Bill Text: VA HB85 | 2020 | Regular Session | Prefiled
Bill Title: Death penalty; abolishes penalty, including those persons currently under a death sentence.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2020-02-11 - Left in Courts of Justice [HB85 Detail]
Download: Virginia-2020-HB85-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§2.2-3705.7, 8.01-195.10, 8.01-654, 17.1-310, 17.1-406, 18.2-8, 18.2-10, 18.2-18, 18.2-19, 18.2-22, 18.2-25, 18.2-26, 18.2-30, 18.2-31, 18.2-32, 18.2-251.01, 19.2-11.01, 19.2-71, 19.2-76.1, 19.2-100, 19.2-102, 19.2-120, 19.2-152.2, 19.2-157, 19.2-159, 19.2-163, 19.2-163.01, 19.2-163.4:1, 19.2-169.3, 19.2-175, 19.2-217.1, 19.2-247, 19.2-270.4:1, 19.2-295.3, 19.2-299, 19.2-299.1, 19.2-311, 19.2-319, 19.2-321.2, 19.2-327.1, 19.2-327.2, 19.2-327.3, 19.2-327.11, 19.2-389.1, 19.2-400, 53.1-204, and 53.1-229 of the Code of Virginia are amended and reenacted as follows:
§2.2-3705.7. Exclusions to application of chapter; records of specific public bodies and certain other limited exclusions.
The following information contained in a public record is excluded from the mandatory disclosure provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law. Redaction of information excluded under this section from a public record shall be conducted in accordance with §2.2-3704.01.
1. State income, business, and estate tax returns, personal property tax returns, and confidential records held pursuant to §58.1-3.
2. Working papers and correspondence of the Office of the Governor, the Lieutenant Governor, or the Attorney General; the members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates or the Senate of Virginia; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in the Commonwealth. However, no information that is otherwise open to inspection under this chapter shall be deemed excluded by virtue of the fact that it has been attached to or incorporated within any working paper or correspondence. Further, information publicly available or not otherwise subject to an exclusion under this chapter or other provision of law that has been aggregated, combined, or changed in format without substantive analysis or revision shall not be deemed working papers. Nothing in this subdivision shall be construed to authorize the withholding of any resumes or applications submitted by persons who are appointed by the Governor pursuant to §2.2-106 or 2.2-107.
As used in this subdivision:
"Members of the General Assembly" means each member of the Senate of Virginia and the House of Delegates and their legislative aides when working on behalf of such member.
"Office of the Governor" means the Governor; the Governor's chief of staff, counsel, director of policy, and Cabinet Secretaries; the Assistant to the Governor for Intergovernmental Affairs; and those individuals to whom the Governor has delegated his authority pursuant to §2.2-104.
"Working papers" means those records prepared by or for a public official identified in this subdivision for his personal or deliberative use.
3. Information contained in library records that can be used to identify (i) both (a) any library patron who has borrowed material from a library and (b) the material such patron borrowed or (ii) any library patron under 18 years of age. For the purposes of clause (ii), access shall not be denied to the parent, including a noncustodial parent, or guardian of such library patron.
4. Contract cost estimates prepared for the confidential use of the Department of Transportation in awarding contracts for construction or the purchase of goods or services, and records and automated systems prepared for the Department's Bid Analysis and Monitoring Program.
5. Lists of registered owners of bonds issued by a political subdivision of the Commonwealth, whether the lists are maintained by the political subdivision itself or by a single fiduciary designated by the political subdivision.
6. Information furnished by a member of the General Assembly to a meeting of a standing committee, special committee, or subcommittee of his house established solely for the purpose of reviewing members' annual disclosure statements and supporting materials filed under §30-110 or of formulating advisory opinions to members on standards of conduct, or both.
7. Customer account information of a public utility affiliated with a political subdivision of the Commonwealth, including the customer's name and service address, but excluding the amount of utility service provided and the amount of money charged or paid for such utility service.
8. Personal information, as defined in §2.2-3801, (i) filed with the Virginia Housing Development Authority concerning individuals who have applied for or received loans or other housing assistance or who have applied for occupancy of or have occupied housing financed, owned or otherwise assisted by the Virginia Housing Development Authority; (ii) concerning persons participating in or persons on the waiting list for federally funded rent-assistance programs; (iii) filed with any local redevelopment and housing authority created pursuant to §36-4 concerning persons participating in or persons on the waiting list for housing assistance programs funded by local governments or by any such authority; or (iv) filed with any local redevelopment and housing authority created pursuant to §36-4 or any other local government agency concerning persons who have applied for occupancy or who have occupied affordable dwelling units established pursuant to §15.2-2304 or 15.2-2305. However, access to one's own information shall not be denied.
9. Information regarding the siting of hazardous waste facilities, except as provided in §10.1-1441, if disclosure of such information would have a detrimental effect upon the negotiating position of a governing body or on the establishment of the terms, conditions, and provisions of the siting agreement.
10. Information on the site-specific location of rare, threatened, endangered, or otherwise imperiled plant and animal species, natural communities, caves, and significant historic and archaeological sites if, in the opinion of the public body that has the responsibility for such information, disclosure of the information would jeopardize the continued existence or the integrity of the resource. This exclusion shall not apply to requests from the owner of the land upon which the resource is located.
11. Memoranda, graphics, video or audio tapes, production models, data, and information of a proprietary nature produced by or for or collected by or for the Virginia Lottery relating to matters of a specific lottery game design, development, production, operation, ticket price, prize structure, manner of selecting the winning ticket, manner of payment of prizes to holders of winning tickets, frequency of drawings or selections of winning tickets, odds of winning, advertising, or marketing, where such information not been publicly released, published, copyrighted, or patented. Whether released, published, or copyrighted, all game-related information shall be subject to public disclosure under this chapter upon the first day of sales for the specific lottery game to which it pertains.
12. Information held by the Virginia Retirement System, acting pursuant to §51.1-124.30, or a local retirement system, acting pursuant to § 51.1-803, or by a local finance board or board of trustees of a trust established by one or more local public bodies to invest funds for post-retirement benefits other than pensions, acting pursuant to Article 8 (§15.2-1544 et seq.) of Chapter 15 of Title 15.2, or by the board of visitors of the University of Virginia, acting pursuant to §23.1-2210, or by the board of visitors of The College of William and Mary in Virginia, acting pursuant to §23.1-2803, or by the Virginia College Savings Plan, acting pursuant to §23.1-704, relating to the acquisition, holding, or disposition of a security or other ownership interest in an entity, where such security or ownership interest is not traded on a governmentally regulated securities exchange, if disclosure of such information would (i) reveal confidential analyses prepared for the board of visitors of the University of Virginia, prepared for the board of visitors of The College of William and Mary in Virginia, prepared by the retirement system, a local finance board or board of trustees, or the Virginia College Savings Plan, or provided to the retirement system, a local finance board or board of trustees, or the Virginia College Savings Plan under a promise of confidentiality of the future value of such ownership interest or the future financial performance of the entity and (ii) have an adverse effect on the value of the investment to be acquired, held, or disposed of by the retirement system, a local finance board or board of trustees, the board of visitors of the University of Virginia, the board of visitors of The College of William and Mary in Virginia, or the Virginia College Savings Plan. Nothing in this subdivision shall be construed to prevent the disclosure of information relating to the identity of any investment held, the amount invested, or the present value of such investment.
13. Financial, medical, rehabilitative, and other personal information concerning applicants for or recipients of loan funds submitted to or maintained by the Assistive Technology Loan Fund Authority under Chapter 11 (§51.5-53 et seq.) of Title 51.5.
14. Information held by the Virginia Commonwealth University Health System Authority pertaining to any of the following: an individual's qualifications for or continued membership on its medical or teaching staffs; proprietary information gathered by or in the possession of the Authority from third parties pursuant to a promise of confidentiality; contract cost estimates prepared for confidential use in awarding contracts for construction or the purchase of goods or services; information of a proprietary nature produced or collected by or for the Authority or members of its medical or teaching staffs; financial statements not publicly available that may be filed with the Authority from third parties; the identity, accounts, or account status of any customer of the Authority; consulting or other reports paid for by the Authority to assist the Authority in connection with its strategic planning and goals; the determination of marketing and operational strategies where disclosure of such strategies would be harmful to the competitive position of the Authority; and information of a proprietary nature produced or collected by or for employees of the Authority, other than the Authority's financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical, or scholarly issues, whether sponsored by the Authority alone or in conjunction with a governmental body or a private concern, when such information has not been publicly released, published, copyrighted, or patented. This exclusion shall also apply when such information is in the possession of Virginia Commonwealth University.
15. Information held by the Department of Environmental Quality, the State Water Control Board, the State Air Pollution Control Board, or the Virginia Waste Management Board relating to (i) active federal environmental enforcement actions that are considered confidential under federal law and (ii) enforcement strategies, including proposed sanctions for enforcement actions. Upon request, such information shall be disclosed after a proposed sanction resulting from the investigation has been proposed to the director of the agency. This subdivision shall not be construed to prevent the disclosure of information related to inspection reports, notices of violation, and documents detailing the nature of any environmental contamination that may have occurred or similar documents.
16. Information related to the operation of toll facilities that identifies an individual, vehicle, or travel itinerary, including vehicle identification data or vehicle enforcement system information; video or photographic images; Social Security or other identification numbers appearing on driver's licenses; credit card or bank account data; home addresses; phone numbers; or records of the date or time of toll facility use.
17. Information held by the Virginia Lottery pertaining to (i) the social security number, tax identification number, state sales tax number, home address and telephone number, personal and lottery banking account and transit numbers of a retailer, and financial information regarding the nonlottery operations of specific retail locations and (ii) individual lottery winners, except that a winner's name, hometown, and amount won shall be disclosed. If the value of the prize won by the winner exceeds $10 million, the information described in clause (ii) shall not be disclosed unless the winner consents in writing to such disclosure.
18. Information held by the Board for Branch Pilots relating to the chemical or drug testing of a person regulated by the Board, where such person has tested negative or has not been the subject of a disciplinary action by the Board for a positive test result.
19. Information pertaining to the planning, scheduling, and performance of examinations of holder records pursuant to the Virginia Disposition of Unclaimed Property Act (§55.1-2500 et seq.) prepared by or for the State Treasurer or his agents or employees or persons employed to perform an audit or examination of holder records.
20. Information held by the Virginia Department of Emergency Management or a local governing body relating to citizen emergency response teams established pursuant to an ordinance of a local governing body that reveal the name, address, including e-mail address, telephone or pager numbers, or operating schedule of an individual participant in the program.
21. Information held by state or local park and recreation departments and local and regional park authorities concerning identifiable individuals under the age of 18 years. However, nothing in this subdivision shall operate to prevent the disclosure of information defined as directory information under regulations implementing the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g, unless the public body has undertaken the parental notification and opt-out requirements provided by such regulations. Access shall not be denied to the parent, including a noncustodial parent, or guardian of such person, unless the parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For such information of persons who are emancipated, the right of access may be asserted by the subject thereof. Any parent or emancipated person who is the subject of the information may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, the public body shall open such information for inspection and copying.
22. Information submitted for inclusion in the Statewide Alert Network administered by the Department of Emergency Management that reveal names, physical addresses, email addresses, computer or internet protocol information, telephone numbers, pager numbers, other wireless or portable communications device information, or operating schedules of individuals or agencies, where the release of such information would compromise the security of the Statewide Alert Network or individuals participating in the Statewide Alert Network.
23. Information held by the Judicial Inquiry and Review Commission made confidential by §17.1-913.
24. Information held by the Virginia Retirement System acting pursuant to §51.1-124.30, a local retirement system acting pursuant to §51.1-803 (hereinafter collectively referred to as the retirement system), or the Virginia College Savings Plan, acting pursuant to §23.1-704 relating to:
a. Internal deliberations of or decisions by the retirement system or the Virginia College Savings Plan on the pursuit of particular investment strategies, or the selection or termination of investment managers, prior to the execution of such investment strategies or the selection or termination of such managers, if disclosure of such information would have an adverse impact on the financial interest of the retirement system or the Virginia College Savings Plan; and
b. Trade secrets provided by a private entity to the retirement system or the Virginia College Savings Plan if disclosure of such records would have an adverse impact on the financial interest of the retirement system or the Virginia College Savings Plan.
For the records specified in subdivision b to be excluded from the provisions of this chapter, the entity shall make a written request to the retirement system or the Virginia College Savings Plan:
(1) Invoking such exclusion prior to or upon submission of the data or other materials for which protection from disclosure is sought;
(2) Identifying with specificity the data or other materials for which protection is sought; and
(3) Stating the reasons why protection is necessary.
The retirement system or the Virginia College Savings Plan shall determine whether the requested exclusion from disclosure meets the requirements set forth in subdivision b.
Nothing in this subdivision shall be construed to prevent the disclosure of the identity or amount of any investment held or the present value and performance of all asset classes and subclasses.
25. Information held by the Department of Corrections made confidential by former §53.1-233.
26. Information maintained by the Department of the Treasury or participants in the Local Government Investment Pool (§2.2-4600 et seq.) and required to be provided by such participants to the Department to establish accounts in accordance with §2.2-4602.
27. Personal information, as defined in §2.2-3801, contained in the Veterans Care Center Resident Trust Funds concerning residents or patients of the Department of Veterans Services Care Centers, except that access shall not be denied to the person who is the subject of the information.
28. Information maintained in connection with fundraising activities by the Veterans Services Foundation pursuant to §2.2-2716 that reveal the address, electronic mail address, facsimile or telephone number, social security number or other identification number appearing on a driver's license, or credit card or bank account data of identifiable donors, except that access shall not be denied to the person who is the subject of the information. Nothing in this subdivision, however, shall be construed to prevent the disclosure of information relating to the amount, date, purpose, and terms of the pledge or donation or the identity of the donor, unless the donor has requested anonymity in connection with or as a condition of making a pledge or donation. The exclusion provided by this subdivision shall not apply to protect from disclosure (i) the identities of sponsors providing grants to or contracting with the foundation for the performance of services or other work or (ii) the terms and conditions of such grants or contracts.
29. Information prepared for and utilized by the Commonwealth's Attorneys' Services Council in the training of state prosecutors or law-enforcement personnel, where such information is not otherwise available to the public and the disclosure of such information would reveal confidential strategies, methods, or procedures to be employed in law-enforcement activities or materials created for the investigation and prosecution of a criminal case.
