with Alexandria's sentence. Sentences in Virginia are presumed consecutive unless the sentencing court orders otherwise.

Currency note

This opinion was issued in 2013. 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

What does "tolling" mean?
Tolling means pausing the clock. If a sentence is tolled for two days, those two days don't count toward the time served and the release date is pushed back. The AG concluded that the sentence is not tolled by a temporary out-of-jurisdiction trip.

What is the duplication rule?
Under that prior opinion and § 53.1-187, an inmate gets credit for all time actually spent in confinement awaiting trial, but the same period can't be counted twice across two sentences. So Alexandria credits the June 1-2 days. If the outside jurisdiction later sentences the inmate and orders that sentence to run concurrently with Alexandria, the outside jurisdiction may credit June 1-2 too. Otherwise, the credit sits with Alexandria.

Why does the home jail risk habeas corpus?
Habeas corpus tests the legality of confinement. If the home jail refuses to credit time the inmate is legally entitled to under § 53.1-187, the inmate may be held beyond what the law allows, which is exactly the kind of issue habeas was designed to police.

Are Virginia sentences concurrent or consecutive by default?
Sentences in Virginia are presumed consecutive unless the sentencing court "expressly" orders them to run concurrently. The default favors stacking the time.

Does the outside jurisdiction have any say?
The outside jurisdiction can't block the home jurisdiction from crediting the time. It can decide, when it later sentences the inmate on whatever case the transfer was for, whether to treat the days as part of its own concurrent sentence, but that's a separate question and turns on what that court says in its sentencing order.

Background and statutory framework

The analysis turned on one statute read together with a prior opinion of the Office:

• § 53.1-187 is the credit-for-time-served statute. It directs that any term of confinement be reduced by all time actually spent awaiting trial in state or local correctional facilities, in state hospitals for examination or treatment, or in juvenile detention pending an adult sentence.
• The default sentencing rule the opinion invoked (without a section cite): sentences in Virginia stack consecutively unless the sentencing court expressly orders otherwise.
• The remedy the opinion flagged if the jail miscalculates time: a writ of habeas corpus, which tests the legality of confinement.

The result is a single clean administrative rule: time spent physically confined counts for the home sentence, and the home jail is responsible for getting the math right.

Citations

• Va. Code § 2.2-505 (Attorney General advisory opinions)
• Va. Code § 53.1-187 (credit for time spent in confinement awaiting trial)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-090_Lawhorne.pdf

Original opinion text

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

June 28, 2013

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991

Virginia Relay Services
800-828-1120

The Honorable Dana Lawhorne
Sheriff, City of Alexandria
2003 Mill Road
Alexandria, Virginia 22314

7-1-1

Dear Sheriff Lawhorne:

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 a jail sentence being served by an inmate in the Alexandria Detention Center is tolled for a period when that inmate is temporarily transferred to another jurisdiction for a court appearance.

Response

It is my opinion that the jail sentence is not tolled during the period when the inmate is temporarily transferred to another jurisdiction for a court appearance. As a result, the outside jurisdiction may not prohibit the Alexandria Detention Center from giving the inmate credit for the period of his temporary transfer out of Alexandria.

Background

You describe a situation in which a defendant is convicted of a misdemeanor and sentenced to serve twelve months in the Alexandria Detention Center. The individual begins his sentence on May 1, 2012. After computing his time, staff at the Alexandria Detention Center establish a projected release date of October 31, 2012. Between June 1, 2012, and June 2, 2012, the inmate is transferred out of Alexandria in order to make a court appearance in an outside jurisdiction. Your concern is whether this period of transportation tolls the individual's sentence in Alexandria, thus requiring an upward adjustment to his projected release date.

Applicable Law and Discussion

A prior opinion of this Office concluded "that an inmate be given credit for all time spent in jail awaiting trial regardless of the jurisdiction so long as there is no duplication." That opinion interprets and applies § 53.1-187, which provides:

Any person who is sentenced to a term of confinement in a correctional facility shall have deducted from any such term all time actually spent by the person in a state hospital for examination purposes or treatment prior to trial, in a state or local correctional facility awaiting trial or pending an appeal, or in a juvenile detention facility awaiting trial for an offense for which, upon conviction, such juvenile is sentenced to an adult correctional facility.

In light of the foregoing authority, it is the responsibility of the Alexandria Detention Center to ensure that the inmate receive all appropriate credit for time spent in confinement, including time spent temporarily confined in the facility of an outside jurisdiction while awaiting trial or court appearance. The Alexandria sentence does not toll during the period of transfer and temporary confinement. Should the inmate fail to receive all appropriate credit for such time, the Alexandria Detention Center, as custodian, risks the issuance of a writ of habeas corpus by the appropriate court. For these reasons, the outside jurisdiction may not prohibit the Alexandria Detention Center from giving the inmate credit.

In the event the inmate is convicted and sentenced to serve time in the outside jurisdiction, that jurisdiction may only credit the inmate for his stay from June 1, 2012, to June 2, 2012, if the court of that jurisdiction orders this period of time to be treated as concurrent with that of Alexandria. All sentences in Virginia are presumed to run consecutively unless otherwise "expressly ordered" by the sentencing court.

Conclusion

Accordingly, it is my opinion that the sentence served in Alexandria is not tolled during the period in which the inmate is temporarily transferred to another jurisdiction for court, and that the outside jurisdiction may not prohibit Alexandria from giving the inmate credit for the period of his transfer and temporary confinement.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General