Chapter 1. General Provisions.

Sec.

§ 19.2-1. Repealing clause.

All acts and parts of acts, all sections of this Code, and all provisions of municipal charters, inconsistent with the provisions of this title, are, except as herein otherwise provided, repealed to the extent of such inconsistency.

(1975, c. 495.)

Editor's note. - At its special session of 1971 the General Assembly directed the Code Commission to make a thorough study of the criminal laws of the State and make recommendations for the review and recodification of all statutes of the State relating to crime and criminal procedure. In December of 1974 the Commission sent to the Governor and General Assembly its report containing a proposed revision of Title 19.2, which was published as House Document 20 of the 1975 session. This report contains revisor's notes and other explanatory matter, which, while valuable, are too lengthy for inclusion here. The Commission's draft of the revision of Title 19.2, as amended by the General Assembly, became Chapter 495 of the Acts of 1975. Effective October 1, 1975, it repeals Title 19.1 of the Code and enacts in lieu thereof a new Title 19.2. In addition to its revision by Chapter 495, former Title 19.1 was also amended by certain other acts passed at the 1975 session. As required by former statute (see § 30-152), the Code Commission has incorporated these amendments into new Title 19.2.

The cases prior to 1975 cited in the notes under the various sections of this title were decided under corresponding provisions of former Title 19.1.

Law review. - For survey of the Virginia law on criminal law for the year 1961-1962, see 48 Va. L. Rev. 1342 (1962); for the year 1963-1964, see 50 Va. L. Rev. 1287 (1964). For survey of Virginia law on criminal law and procedure for the year 1967-1968, see 54 Va. L. Rev. 1579 (1968); for the year 1968-1969, see 55 Va. L. Rev. 1581 (1969). For survey of Virginia law on evidence for the year 1967-1968, see 54 Va. L. Rev. 1611 (1968).

For article, "Criminal Law and Procedure," see 26 U. Rich. L. Rev. 701 (1992).

Research References. - Criminal Constitutional Law (Matthew Bender). Rudstein, Erlinder, and Thomas.

Criminal Defense Techniques (Matthew Bender). Cipes, Bernstein, and Hall.

Criminal Law Deskbook (Matthew Bender). McCloskey and Schoenberg,

United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender). Erickson and George.

§ 19.2-2. Effect of repeal of Title 19.1 and enactment of this title.

The repeal of Title 19.1 effective as of October 1, 1975, shall not affect any act or offense done or committed, or any penalty or forfeiture incurred, or any right established, accrued, or accruing on or before such date, or any prosecution, suit or action pending on that day. Except as herein otherwise provided, neither the repeal of Title 19.1 nor the enactment of this title shall apply to offenses committed prior to October 1, 1975, and prosecutions for such offenses shall be governed by the prior law, which is continued in effect for that purpose. For the purposes of this section, an offense was committed prior to October 1, 1975, if any of the essential elements of the offense occurred prior thereto.

(1975, c. 495.)

§ 19.2-3. Certain notices, recognizances and processes validated.

Any notice given, recognizance taken, or process or writ issued before October 1, 1975, shall be valid although given, taken or to be returned to a day after such date, in like manner as if this title had been effective before the same was given, taken or issued.

(1975, c. 495.)

§ 19.2-3.1. Personal appearance by two-way electronic video and audio communication; standards.

  1. Where an appearance is required or permitted before a magistrate, intake officer or, prior to trial, before a judge, the appearance may be by (i) personal appearance before the magistrate, intake officer, or judge or (ii) use of two-way electronic video and audio communication. With the consent of the court and all parties, an appearance in a court may be made by two-way electronic video and audio communication for the purpose of (a) entry of a plea of guilty or nolo contendere and the related sentencing of the defendant charged with a misdemeanor or felony, (b) entry of a nolle prosequi or dismissal, or (c) a revocation proceeding pursuant to § 19.2-306 . If two-way electronic video and audio communication is used, a magistrate, intake officer, or judge may exercise all powers conferred by law and all communications and proceedings shall be conducted in the same manner as if the appearance were in person. If two-way electronic video and audio communication is available for use by a district court for the conduct of a hearing to determine bail or to determine representation by counsel, the court shall use such communication in any such proceeding that would otherwise require the transportation of a person from outside the jurisdiction of the court in order to appear in person before the court. Any documents transmitted between the magistrate, intake officer, or judge and the person appearing before the magistrate, intake officer, or judge may be transmitted by electronically transmitted facsimile process or other electronic method. The facsimile or other electronically generated document may be served or executed by the officer or person to whom sent, and returned in the same manner, and with the same force, effect, authority, and liability as an original document. All signatures thereon shall be treated as original signatures.
  2. Any two-way electronic video and audio communication system used for an appearance shall meet the following standards:
    1. The persons communicating must simultaneously see and speak to one another;
    2. The signal transmission must be live, real time;
    3. The signal transmission must be secure from interception through lawful means by anyone other than the persons communicating; and
    4. Any other specifications as may be promulgated by the Chief Justice of the Supreme Court.
  3. Nothing in this section shall be construed as requiring a locality to purchase a two-way electronic video and audio communication system. Any decision to purchase such a system is at the discretion of the locality.

    (1991, c. 41; 1996, cc. 755, 914; 2006, c. 285; 2009, cc. 94, 623; 2010, c. 800; 2017, c. 669; 2021, Sp. Sess. I, c. 86.)

Cross references. - As to use of telephonic communication systems or electronic video and audio communication systems to conduct hearings, see §§ 16.1-93.1, 16.1-276.3, 17.1-513.2 .

As to the use of two-way electronic video and audio communication system used for an appearance by juvenile before an intake officer, see § 16.1-255.

Editor's note. - Acts 1996, cc. 755 and 914, cls. 7, provide: "[t]hat the provisions of this act shall apply to offenses committed and to records created and proceedings held with respect to those offenses on or after July 1, 1996."

The 2006 amendments. - The 2006 amendment by c. 285 substituted "transmitted between the magistrate, intake officer, or judge and the person appearing before the magistrate, intake officer, or judge" for "filed" in the second sentence of subsection A.

The 2009 amendments. - The 2009 amendments by cc. 94 and 623 are identical, and in subsection A, divided the former second sentence into the second and fourth sentences by deleting "and any" at the end of the second sentence and adding "Any" at the beginning of the fourth sentence, and inserted the third sentence.

The 2010 amendments. - The 2010 amendment by c. 800 inserted "or other electronic method" and "or other electronically generated document" in subsection A.

The 2017 amendments. - The 2017 amendment by c. 669 added subsection C.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 86 effective July 1, 2021, in subsection A, inserted the second sentence and created the second paragraph from the remainder of the subsection.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Appearances, § 11.

CASE NOTES

Annual assessment hearing for sexually violent predators. - Conducting an annual assessment hearing under § 37.2-910 of the Virginia Sexually Violent Predator Act, § 37.2-900 et seq., by video conference did not violate respondent's rights to counsel and to due process; as he was able to participate in the hearing and confer with his counsel, he was not prejudiced by the trial court's denial of his request to attend the hearing in person. Shellman v. Commonwealth, 284 Va. 711 , 733 S.E.2d 242, 2012 Va. LEXIS 197 (2012).

CIRCUIT COURT OPINIONS

Statutory and constitutional safeguards met. - Petitioner's objection to the conduct of a hearing, wherein he appeared by closed circuit audio-video link, was overruled as the statutory and constitutional safeguards were amply met, if not exceeded, by the manner in which the proceeding was conducted; the important public policy of protecting the safety of counsel and others in the courtroom, as well as petitioner himself, justified having him appear remotely, and petitioner's counsel were in the courtroom to represent his interests. Solomon v. Kincaid, 105 Va. Cir. 166, 2020 Va. Cir. LEXIS 68 (Fairfax County Apr. 30, 2020).

§ 19.2-4. References to former sections, articles or chapters of Titles 18.1 and 19.1.

Whenever in this title any of the conditions, requirements, provisions or contents of any section, article or chapter of Titles 18.1 and 19.1, as such titles existed prior to October 1, 1975, are transferred in the same or in modified form to a new section, article or chapter of this title or of Title 18.2, and whenever any such former section, article or chapter is given a new number in this title or in Title 18.2, all references to any such former section, article or chapter of Title 19.1 or of Title 18.1 appearing elsewhere in this Code than in this title or in Title 18.2, shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions or contents or portions thereof.

(1975, c. 495.)

§ 19.2-5. Meaning of certain terms.

As used in this title, unless otherwise clearly indicated by the context in which it appears:

"Court" means any court vested with appropriate jurisdiction under the Constitution and laws of the Commonwealth.

"Court not of record" and "district court" shall have the respective meanings assigned to them in Chapter 4.1 (§ 16.1-69.1 et seq.) of Title 16.1.

"Judge" means any judge, associate judge or substitute judge of any court or any magistrate.

(Code 1950, § 19.1-5; 1960, c. 366; 1975, c. 495; 2005, c. 839; 2008, cc. 551, 691.)

The 2005 amendments. - The 2005 amendment by c. 839, effective October 1, 2005, rewrote this section.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are nearly identical, and substituted "judge of any court or any magistrate" for "judge, or magistrate, of any court" in the definition of "Judge."

§ 19.2-6. Appointive power of circuit courts.

Unless otherwise specifically provided, whenever an appointive power is given to the judge of a circuit court, that power shall be exercised by a majority of the judges of the circuit. In case of a tie, such fact shall be communicated to the Chief Justice of the Supreme Court, who shall appoint a circuit judge from another circuit who shall act as a tie breaker. Where the power of appointment is to be exercised by a majority of the judges of the Second Judicial Circuit and such appointment is to a local post, board or commission in Accomack or Northampton County, the resident judge or judges of the County of Accomack or Northampton shall exercise such appointment power as if he or they comprise the majority of the judges of the Circuit.

(1975, c. 495; 1977, c. 288; 1994, c. 407.)

§ 19.2-7. Rewards for arrest of persons convicted of or charged with offenses; rewards for conviction of unknown offenders.

The Governor may offer a reward for apprehending and securing any person convicted of an offense or charged therewith, who shall have escaped from lawful custody or confinement, or for apprehending and securing any person charged with an offense, who, there is reason to fear, cannot be arrested in the common course of proceeding. The Governor may also offer a reward for the detection and conviction of the person guilty of an offense when such offense has been committed but the person guilty thereof is unknown.

Any sheriff, deputy sheriff, sergeant, deputy sergeant or any other officer may claim and receive any reward which may be offered for the arrest and detention of any offender against the criminal laws of this or any other state or nation.

(Code 1950, §§ 19.1-6, 19.1-6.1; 1960, c. 366; 1962, c. 513; 1964, c. 171; 1975, c. 495.)

Cross references. - As to right of police officer to receive rewards, see § 15.2-1710 .

As to authority of localities to offer rewards, see § 15.2-1713 .

As to right of officers enforcing the motor vehicle laws to receive rewards, see § 46.2-218 .

As to right of State Police officers to receive rewards, see § 52-10 .

Law review. - For comment, "Effect of Public Policy upon Reward Offers," see 20 Wash. & Lee L. Rev. 395 (1963).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Bounties or Rewards, § 2; 13B M.J. Municipal Corporations, § 80; 15 M.J. Public Officers, § 45; 16 M.J. Sheriffs, § 7.

CASE NOTES

This section illustrates the legislative policy on the subject of rewards to public officers. Buek v. Nance, 112 Va. 28 , 70 S.E. 515 (1911)wherein this section was held not applicable.

§ 19.2-8. Limitation of prosecutions.

A prosecution for a misdemeanor, or any pecuniary fine, forfeiture, penalty or amercement, shall be commenced within one year next after there was cause therefor, except that a prosecution for petit larceny may be commenced within five years, and for an attempt to produce abortion, within two years after commission of the offense.

A prosecution for any misdemeanor violation of § 54.1-3904 shall be commenced within two years of the discovery of the offense.

A prosecution for violation of laws governing the placement of children for adoption without a license pursuant to § 63.2-1701 shall be commenced within one year from the date of the filing of the petition for adoption.

A prosecution for making a false statement or representation of a material fact knowing it to be false or knowingly failing to disclose a material fact, to obtain or increase any benefit or other payment under the Virginia Unemployment Compensation Act (§ 60.2-100 et seq.) shall be commenced within three years next after the commission of the offense.

A prosecution for any violation of § 10.1-1320 , 62.1-44.32 (b) , 62.1-194.1 , or Article 11 (§ 62.1-44.34:14 et seq.) of Chapter 3.1 of Title 62.1 that involves the discharge, dumping or emission of any toxic substance as defined in § 32.1-239 shall be commenced within three years next after the commission of the offense.

Prosecution of Building Code violations under § 36-106 shall commence within one year of discovery of the offense by the building official, provided that such discovery occurs within two years of the date of initial occupancy or use after construction of the building or structure, or the issuance of a certificate of use and occupancy for the building or structure, whichever is later. However, prosecutions under § 36-106 relating to the maintenance of existing buildings or structures as contained in the Uniform Statewide Building Code shall commence within one year of the issuance of a notice of violation for the offense by the building official.

Prosecution of any misdemeanor violation of § 54.1-111 shall commence within one year of the discovery of the offense by the complainant, but in no case later than five years from occurrence of the offense.

Prosecution of any misdemeanor violation of any professional licensure requirement imposed by a locality shall commence within one year of the discovery of the offense by the complainant, but in no case later than five years from occurrence of the offense.

Prosecution of nonfelonious offenses which constitute malfeasance in office shall commence within two years next after the commission of the offense.

Prosecution for a violation for which a penalty is provided for by § 55.1-1989 shall commence within three years next after the commission of the offense.

Prosecution of illegal sales or purchases of wild birds, wild animals and freshwater fish under § 29.1-553 shall commence within three years after commission of the offense.

Prosecution of violations under Title 58.1 for offenses involving false or fraudulent statements, documents or returns, or for the offense of willfully attempting in any manner to evade or defeat any tax or the payment thereof, or for the offense of willfully failing to pay any tax, or willfully failing to make any return at the time or times required by law or regulations shall commence within three years next after the commission of the offense, unless a longer period is otherwise prescribed.

Prosecution of violations of subsection A or B of § 3.2-6570 shall commence within five years of the commission of the offense, except violations regarding agricultural animals shall commence within one year of the commission of the offense.

A prosecution for a violation of § 18.2-386.1 shall be commenced within five years of the commission of the offense.

A prosecution for any violation of the Campaign Finance Disclosure Act, Chapter 9.3 (§ 24.2-945 et seq.) of Title 24.2, shall commence within one year of the discovery of the offense but in no case more than three years after the date of the commission of the offense.

A prosecution of a crime that is punishable as a misdemeanor pursuant to the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.) or pursuant to § 18.2-186.3 for identity theft shall be commenced before the earlier of (i) five years after the commission of the last act in the course of conduct constituting a violation of the article or (ii) one year after the existence of the illegal act and the identity of the offender are discovered by the Commonwealth, by the owner, or by anyone else who is damaged by such violation.

A prosecution of a misdemeanor under § 18.2-64.2 , 18.2-67.4 , 18.2-67.4:1 , 18.2-67.4:2 , 18.2-67.5 , or 18.2-370.6 where the victim is a minor at the time of the offense shall be commenced no later than one year after the victim reaches majority, unless the alleged offender of such offense was an adult and more than three years older than the victim at the time of the offense, in which instance such prosecution shall be commenced no later than five years after the victim reaches majority.

A prosecution for a violation of § 18.2-260.1 shall be commenced within three years of the commission of the offense.

Nothing in this section shall be construed to apply to any person fleeing from justice or concealing himself within or without the Commonwealth to avoid arrest or be construed to limit the time within which any prosecution may be commenced for desertion of a spouse or child or for neglect or refusal or failure to provide for the support and maintenance of a spouse or child.

(Code 1950, § 19.1-8; 1960, c. 366; 1974, c. 466; 1975, c. 495; 1976, cc. 114, 620; 1977, c. 108; 1978, c. 730; 1979, c. 243; 1980, c. 496; 1981, c. 31; 1984, c. 601; 1987, c. 488; 1990, cc. 575, 976; 1992, cc. 177, 435, 650; 1996, c. 484; 1998, c. 566; 1999, c. 620; 2005, cc. 746, 761, 827; 2006, cc. 193, 787, 892; 2008, c. 769; 2011, cc. 118, 143, 494, 553; 2014, c. 169; 2015, c. 176; 2016, cc. 233, 253; 2017, c. 667; 2018, c. 549; 2020, cc. 277, 1122.)

Editor's note. - Acts 1976, c. 620, cl. 3 provides: "That the amended period of limitation for prosecutions provided for by this act shall apply only to offenses committed subsequent to the effective date of this act [April 9, 1976]."

Effective October 1, 2008, the reference to "subsection A or B of § 3.1-796.122" was changed to "subsection A or B of § 3.2-6570" to conform to Acts 2008, c. 860.

Acts 2005, c. 746, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2005, cc. 761 and 827, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2016, cc. 233 and 253, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 665 of the Acts of Assembly of 2015 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2018, c. 549, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 836 of the Acts of Assembly of 2017 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "Prosecution for a violation for which a penalty is provided for by § 55.1-1989 " for "Prosecution of any violation of § 55-79.87, 55-79.88, 55-79.89, 55-79.90, 55-79.93, 55-79.94, 55-79.95, 55-79.103, or any rule adopted under or order issued pursuant to § 55-79.98."

Acts 2020, cc. 277 and 1122, in cl. 2 provide: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendment inserted "or B" in the tenth paragraph.

The 2005 amendments. - The 2005 amendments by cc. 746, 761 and 827 are identical, and substituted "that" for "which" preceding "involves the discharge" in the fourth paragraph; inserted the next to the last paragraph; substituted "the" for "this" preceding "Commonwealth" in the last paragraph; and made minor stylistic changes.

The 2006 amendments. - The 2006 amendment by c. 193 added the sixth paragraph.

The 2006 amendments by cc. 787 and 892 are identical, and substituted "Chapter 9.3 ( § 24.2-945 et seq.) of Title 24.2" for "( § 24.2-900 et seq.)" in the thirteenth paragraph.

The 2008 amendments. - The 2008 amendment by c. 769 inserted "or pursuant to § 18.2-186.3 for identity theft" in the fourteenth paragraph.

The 2011 amendments. - The 2011 amendments by cc. 118 and 143 are identical, and in the sixth paragraph, deleted "by the owner or" following "discovery of the offense" in the first sentence, and added "by the building official" in the last sentence.

The 2011 amendment by c. 494 added the eighth paragraph.

The 2011 amendment by c. 553 added the second paragraph.

The 2014 amendments. - The 2014 amendment by c. 169 added the second to last paragraph.

The 2015 amendments. - The 2015 amendment by c. 176 substituted "issuance of a notice of violation for" for "discovery of" in the sixth paragraph.

The 2016 amendments. - The 2016 amendments by cc. 233 and 253 are identical, and inserted "A prosecution of a misdemeanor under § 18.2-64.2 , 18.2-67.4 , 18.2-67.4:1 , 18.2-67.4:2 , 18.2-67.5 , or 18.2-370.6 where the victim is a minor at the time of the offense shall be commenced no later than one year after the victim reaches majority."

The 2017 amendments. - The 2017 amendment by c. 667 inserted "18.2-51.7" in the second-from-last paragraph.

The 2018 amendments. - The 2018 amendment by c. 549 deleted the reference to "18.2-51.7" in the seventeenth paragraph.

The 2020 amendments. - The 2020 amendments by cc. 277 and 1122 are identical, and added "unless the alleged offender of such offense was an adult and more than three years older than the victim at the time of the offense, in which instance such prosecution shall be commenced no later than five years after the victim reaches majority" in the third from last paragraph.

Law review. - For a discussion of statutory changes in child placement by the 1978 session of the General Assembly, see 12 U. Rich. L. Rev. 739 (1978).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adultery, Fornication and Lewdness, § 5; 2A M.J. Assault and Battery, § 10; 3A M.J. Banks and Banking, § 89; 12A M.J. Larceny, § 32; 12A M.J. Limitation of Actions, §§ 1, 21.

CASE NOTES

Applicability. - Larceny that was a misdemeanor was a petit larceny, there were no other possibilities for other larcenies within the context of § 18.2-181 . Since § 18.2-96 had no impact upon the foregoing analysis, the one year statute of limitations, which applied to misdemeanors, did not apply to defendant's act of passing a bad check for $140.88. Foster v. Commonwealth, 271 Va. 235 , 623 S.E.2d 902, 2006 Va. LEXIS 6 (2006).

Trial court did not err in ruling that the contempt charge against defendant was not time-barred; as contempt proceedings are not "criminal prosecutions," statutes of limitation for crimes do not apply to bar them. Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).

Trial court did not err in ruling that the contempt charge against defendant was not time-barred; a violation of § 19.2-358 is not classified as a misdemeanor, and thus this section does not apply. Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).

This section prescribes the limitation of criminal prosecution generally. Quillin v. Commonwealth, 105 Va. 874 , 54 S.E. 333 (1906).

It has no application to a civil contempt proceeding against a husband for his refusal to obey decrees directing him to pay counsel fees and court costs incurred by his wife in a divorce suit. Eddens v. Eddens, 188 Va. 511 , 50 S.E.2d 397 (1948).

This section is not applicable to a civil action based on common-law fraud. Reid v. Madison, 455 F. Supp. 1066 (E.D. Va. 1978).

This section is inapplicable to habitual offender proceedings under former § 46.1-387.1 et seq. (see now § 46.2-356 et seq.), because the habitual offender proceedings are civil in nature and not criminal. Furthermore, the Habitual Offender Act itself contemplates certification after more than five years. Bouldin v. Commonwealth, 4 Va. App. 166, 355 S.E.2d 352 (1987).

A presentment for a misdemeanor is the commencement of the prosecution; and unless the prosecution is then barred by the statute of limitations, it will not be barred by the failure to file an information or indictment upon the presentment before the time of limitations runs out. Commonwealth v. Christian, 48 Va. (7 Gratt.) 631 (1850).

Issuance of warrant commences prosecution for misdemeanor. - The issuance of a warrant commences prosecution within meaning of the provision that "a prosecution for a misdemeanor . . . shall be commenced within one year next after there was cause therefor." Hall v. Commonwealth, 2 Va. App. 159, 342 S.E.2d 640 (1986).

Felony warrant does not bar prosecution for lesser included misdemeanor. - The fact that the warrant (and subsequent indictment) charged a felony does not bar prosecution for a lesser included misdemeanor so long as the prosecution was commenced within the applicable limitation period. Hall v. Commonwealth, 2 Va. App. 159, 342 S.E.2d 640 (1986).

Lesser-included offenses. - Trial court erred in denying defendant's motion to set aside a verdict convicting her of misdemeanor battery because prosecution of that misdemeanor was barred by the applicable statute of limitations where it was commenced more than one year from the date of the offense, no warrant was issued on the charge, and the purpose and meaning of the statute of limitations would be negated if the Commonwealth could charge her with a felony after the limitations period on the misdemeanor had run, just to obtain a conviction on the misdemeanor when the evidence was insufficient to convict for the greater felony. Taylor v. Commonwealth, 64 Va. App. 282, 767 S.E.2d 721, 2015 Va. App. LEXIS 20 (2015).

The duty to pay a penalty for the violation of a legal regulation is a legal obligation not contractual in its nature and the limitation applicable is one year. Director Gen. of R.Rs. v. E.W. Gates & Son Co., 7 Va. L. Reg. (n.s.) 253 (1921).

Information in nature of writ of quo warranto. - An early act which limited the prosecution of certain indictments or informations to one year was held not to apply to an information in the nature of a writ of quo warranto. Commonwealth v. Birchett, 4 Va. (2 Va. Cas.) 51 (1816).

Indictment should show offense committed within statutory period. - Where there is a limitation barring the prosecution after a certain time, such facts should be stated in the indictment as will show that the offense charged was committed within the statutory period. Shiflett v. Commonwealth, 114 Va. 876 , 77 S.E. 606 (1913).

Presentments issued by grand jury charging defendant with causing or creating a public nuisance and of permitting the continuation of a public nuisance were not fatally defective after the trial court amended the presentments to cover a one-year time period, which was the allotted time-period for prosecution of a misdemeanor, instead of the two-year time period that had been set forth; the trial court's amendment merely narrowed the time alleged in the presentments and did not change the nature of the offenses charged against defendant. Niazi v. Commonwealth, No. 2283-02-2, 2004 Va. App. LEXIS 102 (Ct. of Appeals Mar. 9, 2004).

Presumption on appeal. - After a verdict of conviction for a misdemeanor, an appellate court will presume that the offense was proved to have been within the period of limitation, where the record does not show the contrary. Earhart v. Commonwealth, 36 Va. (9 Leigh) 671 (1839).

Prosecution of misdemeanor brought after dismissal of manslaughter indictment. - On a trial for involuntary manslaughter, the trial court, after hearing the evidence, dismissed the manslaughter indictment, issued a bench warrant charging defendant with driving under the influence of alcohol, and found him guilty as charged. It was held that, since the warrant was issued more than one year after the accident upon which the prosecution was based occurred, and charged a specific misdemeanor for which defendant could not have been convicted under the indictment for which he was then being tried, the prosecution was barred by the statute of limitations. Ange v. Commonwealth, 217 Va. 861 , 234 S.E.2d 64 (1977).

Prosecution for Building Code violations held timely. - Violations of § 119.2 of the Uniform Statewide Building Code are not continuing ones. Nevertheless, prosecution commenced within the applicable limitation period, where the building inspector did not "discover" the violations until January of 1984 when he concluded his investigation and then notified the construction company of the offenses, and prosecution began on October 16, 1984, within one year of discovery of the statutory violations. Granny's Cottage Inc. v. Town of Occoquan, 3 Va. App. 577, 352 S.E.2d 10 (1987) (decided under prior law).

CIRCUIT COURT OPINIONS

Privilege against self-incrimination inapplicable to husband's alleged adulterous affairs occurring more than a year prior to his deposition. - Because the statute of limitations in § 19.2-8 did not apply to a husband's alleged adulterous affairs occurring more than a year prior to his deposition, the husband could not invoke the privilege against self-incrimination found in U.S. Const., Amend. V and Va. Const., Art. I, § 8. Brubach v. Hystad, 68 Va. Cir. 181, 2005 Va. Cir. LEXIS 68 (Greene County 2005).

Civil penalty. - Limitations period for filing an action for violation of the Virginia high-occupancy toll (HOT) lanes statute, which required a court to impose a civil penalty for violations of the statute, was one year because an action under the statute was a prosecution resulting in a pecuniary penalty. Commonwealth v. Cooley, 90 Va. Cir. 154, 2015 Va. Cir. LEXIS 65 (Fairfax County Apr. 7, 2015).

Toll road violations. - Defendant's toll road violations had to be dismissed as untimely under the one-year statute of limitations because, while the applicable statute provided that it "shall be tried as a civil case," it appeared in the portion of the Code reserved for traffic offenses, provided for escalating civil penalties for subsequent violations, was akin to a misdemeanor, and constituted a "prosecution" involving a "pecuniary fine" or "penalty." Dulles Toll Rd. v. Diggs, 90 Va. Cir. 377, 2015 Va. Cir. LEXIS 109 (Fairfax County June 29, 2015).

Relation to discovery request. - Any answer by the husband to the interrogatory or request for admission that disclosed misdemeanor acts of adultery in Virginia more than one year prior to the date of the discovery response could not be used as a basis for a criminal prosecution, and thus he could not claim a privilege against self-incrimination with respect to any of those acts. B.B. v. TB, 101 Va. Cir. 190, 2019 Va. Cir. LEXIS 28 (Fairfax County Feb. 12, 2019).

CIRCUIT COURT OPINIONS

Misdemeanors. - Plaintiff was ordered to answer the interrogatory related to adultery; as the statute of limitations for a misdemeanor was one year, plaintiff faced no risk of prosecution. Zakia v. Zakia, 104 Va. Cir. 168, 2020 Va. Cir. LEXIS 7 (Fairfax County Jan. 24, 2020).

§ 19.2-8.1. Prosecution for murder or manslaughter; passage of time not a limitation.

A prosecution for murder or manslaughter, whether at common law or under the Code of Virginia, may be instituted regardless of the time elapsed between the act or omission causing the death of the victim and the death of the victim.

(2009, c. 278.)

§ 19.2-9. Prosecution of certain criminal cases removed from state to federal courts; costs.

When any person indicted in the courts of this Commonwealth for a violation of its laws, has his case removed to the district court of the United States under 28 U.S.C. § 1442, it shall be the duty of the attorney for the Commonwealth for the county or city in which any such indictment is found to prosecute any such case in the United States district court to which the same shall be so removed, and for his services in this behalf he shall be paid a fee of $100 for each case tried by him in such United States district court, and mileage at the rate now allowed by law to the members of the General Assembly for all necessary travel in going to and returning from such court, to be paid on his account when approved by the Attorney General.

A per diem of one dollar and fifty cents for each day of actual attendance upon such United States district court and mileage at a rate as provided by law for every mile of necessary travel in going to and returning from such court shall be paid out of the state treasury to each witness for the Commonwealth in every such case upon accounts therefor against the Commonwealth, certified by the attorney for the Commonwealth prosecuting such case and approved by the Attorney General.

It shall not be the duty of the Attorney General to appear for the Commonwealth in such cases unless he can do so without interfering with the efficient discharge of the duties imposed upon him by law; but he may appear with the attorney for the Commonwealth prosecuting such case in any case when the interests of the Commonwealth may in his judgment require his presence.

The Comptroller shall from time to time draw his warrants upon the state treasury in favor of the parties entitled to be paid the above compensation and expenses, or their assigns, upon bills certified and approved as above prescribed.

(Code 1950, § 19.1-14; 1960, c. 366; 1975, c. 495.)

§ 19.2-9.1. Written notice required for complaining witness who is requested to take polygraph test.

  1. For offenses not specified in subsection B, if a complaining witness is requested to submit to a polygraph examination during the course of a criminal investigation, such witness shall be informed in writing prior to the examination that (i) the examination is voluntary, (ii) the results thereof are inadmissible as evidence and (iii) the agreement of the complaining witness to submit thereto shall not be the sole condition for initiating or continuing the criminal investigation.
  2. No law-enforcement officer, attorney for the Commonwealth, or other government official shall ask or require a victim of an alleged sex offense to submit to a polygraph examination or other truth-telling device as a condition for proceeding with the investigation of such an offense. If a victim is requested to submit to a polygraph examination during the course of a criminal investigation, such victim shall be informed in writing of the provisions of subsection A and that the refusal of a victim to submit to such an examination shall not prevent the investigation, charging, or prosecution of the offense.
  3. A "sex offense," for the purposes of this section, shall mean any offense set forth in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2. (1994, c. 336; 2008, cc. 512, 748.)

Cross references. - As to response policies and procedures in sexual assault cases, see § 9.1-1301 .

The 2008 amendments. - The 2008 amendments by cc. 512 and 748 are nearly identical, and designated the existing provisions of this section as subsection A; in subsection A, substituted "For offenses not specified in subsection B, if" for "If" at the beginning; and added subsections B and C.

§ 19.2-10. Outlawry abolished.

No proceeding of outlawry shall hereafter be instituted or prosecuted.

(Code 1950, § 19.1-15; 1960, c. 366; 1975, c. 495.)

§ 19.2-10.1. Subpoena duces tecum for obtaining records concerning banking and credit cards.

  1. A financial institution as defined in § 6.2-604 , money transmitter as defined in § 6.2-1900 , or commercial businesses providing credit history or credit reports; or an issuer as defined in § 6.2-424 shall disclose a record or other information pertaining to a customer, to a law-enforcement officer pursuant to a subpoena duces tecum issued pursuant to this section.
    1. In order to obtain such records, the law-enforcement official shall provide a statement of the facts documenting the reasons that the records or other information sought are relevant to a legitimate law-enforcement inquiry, relating to a named person or persons, to the attorney for the Commonwealth. A court shall issue a subpoena duces tecum upon motion of the Commonwealth only if the court finds that there is probable cause to believe that a crime has been committed and to believe the records sought or other information sought, including electronic data and electronic communications, are relevant to a legitimate law-enforcement inquiry into that offense. The court may issue a subpoena duces tecum under this section regardless of whether any criminal charges have been filed.
    2. A court issuing an order pursuant to this section, on a motion made promptly by the financial institution or credit card issuer, or enterprise may quash or modify the subpoena duces tecum, if the information or records requested are unusually voluminous in nature or compliance with such subpoena duces tecum would otherwise cause an undue burden on such provider.
  2. No cause of action shall lie in any court against a financial institution or credit card issuer, or enterprise, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a subpoena duces tecum under this section.
  3. Upon issuance of a subpoena duces tecum under this section, the statement shall be temporarily sealed by the court upon application of the attorney for the Commonwealth for good cause shown in an ex parte proceeding. Any individual arrested and claiming to be aggrieved by the order may move the court for the unsealing of the statement, and the burden of proof with respect to continued sealing shall be upon the Commonwealth.
  4. Any and all records received by law enforcement pursuant to this section shall be utilized only for a reasonable amount of time and only for a legitimate law-enforcement purpose. Upon the completion of the investigation the records shall be submitted to the court by the attorney for the Commonwealth along with a proposed order requiring the records to be sealed. Upon entry of such order, the court shall seal the records in accordance with the requirements contained in subsection C.

    (2003, cc. 223, 541, 549; 2004, cc. 883, 996; 2010, cc. 702, 794.)

Editor's note. - Acts 2003, cc. 541 and 549, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2004, cc. 883 and 995, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2004 amendments. - The 2004 amendment by cc. 883 and 996 are identical, and inserted "money transmitter as defined in § 6.1-370, or commercial businesses providing credit history or credit reports" in subsection A; and inserted "or enterprise" following "card issuer" in subdivision A 2 and subsection B.

The 2010 amendments. - The 2010 amendment by c. 702 inserted "including electronic data and electronic communications" in the second sentence of subdivision A 1.

The 2010 amendment by c. 794, effective October 1, 2010, in subsection A, substituted "6.2-604" for "6.1-125.1," "6.2-1900" for "6.1-370," and "an issuer as defined in § 6.2-424 " for "a credit card issuer as defined in § 11-30 ."

Law review. - For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

Research References. - Virginia Forms (Matthew Bender). No. 7-130. Subpoena Duces Tecum for Financial Records.

§ 19.2-10.2. Administrative subpoena issued for record from provider of electronic communication service or remote computing service.

  1. A provider of electronic communication service or remote computing service that is transacting or has transacted any business in the Commonwealth shall disclose a record or other information pertaining to a subscriber to or customer of such service, excluding the contents of electronic communications as required by § 19.2-70.3 , to an attorney for the Commonwealth or the Attorney General pursuant to an administrative subpoena issued under this section.
    1. In order to obtain such records or other information, the attorney for the Commonwealth or the Attorney General shall certify on the face of the subpoena that there is reason to believe that the records or other information being sought are relevant to a legitimate law-enforcement investigation concerning violations of §§ 18.2-47 , 18.2-48 , 18.2-49 , 18.2-346 , 18.2-346.01 , 18.2-347 , 18.2-348 , 18.2-348 .1, 18.2-349 , 18.2-355 , 18.2-356 , 18.2-357 , 18.2-374.1 , and 18.2-374.1 :1, former § 18.2-374.1:2 , and § 18.2-374.3 .
    2. Upon written certification by the attorney for the Commonwealth or the Attorney General that there is a reason to believe that the victim is under the age of 18 and that notification or disclosure of the existence of the subpoena will endanger the life or physical safety of an individual, or lead to flight from prosecution, the destruction of or tampering with evidence, the intimidation of potential witnesses, or otherwise seriously jeopardize an investigation, the subpoena shall include a provision ordering the service provider not to notify or disclose the existence of the subpoena to another person, other than an attorney to obtain legal advice, for a period of 30 days after the date on which the service provider responds to the subpoena.
    3. On a motion made promptly by the electronic communication service or remote computing service provider, a court of competent jurisdiction may quash or modify the administrative subpoena if the records or other information requested are unusually voluminous in nature or if compliance with the subpoena would otherwise cause an undue burden on the service provider.
  2. All records or other information received by an attorney for the Commonwealth or the Attorney General pursuant to an administrative subpoena issued under this section shall be used only for a reasonable length of time not to exceed 30 days and only for a legitimate law-enforcement purpose. Upon completion of the investigation, the records or other information held by the attorney for the Commonwealth or the Attorney General shall be destroyed if no prosecution is initiated. The existence of such a subpoena shall be disclosed upon motion of an accused.
  3. No cause of action shall lie in any court against an electronic communication service or remote computing service provider, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of an administrative subpoena issued under this section.
  4. Records or other information pertaining to a subscriber to or customer of such service means name, address, local and long distance telephone connection records, or records of session times and durations, length of service, including start date, and types of service utilized, telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address, and means and source of payment for such service.
  5. Nothing in this section shall require the disclosure of information in violation of any federal law.

    (2007, cc. 802, 814; 2014, c. 166; 2015, cc. 544, 625; 2019, c. 458; 2021, Sp. Sess. I, c. 188.)

The 2014 amendments. - The 2014 amendment by c. 166 in subdivision A 1 inserted "18.2-47, 18.2-48 , 18.2-49 , 18.2- 346, 18.2-347 , 18.2-348 , 18.2-349 , 18.2-355 , 18.2-356 , 18.2-357 " and made a minor stylistic change.

The 2015 amendments. - The 2015 amendments by cc. 544 and 625 are identical, and inserted "or the Attorney General" following "Commonwealth" in the first paragraph of subsection A, in subdivision A 1 and throughout subsection B; added subdivision A 2; redesignated former subdivision A 2 as subdivision A 3; and inserted the third sentence of subsection B.

The 2019 amendments. - The 2019 amendment by c. 458 inserted "18.2-348.1" in subdivision A 1.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, inserted "18.2-346.01" in subdivision A 1.

§ 19.2-10.3. Reasonable suspicion required to stop, board, or inspect a noncommercial vessel on navigable waters of the Commonwealth.

