Bill Text: VA SB823 | 2020 | Regular Session | Prefiled
Bill Title: Writs of actual innocence; petition by person who was convicted of a felony, etc.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-02-10 - Failed to report (defeated) in Judiciary (6-Y 7-N) [SB823 Detail]
Download: Virginia-2020-SB823-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§17.1-405, 17.1-513, 19.2-327.2 through 19.2-327.5, and 19.2-327.10 through 19.2-327.13 of the Code of Virginia are amended and reenacted as follows:
§17.1-405. Appellate jurisdiction -- Administrative agency, Virginia Workers' Compensation Commission, and domestic relations appeals.
A. Any aggrieved party may appeal to the Court of Appeals from:
1. Any final decision of a circuit court on appeal from (i) a decision of an administrative agency, or (ii) a grievance hearing decision issued pursuant to §2.2-3005;
2. Any final decision of the Virginia Workers' Compensation Commission;
3. Any final judgment, order, or decree of a circuit court involving:
a. Affirmance or annulment of a marriage;
b. Divorce;
c. Custody;
d. Spousal or child support;
e. The control or disposition of a child;
f. Any other domestic relations matter arising under Title 16.1 or Title 20;
g. Adoption under Chapter 12 (§63.2-1200 et seq.) of Title 63.2; or
h. A final grievance hearing decision issued pursuant to subsection B of §2.2-3007.
4. Any interlocutory decree or order entered in any of the cases listed in this section (i) granting, dissolving, or denying an injunction or (ii) adjudicating the principles of a cause.
B. Any petitioner who filed a writ of actual innocence as provided in Chapter 19.2 (§19.2-327.2 et seq.) or 19.3 (§19.2-327.10 et seq.) of Title 19.2 may appeal to the Court of Appeals any final decision, judgment, or order involving such petition for such writ.
§17.1-513. Jurisdiction of circuit courts.
The circuit courts shall have jurisdiction of proceedings by quo warranto or information in the nature of quo warranto and to issue writs of mandamus, prohibition and certiorari to all inferior tribunals created or existing under the laws of the Commonwealth, and to issue writs of mandamus in all matters of proceedings arising from or pertaining to the action of the boards of supervisors or other governing bodies of the several counties for which such courts are respectively held or in other cases in which it may be necessary to prevent the failure of justice and in which mandamus may issue according to the principles of common law. They shall have appellate jurisdiction in all cases, civil and criminal, in which an appeal may, as provided by law, be taken from the judgment or proceedings of any inferior tribunal.
They shall have original and general jurisdiction of all civil cases, except cases upon claims to recover personal property or money not of greater value than $100, exclusive of interest, and except such cases as are assigned to some other tribunal; also in all cases for the recovery of fees in excess of $100; penalties or cases involving the right to levy and collect toll or taxes or the validity of an ordinance or bylaw of any corporation; and also, of all cases, civil or criminal, in which an appeal may be had to the Supreme Court.
They shall have jurisdiction to hear motions filed for the
purpose of modifying, dissolving, or extending a protective order pursuant to §
16.1-279.1 or 19.2-152.10 if the circuit court issued such order, unless the
circuit court remanded the matter to the jurisdiction of the juvenile and
domestic relations district court in accordance with §16.1-297. They shall
also have original jurisdiction of all indictments for felonies and of
presentments, informations and indictments for misdemeanors. They shall also
have original jurisdiction for bail hearings pursuant to §§19.2-327.2:1 and
19.2-327.10:1 all writs of
actual innocence as provided in Chapter 19.2 (§19.2-327.2 et seq.) or 19.3 (§
19.2-327.10 et seq.) of Title 19.2.
They shall have appellate jurisdiction of all cases, civil and criminal, in which an appeal, writ of error or supersedeas may, as provided by law, be taken to or allowed by such courts, or the judges thereof, from or to the judgment or proceedings of any inferior tribunal. They shall also have jurisdiction of all other matters, civil and criminal, made cognizable therein by law and when a motion to recover money is allowed in such tribunals, they may hear and determine the same, although it is to recover less than $100.
§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 circuit court
that entered the felony conviction or adjudication of delinquency
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.
In accordance with §17.1-405, a petitioner may appeal a final decision, judgment, or order from the circuit court to the Court of Appeals. Any final decision by the Court of Appeals is reviewable by the Supreme Court in accordance with § 17.1-411. Upon an appeal, the Court of Appeals or the Supreme Court shall have the authority to issue writs in accordance with the provisions of this chapter.