30. Information provided to the Department of Aviation by other entities of the Commonwealth in connection with the operation of aircraft where the information would not be subject to disclosure by the entity providing the information. The entity providing the information to the Department of Aviation shall identify the specific information to be protected and the applicable provision of this chapter that excludes the information from mandatory disclosure.
31. Information created or maintained by or on the behalf of the judicial performance evaluation program related to an evaluation of any individual justice or judge made confidential by §17.1-100.
32. Information reflecting the substance of meetings in which (i) individual sexual assault cases are discussed by any sexual assault response team established pursuant to §15.2-1627.4, (ii) individual child abuse or neglect cases or sex offenses involving a child are discussed by multidisciplinary child sexual abuse response teams established pursuant to § 15.2-1627.5, or (iii) individual cases of abuse, neglect, or exploitation of adults as defined in §63.2-1603 are discussed by multidisciplinary teams established pursuant to §§15.2-1627.5 and 63.2-1605. The findings of any such team may be disclosed or published in statistical or other aggregated form that does not disclose the identity of specific individuals.
33. Information contained in the strategic plan, marketing plan, or operational plan prepared by the Virginia Economic Development Partnership Authority pursuant to §2.2-2237.1 regarding target companies, specific allocation of resources and staff for marketing activities, and specific marketing activities that would reveal to the Commonwealth's competitors for economic development projects the strategies intended to be deployed by the Commonwealth, thereby adversely affecting the financial interest of the Commonwealth. The executive summaries of the strategic plan, marketing plan, and operational plan shall not be redacted or withheld pursuant to this subdivision.
34. Information discussed in a closed session of the Physical Therapy Compact Commission or the Executive Board or other committees of the Commission for purposes set forth in subsection E of §54.1-3491.
§8.01-195.10. Purpose; action by the General Assembly required; definitions.
A. The purpose of this article is to provide directions and guidelines for the compensation of persons who have been wrongfully incarcerated in the Commonwealth. Compensation for wrongful incarceration is governed by Article IV, Section 14 of the Constitution of Virginia, which prohibits the General Assembly from granting relief in cases in which the courts or other tribunals may have jurisdiction and any individual seeking payment of state funds for wrongful incarceration shall be deemed to have waived all other claims. The payment and receipt of any compensation for wrongful incarceration shall be contingent upon the General Assembly appropriating funds for that purpose. This article shall not provide an entitlement to compensation for persons wrongfully incarcerated or require the General Assembly to appropriate funds for the payment of such compensation. No estate of or personal representative for a decedent shall be entitled to seek a claim for compensation for wrongful incarceration.
B. As used in this article:
"Incarceration" or "incarcerated" means confinement in a local or regional correctional facility, juvenile correctional center, state correctional facility, residential detention center, or facility operated pursuant to the Corrections Private Management Act (§53.1-261 et seq.).
"Wrongful incarceration" or "wrongfully
incarcerated" means incarceration for a felony conviction for which (i)
the conviction has been vacated pursuant to Chapter 19.2 (§19.2-327.2 et seq.)
or 19.3 (§19.2-327.10 et seq.) of Title 19.2, or the person incarcerated has
been granted an absolute pardon for the commission of a crime that he did not commit,;
(ii) the person incarcerated must shall have entered a final
plea of not guilty, or,
regardless of the plea, any person sentenced to death, or
convicted of a Class 1 felony, a Class 2 felony, or any felony for which the
maximum penalty is imprisonment for life,; and (iii) the person
incarcerated did not by any act or omission on his part intentionally
contribute to his conviction for the felony for which he was incarcerated.
§8.01-654. When and where petition filed; what petition to contain.
A. 1. A petition for a writ of habeas corpus ad subjiciendum may be filed in the Supreme Court or any circuit court showing by affidavits or other evidence that the petitioner is detained without lawful authority.
2. A petition for writ of habeas corpus ad subjiciendum, other
than a petition challenging a criminal conviction or sentence, shall be brought
within one year after the cause of action accrues. A habeas corpus petition
attacking a criminal conviction or sentence,
except as provided in §8.01-654.1 for cases in which a death sentence has been
imposed, shall be filed within two years from the date of
final judgment in the trial court or within one year from either final
disposition of the direct appeal in state court or the time for filing such
appeal has expired, whichever is later.
B. 1. With respect to any such petition filed by a petitioner
whose detention originated under criminal process, and subject to the
provisions of subsection C of this
section and of §17.1-310, only the circuit court that
entered the original judgment or order resulting in the detention complained of
in the petition shall have authority to issue writs of habeas corpus. If a
district court entered the original judgment or order resulting in the
detention complained of in the petition, only the circuit court for the city or
county wherein the district court sits shall have authority to issue writs of
habeas corpus. Hearings on such petition, where granted in the circuit court,
may be held at any circuit court within the same circuit as the circuit court
in which the petition was filed, as designated by the judge thereof.
2. Such petition shall contain all allegations the facts of which are known to petitioner at the time of filing and such petition shall enumerate all previous applications and their disposition. No writ shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition. The provisions of this section shall not apply to a petitioner's first petition for a writ of habeas corpus when the sole allegation of such petition is that the petitioner was deprived of the right to pursue an appeal from a final judgment of conviction or probation revocation, except that such petition shall contain all facts pertinent to the denial of appeal that are known to the petitioner at the time of the filing, and such petition shall certify that the petitioner has filed no prior habeas corpus petitions attacking the conviction or probation revocation.
3. Such petition may allege detention without lawful authority through challenge to a conviction, although the sentence imposed for such conviction is suspended or is to be served subsequently to the sentence currently being served by petitioner.
4. In the event the allegations of illegality of the petitioner's detention can be fully determined on the basis of recorded matters, the court may make its determination whether such writ should issue on the basis of the record.
5. The court shall give findings of fact and conclusions of law following a determination on the record or after hearing, to be made a part of the record and transcribed.
6. If petitioner alleges as a ground for illegality of his detention the inadequacy of counsel, he shall be deemed to waive his privilege with respect to communications between such counsel and himself to the extent necessary to permit a full and fair hearing for the alleged ground.
C. 1. With respect to
any such petition filed by a petitioner held under the sentence of death, and
subject to the provisions of this subsection, the Supreme Court shall have
exclusive jurisdiction to consider and award writs of habeas corpus. The
circuit court which entered the judgment order setting the sentence of death
shall have authority to conduct an evidentiary hearing on such a petition only
if directed to do so by order of the Supreme Court.
2. Hearings conducted in
a circuit court pursuant to an order issued under the provisions of subdivision
1 of this subsection shall be limited in subject matter to the issues
enumerated in the order.
3. The circuit court
shall conduct such a hearing within 90 days after the order of the Supreme
Court has been received and shall report its findings of fact and recommend
conclusions of law to the Supreme Court within 60 days after the conclusion of
the hearing. Any objection to the report of the circuit court must be filed in
the Supreme Court within 30 days after the report is filed.
§17.1-310. Habeas corpus, appeals, writs of error and supersedeas.
The Supreme Court shall also have jurisdiction to award writs
of habeas corpus and of such appeals, writs of error and supersedeas as may be
legally docketed in or transferred to the Court. In
accordance with §8.01-654, the Court shall have exclusive jurisdiction to
award writs of habeas corpus upon petitions filed by prisoners held under the
sentence of death.
§17.1-406. Petitions for appeal; cases over which Court of Appeals does not have jurisdiction.
A. Any aggrieved party may present a petition for appeal to
the Court of Appeals from (i) any final conviction in a circuit court of a
traffic infraction or a crime, except where a sentence
of death has been imposed, (ii) any final decision of a
circuit court on an application for a concealed weapons permit pursuant to
Article 6.1 (§18.2-307.1 et seq.) of Chapter 7 of Title 18.2, (iii) any final
order of a circuit court involving involuntary treatment of prisoners pursuant
to §53.1-40.1 or 53.1-133.04, or (iv) any final order for declaratory or
injunctive relief under §57-2.02. The Commonwealth or any county, city or town
may petition the Court of Appeals for an appeal pursuant to this subsection in
any case in which such party previously could have petitioned the Supreme Court
for a writ of error under §19.2-317. The Commonwealth may also petition the
Court of Appeals for an appeal in a criminal case pursuant to §19.2-398.
B. In accordance with other applicable provisions of law,
appeals lie directly to the Supreme Court from
a conviction in which a sentence of death is imposed, from
a final decision, judgment or order of a circuit court involving a petition for
a writ of habeas corpus, from any final finding, decision, order, or judgment
of the State Corporation Commission, and from proceedings under §§54.1-3935
and 54.1-3937. Complaints of the Judicial Inquiry and Review Commission shall
be filed with the Supreme Court of Virginia. The Court of Appeals shall not
have jurisdiction over any cases or proceedings described in this subsection.
§18.2-8. Felonies, misdemeanors and traffic infractions defined.
Offenses are either felonies or misdemeanors. Such offenses as
are punishable with death or
confinement in a state correctional facility are felonies; all other offenses
are misdemeanors. Traffic infractions are violations of public order as defined
in §46.2-100 and not deemed to be criminal in nature.
§18.2-10. Punishment for conviction of felony; penalty.
The authorized punishments for conviction of a felony are:
(a) For Class 1 felonies,
death, if the person so convicted was 18 years of age or older at the time of
the offense and is not determined to be a person with intellectual disability
pursuant to §19.2-264.3:1.1, or imprisonment for life and,
subject to subdivision (g), a fine of not more than $100,000. If the person was under 18 years of age at the
time of the offense or is determined to be a person with intellectual
disability pursuant to §19.2-264.3:1.1, the punishment shall be imprisonment
for life and, subject to subdivision (g), a fine of not more than $100,000. Any person sentenced to imprisonment for life upon
conviction of a Class 1 felony shall not be eligible for (i) parole, (ii) any
good conduct allowance or any earned sentence credits under Chapter 6 (§
53.1-186 et seq.) of Title 53.1, or (iii) conditional release pursuant to §
53.1-40.01.
(b) For Class 2 felonies, imprisonment for life or for any term not less than 20 years and, subject to subdivision (g), a fine of not more than $100,000.
(c) For Class 3 felonies, a term of imprisonment of not less than five years nor more than 20 years and, subject to subdivision (g), a fine of not more than $100,000.
(d) For Class 4 felonies, a term of imprisonment of not less than two years nor more than 10 years and, subject to subdivision (g), a fine of not more than $100,000.
(e) For Class 5 felonies, a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
(f) For Class 6 felonies, a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
(g) Except as specifically authorized in subdivision (e) or
(f), or in Class 1 felonies for which a sentence of
death is imposed, the
court shall impose either a sentence of imprisonment together with a fine, or
imprisonment only. However, if the defendant is not a natural person, the court
shall impose only a fine.
For any felony offense committed (i) on or after January 1, 1995, the court may, and (ii) on or after July 1, 2000, shall, except in cases in which the court orders a suspended term of confinement of at least six months, impose an additional term of not less than six months nor more than three years, which shall be suspended conditioned upon successful completion of a period of post-release supervision pursuant to §19.2-295.2 and compliance with such other terms as the sentencing court may require. However, such additional term may only be imposed when the sentence includes an active term of incarceration in a correctional facility.
For a felony offense prohibiting proximity to children as described in subsection A of §18.2-370.2, the sentencing court is authorized to impose the punishment set forth in that section in addition to any other penalty provided by law.
§18.2-18. How principals in second degree and accessories before the fact punished.
In the case of every felony, every principal in the second
degree and every accessory before the fact may be indicted, tried, convicted
and punished in all respects as if a principal in the first degree; provided,
however, that except in the case of a killing for hire under the provisions of
subdivision A 2 of §18.2-31 or a killing pursuant to the direction or order of
one who is engaged in a continuing criminal enterprise under the provisions of
subdivision A 10 of §18.2-31 or a killing pursuant to the direction or order
of one who is engaged in the commission of or attempted commission of an act of
terrorism under the provisions of subdivision A 13 of §18.2-31, an accessory
before the fact or principal in the second degree to a
capital an aggravated
murder shall be indicted, tried, convicted and punished as though the offense
were murder in the first degree.
§18.2-19. How accessories after the fact punished; certain exceptions.
Every accessory after the fact is guilty of (i) a Class 6
felony in the case of a homicide offense that is punishable by
death or as a Class 1 or
Class 2 felony or (ii) a Class 1 misdemeanor in the case of any other felony.
However, no person in the relation of husband or wife, parent or grandparent,
child or grandchild, brother or sister, by consanguinity or affinity, or
servant to the offender, who, after the commission of a felony, shall aid or
assist a principal felon or accessory before the fact to avoid or escape from
prosecution or punishment, shall be deemed an accessory after the fact.
§18.2-22. Conspiracy to commit felony.
(a) If any person shall conspire, confederate or combine with
another, either within or without this outside the Commonwealth, to
commit a felony within this the Commonwealth, or if he
shall so conspire, confederate or combine with another within this the
Commonwealth to commit a felony either within or
without this outside the
Commonwealth, he shall be guilty of a felony which that shall be punishable as
follows:
(1) Every person who so conspires to commit an offense which that
is punishable by death shall be as a Class 1 felony is guilty
of a Class 3 felony;
(2) Every person who so conspires to commit an offense which that
is a noncapital any other felony shall be is
guilty of a Class 5 felony; and
(3) Every person who so conspires to commit an offense the
maximum punishment for which is confinement in a state correctional facility
for a period of less than five years shall be confined in a state correctional
facility for a period of one year, or, in the discretion of the jury or the
court trying the case without a jury, may be confined in jail not exceeding twelve 12
months and fined not exceeding $500, either or both.
(b) However, in no event shall the punishment for a conspiracy to commit an offense exceed the maximum punishment for the commission of the offense itself.
(c) Jurisdiction for the trial of any person accused of a conspiracy under this section shall be in the county or city wherein any part of such conspiracy is planned or in the county or city wherein any act is done toward the consummation of such plan or conspiracy.
(d) The penalty provisions of this section shall not apply to
any person who conspires to commit any offense defined in Chapter 34 (§54.1-3400 et seq.) of Title
54.1 or of Article 1 (§18.2-247 et seq.), of Chapter 7 of this title.
The penalty for any such violation shall be as provided in §18.2-256.
§18.2-25. Attempts to commit Class 1 felonies; how punished.
If any person attempts to commit an offense which that
is punishable with death as a Class 1 felony, he shall be is
guilty of a Class 2 felony.