  1. Notwithstanding any other provision of law, no law-enforcement officer charged with enforcing laws or regulations on the navigable waters of the Commonwealth shall stop, board, or inspect any noncommercial vessel on the navigable waters of the Commonwealth unless such officer has reasonable suspicion that a violation of law or regulation exists.
  2. The provisions of subsection A shall not apply to lawful stops, boardings, or inspections conducted by conservation police officers, as defined in § 29.1-100 , or the Virginia Marine Police for the purposes of inspecting hunting, fishing, and trapping licenses pursuant to §§ 28.2-231 and 29.1-337 or creel and bag limit inspections pursuant to § 29.1-209 , nor shall it prohibit lawful boating safety checkpoints conducted by conservation police officers and Virginia Marine Police in accordance with established agency policy. (2015, c. 484.)

§ 19.2-10.4. Subpoena duces tecum; attorney-issued subpoena duces tecum.

In any criminal case a subpoena duces tecum may be issued by the attorney of record who is an active member of the Virginia State Bar at the time of issuance, as an officer of the court. Any such subpoena duces tecum shall be on a form approved by the Executive Secretary of the Supreme Court of Virginia, signed by the attorney of record as if a pleading, and shall include the attorney's address. A copy of the signed subpoena duces tecum, together with the attorney's certificate of service pursuant to Rule 1:12, shall be mailed or delivered to the adverse party and to the clerk's office of the court in which the case is pending on the day of issuance by the attorney. The law governing subpoenas duces tecum issued pursuant to Rule 3A:12(b) shall apply. A sheriff shall not be required to serve an attorney-issued subpoena duces tecum that is not issued at least five business days prior to the date production of evidence is desired. When an attorney transmits one or more subpoenas duces tecum to a sheriff to be served in his jurisdiction, the provisions in § 8.01-407 regarding such transmittals shall apply.

If the time for compliance with a subpoena duces tecum issued by an attorney is less than 14 days after service of the subpoena, the person to whom it is directed may serve upon the party issuing the subpoena a written objection setting forth any grounds upon which such production, inspection, or testing should not be required. If objection is made, the party on whose behalf the subpoena duces tecum was issued and served shall not be entitled to the requested production, inspection, or testing, except pursuant to an order of the court, but may, upon notice to the person to whom the subpoena was directed, move for an order to compel production, inspection, or testing. Upon such timely motion, the court may quash, modify, or sustain the subpoena duces tecum.

Subpoenas duces tecum for medical records issued by an attorney shall be subject to the provisions of §§ 8.01-413 and 32.1-127.1:03 , except that no separate fee for issuance shall be imposed.

(2020, c. 771.)

§ 19.2-11. Procedure in contempt cases.

No court or judge shall impose a fine upon a juror, witness or other person for disobedience of its process or any contempt, unless he either be present in court at the time, or shall have been served with a rule, returnable to a certain time, requiring him to show cause why the fine should not be imposed and shall have failed to appear and show cause.

(Code 1950, § 19.1-16; 1960, c. 366; 1968, c. 639; 1975, c. 495.)

Cross references. - For general provisions relating to contempt, see §§ 18.2-456 through 18.2-459 and notes thereto.

Research References. - Virginia Forms (Matthew Bender). No. 2-1414. Order Against a Witness to Show Cause Why a Fine for Contempt Should Not Be Imposed, et seq.

Michie's Jurisprudence. - For related discussion, see 4A M.J. Contempt, §§ 22, 29; 9A M.J. Grand Jury, § 16.

CASE NOTES

When contempt to be adjudicated. - This section does not require the trial judge to adjudicate a contempt committed in his presence at the very instant of the alleged misbehavior or disobedience of the court's ruling. He may do so under § 18.2-456 , but he is not required to. Higginbotham v. Commonwealth, 206 Va. 291 , 142 S.E.2d 746 (1965).

Death of the contemnor. - Punishment may not be imposed in a civil contempt proceeding when it is established that the contemnor is unable to comply with the terms of the order or to purge himself; therefore when contemnor spouse has died, the court's personal jurisdiction ends. Estate of Hackler v. Hackler, 44 Va. App. 51, 602 S.E.2d 426 (2004).

Concealment of witnesses. - Where a court orders a subpoena for witnesses to attend the grand jury and they intentionally conceal themselves, and so prevent the process from being served until the grand jury is discharged, this is not a contempt punishable by the court in a summary manner. Commonwealth v. Deskins, 31 Va. (4 Leigh) 685 (1834).

Chapter 1.1. Crime Victim and Witness Rights Act.

Sec.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 19 Trial Procedure. § 19.02 Order of Procedure at Trial. Friend.

Virginia Forms (Matthew Bender). No. 9-2207. Request for Confidentiality by Crime Victim. No. 9-2208. Request for Confidentiality by Crime Victim (Spanish).

§ 19.2-11.01. Crime victim and witness rights.

  1. 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.
      1. 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.
      2. 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.
      1. 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.
      2. 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 .
      3. 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.
      1. 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.
      2. 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.
      3. 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.
      4. 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.
      5. 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 .
      6. 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.).
      7. 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.
      1. 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.
      2. 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 .
      3. On motion of the attorney for the Commonwealth, victims shall be given the opportunity, pursuant to § 19.2-295.3 , to testify prior to sentencing of a defendant regarding the impact of the offense.
      4. 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.
      1. 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.
      2. 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 .
      3. 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.
      1. 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.
      2. 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.
      3. 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.
  2. 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).
  3. 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.

    (1995, c. 687; 1996, c. 546; 1997, c. 691; 1998, c. 485; 1999, cc. 668, 702, 844; 2000, cc. 272, 827; 2001, cc. 410, 530, 549; 2002, cc. 310, 810, 818; 2003, cc. 103, 751, 764; 2006, c. 241; 2007, cc. 94, 109, 423; 2014, c. 230; 2017, c. 535; 2018, cc. 47, 83; 2019, c. 216; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to a victim of crime or a representative of a crime victims' organization serving as a member on the Criminal Justice Services Board, see § 9.1-108 .

Editor's note. - Acts 2001, c. 410, cl. 2, provides: "That the provisions of this act shall not be construed so as to require the installation of permanent two-way closed-circuit television equipment in any courtroom in the Commonwealth."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendments. - The 1999 amendment by c. 668, in subdivision 5 c, substituted "was fourteen" for "is twelve," and inserted "on the date of the offense and is sixteen or under at the time of the trial."

The 1999 amendment by c. 702 added the second paragraph in subsection A.

The 1999 amendment by c. 844, deleted "unless excluded by the court as a material witness" in subsection A 4 b, and substituted "clause" for "subdivision" near the end of subsection B.

The 2000 amendments. - The 2000 amendment by c. 272 substituted "this title" for "title 19.2" in subdivisions A 2 a and A 2 c; and in subsection B, inserted "sibling" twice.

The 2000 amendment by c. 827 substituted "this title" for "title 19.2" in subdivisions A 2 a and A 2 c; added present subdivision A 3 c; and redesignated former subdivisions A 3 c and A 3 d as present subdivisions A 3 d and A 3 e, respectively.

The 2001 amendments. - The 2001 amendment by c. 410, in subdivision A 5 c, inserted "and witnesses," and inserted "or a witness to the offense is fourteen years of age or younger at the time of the trial, that."

The 2001 amendment by cc. 530 and 549 are virtually identical, and added subdivision A 4 d, and deleted "of this subsection" at the end of subsection B. Chapter 549 includes the phrase "failure to appear at trial when subpoenaed" near the end of the first paragraph of subdivision A 4 d, which phrase does not occur in c. 530.

The 2002 amendments. - The 2002 amendment by c. 310 substituted " § 18.2-57 " for " §§ 18.2-57 , 18.2-57.1 " in subsection B.

The 2002 amendments by cc. 810 and 818 are identical, and added "including verification that the standardized form listing the specific rights afforded to crime victims has been received by the victim" at the end of the first paragraph of subsection A; and added the second sentence in subdivision A 3 e.

The 2003 amendments. - The 2003 amendment by c. 103, in the second paragraph of subsection A, in the first sentence, substituted "As soon as practicable after identifying a victim of" for "Following," inserted "the investigating" preceding "law-enforcement" and substituted "agency" for "personnel" thereafter, and at the end of the last sentence, inserted "the name, address and telephone number of the office of the attorney for the Commonwealth, and the name, address and telephone number of the investigating law-enforcement agency"; inserted "and that does not place the victim in close proximity to the defendant or the defendant's family" at the end of subdivision A 1 b; in clause (ii) of the first sentence of paragraph A 4 d, inserted "about the disposition of the case, including the victim's views concerning dismissal, pleas," and inserted "and sentencing" at the end; in subdivision A 5 c, twice substituted "14" for "fourteen," and substituted "16" for "sixteen"; and added subdivision A 6.

The 2003 amendments by cc. 751 and 764 are virtually identical, and substituted "14" for "fourteen" twice and "16" for "sixteen" in subdivision A 5 c; and in subsection B, deleted "or" at the end of clause (iii), inserted present clause (iv), and redesignated former clause (iv) as present clause (v).

The 2006 amendments. - The 2006 amendment by c. 241, in subdivision A 3 d, inserted the clause (i) designation and "or (ii) when an accused is released on bail."

The 2007 amendments. - The 2007 amendments by cc. 94 and 109 are identical, and added the last sentence in subdivision A 3 d.

The 2007 amendment by c. 423 in the second paragraph of subsection A, deleted "and" preceding "the name," and inserted "and a summary of the victim's rights under § 40.1-28.7:2 " at the end.

The 2014 amendments. - The 2014 amendment by c. 230, in subsection B, inserted "(a)," substituted "(b)" for "or of," inserted "a violation of a protective order in violation of § 16.1-253.2 or 18.2-60.4 " and "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," deleted "of this section" following "subdivision A 4," and made minor stylistic changes.

The 2017 amendments. - The 2017 amendment by c. 535 added subdivision A 3 f.

The 2018 amendments. - The 2018 amendments by cc. 47 and 83 are identical, and substituted "addresses, any telephone numbers, and email addresses" for "addresses and telephone numbers" in subdivision A 5 a.

The 2019 amendments. - The 2019 amendment by c. 216 added subdivision A 3 g; and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted " § 19.2-295.3 " for " §§ 19.2-264.4 and 19.2-295.3 " in subdivision A 4 c.

Law review. - For 1995 survey of legal issues involving children, see 29 U. Rich. L. Rev. 1117 (1995).

For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For annual survey of Virginia labor and employment law, see 40 U. Rich. L. Rev. 241 (2005).

For article, "Prosecutorial Power: A Transnational Symposium: The Worldwide Accountability Deficit for Prosecutors," see 67 Wash & Lee L. Rev. 1587 (2010).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 38, 80; 20 M.J. Witnesses, § 35.

CASE NOTES

The statutes do not limit evidence of victim impact to that received from the victim's family members; rather, the circumstances of the individual case will dictate what evidence will be necessary and relevant, and from what sources it may be drawn. Beck v. Commonwealth, 253 Va. 373 , 484 S.E.2d 898, cert. denied, 522 U.S. 1018, 118 S. Ct. 608, 139 L. Ed. 2d 495 (1997).

Relevant statutes, including this section, did not limit the evidence of victim impact to that received from the victim's family members since the circumstance of the individual case dictated what victim impact evidence would be relevant and necessary, and from what source it would be drawn; thus, victim impact statements from the victim's cousin and fiance were admissible at sentencing phase on defendant's capital murder conviction. Thomas v. Commonwealth, 263 Va. 216 , 559 S.E.2d 652, 2002 Va. LEXIS 27 (2002).

Former girlfriend's psychological harm was the "direct result" of the felonies committed by defendant during a home intrusion, and the victim impact statement of the girlfriend was properly included in the pre-sentence report under subsection B of § 19.2-11.01 and § 19.2-299.1 as the goal of the home intrusion of the girlfriend's sibling was to force the girlfriend to come to that home and bring their child so that defendant could "blow her head off" with a shotgun defendant possessed; the girlfriend clearly suffered "psychological" harm as she "was scared to death" and "was waiting in horror to hear what happened" to her sibling and the sibling's family. Myers v. Commonwealth, No. 0986-07-3, 2008 Va. App. LEXIS 385 (Aug. 12, 2008).

Family member statements were properly admitted since the murder was determined to be a direct consequence of the conspiracy to commit robbery. - Since it could not be said that the trial court was plainly wrong when it determined that a murder was a direct consequence of a conspiracy to commit a robbery, the victim impact testimony was properly admitted even though defendant was acquitted of the murder. Furthermore, the admissibility of the victim impact testimony was relevant and within the sound discretion of the trial court even if the witnesses were not deemed "victims" under subsection B of § 19.2-11.01 . Rock v. Commonwealth, 45 Va. App. 254, 610 S.E.2d 314, 2005 Va. App. LEXIS 107 (2005).

Relevant evidence not limited by statute. - There is no sound reason why relevant victim impact testimony that may be considered by a jury in a capital case should not likewise be considered in a noncapital case, §§ 19.2-295.3 and 19.2-11.01 (B) do not limit the admission of relevant evidence. Rock v. Commonwealth, 45 Va. App. 254, 610 S.E.2d 314, 2005 Va. App. LEXIS 107 (2005).

No abuse of discretion in allowing victim witness to stay in courtroom. - Circuit court did not abuse its discretion under § 19.2-265.01 by allowing a murder victim's son, who was a victim within the meaning of subsection B of § 19.2-11.01 , to remain in the courtroom after he testified during the guilt phase of the trial because the circuit court correctly concluded that the victim's son did not learn anything while he was present in the court that would have changed or affected his victim impact testimony during the penalty phase, and, thus, defendant was not prejudiced by the fact that the son testified during the penalty phase after having heard much of the testimony during the guilt phase. Jackson v. Commonwealth, 267 Va. 178 , 590 S.E.2d 520, 2004 Va. LEXIS 8 (2004), cert. denied, 543 U.S. 891, 125 S. Ct. 168, 160 L. Ed. 2d 155 (2004).

Because defendant provided no specific reason for finding that a victim witness's presence in the courtroom during the testimony of other witnesses would impair the fairness of the trial, the trial court did not abuse its discretion by allowing the victim witness to remain in the courtroom. Hernandez-Guerrero v. Commonwealth, 46 Va. App. 366, 617 S.E.2d 410, 2005 Va. App. LEXIS 311 (2005).

Circuit court properly found a probationer in violation of his probation, as testimony from a victim-witness in a city prosecution, which was underlying basis for the issuance of a capias in the revocation matter, was relevant; and further, that witness was exempt from sequestration, as she could not have shaped her testimony to correspond to the contents of the probationer's letter to the judge or the testimony of the probation officer. Osborne v. Commonwealth, No. 2358-04-3, 2005 Va. App. LEXIS 376 (Oct. 4, 2005).

Relevance of victim impact testimony in capital case. - Trial court did not err in refusing to allow defendant to call the father of one of the decedents as a witness to testify about remarks attributed to him by the news media to the effect that as a Christian he could not hope that jurors imposed the death penalty because the testimony did not fall within the scope of victim impact testimony authorized under § 19.2-299.1 and witness opinion on what the jury should decide as the appropriate sentence in a given case was not admissible. Juniper v. Commonwealth, 271 Va. 362 , 626 S.E.2d 383, 2006 Va. LEXIS 29 (2006), habeas corpus proceeding, 2010 Va. Cir. LEXIS 201 (2010); habeas corpus dismissed, 281 Va. 277 , 707 S.E.2d 290, 2011 Va. LEXIS 61 (2011).

With regard to defendant's convictions on two capital murder counts and the imposition of two death sentences against him, the trial court did not abuse its discretion in refusing to grant a mistrial or bar subsequent testimony from the sister of one of the murder/rape victims because no reasonable juror could conclude from the sister's testimony that she was attempting to implicate defendant in her own rape that occurred years prior in any way and the trial judge promptly, explicitly and carefully instructed the jury to disregard the inappropriate testimony that the sister made that her rapist "got away with it." Prieto v. Commonwealth, 283 Va. 149 , 721 S.E.2d 484, 2012 Va. LEXIS 20 (2012), cert. denied, 133 S. Ct. 244, 2012 U.S. LEXIS 6641, 184 L. Ed. 2d 129 (U.S. 2012).

Evidence admissible during Commonwealth's case-in-chief. - Pursuant to § 19.2-295.3 , the victim was properly permitted to testify during the Commonwealth's case-in-chief of the sentencing phase of defendant's rape trial; the victim had a qualified, statutorily protected right to be heard at sentencing, and it was within the trial judge's ultimate discretion to decide when the victim would be heard on motion of the Commonwealth. Washington v. Commonwealth, 48 Va. App. 486, 632 S.E.2d 625, 2006 Va. App. LEXIS 349 (2006).

Presence of victim held not prejudicial. - Under version of §§ 19.2-11.01 and 19.2-265.01 in effect prior to July 1, 1999, defendant failed to show any prejudice resulting from the trial court's decision permitting rape victim to remain in the courtroom during malicious wounding victim's testimony; while rape victim heard malicious wounding victim's testimony, his testimony addressed the malicious wounding charge and concerned his actions prior to the time when defendant and rape victim went into the bedroom; rape victim's testimony was not influenced by malicious wounding victim's, since her testimony did not mirror his testimony; defendant's defense to the rape charge was that rape victim consented to the intercourse; and malicious wounding victim's testimony did not address the issue of whether she consented to the intercourse. Hague v. Commonwealth, No. 1274-99-2, 2000 Va. App. LEXIS 390 (Ct. of Appeals May 23, 2000).

CIRCUIT COURT OPINIONS

Victim's right of advance notification. - Dismissal of case based on non-appearance of victim, after the Attorney for the Commonwealth of Virginia determined not to participate in the prosecution, was inappropriate when the victim was never notified of the trial date by the Commonwealth's Attorney because the victim was not required to specifically request advance notification of judicial proceedings and the Commonwealth's Attorney was required to provide the victim advance notification as the victim provided the victim's name, address, and phone number to the police department. Defendant's Motion to Dismiss v. Chastain,, 2021 Va. Cir. LEXIS 16 (Fairfax County Jan. 29, 2021).

OPINIONS OF THE ATTORNEY GENERAL

Computerized system to notify crime victims could not be used for inmates who were juveniles when crimes were committed. - Because the statutes relating to rights of victims involved in juvenile matters contained in Chapter 11 of Title 16.1 control over the general statutes relating to rights of victims as set forth in the Crime Victim and Witness Rights Act, a computerized system by which registered crime victims would be updated with information regarding future court dates, transfers, and releases of active inmates incarcerated in the city jail could not be used to provide information to victims in cases where the inmate was a juvenile when the crime was committed. See opinion of Attorney General to The Honorable Robert J. McCabe, Sheriff for the City of Norfolk, 01-058 (12/17/01).

§ 19.2-11.02. Prohibiting inquiry into the immigration status of certain victims or witnesses of crime.

  1. No law-enforcement officer, as defined in § 9.1-101 , shall, in connection with the report, investigation, or prosecution of a criminal violation of state or local law, inquire into the immigration status of any person who (i) reports that he is a victim of the crime or is the parent or guardian of a minor victim of the crime or (ii) is a witness in the investigation of the crime or the parent or guardian of a minor witness to the crime.
  2. Nothing in this section shall prohibit a law-enforcement officer from inquiring into the immigration status of the parent or guardian of a minor victim if such parent or guardian has been arrested for, has been charged with, or is being investigated for a crime against the minor victim.
  3. Nothing in this section shall affect the enforcement or implementation of § 18.2-59 , subdivision 10 of § 18.2-308.09 , or subdivision B 1 of § 18.2-308.2:2 , or prohibit a law-enforcement officer from inquiring into a person's immigration status to enforce or implement such sections. (2020, c. 273.)

§ 19.2-11.1. Establishment of crime victim-witness assistance programs; funding; minimum standards.

Any local governmental body which establishes, operates and maintains a crime victim and witness assistance program, whose funding is provided in whole or part by grants administered by the Department of Criminal Justice Services pursuant to § 9.1-104 , shall operate the program in accordance with guidelines which shall be established by the Department to implement the provisions of this chapter and other applicable laws establishing victims' rights.

(1988, c. 542; 1994, cc. 361, 598; 1995, c. 687; 1996, c. 545.)

Editor's note. - At the direction of the Code Commission, Acts 1994, c. 361, which amended this section, was not given effect due to a conflict. The amendment added a subdivision 10 similar to that added by Acts 1994, c. 598. The subdivisions were subsequently deleted by Acts 1995, c. 687, which enacted § 19.2-11.01 .

§ 19.2-11.2. Crime victim's right to nondisclosure of certain information; exceptions; testimonial privilege.

Upon request of any witness in a criminal prosecution under § 18.2-46.2 , 18.2-46.3 , or 18.2-248 or of any violent felony as defined by subsection C of § 17.1-805 , or any crime victim, neither a law-enforcement agency, the attorney for the Commonwealth, the counsel for a defendant, a court nor the Department of Corrections, nor any employee of any of them, may disclose, except among themselves, the residential address, any telephone number, email address, or place of employment of the witness or victim or a member of the witness' or victim's family, except to the extent that disclosure is (i) of the site of the crime, (ii) required by law or Rules of the Supreme Court, (iii) necessary for law-enforcement purposes or preparation for court proceedings, or (iv) permitted by the court for good cause.

Except with the written consent of the victim of any crime involving any sexual assault, sexual abuse, or family abuse or the victim's next of kin if the victim is a minor and the victim's death results from any crime, a law-enforcement agency may not disclose to the public information that directly or indirectly identifies the victim of such crime except to the extent that disclosure is (a) of the site of the crime, (b) required by law, (c) necessary for law-enforcement purposes, or (d) permitted by the court for good cause. In addition, at the request of the victim to the Court of Appeals of Virginia or the Supreme Court of Virginia hearing, on or after July 1, 2007, the case of a crime involving any sexual assault or sexual abuse, no appellate decision shall contain the first or last name of the victim.

Nothing herein shall limit the right to examine witnesses in a court of law or otherwise affect the conduct of any criminal proceeding.

(1994, cc. 845, 931; 2002, cc. 810, 818; 2005, cc. 764, 813; 2007, c. 503; 2014, c. 744; 2017, c. 500; 2018, cc. 47, 83.)

Cross references. - As to limitations on the release of criminal incident information, see § 2.2-3706.1 .

As to nondisclosure of victim's name in the cold case searchable database, see § 52-34.16 .

Editor's note. - Acts 2005, cc. 764 and 813, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 810 and 818 are identical, and substituted "sexual abuse or family abuse" for "or abuse" in the second paragraph.

The 2005 amendments. - The 2005 amendments by cc. 764 and 813 are identical, and in the first paragraph, inserted "witness in a criminal prosecution under § 18.2-46.2 or 18.2-46.3 , or any," "the counsel for a defendant," "witness or" in two places, and "or preparation for court proceedings."

The 2007 amendments. - The 2007 amendment by c. 503 added the last sentence in the second paragraph.

The 2014 amendments. - The 2014 amendment by c. 744 in the first paragraph inserted "or 18.2-248 or of any violent felony as defined by subsection C of § 17.1-805 ."

The 2017 amendments. - The 2017 amendment by c. 500, in the second paragraph, inserted "of any crime involving any sexual assault, sexual abuse, or family abuse or the victim's next of kin if the victim is a minor and the victim's death results from any crime," substituted "of such crime" for "of a crime involving any sexual assault, sexual abuse or family abuse," and redesignated clauses (i) through (iv) as clauses (a) through (d).

The 2018 amendments. - The 2018 amendments by cc. 47 and 83 are identical, and substituted "any telephone number, email address" for "telephone number" in the first paragraph.

§ 19.2-11.3. Virginia Crime Victim-Witness Fund.

There is hereby established the Virginia Crime Victim-Witness Fund as a special nonreverting fund to be administered by the Department of Criminal Justice Services to support victim and witness services that meet the minimum standards prescribed for such programs under § 19.2-11.1 . A portion of the sum collected pursuant to §§ 16.1-69.48:1, 17.1-275.1 , 17.1-275.2 , 17.1-275.3 , 17.1-275.4 , 17.1-275.7 , 17.1-275.8 , and 17.1-275.9 , as specified in these sections, shall be deposited into the state treasury to the credit of this Fund. The Fund shall be distributed according to grant procedures adopted pursuant to § 9.1-104 and shall be established on the books of the Comptroller. Any funds remaining in such Fund at the end of the biennium shall not revert to the general fund, but shall remain in the Fund. Interest earned on the Fund shall be credited to the Fund.

(1995, c. 371; 2002, c. 831.)

The 2002 amendments. - The 2002 amendment by c. 831, effective July 1, 2003, substituted "A portion of the sum collected pursuant to §§ 16.1-69.48:1, 17.1-275.1 , 17.1-275.2 , 17.1-275.3 , 17.1-275.4 , 17.1-275.7 , 17.1-275.8 , and 17.1-275.9 , as specified in these sections" for "Three dollars collected pursuant to subdivisions A 10 and A 11 of § 17.1-275 and to subdivision A 1 of § 16.1-69.48:1" in the second sentence.

§ 19.2-11.4. Establishment of victim-offender reconciliation program.

  1. Any Crime Victim and Witness Assistance Program may establish a victim-offender reconciliation program to provide an opportunity after conviction for a victim, at his request and upon the subsequent agreement of the offender, to:
    1. Meet with the offender in a safe, controlled environment in accordance with the policies established pursuant to subsection B of § 53.1-30 ;
    2. Give to the offender, either orally or in writing, a summary of the financial, emotional, and physical effects of the offense on the victim or the victim's family; and
    3. Discuss a proposed restitution agreement which may be submitted for consideration by the sentencing court for damages incurred by the victim as a result of the offense.
  2. If the victim chooses to participate in a victim-offender reconciliation program under this section, the victim shall execute a waiver releasing the Crime Victim and Witness Assistance Program, attorney for the offender and the attorney for the Commonwealth from civil and criminal liability for actions taken by the victim or offender as a result of participation by the victim or the offender in a victim-offender reconciliation program.
  3. A victim shall not be required to participate in a victim-offender reconciliation program under this section.
  4. The failure of any person to participate in a reconciliation program pursuant to this section shall not be used directly or indirectly at sentencing.

    (1995, c. 628; 2010, c. 844.)

The number of this section was assigned by the Code Commission, the section number in the 1995 act having been § 19.2-11.3 .

The 2010 amendments. - The 2010 amendment by c. 844 added "in accordance with the policies established pursuant to subsection B of § 53.1-30 " in subdivision A 1.

Chapter 1.2. Physical Evidence Recovery Kits.

Sec.

§ 19.2-11.5. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Anonymous physical evidence recovery kit" means a physical evidence recovery kit that is collected from a victim of sexual assault through a forensic medical examination where the victim elects, at the time of the examination, not to report the sexual assault offense to a law-enforcement agency.

"Department" means the Virginia Department of Forensic Science.

"Division" means the Division of Consolidated Laboratory Services of the Virginia Department of General Services.

"Health care provider" means any hospital, clinic, or other medical facility that provides forensic medical examinations to victims of sexual assault.

"Law-enforcement agency" means the state or local law-enforcement agency with the primary responsibility for investigating an alleged sexual assault offense case and includes the employees of that agency.

"Physical evidence recovery kit" means any evidence collection kit supplied by the Department to health care providers for use in collecting evidence from victims of sexual assault during forensic medical examinations or to the Office of the Chief Medical Examiner for use during death investigations to collect evidence from decedents who may be victims of sexual assault.

"Sexual assault offense" means a violation or attempted violation of any offense enumerated in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 or of any offense specified in § 18.2-361 , 18.2-370 , or 18.2-370 .1.

"Victim of sexual assault" means any person who undergoes a forensic medical examination for the collection of a physical evidence recovery kit connected to a sexual assault offense.

(2016, cc. 332, 698.)

Cross references. - As to services for survivors of sexual assault, generally, see § 32.1-162.15:2 et seq.

§ 19.2-11.6. Anonymous physical evidence recovery kits.

  1. When a victim of sexual assault who undergoes a forensic medical examination elects not to report the offense to law enforcement, the health care provider shall inform the victim that the physical evidence recovery kit shall be forwarded to the Division for storage as an anonymous physical evidence recovery kit. The health care provider shall further inform the victim of the length of time the anonymous physical evidence recovery kit will be stored by the Division, the victim's right to object to the destruction of the anonymous physical evidence recovery kit, and how the victim can have the anonymous physical evidence recovery kit released to a law-enforcement agency at a later date. The health care provider shall forward the anonymous physical evidence recovery kit to the Division in accordance with the policies and procedures established by the Division.
  2. The Division shall store any anonymous physical evidence recovery kit received for a minimum of two years. The Division shall store the anonymous physical evidence recovery kit for an additional period of 10 years following the receipt of a written objection to the destruction of the anonymous physical evidence recovery kit from the victim. After the initial two years or any additional 10-year storage period, the Division, in the absence of the receipt of a written objection from the victim in the most recent 10-year period, may destroy the anonymous physical evidence recovery kit or, in its discretion or upon request of the victim or the law-enforcement agency, may elect to retain the anonymous physical evidence recovery kit for a longer period of time. Upon notification from either the law-enforcement agency or the attorney for the Commonwealth that the victim has elected to report the offense to the law-enforcement agency, the Division shall release the anonymous physical evidence recovery kit to the law-enforcement agency.

    (2016, cc. 332, 698; 2017, c. 535.)

Cross references. - As to storage, retention, and dissemination of photographic documentation by, and submission of evidence by, treatment hospitals, see §§ 32.1-162.15:8 , 32.1-162.15:9 .

The 2017 amendments. - The 2017 amendment by c. 535 inserted "the victim's right to object to the destruction of the anonymous physical evidence recovery kit" in the second sentence; in subsection B, inserted the second sentence, substituted "After the initial two years or any additional 10-year storage period, the Division, in the absence of the receipt of a written objection from the victim in the most recent 10-year period" for "After two years, the Division" in the third sentence.

§ 19.2-11.7. Law enforcement taking possession of physical evidence recovery kits.

  1. A health care provider that has collected a physical evidence recovery kit from a victim of sexual assault who has elected to report the offense shall forthwith notify the law-enforcement agency that such kit has been collected.
  2. A law-enforcement agency that receives notice from a health care provider that a physical evidence recovery kit has been collected shall forthwith take possession of the physical evidence recovery kit.

    (2016, cc. 332, 698.)

§ 19.2-11.8. Submission of physical evidence recovery kits to the Department.

  1. A law-enforcement agency that receives a physical evidence recovery kit shall submit the physical evidence recovery kit to the Department for analysis within 60 days of receipt, except under the following circumstances: (i) it is an anonymous physical evidence recovery kit that shall be forwarded to the Division for storage; (ii) the physical evidence recovery kit was collected by the Office of the Chief Medical Examiner as part of a routine death investigation, and the medical examiner and the law-enforcement agency agree that analysis is not warranted; (iii) the physical evidence recovery kit is connected to an offense that occurred outside of the Commonwealth; (iv) the physical evidence recovery kit was determined by the law-enforcement agency not to be connected to a criminal offense; or (v) another law-enforcement agency has taken over responsibility for the investigation related to the physical evidence recovery kit.
  2. Upon completion of analysis, the Department shall return the physical evidence recovery kit to the submitting law-enforcement agency. Upon receipt of the physical evidence recovery kit from the Department, the law-enforcement agency shall store the physical evidence recovery kit for a period of 10 years or until 10 years after the victim reaches the age of majority if the victim was a minor at the time of collection, whichever is longer. The law-enforcement agency shall store the physical evidence recovery kit for a period of 10 years following the receipt of a written objection to the destruction of the kit from the victim. After the mandatory retention period or any additional 10-year storage period has lapsed, the law-enforcement agency shall, unless the victim has made a written request not to be contacted for this purpose, make a reasonable effort to notify the victim of the intended destruction of the physical evidence recovery kit no less than 60 days prior to the intended date of such destruction. In the absence of a response from the victim, or with the consent of the victim, the law-enforcement agency may destroy the physical evidence recovery kit or, in its discretion, may elect to retain the physical evidence recovery kit for a longer period of time.
  3. The DNA profiles developed from physical evidence recovery kits submitted to the Department for analysis pursuant to this section shall be uploaded into any local, state, or national DNA data bank only if eligible as determined by Department procedures and in accordance with state and federal law.

    (2016, cc. 332, 698; 2017, c. 535; 2018, c. 398.)

The 2017 amendments. - The 2017 amendment by c. 535 in subsection B, substituted "10 years after" for "two years after" in the second sentence, inserted the third sentence, added "shall, unless the victim has made a written request not to be contacted for this purpose, make a reasonable effort to notify the victim of the intended destruction of the physical evidence recovery kit no less than 60 days prior to the intended date of such destruction" in the fourth sentence, and inserted "In the absence of a response from the victim, or with the consent of the victim, the law-enforcement agency" in the last sentence.

The 2018 amendments. - The 2018 amendment by c. 398 added clause (v) in subsection A and made related changes.

§ 19.2-11.9. Lack of compliance with procedures.

The failure of a law-enforcement agency to take possession of a physical evidence recovery kit as provided in this chapter or to submit a physical evidence recovery kit to the Department within the time period prescribed under this chapter does not alter the authority of the law-enforcement agency to take possession of the physical evidence recovery kit or to submit the physical evidence recovery kit to the Department under this chapter or the authority of the Department to accept and analyze the physical evidence recovery kit or to maintain or upload any developed DNA profiles from the physical evidence recovery kit into any local, state, or national DNA data bank if eligible as determined by Department procedures and in accordance with state and federal law.

A person accused or convicted of committing a crime against a sexual assault victim has no standing to object to any failure to comply with the requirements of this chapter, and the failure to comply with the requirements of this chapter is not grounds for challenging the admissibility of the evidence or setting aside the conviction or sentence.

(2016, cc. 332, 698.)

§ 19.2-11.10. Expungement of DNA profile.

If the Department receives written confirmation from a law-enforcement agency or attorney for the Commonwealth that a DNA profile that has been uploaded pursuant to this chapter into any local, state, or national DNA data bank was determined not to be connected to a criminal offense or that the DNA profile is of an individual who is not the putative perpetrator, the Department shall expunge the DNA profile from the DNA data bank.

The detention, arrest, or conviction of a person based upon a data bank match or data bank information is not invalidated if it is determined that the sample was obtained, placed, or retained in the data bank in good faith pursuant to this chapter, and evidence based upon or derived from the DNA record shall not be excluded by a court.

(2016, cc. 332, 698.)

§ 19.2-11.11. Victim's right to notification of scientific analysis information.

  1. In addition to the rights provided under Chapter 1.1 (§ 19.2-11.01 et seq.), a victim of sexual assault, a parent or guardian of a victim of a sexual assault who was a minor at the time of the offense, or the next of kin of a deceased victim of sexual assault shall have the right to request and receive information from the law-enforcement agency regarding (i) the submission of any physical evidence recovery kit for forensic analysis that was collected from the victim during the investigation of the offense; (ii) the status of any analysis being performed on any evidence that was collected during the investigation of the offense; (iii) the results of any analysis; and (iv) the time frame for how long the kit will be held in storage and the victim's rights regarding such storage, unless disclosing this information would interfere with the investigation or prosecution of the offense, in which case the victim, parent, guardian, or next of kin shall be informed of the estimated date on which the information may be disclosed, if known.
  2. In the case of a physical evidence recovery kit that was received by a law-enforcement agency prior to July 1, 2016, and that has subsequently been submitted for analysis, the victim, a parent or guardian of a minor victim, or the next of kin of a deceased victim shall be notified by the law-enforcement agency of the completion of the analysis and shall, upon request, receive information from the law-enforcement agency regarding the results of any analysis, unless disclosing this information would interfere with the investigation or prosecution of the offense, in which case the victim, parent, guardian, or next of kin shall be informed of the estimated date on which the information may be disclosed, if known. A good faith attempt to locate the victim, a parent or guardian of a minor victim, or the next of kin of a deceased victim shall be made if a current address for the victim, a parent or guardian of a minor victim, or the next of kin of a deceased victim is unavailable.
  3. The victim, parent, guardian, or next of kin who requests to be notified under subsection A shall provide a current address and telephone number to the attorney for the Commonwealth and to the law-enforcement agency that is investigating the offense and keep such information updated.

    The victim, parent, guardian, or next of kin who requests to be notified under subsection B may provide a current address and telephone number to the attorney for the Commonwealth and to the law-enforcement agency that is investigating the offense and keep such information updated.

  4. Nothing contained in this section shall require a law-enforcement agency to disclose any information regarding the results of any analysis to a parent or guardian of a minor victim or to the next of kin of a deceased victim if such parent, guardian, or next of kin is the alleged perpetrator of the offense.

    (2016, cc. 332, 698; 2017, cc. 535, 672.)

The 2017 amendments. - The 2017 amendment by c. 535 inserted "(iv) the time frame for how long the kit will be held in storage and the victim's rights regarding such storage" and made related changes.

The 2017 amendment by c. 672, in subsection A, substituted "the next of kin" for "close relative"; added subsection B; in subsection C, substituted "shall" for "must" and added the last paragraph; added subsection D; and made stylistic changes.

§ 19.2-11.12. Costs of physical evidence recovery kits.

No victim of sexual assault shall be charged for the cost of collecting or storing a physical evidence recovery kit or an anonymous physical evidence recovery kit.

(2017, c. 535.)

§ 19.2-11.13. Physical Evidence Recovery Kit Tracking System.

  1. The Department shall maintain a statewide electronic tracking system for physical evidence recovery kits. The Physical Evidence Recovery Kit Tracking System (the System) will utilize an assigned unique identification number to track each physical evidence recovery kit from its distribution as an uncollected kit to the health care provider through to its destruction. The Department shall ensure that each physical evidence recovery kit is assigned a unique identification number.
  2. The Department shall provide access to the System to health care providers, law-enforcement agencies, the Division, and the Office of the Chief Medical Examiner. All such entities and agencies shall be required to enter the identification number and other information pertaining to the kits in the System as required by the Department and to update the status and location of each kit in the System whenever such status or location changes.
  3. The health care provider shall inform the victim of sexual assault of the unique identification number assigned to the physical evidence recovery kit utilized by the health care provider during the forensic medical examination and provide the victim with information regarding the System.
  4. Records entered into the System are confidential and are not subject to disclosure under the Freedom of Information Act (§ 2.2-3700 et seq.). (2019, c. 473.)

