Dargan v. Commonwealth
In Dargan v. Commonwealth, 27 Va. App. 495, 500 S.E.2d 228 (1998), a plurality of the Court held that "a trial court may correct a void or unlawful sentence at any time . . . . As a consequence, a court may impose a valid sentence in substitution for one that is void . . . where the sentence imposed is in excess of that prescribed by law, that part of the sentence which is excessive is invalid.
A sentence in excess of one prescribed by law is not void ab initio because of the excess, but is good insofar as the power of the court extends, and is invalid only as to the excess." Dargan, 27 Va. App. at 497-98, 500 S.E.2d at 229.
The jury recommended the maximum sentence available in the instruction and the trial court reduced it to the maximum sentence allowable by law. See Dargan, 27 Va. App. at 499-500, 500 S.E.2d at 230 (Elder, J. concurring).