§18.2-26. Attempts to commit noncapital felonies; how punished.
EveryExcept as provided in §18.2-25, every
person who attempts to commit an offense which is a
noncapital felony shall be punished as follows:
(1) If the felony attempted is punishable by a maximum punishment of life imprisonment or a term of years in excess of twenty years, an attempt thereat shall be punishable as a Class 4 felony.
(2) If the felony attempted is punishable by a maximum punishment of twenty years' imprisonment, an attempt thereat shall be punishable as a Class 5 felony.
(3) If the felony attempted is punishable by a maximum punishment of less than twenty years' imprisonment, an attempt thereat shall be punishable as a Class 6 felony.
§18.2-30. Murder and manslaughter declared felonies.
Any person who commits capital aggravated murder, murder of
the first degree, murder of the second degree, voluntary manslaughter, or
involuntary manslaughter, shall be is guilty of a felony.
§18.2-31. Aggravated murder defined; punishment.
A. The following offenses shall constitute
capital aggravated
murder, punishable as a Class 1 felony:
1. The willful, deliberate, and premeditated killing of any person in the commission of abduction, as defined in §18.2-48, when such abduction was committed with the intent to extort money or a pecuniary benefit or with the intent to defile the victim of such abduction;
2. The willful, deliberate, and premeditated killing of any person by another for hire;
3. The willful, deliberate, and premeditated killing of any person by a prisoner confined in a state or local correctional facility as defined in §53.1-1, or while in the custody of an employee thereof;
4. The willful, deliberate, and premeditated killing of any person in the commission of robbery or attempted robbery;
5. The willful, deliberate, and premeditated killing of any person in the commission of, or subsequent to, rape or attempted rape, forcible sodomy, or attempted forcible sodomy or object sexual penetration;
6. The willful, deliberate, and premeditated killing of a law-enforcement officer as defined in §9.1-101, a fire marshal appointed pursuant to §27-30 or a deputy or an assistant fire marshal appointed pursuant to §27-36, when such fire marshal or deputy or assistant fire marshal has police powers as set forth in §§27-34.2 and 27-34.2:1, an auxiliary police officer appointed or provided for pursuant to §§15.2-1731 and 15.2-1733, an auxiliary deputy sheriff appointed pursuant to §15.2-1603, or any law-enforcement officer of another state or the United States having the power to arrest for a felony under the laws of such state or the United States, when such killing is for the purpose of interfering with the performance of his official duties;
7. The willful, deliberate, and premeditated killing of more than one person as a part of the same act or transaction;
8. The willful, deliberate, and premeditated killing of more than one person within a three-year period;
9. The willful, deliberate, and premeditated killing of any person in the commission of or attempted commission of a violation of § 18.2-248, involving a Schedule I or II controlled substance, when such killing is for the purpose of furthering the commission or attempted commission of such violation;
10. The willful, deliberate, and premeditated killing of any person by another pursuant to the direction or order of one who is engaged in a continuing criminal enterprise as defined in subsection I of §18.2-248;
11. The willful, deliberate, and premeditated killing of a pregnant woman by one who knows that the woman is pregnant and has the intent to cause the involuntary termination of the woman's pregnancy without a live birth;
12. The willful, deliberate, and premeditated killing of a person under the age of 14 by a person age 21 or older;
13. The willful, deliberate, and premeditated killing of any person by another in the commission of or attempted commission of an act of terrorism as defined in §18.2-46.4;
14. The willful, deliberate, and premeditated killing of a justice of the Supreme Court, a judge of the Court of Appeals, a judge of a circuit court or district court, a retired judge sitting by designation or under temporary recall, or a substitute judge appointed under §16.1-69.9:1 when the killing is for the purpose of interfering with his official duties as a judge; and
15. The willful, deliberate, and premeditated killing of any witness in a criminal case after a subpoena has been issued for such witness by the court, the clerk, or an attorney, when the killing is for the purpose of interfering with the person's duties in such case.
B. For a violation of subdivision A 6 where the offender was 18 years of age or older at the time of the offense, the punishment shall be no less than a mandatory minimum term of confinement for life.
C. If any one or more subsections, sentences, or parts of this section shall be judged unconstitutional or invalid, such adjudication shall not affect, impair, or invalidate the remaining provisions thereof but shall be confined in its operation to the specific provisions so held unconstitutional or invalid.
§18.2-32. First and second degree murder defined; punishment.
Murder, other than capital aggravated murder, by poison,
lying in wait, imprisonment, starving, or by any willful, deliberate, and
premeditated killing, or in the commission of, or attempt to commit, arson,
rape, forcible sodomy, inanimate or animate object sexual penetration, robbery,
burglary or abduction, except as provided in §18.2-31, is murder of the first
degree, punishable as a Class 2 felony.
All murder other than capital aggravated murder and murder
in the first degree is murder of the second degree and is punishable by confinement
in a state correctional facility for not less than five nor more than forty
years.
§18.2-251.01. Substance abuse screening and assessment for felony convictions.
A. When a person is convicted of a felony, not except a
capital offense Class 1 felony,
committed on or after January 1, 2000, he shall be required to undergo a
substance abuse screening and, if the screening indicates a substance abuse or
dependence problem, an assessment by a certified substance abuse counselor as
defined in §54.1-3500 employed by the Department of Corrections or by an
agency employee under the supervision of such counselor. If the person is
determined to have a substance abuse problem, the court shall require him to
enter treatment and/or education program or services, if available, which, in
the opinion of the court, is best suited to the needs of the person. The
program or services may be located in the judicial district in which the
conviction was had or in any other judicial district as the court may provide.
The treatment and/or education program or services shall be licensed by the
Department of Behavioral Health and Developmental Services or shall be a
similar program or services which are made available through the Department of
Corrections if the court imposes a sentence of one year or more or, if the
court imposes a sentence of 12 months or less, by a similar program or services
available through a local or regional jail, a local community-based probation
services agency established pursuant to §9.1-174, or an ASAP program certified
by the Commission on VASAP. The services agency or program may require the
person entering such program or services under the provisions of this section
to pay a fee for the education and treatment component, or both, based upon the
defendant's ability to pay.
B. As a condition of any suspended sentence and probation, the court shall order the person to undergo periodic testing and treatment for substance abuse, if available, as the court deems appropriate based upon consideration of the substance abuse assessment.
§19.2-11.01. Crime victim and witness rights.
A. In recognition of the Commonwealth's concern for the victims and witnesses of crime, it is the purpose of this chapter to ensure that the full impact of crime is brought to the attention of the courts of the Commonwealth; that crime victims and witnesses are treated with dignity, respect and sensitivity; and that their privacy is protected to the extent permissible under law. It is the further purpose of this chapter to ensure that victims and witnesses are informed of the rights provided to them under the laws of the Commonwealth; that they receive authorized services as appropriate; and that they have the opportunity to be heard by law-enforcement agencies, attorneys for the Commonwealth, corrections agencies and the judiciary at all critical stages of the criminal justice process to the extent permissible under law. Unless otherwise stated and subject to the provisions of §19.2-11.1, it shall be the responsibility of a locality's crime victim and witness assistance program to provide the information and assistance required by this chapter, including verification that the standardized form listing the specific rights afforded to crime victims has been received by the victim.
As soon as practicable after identifying a victim of a crime, the investigating law-enforcement agency shall provide the victim with a standardized form listing the specific rights afforded to crime victims. The form shall include a telephone number by which the victim can receive further information and assistance in securing the rights afforded crime victims, the name, address and telephone number of the office of the attorney for the Commonwealth, the name, address and telephone number of the investigating law-enforcement agency, and a summary of the victim's rights under §40.1-28.7:2.
1. Victim and witness protection and law-enforcement contacts.
a. In order that victims and witnesses receive protection from harm and threats of harm arising out of their cooperation with law-enforcement, or prosecution efforts, they shall be provided with information as to the level of protection which may be available pursuant to §52-35 or to any other federal, state or local program providing protection, and shall be assisted in obtaining this protection from the appropriate authorities.
b. Victims and witnesses shall be provided, where available, a separate waiting area during court proceedings that affords them privacy and protection from intimidation, and that does not place the victim in close proximity to the defendant or the defendant's family.
2. Financial assistance.
a. Victims shall be informed of financial assistance and social services available to them as victims of a crime, including information on their possible right to file a claim for compensation from the Crime Victims' Compensation Fund pursuant to Chapter 21.1 (§19.2-368.1 et seq.) and on other available assistance and services.
b. Victims shall be assisted in having any property held by law-enforcement agencies for evidentiary purposes returned promptly in accordance with §§19.2-270.1 and 19.2-270.2.
c. Victims shall be advised that restitution is available for
damages or loss resulting from an offense and shall be assisted in seeking restitution
in accordance with §§19.2-305, and 19.2-305.1, Chapter 21.1
(§19.2-368.1 et seq.), Article 21 (§58.1-520 et seq.) of Chapter 3 of Title
58.1, and other applicable laws of the Commonwealth.
3. Notices.
a. Victims and witnesses shall be (i) provided with appropriate employer intercession services to ensure that employers of victims and witnesses will cooperate with the criminal justice process in order to minimize an employee's loss of pay and other benefits resulting from court appearances and (ii) advised that pursuant to §18.2-465.1 it is unlawful for an employer to penalize an employee for appearing in court pursuant to a summons or subpoena.
b. Victims shall receive advance notification when practicable from the attorney for the Commonwealth of judicial proceedings relating to their case and shall be notified when practicable of any change in court dates in accordance with §19.2-265.01 if they have provided their names, current addresses and telephone numbers.
c. Victims shall receive notification, if requested, subject to such reasonable procedures as the Attorney General may require pursuant to § 2.2-511, from the Attorney General of the filing and disposition of any appeal or habeas corpus proceeding involving their case.
d. Victims shall be notified by the Department of Corrections or a sheriff or jail superintendent (i) in whose custody an escape, change of name, transfer, release or discharge of a prisoner occurs pursuant to the provisions of §§53.1-133.02 and 53.1-160 or (ii) when an accused is released on bail, if they have provided their names, current addresses and telephone numbers in writing. Such notification may be provided through the Virginia Statewide VINE (Victim Information and Notification Everyday) System or other similar electronic or automated system.
e. Victims shall be advised that, in order to protect their right to receive notices and offer input, all agencies and persons having such duties must have current victim addresses and telephone numbers given by the victims. Victims shall also be advised that any such information given shall be confidential as provided by §19.2-11.2.
f. Victims of sexual assault, as defined in §19.2-11.5, shall be advised of their rights regarding physical evidence recovery kits as provided in Chapter 1.2 (§19.2-11.5 et seq.).
g. Upon the victim's request, the victim shall be notified by the Commissioner of Behavioral Health and Developmental Services or his designee of the release of a defendant (i) who was found to be unrestorably incompetent and was committed pursuant to Article 5 (§37.2-814 et seq.) of Chapter 8 of Title 37.2, committed pursuant to Chapter 9 (§37.2-900 et seq.) of Title 37.2, or certified pursuant to §37.2-806 or (ii) who was acquitted by reason of insanity and committed pursuant to §19.2-182.3.
4. Victim input.
a. Victims shall be given the opportunity, pursuant to § 19.2-299.1, to prepare a written victim impact statement prior to sentencing of a defendant and may provide information to any individual or agency charged with investigating the social history of a person or preparing a victim impact statement under the provisions of §§16.1-273 and 53.1-155 or any other applicable law.
b. Victims shall have the right to remain in the courtroom during a criminal trial or proceeding pursuant to the provisions of § 19.2-265.01.
c. On motion of the attorney for the Commonwealth, victims
shall be given the opportunity, pursuant to §§
19.2-264.4 and §
19.2-295.3, to testify prior to sentencing of a defendant regarding the impact
of the offense.
d. In a felony case, the attorney for the Commonwealth, upon the victim's written request, shall consult with the victim either verbally or in writing (i) to inform the victim of the contents of a proposed plea agreement and (ii) to obtain the victim's views about the disposition of the case, including the victim's views concerning dismissal, pleas, plea negotiations and sentencing. However, nothing in this section shall limit the ability of the attorney for the Commonwealth to exercise his discretion on behalf of the citizens of the Commonwealth in the disposition of any criminal case. The court shall not accept the plea agreement unless it finds that, except for good cause shown, the Commonwealth has complied with clauses (i) and (ii). Good cause shown shall include, but not be limited to, the unavailability of the victim due to incarceration, hospitalization, failure to appear at trial when subpoenaed, or change of address without notice.
Upon the victim's written request, the victim shall be notified in accordance with subdivision A 3 b of any proceeding in which the plea agreement will be tendered to the court.
The responsibility to consult with the victim under this subdivision shall not confer upon the defendant any substantive or procedural rights and shall not affect the validity of any plea entered by the defendant.
5. Courtroom assistance.
a. Victims and witnesses shall be informed that their addresses, any telephone numbers, and email addresses may not be disclosed, pursuant to the provisions of §§19.2-11.2 and 19.2-269.2, except when necessary for the conduct of the criminal proceeding.
b. Victims and witnesses shall be advised that they have the right to the services of an interpreter in accordance with §§19.2-164 and 19.2-164.1.
c. Victims and witnesses of certain sexual offenses shall be advised that there may be a closed preliminary hearing in accordance with § 18.2-67.8 and, if a victim was 14 years of age or younger on the date of the offense and is 16 or under at the time of the trial, or a witness to the offense is 14 years of age or younger at the time of the trial, that two-way closed-circuit television may be used in the taking of testimony in accordance with §18.2-67.9.
6. Post trial assistance.
a. Within 30 days of receipt of a victim's written request after the final trial court proceeding in the case, the attorney for the Commonwealth shall notify the victim in writing, of (i) the disposition of the case, (ii) the crimes of which the defendant was convicted, (iii) the defendant's right to appeal, if known, and (iv) the telephone number of offices to contact in the event of nonpayment of restitution by the defendant.
b. If the defendant has been released on bail pending the outcome of an appeal, the agency that had custody of the defendant immediately prior to his release shall notify the victim as soon as practicable that the defendant has been released.
c. If the defendant's conviction is overturned, and the attorney for the Commonwealth decides to retry the case or the case is remanded for a new trial, the victim shall be entitled to the same rights as if the first trial did not take place.
