Donald said on February 19, 2009  

I'd like to know if you have any caselaw besides Esparza to support the cramped enumeration of the statute's purposes in your closing graf.

Certainly the COA in Esparza suggested no such narrow interpretation: "The purposes of Code § 19.2-303 are rehabilitative in nature. See Dyke v. Commonwealth, 193 Va. 478, 484, (1952) (stating that Code § 53-272, a predecessor of Code § 19.2-303, should be liberally construed so as to “afford to trial courts a valuable means of bringing about the rehabilitation of offenders against the criminal laws”). We find nothing in the statutory scheme as articulated by the legislature to suggest that the post-sentencing rehabilitative purposes and goals of Code § 19.2-303 are inapplicable to felons convicted pursuant to a plea agreement."

You reach your idea of the statute's purposes by way of the distinction (also unsupported in Esparza or in the statute) between mitigation of the offense and mitigation of the sentence. Your implication, which parallels the notion of after-discovered evidence, is that facts arising after conviction cannot mitigate the offense itself, only the sentence. But this is a lot of unnecessary line-drawing (even though it may be attractive because it gets you where you want to go with 19.2-303).

Consider: evidence presented "in mitigation" at the original sentencing hearing is certainly in mitigation of the offense, under your terms, because the sentence hasn't happened yet. But the offense itself might be a year old by that time. No one says the sentencing judge can't hear stuff about the Bible classes the defendant's been going to during his pretrial detention.

Again, if you've got citations to some other caselaw I'd love to see them - but I think the truth is that, as the COA says in Esparza, the probationary rules are highly remedial in their purpose. If a judge thinks a defendant has become a better person or less of a risk or whatever, at any time since the original sentencing, as long as the jurisdiction-killing DOC transfer hasn't happened, the judge can reduce the period of active incarceration. Period.

 Ken Lammers said on February 22, 2009  

Please see the post on 23 February 2009 in reply.

Sorry this post wasn't clear as it could have been. I'd read a lot of cases on this and relied upon what I'd read in them without citing them. The new post corects this and better lays out my thoughts on this statute.