Editor's note. - Acts 2019, c. 473, cl. 2 provides: "That the provisions of this act shall become effective on July 1, 2020."

Acts 2019, c. 473, cl. 3 provides: "That information about the use of the Physical Evidence Recovery Kit Tracking System shall be reported in the Forensic Science Board's annual report that is submitted by November 1 of each year in accordance with subsection B of § 9.1-1110 of the Code of Virginia."

Law review. - For article, "Criminal Law and Procedure," see 54 U. Rich. L. Rev. 31 (2019).

Chapter 2. Conservators of the Peace and Special Policemen.

Appointment.

Powers and Duties.

Appeals.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 4; 2C M.J. Bail and Recognizance, § 8; 3A M.J. Breach of the Peace, § 6; 4C M.J. Constitutional Law, § 141; 14A M.J. Notary Public, § 3.

Article 1. Appointment.

§ 19.2-12. Who are conservators of the peace.

Every judge and attorney for the Commonwealth throughout the Commonwealth and every magistrate within the geographical area for which he is appointed or elected, shall be a conservator of the peace. In addition, every commissioner in chancery, while sitting as such commissioner; any special agent or law-enforcement officer of the United States Department of Justice, National Marine Fisheries Service of the United States Department of Commerce, Department of Treasury, Department of Agriculture, Department of Defense, Department of State, Office of the Inspector General of the Department of Transportation, Department of Homeland Security, and Department of Interior; any inspector, law-enforcement official or police personnel of the United States Postal Service; any United States marshal or deputy United States marshal whose duties involve the enforcement of the criminal laws of the United States; any officer of the Virginia Marine Police; any criminal investigator of the Department of Professional and Occupational Regulation, who meets the minimum law-enforcement training requirements established by the Department of Criminal Justice Services for in-service training; any criminal investigator of the United States Department of Labor; any special agent of the United States Naval Criminal Investigative Service, any special agent of the National Aeronautics and Space Administration, and any sworn municipal park ranger, who has completed all requirements under § 15.2-1706 ; any investigator employed by an attorney for the Commonwealth, who within 10 years immediately prior to being employed by the attorney for the Commonwealth was an active law-enforcement officer as defined in § 9.1-101 in the Commonwealth and retired or resigned from his position as a law-enforcement officer in good standing, shall be a conservator of the peace, while engaged in the performance of their official duties.

(Code 1950, § 19.1-20; 1960, c. 366; 1968, c. 639; 1972, c. 549; 1975, c. 495; 1978, c. 697; 1981, cc. 572, 587; 1990, c. 558; 1991, cc. 74, 338; 1994, cc. 375, 569, 626; 1997, c. 34; 2001, cc. 3, 31; 2002, cc. 86, 605, 789; 2004, c. 1009; 2005, c. 372; 2006, c. 88; 2007, c. 224; 2015, cc. 75, 126; 2017, c. 674.)

Cross references. - As to inclusion of special conservators of the peace or special policemen in definition of "Criminal Justice Agency" under Chapter 9.1, see § 9.1-101 .

The 2001 amendments. - The 2001 amendment by cc. 3 and 31 are identical, and inserted "Department of Defense" following "Department of Agriculture," deleted "and" following "Postal Inspection Service," and made minor punctuation changes.

The 2002 amendments. - The 2002 amendment by c. 86 inserted "Office of the Inspector General of the Department of Transportation" in the second sentence.

The 2002 amendments. - The 2002 amendment by c. 605, effective July 1, 2003, inserted "any criminal investigator of the Department of Professional and Occupational Regulation. . . for in-service training" in the second sentence.

The 2002 amendment by c. 789 substituted "Virginia Marine Police" for "Virginia Marine Patrol" in the second sentence.

The 2004 amendments. - The 2004 amendment by c. 1009 inserted "Department of Homeland Security."

The 2005 amendments. - The 2005 amendment by c. 372 inserted "and attorney for the Commonwealth" in the first sentence.

The 2006 amendments. - The 2006 amendment by c. 88, in the last sentence, inserted "and any special agent of the National Aeronautics and Space Administration" and made a related change.

The 2007 amendments. - The 2007 amendment by c. 224 inserted "and any sworn municipal park ranger, who has completed all requirements under § 15.2-1706 " near the end of the section, and made a related change.

The 2015 amendments. - The 2015 amendments by cc. 75 and 126 are identical, and deleted "Inspection" following "United States Postal."

The 2017 amendments. - The 2017 amendment by c. 674 inserted "any investigator employed by an attorney for the Commonwealth, who within 10 years immediately prior to being employed by the attorney for the Commonwealth was an active law-enforcement officer as defined in § 9.1-101 in the Commonwealth and retired or resigned from his position as a law-enforcement officer in good standing" in the last sentence.

CASE NOTES

Commissioner in chancery is conservator of peace only when performing duties of office within his county or corporation. Parker v. Commonwealth, 215 Va. 281 , 208 S.E.2d 757 (1974).

Application of definition to § 18.2-308.1 . - In interpreting § 18.2-308.1 , which contains an exemption from the prohibition on carrying weapons on school grounds for conservators of the peace, the court is bound by the statutory definition of "conservator of the peace" adopted by the legislature and codified in this section and is not permitted to ignore or rewrite the statute in favor of a broader common-law definition. Frias v. Commonwealth, 34 Va. App. 193, 538 S.E.2d 374, 2000 Va. App. LEXIS 838 (2000).

CIRCUIT COURT OPINIONS

Park ranger. - Park rangers were permitted to exercise the powers of a conservator of the peace when engaged in the performance of their official duties; as a conservator of the peace, a ranger was permitted to make an arrest for a misdemeanor committed in his presence. A ranger's arrest of defendant for driving under the influence based on the ranger's observations of defendant was proper. Commonwealth v. Stickle, 72 Va. Cir. 494, 2007 Va. Cir. LEXIS 154 (Loudoun County 2007).

OPINIONS OF THE ATTORNEY GENERAL

Armed special conservator of the peace for school safety purposes. - Department of Criminal Justice Services cannot issue a temporary registration letter or valid registration document to a special conservator of the peace applicant seeking to possess firearms on school property because special conservators of the peace are not legally authorized to carry firearms on school property. See opinion of Attorney General to Ms. Shannon Dion, Director, Virginia Department of Criminal Justice Services, 18-042, 2018 Va. AG LEXIS 11 (8/28/2018).

§ 19.2-13. Special conservators of the peace; authority; jurisdiction; registration; liability of employers; penalty; report.

  1. Upon the submission of an application, which shall include the results of the background investigation conducted pursuant to subsection C, from (i) any sheriff or chief of police of any county, city, or town; (ii) any corporation authorized to do business in the Commonwealth; (iii) the owner, proprietor, or authorized custodian of any place within the Commonwealth; or (iv) any museum owned and managed by the Commonwealth, a circuit court judge of any county or city shall appoint special conservators of the peace who shall serve as such for such length of time as the court may designate, but not exceeding four years under any one appointment, during which time the court shall retain jurisdiction over the appointment order, upon a showing by the applicant of a necessity for the security of property or the peace and presentation of evidence that the person or persons to be appointed as a special conservator of the peace possess a valid registration issued by the Department of Criminal Justice Services in accordance with the provisions of subsection C. Upon an application made pursuant to clause (ii), (iii), or (iv), the court shall, prior to entering the order of appointment, transmit a copy of the application to the local attorney for the Commonwealth and the local sheriff or chief of police who may submit to the court a sworn, written statement indicating whether the order of appointment should be granted. However, a judge may deny the appointment for good cause, and shall state the specific reasons for the denial in writing in the order denying the appointment. A judge also may revoke the appointment order for good cause shown, upon the filing of a sworn petition by the attorney for the Commonwealth, sheriff, or chief of police for any locality in which the special conservator of the peace is authorized to serve or by the Department of Criminal Justice Services. Prior to revocation, a hearing shall be set and the special conservator of the peace shall be given notice and the opportunity to be heard. The judge may temporarily suspend the appointment pending the hearing for good cause shown. A hearing on the petition shall be heard by the court as soon as practicable. If the appointment order is suspended or revoked, the clerk of court shall notify the Department of Criminal Justice Services, the Department of State Police, the applicable local law-enforcement agencies in all cities and counties where the special conservator of the peace is authorized to serve, and the employer of the special conservator of the peace. The order of appointment shall provide that a special conservator of the peace may perform only the duties for which he is qualified by training as established by the Criminal Justice Services Board. The order of appointment shall provide that such duties shall be exercised only within geographical limitations specified by the court, which shall be within the confines of the county, city or town that makes application or on the real property where the corporate applicant is located, or any real property contiguous to such real property, limited, except as provided in subsection F, to the city or county wherein application has been made, and only when such special conservator of the peace is engaged in the performance of his duties as such; however, a court may, in its discretion, specify in the order of appointment additional jurisdictions in which a special conservator of the peace employed by the Shenandoah Valley Regional Airport Commission or the Richmond Metropolitan Transportation Authority may exercise his duties. The order may provide that the special conservator of the peace shall have the authority to make an arrest outside of such geographical limitations if the arrest results from a close pursuit that was initiated when the special conservator of the peace was within the confines of the area wherein he has been authorized to have the powers and authority of a special conservator of the peace; the order shall further delineate a geographical limitation or distance beyond which the special conservator of the peace may not effectuate such an arrest that follows from a close pursuit. The order shall require the special conservator of the peace to comply with the provisions of the United States Constitution and the Constitution of Virginia. The order shall not identify the special conservator of the peace as a law-enforcement officer pursuant to § 9.1-101 . The order may provide, however, that the special conservator of the peace is a "law-enforcement officer" for the purposes of Article 4 (§ 37.2-808 et seq.) of Chapter 8 of Title 37.2 or Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1, but such designation shall not qualify the special conservator of the peace as a "qualified law-enforcement officer" or "qualified retired law-enforcement officer" within the meaning of the federal Law Enforcement Officer Safety Act, 18 U.S.C. § 926(B) et seq., and the order of appointment shall specifically state this. The order may also provide that a special conservator of the peace who has completed the minimum training standards established by the Criminal Justice Services Board, has the authority to affect arrests, using up to the same amount of force as would be allowed to a law-enforcement officer employed by the Commonwealth or any of its political subdivisions when making a lawful arrest. The order shall prohibit blue flashing lights, but upon request and for good cause shown may provide that the special conservator of the peace may use flashing lights and sirens on any vehicle used by the special conservator of the peace when he is in the performance of his duties. Prior to granting an application for appointment, the circuit court shall ensure that the applicant has met the registration requirements established by the Criminal Justice Services Board.
  2. All applications and orders for appointments of special conservators of the peace shall be submitted on forms developed by the Office of the Executive Secretary of the Supreme Court of Virginia in consultation with the Department of Criminal Justice Services and shall specify the duties for which the applicant is qualified. The applications and orders shall specify the geographic limitations consistent with subsection A.
  3. No person shall seek appointment as a special conservator of the peace from a circuit court judge without possessing a valid registration issued by the Department of Criminal Justice Services, except as provided in this section. Applicants for registration may submit an application on or after January 1, 2004. A temporary registration may be issued in accordance with regulations established by the Criminal Justice Services Board while awaiting the results of a state and national fingerprint search. However, no person shall be issued a valid registration or temporary registration until he has (i) complied with, or been exempted from the compulsory minimum training standards as set forth in this section; (ii) submitted his fingerprints on a form provided by the Department to be used for the conduct of a national criminal records search and a Virginia criminal history records search; (iii) submitted the results of a background investigation, performed by any state or local law-enforcement agency, which may, at its discretion, charge a reasonable fee to the applicant and which shall include a review of the applicant's criminal history records and may include a review of the applicant's school records, employment records, or interviews with persons possessing general knowledge of the applicant's character and fitness for such appointment; and (iv) met all other requirements of this article and Board regulations. No person with a criminal conviction for a misdemeanor involving (a) moral turpitude, (b) assault and battery, (c) damage to real or personal property, (d) controlled substances or imitation controlled substances as defined in Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2, (e) prohibited sexual behavior as described in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, or (f) firearms, or any felony, or who is required to register with the Sex Offender and Crimes Against Minors Registry pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, or who is prohibited from possessing, transporting, or purchasing a firearm shall be eligible for registration or appointment as a special conservator of the peace. A special conservator of the peace shall report if he is arrested for, charged with, or convicted of any misdemeanor or felony offense or becomes ineligible for registration or appointment as a special conservator of the peace pursuant to this subsection to the Department of Criminal Justice Services and the chief law-enforcement officer of all localities in which he is authorized to serve within three days of such arrest or of becoming ineligible for registration or appointment as a special conservator of the peace. Any appointment for a special conservator of the peace shall be eligible for suspension and revocation after a hearing pursuant to subsection A if the special conservator of the peace is convicted of any offense listed in this subsection or becomes ineligible for registration or appointment as a special conservator of the peace pursuant to this subsection. All appointments for special conservators of the peace shall become void on September 15, 2004, unless they have obtained a valid registration issued by the Department of Criminal Justice Services.
  4. Each person registered as or seeking registration as a special conservator of the peace shall be covered by evidence of a policy of (i) personal injury liability insurance, as defined in § 38.2-117 ; (ii) property damage liability insurance, as defined in § 38.2-118 ; and (iii) miscellaneous casualty insurance, as defined in subsection B of § 38.2-111 , which includes professional liability insurance that provides coverage for any activity within the scope of the duties of a special conservator of the peace as set forth in this section, in an amount and with coverage for each as fixed by the Board, or self-insurance in an amount and with coverage as fixed by the Board. Any person who is aggrieved by the misconduct of any person registered as a special conservator of the peace and recovers a judgment against the registrant, which is unsatisfied in whole or in part, may bring an action in his own name against the insurance policy of the registrant.
  5. Effective July 1, 2015, all persons currently appointed or seeking appointment or reappointment as a special conservator of the peace are required to register with the Department of Criminal Justice Services, regardless of any other standing the person may have as a law-enforcement officer or other position requiring registration or licensure by the Department. The employer of any special conservator of the peace shall notify the circuit court, the Department of Criminal Justice Services, the Department of State Police, and the chief law-enforcement officer of all localities in which the special conservator of the peace is authorized to serve within 30 days after the date such individual has left employment and all powers of the special conservator of the peace shall be void. Failure to provide such notification shall be punishable by a fine of $250 plus an additional $50 per day for each day such notice is not provided.
  6. When the application is made by any sheriff or chief of police, the circuit court shall specify in the order of appointment the name of the applicant authorized under subsection A and the geographic jurisdiction of the special conservator of the peace. Such appointments shall be limited to the city or county wherein application has been made. When the application is made by any corporation authorized to do business in the Commonwealth, any owner, proprietor, or authorized custodian of any place within the Commonwealth, or any museum owned and managed by the Commonwealth, the circuit court shall specify in the order of appointment the name of the applicant authorized under subsection A and the specific real property where the special conservator of the peace is authorized to serve. Such appointments shall be limited to the specific real property within the county, city, or town wherein application has been made. In the case of a corporation or other business, the court appointment may also include, for good cause shown, any real property owned or leased by the corporation or business, including any subsidiaries, in other specifically named cities and counties, but shall provide that the powers of the special conservator of the peace do not extend beyond the boundaries of such real property. The clerk of the appointing circuit court shall transmit to the Department of State Police, the clerk of the circuit court of each locality where the special conservator of the peace is authorized to serve, and the sheriff or chief of police of each such locality a copy of the order of appointment that shall specify the following information: the person's complete name, address, date of birth, social security number, gender, race, height, weight, color of hair, color of eyes, firearm authority or limitation as set forth in subsection G, date of the order, and other information as may be required by the Department of State Police. The Department of State Police shall enter the person's name and other information into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. The Department of State Police may charge a fee not to exceed $10 to cover its costs associated with processing these orders. Each special conservator of the peace so appointed on application shall present his credentials to the chief of police or sheriff or his designee of all jurisdictions where he has conservator powers. If his powers are limited to certain areas of real property owned or leased by a corporation or business, he shall also provide notice of the exact physical addresses of those areas. Each special conservator shall provide to the circuit court a temporary registration letter issued by the Department of Criminal Justice Services to include the results of the background check prior to seeking an appointment by the circuit court. Once the applicant receives the appointment from the circuit court the applicant shall file the appointment order and a copy of the application with the Department of Criminal Justice Services in order to receive his special conservator of the peace registration document. If the court appointment includes any real property owned or leased by the corporation or business in other specifically named cities and counties not within the city or county wherein application has been made, the clerk of the appointing court shall transmit a copy of the order of appointment to (i) the clerk of the circuit court for each jurisdiction where the special conservator of the peace is authorized to serve and (ii) the sheriff or chief of police of each jurisdiction where the special conservator of the peace is authorized to serve. If any such special conservator of the peace is the employee, agent or servant of another, his appointment as special conservator of the peace shall not relieve his employer, principal or master from civil liability to another arising out of any wrongful action or conduct committed by such special conservator of the peace while within the scope of his employment. Effective July 1, 2002, no person employed by a local school board as a school security officer, as defined in § 9.1-101 , shall be eligible for appointment as a conservator for purposes of maintaining safety in a public school in the Commonwealth. All appointments of special conservators of the peace granted to school security officers as defined in § 9.1-101 prior to July 1, 2002 are void.
  7. The court may limit or prohibit the carrying of weapons by any special conservator of the peace initially appointed on or after July 1, 1996, while the appointee is within the scope of his employment as such.
  8. The governing body of any locality or the sheriff of a county where no police department has been established may enter into mutual aid agreements with any entity employing special conservators of the peace that is located in such locality for the use of their joint forces and their equipment and materials to maintain peace and good order. Any law-enforcement officer or special conservator of the peace, while performing his duty under any such agreement, shall have the same authority as lawfully conferred on him within his own jurisdiction.
  9. No special conservator of the peace shall display or use the word "police" on any uniform, badge, credential, or vehicle in the performance of his duties as a special conservator of the peace. Other than special conservators of the peace employed by a state agency, no special conservator of the peace shall use the seal of the Commonwealth on any uniform, badge, credential, or vehicle in the performance of his duties. However, upon request and for good cause shown, the order of appointment may provide that a special conservator of the peace who (i) meets all requirements, including the minimum compulsory training requirements, for law-enforcement officers set forth in Chapter 1 (§ 9.1-100 et seq.) of Title 9.1 and (ii) is employed by the Shenandoah Valley Regional Airport Commission or the Richmond Metropolitan Transportation Authority may use the word "police" on any badge, uniform, or vehicle in the performance of his duties or the seal of the Commonwealth on any badge or credential in the performance of his duties. (Code 1950, § 19.1-28; 1960, c. 366; 1974, cc. 44, 45; 1975, c. 495; 1976, c. 220; 1982, c. 523; 1989, c. 455; 1996, cc. 850, 956; 2001, c. 249; 2002, cc. 605, 836, 868; 2003, c. 922; 2004, c. 401; 2005, c. 498; 2006, c. 290; 2007, cc. 380, 481; 2008, c. 795; 2010, cc. 530, 778, 825; 2013, cc. 105, 122; 2015, cc. 602, 766, 772; 2016, c. 551; 2017, c. 494; 2018, c. 792.)

Cross references. - As to special conservators of the peace, see § 9.1-150.1 et seq.

Editor's note. - Acts 2003, c. 922, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2015, cc. 766 and 772, cl. 2 provides: "That the Office of the Executive Secretary of the Supreme Court of Virginia shall establish reasonable judicial training regarding the use of application forms for the appointment of special conservators of the peace and the powers that may be granted in appointment orders to special conservators of the peace."

Acts 2015, cc. 766 and 772, cl. 3 provides: "That any existing special conservator of the peace appointed under a court order in effect on July 1, 2015, has 36 months to comply with the new compulsory, minimum, entry-level training standards and requirements as may be established pursuant to this act following his appointment."

Acts 2018, c. 792, cl. 2 provides: "That special conservators of the peace employed on July 1, 2018, by the Shenandoah Regional Airport Commission or the Richmond Metropolitan Transportation Authority who do not meet all requirements, including the minimum compulsory training requirements, for law-enforcement officers set forth in Chapter 1 ( § 9.1-100 et seq.) of Title 9.1 of the Code of Virginia may, in accordance with the provisions of this act, continue to use the word 'police' on any badge, uniform, or vehicle in the performance of their duties or the seal of the Commonwealth on any badge or credential in the performance of their duties until July 1, 2020."

The 2001 amendments. - The 2001 amendment by c. 249, in the first sentence of subsection A, substituted "a circuit court judge" for "the circuit court," and substituted "his discretion" for "its discretion."

The 2002 amendments. - The 2002 amendment by c. 605, effective July 1, 2003, rewrote the second paragraph of subsection A.

The 2002 amendments by cc. 836 and 868 are identical, and added the last paragraph in subsection A.

The 2003 amendments. - The 2003 amendment by c. 922 rewrote the section.

The 2004 amendments. - The 2004 amendment by c. 401 added the last sentence in subsection B; and in subsection E, in the first paragraph, inserted the present fifth sentence, substituted "temporary registration letter issued by the Department of Criminal Justice Services prior to seeking an appointment by the circuit court" for "photocopy of his conservator identification card" in the present seventh sentence, deleted the former seventh sentence, which read: "The Department of State Police may charge a fee not to exceed $10 to cover its cost associated with processing these orders," and added the last sentence.

The 2005 amendments. - The 2005 amendment by c. 498 deleted "special" following "of any other" in the second sentence of subsection A, in subsection D, deleted "or private police officers" in the first sentence, inserted the present second sentence, inserted "and to those cities and counties wherein the corporate applicant or its subsidiary holds title to real property" to the end of the second sentence in subsection E and made a minor stylistic change.

The 2006 amendments. - The 2006 amendment by c. 290 inserted the fifth sentence in subsection A.

The 2007 amendments. - The 2007 amendments by cc. 380 and 481 are identical, and inserted "except as provided in subsection E," in the second sentence of subsection A; and in subsection E, inserted "business or other applicant" near the end of the first sentence, deleted "and to those cities and counties wherein the corporate applicant or its subsidiary holds title to real property" at the end of the second sentence, added the present third sentence, substituted "all jurisdictions where he has conservator powers" for "the jurisdiction" at the end of the seventh sentence, and added the present eighth sentence.

The 2008 amendments. - The 2008 amendment by c. 795, in subsection A, deleted "and the showing of a necessity for the security of property or the peace" following "within the Commonwealth," substituted "or city shall appoint special" for "or city, in his discretion, may appoint one or more special" and added the language beginning "upon a showing by the applicant" to the end of the first sentence and inserted the second sentence.

The 2010 amendments. - The 2010 amendment by c. 530 inserted "The order may also provide that the special conservator of the peace is authorized to use the seal of the Commonwealth in a badge or other credential of office as the court may deem appropriate." in subsection A.

The 2010 amendments by cc. 778 and 825 are identical, and inserted "or Article 16 ( § 16.1-335 et seq.) of Chapter 11 of Title 16.1" in subsection A.

The 2013 amendments. - The 2013 amendments by cc. 105 and 122 are identical, and near the beginning of the first sentence of subsection A, inserted the clause (i), (ii), and (iii) designators and clause (iv), and made related changes; and in subsection E, substituted "name of the applicant authorized under subsection A and" for "name of the sheriff or chief of police of the applicant county, city, town or the name of the corporation, business or other applicant authorized under subsection A and."

The 2015 amendments. - The 2015 amendment by c. 602 in subsection A, inserted "during which time the court shall retain jurisdiction over the appointment order" in the first sentence and added the third through sixth sentences; and in subsection B, substituted "or (f) firearms, or for" for "(f) firearms, or (g)" in the fifth sentence and added the sixth sentence.

The 2015 amendments by cc. 766 and 772 are identical, and rewrote the section.

The 2016 amendments. - The 2016 amendment by c. 551, in subsection A, substituted "the background investigation conducted pursuant to subsection C" for "a background investigation"; in subsection C, inserted "valid registration," substituted "shall include" for "may include," and inserted "criminal history records and may include a review of the applicant's" in the fourth sentence, inserted "or who is prohibited from possessing, transporting, or purchasing a firearm" in the fifth sentence, inserted "or becomes ineligible for registration or appointment as a special conservator of the peace pursuant to this subsection," and "or of becoming ineligible for registration or appointment as a special conservator of the peace" in the sixth sentence, and substituted "this subsection or becomes ineligible for registration or appointment as a special conservator of the peace pursuant to this subsection" for "clauses (a) through (f) or of any felony" in the next to last sentence.

The 2017 amendments. - The 2017 amendment by c. 494 substituted "(i) personal injury liability insurance, as defined in § 38.2-117 ; (ii) property damage liability insurance, as defined in § 38.2-118 ; and (iii) miscellaneous casualty insurance, as defined in subsection B of § 38.2-111 , which includes professional liability insurance that provides coverage for any activity within the scope of the duties of a special conservator of the peace as set forth in this section, in an amount and with coverage for each as fixed by the Board" for "liability insurance" in the first sentence of subsection D.

The 2018 amendments. - The 2018 amendment by c. 792 rewrote the second paragraph of subsection A; and added subsection I.

Research References. - Virginia Forms (Matthew Bender). No. 9-4400. Petition and Order for Appointment of Special Conservator of the Peace.

Michie's Jurisprudence. - For related discussion, see 2C M.J. Aviation, § 1.

OPINIONS OF THE ATTORNEY GENERAL

Private police officers. - The term "private police officers" in subsection D of this section refers to the category of officers appointed for the purposes described in subsection A; therefore, private police officers, who constitute special conservators of the peace and meet the training standards established by the Criminal Justice Services Board, are exempt from registration and bonding requirements. See opinion of Attorney General to The Honorable Emmett W. Hanger Jr., Member, Senate of Virginia, 04-059 (9/7/04).

Property owners' association stopping vehicles. - A property owners' association may not compel a vehicle driver to stop, unless done by a local law enforcement agency or by a private security service that is properly licensed by the Department of Criminal Justice Services, and whose employees have also been appointed as conservators of the peace. To enforce traffic laws on privately owned streets, a property owners' association may request the local law enforcement agency to do so, or the local governing body may designate the private streets as "highways" for law enforcement purposes. See opinion of Attorney General to The Honorable Bryce E. Reeves, Member, Senate of Virginia, No. 13-106, 2014 Va. AG LEXIS 28 (8/13/14).

Private police departments. - The 2015 amendment to § 9.1-101 effectively confers law-enforcement authority to employees of authorized private police departments, but only if those employees comply with all applicable requirements of the Department of Criminal Justice Services. See opinion of Attorney General to The Honorable David J. Toscano, Member, House of Delegates, 15-083, 2016 Va. AG LEXIS 22 (9/9/16).

Armed special conservator of the peace for school safety purposes. - Virginia law requires a temporary registration issued by Department of Criminal Justice Services prior to a circuit court order appointing a qualified individual as a special conservator of the peace and also a valid registration after the circuit court enters an order of appointment. See opinion of Attorney General to Ms. Shannon Dion, Director, Virginia Department of Criminal Justice Services, 18-042, 2018 Va. AG LEXIS 11 (8/28/2018).

Department of Criminal Justice Services cannot issue a temporary registration letter or valid registration document to a special conservator of the peace applicant seeking to possess firearms on school property because special conservators of the peace are not legally authorized to carry firearms on school property. See opinion of Attorney General to Ms. Shannon Dion, Director, Virginia Department of Criminal Justice Services, 18-042, 2018 Va. AG LEXIS 11 (8/28/2018).

§ 19.2-13.1. Application for special conservator of the peace by locality.

No official or employee of a school board or county, city, or town, its departments, or its agents shall submit an application for the appointment of a special conservator of the peace without attaching a written assessment from the chief law-enforcement officer of the locality stating the need for the appointment and recommending any limitations that should be included in the order of appointment to the application submitted to the court pursuant to subsection A of § 19.2-13 .

(2016, c. 416.)

§ 19.2-14. Conservators of the peace for fairgrounds and cemeteries; bond required.

The superintendent or other person in charge of any fairgrounds or any public or private cemetery shall, for the purpose of maintaining order and enforcing the criminal and police laws of the Commonwealth, or the county or city in which such fairgrounds or cemetery is situated, have all the powers, functions, duties, responsibilities and authority of a conservator of the peace within the fairgrounds or cemetery over which he may have charge and within one-half of a mile around the same.

The provisions of § 19.2-13 relative to the giving of bond and the liability of an employer, principal or master, shall be applicable to every person exercising any powers of a conservator of the peace under this section.

(Code 1950, § 19.1-32; 1960, c. 366; 1975, c. 495.)

§ 19.2-15. When conservator appointed under § 19.2-13 need not be a citizen.

Any such conservator appointed under the provisions of § 19.2-13 whose jurisdiction is limited to the grounds attached to an airport, need not be a citizen of the Commonwealth if the proprietors of such airport shall, before any such conservator shall enter upon the duties of the office, enter into bond with approved surety before the clerk of the circuit court having jurisdiction over such airport in the penalty of $1,000 for each conservator so appointed, with condition for the faithful discharge of his official duties.

(Code 1950, § 19.1-29; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 2C M.J. Aviation, § 1.

§ 19.2-16.

Repealed by Acts 1994, c. 205.

Editor's note. - Acts 1994, c. 205, cl. 2, provides that all commissions or appointments of conservators of the peace pursuant to this section shall be null and void except for appointment of persons currently employed by the Department of Conservation and Recreation. Any Commission or appointment issued pursuant to this section to persons currently employed by the Department of Conservation and Recreation shall continue in full force and effect until it is replaced by a conservation officer commission issued pursuant to § 10.1-115 or until the individual ceases to be employed by the Department.

§ 19.2-17.

Repealed by Acts 1996, c. 850.

Article 2. Powers and Duties.

§ 19.2-18. Powers and duties generally.

Every conservator of the peace shall have authority to arrest without a warrant in such instances as are set out in §§ 19.2-19 and 19.2-81 . Upon making an arrest without a warrant, the conservator of the peace shall proceed in accordance with the provisions of § 19.2-22 or § 19.2-82 as the case may be.

(Code 1950, § 19.1-20; 1960, c. 366; 1968, c. 639; 1972, c. 549; 1975, c. 495.)

Cross references. - For provision appointing directors of state hospitals and other hospital employees as conservators, see § 37.2-426 .

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1. Courts. § 1.05 District Courts. Friend.

CASE NOTES

Conservators of the peace may carry concealed weapons. - By § 19.2-12 , commissioners in chancery are conservators of the peace, and as such may carry concealed weapons, although not at the time acting in the discharge of official duty. Withers v. Commonwealth, 109 Va. 837 , 65 S.E. 16 (1909).

Warrantless arrest of defendant was invalid. - Warrantless arrest of defendant in the hospital at 4:35 p.m. was invalid, where the motor vehicle accident occurred at 3:00 p.m. The officer had no authority without a warrant to arrest the accused except at the scene of the motor vehicle accident for driving under the influence and after his driver's license had been revoked, offenses which were committed not in his presence. Thomas v. Town of Marion, 226 Va. 251 , 308 S.E.2d 120 (1983).

§ 19.2-19. Recognizance to keep the peace; when required.

If any person threatens to kill or injure another or to commit violence or injury against his person or property, or to unlawfully trespass upon his property, he shall be required to give a recognizance to keep the peace for such period not to exceed one year as the court hearing the complaint may determine.

(Code 1950, §§ 19.1-26, 19.1-27; 1960, c. 366; 1975, c. 495; 1978, c. 500.)

CASE NOTES

The power of conservators of the peace to require security from persons for their good behavior and to require a recognizance to keep the peace originated in the common law of England and was crystallized in two ancient English statutes [1 Edw. 3, Stat. 2, c. 16 (1327); 34 Edw. 3, c. 1 (1360)]. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).

A proceeding under this section is a quasi-criminal case. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).

A proceeding in which security is required to be given for good behavior and to keep the peace is more in the nature of criminal or quasi-criminal, rather than civil, procedure. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).

The requirement to give security is in the nature of a conditional fine, and if an accused is unable to provide it he "shall be" committed to jail. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).

Peace bond is moneys belonging to State until payor entitled to reimbursement. - A peace bond is in the nature of a conditional fine. As such, and until the condition is satisfied and the payor becomes entitled to reimbursement, the cash is moneys belonging to the State and its embezzlement by a public officer is a violation of § 18.2-112 . Healy v. Commonwealth, 213 Va. 325 , 191 S.E.2d 736 (1972).

§ 19.2-20. Same; complaint and issuance of warrant therefor.

If complaint be made to any magistrate or judge that a person should be required to give a recognizance to keep the peace due to any of the reasons set forth in § 19.2-19 , such magistrate or judge shall examine on oath the complainant, and any witness who may be produced, reduce the complaint to writing, and cause it to be signed by the complainant; and if probable cause is established, such magistrate or judge shall issue a warrant, reciting the complaint, and requiring the person complained of forthwith to be apprehended and brought before the district court having appropriate jurisdiction.

(Code 1950, § 19.1-21; 1960, c. 366; 1975, c. 495; 1978, c. 500; 1979, c. 708.)

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, § 8; 3A M.J. Breach of the Peace, § 7; 4C M.J. Constitutional Law, § 141.

CASE NOTES

It is doubtful whether an arrest without a warrant may be made. Jones v. Peyton, 411 F.2d 857 (4th Cir.), cert. denied, 396 U.S. 942, 90 S. Ct. 373, 24 L. Ed. 2d 243 (1969).

Warrant against "associates" of persons named is void. - A warrant, directing the "associates" of persons named to be arrested, without mentioning the names of such associates, is illegal and void as to them. Wells v. Jackson, 17 Va. (3 Munf.) 458 (1811).

Warrant held illegal. - A warrant to arrest a person of whom surety for the peace is demanded, being executed neither by a sworn officer, nor the person to whom it was directed by the magistrate, but by an individual selected by the prosecutor, who erased the name of the person appointed by the magistrate, and substituted that of the person selected by himself, is thereby rendered altogether illegal and void as a justification for arrest. Wells v. Jackson, 17 Va. (3 Munf.) 458 (1811).

§ 19.2-21. Same; procedure when accused appears.

When such person appears, if the judge, on hearing the parties, considers that there is not good cause for the complaint, he shall discharge such person, and may give judgment in his favor against the complainant for his costs. If he considers that there is good cause therefor, he may require a recognizance of the person against whom it is, and give judgment against him for the costs of the prosecution, or any part thereof; and, unless such recognizance be given, he shall commit him to jail by a warrant, stating the sum and time in and for which the recognizance is directed. The person given judgment under this section for costs may issue a writ of fieri facias thereon, if an appeal be not allowed; and proceedings thereupon may be according to §§ 16.1-99 through 16.1-101.

(Code 1950, § 19.1-22; 1960, c. 366; 1975, c. 495; 1978, c. 500.)

CASE NOTES

A justice should take care to show cause with sufficient certainty if a party is committed for want of sureties. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).

Security as punishment. - The plight of the impecunious defendant who is committed to jail for failure to give the security required of him is apparently not considered in arriving at the conclusion that the requirement to give security is not punishment. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).

Even though the commendable procedure adopted to prevent crime was not intended to be punishment for a past offense, nevertheless the result is punishment for those persons who are unable to give security and must bear the stigma arising from commitment to jail. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).

Supreme Court has jurisdiction to consider an appeal under the provisions of § 19.2-317 . Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).

§ 19.2-22. Same; arrest without a warrant.

A person arrested without a warrant by any conservator of the peace or other law-enforcement officer for any of the acts set forth in § 19.2-19 committed in the presence of such conservator of the peace or law-enforcement officer, shall be brought forthwith before a magistrate or judge, and proceedings shall be had in accordance with §§ 19.2-20 and 19.2-21 .

(1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 5.

§ 19.2-23. Payment of fees or mileage allowances into county or city treasury.

Any conservator or policeman appointed under the provisions of this chapter shall not be entitled to fees or mileage for performance of his duties as such conservator or policeman.

(Code 1950, § 19.1-31; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 2C M.J. Aviation, § 1.

Article 3. Appeals.

Michie's Jurisprudence. - For related discussion, see 3A M.J. Breach of the Peace, § 7.

§ 19.2-24. When appeal may be taken; witnesses recognized; bail.

Any person from whom a recognizance is required under the provisions of this chapter or who has been committed to jail for failure to give security therefor, may appeal to the circuit court of the county or city, and, in such case, the judge from whose judgment the appeal is taken shall recognize such of the witnesses as he thinks proper; provided, however, that the person taking the appeal may be required to give bail, with good security, for his appearance at the circuit court of the county or city.

(Code 1950, § 19.1-23; 1960, c. 366; 1975, c. 495; 1978, c. 500.)

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 17. Subpoenas and Witnesses. § 17.02 Subpoena of Witnesses. Friend.

CASE NOTES

Right of appeal is absolute. - Where a magistrate requires surety of the peace of any person, such person has an absolute right of appeal to the circuit court of the county or the corporation court of the corporation. In the court the case is to be heard de novo upon the evidence. Read v. Commonwealth, 65 Va. (24 Gratt.) 618 (1873).

Case may not be remanded to magistrate. - In such a case it is error to reverse the judgment of the magistrate and remand the case to the magistrate to be tried by him. Any subsequent trial of the case by the magistrate is null and void. Read v. Commonwealth, 65 Va. (24 Gratt.) 618 (1873).

§ 19.2-25. Power of court on appeal.

The court may dismiss the complaint or affirm the judgment, and make what order it sees fit as to the costs. If it award costs against the appellant, the recognizance which he may have given shall stand as security therefor. When there is a failure to prosecute the appeal, such recognizance shall remain in force, although there be no order of affirmance. On any appeal the court may require of the appellant a new recognizance if it see fit.

Any person committed to jail under this chapter may be discharged by the circuit court of the county or city on such terms as it may deem reasonable.

(Code 1950, §§ 19.1-24, 19.1-25; 1960, c. 366; 1975, c. 495.)