B. For purposes of this chapter, "victim" means (i) a person who has suffered physical, psychological, or economic harm as a direct result of the commission of (a) a felony, (b) assault and battery in violation of §18.2-57 or 18.2-57.2, stalking in violation of §18.2-60.3, a violation of a protective order in violation of §16.1-253.2 or 18.2-60.4, sexual battery in violation of §18.2-67.4, attempted sexual battery in violation of §18.2-67.5, or maiming or driving while intoxicated in violation of §18.2-51.4 or 18.2-266, or (c) a delinquent act that would be a felony or a misdemeanor violation of any offense enumerated in clause (b) if committed by an adult; (ii) a spouse or child of such a person; (iii) a parent or legal guardian of such a person who is a minor; (iv) for the purposes of subdivision A 4 only, a current or former foster parent or other person who has or has had physical custody of such a person who is a minor, for six months or more or for the majority of the minor's life; or (v) a spouse, parent, sibling, or legal guardian of such a person who is physically or mentally incapacitated or was the victim of a homicide; however, "victim" does not mean a parent, child, spouse, sibling, or legal guardian who commits a felony or other enumerated criminal offense against a victim as defined in clause (i).
C. Officials and employees of the judiciary, including court services units, law-enforcement agencies, the Department of Corrections, attorneys for the Commonwealth and public defenders, shall be provided with copies of this chapter by the Department of Criminal Justice Services or a crime victim and witness assistance program. Each agency, officer or employee who has a responsibility or responsibilities to victims under this chapter or other applicable law shall make reasonable efforts to become informed about these responsibilities and to ensure that victims and witnesses receive such information and services to which they may be entitled under applicable law, provided that no liability or cause of action shall arise from the failure to make such efforts or from the failure of such victims or witnesses to receive any such information or services.
§19.2-71. Who may issue process of arrest.
A. Process for the arrest of a person charged with a criminal
offense may be issued by the judge, or clerk of any circuit court, any general
district court, any juvenile and domestic relations district court, or any
magistrate as provided for in Chapter 3 (§19.2-26 et seq.) of
this title. However, no magistrate may issue an arrest
warrant for a felony offense upon the basis of a complaint by a person other
than a law-enforcement officer or an animal control officer without prior
authorization by the attorney for the Commonwealth or by a law-enforcement
agency having jurisdiction over the alleged offense.
B. No law-enforcement officer shall seek issuance of process
by any judicial officer, for the arrest of a person for the an offense of capital
aggravated murder as defined in §18.2-31, without prior
authorization by the attorney for the Commonwealth. Failure to comply with the
provisions of this subsection shall not be (i) a basis upon which a warrant may
be quashed or deemed invalid, (ii) deemed error upon which a conviction or
sentence may be reversed or vacated, or (iii) a basis upon which a court may
prevent or delay execution of sentence.
§19.2-76.1. Submission of quarterly reports concerning unexecuted felony and misdemeanor warrants and other criminal process; destruction; dismissal.
It shall be the duty of the chief law-enforcement officer of
the police department or sheriff's office, whichever is responsible for such
service, in each county, town or city of the Commonwealth to submit quarterly
reports to the attorney for the Commonwealth for the county, town or city
concerning unexecuted felony and misdemeanor arrest warrants, summonses,
capiases or other unexecuted criminal processes as hereinafter provided. The
reports shall list those existing felony arrest warrants in his possession that
have not been executed within seven years of the date of issuance, those
misdemeanor arrest warrants, summonses and capiases and other criminal
processes in his possession that have not been executed within three years from
the date of issuance, and those unexecuted misdemeanor arrest warrants,
summonses and capiases in his possession that were issued for a now deceased
person, based on mistaken identity or as a result of any other technical or
legal error. The reports shall be submitted in writing no later than the tenth
day of April, July, October, and January of each year, together with the unexecuted
felony and misdemeanor warrants, or other unexecuted criminal processes listed
therein. Upon receipt of the report and the warrants listed therein, the
attorney for the Commonwealth shall petition the circuit court of the county or
city for the destruction of such unexecuted felony and misdemeanor warrants,
summonses, capiases or other unexecuted criminal processes. The attorney for
the Commonwealth may petition that certain of the unexecuted warrants,
summonses, capiases and other unexecuted criminal processes not be destroyed
based upon justifiable continuing, active investigation of the cases. The
circuit court shall order the destruction of each such unexecuted felony
warrant and each unexecuted misdemeanor warrant, summons, capias and other
criminal process except (i) any warrant which that charges capital
aggravated murder and (ii) any unexecuted criminal process
whose preservation is deemed justifiable by the court. No arrest shall be made
under the authority of any warrant or other process which has been ordered
destroyed pursuant to this section. Nothing in this section shall be construed
to relate to or affect the time within which a prosecution for a felony or a
misdemeanor shall be commenced.
Notwithstanding the foregoing, an attorney for the Commonwealth
may at any time move for the dismissal and destruction of any unexecuted
warrant or summons issued by a magistrate upon presentation of such warrant or
summons to the court in which the warrant or summons would otherwise be
returnable. The court shall not order the dismissal and destruction of any
warrant which that
charges capital
aggravated murder and shall not order the dismissal and
destruction of an unexecuted criminal process whose preservation is deemed
justifiable by the court. Dismissal of such a warrant or summons shall be
without prejudice.
As used herein, the term "chief law-enforcement officer" refers to the chiefs of police of cities, counties and towns and sheriffs of cities and counties, unless a political subdivision has otherwise designated its chief law-enforcement officer by appropriate resolution or ordinance, in which case the local designation shall be controlling.
§19.2-100. Arrest without warrant.
The arrest of a person may be lawfully made also by any peace
officer or private person without a warrant upon reasonable information that
the accused stands charged in the courts of a state with a crime punishable by death or
imprisonment for a term exceeding one year. But when so arrested the accused shall
be taken before a judge, magistrate or other officer authorized to issue
criminal warrants in this the Commonwealth with all
practicable speed and complaint made against him under oath setting forth the
ground for the arrest as in the preceding section;, and thereafter his answer
shall be heard as if he had been arrested on a warrant.
§19.2-102. In what cases bail allowed; conditions of bond.
Unless the offense with which the prisoner is charged is shown
to be an offense punishable by death or
life imprisonment under the laws of the state in which it was committed, any
judge, magistrate or other person authorized by law to admit persons to bail in this the
Commonwealth may admit the person arrested to bail by bond, with sufficient
sureties, and in such sum as he deems proper, conditioned upon his appearance
before a judge at a time specified in such bond and upon his surrender for
arrest upon the warrant of the Governor of this the Commonwealth.
§19.2-120. Admission to bail.
Prior to conducting any hearing on the issue of bail, release or detention, the judicial officer shall, to the extent feasible, obtain the person's criminal history.
A. A person who is held in custody pending trial or hearing for an offense, civil or criminal contempt, or otherwise shall be admitted to bail by a judicial officer, unless there is probable cause to believe that:
1. He will not appear for trial or hearing or at such other time and place as may be directed, or
2. His liberty will constitute an unreasonable danger to himself or the public.
B. The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is currently charged with:
1. An act of violence as defined in §19.2-297.1;
2. An offense for which the maximum sentence is life
imprisonment or death;
3. A violation of §18.2-248, 18.2-248.01, 18.2-255, or 18.2-255.2 involving a Schedule I or II controlled substance if (i) the maximum term of imprisonment is 10 years or more and the person was previously convicted of a like offense or (ii) the person was previously convicted as a "drug kingpin" as defined in §18.2-248;
4. A violation of §18.2-308.1, 18.2-308.2, or 18.2-308.4 and which relates to a firearm and provides for a mandatory minimum sentence;
5. Any felony, if the person has been convicted of two or more offenses described in subdivision 1 or 2, whether under the laws of the Commonwealth or substantially similar laws of the United States;
6. Any felony committed while the person is on release pending trial for a prior felony under federal or state law or on release pending imposition or execution of sentence or appeal of sentence or conviction;
7. An offense listed in subsection B of §18.2-67.5:2 and the person had previously been convicted of an offense listed in §18.2-67.5:2 or a substantially similar offense under the laws of any state or the United States and the judicial officer finds probable cause to believe that the person who is currently charged with one of these offenses committed the offense charged;
8. A violation of §18.2-374.1 or 18.2-374.3 where the offender has reason to believe that the solicited person is under 15 years of age and the offender is at least five years older than the solicited person;
9. A violation of §18.2-46.2, 18.2-46.3, 18.2-46.5, or 18.2-46.7;
10. A violation of §18.2-36.1, 18.2-51.4, 18.2-266, or 46.2-341.24 and the person has, within the past five years of the instant offense, been convicted three times on different dates of a violation of any combination of these Code sections, or any ordinance of any county, city, or town or the laws of any other state or of the United States substantially similar thereto, and has been at liberty between each conviction;
11. A second or subsequent violation of §16.1-253.2 or 18.2-60.4 or a substantially similar offense under the laws of any state or the United States;
12. A violation of subsection B of §18.2-57.2;
13. A violation of subsection C of §18.2-460 charging the use of threats of bodily harm or force to knowingly attempt to intimidate or impede a witness;
14. A violation of §18.2-51.6 if the alleged victim is a family or household member as defined in §16.1-228; or
15. A violation of §18.2-355, 18.2-356, 18.2-357, or 18.2-357.1.
C. The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is being arrested pursuant to §19.2-81.6.
D. A judicial officer who is a magistrate, clerk, or deputy clerk of a district court or circuit court may not admit to bail, that is not set by a judge, any person who is charged with an offense giving rise to a rebuttable presumption against bail as set out in subsection B or C without the concurrence of an attorney for the Commonwealth. For a person who is charged with an offense giving rise to a rebuttable presumption against bail, any judge may set or admit such person to bail in accordance with this section after notice and an opportunity to be heard has been provided to the attorney for the Commonwealth.
E. The court shall consider the following factors and such others as it deems appropriate in determining, for the purpose of rebuttal of the presumption against bail described in subsection B, whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of the public:
1. The nature and circumstances of the offense charged;
2. The history and characteristics of the person, including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, membership in a criminal street gang as defined in §18.2-46.1, and record concerning appearance at court proceedings; and
3. The nature and seriousness of the danger to any person or the community that would be posed by the person's release.
F. The judicial officer shall inform the person of his right to appeal from the order denying bail or fixing terms of bond or recognizance consistent with §19.2-124.
G. If the judicial officer sets a secured bond and the person engages the services of a licensed bail bondsman, the magistrate executing recognizance for the accused shall provide the bondsman, upon request, with a copy of the person's Virginia criminal history record, if readily available, to be used by the bondsman only to determine appropriate reporting requirements to impose upon the accused upon his release. The bondsman shall pay a $15 fee payable to the state treasury to be credited to the Literary Fund, upon requesting the defendant's Virginia criminal history record issued pursuant to §19.2-389. The bondsman shall review the record on the premises and promptly return the record to the magistrate after reviewing it.
§19.2-152.2. Purpose; establishment of pretrial services and services agencies.
It is the purpose of this article to provide more effective
protection of society by establishing pretrial services agencies that will
assist judicial officers in discharging their duties pursuant to Article 1 (§
19.2-119 et seq.) of Chapter 9 of this title.
Such agencies are intended to provide better information and services for use
by judicial officers in determining the risk to public safety and the assurance
of appearance of persons age 18 or over or persons under the age of 18 who have
been transferred for trial as adults held in custody and charged with an
offense, other than an offense punishable by
death as a Class 1 felony,
who are pending trial or hearing. Any city, county or combination thereof may
establish a pretrial services agency and any city, county or combination
thereof required to submit a community-based corrections plan pursuant to §
53.1-82.1 shall establish a pretrial services agency.
§19.2-157. Duty of court when accused appears without counsel.
Except as may otherwise be provided in §§16.1-266 through
16.1-268, whenever a person charged with a criminal offense the penalty for
which may be death or confinement in the
state correctional facility or jail, including charges for revocation of
suspension of imposition or execution of sentence or probation, appears before
any court without being represented by counsel, the court shall inform him of
his right to counsel. The accused shall be allowed a reasonable opportunity to
employ counsel or, if appropriate, the statement of indigence provided for in §
19.2-159 may be executed.
§19.2-159. Determination of indigency; guidelines; statement of indigence; appointment of counsel.
A. If the accused shall claim that he is indigent, and the
charge against him is a criminal offense which that may be punishable by death or confinement in the
state correctional facility or jail, subject to the provisions of §19.2-160,
the court shall determine from oral examination of the accused or other
competent evidence whether or not the accused is indigent within the contemplation
of law pursuant to the guidelines set forth in this section.
B. In making its finding, the court shall determine whether or not the accused is a current recipient of a state or federally funded public assistance program for the indigent. If the accused is a current recipient of such a program and does not waive his right to counsel or retain counsel on his own behalf, he shall be presumed eligible for the appointment of counsel. This presumption shall be rebuttable where the court finds that a more thorough examination of the financial resources of the defendant is necessary. If the accused shall claim to be indigent and is not presumptively eligible under the provisions of this section, then a thorough examination of the financial resources of the accused shall be made with consideration given to the following:
1. The net income of the accused, which shall include his total salary and wages minus deductions required by law. The court also shall take into account income and amenities from other sources including but not limited to social security funds, union funds, veteran's benefits, other regular support from an absent family member, public or private employee pensions, dividends, interests, rents, estates, trusts, or gifts.
2. All assets of the accused which are convertible into cash within a reasonable period of time without causing substantial hardship or jeopardizing the ability of the accused to maintain home and employment. Assets shall include all cash on hand as well as in checking and savings accounts, stocks, bonds, certificates of deposit, and tax refunds. All personal property owned by the accused which is readily convertible into cash shall be considered, except property exempt from attachment. Any real estate owned by the accused shall be considered in terms of the amounts which could be raised by a loan on the property. For purposes of eligibility determination, the income, assets, and expenses of the spouse, if any, who is a member of the accused's household, shall be considered, unless the spouse was the victim of the offense or offenses allegedly committed by the accused.
3. Any exceptional expenses of the accused and his family which would, in all probability, prohibit him from being able to secure private counsel. Such items shall include but not be limited to costs for medical care, family support obligations, and child care payments.
The available funds of the accused shall be calculated as the
sum of his total income and assets less the exceptional expenses as provided in paragraph
subdivision 3 above.