§19.2-327.2:1. Petition for writ of actual innocence joined by Attorney General; release of prisoner; bond hearing.
The Attorney General may join in a petition for a writ of
actual innocence made pursuant to §19.2-327.2. When such petition is so
joined, the petitioner may file a copy of the petition and attachments thereto
and the Attorney General's answer with the circuit court that entered the
felony conviction or adjudication of
delinquency and move the court for a hearing to consider
release of the person on bail pursuant to Chapter 9 (§19.2-119 et seq.). Upon
hearing and for good cause shown, the court may order the person released from
custody subject to the terms and conditions of bail so established, pending a
ruling by the
Supreme Court on the writ under §19.2-327.5.
§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 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 circuit 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
circuit 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 circuit 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 circuit 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 circuit 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 circuit court may, in any
case, award a writ of certiorari to the clerk of the
respective court below, and
enter an order to have brought before the Court
circuit 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.
§19.2-327.4. Determination by the circuit court for findings of fact.
If the Supreme Court circuit court determines from
the petition, from any hearing on the petition, from a review of the records of
the case, including the record of any hearing on a motion to test evidence
pursuant to §9.1-1104, or from any response from the Attorney General that a
resolution of the case requires further development of the facts under this
chapter, the circuit
court may order the
circuit court to conduct a hearing within 90 days after the order has been issued to certify findings of
fact with respect to such issues as the Supreme Court shall direct entering an order determining such hearing is
necessary. The record and certified findings of fact of the circuit court shall be
filed in the Supreme Court within 30
days after the hearing is concluded. The petitioner or his attorney of record,
the attorney for the Commonwealth and the Attorney General shall be served a
copy of the order stating the specific purpose and evidence for which the
hearing has been ordered.
§19.2-327.5. Relief under writ.
Upon consideration of the petition, the response by the
Commonwealth, previous records of the case, the record of any hearing held
under this chapter and the record of any hearings held pursuant to §
19.2-327.1, and if applicable, any findings
certified from made by
the circuit court pursuant to §19.2-327.4, the
Supreme Court circuit court
shall either dismiss the petition for failure to state a claim or assert
grounds upon which relief shall be granted; or upon a hearing the Court
circuit court shall (i) dismiss the petition for failure to
establish allegations sufficient to justify the issuance of the writ or (ii)
only upon a finding of clear and convincing evidence that the petitioner has
proven all of the allegations contained in clauses (iv) through (viii) of
subsection A of §19.2-327.3, and upon a finding that no rational trier of fact
would have found proof of guilt or delinquency beyond a reasonable doubt, grant
the writ, and vacate the conviction or adjudication of delinquency, or in the
event that the Court circuit court finds that no
rational trier of fact would have found sufficient evidence beyond a reasonable
doubt as to one or more elements of the offense for which the petitioner was
convicted or adjudicated delinquent, but the
Court circuit court
finds that there remains in the original trial record evidence sufficient to
find the petitioner guilty or delinquent beyond a reasonable doubt of a lesser
included offense, the Court circuit court shall modify the
conviction or adjudication of delinquency accordingly and
remand the case to the circuit court for order a new hearing
for resentencing. The burden of proof in a proceeding
brought pursuant to this chapter shall be upon the convicted or delinquent
person seeking relief. If a writ vacating a conviction or adjudication of
delinquency is granted, the
Court shall forward a copy of the writ to the circuit
court, where and no appeal is
made, or the decision to grant the
writ is upheld on appeal, an order
of expungement shall be immediately granted.
§19.2-327.10. Issuance of writ of actual innocence based on nonbiological 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 the petition of a person 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, the Court of Appeals circuit court that entered the
felony conviction or adjudication of delinquency shall have
the authority to issue writs of actual innocence under this chapter. Only one such writ based upon such conviction or adjudication
of delinquency may be filed by a petitioner. The writ shall
lie to the circuit court that entered the conviction or the adjudication of
delinquency and that court shall have the authority to conduct hearings, as
provided for in this chapter, on such a petition
as directed by order from the Court of Appeals. In accordance
with §§17.1-411 and 19.2-317, either party may appeal a final decision of the
Court of Appeals to the Supreme Court of Virginia. Upon an appeal from the
Court of Appeals, the Supreme Court of Virginia shall have the authority to
issue writs in accordance with the provisions of this chapter.