CASE NOTES

Under this section the case is heard de novo. Rohanna v. Commonwealth, 168 Va. 696 , 190 S.E. 171 (1937); Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).

After end of term, court may not alter duration of recognizance. - In the absence of statute, after the end of the term at which final judgment was entered, the court had no power or authority to alter the final judgment by requiring appellant to give a recognizance for an entirely different duration from that fixed by the final judgment. Rohanna v. Commonwealth, 168 Va. 696 , 190 S.E. 171 (1937).

Punishment cannot be increased. - This section is obviously intended for the benefit and not for the disadvantage of the accused, and its purpose is to permit the court to relieve the accused from too harsh a situation theretofore placed upon him. Certainly it was not intended to give the court authority to increase the punishment fixed by a final judgment. Rohanna v. Commonwealth, 168 Va. 696 , 190 S.E. 171 (1937).

Chapter 3. Magistrates.

Transition Provisions.

Abolition of Justice of the Peace System.

The Magistrate System.

Supervision.

Jurisdiction and Powers.

Compensation and Fees.

Article 1. Transition Provisions.

§ 19.2-26. Repeal of inconsistent statutes, municipal charters, etc.

All acts and parts of acts, all sections of this Code, and all provisions of municipal charters, inconsistent with the provisions of this title, are, except as herein otherwise provided, repealed to the extent of such inconsistency.

(Code 1950, § 19.1-374; 1973, c. 545; 1975, c. 495.)

§ 19.2-27. Effect of repeal of Title 39.1 on prior acts, offenses, etc.

The repeal of Title 39.1 effective as of January 1, 1974, shall not affect any act or offense done or committed or any penalty or forfeiture incurred, or any right established, accrued, or accruing on or before such date, or any prosecution, suit or action pending on that day.

(Code 1950, § 19.1-375; 1973, c. 545; 1975, c. 495.)

§ 19.2-28. Certain notices, recognizances and processes validated.

Any notice given, recognizance taken, or process or writ issued, before January 1, 1974, shall be valid although given, taken or to be returned to a day after such date, in like manner as if this title had been effective before the same was given, taken or issued.

(Code 1950, § 19.1-376; 1973, c. 545; 1975, c. 495.)

§ 19.2-29. References to former sections, articles and chapters in Title 39.1.

Whenever in Chapter 3 (§ 19.2-26 et seq.) of this title any of the conditions, requirements, provisions or contents of any section, article or chapter of Title 39.1, as such title existed prior to January 1, 1974, are transferred in the same or modified form to a new section, article or chapter, and whenever any such former section, article or chapter is given a new number in Chapter 3 of this title all references to any such former section, article or chapter of Title 39.1 appearing elsewhere in this Code than in Chapter 3 of this title shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions or contents or portions thereof.

(Code 1950, § 19.1-377; 1973, c. 545; 1975, c. 495; 2002, c. 310.)

The 2002 amendments. - The 2002 amendment by c. 310 substituted "Chapter 3 ( § 19.2-26 et seq.) of this title" for "Chapters 3 ( § 19.2-26 et seq.) and 4 ( § 19.2-49 et seq.) of this title," and twice substituted "Chapter 3 of this title" for "Chapters 3 and 4 of this title."

Article 2. Abolition of Justice of the Peace System.

§ 19.2-30.

Repealed by Acts 2008, cc. 551 and 691, cl. 2.

§ 19.2-31. Abolition of office of issuing justice.

Effective January 1, 1974, the office of issuing justice as provided for in Chapter 2 (§ 39.1-20 et seq.) of Title 39.1 having been abolished, nevertheless, any such special justice of the peace in office December 31, 1973, and elected by the town council for a specific term to expire after that date, may continue in office for the remainder of that term. If he continues in office as provided herein, such justice shall exercise the same powers, perform the same duties, and receive such compensation as he was receiving as of December 31, 1973.

(Code 1950, § 19.1-379; 1973, c. 545; 1975, c. 495.)

Cross references. - For provisions as to magistrates, see § 19.2-33 et seq.

Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).

§ 19.2-32. References to justices of the peace.

References in law to justices of the peace shall be deemed to apply to magistrates unless the provisions of Chapter 3 (§ 19.2-26 et seq.) of this title shall render such reference inapplicable.

(Code 1950, § 19.1-380; 1973, c. 545; 1975, c. 495; 2002, c. 310.)

The 2002 amendments. - The 2002 amendment by c. 310 substituted "Chapter 3 ( § 19.2-26 et seq.)" for "Chapters 3 ( § 19.2-26 et seq.) and 4 ( § 19.2-49 et seq.)."

Article 3. The Magistrate System.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1. Courts. § 1.06 Magistrates. Friend.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 19; 11B M.J. Justices and Magistrates, §§ 32-34.

§ 19.2-33. Office of magistrate.

The office of magistrate shall be vested with all the authority, duties and obligations previously vested in the office of justice of the peace prior to January 1, 1974.

(Code 1950, § 19.1-381; 1973, c. 545; 1975, c. 495.)

Cross references. - For provisions concerning compensation of magistrates, see § 19.2-46 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Execution of orders subjecting a person to emergency custody under § 37.2-808 , or temporary detention under § 37.2-810 , or providing for the transportation of such persons. - When a magistrate orders a law-enforcement agency to execute an order subjecting a person to emergency custody under § 37.2-808 , or temporary detention under § 37.2-810 , or providing for the transportation of such persons, the magistrate should specify the police department of the town as the "primary law-enforcement agency of the jurisdiction" when a town is served by its own police department. If the town is not served by its own police department, the sheriff's office of the surrounding county is tasked with executing such orders and with transporting persons subject to such orders. See opinion of Attorney General to Karen T. Mullins, Esquire, County Attorney, Wise County, 11-123, 2011 Va. AG LEXIS 44 (10/21/11).

§ 19.2-34. Number of magistrates.

There shall be appointed as many magistrates as are necessary for the effective administration of justice. The positions of all employees of the magistrate system shall be authorized by the Committee on District Courts established pursuant to § 16.1-69.33.

(Code 1950, § 19.1-382; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1976, c. 138; 1977, c. 198; 1981, c. 4; 1992, c. 55; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and deleted "for each judicial district" following "shall be appointed," and deleted "such magistrates and any other personnel in the office of the magistrates" following "administration of justice" in the first sentence, and inserted "The positions of all employees of the magistrate system" in the second sentence.

§ 19.2-35. Appointment; supervision generally.

Magistrates and any other personnel in the office of the magistrate shall be appointed by the Executive Secretary of the Supreme Court of Virginia in consultation with the chief judges of the circuit courts having jurisdiction within the region. Each magistrate shall be appointed to serve one or more of the magisterial regions created by the Executive Secretary. Each magisterial region shall be comprised of one or more judicial districts. The Executive Secretary shall have full supervisory authority over the magistrates so appointed. Notwithstanding any other provision of law, the only methods for the selection of magistrates shall be as set out in this section.

No person shall be appointed under this section until he has submitted his fingerprints to be used for the conduct of a national criminal records search and a Virginia criminal history records search. No person with a criminal conviction for a felony shall be appointed as a magistrate.

(Code 1950, § 19.1-383; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1976, c. 138; 1981, c. 4; 1988, c. 511; 2002, c. 310; 2004, cc. 370, 452; 2008, cc. 551, 691.)

The 2002 amendments. - The 2002 amendment by c. 310, in the last sentence in the first paragraph, deleted "and special magistrates" following "selection of magistrates" and deleted "and Chapter 4 ( § 19.2-49 et seq.) of this title, respectively" at the end.

The 2004 amendments. - The 2004 amendment by c. 370, in the first paragraph, inserted the language beginning "in consultation with" at the end of the first sentence and twice inserted "court" in the third sentence; and in the second paragraph, in the first sentence, inserted "circuit court" and "in consultation with both ... of that district" in the first sentence.

The 2004 amendment by c. 452 added the last paragraph.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and rewrote the first paragraph, and deleted the second and third paragraphs relating to the appointment of substitute magistrates and replacement of magistrates due to absence.

Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).

§ 19.2-36. Chief magistrates.

  1. The Executive Secretary of the Supreme Court of Virginia may appoint chief magistrates, for the purpose of assisting in the training of the magistrates and being responsible to the Executive Secretary for the conduct of the magistrates and to further assist the Office of the Executive Secretary in the operation of one or more of the magisterial regions. The chief magistrate shall exercise direct daily supervision over the magistrates he supervises and shall have the power to suspend without pay a magistrate after consultation and with the concurrence of the Executive Secretary.
  2. To be eligible for appointment as chief magistrate, a person shall meet all of the qualifications of a magistrate under § 19.2-37 and must be a member in good standing of the Virginia State Bar. His appointment as chief magistrate shall terminate effective on the date on which his membership in good standing ceases. The requirements of this subsection relating to membership in the Virginia State Bar shall not apply to any person appointed as a chief magistrate before July 1, 2008, who continues in that capacity without a break in service. (Code 1950, § 19.1-384; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1984, c. 37; 2004, c. 370; 2008, cc. 551, 691.)

The 2004 amendments. - The 2004 amendment by c. 370, in the first sentence, deleted "circuit" preceding "judge of a circuit" and inserted "court, in consultation with ... of that district" and twice inserted "court."

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and inserted the subsection A designation, rewrote the first paragraph, and added subsection B.

§ 19.2-37. Magistrates; eligibility for appointment; restrictions on activities.

  1. Any person who is a United States citizen and resident of the Commonwealth may be appointed to the office of magistrate under this title subject to the limitations of Chapter 28 (§ 2.2-2800 et seq.) of Title 2.2 and of this section.
  2. Every person appointed as a magistrate on and after July 1, 2008, shall be required to have a bachelor's degree from an accredited institution of higher education. A person initially appointed as a magistrate prior to July 1, 2008, who continues in office without a break in service is not required to have a bachelor's degree from an accredited institution of higher education.
  3. A person shall not be eligible for appointment as a magistrate under the provisions of this title: (a) if such person is a law-enforcement officer; (b) if such person or his spouse is a clerk, deputy or assistant clerk, or employee of any such clerk of a district or circuit court, provided that the Committee on District Courts may authorize a magistrate to assist in the district court clerk's office on a part-time basis; (c) if the parent, child, spouse, or sibling of such person is a district or circuit court judge in the magisterial region where he will serve; or (d) if such person is the chief executive officer, or a member of the board of supervisors, town or city council, or other governing body for any political subdivision of the Commonwealth.
  4. No magistrate shall issue any warrant or process in complaint of his spouse, child, grandchild, parent, grandparent, parent-in-law, child-in-law, brother, sister, brother-in-law or sister-in-law, nephew, niece, uncle, aunt, first cousin, guardian or ward.
  5. A magistrate may not engage in any other activity for financial gain during the hours that he is serving on duty as a magistrate. A magistrate may not be employed outside his duty hours without the prior written approval of the Executive Secretary.
  6. No person appointed as a magistrate on or after July 1, 2008, may engage in the practice of law.
  7. A magistrate who is designated as a marriage celebrant under § 20-25 may not accept a fee, a gratuity, or any other thing of value for exercise of authority as a marriage celebrant. (Code 1950, § 19.1-385; 1973, c. 545; 1975, c. 495; 1976, c. 138; 1978, cc. 463, 760; 1984, c. 41; 1985, c. 45; 1986, c. 202; 1996, c. 112; 1999, c. 267; 2004, c. 830; 2008, cc. 551, 691.)

The 1999 amendment substituted "or an adjoining judicial district" for "however, Arlington, Fairfax and Prince William Counties and the City of Alexandria may employ as magistrates persons residing in adjoining judicial districts" in clause (d) in the first sentence.

The 2004 amendments. - The 2004 amendment by c. 830, in the first sentence, deleted "or his spouse" following "such person" in clause (a), and in clause (b), deleted "charged with the duty of enforcing any of the laws of this Commonwealth or any ordinance of any political subdivision thereof" following "or employee" and "or police department or sheriff's office in any county or city with respect to appointment to the office of magistrate of such county or city" following "of a district court."

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and designated former first, second, and third paragraphs as subsections A, C, and D, respectively; added subsections B, E, F, and G; in subsection A, inserted "who is a United States citizen and resident of the Commonwealth"; rewrote subsection C; and in subsection D, deleted the last sentence, which read: "The residence provisions contained in this section shall not be a bar to the reappointment of any magistrate in office on July 1, 1973, provided he is otherwise eligible to serve under the provisions of this chapter."

Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).

OPINIONS OF THE ATTORNEY GENERAL

Warrant may not be issued to family member. - A magistrate may not issue a warrant to a sheriff who is a first cousin of the magistrate, but may issue a warrant to that sheriff's deputy. See opinion of Attorney General to The Honorable Claude Meinhard, Sheriff for Cumberland County, 00-036 (6/7/00).

§ 19.2-38. Probationary period; compensation and benefits; vacancies; revocation of appointment.

Persons appointed as magistrates under the provisions of this chapter shall serve at the pleasure of the Executive Secretary. Upon appointment by the Executive Secretary, every magistrate shall serve initially for a nine-month probationary period during which the magistrate must complete the minimum training program as established by the Committee on District Courts and satisfactorily complete a certification examination. Any magistrate who fails to successfully pass the certification examination shall not serve beyond the nine-month probationary period. The probationary period described in this section shall not apply to any magistrate serving on July 1, 2008, who has successfully completed the minimum training program and passed the certification examination, provided there is no break in service after July 1, 2008. Magistrates shall be entitled to compensation and other benefits only from the time they take office.

(Code 1950, § 19.1-386; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1980, c. 505; 2004, c. 370; 2008, cc. 551, 691.)

Editor's note. - Acts 1996, cc. 755 and 914, cls. 3, provide: "[t]hat beginning July 1, 1996, the magistrate training program established by the Committee on District Courts pursuant to § 19.2-38 shall include a mandatory component addressing the issuance of warrants and detention orders in juvenile and family courts."

The 2004 amendments. - The 2004 amendment by c. 370 deleted the former fifth sentence, which read: "Vacancies shall be filled for the unexpired term by the chief circuit judge," and inserted "court" in the last sentence.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and substituted "shall serve at the pleasure of the Executive Secretary. Upon appointment by the Executive Secretary, every magistrate shall serve initially for a nine-month probationary period" for "shall serve for a term of four years. Such term shall commence upon appointment and qualification, provided that any magistrate appointed for the first time to any term commencing after July 1, 1980, shall serve initially for a six-month probationary period" in the first two sentences, substituted the third sentence for "Failure to successfully pass the certification examination shall preclude the magistrate from serving beyond the six-month probationary period," inserted the fourth sentence, and deleted the last sentence, which read: "Appointments made under the provisions of this chapter shall be revocable at the pleasure of the chief circuit court judge."

§ 19.2-38.1. Training standards; training prerequisite to reappointment; waiver.

The Committee on District Courts shall establish minimum training and certification standards for magistrates in accordance with such rules and regulations as may be established by the Committee. Every magistrate shall comply with these standards and shall complete the minimum training standards as a prerequisite for continuing to serve as magistrate beyond the nine-month probationary period as established by § 19.2-38 . The Committee on District Courts upon request may waive any portion of the minimum training standards for an individual magistrate.

(1980, c. 505; 1985, c. 132; 1995, c. 611; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical and rewrote the section.

§ 19.2-39. Bond.

Every magistrate appointed under the provisions of this chapter shall enter into bond in the sum of $5,000, made payable to the Commonwealth, before a clerk of a circuit court, for the faithful performance of his duties. The premium for such bond shall be paid by the Commonwealth. Provided, however, that in lieu of specific bonds, the Committee on District Courts may in its discretion procure faithful performance of duty blanket bonds for all magistrates and for the penalty contained in this section, unless in the discretion of the Committee, bonds with a larger penalty should be obtained. Such blanket bonds shall be made payable to the Commonwealth and shall cover all funds handled by a magistrate whether such funds belong to the Commonwealth or any political subdivision thereof. Provided further, that in those instances where specific bonds for magistrates are in effect, the Committee on District Courts may, whenever it deems it advisable, terminate such specific bonds upon obtaining a blanket bond covering such magistrates with appropriate refunds or credit being made for the unearned premiums on the specific bonds terminated. A copy of any such blanket bond so procured shall be filed with the State Comptroller and with the clerk of the respective circuit courts. The premiums for such blanket bonds shall be paid by the Commonwealth.

(Code 1950, § 19.1-387; 1973, c. 545; 1974, c. 484; 1975, c. 495; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and substituted "before a clerk of a circuit court" for "before the clerk of the circuit court which exercises jurisdiction over the political subdivision wherein such magistrate shall serve" in the first sentence, substituted "blanket bonds for all magistrates" for "blanket bonds for any or all of the districts enumerated in § 16.1-69.6 covering all magistrates included in such districts" in the third sentence, and substituted "respective circuit courts" for "respective circuit court which exercises jurisdiction over the district wherein such magistrate shall serve" in the sixth sentence.

§ 19.2-40.

Repealed by Acts 1980, c. 758.

Editor's note. - Acts 1980, c. 758, cl. 3, which provided that the act should not be effective within the Nineteenth Judicial Circuit, was repealed by Acts 1981, c. 403, cl. 2.

Article 4. Supervision.

§ 19.2-41.

Repealed by Acts 2008, cc. 551 and 691, cl. 2.

§ 19.2-42.

Repealed by Acts 2004, c. 327.

§ 19.2-43. Duty of Executive Secretary of Supreme Court.

It shall be the duty of the Executive Secretary of the Supreme Court to exercise general supervisory power over the administration of magistrates and adopt such policies as are deemed necessary to supplement or clarify the provisions of this chapter with respect to such magistrates, to include fixing the time and place such magistrates shall serve. The Executive Secretary shall conduct training sessions and meetings for magistrates and provide information and materials for their use. He may appoint one or more magistrates to assist him and, in addition, require annual reports to be filed by the magistrates on their work as such, fees associated therewith and other information pertinent to their office, on forms to be furnished by him. The Executive Secretary may appoint and employ such personnel as are needed to manage the magistrate system and carry out the duties and responsibilities conferred upon the Executive Secretary by this chapter.

(Code 1950, § 19.1-392; 1973, c. 545; 1974, c. 484; 1975, c. 495; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and substituted "exercise general supervisory power over the administration of magistrates and adopt such policies as are deemed necessary to supplement or clarify the provisions of this chapter with respect to such magistrates, to include fixing the time and place such magistrates shall serve. The Executive Secretary shall conduct" for "assist the chief general district judges and general district courts in the supervision and mandatory training of magistrates for which purpose he shall be authorized to conduct" in the first two sentences, deleted "with the approval of the Chief Justice" preceding "required annual reports" in the third sentence, and added the last sentence.

Article 5. Jurisdiction and Powers.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1. Courts. § 1.06 Magistrates. Friend.

Michie's Jurisprudence. - For related discussion, see 11B M.J. Justices and Magistrates, §§ 2, 33, 37.

§ 19.2-44. Territorial jurisdiction.

A magistrate shall be authorized to exercise the powers conferred on magistrates by this title only in the magisterial region or regions for which he is appointed, except that a magistrate may issue search warrants in accordance with the provisions of Chapter 5 (§ 19.2-52 et seq.) throughout the Commonwealth. A magistrate may exercise all powers conferred on magistrates by this title throughout the Commonwealth when so authorized by the Executive Secretary upon a determination that such assistance is necessary.

(Code 1950, § 19.1-393; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1976, c. 138; 1995, c. 551; 2008, cc. 551, 691; 2014, cc. 305, 310.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and in the first sentence, inserted "be authorized to" preceding "exercise the powers" near the beginning and substituted "magisterial region or regions" for "judicial district" near the end; and in the second sentence, substituted "throughout the Commonwealth" for "in a contiguous political subdivision" and substituted "the Executive Secretary upon a determination that such assistance is necessary" for "his appointing authority and the chief circuit court judge of the district to which assistance is to be provided" at the end.

The 2014 amendments. - The 2014 amendments by cc. 305 and 310 are identical, and inserted "on magistrates" following "conferred" and "except that a magistrate may issue search warrants in accordance with the provisions of Chapter 5 ( § 19.2-52 et seq.) throughout the Commonwealth" following "appointed" in the first sentence and substituted "A" for "However, a" preceding "magistrate", "all" for "these" preceding "powers" and inserted "conferred on magistrates by this title" following "powers" in the second sentence.

§ 19.2-44.1.

Repealed by Acts 1976, c. 138.

Cross references. - For present provisions as to substitute magistrates, see § 19.2-35 .

§ 19.2-45. Powers enumerated.

A magistrate shall have the following powers only:

  1. To issue process of arrest in accord with the provisions of §§ 19.2-71 to 19.2-82 of the Code;
  2. To issue search warrants in accord with the provisions of §§ 19.2-52 to 19.2-60 of the Code;
  3. To admit to bail or commit to jail all persons charged with offenses subject to the limitations of and in accord with general laws on bail;
  4. The same power to issue warrants and subpoenas as is conferred upon district courts and as limited by the provisions of §§ 19.2-71 through 19.2-82 . A copy of all felony warrants issued at the request of a citizen shall be promptly delivered to the attorney for the Commonwealth for the county or city in which the warrant is returnable. Upon the request of the attorney for the Commonwealth, a copy of any misdemeanor warrant issued at the request of a citizen shall be delivered to the attorney for the Commonwealth for such county or city. All attachments, warrants and subpoenas shall be returnable before a district court;
  5. To issue civil warrants directed to the sheriff or constable of the county or city wherein the defendant resides, together with a copy thereof, requiring him to summon the person against whom the claim is, to appear before a district court on a certain day, not exceeding 30 days from the date thereof to answer such claim. If there be two or more defendants and any defendant resides outside the jurisdiction in which the warrant is issued, the summons for such defendant residing outside the jurisdiction may be directed to the sheriff of the county or city of his residence, and such warrant may be served and returned as provided in § 16.1-80;
  6. To administer oaths and take acknowledgments;
  7. To act as conservators of the peace;
  8. , (9) [Repealed.]

    (10) To perform such other acts or functions specifically authorized by law.

    (Code 1950, § 19.1-394; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1976, c. 471; 1977, c. 332; 1978, cc. 500, 605; 1985, c. 77; 2007, cc. 122, 373; 2008, cc. 551, 691; 2009, cc. 291, 344; 2018, c. 164.)

The 2007 amendments. - The 2007 amendments by cc. 122 and 373 are identical, and in subdivision (4), inserted the second sentence and substituted "All" for "Such" at the beginning of the last sentence.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and in subdivision 4, deleted "within such county or city" following "warrants and subpoenas" in the first sentence, inserted the second sentence and substituted "misdemeanor warrant" for "criminal warrant" in the third sentence.

The 2009 amendments. - The 2009 amendments by cc. 291 and 344 are identical, and in subsection (4), inserted "and as limited by the provisions of §§ 19.2-71 through 19.2-82 "; and in subsection (5), made a minor stylistic change.

The 2018 amendments. - The 2018 amendment by c. 164, in subsection 4, deleted "or any court of limited jurisdiction continued in operation pursuant to § 16.1-70.1" from the end.

CASE NOTES

Immunity for acts in judicial capacity. - As judicial officers, magistrates are entitled to absolute immunity for acts performed in their judicial capacity. That immunity is vitiated only when the judicial officer acts in the clear absence of all jurisdiction. Pressly v. Gregory, 831 F.2d 514 (4th Cir. 1987).

Warrant issued after arrest irrelevant in false arrest action. - In an action under 42 U.S.C. § 1983 alleging that defendant officer denied plaintiff due process by subjecting him to a false arrest for being drunk in public, the arrest warrant issued by the magistrate subsequent to the arrest did not establish as a matter of law that probable cause existed for the defendant to arrest the plaintiff. Robinson v. Goff, 517 F. Supp. 350 (W.D. Va. 1981).

When a defendant officer in a civil action relies upon probable cause as a defense to a charge of illegal arrest under 42 U.S.C. § 1983, he must establish that probable cause existed at the time the arrest was made. A warrant, subsequently issued by a magistrate, is irrelevant to the determination of whether the officer arresting an individual without a warrant had probable cause to arrest. Robinson v. Goff, 517 F. Supp. 350 (W.D. Va. 1981).

"No-knock entry." - Under Virginia law, the authority to effect a no-knock entry stems from exigent circumstances reasonably appearing to the officers to be in existence at the time the entry is made, and not at the time the warrant is obtained; thus, under Virginia law a magistrate lacks authority to "command" a no-knock entry in advance of the entry. Fenner v. Dawes, 748 F. Supp. 404 (E.D. Va. 1990).

Applied in Tross v. Commonwealth, 21 Va. App. 362, 464 S.E.2d 523 (1995).

Article 6. Compensation and Fees.

Michie's Jurisprudence. - For related discussion, see 11B M.J. Justices and Magistrates, §§ 34, 36.

§ 19.2-46. Compensation.

The salaries of all magistrates shall be fixed and paid as provided in § 19.2-46.1 . The salaries referred to herein shall be in lieu of all fees which may accrue to the recipient by virtue of his office.

(Code 1950, § 19.1-395; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1980, c. 139; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and deleted the former second paragraph, which read: "Each substitute magistrate shall receive for his services a per diem compensation as may be established by the Committee on District Courts."

Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).

§ 19.2-46.1. Salaries to be fixed by the Executive Secretary; limitations; mileage allowance.

Salaries of magistrates and any other personnel in the office of the magistrate shall be fixed by the Executive Secretary of the Supreme Court. Such salaries shall be fixed by the Executive Secretary at least annually at such time as he deems proper and as soon as practicable thereafter certified to the Comptroller.

In determining the salary of any magistrate, the Executive Secretary shall consider the work load of and territory and population served by the magistrate and such other factors he deems relevant.

The governing body of any county or city may add to the fixed compensation of magistrates such amount as the governing body may appropriate with the total amount not to exceed 50 percent of the amount paid by the Commonwealth to magistrates provided such additional compensation was in effect on June 30, 2008, for such magistrates and any magistrate receiving such additional compensation continues in office without a break in service. However, the total amount of additional compensation may not be increased after June 30, 2008. No additional amount paid by a local governing body shall be chargeable to the Executive Secretary of the Supreme Court, nor shall it remove or supersede any authority, control or supervision of the Executive Secretary or Committee on District Courts.

(1973, c. 545, § 14.1-44.2; 1974, c. 484; 1975, c. 334; 1981, c. 4; 1995, cc. 331, 378; 1998, c. 872; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are nearly identical, and in the first paragraph, substituted "Executive Secretary of the Supreme Court" for "Committee on District Courts established pursuant to § 16.1-69.33" in the first sentence, substituted "Executive Secretary" for "Committee" and deleted "and the Executive Secretary of the Supreme Court" from the end of the second sentence; deleted the former second paragraph, which read: "In addition to the salary authorized by this section, a magistrate may be reimbursed by the county or city for reasonable mileage expenses actually incurred in the performance of his duties"; in the second paragraph, substituted "Executive Secretary" for "Committee" and deleted the last sentence, which read: "It may require of any magistrate or district judge information on the operation of the office of the magistrate"; in the third paragraph, inserted the proviso at the end of the first sentence and added the second sentence.

§ 19.2-46.2. Full-time magistrates; certification for retirement coverage.

The Committee on District Courts shall certify to the director of the Virginia Retirement System the names of those magistrates serving on a regular full-time basis. Certification by the Committee shall qualify a magistrate as a state employee, for purposes of §§ 51.1-124.3 and 51.1-152 of the Virginia Retirement System (§ 51.1-124.1 et seq.), effective on the date given in the certificate as the date on which such magistrate first served on a regular full-time basis on or after January 1, 1974.

(1974, c. 353, § 14.1-44.2:1; 1998, c. 872.)

§ 19.2-47. Magistrate not to receive claims or evidence of debt for collection.

No magistrate shall receive claims or evidence of debt for collection; and it shall be unlawful for any magistrate to receive claims of any kind for collection, or to accept or receive money or any other things of value by way of commission or compensation for or on account of any collection made by or through him on any such claim, either before or after judgment. Any magistrate violating this section shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 19.1-396; 1973, c. 545; 1975, c. 495.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 19.2-47.1. Disposition of funds.

All funds paid to and collected by or on behalf of a magistrate shall be paid promptly to the appropriate district court clerk, circuit court clerk, commissioner in chancery, department of the Commonwealth, federal agency or as otherwise authorized by statute.

(1973, c. 545, § 14.1-44.4; 1980, c. 356; 1987, c. 22; 1998, c. 872.)

§ 19.2-48. Audits.

The Auditor of Public Accounts shall audit the records of all magistrates who serve any county or city when auditing the records of the district courts of such county or city or upon request of the chief district judge of the district in which such county or city is located.

(Code 1950, § 19.1-397; 1973, c. 545; 1975, c. 495; 1980, c. 195; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical and substituted "serve any county" for "serve in any county."

§ 19.2-48.1. Quarters for magistrates.

  1. The counties and cities served by a magistrate or magistrates shall provide suitable quarters for such magistrates, including a site for any videoconferencing equipment necessary to provide remote access to such magistrates. Insofar as possible, such quarters should be located in a public facility and should be appropriate to conduct the affairs of a judicial officer as well as provide convenient access to the public and law-enforcement officers. The county or city shall also provide all furniture and other equipment necessary for the efficient operation of the office.
  2. Wherever practical, the office of magistrate shall be located at the county seat. However, offices may be located at other locations in the county, or city adjacent thereto, whenever such additional offices are necessary to effect the efficient administration of justice.

    (1975, c. 495; 1981, c. 5; 1988, c. 510; 2008, cc. 551, 691.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and in subsection A, rewrote the first sentence, which read: "Each county and city having a general district court or juvenile and domestic relations district court and having one or more magistrates appointed pursuant to Article 3 ( § 19.2-33 et seq.) of this chapter, shall provide suitable quarters for such magistrates."

Chapter 4. Special Magistrates.

§§ 19.2-49 through 19.2-51.

Repealed by Acts 1980, c. 758.

Editor's note. - Acts 1980, c. 758, cl. 3, which provided that the act should not be effective within the Nineteenth Judicial Circuit, was repealed by Acts 1981, c. 403, cl. 2.

Chapter 5. Search Warrants.

Sec.

Research References. - Virginia Forms (Matthew Bender). No. 9-103. Affidavit for Search Warrant--DNA Materials; No. 9-104. Affidavit for Search Warrant --Drugs; No. 9-105. Affidavit for Search Warrant--Internet Materials; No. 9-106. Search Warrant. No. 9-2101. Motion to Suppress--Illegal Warrantless Search, et seq.

Michie's Jurisprudence. - For related discussion, see 11B M.J. Justices and Magistrates, §§ 33, 37; 16 M.J. Searches and Seizures, §§ 3-10.

§ 19.2-52. When search warrant may issue.

Except as provided in § 19.2-56.1 , search warrants, based upon complaint on oath supported by an affidavit as required in § 19.2-54 , may be issued by any judge, magistrate or other person having authority to issue criminal warrants, if he be satisfied from such complaint and affidavit that there is reasonable and probable cause for the issuance of such search warrant.

An application for a search warrant to withdraw blood from a person suspected of violating § 18.2-266 , 18.2-266 .1, 18.2-272 , 29.1-738 , 29.1-738.02 , or 46.2-341.24 shall be given priority over any pending matters not involving an imminent risk to another's health or safety before such judge, magistrate, or other person having authority to issue criminal warrants.

(Code 1950, § 19.1-83; 1960, c. 366; 1975, c. 495; 1986, c. 636; 2017, cc. 623, 673.)

Cross references. - As to use and approval of facial recognition technology, by local law-enforcement agencies, see § 15.2-1723.2 , and by campus police departments, see § 23.1-815.1 .

For constitutional provision, see Va. Const., Art. I, § 10.

The 2017 amendments. - The 2017 amendments by cc. 623 and 673, effective March 16, 2017, are identical, and added the last paragraph.

Law review. - For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

For note, "The Role of Police Culpability in Leon and Youngblood," see 76 Va. L. Rev. 1213 (1990).

CASE NOTES

What is a reasonable search is purely a judicial question, and in determining it the court must look to all the circumstances. Johnson v. Commonwealth, 213 Va. 102 , 189 S.E.2d 678 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 918, 34 L. Ed. 2d 700 (1973).

§ 19.2-53. What may be searched and seized.

  1. Search warrants may be issued for the search of or for specified places, things or persons, and seizure therefrom of the following things as specified in the warrant:
    1. Weapons or other objects used in the commission of crime;
    2. Articles or things the sale or possession of which is unlawful;
    3. Stolen property or the fruits of any crime;
    4. Any object, thing, or person, including without limitation, documents, books, papers, records or body fluids, constituting evidence of the commission of crime; or
    5. Any person to be arrested for whom a warrant or process for arrest has been issued.

      Notwithstanding any other provision in this chapter to the contrary, no search warrant may be issued as a substitute for a witness subpoena.

  2. Any search warrant issued for the search and seizure of a computer, computer network, or other device containing electronic or digital information shall be deemed to include the search and seizure of the physical components and the electronic or digital information contained in any such computer, computer network, or other device.
  3. Any search, including the search of the contents of any computer, computer network, or other device conducted pursuant to subsection B, may be conducted in any location and is not limited to the location where the evidence was seized.

    (Code 1950, § 19.1-84; 1960, c. 366; 1962, c. 519; 1966, c. 363; 1970, c. 650; 1974, c. 113; 1975, c. 495; 1981, c. 559; 2015, c. 501; 2017, cc. 233, 242.)

Cross references. - As to search warrants relating to alcoholic beverages, see § 4.1-337 .

Editor's note. - Acts 2015, c. 501, cl. 2 provides: "That this act is declaratory of existing law."

The 2015 amendments. - The 2015 amendment by c. 501 inserted the subsection A designation, redesignated subdivisions (a) through (d) as 1 through 4, and added subsections B and C.

The 2017 amendments. - The 2017 amendments by cc. 233 and 242, are identical, and inserted subdivision A 5.

Law review. - For survey of Virginia criminal law for the year 1973-1974, see 60 Va. L. Rev. 1499 (1974). For survey of Virginia law on criminal procedure for the year 1973-1974, see 60 Va. L. Rev. 1505 (1974). For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975). For survey of Virginia law on arrests in private dwellings for the year 1979-1980, see 67 Va. L. Rev. 275 (1981). For article, "Unreasonable Searches and Seizures of Papers," see 71 Va. L. Rev. 869 (1985).

For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).

CASE NOTES

Papers of an evidential nature. - No search warrant can be issued for the search and seizure of papers of an evidential nature. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128, rehearing denied, 373 U.S. 947, 83 S. Ct. 1533, 10 L. Ed. 2d 702 (1963).

Warrant not authorized for discovery purposes. - This section does not authorize a search warrant to be issued for a criminal defendant for the purpose of discovery. Henshaw v. Commonwealth, 19 Va. App. 338, 451 S.E.2d 415 (1994).

Additional seizures under warrant. - Where appellant's address was identified in the warrant as the place to be searched, and "marijuana" was specified as the item to be seized, a search was not invalid merely because officers seized items not named in the warrant. Cherry v. Commonwealth, 21 Va. App. 132, 462 S.E.2d 574 (1995).

§ 19.2-53.1. Taking blood samples pursuant to search warrant; immunity.

No cause of action shall lie in any court against any person authorized by law to withdraw blood pursuant to a search warrant issued in accordance with § 19.2-53 when that person is acting in accordance with such warrant, except in cases of negligence in the withdrawing of blood or willful misconduct.

(2015, c. 425.)

§ 19.2-54. Affidavit preliminary to issuance of search warrant; general search warrant prohibited; effect of failure to file affidavit.

No search warrant shall be issued until there is filed with the officer authorized to issue the same an affidavit of some person reasonably describing the place, thing, or person to be searched, the things or persons to be searched for thereunder, alleging briefly material facts, constituting the probable cause for the issuance of such warrant and alleging substantially the offense or the identity of the person to be arrested for whom a warrant or process for arrest has been issued in relation to which such search is to be made and that the object, thing, or person searched for constitutes evidence of the commission of such offense or is the person to be arrested for whom a warrant or process for arrest has been issued. The affidavit may be filed by electronically transmitted (i) facsimile process or (ii) electronic record as defined in § 59.1-480. Such affidavit shall be certified by the officer who issues such warrant and delivered in person; mailed by certified mail, return receipt requested; or delivered by electronically transmitted facsimile process or by use of filing and security procedures as defined in the Uniform Electronic Transactions Act (§ 59.1-479 et seq.) for transmitting signed documents, by such officer or his designee or agent, to the clerk of the circuit court of the county or city wherein the search is made, within seven days after the issuance of such warrant and shall by such clerk be preserved as a record and shall at all times be subject to inspection by the public after the warrant that is the subject of the affidavit has been executed or 15 days after issuance of the warrant, whichever is earlier; however, such affidavit, any warrant issued pursuant thereto, any return made thereon, and any order sealing the affidavit, warrant, or return may be temporarily sealed for a specific period of time by the appropriate court upon application of the attorney for the Commonwealth for good cause shown in an ex parte hearing. Any individual arrested and claiming to be aggrieved by such search and seizure or any person who claims to be entitled to lawful possession of such property seized may move the appropriate court for the unsealing of such affidavit, warrant, and return. The burden of proof with respect to continued sealing shall be upon the Commonwealth. Each such clerk shall maintain an index of all such affidavits filed in his office in order to facilitate inspection. No such warrant shall be issued on an affidavit omitting such essentials, and no general warrant for the search of a house, place, compartment, vehicle or baggage shall be issued. The term "affidavit" as used in this section, means statements made under oath or affirmation and preserved verbatim.

Failure of the officer issuing such warrant to file the required affidavit shall not invalidate any search made under the warrant unless such failure shall continue for a period of 30 days. If the affidavit is filed prior to the expiration of the 30-day period, nevertheless, evidence obtained in any such search shall not be admissible until a reasonable time after the filing of the required affidavit.

(Code 1950, § 19.1-85; 1960, c. 366; 1973, c. 502; 1975, c. 495; 1976, c. 552; 1977, c. 109; 1979, c. 583; 1980, c. 362; 1981, c. 559; 1989, c. 719; 2006, c. 285; 2007, c. 212; 2008, cc. 147, 183; 2011, cc. 196, 219; 2012, c. 5; 2017, cc. 228, 233, 242, 641.)