If the accused does not waive his right to counsel or retain counsel on his own
behalf, counsel shall be appointed for the accused if his available funds are
equal to or below 125 percent of the federal poverty income guidelines prescribed
for the size of the household of the accused by the federal Department of
Health and Human Services. The Supreme Court of Virginia shall be responsible
for distributing to all courts the annual updates of the federal poverty income
guidelines made by the Department.
If the available funds of the accused exceed 125 percent of the federal poverty income guidelines and the accused fails to employ counsel and does not waive his right to counsel, the court may, in exceptional circumstances, and where the ends of justice so require, appoint an attorney to represent the accused. However, in making such appointments, the court shall state in writing its reasons for so doing. The written statement by the court shall be included in the permanent record of the case.
C. If the court determines that the accused is indigent as contemplated by law pursuant to the guidelines set forth in this section, the court shall provide the accused with a statement which shall contain the following:
"I have been advised this __________ day of __________, 20_____, by the (name of court) court of my right to representation by counsel in the trial of the charge pending against me; I certify that I am without means to employ counsel and I hereby request the court to appoint counsel for me."
______________________________ (signature of accused)
The court shall also require the accused to complete a written financial statement to support the claim of indigency and to permit the court to determine whether or not the accused is indigent within the contemplation of law. The accused shall execute the said statements under oath, and the said court shall appoint competent counsel to represent the accused in the proceeding against him, including an appeal, if any, until relieved or replaced by other counsel.
The executed statements by the accused and the order of appointment of counsel shall be filed with and become a part of the record of such proceeding.
All other instances in which the appointment of counsel is required for an indigent shall be made in accordance with the guidelines prescribed in this section.
D. Except in jurisdictions having a public defender, or unless (i) the public defender is unable to represent the defendant by reason of conflict of interest or (ii) the court finds that appointment of other counsel is necessary to attain the ends of justice, counsel appointed by the court for representation of the accused shall be selected by a fair system of rotation among members of the bar practicing before the court whose names are on the list maintained by the Indigent Defense Commission pursuant to §19.2-163.01. If no attorney who is on the list maintained by the Indigent Defense Commission is reasonably available, the court may appoint as counsel an attorney not on the list who has otherwise demonstrated to the court's satisfaction an appropriate level of training and experience. The court shall provide notice to the Commission of the appointment of the attorney.
§19.2-163. Compensation of court-appointed counsel.
Upon submission to the court, for which appointed representation is provided, of a detailed accounting of the time expended for that representation, made within 30 days of the completion of all proceedings in that court, counsel appointed to represent an indigent accused in a criminal case shall be compensated for his services on an hourly basis at a rate set by the Supreme Court of Virginia in a total amount not to exceed the amounts specified in the following schedule:
1. In a district court, a sum not to exceed $120, provided that, notwithstanding the foregoing limitation, the court in its discretion, and subject to guidelines issued by the Executive Secretary of the Supreme Court of Virginia, may waive the limitation of fees up to (i) an additional $120 when the effort expended, the time reasonably necessary for the particular representation, the novelty and difficulty of the issues, or other circumstances warrant such a waiver; or (ii) an amount up to $650 to defend, in the case of a juvenile, an offense that would be a felony if committed by an adult that may be punishable by confinement in the state correctional facility for a period of more than 20 years, or a charge of violation of probation for such offense, when the effort expended, the time reasonably necessary for the particular representation, the novelty and difficulty of the issues, or other circumstances warrant such a waiver; or (iii) such other amount as may be provided by law. Such amount shall be allowed in any case wherein counsel conducts the defense of a single charge against the indigent through to its conclusion or a charge of violation of probation at any hearing conducted under §19.2-306; thereafter, compensation for additional charges against the same accused also conducted by the same counsel shall be allowed on the basis of additional time expended as to such additional charges;
2. In a circuit court (i) to defend a Class
1 felony charge that may be punishable
by death an amount deemed reasonable by the court; (ii) to
defend a felony charge that may be punishable by confinement in the state
correctional facility for a period of more than 20 years, or a charge of
violation of probation for such offense, a sum not to exceed $1,235, provided
that, notwithstanding the foregoing limitation, the court in its discretion,
and subject to guidelines issued by the Executive Secretary of the Supreme
Court of Virginia, may waive the limitation of fees up to an additional $850
when the effort expended, the time reasonably necessary for the particular
representation, the novelty and difficulty of the issues, or other
circumstances warrant such a waiver; (iii) to defend any other felony charge,
or a charge of violation of probation for such offense, a sum not to exceed
$445, provided that, notwithstanding the foregoing limitation, the court in its
discretion, and subject to guidelines issued by the Executive Secretary of the
Supreme Court of Virginia, may waive the limitation of fees up to an additional
$155 when the effort expended, the time reasonably necessary for the particular
representation, the novelty and difficulty of the issues, or other
circumstances warrant such a waiver; and (iv) in the circuit court only, to
defend any misdemeanor charge punishable by confinement in jail or a charge of
violation of probation for such offense, a sum not to exceed $158. In the event
any case is required to be retried due to a mistrial for any cause or reversed
on appeal, the court may allow an additional fee for each case in an amount not
to exceed the amounts allowable in the initial trial. In the event counsel is
appointed to defend an indigent charged with a felony that may
be is
punishable by death as a
Class 1 felony, such counsel shall continue to receive
compensation as provided in this paragraph for defending such a felony,
regardless of whether the charge is reduced or amended to a
lesser felony that may not be
punishable by death, prior to final disposition of the case.
In the event counsel is appointed to defend an indigent charged with any other
felony, such counsel shall receive compensation as provided in this paragraph
for defending such a felony, regardless of whether the charge is reduced or
amended to a misdemeanor or lesser felony prior to final disposition of the
case in either the district court or circuit court.
Counsel appointed to represent an indigent accused in a criminal case, who are not public defenders, may request an additional waiver exceeding the amounts provided for in this section. The request for any additional amount shall be submitted to the presiding judge, in writing, with a detailed accounting of the time spent and the justification for the additional amount. The presiding judge shall determine, subject to guidelines issued by the Executive Secretary of the Supreme Court of Virginia, whether the request for an additional amount is justified in whole or in part, by considering the effort expended and the time reasonably necessary for the particular representation, and, if so, shall forward the request as approved to the chief judge of the circuit court or district court for approval.
If at any time the funds appropriated to pay for waivers under this section become insufficient, the Executive Secretary of the Supreme Court of Virginia shall so certify to the courts and no further waivers shall be approved.
The circuit or district court shall direct the payment of such
reasonable expenses incurred by such court-appointed counsel as it deems appropriate
under the circumstances of the case. Counsel appointed by the court to
represent an indigent charged with repeated violations of the same section of
the Code of Virginia, with each of such violations arising out of the same
incident, occurrence, or transaction, shall be compensated in an amount not to
exceed the fee prescribed for the defense of a single charge, if such offenses
are tried as part of the same judicial proceeding. The trial judge shall
consider any guidelines established by the Supreme Court but shall have the
sole discretion to fix the amount of compensation to be paid counsel appointed
by the court to defend a felony charge that may
be is
punishable by death as a
Class 1 felony.
The circuit or district court shall direct that the foregoing payments shall be paid out by the Commonwealth, if the defendant is charged with a violation of a statute, or by the county, city or town, if the defendant is charged with a violation of a county, city or town ordinance, to the attorney so appointed to defend such person as compensation for such defense.
Counsel representing a defendant charged with a Class 1 felony, or counsel representing an indigent prisoner
under sentence of death in a state habeas corpus proceeding,
may submit to the court, on a monthly basis, a statement of all costs incurred
and fees charged by him in the case during that month. Whenever the total
charges as are deemed reasonable by the court for which payment has not
previously been made or requested exceed $1,000, the court may direct that
payment be made as otherwise provided in this section.
When such directive is entered upon the order book of the court, the Commonwealth, county, city or town, as the case may be, shall provide for the payment out of its treasury of the sum of money so specified. If the defendant is convicted, the amount allowed by the court to the attorney appointed to defend him shall be taxed against the defendant as a part of the costs of prosecution and, if collected, the same shall be paid to the Commonwealth, or the county, city or town, as the case may be. In the event that counsel for the defendant requests a waiver of the limitations on compensation, the court shall assess against the defendant an amount equal to the pre-waiver compensation limit specified in this section for each charge for which the defendant was convicted. An abstract of such costs shall be docketed in the judgment docket and execution lien book maintained by such court.
Any statement submitted by an attorney for payments due him for indigent representation or for representation of a child pursuant to § 16.1-266 shall, after the submission of the statement, be forwarded forthwith by the clerk to the Commonwealth, county, city or town, as the case may be, responsible for payment.
For the purposes of this section, the defense of a case may be considered conducted through to its conclusion and an appointed counsel entitled to compensation for his services in the event an indigent accused fails to appear in court subject to a capias for his arrest or a show cause summons for his failure to appear and remains a fugitive from justice for one year following the issuance of the capias or the summons to show cause, and appointed counsel has appeared at a hearing on behalf of the accused.
Effective July 1, 2007, the Executive Secretary of the Supreme Court of Virginia shall track and report the number and category of offenses charged involving adult and juvenile offenders in cases in which court-appointed counsel is assigned. The Executive Secretary shall also track and report the amounts paid by waiver above the initial cap to court-appointed counsel. The Executive Secretary shall provide these reports to the Governor, members of the House Appropriations Committee, and members of the Senate Finance Committee on a quarterly basis.
§19.2-163.01. Virginia Indigent Defense Commission established; powers and duties.
A. The Virginia Indigent Defense Commission (hereinafter Indigent Defense Commission or Commission) is established. The Commission shall be supervisory and shall have sole responsibility for the powers, duties, operations, and responsibilities set forth in this section.
The Commission shall have the following powers and duties:
1. To publicize and enforce the qualification standards for attorneys seeking eligibility to serve as court-appointed counsel for indigent defendants pursuant to §19.2-159.
2. To develop initial training courses for attorneys who wish to begin serving as court-appointed counsel, and to review and certify legal education courses that satisfy the continuing requirements for attorneys to maintain their eligibility for receiving court appointments.
3. To maintain a list of attorneys admitted to practice law in Virginia who are qualified to serve as court-appointed counsel for indigent defendants based upon the official standards and to disseminate the list by July 1 of each year and updates throughout the year to the Office of the Executive Secretary of the Supreme Court for distribution to the courts. In establishing and updating the list, the Commission shall consider all relevant factors, including but not limited to, the attorney's background, experience, and training and the Commission's assessment of whether the attorney is competent to provide quality legal representation.
4. To establish official standards of practice for court-appointed counsel and public defenders to follow in representing their clients, and guidelines for the removal of an attorney from the official list of those qualified to receive court appointments and to notify the Office of the Executive Secretary of the Supreme Court of any attorney whose name has been removed from the list.
5. To develop initial training courses for public defenders and to review and certify legal education courses that satisfy the continuing requirements for public defenders to maintain their eligibility.
6. To periodically review and report to the Virginia State Crime Commission, the House and the Senate Committees for Courts of Justice, the House Committee on Appropriations, and the Senate Committee on Finance on the caseload handled by each public defender office.
7. To maintain all public defender and
regional capital defender offices established by the
General Assembly.
8. To hire and employ and, at its pleasure, remove an
executive director, counsel, and such other persons as it deems necessary, and
to authorize the executive director to appoint, after prior notice to the
Commission, a deputy director, and for each of the above offices a public
defender or capital defender, as the case may
be, who shall devote his full time to his duties and not
engage in the private practice of law.
9. To authorize the public defender or
capital defender to employ such assistants as authorized by
the Commission.
10. To authorize the public defender or
capital defender to employ such staff, including
secretarial and investigative personnel, as may be necessary to carry out the
duties imposed upon the public defender office.
11. To authorize the executive director of the Commission, in
consultation with the public defender or capital defender
to secure such office space as needed, to purchase or rent office equipment, to
purchase supplies and to incur such expenses as are necessary to carry out the
duties imposed upon him.
12. To approve requests for appropriations and receive and expend moneys appropriated by the General Assembly of Virginia, to receive other moneys as they become available to it and expend the same in order to carry out the duties imposed upon it.
13. To require and ensure that each public defender office collects and maintains caseload data and fields in a case management database on an annual basis.
14. To report annually on or before October 1 to the Virginia State Crime Commission, the House and Senate Committees for Courts of Justice, the House Committee on Appropriations, and the Senate Committee on Finance on the state of indigent criminal defense in the Commonwealth, including Virginia's ranking amongst the 50 states in terms of pay allowed for court-appointed counsel appointed pursuant to §19.2-159 or subdivision C 2 of §16.1-266.
B. The Commission shall adopt rules and procedures for the conduct of its business. The Commission may delegate to the executive director or, in the absence of the executive director, the deputy executive director, such powers and duties conferred upon the Commission as it deems appropriate, including powers and duties involving the exercise of discretion. The Commission shall ensure that the executive director complies with all Commission and statutory directives. Such rules and procedures may include the establishment of committees and the delegation of authority to the committees. The Commission shall review and confirm by a vote of the Commission its rules and procedures and any delegation of authority to the executive director at least every three years.
C. The executive director shall, with the approval of the Commission, fix the compensation of each public defender and all other personnel in each public defender office. The executive director shall also exercise and perform such other powers and duties as may be lawfully delegated to him and such powers and duties as may be conferred or imposed upon him by law.
§19.2-163.4:1. Repayment of representation costs by convicted persons.
In any case in which an attorney from a public defender or capital defender office
represents an indigent person charged with an offense and such person is
convicted, the sum that would have been allowed a court-appointed attorney as
compensation and as reasonable expenses shall be taxed against the person
defended as a part of the costs of the prosecution, and, if collected, shall be
paid to the Commonwealth or, if payment was made to the Commonwealth by a
locality for defense of a local ordinance violation, to the appropriate county,
city or town. An abstract of such costs shall be docketed in the judgment lien
docket and execution book of the court.
§19.2-169.3. Disposition of the unrestorably incompetent defendant; aggravated murder charge; sexually violent offense charge.