In accordance with §17.1-405, a petitioner may appeal a final decision, judgment, or order from the circuit court to the Court of Appeals. Any final decision by the Court of Appeals is reviewable by the Supreme Court in accordance with §17.1-411. Upon an appeal, the Court of Appeals or the Supreme Court shall have the authority to issue writs in accordance with the provisions of this chapter.
§19.2-327.10:1. Petition for writ of actual innocence joined by Attorney General; release of prisoner; bond hearing.
The Attorney General may join in a petition for a writ of
actual innocence made pursuant to §19.2-327.10. When such petition is so joined,
the petitioner may file a copy of the petition and attachments thereto and the
Attorney General's answer with the circuit court that entered the felony
conviction or adjudication of delinquency
and move the court for a hearing to consider release of the person on bail
pursuant to Chapter 9 (§19.2-119 et seq.). Upon hearing and for good cause
shown, the court may order the person released from custody subject to the
terms and conditions of bail so established, pending a ruling by the Court of Appeals on the
writ under §19.2-327.13.
§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) that 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) that 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 circuit court 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 circuit 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 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 circuit court
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 circuit court 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 circuit court may inspect the
record of any trial or appellate court action, and the Court circuit court
may, in any case, award a writ of
certiorari to the clerk of the respective court below, and enter an order to have brought
before the Court circuit court the whole record
or any part of any record. If, in the judgment of the
Court circuit 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 circuit court may, in its
discretion, appoint counsel prior to deciding whether a petition should be
summarily dismissed.
§19.2-327.12. Determination by circuit court for findings of fact.
If the Court of Appeals circuit court determines from
the petition, from any hearing on the petition, from a review of the records of
the case, or from any response from the Attorney General that a resolution of
the case requires further development of the facts, the
circuit court may order the
circuit court in which the order of conviction or the adjudication of
delinquency was originally entered to conduct a hearing
within 90 days after the order has
been issued to certify findings of fact with respect to such issues as the
Court of Appeals shall direct
entering an order determining such hearing is necessary.
The record and certified findings of fact
of the circuit court shall be filed
in the Court of Appeals within 30 days after the hearing is
concluded. The petitioner or his attorney of record, the attorney for the
Commonwealth and the Attorney General shall be served a copy of the order
stating the specific purpose and evidence for which the hearing has been
ordered.
§19.2-327.13. Relief under writ.
Upon consideration of the petition, the response by the
Commonwealth, previous records of the case, the record of any hearing held
under this chapter and, if applicable, any findings
certified from made by
the circuit court pursuant to an order issued under this chapter, the Court of Appeals circuit court, if it has not
already summarily dismissed the petition, shall either dismiss the petition for
failure to state a claim or assert grounds upon which relief shall be granted;
or the Court circuit court shall (i)
dismiss the petition for failure to establish previously unknown or unavailable
evidence sufficient to justify the issuance of the writ,
or (ii) only upon a finding that the petitioner has proven by clear and convincing
evidence all of the allegations contained in clauses (iv) through (viii) of
subsection A of §19.2-327.11, and upon a finding that no rational trier of
fact would have found proof of guilt or delinquency beyond a reasonable doubt,
grant the writ, and vacate the conviction or finding of delinquency, or in the
event that the Court circuit court finds that no
rational trier of fact would have found sufficient evidence beyond a reasonable
doubt as to one or more elements of the offense for which the petitioner was
convicted or adjudicated delinquent, but the
Court circuit court
finds that there remains in the original trial record evidence sufficient to
find the petitioner guilty or delinquent beyond a reasonable doubt of a lesser
included offense, the Court circuit court shall modify the
order of conviction or delinquency accordingly and
remand the case to the circuit court that entered the conviction or
adjudication of delinquency
order a new hearing for resentencing. The burden of proof
in a proceeding brought pursuant to this chapter shall be upon the convicted or
delinquent person seeking relief. If a writ vacating a conviction or
adjudication of delinquency is granted,
and no appeal is made to the Supreme
Court, or the Supreme
Court denies the Commonwealth's petition for appeal or
upholds the decision of the
Court of Appeals to grant the writ
is upheld on appeal, the
Court of Appeals shall forward a
copy of the writ to the circuit court, where an order of
expungement shall be immediately granted.
