Watch: Sen. Virgil Smith sent to jail for 10 months; won't have to resign

(WJBK) - UPDATE: Sen. Virgil Smith was sentenced to 10 months in jail with five years of probation, but is not resigning from the state Senate. 

Smith was also sentenced to five years probation and was credited with three days served on the charge of malicious destruction of property, $20,000 or more. 

He was taken into custody today. 

Judge Talon denied the WCPO motion to vacate the plea in the case as requested by the prosecution.

"We believe that the law supports that the agreement remains conditional until all the terms of the agreement are fulfilled.  

Prosecutor Kym Worthy however, is not happy that Smith did not have to resign his position yet still got to accept the plea deal, due to Judge Talon's ruling. Smith's resignation was a condition of the deal that Worthy's office originally presented. 

Worthy said in a release that her office will appeal the court's ruling because the defendant did not  fulfill his part of the plea agreement by resigning his elected position," said Maria Miller of the prosecutor's office.

Smith was due back in court Monday for the post-sentencing hearing. Smith pleaded guilty to malicious destruction of property for firing shots at his ex-wife's car in a deal with prosecutors.

You can watch a livestream of the court hearing here. It had been scheduled for 9 a.m. but has been moved to 2 p.m. 

That deal included him resigning from the state senate as well as spending 10 months in jail and five years on probation. But at his sentencing earlier this month the judge didn't force him to resign.

Prosecutor Kym Worthy had said she will withdraw the deal unless all conditions are accepted.

FOX 2's ML Elrick will have more information tonight at 5 and 6 p.m.