A. If, at any time after the defendant is ordered to undergo treatment pursuant to subsection A of §19.2-169.2, the director of the community services board or behavioral health authority or his designee or the director of the treating inpatient facility or his designee concludes that the defendant is likely to remain incompetent for the foreseeable future, he shall send a report to the court so stating. The report shall also indicate whether, in the board, authority, or inpatient facility director's or his designee's opinion, the defendant should be released, committed pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, committed pursuant to Chapter 9 (§37.2-900 et seq.) of Title 37.2, or certified pursuant to §37.2-806 in the event he is found to be unrestorably incompetent. Upon receipt of the report, the court shall make a competency determination according to the procedures specified in subsection E of §19.2-169.1. If the court finds that the defendant is incompetent and is likely to remain so for the foreseeable future, it shall order that he be (i) released, (ii) committed pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, or (iii) certified pursuant to § 37.2-806. However, if the court finds that the defendant is incompetent and is likely to remain so for the foreseeable future and the defendant has been charged with a sexually violent offense, as defined in §37.2-900, he shall be screened pursuant to the procedures set forth in §§37.2-903 and 37.2-904. If the court finds the defendant incompetent but restorable to competency in the foreseeable future, it may order treatment continued until six months have elapsed from the date of the defendant's initial admission under subsection A of §19.2-169.2.
B. At the end of six months from the date of the defendant's initial admission under subsection A of §19.2-169.2 if the defendant remains incompetent in the opinion of the board, authority, or inpatient facility director or his designee, the director or his designee shall so notify the court and make recommendations concerning disposition of the defendant as described in subsection A. The court shall hold a hearing according to the procedures specified in subsection E of §19.2-169.1 and, if it finds the defendant unrestorably incompetent, shall order one of the dispositions described in subsection A. If the court finds the defendant incompetent but restorable to competency, it may order continued treatment under subsection A of §19.2-169.2 for additional six-month periods, provided a hearing pursuant to subsection E of §19.2-169.1 is held at the completion of each such period and the defendant continues to be incompetent but restorable to competency in the foreseeable future.
C. If any defendant has been charged with a misdemeanor in violation of Article 3 (§18.2-95 et seq.) of Chapter 5 of Title 18.2 or Article 5 (§18.2-119 et seq.) of Chapter 5 of Title 18.2, other than a misdemeanor charge pursuant to §18.2-130 or Article 2 (§18.2-415 et seq.) of Chapter 9 of Title 18.2, and is being treated pursuant to subsection A of § 19.2-169.2, and after 45 days has not been restored to competency, the director of the community service board, behavioral health authority, or the director of the treating inpatient facility, or any of their designees, shall send a report indicating the defendant's status to the court. The report shall also indicate whether the defendant should be released or committed pursuant to §37.2-817 or certified pursuant to §37.2-806. Upon receipt of the report, if the court determines that the defendant is still incompetent, the court shall order that the defendant be released, committed, or certified, and may dismiss the charges against the defendant.
D. Unless an incompetent defendant is charged with capital
aggravated murder or the charges against an incompetent
criminal defendant have been previously dismissed, charges against an
unrestorably incompetent defendant shall be dismissed on the date upon which
his sentence would have expired had he been convicted and received the maximum
sentence for the crime charged, or on the date five years from the date of his
arrest for such charges, whichever is sooner.
E. If the court orders an unrestorably incompetent defendant to be screened pursuant to the procedures set forth in §§37.2-903 and 37.2-904, it shall order the attorney for the Commonwealth in the jurisdiction wherein the defendant was charged and the Commissioner of Behavioral Health and Developmental Services to provide the Director of the Department of Corrections with any information relevant to the review, including, but not limited to: (i) a copy of the warrant or indictment, (ii) a copy of the defendant's criminal record, (iii) information about the alleged crime, (iv) a copy of the competency report completed pursuant to §19.2-169.1, and (v) a copy of the report prepared by the director of the defendant's community services board, behavioral health authority, or treating inpatient facility or his designee pursuant to this section. The court shall further order that the defendant be held in the custody of the Department of Behavioral Health and Developmental Services for secure confinement and treatment until the Commitment Review Committee's and Attorney General's review and any subsequent hearing or trial are completed. If the court receives notice that the Attorney General has declined to file a petition for the commitment of an unrestorably incompetent defendant as a sexually violent predator after conducting a review pursuant to §37.2-905, the court shall order that the defendant be released, committed pursuant to Article 5 (§37.2-814 et seq.) of Chapter 8 of Title 37.2, or certified pursuant to § 37.2-806.
F. In any case when an incompetent defendant is charged with capital
aggravated murder and has been determined to be
unrestorably incompetent, notwithstanding any other provision of this section,
the charge shall not be dismissed and the court having jurisdiction over the capital
aggravated murder case may order that the defendant receive
continued treatment under subsection A of §19.2-169.2 in a secure facility
determined by the Commissioner of the Department of Behavioral Health and
Developmental Services where the defendant shall remain until further order of
the court, provided that (i) a hearing pursuant to subsection E of §19.2-169.1
is held at yearly intervals for five years and at biennial intervals
thereafter, or at any time that the director of the treating facility or his
designee submits a competency report to the court in accordance with subsection
D of §19.2-169.1 that the defendant's competency has been restored, (ii) the
defendant remains incompetent, (iii) the court finds continued treatment to be
medically appropriate, and (iv) the defendant presents a danger to himself or
others. No unrestorably incompetent defendant charged with
capital aggravated
murder shall be released except pursuant to a court order.
G. The attorney for the Commonwealth may bring charges that have been dismissed against the defendant when he is restored to competency.
§19.2-175. Compensation of experts.
Each psychiatrist, clinical psychologist or other expert
appointed by the court to render professional service pursuant to §19.2-168.1,
19.2-169.1, 19.2-169.5, 19.2-182.8, 19.2-182.9,
19.2-264.3:1, 19.2-264.3:3 or 19.2-301, who is not
regularly employed by the Commonwealth of Virginia except by the University of
Virginia School of Medicine and the Medical College of Virginia Commonwealth University School of
Medicine, shall receive a reasonable fee for such service.
For any psychiatrist, clinical psychologist, or other expert appointed by the
court to render such professional services who is regularly employed by the
Commonwealth of Virginia, except by the University of Virginia School of
Medicine or the Medical College of Virginia Commonwealth University School of
Medicine, the fee shall be paid only for professional
services provided during nonstate hours that have been approved by his
employing agency as being beyond the scope of his state employment duties. The
fee shall be determined in each instance by the court that appointed the
expert, in accordance with guidelines established by the Supreme Court after
consultation with the Department of Behavioral Health and Developmental
Services. Except in capital aggravated murder cases pursuant to §18.2-31,
the fee shall not exceed $750, but in addition if any such expert is required
to appear as a witness in any hearing held pursuant to such sections, he shall
receive mileage and a fee of $100 for each day during which he is required so
to serve. An itemized account of expense, duly sworn to, must be presented to
the court, and when allowed shall be certified to the Supreme Court for payment
out of the state treasury, and be charged against the appropriations made to
pay criminal charges. Allowance for the fee and for the per diem authorized
shall also be made by order of the court, duly certified to the Supreme Court
for payment out of the appropriation to pay criminal charges.
§19.2-217.1. Central file of aggravated murder indictments.
Upon the return by a grand jury of an indictment for capital
aggravated murder and the arrest of the defendant, the clerk
of the circuit court in which such indictment is returned shall forthwith file
a certified copy of the indictment with the clerk of the Supreme Court of
Virginia. All such indictments shall be maintained in a single place by the
clerk of the Supreme Court, and shall be available to members of the public
upon request. Failure to comply with the provisions of this section shall not
be (i) a basis upon which an indictment may be quashed or deemed invalid; (ii)
deemed error upon which a conviction may be reversed or a sentence vacated; or
(iii) a basis upon which a court may prevent or delay execution of a sentence.
§19.2-247. Venue in certain homicide cases.
Where evidence exists that a homicide has been committed
either within or without the Commonwealth, under circumstances that make it
unknown where such crime was committed, the homicide and any related offenses
shall be amenable to prosecution in the courts of the county or city where the
body or any part thereof of the victim may be found or, if the victim was
removed from the Commonwealth for medical treatment prior to death and died
outside the Commonwealth, in the courts of the county or city from which the
victim was removed for medical treatment prior to death, as if the offense has
been committed in such county or city. In a prosecution for
capital murder pursuant to subdivision A 8 of §18.2-31,
the offense may be prosecuted in any jurisdiction in the Commonwealth in which
any one of the killings may be prosecuted.
§19.2-270.4:1. Storage, preservation and retention of human biological evidence in felony cases.
A. Notwithstanding any provision of law or rule of court, upon
motion of a person convicted of a felony but not sentenced to
death or his attorney of record to the circuit court that
entered the judgment for the offense, the court shall order the storage,
preservation, and retention of specifically identified human biological
evidence or representative samples collected or obtained in the case for a
period of up to 15 years from the time of conviction, unless the court
determines, in its discretion, that the evidence should be retained for a
longer period of time. Upon the filing of such a motion, the defendant may
request a hearing for the limited purpose of identifying the human biological
evidence or representative samples that are to be stored in accordance with the
provisions of this section. Upon the granting of the motion, the court shall
order the clerk of the circuit court to transfer all such evidence to the
Department of Forensic Science. The Department of Forensic Science shall store,
preserve, and retain such evidence. If the evidence is not within the custody
of the clerk at the time the order is entered, the court shall order the
governmental entity having custody of the evidence to transfer such evidence to
the Department of Forensic Science. Upon the entry of an order under this
subsection, the court may upon motion or upon good cause shown, with notice to
the convicted person, his attorney of record and the attorney for the Commonwealth,
modify the original storage order, as it relates to time of storage of the
evidence or samples, for a period of time greater than or less than that
specified in the original order.
B. In the case of a person
sentenced to death, the court that entered the judgment shall, in all cases,
order any human biological evidence or representative samples to be transferred
by the governmental entity having custody to the Department of
Forensic Science. The Department of Forensic Science shall store, preserve, and
retain such evidence until the judgment is executed. If the person sentenced to
death has his sentence reduced, then such evidence shall be transferred from
the Department to the original investigating law-enforcement agency for storage
as provided in this section.
C.
Pursuant to standards and guidelines established by the Department of Forensic
Science, the order shall state the method of custody, transfer and return of
any evidence to insure and protect the Commonwealth's interest in the integrity
of the evidence. Pursuant to standards and guidelines established by the
Department of Forensic Science, the Department of Forensic Science, local
law-enforcement agency or other custodian of the evidence shall take all
necessary steps to preserve, store, and retain the evidence and its chain of
custody for the period of time specified.
D. C. In any proceeding under this
section, the court, upon a finding that the physical evidence is of such a
nature, size or quantity that storage, preservation or retention of all of the
evidence is impractical, may order the storage of only representative samples
of the evidence. The Department of Forensic Science shall take representative
samples, cuttings or swabbings and retain them. The remaining evidence shall be
handled according to §19.2-270.4 or as otherwise provided for in the Code.
E. D. An action under this section
or the performance of any attorney representing the petitioner under this
section shall not form the basis for relief in any habeas corpus or appellate
proceeding. Nothing in this section shall create any cause of action for
damages against the Commonwealth, or any of its political subdivisions or
officers, employees or agents of the Commonwealth or its political
subdivisions.
§19.2-295.3. Admission of victim impact testimony.
Whether by trial or upon a plea of guilty, upon a finding that
the defendant is guilty of a felony, the court shall permit the victim, as
defined in §19.2-11.01, upon motion of the attorney for the Commonwealth, to
testify in the presence of the accused regarding the impact of the offense upon
the victim. The court shall limit the victim's testimony to the factors set
forth in clauses (i) through (vi) of subsection A of §19.2-299.1. In the case
of trial by jury, the court shall permit the victim to testify at the
sentencing hearing conducted pursuant to §19.2-295.1 or in the case of trial
by the court or a guilty plea, the court shall permit the victim to testify
before the court prior to the imposition of a sentence.
Victim impact testimony in all capital murder cases shall be admitted in
accordance with §19.2-264.4.
§19.2-299. Investigations and reports by probation officers in certain cases.
A. When a person is tried in a circuit court (i) upon a charge of assault and battery in violation of §18.2-57 or 18.2-57.2, stalking in violation of §18.2-60.3, sexual battery in violation of §18.2-67.4, attempted sexual battery in violation of §18.2-67.5, or driving while intoxicated in violation of §18.2-266, and is adjudged guilty of such charge, unless waived by the court and the defendant and the attorney for the Commonwealth, the court may, or on motion of the defendant shall; or (ii) upon a felony charge not set forth in subdivision (iii) below, the court may when there is a plea agreement between the defendant and the Commonwealth and shall, unless waived by the defendant and the attorney for the Commonwealth, when the defendant pleads guilty or nolo contendere without a plea agreement or is found guilty by the court after a plea of not guilty or nolo contendere; or (iii) the court shall when a person is charged and adjudged guilty of a felony violation, or conspiracy to commit or attempt to commit a felony violation, of §18.2-46.2, 18.2-46.3, 18.2-48, clause (2) or (3) of §18.2-49, §18.2-61, 18.2-63, 18.2-64.1, 18.2-64.2, 18.2-67.1, 18.2-67.2, 18.2-67.3, 18.2-67.4:1, 18.2-67.5, 18.2-67.5:1, 18.2-355, 18.2-356, 18.2-357, 18.2-361, 18.2-362, 18.2-366, 18.2-368, 18.2-370, 18.2-370.1, or 18.2-370.2, or any attempt to commit or conspiracy to commit any felony violation of §18.2-67.5, 18.2-67.5:2, or 18.2-67.5:3, direct a probation officer of such court to thoroughly investigate and report upon the history of the accused, including a report of the accused's criminal record as an adult and available juvenile court records, any information regarding the accused's participation or membership in a criminal street gang as defined in §18.2-46.1, and all other relevant facts, to fully advise the court so the court may determine the appropriate sentence to be imposed. Unless the defendant or the attorney for the Commonwealth objects, the court may order that the report contain no more than the defendant's criminal history, any history of substance abuse, any physical or health-related problems as may be pertinent, and any applicable sentencing guideline worksheets. This expedited report shall be subject to all the same procedures as all other sentencing reports and sentencing guidelines worksheets. The probation officer, after having furnished a copy of this report at least five days prior to sentencing to counsel for the accused and the attorney for the Commonwealth for their permanent use, shall submit his report in advance of the sentencing hearing to the judge in chambers, who shall keep such report confidential. Counsel for the accused may provide the accused with a copy of the presentence report. The probation officer shall be available to testify from this report in open court in the presence of the accused, who shall have been provided with a copy of the presentence report by his counsel or advised of its contents and be given the right to cross-examine the investigating officer as to any matter contained therein and to present any additional facts bearing upon the matter. The report of the investigating officer shall at all times be kept confidential by each recipient, and shall be filed as a part of the record in the case. Any report so filed shall be made available only by court order and shall be sealed upon final order by the court, except that such reports or copies thereof shall be available at any time to any criminal justice agency, as defined in §9.1-101, of this or any other state or of the United States; to any agency where the accused is referred for treatment by the court or by probation and parole services; and to counsel for any person who has been indicted jointly for the same felony as the person subject to the report. Subject to the limitations set forth in §37.2-901, any report prepared pursuant to the provisions hereof shall without court order be made available to counsel for the person who is the subject of the report if that person (a) is charged with a felony subsequent to the time of the preparation of the report or (b) has been convicted of the crime or crimes for which the report was prepared and is pursuing a post-conviction remedy. Such report shall be made available for review without a court order to incarcerated persons who are eligible for release by the Virginia Parole Board, or such person's counsel, pursuant to regulations promulgated by the Virginia Parole Board for that purpose. The presentence report shall be in a form prescribed by the Department of Corrections. In all cases where such report is not ordered, a simplified report shall be prepared on a form prescribed by the Department of Corrections. For the purposes of this subsection, information regarding the accused's participation or membership in a criminal street gang may include the characteristics, specific rivalries, common practices, social customs and behavior, terminology, and types of crimes that are likely to be committed by that criminal street gang.