The 2006 amendments. - The 2006 amendment by c. 285 inserted the second sentence in the first paragraph.

The 2007 amendments. - The 2007 amendment by c. 212 inserted "in person or mailed by certified mail, return receipt requested" in the third sentence.

The 2008 amendments. - The 2008 amendments by cc. 147 and 183 are identical and rewrote the third sentence of the first paragraph and made minor stylistic changes.

The 2011 amendments. - The 2011 amendment by c. 196, inserted "after the warrant that is the subject of the affidavit has been executed or 15 days after issuance of the warrant, whichever is earlier" in the third sentence in the first paragraph.

The 2011 amendment by c. 219, in the first paragraph, in the third sentence, inserted "any warrant issued pursuant thereto, any return made thereon, and any order sealing the affidavit, warrant, or return" and "for a specific period of time," and subdivided the former fourth sentence and therein added "warrant, and return."

The 2012 amendments. - The 2012 amendment by c. 5, in the first paragraph, inserted the (i) designator and clause (ii) of the second sentence, added "or by use of filing and security procedures as defined in the Uniform Electronic Transactions Act ( § 59.1-479 et seq.) for transmitting signed documents" in the third sentence, and made minor stylistic changes.

The 2017 amendments. - The 2017 amendments by cc. 228 and 641 are identical, and in the third sentence of the first paragraph, deleted "with a copy of the affidavit also being delivered to the clerk of the circuit court of the county or city where the warrant is issued, if in a different county or city," preceding "within seven days" and substituted "clerk" for "clerks."

The 2017 amendments by cc. 233 and 242 are identical, and in the first paragraph, inserted "or the identity of the person to be arrested for whom a warrant or process for arrest has been issued" and "or is the person to be arrested for whom a warrant or process for arrest has been issued" in the first sentence.

Law review. - For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971). For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973). For note on reasonable suspicion and probable cause in automobile searches, see 40 Wash. & Lee L. Rev. 361 (1983). For note, "The Constitutionality of the Use of Unrecorded Oral Testimony to Establish Probable Cause for Search Warrants," see 70 Va. L. Rev. 1603 (1984). For 1985 survey of Virginia criminal procedure, see 19 U. Rich. L. Rev. 697 (1985).

CASE NOTES

I. GENERAL CONSIDERATION.

The requirements of this section are the same as those of the Fourth Amendment to the federal Constitution. Wiles v. Commonwealth, 209 Va. 282 , 163 S.E.2d 595 (1968).

The requirements of the Virginia statutes controlling the issuance of search warrants and forbidding searches without a warrant ( §§ 19.2-54 and 19.2-56 ) are in substance the same as those contained in the Fourth Amendment. Kirby v. Commonwealth, 209 Va. 806 , 167 S.E.2d 411 (1969).

General warrants are proscribed by both the Fourth Amendment and this section. The requirements of state law controlling the issuance of search warrants have been interpreted to impose the same search warrant requirements as the Fourth Amendment. The Fourth Amendment requires neither that a search warrant be elaborately detailed nor that authorities minutely identify every item for which they are searching. So long as the search warrant describes the objects of the search with reasonable specificity, it complies with the dictates of the Fourth Amendment. Morke v. Commonwealth, 14 Va. App. 496, 419 S.E.2d 410 (1992).

The purpose of this and the following sections of this chapter is to protect and enforce the rights of citizens guaranteed to them by Va. Const., Art. I, § 10. Hall v. Commonwealth ex rel. Town of South Boston, 138 Va. 727 , 121 S.E. 154 (1924).

The purpose of this section is to give the defendant reasonable opportunity to determine that the affidavit on file is the same one upon which the determination of probable cause was based. Robertson v. Rogers, 2 Va. App. 503, 346 S.E.2d 41 (1986), aff'd, 360 S.E.2d 715 (1987).

Purpose of statute achieved. - Although the affidavit was delivered to the circuit court by the officer who executed the search warrant rather than by the magistrate who issued it, the notice-based purpose of the statute was achieved; furthermore, defendant did not point to any prejudice he suffered as a result of the affidavit not having been filed by the magistrate, and thus the circuit court did not err in denying defendant's motion to suppress evidence. Daniels v. Commonwealth, 69 Va. App. 422, 819 S.E.2d 870, 2018 Va. App. LEXIS 304 (2018).

This section and § 19.2-250 must also be read together and harmonized. Robertson v. Rogers, 2 Va. App. 503, 346 S.E.2d 41 (1986), aff'd, 360 S.E.2d 715 (1987).

General warrants proscribed. - Plain view doctrine may not be used only as a pretext to extend a general exploratory search from one object to another until something incriminating at last emerges as general warrants are proscribed by § 19.2-54 . Commonwealth v. Marek, No. 2123-02-4, 2003 Va. App. LEXIS 46 (Ct. of Appeals Feb. 5, 2003).

This section does not preclude the introduction of an affidavit in support of a search warrant. Lane v. Commonwealth, 223 Va. 713 , 292 S.E.2d 358 (1982).

An affidavit submitted for a warrant may be supplemented with additional affidavits. - An affidavit submitted for a warrant under this section may be supplemented or rehabilitated with additional affidavits which contain collective facts relevant to the same offenses when those affidavits are presented, simultaneously, to the issuing magistrate by the same officer. Derr v. Commonwealth, 410 Va. 662 , 410 S.E.2d 662 (1991).

Constitutional requirements as to affidavit. - "The required affidavit" means the affidavit required to support issuance of a search warrant. Under the Fourth Amendment warrant requirement, the content of that affidavit must be sufficient to support a finding of probable cause by a neutral and detached magistrate. The Constitution does not require the magistrate to certify an affidavit. The purpose of that requirement in this section is to ensure that the affidavit filed with the clerk for the information of the accused is the same affidavit upon which the finding of probable cause was based. Quintana v. Commonwealth, 224 Va. 127 , 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L. Ed. 2d 501 (1983).

Affidavit must include any supplementary facts presented to the magistrate to establish probable cause. McCary v. Commonwealth, 228 Va. 219 , 321 S.E.2d 637 (1984).

Magistrate must be informed of some of the underlying circumstances. - Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was "credible" or his information "reliable." Wiles v. Commonwealth, 209 Va. 282 , 163 S.E.2d 595 (1968).

Offense to be identified briefly and in general terms. - This section and Rule 3A:27 (now repealed) of the Supreme Court contemplate that both in the affidavit for a search warrant, and in the warrant itself, the offense in relation to which the search was to be made should be identified briefly and in general terms rather than in the precise and legalistic language usually found in an indictment, a presentment or an arrest warrant. Carratt v. Commonwealth, 215 Va. 55 , 205 S.E.2d 653 (1974), cert. denied, 420 U.S. 973, 95 S. Ct. 1394, 43 L. Ed. 2d 652 (1975).

The object in identifying the offense in the affidavit for a search warrant and in the warrant is to apprise the subject of the search of the offense being investigated and the evidence sought, and to advise the officers in advance as to what they are to be searching for. Carratt v. Commonwealth, 215 Va. 55 , 205 S.E.2d 653 (1974), cert. denied, 420 U.S. 973, 95 S. Ct. 1394, 43 L. Ed. 2d 652 (1975).

Omitting to allege "substantially the offense in relation to which such search is to be made" rendered the affidavit defective, the search warrant invalid, and the evidence secured in the ensuing search inadmissible. Moore v. Commonwealth, 211 Va. 569 , 179 S.E.2d 458 (1971).

The mere fact that the warrant did not refer to the same Code section as the affidavit is of no consequence. What is important is that the warrant clearly and substantially described and identified the criminal violation in relation to which the search was being made. Carratt v. Commonwealth, 215 Va. 55 , 205 S.E.2d 653 (1974), cert. denied, 420 U.S. 973, 95 S. Ct. 1394, 43 L. Ed. 2d 652 (1975).

Facts must be closely related to time of issuance of warrant. - Virginia's statutes fix no maximum time interval between the date of the events and circumstances recited in the affidavit and the date of the affidavit and issuance of the warrant. However, the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Huff v. Commonwealth, 213 Va. 710 , 194 S.E.2d 690 (1973).

Search without warrant based in part on information in affidavit. - Information contained in an affidavit that supported a search warrant for defendant's residence and automobile was sufficient for the police to search the defendant without the warrant, where the police had independent information about defendant's recent, sexually deviant, behavior and numerous verifications that his car had been seen in the vicinity of the crime. Drumheller v. Commonwealth, 223 Va. 695 , 292 S.E.2d 602, cert. denied, 459 U.S. 913, 103 S. Ct. 224, 74 L. Ed. 2d 178 (1982).

Statement of affiant's information source not required. - A statement of the source of the affiant's information, while required by U.S. Const., Amend. 14, is not mandated by this section. McCary v. Commonwealth, 228 Va. 219 , 321 S.E.2d 637 (1984).

Affidavit based on unnamed informant's tip. - The test for determining probable cause in those many instances where the affidavit is based solely or substantially upon an informer's tip is set forth as follows: (1) The affidavit must describe some of the underlying circumstances necessary to enable a neutral and detached magistrate to judge the validity of the informant's conclusion that the narcotics were where he claimed they were; and (2) the affidavit must describe some of the underlying circumstances from which such magistrate can determine that the affiant officer's unnamed informant, whose identity need not be disclosed, was "credible" or his information "reliable." Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

An affidavit for a search warrant based solely or substantially upon information from an informant must describe (1) sufficient underlying circumstances to enable a neutral and detached magistrate to judge the validity of the informant's conclusion as to the location of the contraband, and (2) some of the circumstances which would permit the magistrate to judge the credibility of the unnamed informant or the reliability of his information. Wheeler v. Commonwealth, 217 Va. 95 , 225 S.E.2d 400 (1976).

To establish probable cause based upon an informant's tip, the prosecution must show underlying circumstances sufficient to support the informant's conclusions and the conclusion of the police that the informant was credible or his information reliable. This standard applies to a search or arrest made by an officer without benefit of a warrant as well as to a search or arrest made pursuant to a warrant issued by a magistrate. Wright v. Commonwealth, 222 Va. 188 , 278 S.E.2d 849 (1981).

Affiant must present factual basis for crediting informant's story. - Where the accuracy of the information received from a confidential informant is not supported by other sources known or stated to be accurate or from corroborated facts known or discovered by the affiant personally or from other official or reliable reports, the officer-affiant must present in his affidavit a substantial factual basis for crediting the informant's story. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

Substantiation of informant's reliability. - The most commonly accepted and approved allegation to substantiate reliability is that the informer is a person of known and proven reliability and has furnished information to law-enforcement officers which has been instrumental in procuring convictions. But the credibility of the informer or the reliability of his information may be shown in other ways. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

Reliability may be found in an informant's statement of facts as an "eyewitness." Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

The reliability standard is met where the affidavit in sufficient detail establishes that the informer is speaking with personal knowledge and relating his own participation with that of the suspects in their illegal activities. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

Informer's hearsay as admission against interest. - If the informer's hearsay comes from one of the actors in the crime in the nature of an admission against interest, the affidavit giving this information should be held sufficient. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

Mere allegation of informant's reliability is insufficient. - A mere allegation that the affiant has "received information from a reliable informant" has been held insufficient to show that the informant was credible, or that his information was reliable. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

Where a reliable informant's information is based on personal observation and participation in the illegal activity, a neutral and detached magistrate could find that the allegations in support of the affidavit are based on fact and not upon supposition and rumor. Wheeler v. Commonwealth, 217 Va. 95 , 225 S.E.2d 400 (1976).

An affidavit which is merely a statement of the conclusion of the affiant, or that of the informant, that the defendant was in possession of narcotics at that time, is not a sufficient allegation of "material facts, constituting the probable cause for the issuance" of a search warrant, required by this section and the provisions of the Fourth Amendment. Wiles v. Commonwealth, 209 Va. 282 , 163 S.E.2d 595 (1968).

Affidavit need not show how informant knew substance was narcotic. - A search warrant affidavit is not insufficient because it fails to show how the informant knew that the substance that he observed was a narcotic. Wheeler v. Commonwealth, 217 Va. 95 , 225 S.E.2d 400 (1976).

Search warrant must describe the place to be searched. - Under the Constitution of the United States and the statutory law of Virginia it is essential to the validity of a search warrant that it describe with particularity the place to be searched. All that is required, however, is that the description be such that the officer charged with executing the search warrant can, with reasonable effort, ascertain and identify the place intended. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

A search warrant must describe with particularity the place to be searched. Brown v. Commonwealth, 212 Va. 672 , 187 S.E.2d 160 (1972).

Warrant directed against multiple-occupancy structure must describe particular subunit. - A search warrant directed against a multiple-occupancy structure is invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude search of other units located in the larger structure and occupied by innocent persons. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

As a general rule, a search warrant directed against a multiple-occupancy building will be invalidated if it fails to specify the particular subunit to be searched. Brown v. Commonwealth, 212 Va. 672 , 187 S.E.2d 160 (1972).

Or specify name of occupant. - Even though a search warrant directed against a multiple-occupancy structure fails to describe the particular subunit to be searched, it will ordinarily not be held invalid where it adequately specifies the name of the occupant of the subunit against which it is directed and provides the searching officers with sufficient information to identify, without confusion or excessive effort, such apartment unit. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

Defendant must challenge the search at trial. - If a defendant wishes to preserve his right to challenge on appeal the constitutionality of a search and seizure through which certain evidence has been obtained, he must take timely steps in the lower court, either through a motion to suppress the evidence before trial or by sufficient objection to the use of the evidence when offered at trial. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

An objection that a search warrant was not supported by an affidavit as required by statute cannot be raised for the first time on appeal from a conviction. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

Remedy. - Remedy for any material violation of the statutory requirements of the statute is limited to the sanction provided by the statute itself. Daniels v. Commonwealth, 69 Va. App. 422, 819 S.E.2d 870, 2018 Va. App. LEXIS 304 (2018).

Applied in Garza v. Commonwealth, 228 Va. 559 , 323 S.E.2d 127 (1984).

II. PROBABLE CAUSE.

Establishing reasonable cause. - Virginia's search and seizure statutes require the judge issuing the warrant to be satisfied that there is reasonable cause for the search. Generally, reasonable cause can be established from an affidavit, but the judge need not accept the affidavit alone, and nothing in the statutes prohibits him from conducting an adversary hearing, as the Constitution requires. Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir.), cert. denied, 396 U.S. 985, 90 S. Ct. 477, 24 L. Ed. 2d 449 (1969).

The standard for determining probable cause is probability, and not a prima facie showing, of criminal activity. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

The evidence upon which the issuance of a search warrant is based does not have to be sufficient to establish the fact that the thing sought is on the premises, but merely that the belief of the person making the affidavit that it is there is based on facts which furnish a probable or reasonable cause for such belief. The requirement is practically the same as that contained in the Fourth Amendment of the federal Constitution. Zimmerman v. Town of Bedford, 134 Va. 787 , 115 S.E. 362 (1922); Tri-Pharmacy, Inc. v. United States, 203 Va. 723 , 127 S.E.2d 89 (1962), cert. denied, 371 U.S. 962, 83 S. Ct. 542, 9 L. Ed. 2d 509 (1963).

Search justified on grounds other than warrant. - This statute addresses the possible invalidity of a search made under a warrant as a consequence of the failure of the magistrate to file the warrant with the clerk of the circuit court; however, whatever the scope of inadmissibility contemplated by this statute for searches made under a defective warrant, nothing in the plain language of this statute compels the exclusion of evidence obtained in the course of a search that is justified on grounds other than a warrant. Commonwealth v. Campbell, 294 Va. 486 , 807 S.E.2d 735 (2017), cert. denied, 139 S. Ct. 421, 2018 U.S. LEXIS 6303, 202 L. Ed. 2d 324 (2018).

Existence of a technically defective warrant does not require suppression of evidence if the search may be justified on an independent ground. Commonwealth v. Campbell, 294 Va. 486 , 807 S.E.2d 735 (2017), cert. denied, 139 S. Ct. 421, 2018 U.S. LEXIS 6303, 202 L. Ed. 2d 324 (2018).

Sufficient underlying circumstances. - Where a neutral magistrate could determine from statements made in an affidavit that the informant was familiar with drugs and "the drug culture" whereby he could readily recognize LSD and where a common-sense reading of the affidavit as a whole revealed the address at which the drugs were located, there were sufficient underlying circumstances to enable the magistrate to judge the validity of the informant's conclusion as to the location of the contraband. Wheeler v. Commonwealth, 217 Va. 95 , 225 S.E.2d 400 (1976).

Facts in affidavit held sufficient. - Where officer failed to include in affidavit all facts verbally related to magistrate, omission did not violate requirements of this section since affidavit contained facts sufficient to support probable cause determination. Slayton v. Commonwealth, No. 0817-87-2 (Ct. of Appeals Mar. 7, 1989).

The fact that the affidavit for the search of defendant's house did not accurately describe the lots adjacent to the victim's house or state that the address of defendant's house was obtained from his DMV record was no more fatal to the warrant for the search under this section than under the Constitution. Commonwealth v. Derr, No. 0053-89-2 (Ct. of Appeals June 14, 1989).

Requirement that affidavit in support of search warrant substantially allege the offense in relation to which the search is made was satisfied where the affidavit specifically described the offenses being investigated as breaking and entering, grand larceny, and possession of stolen property; furthermore, the affidavit described the items to be searched for to include bacon and cigarettes, which were identified by quantity and name brand and stated that these items were stolen during "two business break-ins" currently under investigation; thus the affidavit substantially alleged the offenses so as to apprise adequately the defendant of the offenses and the evidence sought, and to inform those conducting the search of the items sought. West v. Commonwealth, 16 Va. App. 679, 432 S.E.2d 730 (1993).

Magistrate had probable cause to issue a search warrant to search defendant's apartment where the affidavit supporting the warrant provided a detailed description of a confidential, reliable informant who, after giving "buy money" to an unwitting informant, saw the unwitting informant knock on defendant's door, walk in with money, and return to hand the reliable informant cocaine that was purchased. Totality of the circumstances, therefore, provided the magistrate with a substantial basis to find that probable cause justified the search. Slade v. Commonwealth, 43 Va. App. 61, 596 S.E.2d 90, 2004 Va. App. LEXIS 231 (2004).

Affidavit deficiently vague. - Search warrant was issued and executed based on an affidavit that was deficiently vague and did not support probable cause where the affidavit: (1) did not specify any dates, but merely related that an unidentified suspect told a friend, who was an unidentified informant, that the suspect traded a pistol to defendant; (2) did not disclose when the conversation occurred, when the trade occurred, or whether the trade was before or after the homicide; (3) did not assert that the pistol was ever seen in the residence searched or where the trade occurred; (4) did not disclose whether the pistol was a "nine millimeter" firearm or was believed to be capable of discharging "nine millimeter" rounds; and (5) did not allege that the traded pistol was connected with the homicide. Anzualda v. Commonwealth, 42 Va. App. 481, 592 S.E.2d 761, 2004 Va. App. LEXIS 91 (2004).

Affidavit not providing sufficient basis for finding of probable cause for issuance of search warrant. - See Riggan v. Virginia, 384 U.S. 152, 86 S. Ct. 1378, 16 L. Ed. 2d 431 (1966); Morris v. Commonwealth, 208 Va. 331 , 157 S.E.2d 191 (1967).

Affidavit incomplete. - Trial court erred in denying defendant's motion to suppress, because an incomplete affidavit was filed that did not contain a sworn statement of material facts constituting probable cause as required by this section, which was not the same one upon which the determination of probable cause was based, and the Commonwealth was unable to produce the original affidavit certified by the magistrate. Campbell v. Commonwealth, 66 Va. App. 677, 791 S.E.2d 351 (2016), rev'd on other grounds by 294 Va. 486 , 807 S.E.2d 735 (2017).

Magistrate considered facts contained in several affidavits. - A magistrate did not violate this section when she considered the collective facts contained in several affidavits submitted at different times in the course of an on-going investigation in determining probable cause to search. Derr v. Commonwealth, 410 Va. 662 , 410 S.E.2d 662 (1991).

Exigent circumstances. - In a case in which defendant was convicted of possession with the intent to distribute methamphetamine, the warrantless search of defendant's property was justified based on exigent circumstances. Campbell v. Commonwealth, 69 Va. App. 217, 817 S.E.2d 663, 2018 Va. App. LEXIS 230 (2018).

Evidence inadmissible. - The evidence obtained as a result of a search warrant issued upon an insufficient affidavit was inadmissible. Wiles v. Commonwealth, 209 Va. 282 , 163 S.E.2d 595 (1968).

Where the affidavit fails to uphold a determination of probable cause, then such failure renders the warrant void and the search illegal and any evidence secured through an illegal search becomes inadmissible at trial. Drumheller v. Commonwealth, 223 Va. 695 , 292 S.E.2d 602, cert. denied, 459 U.S. 913, 103 S. Ct. 224, 74 L. Ed. 2d 178 (1982).

State procedural requirements must be respected in determining whether a state criminal conviction is constitutionally permissible because of the admission of evidence obtained as a result of an illegal search and seizure. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).

Plain view exception. - Trial court erred in suppressing evidence pertaining to defendant's indictment for unlawful possession of controlled substances where a police officer lawfully seized ammunition under a search warrant for a gun, the officer was in a lawful position to view the crack pipe and the bottles of prescription drugs, and therefore, lawfully seized the crack pipe and drugs under the plain view doctrine. Commonwealth v. Marek, No. 2123-02-4, 2003 Va. App. LEXIS 46 (Ct. of Appeals Feb. 5, 2003).

"Good faith" exception. - The Supreme Court of Virginia embraces the "good faith" exception to the exclusionary rule. McCary v. Commonwealth, 228 Va. 219 , 321 S.E.2d 637 (1984).

Trial court did not err in denying defendant's motion to suppress evidence seized as a result of a search warrant, where despite the fact that the affidavit supporting the same failed to provide the issuing magistrate with a substantial basis for concluding that probable cause to search defendant's home existed to issue said warrant, officers possessed an objectively reasonable belief in the existence of probable cause, namely, that the fruits of criminal activity would probably be found at defendant's residence, for the good faith exception to the exclusionary rule to apply. Anzualda v. Commonwealth, 44 Va. App. 764, 607 S.E.2d 749, 2005 Va. App. LEXIS 88 (2005).

Trial court properly denied defendant's motion to suppress despite the fact that the affidavit in support of the search warrant may have been stale, because the officers conducting the search did so in good-faith reliance on the validity of the warrant. The officer who executed the warrant testified that, based on the officer's experience and training, the officer knew that individuals who possess, manufacture, or distribute child pornography were collectors and tended to keep their collection and thus, the officer was not unreasonable in believing that there was probable cause that the images downloaded 16 months earlier could still have been in defendant's possession. Midkiff v. Commonwealth, 54 Va. App. 323, 678 S.E.2d 287, 2009 Va. App. LEXIS 294 (2009), aff'd, 280 Va. 216 , 694 S.E.2d 576, 2010 Va. LEXIS 61 (2010).

Filing of affidavits was appropriate. - Filing of affidavits required by this section in the City of Danville, rather than defendant's residence of Pittsylvania County, was appropriate where the Circuit Court of the City of Danville, pursuant to § 19.2-250 , had jurisdiction over the crime and the area where the search was made. Robertson v. Rogers, 2 Va. App. 503, 346 S.E.2d 41 (1986), aff'd, 360 S.E.2d 715 (1987).

Insufficient probable cause for search warrant. - Although a search warrant was facially valid, given the informant's motive to lie and the absence of evidence corroborating his allegations or establishing his reliability in some other way, probable cause was lacking; therefore, defendant's motion to suppress was properly granted. Commonwealth v. Thomas,, 2011 Va. App. LEXIS 267 (Aug. 16, 2011).

CIRCUIT COURT OPINIONS

Search warrant must describe the place to be searched. - Where the description of the unit to be searched in a warrant directly conflicted with its actual location, there was insufficient evidence for the police to determine which unit to search; as a result, defendant was entitled to suppress the evidence found. Commonwealth v. Carr, 61 Va. Cir. 491, 2003 Va. Cir. LEXIS 224 (Charlottesville 2003).

Oral statement sufficient to provide information supporting probable cause. - Sworn statement, taken together with a written affidavit, supported a magistrate's finding of probable cause to issue a search warrant since U.S. Const., Amend. IV, did not require that the sworn statement be written; also, there was a nexus between drugs and defendant's home where a credible informant alleged that he purchased drugs there the previous day. Since the search warrant was properly supported, firearms found on defendant in a search of his home were not suppressed. Commonwealth v. Alger, 66 Va. Cir. 332, 2005 Va. Cir. LEXIS 37 (Page County Jan. 18, 2005).

Insufficient probable cause for search warrant. - Magistrate did not have a substantial basis for finding probable cause to issue a search warrant where the affidavit simply stated that the informant observed stolen property in defendant's residence and included no information as to when the informant observed the stolen property, what specific items of stolen property the informant observed, or how the informant knew that the property was stolen. Commonwealth v. Fuller, 78 Va. Cir. 385, 2009 Va. Cir. LEXIS 167 (Norfolk June 17, 2009).

OPINIONS OF THE ATTORNEY GENERAL

Airport searches. - Fourth Amendment protections are rights attaching to persons that can be asserted only by them either directly or through an association. The Attorney General lacks standing to bring suit against the federal government claiming a violation of the Fourth Amendment for searches conducted at airports. See opinion of Attorney General to The Honorable Robert B. Bell, Member, House of Delegates, 12-046, 2012 Va. AG LEXIS 27 (6/29/2012).

§ 19.2-55. Issuing general search warrant or search warrant without affidavit deemed malfeasance.

Any person having authority to issue criminal warrants who wilfully and knowingly issues a general search warrant or a search warrant without the affidavit required by § 19.2-54 shall be deemed guilty of a malfeasance.

(Code 1950, § 19.1-89; 1960, c. 366; 1975, c. 495.)

§ 19.2-56. To whom search warrant directed; what it shall command; warrant to show date and time of issuance; copy of affidavit to be part of warrant and served therewith; warrants not executed within 15 days.

  1. The judge, magistrate, or other official authorized to issue criminal warrants, shall issue a search warrant only if he finds from the facts or circumstances recited in the affidavit that there is probable cause for the issuance thereof. Every search warrant shall be directed (i) to the sheriff, sergeant, or any policeman of the county, city, or town in which the place to be searched is located; (ii) to any law-enforcement officer or agent employed by the Commonwealth and vested with the powers of sheriffs and police; or (iii) jointly to any such sheriff, sergeant, policeman, or law-enforcement officer or agent and an agent, special agent, or officer of the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury, the United States Naval Criminal Investigative Service, the United States Department of Homeland Security, any inspector, law-enforcement official, or police personnel of the United States Postal Service, or the Drug Enforcement Administration. The warrant shall (a) name the affiant, (b) recite the offense or the identity of the person to be arrested for whom a warrant or process for arrest has been issued in relation to which the search is to be made, (c) name or describe the place to be searched, (d) describe the property or person to be searched for, and (e) recite that the magistrate has found probable cause to believe that the property or person constitutes evidence of a crime (identified in the warrant) or tends to show that a person (named or described therein) has committed or is committing a crime or that the person to be arrested for whom a warrant or process for arrest has been issued is located at the place to be searched. The warrant shall command that the place be forthwith searched and that the objects or persons described in the warrant, if found there, be seized. An inventory shall be produced before a court having jurisdiction of the offense or over the person to be arrested for whom a warrant or process for arrest has been issued in relation to which the warrant was issued as provided in § 19.2-57 . Any such warrant as provided in this section shall be executed by the policeman or other law-enforcement officer or agent into whose hands it shall come or be delivered. If the warrant is directed jointly to a sheriff, sergeant, policeman, or law-enforcement officer or agent of the Commonwealth and a federal agent or officer as otherwise provided in this section, the warrant may be executed jointly or by the policeman, law-enforcement officer, or agent into whose hands it is delivered. No other person may be permitted to be present during or participate in the execution of a warrant to search a place except (1) the owners and occupants of the place to be searched when permitted to be present by the officer in charge of the conduct of the search and (2) persons designated by the officer in charge of the conduct of the search to assist or provide expertise in the conduct of the search. Any search warrant for records or other information pertaining to a subscriber to, or customer of, an electronic communication service or remote computing service, whether a domestic corporation or foreign corporation, that is transacting or has transacted any business in the Commonwealth, to be executed upon such service provider may be executed within or outside the Commonwealth by hand, United States mail, commercial delivery service, facsimile, or other electronic means upon the service provider. Notwithstanding the provisions of § 19.2-57 , the officer executing a warrant pursuant to this paragraph shall endorse the date of execution thereon and shall file the warrant, with the inventory attached (or a notation that no property was seized) and the accompanying affidavit, unless such affidavit was made by voice or videotape recording, within three days after the materials ordered to be produced are received by the officer from the service provider. The return shall be made in the circuit court clerk's office for the jurisdiction wherein the warrant was (A) executed, if executed within the Commonwealth, and a copy of the return shall also be delivered to the clerk of the circuit court of the county or city where the warrant was issued or (B) issued, if executed outside the Commonwealth. Saturdays, Sundays, or any federal or state legal holiday shall not be used in computing the three-day filing period. Electronic communication service or remote computing service providers, whether a foreign or domestic corporation, shall also provide the contents of electronic communications pursuant to a search warrant issued under this section and § 19.2-70.3 using the same process described in the preceding paragraph. Notwithstanding the provisions of § 19.2-57, any search warrant for records or other information pertaining to a customer of a financial institution as defined in § 6.2-604 , money transmitter as defined in § 6.2-1900 , commercial business providing credit history or credit reports, or issuer as defined in § 6.2-424 may be executed within the Commonwealth by hand, United States mail, commercial delivery service, facsimile, or other electronic means upon the financial institution, money transmitter, commercial business providing credit history or credit reports, or issuer. The officer executing such warrant shall endorse the date of execution thereon and shall file the warrant, with the inventory attached (or a notation that no property was seized) and the accompanying affidavit, unless such affidavit was made by voice or videotape recording, within three days after the materials ordered to be produced are received by the officer from the financial institution, money transmitter, commercial business providing credit history or credit reports, or issuer. The return shall be made in the circuit court clerk's office for the jurisdiction wherein the warrant was executed. Saturdays, Sundays, or any federal or state legal holiday shall not be used in computing the three-day filing period. For the purposes of this section, the warrant will be considered executed in the jurisdiction where the entity on which the warrant is served is located. Every search warrant shall contain the date and time it was issued. However, the failure of any such search warrant to contain the date and time it was issued shall not render the warrant void, provided that the date and time of issuing of said warrant is established by competent evidence. The judge, magistrate, or other official authorized to issue criminal warrants shall attach a copy of the affidavit required by § 19.2-54 , which shall become a part of the search warrant and served therewith. However, this provision shall not be applicable in any case in which the affidavit is made by means of a voice or videotape recording or where the affidavit has been sealed pursuant to § 19.2-54 . Any search warrant not executed within 15 days after issuance thereof shall be returned to, and voided by, the officer who issued such search warrant.
  2. No law-enforcement officer shall seek, execute, or participate in the execution of a no-knock search warrant. A search warrant for any place of abode authorized under this section shall require that a law-enforcement officer be recognizable and identifiable as a uniformed law-enforcement officer and provide audible notice of his authority and purpose reasonably designed to be heard by the occupants of such place to be searched prior to the execution of such search warrant.

    After entering and securing the place to be searched and prior to undertaking any search or seizure pursuant to the search warrant, the executing law-enforcement officer shall give a copy of the search warrant and affidavit to the person to be searched or the owner of the place to be searched or, if the owner is not present, to any occupant of the place to be searched. If the place to be searched is unoccupied, the executing law-enforcement officer shall leave a copy of the search warrant and affidavit in a conspicuous place within or affixed to the place to be searched.

    Search warrants authorized under this section for the search of any place of abode shall be executed by initial entry of the abode only in the daytime hours between 8:00 a.m. and 5:00 p.m. unless (i) a judge or a magistrate, if a judge is not available, authorizes the execution of such search warrant at another time for good cause shown by particularized facts in an affidavit or (ii) prior to the issuance of the search warrant, law-enforcement officers lawfully entered and secured the place to be searched and remained at such place continuously.

    A law-enforcement officer shall make reasonable efforts to locate a judge before seeking authorization to execute the warrant at another time, unless circumstances require the issuance of the warrant after 5 p.m., pursuant to the provisions of this subsection, in which case the law-enforcement officer may seek such authorization from a magistrate without first making reasonable efforts to locate a judge. Such reasonable efforts shall be documented in an affidavit and submitted to a magistrate when seeking such authorization.

    Any evidence obtained from a search warrant executed in violation of this subsection shall not be admitted into evidence for the Commonwealth in any prosecution.

  3. For the purposes of this section: "Foreign corporation" means any corporation or other entity, whose primary place of business is located outside of the boundaries of the Commonwealth, that makes a contract or engages in a terms of service agreement with a resident of the Commonwealth to be performed in whole or in part by either party in the Commonwealth, or a corporation that has been issued a certificate of authority pursuant to § 13.1-759 to transact business in the Commonwealth. The making of the contract or terms of service agreement or the issuance of a certificate of authority shall be considered to be the agreement of the foreign corporation or entity that a search warrant or subpoena, which has been properly served on it, has the same legal force and effect as if served personally within the Commonwealth. "Properly served" means delivery of a search warrant or subpoena by hand, by United States mail, by commercial delivery service, by facsimile or by any other manner to any officer of a corporation or its general manager in the Commonwealth, to any natural person designated by it as agent for the service of process, or if such corporation has designated a corporate agent, to any person named in the latest annual report filed pursuant to § 13.1-775 . (Code 1950, § 19.1-86; 1960, c. 366; 1968, c. 572; 1975, c. 495; 1977, c. 289; 1979, c. 584; 1980, c. 573; 1981, c. 559; 1984, cc. 491, 598; 1988, c. 50; 1989, c. 719; 2000, c. 783; 2001, cc. 183, 205; 2007, c. 416; 2009, c. 725; 2015, cc. 75, 126; 2017, cc. 228, 233, 242, 641; 2018, c. 410; 2020, Sp. Sess. I, cc. 31, 37; 2021, Sp. Sess. I, c. 34.)

Editor's note. - Acts 2020 Sp. Sess. I, c. 37, cl. 2 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2000 amendments. - The 2000 amendment by c. 783 added the last sentence in the fourth paragraph.

The 2001 amendments. - The 2001 amendment by cc. 183 and 205 are identical, and, in the second paragraph, in clause (iii) of the first sentence, inserted "special agent" and inserted "the United States Naval Criminal Investigative Service."

The 2007 amendments. - The 2007 amendment by c. 416 substituted "15 days" for "fifteen days" in the section catchline and the last paragraph and inserted "the United States Department of Homeland Security, any inspector, law-enforcement official or police personnel of the United States Postal Inspection Service," in clause (iii) in the first sentence of the second paragraph.

The 2009 amendments. - The 2009 amendment by c. 725 added the fifth, sixth, tenth, eleventh, and twelfth paragraphs.

The 2015 amendments. - The 2015 amendments by cc. 75 and 126 are identical, and deleted "Inspection" following "United States Postal" in the first sentence in the second paragraph.

The 2017 amendments. - The 2017 amendments by cc. 228 and 641 are identical, and in the second paragraph, redesignated clauses (i) through (v) as clauses (a) through (e) in the second sentence; in the fourth paragraph, redesignated clauses (i) and (ii) as clauses (1) and (2) in the second sentence; and inserted the seventh paragraph.

The 2017 amendments by cc. 233 and 242 are identical, and in the second sentence of the second paragraph, redesignated clauses (i) through (v) as (a) through (e), inserted "or the identity of the person to be arrested for whom a warrant or process for arrest has been issued" in clause (b), and added "or that the person to be arrested for whom a warrant or process for arrest has been issued is located at the place to be searched" in clause (e); inserted "or over the person to be arrested for whom a warrant or process for arrest has been issued" in the second sentence of the third paragraph; and redesignated clauses (i) and (ii) as clauses (1) and (2) in the third sentence of the fourth paragraph.

The 2018 amendments. - The 2018 amendment by c. 410, in the fifth paragraph, substituted "outside the Commonwealth" for "without the Commonwealth" in the first sentence and substituted "(A) executed, if executed within the Commonwealth, and a copy of the return shall also be delivered to the clerk of the circuit court of the county or city where the warrant was issued; or (B) issued, if executed outside the Commonwealth" for "issued" in the third sentence.

The 2020 Sp. Sess. I amendments. - The 2020 amendments by Sp. Sess. I, cc. 31 and 37, effective March 1, 2021, are identical, designated the existing text as subsections A and C, and added subsection B; in subsection A, deleted "either in day or night" following "forthwith searched" in the third paragraph; and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 34, effective March 1, 2021, inserted "only" in the first paragraph in subsection A, and in subsection B, in the first paragraph, inserted "for any place of abode" and substituted "designed to be heard by the" for "expected to be heard" in the second sentence; in the second paragraph, substituted "give a copy of the search warrant and affidavit" for "read and give a copy of the search warrant" and "and affidavit in a conspicuous place within or" for "suitably"; rewrote the third paragraph, which read "Search warrants authorized under this section shall be executed only in the daytime unless (i) a judge or magistrate, if a judge is not available, authorizes the execution of such search warrant at another time for good cause shown or (ii) the search warrant is for the withdrawal of blood. A search warrant for the withdrawal of blood may be executed at any time of day."; in the fourth paragraph, inserted "unless circumstances require the issuance of the warrant after 5 p.m., pursuant to the provisions of this subsection, in which case the law-enforcement officer may seek such authorization from a magistrate without first making reasonable efforts to locate a judge"; and, in the last paragraph, inserted "executed."

Law review. - For comment on the reasonableness of no knock entry when exigencies are present, see 7 U. Rich. L. Rev. 565 (1973). For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975). For survey of Virginia law on arrests in private dwellings for the year 1979-1980, see 67 Va. L. Rev. 275 (1981).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 240; 16 M.J. Searches and Seizures, §§ 7, 8.