B. As a part of any presentence investigation conducted pursuant to subsection A when the offense for which the defendant was convicted was a felony, the court probation officer shall advise any victim of such offense in writing that he may submit to the Virginia Parole Board a written request (i) to be given the opportunity to submit to the Board a written statement in advance of any parole hearing describing the impact of the offense upon him and his opinion regarding the defendant's release and (ii) to receive copies of such other notifications pertaining to the defendant as the Board may provide pursuant to subsection B of §53.1-155.
C. As part of any presentence investigation conducted pursuant to subsection A when the offense for which the defendant was convicted was a felony drug offense set forth in Article 1 (§18.2-247 et seq.) of Chapter 7 of Title 18.2, the presentence report shall include any known association of the defendant with illicit drug operations or markets.
D. As a part of any presentence investigation conducted
pursuant to subsection A, when the offense for which the defendant was
convicted was a felony, not a capital offense Class 1 felony, committed on
or after January 1, 2000, the defendant shall be required to undergo a
substance abuse screening pursuant to §18.2-251.01.
§19.2-299.1. When Victim Impact Statement required; contents; uses.
The presentence report prepared pursuant to §19.2-299 shall,
with the consent of the victim, as defined in §19.2-11.01, in all cases involving offenses other than capital murder,
include a Victim Impact Statement. Victim Impact
Statements in all cases involving capital murder shall be prepared and
submitted in accordance with the provisions of §19.2-264.5.
A Victim Impact Statement shall be kept confidential and shall be sealed upon entry of the sentencing order. If prepared by someone other than the victim, it shall (i) identify the victim, (ii) itemize any economic loss suffered by the victim as a result of the offense, (iii) identify the nature and extent of any physical or psychological injury suffered by the victim as a result of the offense, (iv) detail any change in the victim's personal welfare, lifestyle or familial relationships as a result of the offense, (v) identify any request for psychological or medical services initiated by the victim or the victim's family as a result of the offense, and (vi) provide such other information as the court may require related to the impact of the offense upon the victim.
If the court does not order a presentence investigation and report, the attorney for the Commonwealth shall, at the request of the victim, submit a Victim Impact Statement. In any event, a victim shall be advised by the local crime victim and witness assistance program that he may submit in his own words a written Victim Impact Statement prepared by the victim or someone the victim designates in writing.
The Victim Impact Statement may be considered by the court in
determining the appropriate sentence. A copy of the statement prepared pursuant
to this section shall be made available to the defendant or counsel for the
defendant without court order at least five days prior to the sentencing
hearing. The statement shall not be admissible in any civil proceeding for
damages arising out of the acts upon which the conviction was based. The
statement, however, may be utilized by the Virginia Workers' Compensation Commission
in its determinations on claims by victims of crimes pursuant to Chapter 21.1
(§19.2-368.1 et seq.) of this title.
§19.2-311. Indeterminate commitment to Department of Corrections in certain cases; duration and character of commitment; concurrence by Department.
A. The judge, after a finding of guilt, when fixing punishment
in those cases specifically enumerated in subsection B of
this section, may, in his discretion, in lieu of imposing
any other penalty provided by law and, with consent of the person convicted,
commit such person for a period of four years, which commitment shall be
indeterminate in character. In addition, the court shall impose a period of
confinement which shall be suspended. Subject to the provisions of subsection C hereof, such persons shall be
committed to the Department of Corrections for confinement in a state facility
for youthful offenders established pursuant to §53.1-63. Such confinement
shall be followed by at least one and one-half years of supervisory parole,
conditioned on good behavior. The sentence of indeterminate commitment and
eligibility for continuous evaluation and parole under §19.2-313 shall remain
in effect but eligibility for use of programs and facilities established
pursuant to §53.1-63 shall lapse if such person (i) exhibits intractable
behavior as defined in §53.1-66 or (ii) is convicted of a second criminal
offense which is a felony. A sentence imposed for any second criminal offense
shall run consecutively with the indeterminate sentence.
B. The provisions of subsection A of
this section shall be applicable to first convictions in
which the person convicted:
1. Committed the offense of which convicted before becoming twenty-one 21
years of age;
2. Was convicted of a felony offense other than any of the
following: capital
aggravated murder, murder in the first degree or murder in
the second degree or a violation of §§18.2-61, 18.2-67.1, or
18.2-67.2 or subdivision A 1 of §18.2-67.3; and
3. Is considered by the judge to be capable of returning to society as a productive citizen following a reasonable amount of rehabilitation.
C. Subsequent to a finding of guilt and prior to fixing punishment, the Department of Corrections shall, concurrently with the evaluation required by §19.2-316, review all aspects of the case to determine whether (i) such defendant is physically and emotionally suitable for the program, (ii) such indeterminate sentence of commitment is in the best interest of the Commonwealth and of the person convicted, and (iii) facilities are available for the confinement of such person. After the review such person shall be again brought before the court, which shall review the findings of the Department. The court may impose a sentence as authorized in subsection A, or any other penalty provided by law.
D. Upon the defendant's failure to complete the program established pursuant to §53.1-63 or to comply with the terms and conditions through no fault of his own, the defendant shall be brought before the court for hearing. Notwithstanding the provisions for pronouncement of sentence as set forth in §19.2-306, the court, after hearing, may pronounce whatever sentence was originally imposed, pronounce a reduced sentence, or impose such other terms and conditions of probation as it deems appropriate.
§19.2-319. When execution of sentence to be suspended; bail; appeal from denial.
If a person sentenced by a circuit court to death or confinement in the
state correctional facility indicates an intention to apply for a writ of
error, the circuit court shall postpone the execution of such sentence for such
time as it may deem proper.
In any other criminal case wherein judgment is given by any court to which a writ of error lies, and in any case of judgment for any civil or criminal contempt, from which an appeal may be taken or to which a writ of error lies, the court giving such judgment may postpone the execution thereof for such time and on such terms as it deems proper.
In any case after conviction if the sentence, or the execution thereof, is suspended in accordance with this section, or for any other cause, the court, or the judge thereof, may, and in any case of a misdemeanor shall, set bail in such penalty and for appearance at such time as the nature of the case may require; provided that, if the conviction was for a violent felony as defined in §19.2-297.1 and the defendant was sentenced to serve a period of incarceration not subject to suspension, then the court shall presume, subject to rebuttal, that no condition or combination of conditions of bail will reasonably assure the appearance of the convicted person or the safety of the public.
In any case in which the court denies bail, the reason for
such denial shall be stated on the record of the case. A writ of error from the
Court of Appeals shall lie to any such judgment refusing bail or requiring
excessive bail, except that in any
case where a person has been sentenced to death, a writ of error shall lie from
the Supreme Court. Upon review by the Court of Appeals or the Supreme Court, if the decision
by the trial court to deny bail is overruled, the
appellate court Court of Appeals
shall either set bail or remand the matter to circuit court for such further
action regarding bail as the appellate court Court of Appeals directs.
§19.2-321.2. Motion in the Supreme Court for delayed appeal in criminal cases.
A. Filing and content of motion. When, due to the error, neglect, or fault of counsel representing the appellant, or of the court reporter, or of the Court of Appeals or the circuit court or an officer or employee of either, an appeal from the Court of Appeals to the Supreme Court in a criminal case has (i) never been initiated; (ii) been dismissed for failure to adhere to proper form, procedures, or time limits in the perfection of the appeal; (iii) been dismissed in part because at least one assignment of error contained in the petition for appeal did not adhere to proper form or procedures; or (iv) been denied or the conviction has been affirmed, for failure to file or timely file the indispensable transcript or written statement of facts as required by law or by the Rules of Supreme Court; then a motion for leave to pursue a delayed appeal may be filed in the Supreme Court within six months after the appeal has been dismissed or denied, the conviction has been affirmed, or the Court of Appeals judgment sought to be appealed has become final, whichever is later. Such motion shall identify by the style, date, and Court of Appeals record number of the judgment sought to be appealed, and, if one was assigned in a prior attempt to appeal the judgment to the Supreme Court, shall give the record number assigned in the Supreme Court in that proceeding, and shall set forth the specific facts establishing the said error, neglect, or fault. If the error, neglect, or fault is alleged to be that of an attorney representing the appellant, the motion shall be accompanied by the affidavit of the attorney whose error, neglect, or fault is alleged, verifying the specific facts alleged in the motion, and certifying that the appellant is not personally responsible, in whole or in part, for the error, neglect, or fault causing loss of the original opportunity for appeal.
B. Service, response, and disposition. Such motion shall be served on the attorney for the Commonwealth or, if a petition for appeal was granted in the Court of Appeals or in the Supreme Court in the original attempt to appeal, upon the Attorney General, in accordance with Rule 5:4 of the Supreme Court. If the Commonwealth disputes the facts alleged in the motion, or contends that those facts do not entitle the appellant to a delayed appeal under this section, the motion shall be denied without prejudice to the appellant's right to seek a delayed appeal by means of petition for a writ of habeas corpus. Otherwise, the Supreme Court shall, if the motion meets the requirements of this section, grant appellant leave to initiate or re-initiate pursuit of the appeal from the Court of Appeals to the Supreme Court.
C. Time limits when motion granted. If the motion is granted, all computations of time under the Rules of Supreme Court shall run from the date of the order of the Supreme Court granting the motion, or if the appellant has been determined to be indigent, from the date of the order by the circuit court appointing counsel to represent the appellant in the delayed appeal, whichever is later.
D. Applicability. The provisions of this section shall not
apply to cases in which the appellant is responsible, in whole or in part, for
the error, neglect, or fault causing loss of the original opportunity for
appeal, nor shall it apply in cases where the claim of error, neglect, or fault
has already been alleged and rejected in a prior judicial proceeding, nor shall it apply in cases in which a sentence
of death has been imposed.
§19.2-327.1. Motion by a convicted felon or person adjudicated delinquent for scientific analysis of newly discovered or previously untested scientific evidence; procedure.
A. Notwithstanding any other provision of law or rule of
court, any person convicted of a felony or any person who was adjudicated
delinquent by a circuit court of an offense that would be a felony if committed
by an adult may, by motion to the circuit court that entered the original
conviction or the adjudication of delinquency, apply for a new scientific
investigation of any human biological evidence related to the case that
resulted in the felony conviction or adjudication of delinquency if: (i) the evidence was not
known or available at the time the conviction or adjudication of delinquency
became final in the circuit court or the evidence was not previously subjected
to testing because the testing procedure was not available at the Department of
Forensic Science at the time the conviction or adjudication of delinquency became
final in the circuit court; (ii) the evidence is subject to a chain of custody
sufficient to establish that the evidence has not been altered, tampered with,
or substituted in any way; (iii) the testing is materially relevant,
noncumulative, and necessary and may prove the actual innocence of the
convicted person or the person adjudicated delinquent; (iv) the testing
requested involves a scientific method employed by the Department of Forensic
Science; and (v) the person convicted or adjudicated delinquent has not
unreasonably delayed the filing of the petition after the evidence or the test
for the evidence became available at the Department of Forensic Science.
B. The petitioner shall assert categorically and with specificity, under oath, the facts to support the items enumerated in subsection A and (i) the crime for which the person was convicted or adjudicated delinquent, (ii) the reason or reasons the evidence was not known or tested by the time the conviction or adjudication of delinquency became final in the circuit court, and (iii) the reason or reasons that the newly discovered or untested evidence may prove the actual innocence of the person convicted or adjudicated delinquent. Such motion shall contain all relevant allegations and facts that are known to the petitioner at the time of filing and shall enumerate and include all previous records, applications, petitions, and appeals and their dispositions.
C. The petitioner shall serve a copy of such motion upon the
attorney for the Commonwealth. The Commonwealth shall file its response to the
motion within 30 days of the receipt of service. The court shall, no sooner
than 30 and no later than 90 days after such motion is filed, hear the motion. Motions made by a petitioner under a sentence of
death shall be given priority on the docket.
D. The court shall, after a hearing on the motion, set forth its findings specifically as to each of the items enumerated in subsections A and B and either (i) dismiss the motion for failure to comply with the requirements of this section or (ii) dismiss the motion for failure to state a claim upon which relief can be granted or (iii) order that the testing be done by the Department of Forensic Science based on a finding of clear and convincing evidence that the requirements of subsection A have been met.
E. The court shall order the tests to be performed by the
Department of Forensic Science and prescribe in its order, pursuant to
standards and guidelines established by the Department, the method of custody, transfer,
and return of evidence submitted for scientific investigation sufficient to
insure and protect the Commonwealth's interest in the integrity of the
evidence. The results of any such testing shall be furnished simultaneously to
the court, the petitioner and his attorney of record and the attorney for the
Commonwealth. The Department of
Forensic Science shall give testing priority to cases in which a sentence of
death has been imposed. The results of any tests performed
and any hearings held pursuant to this section shall become a part of the
record.
F. Nothing in this section
shall constitute grounds to delay setting an execution date pursuant to §
53.1-232.1 or to grant a stay of execution that has been set pursuant to clause
(iii) or (iv) of §53.1-232.1.
G.
An action under this section or the performance of any attorney representing
the petitioner under this section shall not form the basis for relief in any
habeas corpus proceeding or any other appeal. Nothing in this section shall
create any cause of action for damages against the Commonwealth or any of its
political subdivisions or any officers, employees or agents of the Commonwealth
or its political subdivisions.
H. G. In any petition filed
pursuant to this chapter, the petitioner is entitled to representation by
counsel subject to the provisions of Article 3 (§19.2-157 et seq.) of Chapter
10.
§19.2-327.2. Issuance of writ of actual innocence based on biological evidence.
Notwithstanding any other provision of law or rule of court,
upon a petition of a person who was convicted of a felony upon a plea of not
guilty or who was adjudicated delinquent upon a plea of not guilty by a circuit
court of an offense that would be a felony if committed by an adult, or for any
person, regardless of the plea, sentenced to death, or
convicted or adjudicated delinquent of (i) a Class 1 felony, (ii) a Class 2
felony, or (iii) any felony for which the maximum penalty is imprisonment for
life, the Supreme Court shall have the authority to issue writs of actual innocence
under this chapter. The writ shall lie to the circuit court that entered the
felony conviction or adjudication of delinquency and that court shall have the
authority to conduct hearings, as provided for in §19.2-327.5, on such a
petition as directed by order from the Supreme Court.
§19.2-327.3. Contents and form of the petition based on previously unknown or untested human biological evidence of actual innocence.
A. The petitioner shall allege categorically and with
specificity, under oath, the following: (i) the crime for which the petitioner
was convicted or the offense for which the petitioner was adjudicated
delinquent, and that such conviction or adjudication of delinquency was upon a
plea of not guilty or that the person is under a sentence of
death or was
convicted of (a) a Class 1 felony, (b) a Class 2 felony, or (c) any felony for
which the maximum penalty is imprisonment for life; (ii) that the petitioner is
actually innocent of the crime for which he was convicted or adjudicated
delinquent; (iii) an exact description of the human biological evidence and the
scientific testing supporting the allegation of innocence; (iv) that the
evidence was not previously known or available to the petitioner or his trial
attorney of record at the time the conviction or adjudication of delinquency
became final in the circuit court, or if known, the reason that the evidence
was not subject to the scientific testing set forth in the petition; (v) the
date the test results under §19.2-327.1 became known to the petitioner or any
attorney of record; (vi) that the petitioner or his attorney of record has
filed the petition within 60 days of obtaining the test results under §
19.2-327.1; (vii) the reason or reasons the evidence will prove that no
rational trier of fact would have found proof of guilt or delinquency beyond a
reasonable doubt; and (viii) for any conviction or adjudication of delinquency
that became final in the circuit court after June 30, 1996, that the evidence
was not available for testing under §9.1-1104. The
Supreme Court may issue a stay of execution pending proceedings under the
petition. Nothing in this chapter shall constitute grounds to delay setting an
execution date pursuant to §53.1-232.1 or to grant a stay of execution that
has been set pursuant to clause (iii) or (iv) of §53.1-232.1.
B. Such petition shall contain all relevant allegations of facts that are known to the petitioner at the time of filing and shall enumerate and include all previous records, applications, petitions, and appeals and their dispositions. A copy of any test results shall be filed with the petition. The petition shall be filed on a form provided by the Supreme Court. If the petitioner fails to submit a completed form, the Court may dismiss the petition or return the petition to the prisoner pending the completion of such form. The petitioner shall be responsible for all statements contained in the petition. Any false statement in the petition, if such statement is knowingly or willfully made, shall be a ground for prosecution and conviction of perjury as provided for in §18.2-434.
C. The Supreme Court shall not accept the petition unless it is accompanied by a duly executed return of service in the form of a verification that a copy of the petition and all attachments has been served on the attorney for the Commonwealth of the jurisdiction where the conviction or adjudication of delinquency occurred and the Attorney General or an acceptance of service signed by these officials, or any combination thereof. The Attorney General shall have 30 days after receipt of the record by the clerk of the Supreme Court in which to file a response to the petition. The response may contain a proffer of any evidence pertaining to the guilt or delinquency or innocence of the petitioner that is not included in the record of the case, including evidence that was suppressed at trial.
D. The Supreme Court may, when the case has been before a trial or appellate court, inspect the record of any trial or appellate court action, and the Court may, in any case, award a writ of certiorari to the clerk of the respective court below, and have brought before the Court the whole record or any part of any record.
E. In any petition filed pursuant to this chapter, the petitioner is entitled to representation by counsel subject to the provisions of Article 3 (§19.2-157 et seq.) of Chapter 10.
§19.2-327.11. Contents and form of the petition based on previously unknown or unavailable evidence of actual innocence.
A. The petitioner shall allege categorically and with
specificity, under oath, all of the following: (i) the crime for which the
petitioner was convicted or the offense for which the petitioner was
adjudicated delinquent, and that such conviction or adjudication of delinquency
was upon a plea of not guilty; (ii) that the petitioner is actually innocent of
the crime for which he was convicted or the offense for which he was
adjudicated delinquent; (iii) an exact description of the previously unknown or
unavailable evidence supporting the allegation of innocence; (iv) that such
evidence was previously unknown or unavailable to the petitioner or his trial
attorney of record at the time the conviction or adjudication of delinquency
became final in the circuit court; (v) the date the previously unknown or
unavailable evidence became known or available to the petitioner, and the
circumstances under which it was discovered; (vi) that the previously unknown
or unavailable evidence is such as could not, by the exercise of diligence,
have been discovered or obtained before the expiration of 21 days following
entry of the final order of conviction or adjudication of delinquency by the
circuit court; (vii) the previously unknown or unavailable evidence is material
and, when considered with all of the other evidence in the current record, will
prove that no rational trier of fact would have found proof of guilt or
delinquency beyond a reasonable doubt; and (viii) the previously unknown or
unavailable evidence is not merely cumulative, corroborative or collateral.
Nothing in this chapter shall constitute grounds to delay
setting an execution date pursuant to §53.1-232.1 or to grant a stay of
execution that has been set pursuant to clause (iii) or (iv) of §53.1-232.1 or
to delay or stay any other appeals following conviction or
adjudication of delinquency, or petitions to any court. Human biological
evidence may not be used as the sole basis for seeking relief under this writ
but may be used in conjunction with other evidence.
B. Such petition shall contain all relevant allegations of facts that are known to the petitioner at the time of filing, shall be accompanied by all relevant documents, affidavits and test results, and shall enumerate and include all relevant previous records, applications, petitions, and appeals and their dispositions. The petition shall be filed on a form provided by the Supreme Court. If the petitioner fails to submit a completed form, the Court of Appeals may dismiss the petition or return the petition to the petitioner pending the completion of such form. Any false statement in the petition, if such statement is knowingly or willfully made, shall be a ground for prosecution of perjury as provided for in §18.2-434.
C. In cases brought by counsel for the petitioner, the Court of Appeals shall not accept the petition unless it is accompanied by a duly executed return of service in the form of a verification that a copy of the petition and all attachments have been served on the attorney for the Commonwealth of the jurisdiction where the conviction or adjudication of delinquency occurred and the Attorney General, or an acceptance of service signed by these officials, or any combination thereof. In cases brought by petitioners pro se, the Court of Appeals shall not accept the petition unless it is accompanied by a certificate that a copy of the petition and all attachments have been sent, by certified mail, to the attorney for the Commonwealth of the jurisdiction where the conviction or adjudication of delinquency occurred and the Attorney General. If the Court of Appeals does not summarily dismiss the petition, it shall so notify in writing the Attorney General, the attorney for the Commonwealth, and the petitioner. The Attorney General shall have 60 days after receipt of such notice in which to file a response to the petition that may be extended for good cause shown; however, nothing shall prevent the Attorney General from filing an earlier response. The response may contain a proffer of any evidence pertaining to the guilt or delinquency or innocence of the petitioner that is not included in the record of the case, including evidence that was suppressed at trial.
D. The Court of Appeals may inspect the record of any trial or appellate court action, and the Court may, in any case, award a writ of certiorari to the clerk of the respective court below, and have brought before the Court the whole record or any part of any record. If, in the judgment of the Court, the petition fails to state a claim, or if the assertions of previously unknown or unavailable evidence, even if true, would fail to qualify for the granting of relief under this chapter, the Court may dismiss the petition summarily, without any hearing or a response from the Attorney General.
E. In any petition filed pursuant to this chapter that is not summarily dismissed, the petitioner is entitled to representation by counsel subject to the provisions of Article 3 (§19.2-157 et seq.) and Article 4 (§ 19.2-163.3 et seq.) of Chapter 10. The Court of Appeals may, in its discretion, appoint counsel prior to deciding whether a petition should be summarily dismissed.
§19.2-389.1. Dissemination of juvenile record information.
Record information maintained in the Central Criminal Records
Exchange pursuant to the provisions of §16.1-299 shall be disseminated only
(i) to make the determination as provided in §§18.2-308.2 and 18.2-308.2:2 of
eligibility to possess or purchase a firearm; (ii) to aid in the preparation of
a pretrial investigation report prepared by a local pretrial services agency established
pursuant to Article 5 (§19.2-152.2 et seq.) of Chapter 9, a presentence or
post-sentence investigation report pursuant to §
19.2-264.5 or 19.2-299 or in the preparation of the
discretionary sentencing guidelines worksheets pursuant to subsection C of §
19.2-298.01; (iii) to aid local community-based probation services agencies
established pursuant to the Comprehensive Community Corrections Act for
Local-Responsible Offenders (§9.1-173 et seq.) with investigating or serving
adult local-responsible offenders and all court service units serving juvenile
delinquent offenders; (iv) for fingerprint comparison utilizing the
fingerprints maintained in the Automated Fingerprint Information System (AFIS)
computer; (v) to attorneys for the Commonwealth to secure information
incidental to sentencing and to attorneys for the Commonwealth and probation
officers to prepare the discretionary sentencing guidelines worksheets pursuant
to subsection C of §19.2-298.01; (vi) to any full-time or part-time employee of
the State Police, a police department or sheriff's office that is a part of or
administered by the Commonwealth or any political subdivision thereof, and who
is responsible for the prevention and detection of crime and the enforcement of
the penal, traffic or highway laws of the Commonwealth, for purposes of the
administration of criminal justice as defined in §9.1-101; (vii) to the
Department of Forensic Science to verify its authority to maintain the
juvenile's sample in the DNA data bank pursuant to §16.1-299.1; (viii) to the
Office of the Attorney General, for all criminal justice activities otherwise
permitted and for purposes of performing duties required by the Civil
Commitment of Sexually Violent Predators Act (§37.2-900 et seq.); (ix) to the
Virginia Criminal Sentencing Commission for research purposes; (x) to members
of a threat assessment team established by a school board pursuant to §
22.1-79.4, by a public institution of higher education pursuant to §23.1-805,
or by a private nonprofit institution of higher education, to aid in the
assessment or intervention with individuals whose behavior may present a threat
to safety; however, no member of a threat assessment team shall redisclose any
juvenile record information obtained pursuant to this section or otherwise use
any record of an individual beyond the purpose that such disclosure was made to
the threat assessment team; (xi) to any full-time or part-time employee of the
State Police or a police department or sheriff's office that is a part of or
administered by the Commonwealth or any political subdivision thereof for the
purpose of screening any person for full-time or part-time employment with the
State Police or a police department or sheriff's office that is a part of or
administered by the Commonwealth or any political subdivision thereof; (xii) to
the State Health Commissioner or his designee for the purpose of screening any
person who applies to be a volunteer with or an employee of an emergency
medical services agency as provided in §32.1-111.5; and (xiii) to the chief
law-enforcement officer of a locality, or his designee who shall be an
individual employed as a public safety official of the locality, that has
adopted an ordinance in accordance with §§15.2-1503.1 and 19.2-389 for the purpose
of screening any person who applies to be a volunteer with or an employee of an
emergency medical services agency as provided in §32.1-111.5.
§19.2-400. Appeal lies to the Court of Appeals; time for filing notice.
An appeal taken pursuant to §19.2-398, including such an
appeal in a capital an
aggravated murder case, shall lie to the Court of Appeals
of Virginia.
No appeal shall be allowed the Commonwealth pursuant to subsection A of §19.2-398 unless within seven days after entry of the order of the circuit court from which the appeal is taken, and before a jury is impaneled and sworn if there is to be trial by jury or, in cases to be tried without a jury, before the court begins to hear or receive evidence or the first witness is sworn, whichever occurs first, the Commonwealth files a notice of appeal with the clerk of the trial court. If the appeal relates to suppressed evidence, the attorney for the Commonwealth shall certify in the notice of appeal that the appeal is not taken for the purpose of delay and that the evidence is substantial proof of a fact material to the proceeding. All other requirements related to the notice of appeal shall be governed by Part Five A of the Rules of the Supreme Court. Upon the filing of a timely notice of appeal, the order from which the pretrial appeal is taken and further trial proceedings in the circuit court, except for a bail hearing, shall thereby be suspended pending disposition of the appeal.
An appeal by the Commonwealth pursuant to subsection C of § 19.2-398 shall be governed by Part Five A of the Rules of the Supreme Court.
§53.1-204. If prisoner commits any other felony, how punished.
If a prisoner in a state, local or community correctional
facility or in the custody of an employee thereof commits any felony other than
those specified in §§18.2-31, 18.2-55 and 53.1-203, which is punishable by
confinement in a state correctional facility or by
death, such prisoner shall be subject to the same
punishment therefor as if he were not a prisoner.
§53.1-229. Powers vested in Governor.
In accordance with the provisions of Article V, Section 12 of
the Constitution of Virginia, the power to
commute capital punishment and to grant pardons or
reprieves is vested in the Governor.
2. That §§8.01-654.1, 8.01-654.2, 17.1-313, and 18.2-17, Article 4.1 (§§19.2-163.7 and 19.2-163.8) of Chapter 10 of Title 19.2, Article 4.1 (§§19.2-264.2 through 19.2-264.5) of Chapter 15 of Title 19.2, §53.1-230, and Chapter 13 (§§53.1-232 through 53.1-236) of Title 53.1 of the Code of Virginia are repealed.
3. That any person under a sentence of death imposed for an offense committed prior to July 1, 2020, but who has not been executed by July 1, 2020, shall have his sentence changed to life imprisonment, and such person shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 (§53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to §53.1-40.01 of the Code of Virginia.
4. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to §30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $72,630 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice.