CASE NOTES

Requirements same as those of Fourth Amendment. - The requirements of the Virginia statutes controlling the issuance of search warrants and forbidding searches without a warrant ( §§ 19.2-54 and 19.2-56 ) are in substance the same as those contained in the Fourth Amendment. Kirby v. Commonwealth, 209 Va. 806 , 167 S.E.2d 411 (1969).

"Probable cause" defined. - Probable cause exists where the totality of the circumstances set forth in the affidavit supports a common sense decision by the magistrate that there is a fair probability that contraband or evidence of a crime will be found in a particular place. Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992).

Because probable cause is a fluid concept based on probabilities, the continued existence of probable cause at a particular time is dependent upon the circumstances. So long as probable cause continues to exist, the search will be valid. Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992).

Facts must be closely related to time of issuance of warrant. - Virginia's statutes fix no maximum time interval between the date of the events and circumstances recited in the affidavit and the date of the affidavit and issuance of the warrant. However, the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Huff v. Commonwealth, 213 Va. 710 , 194 S.E.2d 690 (1973).

When a warrant has been issued based upon probable cause, whether probable cause continues to exist at the time the warrant is executed depends on the length of delay and the nature of the observed criminal activity, that is, whether the activity is an ongoing enterprise or an isolated incident. Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992).

The fact that the officers delay executing a search warrant until a time the officer determines will be most opportune to yield a successful result does not invalidate the warrant so long as probable cause continued to exist at the time of execution. Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992).

Sufficient probable cause for issuance of search warrant. - Motion to suppress evidence that was found in a search of defendant's home was denied because a police detective's affidavit, which was based upon the observations of the detective and another police detective and a confidential informant as to drug transactions occurring in defendant's home, presented sufficient probable cause for issuance of a search warrant. Hicks v. Commonwealth, 281 Va. 353 , 706 S.E.2d 339, 2011 Va. LEXIS 44 (2011).

The provision in this section that a search warrant be executed "forthwith" is a directive to police officers to execute the warrant with reasonable dispatch and without undue delay. Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992).

"Forthwith" requirement complied with. - Under the circumstances of this case, the police officers, by waiting 11 days to execute the warrant, did not violate the "forthwith" provision of the statute or the Fourth Amendment. The officers executed the warrant as soon as reasonably practicable under the circumstances. The warrant identified both a residence and its occupants as targets to be searched. The officers checked the residence at least six times, only to find the person who was also the object of the search not present. Immediately after learning that the described occupant had returned, the officers executed the search warrant. Based on these circumstances, the officers executed the warrant as soon as reasonably practicable and, thus, that they complied with the directory component of the "forthwith" language in this section. Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992).

Statutory requirement that search warrant be executed "forthwith" was satisfied where warrant was executed five days after issuance; the search was delayed to permit the warrant to be executed concurrently with search warrant for another apartment in same building; there was no basis for deeming that circumstances providing probable cause for search had grown stale by time warrant was executed. Commonwealth v. Moss, 14 Va. App. 750, 420 S.E.2d 242 (1992).

A six-day delay between a warrant's issuance and its execution did not violate the "forthwith" requirement of § 19.2-56 , where the delay did not, standing alone, vitiate the reasonable belief that contraband would still be on the premises six days later, the description of the quantity of the remaining drugs as significant enough for continued sale suggested a continuing enterprise, defendant was absent from the premises the entire six days, and officers were informed that defendant kept two attack dogs in the house. Whitaker v. Commonwealth, 37 Va. App. 21, 553 S.E.2d 539, 2001 Va. App. LEXIS 568 (2001).

In a criminal prosecution for possession with intent to distribute crack cocaine, the district court denied defendant's motion to suppress evidence seized subsequent to the execution of search warrants. The ten-day delay in service of the warrants was within the time limits set forth in § 19.2-56 . United States v. Davis, 276 F. Supp. 2d 522, 2003 U.S. Dist. LEXIS 13834 (E.D. Va. 2003).

Lapse of 11 days between when the search warrants were obtained and when they were executed did not violate defendant's rights under this section or the Fourth Amendment since the lapse was due to the officer's competing law-enforcement interests and there was no evidence that probable cause had dissipated by the time the warrants were executed. Maye v. Commonwealth, 44 Va. App. 463, 605 S.E.2d 353, 2004 Va. App. LEXIS 590 (2004).

Motion to suppress evidence that was found in a search of defendant's home was denied because the warrant was timely executed 13 days after its issuance pursuant to § 19.2-56 , and the search was conducted forthwith in compliance with the requirements of § 19.2-56 and the Fourth Amendment. Hicks v. Commonwealth, 281 Va. 353 , 706 S.E.2d 339, 2011 Va. LEXIS 44 (2011).

Scope of search not exceeded. - Defendant's motion to suppress was properly denied; a safe located during a search of his residence was in plain view, and officers could reasonably expect to find the items listed on a search warrant within the safe. The officers did not exceed the scope of the search authorized by the warrant by delaying some fifteen days to open the safe after it was seized and removed to police property. Dotson v. Commonwealth, 47 Va. App. 237, 623 S.E.2d 414, 2005 Va. App. LEXIS 514 (2005).

Where defendant conceded that probable cause to search an apartment still existed when an "all persons present" warrant was executed at an apartment twelve days after its issuance, the court assumed that the warrant was lawfully issued and a presumption of validity attached to the search. Felton v. Commonwealth, 56 Va. App. 43, 690 S.E.2d 318, 2010 Va. App. LEXIS 128 (2010).

"No knock entry." - In Virginia there is no specific statute relating to "no knock entry" in executing a search warrant. The court must therefore consider whether an unannounced search is reasonable within the meaning of the Fourth Amendment to the United States Constitution and the Constitution of Virginia. Johnson v. Commonwealth, 213 Va. 102 , 189 S.E.2d 678 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 918, 34 L. Ed. 2d 700 (1973).

Under Virginia law, the authority to effect a no-knock entry stems from exigent circumstances reasonably appearing to the officers to be in existence at the time the entry is made, and not at the time the warrant is obtained; thus, under Virginia law a magistrate lacks authority to "command" a no-knock entry in advance of the entry. Fenner v. Dawes, 748 F. Supp. 404 (E.D. Va. 1990).

Recitation of offense. - A search warrant sufficiently recites the offense if it is attached to an affidavit which specifies the offense to which the warrant pertains; however, a search warrant does not recite the offense and is fatally defective where the evidence establishes that the deficient warrant and affidavit that did recite the offense were not attached until after the execution of the search warrant. Lebedun v. Commonwealth, No. 0233-97-4 (Ct. of Appeals July 7, 1998).

Failure of warrant to state offense. - Items seized pursuant to a search warrant were inadmissible into evidence because of the failure of the warrant to state the offense in relation to which the search was to be conducted, despite the fact that the affidavit contained the offense in relation to which the search was to be conducted, where the affidavit was not attached to the warrant until after the search warrant had been executed and the disputed items seized. Gilluly v. Commonwealth, 221 Va. 38 , 267 S.E.2d 105 (1980).

The failure of a warrant to state the related offense renders the warrant fatally defective and the evidence seized in the execution of the warrant inadmissible. Lebedun v. Commonwealth, 27 Va. App. 697, 501 S.E.2d 427 (1998).

Where a search is conducted pursuant to a judicially sanctioned warrant, the defendant must rebut the presumption of validity by proving that the warrant is illegal or invalid. Thus, where a warrant failed to recite the offense, the burden was on the defendant to prove that the affidavit, which expressly stated that the search pertained to charges of robbery and abduction, was not attached to the deficient warrant at the time the search occurred. Lebedun v. Commonwealth, 27 Va. App. 697, 501 S.E.2d 427 (1998).

Additional seizures under warrant. - Where appellant's address was identified in the warrant as the place to be searched, and "marijuana" was specified as the item to be seized, a search was not invalid merely because officers seized items not named in the warrant. Cherry v. Commonwealth, 21 Va. App. 132, 462 S.E.2d 574 (1995).

Applied in United States v. Belcher, 577 F. Supp. 1241 (E.D. Va. 1983).

CIRCUIT COURT OPINIONS

When a warrant has been issued based upon probable cause, whether probable cause continues to exist. - When a search warrant was used based upon probable cause, whether probable cause continued to exist at the time the warrant was executed depended on the length of delay after the warrant was issued and the nature of the observed criminal activity, that is whether the activity was an ongoing enterprise or an isolated incident. Commonwealth v. Robinson,, 2002 Va. Cir. LEXIS 274 (Newport News May 6, 2002).

The "forthwith" requirement. - By establishing a 15-day limitation period in § 19.2-56 , the General Assembly did not intend to provide that search warrants executed within that time were conclusively presumed to have been executed timely, as such an interpretation would render the "forthwith" language of the statute meaningless, a result that could not be attributed to the legislature, and "forthwith," within the context of § 19.2-56 , did not mean immediately or as soon as physically possible; the fact that the statute provided that the warrant expired if not executed within 15 days meant that some latitude was provided for the time within which the search could be conducted. Commonwealth v. Robinson,, 2002 Va. Cir. LEXIS 274 (Newport News May 6, 2002).

Under § 19.2-56 , it was necessary that search warrants be executed with some promptness in order to lessen the possibility that the facts upon which probable cause was initially based did not become dissipated, and the statute included a codification of the constitutional requirement that a search must be conducted while probable cause continued to exist, but it went beyond that as the "forthwith" requirement defined the policy of the state that search warrants, which were the foremost safeguard to protect against unreasonable searches proscribed by the Fourth Amendment, were to be executed with reasonable dispatch. Commonwealth v. Robinson,, 2002 Va. Cir. LEXIS 274 (Newport News May 6, 2002).

Various relevant considerations to whether a search warrant was executed "forthwith" could include the safety of the officers executing the warrant, the safety of others in the area and other competing law-enforcement interests which precluded immediate execution of the warrant. Commonwealth v. Robinson,, 2002 Va. Cir. LEXIS 274 (Newport News May 6, 2002).

Forthwith standard complied with. - Where police waited five days from the issuance of a search warrant before executing it in order to wait for defendant to obtain a new supply of drugs, the warrant was executed in accordance with the forthwith standard under § 19.2-56 , because defendant was engaged in an ongoing drug sale enterprise, and the delay was reasonable, as it gave the officers a more favorable chance of obtaining better results. Commonwealth v. Prosser,, 1999 Va. Cir. LEXIS 767 (Newport News Dec. 16, 1999).

Despite an eight-day delay in executing a search warrant, its underlying probable cause was not stale because it suggested a continuing enterprise of drug sales; because no constitutional violation existed and defendant was not prejudiced, defendant's motion to suppress was denied. Commonwealth v. Roy, 55 Va. Cir. 299, 2001 Va. Cir. LEXIS 522 (Richmond 2001).

Officers did not execute a search warrant "forthwith," as required by § 19.2-56 , when the delay was attributed to assisting security in a courtroom, moving office furniture, and being off duty for a few days, and no reason was given why other officers could not have served the warrant, nor was an unusual amount of official business shown. Commonwealth v. Robinson,, 2002 Va. Cir. LEXIS 274 (Newport News May 6, 2002).

Limitations period. - Where the search warrant was executed five days after it was issued, the search warrant was executed within the 15-day limitations period under § 19.2-56 and the 10-day limitations period under Fed. R. Crim. P. 41(c)(1). Commonwealth v. Prosser,, 1999 Va. Cir. LEXIS 767 (Newport News Dec. 16, 1999).

Suppression of evidence. - Violation of the requirement of § 19.2-56 that a search warrant be executed "forthwith" warranted suppression of any evidence seized only where defendant could show prejudice attributable to the unreasonable delay. Commonwealth v. Robinson,, 2002 Va. Cir. LEXIS 274 (Newport News May 6, 2002).

§ 19.2-56.1. Warrant issued for search of attorney's office.

  1. Any warrant sought for the search of a premises or the contents thereof belonging to or under the control of any licensed attorney-at-law to search for evidence of any crime solely involving a client of such attorney shall be issued only by a circuit court judge. Any evidence seized pursuant to this section shall be inventoried forthwith by the clerk of the issuing court and sealed by the issuing judge. As soon thereafter as is practicable, the issuing judge shall conduct an in camera inspection of the seized evidence in the presence of the attorney from whom the evidence was seized. Following such inspection the issuing judge shall return any evidence so seized which is determined to be within the scope of the attorney-client privilege and not otherwise subject to seizure.
  2. Nothing herein shall bar the standing of the client to challenge the admissibility of any evidence seized pursuant to this section in any trial or proceeding.

    (1986, c. 636.)

§ 19.2-56.2. Application for and issuance of search warrant for a tracking device; installation and use.

  1. As used in this section, unless the context requires a different meaning: "Judicial officer" means a judge, magistrate, or other person authorized to issue criminal warrants. "Law-enforcement officer" shall have the same meaning as in § 9.1-101 . "Tracking device" means an electronic or mechanical device that permits a person to remotely determine or track the position or movement of a person or object. "Tracking device" includes devices that store geographic data for subsequent access or analysis and devices that allow for the real-time monitoring of movement. "Use of a tracking device" includes the installation, maintenance, and monitoring of a tracking device but does not include the interception of wire, electronic, or oral communications or the capture, collection, monitoring, or viewing of images.
  2. A law-enforcement officer may apply for a search warrant from a judicial officer to permit the use of a tracking device. Each application for a search warrant authorizing the use of a tracking device shall be made in writing, upon oath or affirmation, to a judicial officer for the circuit in which the tracking device is to be installed, or where there is probable cause to believe the offense for which the tracking device is sought has been committed, is being committed, or will be committed.

    The law-enforcement officer shall submit an affidavit, which may be filed by electronically transmitted (i) facsimile process or (ii) electronic record as defined in § 59.1-480, and shall include:

    1. The identity of the applicant and the identity of the law-enforcement agency conducting the investigation;
    2. The identity of the vehicle, container, item, or object to which, in which, or on which the tracking device is to be attached, placed, or otherwise installed; the name of the owner or possessor of the vehicle, container, item, or object described, if known; and the jurisdictional area in which the vehicle, container, item, or object described is expected to be found, if known;
    3. Material facts constituting the probable cause for the issuance of the search warrant and alleging substantially the offense in relation to which such tracking device is to be used and a showing that probable cause exists that the information likely to be obtained will be evidence of the commission of such offense; and
    4. The name of the county or city where there is probable cause to believe the offense for which the tracking device is sought has been committed, is being committed, or will be committed.
    1. If the judicial officer finds, based on the affidavit submitted, that there is probable cause to believe that a crime has been committed, is being committed, or will be committed and that there is probable cause to believe the information likely to be obtained from the use of the tracking device will be evidence of the commission of such offense, the judicial officer shall issue a search warrant authorizing the use of the tracking device. The search warrant shall authorize the use of the tracking device from within the Commonwealth to track a person or property for a reasonable period of time, not to exceed 30 days from the issuance of the search warrant. The search warrant shall authorize the collection of the tracking data contained in or obtained from the tracking device but shall not authorize the interception of wire, electronic, or oral communications or the capture, collection, monitoring, or viewing of images. C. 1.  If the judicial officer finds, based on the affidavit submitted, that there is probable cause to believe that a crime has been committed, is being committed, or will be committed and that there is probable cause to believe the information likely to be obtained from the use of the tracking device will be evidence of the commission of such offense, the judicial officer shall issue a search warrant authorizing the use of the tracking device. The search warrant shall authorize the use of the tracking device from within the Commonwealth to track a person or property for a reasonable period of time, not to exceed 30 days from the issuance of the search warrant. The search warrant shall authorize the collection of the tracking data contained in or obtained from the tracking device but shall not authorize the interception of wire, electronic, or oral communications or the capture, collection, monitoring, or viewing of images.
    2. The affidavit shall be certified by the judicial officer who issues the search warrant and shall be delivered to and preserved as a record by the clerk of the circuit court of the county or city where there is probable cause to believe the offense for which the tracking device has been sought has been committed, is being committed, or will be committed. The affidavit shall be delivered by the judicial officer or his designee or agent in person; mailed by certified mail, return receipt requested; or delivered by electronically transmitted facsimile process or by use of filing and security procedures as defined in the Uniform Electronic Transactions Act (§ 59.1-479 et seq.) for transmitting signed documents.
    3. By operation of law, the affidavit, search warrant, return, and any other related materials or pleadings shall be sealed. Upon motion of the Commonwealth or the owner or possessor of the vehicle, container, item, or object that was tracked, the circuit court may unseal such documents if it appears that the unsealing is consistent with the ends of justice or is necessary to reasonably inform such person of the nature of the evidence to be presented against him or to adequately prepare for his defense.
    4. The circuit court may, for good cause shown, grant one or more extensions, not to exceed 30 days each.
    1. The search warrant shall command the law-enforcement officer to complete the installation authorized by the search warrant within 15 days after issuance of the search warrant. D. 1.  The search warrant shall command the law-enforcement officer to complete the installation authorized by the search warrant within 15 days after issuance of the search warrant.
    2. The law-enforcement officer executing the search warrant shall enter on it the exact date and time the device was installed and the period during which it was used.
    3. Law-enforcement officers shall be permitted to monitor the tracking device during the period authorized in the search warrant, unless the period is extended as provided for in this section.
    4. Law-enforcement officers shall remove the tracking device as soon as practical, but not later than 10 days after the use of the tracking device has ended. Upon request, and for good cause shown, the circuit court may grant one or more extensions for such removal for a period not to exceed 10 days each.
    5. In the event that law-enforcement officers are unable to remove the tracking device as required by subdivision 4, the law-enforcement officers shall disable the device, if possible, and all use of the tracking device shall cease.
    6. Within 10 days after the use of the tracking device has ended, the executed search warrant shall be returned to the circuit court of the county or city where there is probable cause to believe the offense for which the tracking device has been sought has been committed, is being committed, or will be committed, as designated in the search warrant, where it shall be preserved as a record by the clerk of the circuit court.
  3. Within 10 days after the use of the tracking device has ended, a copy of the executed search warrant shall be served on the person who was tracked and the person whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked or by leaving a copy with any individual found at the person's usual place of abode who is a member of the person's family, other than a temporary sojourner or guest, and who is 16 years of age or older and by mailing a copy to the person's last known address. Upon request, and for good cause shown, the circuit court may grant one or more extensions for such service for a period not to exceed 30 days each. Good cause shall include, but not be limited to, a continuing criminal investigation, the potential for intimidation, the endangerment of an individual, or the preservation of evidence.
  4. The disclosure or publication, without authorization of a circuit court, by a court officer, law-enforcement officer, or other person responsible for the administration of this section of the existence of a search warrant issued pursuant to this section, application for such search warrant, any affidavit filed in support of such warrant, or any return or data obtained as a result of such search warrant that is sealed by operation of law is punishable as a Class 1 misdemeanor.

    (2012, cc. 636, 679; 2018, cc. 84, 215.)

Editor's note. - Acts 2012, cc. 636 and 679, cl. 2 provides: "That an emergency exists and this act is in force from its passage." Acts 2012, c. 636 was approved April 5, 2012, and Acts 2012, c. 679 was approved April 6, 2012.

The 2018 amendments. - The 2018 amendments by cc. 84 and 215 are identical, and in subdivision C 2, inserted "or his designee or agent" in the second sentence.

Law review. - For article, "Data Collection and Advancements in Surveillance Techniques: Digital Technology and Analog Law: Cellular Location Data, the Third-Party Doctrine, and the Law's Need to Evolve," see 51 U. Rich. L. Rev. 773 (2017).

CASE NOTES

Reattached GPS device. - Evidence from a reattached GPS tracking device was admissible because (1) the device's reattachment was part of one search within the scope of a warrant issued pursuant to § 19.2-56.2 , (2) probable cause and good cause supported the warrant's extension under subsection E of § 19.2-56.2 , and (3) an extension for "good cause" was not unconstitutional as probable cause supported the original warrant. Turner v. Commonwealth, 65 Va. App. 312, 777 S.E.2d 569, 2015 Va. App. LEXIS 301 (2015).

§ 19.2-57. Execution and return of warrant; list of property seized.

The warrant shall be executed by the search of the place described in the warrant and, if property described in the warrant is found there, by the seizure of the property. The officer who seizes any property shall prepare an inventory thereof, under oath. An inventory of any seized property shall be produced before the circuit court of the county or city where the search was conducted. The officer executing the warrant shall endorse the date of execution thereon and the officer or his designee shall file the warrant, with the inventory attached (or a notation that no property was seized) and the accompanying affidavit, unless such affidavit was made by voice or videotape recording, within three days after the execution of such search warrant in the circuit court clerk's office, wherein the search was made, as provided in § 19.2-54 . Saturdays, Sundays, or any federal or state legal holiday shall not be used in computing the three-day filing period. The officer, or his designee or agent, may file the warrant, inventory, and accompanying affidavit by delivering them in person, or by mailing them certified mail, return receipt requested, or delivering them by electronically transmitted facsimile process.

(Code 1950, § 19.1-87.1; 1970, c. 416; 1973, c. 11; 1975, c. 495; 1976, cc. 142, 552; 1977, c. 109; 1980, c. 573; 1984, c. 491; 2008, cc. 147, 183.)

The 2008 amendments. - The 2008 amendments by cc. 147 and 183 are identical, and substituted "is found" for "be found" in the first sentence and "the circuit court of the county or city where the search was conducted" for "the court designated in the warrant" in the third sentence; inserted "the officer or his designee" in the fourth sentence; and added the last sentence.

CASE NOTES

Addendum to inventory filed satisfied requirements of this section. - Although deputy sheriff had to supplement, original inventory and return were filed within three days after execution of the search warrant, as required by the terms of this section, thus defendant's contention in requiring property seized in the inventory that was filed with the return had no basis, for this section does not prohibit filing of an addendum to inventory where filing of the original inventory been satisfied. West v. Commonwealth, 16 Va. App. 679, 432 S.E.2d 730 (1993).

Defendant not entitled to suppression of evidence. - Even if the filing of the inventory and return was not in compliance with this section, defendant was not entitled to suppression of evidence seized from his home, for this section regarding the filing of inventory after execution of warrant did not expressly command the suppression or exclusion of evidence for a violation of this section; and moreover, the defendant did not allege that his constitutional rights were violated. West v. Commonwealth, 16 Va. App. 679, 432 S.E.2d 730 (1993).

Although two seized documents were omitted from the inventory prepared and filed by police officer, noncompliance with this section did not require suppression of the remaining documents. Spivey v. Commonwealth, 23 Va. App. 715, 479 S.E.2d 543 (1997), overruled on other grounds, Henry v. Commonwealth, 32 Va. App. 547, 529 S.E.2d 796 (2000).

§ 19.2-58. Disposition of property seized.

If any such warrant be executed by the seizure of property, or of any other of the things aforesaid, the same shall be safely kept by the direction of such judge or court, to be used as evidence, and thereafter be disposed of as provided by law; provided, however, that any such property seized under such warrant which is not used in evidence and any property which is stolen or embezzled property shall be restored to its owner, and the things mentioned in § 19.2-53 may be burnt or otherwise destroyed, under such direction, as soon as there is no further need for its use as evidence unless it is otherwise expressly provided by law.

(Code 1950, § 19.1-87; 1960, c. 366; 1975, c. 495.)

Research References. - Virginia Forms (Matthew Bender). No. 9-1612. Motion for Inspection of Seized Items.

CASE NOTES

Transfer of evidence to federal authorities. - Defendant's motion to suppress evidence was properly denied; although defendant's property was transferred to federal authorities, it never lost its status as evidence, and defendant failed to formally move for the return of his property as required by §§ 19.2-58 and 19.2-60 , so defendant's prostitution-related convictions were appropriate. United States v. Jenkins, 149 Fed. Appx. 129, 2005 U.S. App. LEXIS 18376 (4th Cir. Aug. 25, 2005), cert. denied, 546 U.S. 1120, 126 S. Ct. 1092, 163 L. Ed. 2d 907 (2006).

§ 19.2-59. Search without warrant prohibited; when search without warrant lawful.

No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer. Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office. Any officer or person violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. Any officer found guilty of a second offense under this section shall, upon conviction thereof, immediately forfeit his office, and such finding shall be deemed to create a vacancy in such office to be filled according to law.

Provided, however, that any officer empowered to enforce the game laws or marine fisheries laws as set forth in Title 28.2 may without a search warrant enter for the purpose of enforcing such laws, any freight yard or room, passenger depot, baggage room or warehouse, storage room or warehouse, train, baggage car, passenger car, express car, Pullman car or freight car of any common carrier, or any boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or any baggage, bag, trunk, box or other closed container without a search warrant.

(Code 1950, § 19.1-88; 1960, c. 366; 1975, c. 495; 1976, c. 293; 1978, c. 721; 1997, c. 147.)

Law review. - For note, "Arson Investigations and the Fourth Amendment," see 30 Wash. & Lee L. Rev. 133 (1973). For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975). For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976). For comment on warrantless searches of automobiles in Virginia, see 12 U. Rich. L. Rev. 563 (1978). For article, "Warrantless Searches and Seizures in Virginia," see 17 U. Rich. L. Rev. 721 (1983). For article, "Unreasonable Searches and Seizures of Papers," see 71 Va. L. Rev. 869 (1985).

For comment, see "Commonwealth and Constitution," 48 U. Rich. L. Rev. 415 (2013).

CASE NOTES

Section affords Fourth Amendment protection. - This section affords in substance only the same protection as that afforded by the Fourth Amendment. Carter v. Commonwealth, 209 Va. 317 , 163 S.E.2d 589 (1968), cert. denied, 394 U.S. 991, 89 S. Ct. 1479, 22 L. Ed. 2d 766 (1969); Thompson v. Slayton, 334 F. Supp. 352 (W.D. Va. 1971).

This section was originally enacted during prohibition in response to widespread complaints concerning unreasonable searches. The statute protects against unreasonable searches and seizures, which are forbidden by the common law, and by the Fourth Amendment which is but declaratory of the common law on the subject. Burnham v. West, 681 F. Supp. 1169 (E.D. Va. 1988).

This section provides the same protection as the Fourth Amendment of the Constitution of the United States. Amato v. City of Richmond, 875 F. Supp. 1124 (E.D. Va. 1994), aff'd, 78 F.3d 578 (4th Cir. 1996), cert. denied, 519 U.S. 862, 117 S. Ct. 167, 136 L. Ed. 2d 109 (1996).

Trial court erred in denying defendant's motion to suppress evidence obtained as a result of the lawful arrest of defendant on an outstanding warrant, as the search of defendant at a lockup violated defendant's Fourth Amendment rights in a case where defendant was later convicted of possession of cocaine with intent to distribute; contrary to the Commonwealth's argument, the search of defendant was not a less intrusive strip search, but was a more intrusive visual body cavity search where police officers had defendant bend over and spread defendant's buttock cheeks, and the search was unreasonable because police did not have a "clear indication" that evidence was located within defendant's body and the police officers did not show that they faced exigent circumstances that required such an invasive search be performed. King v. Commonwealth, 49 Va. App. 717, 644 S.E.2d 391, 2007 Va. App. LEXIS 194 (2007).

Town officer was entitled to qualified immunity in a homeowner's action that alleged civil rights and illegal search claims under 42 U.S.C.S. § 1983 and § 19.2-59 because the homeowner's Fourth Amendment rights were not clearly established under the law since courts were divided on the question of whether a drunk driving offense justified a warrantless home arrest; the town was properly granted summary judgment because the homeowner did not set forth sufficient facts to establish that the supervising officials had knowledge, actual or constructive, that town police officers were engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the homeowner. Cilman v. Reeves,, 2011 U.S. App. LEXIS 22483 (4th Cir. Nov. 4, 2011), cert. denied, 132 S. Ct. 2385, 2012 U.S. LEXIS 3441, 182 L. Ed. 2d 1020 (U.S. 2012).

This section does not afford greater protection than that provided under the Fourth Amendment. Gordon v. Commonwealth, No. 1717-88-1 (Ct. of Appeals Apr. 10, 1990).

Evidence obtained in violation of United States Constitution is inadmissible. - Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. Ct. 23, 7 L. Ed. 2d 72 (1961), holds that all evidence obtained by search and seizure in violation of the United States Constitution is, by that same authority inadmissible in a state court. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128, rehearing denied, 373 U.S. 947, 83 S. Ct. 1533, 10 L. Ed. 2d 702 (1963).

Construction of section prior to 1976 amendment. - This section, as in force in 1975 with its provision for search incident to arrest, provided no greater restriction on warrantless searches than the Fourth Amendment, the provision for warrantless search incident to arrest having been added in 1975 to bring the statute in line with Carter v. Commonwealth, 209 Va. 317 , 163 S.E.2d 589 (1968), cert. denied, 394 U.S. 991, 89 S. Ct. 1479, 22 L. Ed. 2d 766 (1969), and subsequent removal of the provision in 1976 showing merely that statute should be broadly worded to avoid necessity for frequent amendments. Thims v. Commonwealth, 218 Va. 85 , 235 S.E.2d 443 (1977).

It may be conceded that the language of this section is perhaps too broad in its scope. But this fault, if fault it be, is not to be corrected by the court, as correction lies within the exclusive province of the legislature. Durham Bros. & Co. v. Woodson, 155 Va. 93 , 154 S.E. 485 (1930).

It was enacted to prevent searches upon mere suspicion. - It is a matter of common knowledge that for some years prior to 1920 there were complaints that many citizens were being harassed and humiliated by having their houses, vehicles and baggage searched, upon mere suspicion, by officers and other persons seeking to discover infractions of certain laws. It was primarily in response to these complaints that the Legislature enacted this section. Durham Bros. & Co. v. Woodson, 155 Va. 93 , 154 S.E. 485 (1930).

And to protect personal liberty and privacy. - The prime object of the statute is the protection of the personal liberty and privacy of the citizen and the prevention of the unreasonable invasion of personal rights in the course of the administration of the law. The protection which is given by the statute to property is purely incidental. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).

The statute has a wider scope than the common-law rule on the subject, in that it designates other places and things for the search of which search warrants are required, for which the common law does not require search warrants. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).

And it was the legislative intent to extend the right of search to vehicles, baggage and things. This provision is found for the first time in the Acts of 1920 and clearly indicates the intention to depart from the general rule at common law and also to enlarge the right of search conferred by the Code of 1919, as well as to impose upon one who violates its provisions both a penal and a civil liability. Durham Bros. & Co. v. Woodson, 155 Va. 93 , 154 S.E. 485 (1930).

No creation of action against private entity or individual. - This section does not create a cause of action against a private entity or an individual. Buonocore v. C & P Tel. Co., 254 Va. 469 , 492 S.E.2d 439 (1997).

Police officer not protected by sovereign immunity. - Circuit court erred by granting a police officer's motion to strike based on sovereign immunity for an arrestee' claim for unlawful search because the officer's search exceeded simple negligence since it was performed contrary to well-established law and violated the arrestee's Fourth Amendment rights; while the arrestee was seated, secured with handcuffs and leg shackles, and in the physical custody of a backup officer, the officer entered her car, retrieved her purse, and searched it. Cromartie v. Billings, 298 Va. 284 , 837 S.E.2d 247, 2020 Va. LEXIS 2 (Jan. 16, 2020).

This section makes a warrant the prerequisite of a search. Carter v. Commonwealth, 209 Va. 317 , 163 S.E.2d 589 (1968), cert. denied, 394 U.S. 991, 89 S. Ct. 1479, 22 L. Ed. 2d 766 (1969).

Not applicable to mine inspections. - Because subsection B of § 45.1-161.292:54 informed appellant mine operator that inspections to which he was subject were not discretionary acts but were conducted pursuant to statute, it satisfied the Burger test requiring a constitutionally adequate substitute for a warrant, and, if § 19.2-59 applied to surface mine inspections, much of the Virginia Mineral Mine Safety Act would be rendered meaningless, thus, § 19.2-59 did not apply to searches under the Virginia Mineral Mine Safety Act. LeSueur-Richmond Slate Corp. v. Fehrer, 666 F.3d 261, 2012 U.S. App. LEXIS 786 (4th Cir. 2012).

Reasonableness of search is test. - Like the Fourth Amendment, this section proscribes only an unreasonable search without a warrant. The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. Carter v. Commonwealth, 209 Va. 317 , 163 S.E.2d 589 (1968), cert. denied, 394 U.S. 991, 89 S. Ct. 1479, 22 L. Ed. 2d 766 (1969).

Search and seizure incident to lawful arrest. - A search and seizure is not unlawful despite the absence of a search warrant if it occurs incident to a lawful arrest. Kirby v. Commonwealth, 209 Va. 806 , 167 S.E.2d 411 (1969).

Officer exceeding his authority is a trespasser. - In an action of trespass on the case against special police officers appointed under § 15.1-144 (see now § 15.2-1737 ), even if the entry of the defendants upon the farm of plaintiff in search of a still was lawful, if, after the entry, they exceeded their authority by doing some act which they had no right to do, the law will consider them as trespassers ab initio. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).

Protective sweep. - Under the Fourth Amendment, exigent circumstances justified a warrantless "protective sweep" of an apartment, even though defendant had already been arrested outside the residence, because police had reason to believe that there were other persons and a loaded weapon in the apartment. Williams v. Commonwealth,, 2006 Va. App. LEXIS 94 (Mar. 14, 2006).

Where officers, in conducting a protective sweep of an apartment after arresting, did not look into closed containers or cabinets, their quick and limited minimal intrusion did not violate the Fourth Amendment, and since they were lawfully in the apartment, they were entitled to seize a gun that was in plain view. Williams v. Commonwealth,, 2006 Va. App. LEXIS 94 (Mar. 14, 2006).

Who may be liable for punitive damages. - Although the entry of officers upon the farm of plaintiff to make a search was lawful, yet if while on the premises they were guilty of disorderly conduct injurious to the plaintiff, which was malicious or wanton, or conduct in violation of the statute, they were liable for punitive damages. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).

Only the constitutional standard of conduct, therefore, should apply for purposes of determining sovereign immunity in actions brought under this section. Burnham v. West, 681 F. Supp. 1169 (E.D. Va. 1988).

Investigatory stop. - Suppression of evidence obtained during an investigatory stop was not required because the factual circumstances justified reasonable suspicion that defendant may have been trespassing; posted signs warned that permission to use the parking lot was reserved for patrons, and at 12:40 a.m., when the restaurant was closed, defendant was a non-patron subject to the restriction on access to the parking lot. Raab v. Commonwealth, 49 Va. App. 638, 644 S.E.2d 78, 2007 Va. App. LEXIS 179 (2007).

The trial court properly denied defendant's motion to suppress the cocaine seized from defendant's person, as a deputy, in conducting an investigatory stop of defendant on foot, observed that defendant smelled of alcohol, had a flushed face, and was unsteady on his feet, supplying the officer with probable cause to arrest defendant for public intoxication. Thus, given the validity of the stop, the trial court correctly denied defendant's suppression motion. Croson v. Commonwealth, No. 0935-06-2, 2007 Va. App. LEXIS 276 (July 24, 2007).

Trial court did not err in denying defendant's motion to suppress evidence that was recovered pursuant to a traffic stop because defendant's waiver of his Fourth Amendment rights incorporated into his plea agreement was valid as it applied to his seizure; even if the waiver only related to defendant's federal constitutional rights, the statute would at most provide defendant with a remedy of compensatory and punitive damages, not suppression of the evidence recovered. Blanton v. Commonwealth, No. 1834-14-4, 2016 Va. App. LEXIS 61 (Mar. 1, 2016).

Reasonable suspicion to stop vehicle. - Trial court erred in granting defendant's motion to suppress evidence because the officer had reasonable suspicion to stop the vehicle in which defendant was traveling based on the officer's observation of the vehicle violating two traffic laws, following too closely and exceeding the posted speed limit by at least five miles per hour; thus, the stop did not violate the Fourth Amendment. Commonwealth v. Beyene,, 2007 Va. App. LEXIS 368 (Oct. 2, 2007).

Evidence seized during pat down. - Evidence seized during pat down of defendant was inadmissible because the seizure and subsequent pat down of defendant violated defendant's rights under the Fourth Amendment. The officer did not have an objectively reasonable basis for suspecting defendant was armed and dangerous; among other things, the officer did not see a gun or anything that looked like a gun, there was no evidence defendant appeared nervous or behaved in threatening manner in placing his hands in his pockets, and the officer never asked defendant to remove his hands from his pockets or attempted to secure his own safety by less intrusive means. Roulhac v. Commonwealth, 50 Va. App. 8, 646 S.E.2d 4, 2007 Va. App. LEXIS 228 (2007).

Suppression of weapon found on defendant during a police search was erroneous because defendant was not "seized" within the meaning of the Fourth Amendment when the officer approached defendant and asked to speak to defendant; only after learning that defendant had outstanding felony warrants for robbery and firearms charges did the officer conduct a pat-down search of defendant. Commonwealth v. Collins, No. 0882-07-1, 2007 Va. App. LEXIS 367 (Sept. 28, 2007).

Emergency exception to warrant requirement. - Motion to suppress evidence first seen when police entered defendant's home without a warrant to check on the welfare of defendant in response to an anonymous call was improperly granted as the warrantless entry was permissible under the emergency exception to the warrant requirement; the police conduct was not pretextual, and the police first canvassed the outside of the house, knocked on the door, and tried to contact defendant. Commonwealth v. Purnell, No. 1761-02-1, 2002 Va. App. LEXIS 767 (Ct. of Appeals Dec. 23, 2002).

Community caretaker exception to warrant requirement. - Where the trial court found that the actions of the officers were not pretextual, the officers' warrantless entry into the residence was constitutionally permissible pursuant to the community caretaker exception to the warrant requirement. Kyer v. Commonwealth, 43 Va. App. 603, 601 S.E.2d 6, 2004 Va. App. LEXIS 396 (2004).

Based on the totality of the circumstances, especially defendant's attempt to flee the scene, a police officer had reasonable, articulable facts upon which to stop defendant and investigate further; consequently, the stop did not violate the Fourth Amendment and the trial court did not err in denying defendant's motion to suppress. Higgs v. Commonwealth, No. 1157-05-2, 2006 Va. App. LEXIS 216 (May 16, 2006).

Warrantless inspection of mines. - Because warrantless inspections of plaintiff's mines by defendant state inspectors were constitutional, since the state had a substantial interest in protecting worker health and safety and the scope of any inspections did not run afoul of the Fourth Amendment, plaintiff mining company failed to state a claim under 42 U.S.C.S. § 1983 and state law. The inspectors' actions were authorized by Virginia's Mineral Mine Safety Act, § 45.1-161.292:1 et seq., and Chapters 14.5 ( § 45.1-151.293 et seq.) and 14.6 ( § 45.1-161.304 et seq.) of Title 45.1, and the inspectors were entitled to qualified immunity. Lesueur-Richmond Slate Corp. v. Fehrer, 752 F. Supp. 2d 713, 2010 U.S. Dist. LEXIS 118081 (W.D. Va. 2010), aff'd, 666 F.3d 261, 2012 U.S. App. LEXIS 786 (4th Cir. 2012).

Standard for determination of sovereign immunity. - Only the Constitutional standard of conduct should apply for purposes of determining sovereign immunity in actions brought under this section. Amato v. City of Richmond, 875 F. Supp. 1124 (E.D. Va. 1994), aff'd, 78 F.3d 578 (4th Cir. 1996), cert. denied, 519 U.S. 862, 117 S. Ct. 167, 136 L. Ed. 2d 109 (1996).

Teachers and school principal entitled to sovereign immunity. - Teachers and school principal who ordered, directed and searched students were entitled to the protection of sovereign immunity from damages liability under this section. Burnham v. West, 681 F. Supp. 1169 (E.D. Va. 1988).

Articles of clothing were not obtained by illegal search and seizure, and were properly admitted into evidence. Duffield v. Peyton, 209 Va. 178 , 162 S.E.2d 915 (1968).

Where defendant had impliedly consented to needed medical treatment, and the removal of his clothing and the removal of a bullet were necessary incidents thereof, as evidence of criminal agency the clothing and bullet were seizable objects and were appropriate objects to be voluntarily surrendered by the doctor who was in lawful control thereof. Craft v. Commonwealth, 221 Va. 258 , 269 S.E.2d 797 (1980).

Statute of limitations for unlawful searches and seizures. - An unlawful search and seizure is characterized as a personal injury, rather than an injury to property and the applicable statute of limitations provision is contained in subsection A of § 8.01-243 , which sets a two-year time limit for filing an action. Cramer v. Crutchfield, 496 F. Supp. 949 (E.D. Va. 1980), aff'd, 648 F.2d 943 (4th Cir. 1981).

Consent to search given by one with common authority over property is valid as against the absent, nonconsenting person with whom the authority is shared. Black v. Commonwealth, 223 Va. 277 , 288 S.E.2d 449 (1982).

Passenger lacked standing to challenge car owner's consent. - Because defendant, as a passenger, did not have standing to challenge the search of a car or the owner's consent thereto, the trial court erred in granting defendant's motion to suppress the physical evidence obtained from the investigative traffic stop. Commonwealth v. Blevins, No. 2729-06-3, 2007 Va. App. LEXIS 153 (Apr. 16, 2007).

Burden is on the Commonwealth to prove the voluntariness of a consent to search, but whether the consent was voluntarily given is a question of fact to be determined from the totality of all the circumstances. Black v. Commonwealth, 223 Va. 277 , 288 S.E.2d 449 (1982).

The burden is on the Commonwealth to show that consent to a warrantless search is freely and voluntarily given. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982).

Inadvertent discovery of incriminating evidence. - Where a police officer, with justification for being on the premises, is not searching for evidence against the accused but inadvertently comes across incriminating evidence, he may seize it without a warrant. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982).

Commonwealth's limited right of appeal. - The legislature has narrowly limited the Commonwealth's right to appeal suppression orders of the trial courts to orders which are based on constitutional violations; therefore, where the Commonwealth appealed an order suppressing certain evidence solely on the grounds that the evidence was obtained in violation of this section and § 19.2-60 , the court of appeals would not entertain the Commonwealth's appeal. Commonwealth v. Ragland, 7 Va. App. 452, 374 S.E.2d 183 (1988).

Anonymous tip. - Trial court properly denied defendant's motion to suppress a firearm seized from him through a warrantless pat down, despite the fact that the involved officers' suspicion that defendant was shooting at a vehicle was provided by an anonymous tip, as: (1) the police dispatcher and the investigating officers had objective reasons to believe the caller was reliable; (2) the caller's continued presence on the telephone as the encounter unfolded established this reliability; and (3) the caller provided updated information at the time the officers actually approached defendant, and the officers corroborated this information. Williams v. Commonwealth, No. 0783-04-1, 2005 Va. App. LEXIS 129 (Ct. of Appeals Mar. 29, 2005).

Citizen informant. - Court did not err in denying defendant's motion to suppress because the totality of the circumstances established that the 911 caller was not an anonymous informant but, instead, was a citizen informant, who identified himself as a security guard at a known country club and reported disorderly conduct which he had observed there, and his reliability was evidenced by his being accountable to the police if his report was erroneous. The guard accurately described the perpetrators, the vehicle they were driving, the license plate number, and the direction the vehicle was traveling. Hyman v. Commonwealth, No. 0519-18-1, 2019 Va. App. LEXIS 236 (Ct. of Appeals Oct. 22, 2019).

Damages. - This section concerns a common-law tort that has achieved constitutional dimensions, and the statute specifies the familiar tort law remedy of damages. Sovereign immunity, which is primarily applied to bar damages liability in tort suits, applies to action brought under this section. Burnham v. West, 681 F. Supp. 1169 (E.D. Va. 1988).

Police officer did not have probable cause to search an arrestee's purse, and because the search was not lawful, no liability question remained regarding it, and sovereign immunity did not insulate a police officer from liability; accordingly, an arrestee's claim for unlawful search was remanded to the circuit court for consideration of damages only. Cromartie v. Billings, 298 Va. 284 , 837 S.E.2d 247, 2020 Va. LEXIS 2 (Jan. 16, 2020).

Motion to suppress properly granted. - Evidence found in a frisk of defendant was properly suppressed as the frisk was unconstitutional where the police did not have reason to believe that defendant was armed and dangerous at the time he was frisked since: (1) there were no facts linking defendant, a former occupant of a car, with the theft of the car or the driver's possession of a gun; (2) there was no evidence establishing that defendant and the driver were on a common mission; (3) when arrested, defendant was a pedestrian and had not been in the car for 10 minutes; and (4) there were no factors in which suspicion had been imputed to the companion of a legally detained suspect as, inter alia, defendant did not have invalid identification, the police were not outnumbered, and the encounter did not occur in a high crime area, at night, or under poor lighting conditions. Commonwealth v. Riggins, No. 2001-03-4, 2004 Va. App. LEXIS 48 (Ct. of Appeals Jan. 30, 2004).

Motion to suppress denied. - Police officer's entry upon defendant's curtilage at approximately 12:30 a.m. to conduct a knock and talk was reasonable under the facts and circumstances, and therefore, did not violate the Fourth Amendment. Accordingly, the trial court did not err in denying defendant's motion to suppress. Saal v. Commonwealth, 72 Va. App. 413, 848 S.E.2d 612, 2020 Va. App. LEXIS 241 (2020).

CIRCUIT COURT OPINIONS

Applicability. - In a matter arising out of a dog bite incident giving rise to a dangerous dog proceeding, defendant's motion to suppress was denied because, based on a plain meaning textual analysis, the character of the penalties in a dangerous dog proceeding, and an understanding of the underlying purposes of the exclusionary rule, the dangerous dog proceeding should be treated as a civil proceeding, which thus barred application of the exclusionary rule to the dangerous dog proceeding. Commonwealth v. Shafer, 91 Va. Cir. 234, 2015 Va. Cir. LEXIS 160 (Fairfax County Sept. 28, 2015).

No cause of action for unreasonable seizures. - This section, which creates a cause of action for unreasonable searches, creates no such cause for unreasonable seizures. Gray v. Rhoads, 55 Va. Cir. 362, 2001 Va. Cir. LEXIS 300 (Charlottesville 2001), remanded on other grounds, 268 Va. 81 , 597 S.E.2d 93 (2004).

Reasonableness of search is test. - Defendant's motion to suppress evidence located as a result of the officer's search was denied, as the officer's finding of cocaine on defendant's person due to a pat-down search was based on a reasonable suspicion of the presence of illegal drugs that gave rise to a concern that guns were present; defendant conceded that probable cause existed to search the car in which he was a passenger since the officer smelled marijuana emanating from the car, which meant the officer was reasonably suspicious that other illegal drugs were present, as well as guns, and the officer thus had the right to pat-down defendant, at which time the cocaine was located. Commonwealth v. Webb, 62 Va. Cir. 110, 2003 Va. Cir. LEXIS 73 (Roanoke 2003).

Probable cause to search. - Public safety is a clear exigent circumstance justifying the police officers' entry into a defendant's residence in response to an alarm call; if the police have reason to believe that someone might be hurt or that an intruder is on the premises, they are permitted to enter the premises to check for such activity. Commonwealth v. Swartz, 66 Va. Cir. 513, 2003 Va. Cir. LEXIS 255 (Fairfax County 2003).

Consent to warrantless search was voluntary. - Defendant's motion to suppress evidence was denied because, based on the totality of the circumstances, defendant's waiver of his rights and consent to search his home was voluntarily made and, thus, lawfully obtained; the officer removed defendant's handcuffs, read him his rights, received permission to search the house, and asked defendant if anything illegal would be found, to which defendant responded affirmatively. Commonwealth v. Swartz, 66 Va. Cir. 513, 2003 Va. Cir. LEXIS 255 (Fairfax County 2003).

Consent to search not valid. - Where the police officers, after hearing a noise in defendant's apartment, asked defendant's boyfriend's consent to search the apartment, and the boyfriend granted consent, the consent to search exception to the warrant requirement under § 19.2-59 was not established; defendant's boyfriend, who was not a co-tenant in the apartment, lacked the apparent authority to consent to the search, as there was no effort made to ascertain whether the boyfriend was a co-tenant of the apartment; nor was the exigent circumstance exception established. Commonwealth v. Gordon,, 2003 Va. Cir. LEXIS 170 (Roanoke Sept. 8, 2003).

Search held invalid. - Police officer's search of defendant without probable cause to believe a crime was being committed rendered the search of defendant, which showed defendant had crack cocaine on defendant's person, illegal; even if probable cause had existed, suppression would have still been required because the facts did not justify a warrantless search. Commonwealth v. Niblett, 61 Va. Cir. 736, 2002 Va. Cir. LEXIS 316 (Roanoke 2002).

Defendant's motion to suppress was granted, where the evidence showed that any alleged consent received by officers was the fruit of the poisonous tree that was not purged of an illegal taint, specifically, the illegal entry into a locked employee break room, especially where no intervening circumstances or significant passage of time between the illegal entry and the consent was present. Commonwealth v. Soy Hem, 62 Va. Cir. 480, 2003 Va. Cir. LEXIS 303 (Norfolk 2003).

Evidence obtained from a warrantless search of defendants' apartment was suppressed where no exigent circumstances existed, the evidence did not support a finding of hot pursuit, and consent obtained after the detective entered defendants' apartment could not retroactively validate a prior improper entry. Commonwealth v. Whitecotton,, 2004 Va. Cir. LEXIS 228 (Roanoke Aug. 27, 2004).

§ 19.2-59.1. Strip searches prohibited; exceptions; how strip searches conducted.

  1. No person in custodial arrest for a traffic infraction, Class 3 or Class 4 misdemeanor, or a violation of a city, county, or town ordinance, which is punishable by no more than 30 days in jail shall be strip searched unless there is reasonable cause to believe on the part of a law-enforcement officer authorizing the search that the individual is concealing a weapon. All strip searches conducted under this section shall be performed by persons of the same sex as the person arrested and on premises where the search cannot be observed by persons not physically conducting the search.
  2. A regional jail superintendent or the chief of police or the sheriff of the county or city shall develop a written policy regarding strip searches.
  3. A search of any body cavity must be performed under sanitary conditions and a search of any body cavity, other than the mouth, shall be conducted either by or under the supervision of medically trained personnel.
  4. Strip searches authorized pursuant to the exceptions stated in subsection A shall be conducted by a law-enforcement officer as defined in § 9.1-101 .
  5. The provisions of this section shall not apply when the person is taken into custody by or remanded to a law-enforcement officer pursuant to a circuit or district court order.
  6. For purposes of this section, "strip search" means having an arrested person remove or arrange some or all of his clothing so as to permit a visual inspection of the genitals, buttocks, anus, female breasts, or undergarments of such person.
  7. Nothing in this section shall prohibit a sheriff or a regional jail superintendent from requiring that inmates take hot water and soap showers and be subjected to visual inspection upon assignment to the general population area of the jail or upon determination by the sheriff or regional jail superintendent that the inmate must be held at the jail by reason of his inability to post bond after reasonable opportunity to do so.
  8. Except for children committed to the Department of Juvenile Justice or confined or detained in a secure local facility for juveniles or a jail or other facility for the detention of adults and except as provided in subsection E, no child under the age of 18 shall be strip searched or subjected to a search of any body cavity by a law-enforcement officer, as defined in § 9.1-101 , or a jail officer unless the child is in custodial arrest and there is reasonable cause to believe on the part of a law-enforcement officer or jail officer authorizing the search that the child is concealing a weapon. (1981, c. 608; 1995, c. 112; 2020, c. 1236.)

Cross references. - As to punishment for Class 3 and Class 4 misdemeanors, see § 18.2-11 .

The 2020 amendments. - The 2020 amendment by c. 1236 substituted "30 days" for "thirty days" in subsection A; deleted "of this section" following "subsection A" in subsection D; substituted "means" for "shall mean" in subsection F; and added subsection H.

CASE NOTES

Expansive definition of "strip search." - The definition of "strip search" contained in this section is much more expansive than the traditional definition of such a search, because the statute is restricted to non-jailable offenses and offenses punishable by no more than 30 days in jail. McCloud v. Commonwealth, 35 Va. App. 276, 544 S.E.2d 866, 2001 Va. App. LEXIS 213 (2001).

Prohibition inapplicable to arrests for felonies. - By its own terms, this section does not apply to felony offenses and, accordingly, was not implicated where a defendant was arrested for possession of a stolen vehicle, a felony under Virginia law. McCloud v. Commonwealth, 35 Va. App. 276, 544 S.E.2d 866, 2001 Va. App. LEXIS 213 (2001).

This section does not apply to felony detainees, and does not provide a statutory suppression remedy for alleged violations. Craddock v. Commonwealth, 40 Va. App. 539, 580 S.E.2d 454, 2003 Va. App. LEXIS 296 (2003).

Where appellant was subjected to a visual body cavity search while being processed for detention into a jail and appellant argued that there was no medically trained personnel present at the time of the search, appellant was not subject to the provisions of § 19.2-59.1 , because appellant had been charged with a felony. Winston v. Commonwealth, 51 Va. App. 74, 654 S.E.2d 340, 2007 Va. App. LEXIS 485 (2007).

Exclusion of evidence not mandated. - The fact that a search violates a legislative mandate without violating the Constitution does not provide for the exclusion of such evidence. Taylor v. Commonwealth, 28 Va. App. 638, 507 S.E.2d 661 (1998).

Denial of defendant's motion to suppress drugs was proper because, even if there was a U.S. Const., Amend. IV violation, defendant almost certainly would have been denied bail and committed to jail. Once inside, the deputies would have had a reason to believe that defendant was hiding contraband, which would have justified a body cavity search. Bowe v. Commonwealth,, 2010 Va. App. LEXIS 136 (Apr. 6, 2010).

Evidence should have been suppressed. - Trial court erred in denying defendant's motion to suppress evidence obtained as a result of the lawful arrest of defendant on an outstanding warrant, as the search of defendant at a lockup violated defendant's Fourth Amendment rights in a case where defendant was later convicted of possession of cocaine with intent to distribute; contrary to the Commonwealth's argument, the search of defendant was not a less intrusive strip search, but was a more intrusive visual body cavity search where police officers had defendant bend over and spread defendant's buttock cheeks, and the search was unreasonable because police did not have a "clear indication" that evidence was located within defendant's body and the police officers did not show that they faced exigent circumstances that required such an invasive search be performed. King v. Commonwealth, 49 Va. App. 717, 644 S.E.2d 391, 2007 Va. App. LEXIS 194 (2007).

§ 19.2-60. Motion for return of seized property and to suppress.

A person aggrieved by an allegedly unlawful search or seizure may move the court to return any seized property and to suppress it for use as evidence. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted by a court of record, any seized property shall be restored as soon as practicable unless otherwise subject to lawful detention, and such property shall not be admissible in evidence at any hearing or trial. If the motion is granted by a court not of record, such property shall not be admissible in evidence at any hearing or trial before that court, but the ruling shall have no effect on any hearing or trial in a court of record.

(1975, c. 495.)

Law review. - For review of Fourth Circuit cases on habeas corpus and prisoners' rights, see 36 Wash. & Lee L. Rev. 603 (1979).

For comment, see "Commonwealth and Constitution," 48 U. Rich. L. Rev. 415 (2013).

CASE NOTES

I. IN GENERAL.

This section is a procedural statute. Troncoso v. Commonwealth, 12 Va. App. 942, 407 S.E.2d 349 (1991).

Rules governing suppression. - A motion under this section must be decided according to the established rules governing the suppression of evidence. Accordingly, suppression is properly denied absent a showing that the evidence was seized pursuant to a constitutional violation or pursuant to the violation of a statute which expressly provides suppression as a remedy for its breach. Troncoso v. Commonwealth, 12 Va. App. 942, 407 S.E.2d 349 (1991).

Commonwealth's limited right of appeal. - The legislature has narrowly limited the Commonwealth's right to appeal suppression orders of the trial courts to orders which are based on constitutional violations; therefore, where the Commonwealth appealed an order suppressing certain evidence solely on the grounds that the evidence was obtained in violation of § 19.2-59 and this section, the court of appeals would not entertain the Commonwealth's appeal. Commonwealth v. Ragland, 7 Va. App. 452, 374 S.E.2d 183 (1988).

Commonwealth's interlocutory appeal not allowed based on former § 19.2-83 . - Where the trial court's suppressing order was not based on a violation of a provision of the Virginia or federal Constitutions, but was based on former § 19.2-83 , which limited the authority of a police officer to stop, question and search a suspicious person, the interlocutory appeal by the Commonwealth from the order suppressing evidence of cocaine found on the defendant when law-enforcement officers searched him was not one which the Commonwealth was permitted to appeal. Commonwealth v. Brown, 8 Va. App. 41, 378 S.E.2d 623 (1989).

Entry of a knowing and voluntary, but non-conditional plea waived appeal from denial of motion to suppress. - Because defendant did not enter a conditional guilty plea pursuant to § 19.2-254 , to a charge of possession of Oxycodone, but he entered said plea voluntarily and intelligently, he waived his right to appeal from the judgment denying his motion to suppress the evidence seized against him. Hill v. Commonwealth, 47 Va. App. 667, 626 S.E.2d 459, 2006 Va. App. LEXIS 63 (2006).

Where entry reasonable pursuant to emergency doctrine. - Officers' entry of appellant's home was reasonable under the emergency doctrine and appellant's motion to suppress was properly denied because evidence of appellant brandishing and using guns in the home permitted a reasonable officer to conclude that appellant's young daughter might be threatened with serious injury and in need of immediate aid; any error regarding the warrant was harmless because the shotguns and ammunition found pursuant to the warrant were merely cumulative of the weapons found in plain view pursuant to the lawful entry. Stallings v. Commonwealth,, 2007 Va. App. LEXIS 451 (Dec. 18, 2007).

II. MOTION TO SUPPRESS.
A. SEARCH AND SEIZURE.

Consent to search. - Although no warrant exception justified police entry into the mother's apartment where defendant lived, the consent obtained thereafter from the mother was sufficiently an act of free will to purge the primary taint and thus, the trial court properly denied defendant's motion to suppress inculpatory evidence found in defendant's bedroom. Kyer v. Commonwealth, 45 Va. App. 473, 612 S.E.2d 213, 2005 Va. App. LEXIS 193 (2005).

Trial court did not err in denying defendant's motion to suppress, as there was no evidence that the police coerced defendant into consenting to the search; defendant never testified he heard any threats, saw any brandished firearms, observed an overwhelming number of officers, experienced any overt or implicit coercion, or felt he had no choice but to consent. Elliott v. Commonwealth, 61 Va. App. 48, 733 S.E.2d 146, 2012 Va. App. LEXIS 335 (2012).

Since a police officer conducting a traffic stop of defendant's vehicle had already given defendant her documentation back and had informed her that he was only going to give her a warning for her speeding violation while advising her to slow down before he continued questioning her, the traffic stop had concluded, and the ensuing encounter between the officer and defendant needed to proceed on a consensual basis in order for it to be lawful. The continued encounter was not consensual as, when the officer questioned defendant about the possession of illegal drugs, he had not informed defendant that she was free to leave, nor would a reasonable person have felt free to leave since the circumstances did not change from when the officer originally had seized her based on probable cause for the traffic stop; thus, defendant's motion to suppress was properly granted. Commonwealth v. Crooks,, 2012 Va. App. LEXIS 364 (Nov. 15, 2012).

Consensual encounter. - Trial court did not err in denying defendant's motion to suppress a firearm seized from defendant's person. Since defendant did not submit to the officer's assertion of authority when he instructed defendant to take his hands out of his pockets after officers approached him on the streets while investigating a report of drug activity, the encounter remained consensual. Blanchard v. Commonwealth,, 2012 Va. App. LEXIS 110 (Apr. 10, 2012).

Trial court did not err in denying defendant's motion to suppress evidence a police officer obtained from his person after conducting a traffic stop because defendant was not illegally detained, and the search was consensual; when the officer sought permission to search defendant's vehicle the encounter was consensual, and defendant was not seized for purposes of the Fourth Amendment, and a reasonable person would have recognized that the traffic investigation was concluded and that he or she was free to leave and to refuse the officer's request to search. Mayo v. Commonwealth,, 2013 Va. App. LEXIS 57 (Feb. 19, 2013).

Third party consent. - As the peremptory manner in which a homeowner gained access to defendant's rented bedroom, unannounced and without knocking despite knowing defendant was present, would lead a reasonable person to believe that the room was under the homeowner's control as well, an officer's presence in the room was lawful and did not violate defendant's Fourth Amendment rights. Thus, defendant's motion to suppress was properly denied. Sourdiff v. Commonwealth,, 2008 Va. App. LEXIS 534 (Dec. 9, 2008).

Abandoned property admissible. - Trial court erred in granting defendant's motion to suppress, because defendant was unable to meet defendant's burden of proving that defendant retained a reasonable expectation of privacy in the item after defendant tossed it out the window of the moving vehicle, where the evidence did not establish that defendant was subject to a seizure of defendant's person when defendant discarded plastic bag out the window. Commonwealth v. Kennedy,, 2009 Va. App. LEXIS 26 (Jan. 27, 2009).

No reasonable expectation of privacy. - Trial court properly denied defendant's suppression motion as defendant surrendered his expectation of privacy in a tissue and its contents by voluntarily and intentionally dropping them to the ground in a quasi-public place during a consensual encounter with the police; notwithstanding any subjective intention to step on the tissue and to retain or regain control of it, the officers' recovery of the tissue was not an unreasonable search or seizure. Mayfield v. Commonwealth, No. 2713-03-1, 2005 Va. App. LEXIS 14 (Ct. of Appeals Jan. 11, 2005).

Defendant's motion to suppress was properly denied as he failed to show a reasonable expectation of privacy in a motel room where no evidence beyond his presence in the room tended to show that he was in the room with the registered owner's consent. Sharpe v. Commonwealth, 44 Va. App. 448, 605 S.E.2d 346, 2004 Va. App. LEXIS 594 (2004).

Defendant was not entitled to have DNA evidence suppressed because the use of a buccal swab to obtain defendant's DNA profile for comparison with DNA evidence recovered from the victim did not violate defendant's rights under the Fourth Amendment; defendant's reasonable expectation of privacy in the DNA sample ended when defendant voluntarily provided it to police for DNA testing and comparison in another case, without limiting its subsequent use for the same purpose in other investigations. Pharr v. Commonwealth, 50 Va. App. 89, 646 S.E.2d 453, 2007 Va. App. LEXIS 246 (2007).

Trial court properly denied defendant's motion to suppress evidence obtained during a search of a hotel room as he failed to establish a legitimate expectation of privacy. Although defendant claimed his girlfriend was the registered guest, no evidence established the specific identity of the registered occupant; there was no evidence establishing that his girlfriend actually intended for defendant to spend the night, and there was no evidence that defendant had personal belongings in the room. Young v. Commonwealth, No. 1466-12-1, 2013 Va. App. LEXIS 202 (Ct. of Appeals July 16, 2013).

No privacy interest in garbage cans. - Discarded garbage placed on the side of the street for pickup did not fall within any recognized Fourth Amendment privacy interest, and defendant did not have a legitimate privacy interest in it merely because the trash, which defendant testified he placed about two to three feet from the street, could be within the curtilage. Commonwealth v. Bryant,, 2005 Va. App. LEXIS 179 (May 3, 2005).

Search of backpack. - Defendant was not entitled to suppression of evidence seized from a backpack in defendant's grandfather's house after the grandfather gave consent, because it was objectively reasonable for the police officer to conclude that the grandfather's consent to search included the authority to consent to a search of the backpack and defendant was present but failed to object to search. Glenn v. Commonwealth, 275 Va. 123 , 654 S.E.2d 910, 2008 Va. LEXIS 16 (2008).

Denial of defendant's motion to suppress was proper, where the officer had the driver's unrestricted consent to search the car containing defendant's bookbag; defendant left the bookbag in the car, knowing the car was to be searched; and defendant failed to make any objection to the search of the bookbag, despite ample opportunity to do so. Vaughan v. Commonwealth, 53 Va. App. 435, 672 S.E.2d 909, 2009 Va. App. LEXIS 82 (2009).

Handgun seized following a warrantless search of defendant's backpack was not admissible based on abandonment, where the trial court made no factual finding that defendant left the backpack in the office to conceal if from police, or otherwise intended to discard it or its contents. Nor was the fact that defendant told the officer that the handgun was in the backpack an "independent source," as the information obtained by the officer during the warrantless search was clearly used to secure defendant's admission. Knight v. Commonwealth, 61 Va. App. 297, 734 S.E.2d 716, 2012 Va. App. LEXIS 406 (2012).

Search warrant not supported by probable cause. - Although a search warrant affidavit failed to provide a sufficient nexus between drugs and defendant's residence to support probable cause under the Fourth Amendment, it was not so lacking in probable cause as to render official belief in the warrant objectively unreasonable. The good faith exception prevented application of the exclusionary rule, and defendant's pre-trial motion to suppress evidence was properly denied. Sowers v. Commonwealth, 49 Va. App. 588, 643 S.E.2d 506, 2007 Va. App. LEXIS 172 (2007).

Good faith exception. - Where defendant was convicted of second-degree murder, items seized at defendant's residence pursuant to a search warrant were properly admitted because: (1) the totality of the circumstances could be considered when deciding the question of good faith; and (2) the Leon good-faith exception to the exclusionary rule applied since the warrant stated that the residence was located on the same street as the shooting and the criminal complaint listed defendant's address, which was the same address as the residence. Adams v. Commonwealth, 275 Va. 260 , 657 S.E.2d 87, 2008 Va. LEXIS 40 (2008).

Exclusionary rule of U.S. Const. amend. IV did not mandate suppression of evidence found during a search of defendant as the searching officer relied on information provided by a dispatcher that there was outstanding warrant for defendant's arrest. Thus, the officer was objectively reasonable in arresting and searching defendant incident to that arrest. Bellamy v. Commonwealth, 60 Va. App. 125, 724 S.E.2d 232, 2012 Va. App. LEXIS 130 (2012).

"Good faith" exception applied and motion to suppress should have been denied, because, while the officer mistakenly failed to indicate that the information in the affidavit came from an informant rather than from the officer's personal knowledge, there was no reason to believe that the magistrate would have been misled to conclude that the officer was the source of the information since the affidavit itself indicated that the informant was the source of the information. Commonwealth v. Becerra-Ochoa,, 2013 Va. App. LEXIS 62 (Feb. 26, 2013).

Search incident to valid arrest. - Motion to suppress was improperly granted because defendant was not seized for purposes of the Fourth Amendment when the officer parked 20 to 30 feet from the car where defendant was sitting and asked for and received identification; once the officer learned of the outstanding warrant for defendant, the encounter became a lawful seizure and evidence found during the search incident to defendant's arrest was lawfully obtained. Commonwealth v. Belfield,, 2007 Va. App. LEXIS 256 (June 26, 2007).

Cocaine found on defendant during a search incident to defendant's arrest for public drunkenness was erroneously suppressed as a police officer had probable cause to arrest defendant for public drunkenness under § 18.2-388 , since defendant was found drunk and sleeping in a car in a parking lot open to the public and routinely used by apartment residents and guests; it did not matter for Fourth Amendment purposes that defendant was charged under a City ordinance with a more narrow scope than the state public drunkenness statute. Commonwealth v. Carter,, 2007 Va. App. LEXIS 344 (Sept. 14, 2007).

Denial of defendant's motion to suppress was proper, because the officer had probable cause to believe that defendant had or was committing crime of possessing marijuana based on the strong odor emanating from defendant; thus, the officer had probable cause to arrest defendant and therefore, the officer was entitled to conduct a full search of defendant's person. Askew v. Commonwealth,, 2009 Va. App. LEXIS 133 (Mar. 24, 2009).

Denial of defendant's motion to suppress evidence seized from defendant's person incident to a warrantless arrest was upheld, because the officers had probable cause for the warrantless arrest given verified information from a confidential informant regarding defendant's identity, automobile, and destination, and the officers' observations of defendant's suspicious behavior and interactions with a man at the subject location. Robinson v. Commonwealth, 53 Va. App. 732, 675 S.E.2d 206, 2009 Va. App. LEXIS 174 (2009).

There was no error in the denial of a motion to suppress evidence obtained in a search incident to arrest because the initial encounter between defendant and a police officer was consensual where the officer made no show of force or authority nor did she physically restrain defendant in any way during the encounter and the interaction prior to defendant's arrest lasted only five to seven minutes. Muhammad v. Commonwealth,, 2010 Va. App. LEXIS 163 (Apr. 27, 2010).

Trial court did not err in refusing to suppress evidence because evidence obtained from independent sources provided probable cause for defendant's arrest and the accompanying search of his vehicle for a crime committed only hours earlier; the focus on defendant as a suspect did not begin with the placement of a global positioning system device on his vehicle. Hill v. Commonwealth, No. 1828-11-3, 2012 Va. App. LEXIS 318 (Ct. of Appeals Oct. 9, 2012).

Inevitable discovery doctrine. - Trial court properly denied defendant's motion to suppress, because even assuming, without deciding, that the state trooper violated defendant's Fourth Amendment rights by searching a cigarette box without probable cause, the evidence was nonetheless admissible under the inevitable discovery doctrine, as there was a reasonable probability that the evidence would have been discovered during a search incident to a lawful arrest, made after the trooper searched defendant's vehicle pursuant to defendant's consent. Bell v. Commonwealth,, 2009 Va. App. LEXIS 9 (Jan. 13, 2009).

Probable cause to arrest found. - Denial of motion to suppress was proper because the officers had probable cause to arrest defendant based on the officer's belief that defendant constructively possessed the cocaine found in the console of the vehicle; among other things, the vehicle's owner admitted possessing smoking devices found in the vehicle but denied any knowledge of the container where the drugs were found and the officers were armed with the additional knowledge that defendant had just engaged in suspicious behavior suggestive of a drug transaction with a person traveling in a rental vehicle, and they observed a large bulge in his pants pocket that defendant admitted was a roll of cash. Dodd v. Commonwealth, 50 Va. App. 301, 649 S.E.2d 222, 2007 Va. App. LEXIS 316 (2007).

Trial court erred in suppressing a firearm found at the scene because the officers had probable cause to arrest defendant based on information received from an informant that the officers spoke to face-to-face; when officers first encountered defendant the defendant was nervous and determined to convince the officers that the defendant did not have a gun, even though the officers never mentioned that officers suspected the defendant had one; and an officer then found a gun in a vehicle the exact place defendant had been standing when the officers first spotted defendant. Commonwealth v. Moody, No. 1046-08-2, 2008 Va. App. LEXIS 438 (Sept. 30, 2008).

Grant of motion to suppress was error, where an officer had probable cause to arrest defendant after noticing a car parked next to a closed salvage yard, seeing defendant flee from the salvage yard, finding the lock on the salvage yard gate broken, discovering a hacksaw inside a duffle bag underneath a truck in the salvage yard, and finding, during consensual search, used car parts in the trunk of defendant's car. Commonwealth v. Butler,, 2009 Va. App. LEXIS 20 (Jan. 15, 2009).

Trial court did not err by denying defendant's motion to suppress because the totality of the circumstances provided police officers with probable cause to arrest defendant for a robbery; the police had received an anonymous tip linking defendant to the crimes, had observed him attempt to flee, located a cap matching a description of the cap the robber wore inside the residence where he was found, and had obtained an eyewitness identification of defendant as the robber. Smith v. Commonwealth,, 2009 Va. App. LEXIS 269 (June 16, 2009).

Defendant's suppression motion was properly denied where the police possessed probable cause to arrest defendant when defendant arrived at a parking lot to sell marijuana because an informant identified defendant as a marijuana dealer, and the police overheard a phone call with a person identified as defendant arranging for a marijuana purchase at the parking lot. Gholston v. Commonwealth,, 2010 Va. App. LEXIS 202 (2010).

Defendant's motion to suppress evidence was properly denied because recovery of a firearm and cocaine evidence stemmed from a search incident to a lawful arrest where officers stopped defendant's car for failing to stop at a stop sign and an officer smelled marijuana coming from the car, which gave the officers probable cause to not only search the car but to search the individuals within the car. Price v. Commonwealth,, 2010 Va. App. LEXIS 194 (May 11, 2010).

Trial court did not err in denying defendant's motion to suppress cocaine the police discovered in defendant's vehicle incident to an arrest on a separate charge because the police did not rely on the passenger of the vehicle as an informant since the passenger was not an informant, and his reliability and basis of knowledge were not factors in determining whether the police had probable cause to arrest defendant; unlike an anonymous tipster, the passenger was known to the police and personally spoke with them, and by telling the police that defendant was the driver and possessed the cocaine, the passenger was subjecting himself to possible arrest if the information proved false under § 18.2-461 , placed his credibility at risk, and he could not lie with impunity. Jones v. Commonwealth,, 2011 Va. App. LEXIS 98 (Mar. 22, 2011).

Trial court did not err in denying defendant's motion to suppress cocaine the police discovered in defendant's vehicle incident to an arrest on a separate charge because the police had probable cause to arrest defendant since a reasonable officer could conclude that there was probable cause to believe that defendant committed the crime of possession of cocaine, either solely or jointly; it was an entirely reasonable inference from the facts that either defendant or a passenger had knowledge of, and exercised dominion and control over, the cocaine. Jones v. Commonwealth,, 2011 Va. App. LEXIS 98 (Mar. 22, 2011).

Trial court did not err in denying defendant's motion to suppress, where it was clear that the trial court was referring to the probable cause standard when it denied the motion by stating that the officer "had reason to believe" that a crime was being committed and there was abundant evidence that defendant was disregarding the officer's signal or attempting to escape or elude the officer. Proffitt v. Commonwealth, No. 1424-10-2, 2011 Va. App. LEXIS 339 (2011).

Trial court erred in granting defendant's motion to suppress his statement to an arresting officer that he had taken an item from a store because under the totality of the circumstances, there was probable cause to arrest defendant since he matched the description given by an eyewitness and was apprehended near the scene of the crime; when the arrest officer found defendant in a library he knew that a shoplifting had occurred at the store located across the street and that the suspect was a white male wearing a gray hooded sweatshirt who fled toward the library. Commonwealth v. Hicks, No. 1742-11-3, 2012 Va. App. LEXIS 33 (Ct. of Appeals Feb. 7, 2012).

Trial court properly denied defendant's motion to suppress drug evidence found in a search incident to defendant's arrest. Assessing defendant's encounter with the officer objectively, the officer had probable cause to arrest defendant for misdemeanor littering under § 33.1-346 [now § 33.2-802 ] from the moment defendant removed his coat and dropped it in the street while running from the officer. Bynum v. Commonwealth, No. 0273-12-1, 2012 Va. App. LEXIS 408 (Dec. 18, 2012).

No probable cause to arrest. - Motion to suppress heroin was improperly denied because the informant's tip did not provide probable cause to arrest defendant. The informant provided no basis for the claim that defendant was in possession of drugs; the informant did not provide such detailed information that a court could infer that the informant had personal knowledge of the alleged illegal activity; and the informant's history of reliability was not so great that it could, standing alone, support a finding of probable cause. Byrd v. Commonwealth, 50 Va. App. 542, 651 S.E.2d 414, 2007 Va. App. LEXIS 394 (2007).

Defendant's motion to suppress evidence resulting from the search of his person was properly granted because detectives lacked probable cause to arrest defendant; the detectives had insufficient knowledge to provide them with probable cause to believe that defendant was a drug source, there was no evidence that the detectives observed anything other than innocent behavior when defendant approached the driver of a car, and the detectives overheard none of the conversation between defendant and the driver. Commonwealth v. Williams,, 2008 Va. App. LEXIS 229 (May 13, 2008).

Because an officer lacked probable cause to arrest defendant for possession of marijuana, reliance upon the officer's detection of an unidentified "faint odor" was insufficient to create probable cause, and defendant's suspicious behavior as an intoxicated person did not warrant any further investigation, denial of her suppression motion was reversed. Buhrman v. Commonwealth, 275 Va. 501 , 659 S.E.2d 325, 2008 Va. LEXIS 43 (2008).

Defendant not in custody. - Where defendant voluntarily accompanied officers to the police station, the detectives told defendant he was not under arrest and was free to leave, and the behavior of the officers supported their statements, the evidence supported a finding that defendant was not in custody when he made his first confession. Olson v. Commonwealth, No. 2462-06-1, 2008 Va. App. LEXIS 95 (Feb. 26, 2008).

Plain view doctrine. - Motion to suppress was properly denied because the police officer did not violate defendant's constitutional rights under the Fourth Amendment by using a flashlight to illuminate contraband in defendant's pocket during the night hours; the officers' use of a flashlight to illuminate the interior of defendant's jacket pocket, which illuminated what defendant had exposed in plain view, did not change the plain view nature of the discovery. Gibson v. Commonwealth, 50 Va. App. 744, 653 S.E.2d 626, 2007 Va. App. LEXIS 446 (2007).

Reasonable, articulable suspicion. - Firearm should have been suppressed because the seizure that led to its discovery was unreasonable under the Fourth Amendment; although the officer had reasonable suspicion to believe that defendant possessed a firearm, nothing in the record provided reasonable suspicion for the belief that defendant was carrying the firearm in a legally proscribed manner. The informant provided no explanation for the basis for the belief that defendant might have had an outstanding warrant, and knowledge that defendant possessed a handgun and was trying to sell it in a high-crime, high-drug area contributed nothing to the reasonable, articulable suspicion required for a Terry stop. Goodman v. Commonwealth,, 2007 Va. App. LEXIS 383 (Oct. 16, 2007).

Trial court erred in granting defendant's motion to suppress evidence a police officer obtained pursuant to a traffic stop of his vehicle because a broken brake light provided the officer with reasonable suspicion to conduct a traffic stop; because § 46.2-1014.1 required defendant's vehicle to be equipped with a supplemental center high mount stop light, and the officer observed that the light was defective, the officer had reasonable suspicion to believe defendant was in violation of § 46.2-1003 . Commonwealth v. Gaskins,, 2011 Va. App. LEXIS 180 (May 24, 2011).

Denial of defendant's motion to suppress was proper, because the information provided to the officers by the two unwitting informants gave the officers reasonable suspicion to justify the seizure, and the informants' reliability was based on the female informant's previously having provided information and completed two controlled buys, and the male informant's prediction of defendant's arrival in a green car. Johnson v. Commonwealth,, 2009 Va. App. LEXIS 193 (Apr. 28, 2009).

Trial court did not err in denying defendant's motion to suppress evidence because police officers had a particularized and objective basis for suspecting that defendant was involved in criminal activity since defendant was loitering in a known open-air drug market and was talking to people whom a trained and experienced police officer knew to be drug dealers; defendant was observed waving at vehicles in the area of high drug activity, which the officer, who was an expert in street-level drug transactions, testified was behavior consistent with soliciting potential drug sales. Baker v. Commonwealth,, 2010 Va. App. LEXIS 444 (Nov. 9, 2010).

Trial court did not err in denying defendant's motion to suppress drugs seized from his car because defendant's brief detention was based upon a reasonable suspicion of criminal activity, and because defendant's uncle ran to defendant's car, a police officer's suspicions of criminal activity were specifically and reasonably directed toward defendant; when the uncle exited defendant's vehicle at the officer's approach and dropped a baggie of cocaine the officer's original suspicions were confirmed with respect to the uncle, and with respect to defendant, the officer's original suspicions were not only unresolved but based upon his experience in narcotics transactions, were also heightened due to the uncle's proximity to him. Perry v. Commonwealth,, 2010 Va. App. LEXIS 406 (Oct. 19, 2010).

Motion to suppress was properly denied where officer had reasonable, articulable suspicion to stop defendant's vehicle based on the officer's observation that the license plate decal referring to the month of registration on defendant's car appeared to be ripped in half. Based on that circumstance, a reasonable officer certainly would have suspected that the decal was cut up or altered radically and therefore, had been mutilated under § 46.2-607 . Williams v. Commonwealth,, 2011 Va. App. LEXIS 41 (Feb. 8, 2011).

Evidence found during an investigatory stop was admissible, because the circumstances justified reasonable suspicion that defendant might not have been using an unregistered truck consistent with the statutory exemptions for farm use vehicles; the truck displayed a store-bought farm use tag, three people were in the truck, and the truck was on the road late at night in the winter after a snowstorm. Shifflett v. Commonwealth, 58 Va. App. 732, 716 S.E.2d 132, 2011 Va. App. LEXIS 314 (2011).

Motion to suppress was properly denied, because, police had a reasonable, articulable suspicion that defendant was engaged in criminal activity, i.e., that he was in possession of contraband when they seized defendant, and defendant did not merely refuse to consent or cooperate, he initially agreed to both a pat down and a search of his outer clothing for drugs, weapons, and other illegal items and then lied about the existence of interior pockets. Hargrove v. Commonwealth,, 2012 Va. App. LEXIS 25 (Jan. 31, 2012).

Trial court did not err in denying defendant's motion to suppress a firearm seized from defendant's person. The officer had reasonable suspicion under U.S. Const. amend. IV that defendant possessed a concealed weapon, justifying a pat down, as defendant kept placing his hands in his pockets despite instructions to remove them, he was sweating profusely on a cold night, and he was nervous. Blanchard v. Commonwealth,, 2012 Va. App. LEXIS 110 (Apr. 10, 2012).

Defendant's motion to suppress was properly denied, where the officer's observations of defendant and another sitting in a vehicle in an area known for drug trafficking and making furtive gestures contributed to providing a reasonable officer with reasonable, articulable suspicion that defendant was connected with criminal activity that was afoot. Beasley v. Commonwealth, 60 Va. App. 381, 728 S.E.2d 499, 2012 Va. App. LEXIS 232 (2012).

Police officer had reasonable suspicion to believe that criminal activity was afoot and was duty bound to further investigate after the officer observed two individuals in a stairwell of an apartment complex known as a high crime area and, upon the officer's arrival, defendant's companion threw down an object, which the officer suspected was drugs. Ferguson v. Commonwealth,, 2013 Va. App. LEXIS 33 (Jan. 29, 2013).

Reasonable suspicion that criminal activity was afoot. - Motion to suppress was properly denied because the officer had reasonable suspicion to believe that criminal activity was afoot, thereby supporting the stop and frisk under Terry . Defendant walked away from the car at a fast pace as the officer approached, despite the fact that defendant had only been at the car window a few seconds; as defendant walked away, defendant was digging in defendant's pocket, causing the officer to believe defendant was reaching for a weapon; and defendant failed to heed the officer's repeated demands to stop. Thomas v. Commonwealth,, 2007 Va. App. LEXIS 384 (Oct. 16, 2007).

Trial court's order suppressing a baggie containing cocaine was erroneous because the investigatory stop of defendant was supported by reasonable suspicion that criminal activity was afoot; the evidence showed that defendant waived the baggie at two complete strangers, kissed it, and exclaimed "Woo" before driving off, and that the off-duty officer witnessing the behavior recognized the baggie as the type used to package cocaine. Commonwealth v. Jenkins,, 2007 Va. App. LEXIS 377 (Oct. 9, 2007).

Motion to suppress should not have been granted where the totality of the circumstances supported an officer's reasonable suspicion to detain defendant; the officer observed a known drug user put his hands into a car in which defendant sat, the user withdrew his hands when he saw the officer approach, defendant moved his hands to the glove compartment and then to the floorboard, and the officer conducted a protective sweep. Commonwealth v. Granger, No. 2082-07-1, 2008 Va. App. LEXIS 68 (Feb. 12, 2008).

Trial court did not err in denying defendant's motion to suppress evidence obtained as the result of an investigative detention because defendant's apparent attempt to move his hand-rolled cigarette to a place where police officers could not see it, together with his headlong flight when the officers approached him, met the standard of a reasonable suspicion of criminal activity; the trial judge did not err in considering defendant's flight from the officers in deciding his motion to suppress because defendant had not yet been seized at the time he ran away. Carter v. Commonwealth,, 2008 Va. App. LEXIS 177 (Apr. 15, 2008).

Motion to suppress a butterfly knife was properly denied where an officer had a reasonable articulable suspicion to detain defendant and determine whether he was involved in the use of narcotics. The totality of the circumstances were that: (1) the police spotted defendant, a habitual user of narcotics, loitering in an area known for drug distribution and use; (2) he entered a van, traveled to another location with two other men, and then huddled with them outside the van while one of the men was bent over and using a lighter in a manner consistent with inhaling crack cocaine; (3) defendant repeatedly looked over his shoulder, as if watching for the police or others; and (4) one of the men fled as the police officers converged, consistent with a diversionary tactic commonly used to divert officers' attention and permit the other members of the group to dispose of contraband. Thompson v. Commonwealth, 51 Va. App. 205, 656 S.E.2d 409, 2008 Va. App. LEXIS 59 (2008), rev'd, 277 Va. 280 , 673 S.E.2d 469 (2009) (as to whether butterfly knife was weapon of like kind).

Trial court did not err by denying defendant's motion to suppress because the facts known to officers at the time of the traffic stop of defendant were sufficient to justify the stop and constituted reasonable articulable facts of criminal activity; the police had determined that defendant was a suspect in a series of commercial burglaries and tracked his vehicle to an office park when no business was being conducted, and the person who left the building carrying a concealed object matched defendant's description and got in a car known to be registered to him. Baker v. Commonwealth,, 2011 Va. App. LEXIS 358 (Nov. 22, 2011).

Trial court did not err in denying defendant's motion to suppress cocaine that he spit from his mouth because the facts were sufficient to establish both reasonable suspicion for defendant's detention at the time he was removed from a car and probable cause to search him when an officer ordered him to open his mouth; the totality of the circumstances, viewed in light of the officer's experience, were sufficient to provide him with reasonable suspicion to believe criminal activity was afoot and that defendant was involved in it. King v. Commonwealth,, 2012 Va. App. LEXIS 143 (May 8, 2012).

Lack of reasonable suspicion to initiate a pat down. - Denial of motion to suppress was error, because the officer lacked reasonable suspicion to pat down defendant based only on the fact that defendant was loitering in front of a store known to be the site of drug distribution and drug arrests and defendant appeared nervous; no other facts suggested that defendant was involved in the distribution of drugs, such as hand-to-hand transaction, contact with other, or maintenance of a stash. Thompson v. Commonwealth, 54 Va. App. 1, 675 S.E.2d 832, 2009 Va. App. LEXIS 212 (2009).

Trial court erred in denying defendant's motion to suppress a glass pipe a police officer recovered during a pat down because the officer failed to articulate any facts and circumstances that, when viewed objectively, would lead any reasonable police officer to conclude that defendant was armed or dangerous; although defendant seemed nervous at the prospect of being patted down, the record contained no factual evidence from which any reasonable police officer could infer that he was either violent or that he was in possession of a weapon. Baker v. Commonwealth, 57 Va. App. 181, 700 S.E.2d 160, 2010 Va. App. LEXIS 404 (2010).

Tip failed to support deputy's answer and resulting evidence inadmissible. - Evidence was properly suppressed because, even if the informant was known and met the highest indicia of reliability, the tip failed to support the deputy's seizure of defendant because the tip did not relay information describing possible illegal activity that was corroborated by the officer. Commonwealth v. Johnson,, 2008 Va. App. LEXIS 394 (Aug. 11, 2008).

Legal basis to detain. - Denial of defendant's motion to suppress was proper where the police officer had a legal basis to detain defendant based on defendant's presence in a restaurant parking lot at 12:40 a.m., when the restaurant was closed, and the posted warning sign that reserved use of the parking lot for patrons only; the fact that the officer's suspicion of trespassing could have been wrong did not make it unreasonable. Raab v. Commonwealth, 50 Va. App. 577, 652 S.E.2d 144, 2007 Va. App. LEXIS 444 (2007).

Protective sweep. - Because defendant claimed to be "heavily armed," and the police believed that another person might be in the residence, a protective sweep that took place immediately after defendant was arrested outside the residence did not violate the Fourth Amendment, and the officers could seize a gun that was found in plain sight; therefore, the trial court properly denied defendant's § 19.2-60 motion to suppress. Williams v. Commonwealth, 49 Va. App. 439, 642 S.E.2d 295, 2007 Va. App. LEXIS 113 (2007).

Investigatory stop. - Given the circumstances, in which officers stopped defendant after a reported bank robbery, they had ample reason to restrain defendant by handcuffing defendant and placing defendant in a patrol car during an investigatory stop. The officers faced exactly the kind the situation the Fourth Amendment placed outside the reach of "unrealistic second-guessing" by courts. Archie v. Commonwealth,, 2007 Va. App. LEXIS 286 (July 31, 2007).

Denial of defendant's motion to suppress was proper because the investigatory stop was based on reasonable, articulable suspicion that defendant was trespassing on the subject property, owned by the housing authority; defendant's subsequent admission to trespassing led to his arrest and a valid search, which led to the discovery of the drugs. Watson v. Commonwealth,, 2007 Va. App. LEXIS 408 (Nov. 13, 2007).

Trial court properly admitted a firearm into evidence where defendant's actions, walking around to the passenger side of the parked car after being told to stop by the officers, sitting down in the car, and making furtive gestures underneath the passenger seat, provided reasonable suspicion criminal activity was afoot; in addition, the driver's consent to search the vehicle provided an independent basis for the search of the vehicle. Woodhouse v. Commonwealth, No. 1643-06-1, 2008 Va. App. LEXIS 1 (Jan. 8, 2008).

Because a dog's alert created probable cause to search defendant's car, defendant's motion to suppress the firearm found in the vehicle's trunk was properly denied. Jones v. Commonwealth, No. 1190-07-1, 2007 Va. App. LEXIS 499 (Oct. 30, 2007), aff'd, 277 Va. 171 , 670 S.E.2d 727 (2009).

Evidence supported the denial of defendant's motion to suppress because the police developed, first, reasonable suspicion for the detention and, then, probable cause for defendant's arrest, and the evidence supported a finding that, at the time of the seizure, reasonable suspicion existed to believe defendant could have been involved in a crime; when the officer first approached defendant she knew that he fit the robber's general description, defendant admitted that he had just come from the shopping center in which the robbery had occurred, and once the seizure had occurred, officers worked to confirm or dispel the suspicions supporting the detention. Clark v. Commonwealth, No. 0946-10-1, 2011 Va. App. LEXIS 282 (Sept. 20, 2011).

Reasonable suspicion required to make investigatory stop. - Trial court erred in denying defendant's motion to suppress because the officer lacked the reasonable suspicion required to conduct an investigative traffic stop under the Fourth Amendment; the anonymous tip received by the officer failed to include predictions about defendant's future behavior and the officer observed defendant driving within the speed limit and did not see defendant's car swerve. Harris v. Commonwealth, 276 Va. 689 , 668 S.E.2d 141, 2008 Va. LEXIS 108 (2008), cert. denied, 2009 U.S. LEXIS 7645 (U.S. 2009).

Evidence deemed admissible. - Trial court correctly refused to suppress either the weapon found on the defendant during a pat down search, following a tip from a concerned citizen that the defendant was brandishing a weapon, or the crack cocaine found on the defendant during a search incident to the defendant's arrest because the tip provided information permitting the officers to reasonably infer that it: (1) came from a concerned citizen making a contemporaneous, eyewitness report; (2) involved an open and obvious crime rather than mere concealed illegality; and (3) described criminality posing an imminent danger to the public, therefore, the officers correctly concluded the totality of the circumstances raised a reasonable suspicion to believe that criminal activity may be afoot. Jackson v. Commonwealth, 39 Va. App. 624, 576 S.E.2d 206, 2003 Va. App. LEXIS 37 (2003).

Defendant's broad and unfocused questions to law-enforcement officers, and continuous insistence on desiring to talk to them about his passenger's involvement in suspicious activity, despite numerous warnings given to him regarding his rights under Miranda, established that police did not violate his right to counsel and right to remain silent; thus, the trial court properly denied suppression of the evidence seized and his statements, and his convictions for possession with intent to distribute and transporting more than one ounce of cocaine into the Commonwealth with the intent to distribute were affirmed. Medley v. Commonwealth, 44 Va. App. 19, 602 S.E.2d 411, 2004 Va. App. LEXIS 453 (2004).

Trial court properly denied suppression of the evidence seized against defendant, where officers had reason to believe that defendant was involved in a drug transaction in a high-drug trafficking area, defendant had prior arrests for narcotics violations, intelligence supplied information that defendant had possessed a firearm in that same location, and an officer knew that defendant had been previously convicted of a felony when he felt a gun on defendant's waistband. Spinner v. Commonwealth, No. 2548-03-3, 2004 Va. App. LEXIS 490 (Ct. of Appeals Oct. 12, 2004).

In the prosecution of possession of cocaine with intent to distribute, the trial court did not err in denying defendant's motion to suppress evidence seized from his person, because: (1) defendant's non-verbal response to an investigating officer intimated that defendant was inviting a pat-down frisk of his person, by automatically assuming the frisk position; and (2) defendant could not be heard to complain by his voluntary acts of submitting to a pat-down frisk, given that the encounter was brief and defendant was not boxed in; moreover, the record adequately reflected that it was immediately apparent to the officer from his initial pat-down that the flat oblong, odd shaped rock he felt in defendant's pant pocket was crack cocaine. Graham v. Commonwealth,, 2005 Va. App. LEXIS 287 (July 19, 2005).

Defendant's motion to suppress evidence was properly denied; although defendant's property was transferred to federal authorities, it never lost its status as evidence, and defendant failed to formally move for the return of his property as required by §§ 19.2-58 and 19.2-60 , so defendant's prostitution-related convictions were appropriate. United States v. Jenkins, 149 Fed. Appx. 129, 2005 U.S. App. LEXIS 18376 (4th Cir. Aug. 25, 2005), cert. denied, 546 U.S. 1120, 126 S. Ct. 1092, 163 L. Ed. 2d 907 (2006).

Based on a citizen informant's statement that defendant confessed the burglary to her, the victim's information, and the victim's sister's statement that defendant's DVD collection was bigger after the burglary, the officer had probable cause to obtain a search warrant and to freeze the scene by excluding people from the premises for a reasonable time while obtaining a warrant; that same information provided officers with at least reasonable suspicion to detain defendant for a reasonable period of time while obtaining and executing a search warrant. Because the evidence supported a finding that the actions of the police were reasonable under the circumstances, their decision to freeze the scene by requiring defendant to stay and preventing others from entering did not compel the conclusion that her consent to the search of her house was involuntary, and, furthermore, the officers' failure to clearly indicate to defendant that she had a legal right to delimit the scope of the search did not compel the conclusion that her consent to search the house was involuntary. Thomas v. Commonwealth,, 2005 Va. App. LEXIS 363 (Sept. 20, 2005).

Under the plain feel exception, the officer's belief that the substance was marijuana upon patting defendant's pocket and without further manipulating its contents, if found credible by the trial court, was sufficient to provide probable cause to seize the contents of the pocket; thus, where the events leading up to the same were consensual, the trial court properly denied defendant's motion to suppress the contraband seized. Taylor v. Commonwealth, No. 2856-04-2, 2006 Va. App. LEXIS 78 (Mar. 7, 2006).

Defendant's motion to suppress a photograph was properly denied as two officers did not turn a consensual encounter into a seizure when they photographed defendant; the officers only had a conversation with defendant and asked for permission to photograph him. They did not coerce defendant into compliance as neither officer physically touched defendant, made any threats or demands, drew their weapons, or engaged in any other form of aggressive behavior. Clay v. Commonwealth,, 2006 Va. App. LEXIS 118 (Mar. 28, 2006).

Motion to suppress was erroneously granted because the search of defendant's purse did not violate the Fourth Amendment where it was conducted incident to a valid arrest. The officer's had probable cause to stop defendant's vehicle for a traffic violation, the officers did not impermissibly extend scope of the stop by asking defendant questions about drug paraphernalia, and the officers had probable cause to arrest defendant based on her admission to possession of a crack cocaine stem. Commonwealth v. Briggs,, 2006 Va. App. LEXIS 125 (Apr. 4, 2006).

Trial court did not err in denying defendant's motion to suppress the cocaine seized from his person after his valid arrest merely because the police conducted a warrantless strip and body cavity search, as an officer removed a protruding bag of suspected narcotics from defendant's anus without exposing his genitals or anal cavity upon being told by defendant's wife that such would be found therein; hence, the search was incidental to defendant's arrest, not an improper strip or body cavity search, and was not unreasonable under the Fourth Amendment. Nowlin v. Commonwealth, No. 3050-05-4, 2006 Va. App. LEXIS 552 (Dec. 12, 2006).

Evidence obtained in a warrantless search was admissible because the officers were justified in searching for a weapon, seizing that weapon, and arresting defendant after defendant raised his arms in air and revealed a bulge in his clothing that the officer tapped with a flashlight causing a noise he believed indicated the presence of a "heavy metal object," which the officer then believed to be a weapon. Taylor v. Commonwealth,, 2007 Va. App. LEXIS 54 (Feb. 20, 2007).

Defendant's motion to suppress was properly denied, as evidence of wire transfers from defendant to Trinidad and Tobago, the last one being only three days before the first package of cocaine arrived at defendant's apartment, was admissible because it was not so remote in time as to be without probative value; nor was it speculative. Patton v. Commonwealth,, 2007 Va. App. LEXIS 295 (Aug. 7, 2007).

Because the facts and circumstances surrounding defendant's arrest outside of his home justified a warrantless search of that home, after officers broke through the barricaded door of the home after apprehending defendant, pursuant to either the exigent circumstances or protective sweep exceptions to the warrant requirement, the Court of Appeals did not err in reversing the circuit court's denial of defendant's motion to suppress the evidence seized as a result. Commonwealth v. Robertson, 275 Va. 559 , 659 S.E.2d 321, 2008 Va. LEXIS 49 (2008).

Defendant's motion to suppress was properly denied since the officers had reasonable articulable suspicion that defendant possessed a concealed weapon, a "black object" in a bag in defendant's vehicle, and that such possession rendered defendant potentially armed and dangerous. The officer's search of the bag was reasonable, as the bag was within defendant's immediate control, was big enough to contain a weapon, and the officer felt a hard object inside before the officer opened the bag. Jones v. Commonwealth, 52 Va. App. 548, 665 S.E.2d 261, 2008 Va. App. LEXIS 410 (2008).

Denial of defendant's motion to suppress drugs discovered during a pat down was proper, because the officer's initial approach was consensual, the officer did not seize defendant until the officer discovered that defendant was trespassing, and the officer's frisk of defendant, to determine if defendant was armed, did not exceed its proper constitutional scope. Bandy v. Commonwealth, 52 Va. App. 510, 664 S.E.2d 519, 2008 Va. App. LEXIS 382 (2008).

Denial of defendant's motion to suppress was not erroneous since the facts omitted from the affidavit in support of the search warrant did not have a bearing on the existence of probable cause. In addition, the fact that the police initiated contact with the victim was not material to whether there was probable cause defendant obtained money from the victim by false pretenses. Milian v. Commonwealth,, 2008 Va. App. LEXIS 435 (Sept. 23, 2008).

Trial court did not err in denying defendant's motion to suppress, because a reasonably prudent police officer, under the circumstances, would have conducted a pat-down search for the officer's safety and the protection of others after encountering defendant in a parking lot at 3:00 a.m. when responding to a "narcotics-in-progress" call and defendant admitted that defendant was not a registered guest at the motel. Miller v. Commonwealth,, 2008 Va. App. LEXIS 495 (Nov. 4, 2008).

Denial of motion to suppress was proper where the officer handling the narcotics detection dog testified that the officer and the dog trained for eight hours every two weeks, the dog had been with the police for four and a half years, and the dog received training at Virginia Police Work Dog Association, the dog's training and experience was sufficient to establish the dog's reliability and supported a finding of probable cause for the officer's search of defendant's vehicle. Jones v. Commonwealth, 277 Va. 171 , 670 S.E.2d 727, 2009 Va. LEXIS 10 (2009).

Trial court properly denied defendant's motion to suppress, because defendant's encounter with the officers could not be fairly characterized as a seizure; an officer did nothing more than initiate a conversation with defendant and ask if defendant would identify himself, defendant willingly produced ID card, and there was no threat, show of force, or intimidation. Venable v. Commonwealth,, 2008 Va. App. LEXIS 570 (Dec. 30, 2008).

Because the trial court explicitly declined to credit the portion of defendant's mother's testimony that supported defendant's argument that her consent to a search of her residence was coerced, defendant's motion to suppress was properly denied. Waller v. Commonwealth,, 2009 Va. App. LEXIS 103 (Mar. 4, 2009).

Police had probable cause to seize the firearm and reasonable suspicion to detain defendant where the firearm, which was under the armrest of defendant's car, was sufficiently hidden to give police officers probable cause to believe the object was evidence that defendant had committed the crime of concealing a weapon. The fact that defendant had been sitting alone in the car was sufficient to provide a reasonable officer with probable cause to believe that defendant had a firearm "about his person," in violation of § 18.2-308 . White v. Commonwealth,, 2009 Va. App. LEXIS 107 (Mar. 4, 2009).

Denial of defendant's motion to suppress was proper, where the police officer initiated a consensual encounter with defendant, which developed into reasonable suspicion of trespassing after the police officer observed defendant enter housing authority property posted with "no trespassing" signs and exit the property almost immediately, providing no credibility for defendant's story about coming from defendant's girlfriend's residence. Pettis v. Commonwealth,, 2009 Va. App. LEXIS 135 (Mar. 24, 2009).

Trial court correctly denied defendant's motion to suppress evidence a police officer recovered from his person because the seizure of defendant was reasonable under the totality of the circumstances; the officer was justified in detaining defendant in order to conduct a pat-down search for weapons and to protect his personal safety because defendant persistently attempted to reach into his pants pocket. Pettaway v. Commonwealth,, 2009 Va. App. LEXIS 178 (Apr. 21, 2009).

Denial of motion to suppress was proper where defendant voluntarily consented to a search of defendant's person; at the time that defendant told the officer "you can search me if you want," defendant's identification had been returned and defendant was told that defendant was free to leave, defendant remained at the scene to make sure defendant's friend, who had been arrested on an outstanding warrant, was okay. Samy v. Commonwealth,, 2009 Va. App. LEXIS 194 (Apr. 28, 2009).

Trial court erred in granting defendant's motion to suppress, because the evidence, viewed in the light most favorable to defendant, compelled the conclusion that the search of defendant's vehicle was reasonable under the Fourth Amendment; the proper test was whether the van was apparently rather than actually mobile. Commonwealth v. Grimes,, 2009 Va. App. LEXIS 248 (June 2, 2009).

Trial court erred in granting defendant's motion to suppress evidence, where the initial encounter between defendant and the officer was consensual, the officer had probable cause to arrest and detain defendant after learning that defendant's driver's license was suspended, and the police dog alert, occurring during the lawful detention, provided the officer with probable cause to search defendant's vehicle under the automobile exception. Commonwealth v. Boyd,, 2010 Va. App. LEXIS 432 (Nov. 5, 2010).

Trial court properly denied defendant's motion to suppress, where the police had probable cause and exigent circumstances to enter defendant's home without a warrant; the police needed to gain control of the situation and arrest defendant once they believed that defendant had committed the charged crimes, in order to prevent defendant from washing away DNA evidence from defendant's person and clothing and to minimize any danger to the community. West v. Commonwealth, 54 Va. App. 345, 678 S.E.2d 836, 2009 Va. App. LEXIS 305 (2009).

Failure to suppress evidence was not erroneous, as defendant was not seized until the officer tackled defendant, by which point the officer had more than reasonable suspicion to stop defendant because defendant had committed a traffic violation by not obeying a stop sign while being pursued by officer, giving the officer sufficient justification to stop defendant. Rhoades v. Commonwealth,, 2009 Va. App. LEXIS 322 (July 21, 2009).

Trial court did not err in denying defendant's motion to suppress a handgun that defendant accidentally dropped while fleeing from a police officer because suppression was not required under the exclusionary rule, and the recovery of the handgun by the officer was not fruit of the poisonous tree since the handgun was discovered by means sufficiently attenuated from the officer's initial seizure of defendant, which occurred prior to defendant's flight on foot; because defendant's accidental loss of the handgun during his flight was an independent source for the discovery and recovery of the handgun, separate and sufficiently distinguishable from the officer's seizure of defendant, the discovery of the handgun was not fruit of the poisonous tree since its discovery was not the foreseeable result of the earlier seizure of defendant by the police, and its admissibility was not an "exploitation" of any police action that was illegal. Fitchett v. Commonwealth, 56 Va. App. 741, 697 S.E.2d 28, 2010 Va. App. LEXIS 339 (2010).

Where the police received an anonymous tip of drug activity at defendant's residence involving a white male and a black male and an officer observed, through defendant's open doorway, a black male with a white substance run toward the back of the house, the circumstances provided probable cause for the warrantless search under the exigent circumstances exception to the warrant requirement and the evidence recovered was admissible. Smith v. Commonwealth, 56 Va. App. 592, 696 S.E.2d 211, 2010 Va. App. LEXIS 316 (2010).

Motion to suppress was properly denied, where defendant was still in custody for driving on a suspended license when an officer saw a marijuana stem in defendant's vehicle, and thus, the officers had probable cause to search the vehicle based on the observation of what they believed to be contraband based on prior narcotics experience and specialized training in drug recognition. Dorrough v. Commonwealth,, 2010 Va. App. LEXIS 250 (June 22, 2010).

Trial court erred in granting defendant's motion to suppress, because the officer had a valid basis for the stop where the vehicle matched the description of a vehicle used to flee a shooting and was observed close to the scene within minutes of the shooting, and officers observed various traffic offenses, and the command to exit the vehicle at gunpoint was reasonable where the officer had reason to believe that the driver might be armed and dangerous. Commonwealth v. Hairston,, 2010 Va. App. LEXIS 333 (Aug. 17, 2010).

Because the initial encounter between defendant and a police officer was consensual, and because a seizure did not take place until a drug dog alerted and provided probable cause to believe that defendant was involved in criminal activity, the trial court properly denied defendant's motion to suppress. Lewis v. Commonwealth,, 2011 Va. App. LEXIS 354 (Nov. 15, 2011).

Trial court did not err in denying defendant's motion to suppress, because the officer had probable cause based on his detection of the odor of marijuana, and thus, an independent source existed for the search of defendant's residence and the evidence seized from his person would have been inevitably found during a search incident to arrest. Krebs v. Commonwealth,, 2011 Va. App. LEXIS 400 (Dec. 13, 2011).

Trial court erred by suppressing evidence of marijuana and cocaine found on defendant's person on the grounds that the police officer's subjective intent to identify defendant was unreasonable because defendant's commission of several traffic infractions provided the officer an objectively reasonable basis to conduct an investigatory stop of his vehicle; therefore, it was irrelevant that the officer intended to stop defendant's vehicle for the purpose of determining if defendant was a person wanted for murder. Commonwealth v. Hickman, No. 2055-12-2, 2013 Va. App. LEXIS 121 (Ct. of Appeals Apr. 16, 2013).

Police officers' search of a barn in which defendant lived was valid under U.S. Const. amend. IV, and therefore, defendant's motion to suppress was properly denied. The warrant identified the trailer as the owner's residence and then specifically identified the barn without mentioning whether anyone lived in it; thus, the officers properly searched the barn because the warrant directed them to search the barn. Jeffers v. Commonwealth, 62 Va. App. 151, 743 S.E.2d 289, 2013 Va. App. LEXIS 184 (2013).

Evidence deemed inadmissible. - Where a police officer did not have specific and articulable facts upon which to conclude that defendant was armed and dangerous before frisking defendant for weapons during a traffic stop, the search was unreasonable under the Fourth Amendment; as a result, the trial judge erred in failing to suppress the evidence. Christian v. Commonwealth, No. 0303-03-1, 2004 Va. App. LEXIS 190 (Ct. of Appeals Mar. 2, 2004).

Circuit court properly granted defendant's motion to suppress evidence seized as a result of a traffic stop on grounds that said evidence failed to show a reasonable articulable suspicion that defendant was violating § 46.2-848 or attempting to avoid or evade the checkpoint, and the arresting officer never articulated a reasonable basis as to why he made a vehicle stop of defendant, did not testify that he believed defendant was evading a roadblock, and never stated that he believed that defendant violated, or was about to violate, the law. Commonwealth v. Wells, No. 1869-06-3, 2007 Va. App. LEXIS 9 (Jan. 9, 2007).

Motion to suppress evidence obtained pursuant to a traffic stop of defendant's antique vehicle was improperly denied as the evidence was obtained in violation of U.S. Const., Amend. IV. The trooper stopped the vehicle solely because it displayed no inspection sticker even though, as the trooper acknowledged, exceptions to this requirement were specifically provided in §§ 46.2-730 , 46.2-1157 , and 46.2-1163 for antique vehicles displaying antique tags, and the trooper did not articulate any reasons for suspecting that defendant was operating his vehicle in violation of the permitted uses. Campbell v. Commonwealth,, 2007 Va. App. LEXIS 50 (Feb. 13, 2007).

Trial court erred in denying defendant's motion to suppress because the objective facts in the record did not support a lawful detention of defendant, in that, defendant's mere presence, asleep in the victim's residence after a New Year's party, did not create a reasonable suspicion that he was involved in the victim's domestic dispute with her boyfriend. Moreover, the victim specifically told the officer that defendant was not involved. Lantion v. Commonwealth,, 2007 Va. App. LEXIS 51 (Feb. 13, 2007).

Even if an officer's initial investigative detention of defendant were lawful, the officer's frisk of defendant for weapons was not supported by a reasonable belief that defendant was armed and presently dangerous, and thus, the evidence pursuant to the frisk should have been suppressed. The officer testified that when he awoke defendant, who had been asleep on a bed, defendant merely rolled over and looked at the officer, making no threatening gestures; thus, defendant's admission to the officer upon questioning that he possessed a pocketknife did not establish dangerousness. Lantion v. Commonwealth,, 2007 Va. App. LEXIS 51 (Feb. 13, 2007).

Methamphetamine discovered on spoon in defendant's pocket was the fruit of an unconstitutional search and should have been suppressed; the investigator articulated no reason for believing, before attempting to frisk defendant, that defendant was armed and dangerous but testified that she became concerned defendant might be armed and dangerous after defendant avoided the investigator's attempt to frisk him. Hamm v. Commonwealth,, 2007 Va. App. LEXIS 134 (Apr. 3, 2007).

Search of defendant following a traffic stop violated the Fourth Amendment, and the denial of defendant's motion to suppress was error. A deputy's act of directing defendant to the rear of the car near where another officer stood, followed by the deputy's persistence in seeking permission to search, conveyed to a reasonable person in defendant's position that there was not freedom to leave and converted the encounter into a seizure unsupported by reasonable suspicion or probable cause. Dorsey v. Commonwealth,, 2007 Va. App. LEXIS 176 (May 1, 2007).

Trial judge erred in denying defendant's motion to suppress evidence found in defendant's house pursuant to a search warrant, as the warrant was not supported by Fourth Amendment probable cause due to the affidavit's failure to provide a nexus between defendant's drug possession and his residence. The affidavit asserted that defendant had marijuana on defendant's person and that the officer merely "suspected cocaine residue." Cunningham v. Commonwealth, 49 Va. App. 605, 643 S.E.2d 514, 2007 Va. App. LEXIS 174 (2007).

Deputy did not have reasonable suspicion to make a traffic stop, and defendant's suppression motion was properly granted, as a belief based on a mistaken understanding of the law as to whether a broken passenger side mirror was a violation of law could not constitute the reasonable suspicion required for a constitutional traffic stop since the deputy did not make a mistake of fact about the scope of activities proscribed by the law, and the mistake of law was not objectively reasonable. Commonwealth v. Snyder,, 2007 Va. App. LEXIS 307 (Aug. 14, 2007).

Trial court properly granted defendant's motion to suppress evidence where the game warden was not authorized to conduct a warrantless search of defendant's person and the fruits of that search were thus not admissible, and the Commonwealth was barred from arguing that the game warden affected a custodial arrest because that argument was not presented before the trial court. Commonwealth v. Wilkins,, 2008 Va. App. LEXIS 302 (June 24, 2008).

Due to the officers' lack of a reasonable and articulable suspicion that defendant was engaged in criminal activity, defendant's seizure and the ensuing search of defendant's vehicle were invalid under the Fourth Amendment; thus, any evidence obtained by the officers during the search of defendant's vehicle should have been suppressed. Middlebrooks v. Commonwealth, 52 Va. App. 469, 664 S.E.2d 499, 2008 Va. App. LEXIS 376 (2008).

Although the police officers were authorized to stop defendant's vehicle based upon their reasonable belief that a traffic violation had occurred when defendant stopped in the middle of a travel lane, the trial court erred in denying the motion to suppress because the officers had no reasonable suspicion that defendant had engaged in criminal activity or was armed and dangerous and, thus, there was no justification for a pat down of defendant. Lightfoot v. Commonwealth,, 2008 Va. App. LEXIS 459 (Oct. 14, 2008).

Trial court erred in denying defendant's motion to suppress, because defendant's activities, being in a "high crime area" in the middle of the morning and walking 15 feet to a townhouse upon seeing an officer, did not provide the officer with reasonable suspicion that criminal activity was afoot. Jones v. Commonwealth, 53 Va. App. 171, 670 S.E.2d 31, 2008 Va. App. LEXIS 561 (2008).

Evidence found after the officer stopped defendant's vehicle should have been suppressed, because the fact that defendant was parked at the rear customer entrance to a gas station, at night, in an area where there had been robberies and burglaries, and that defendant appeared to be looking or reaching for something inside the vehicle was insufficient to support an investigative stop. Rudolph v. Commonwealth, 277 Va. 209 , 722 S.E.2d 527, 2009 Va. LEXIS 34, cert. denied, 130 S. Ct. 738, 175 L. Ed. 2d 514, 2009 U.S. LEXIS 8721 (U.S. 2009).

Trial court erred in denying defendant's motion to suppress, because, at time of the officer searched defendant's pants, the officer did not have probable cause to believe that the pants, which were not on defendant, contained contraband or evidence of a crime; among other things, there was no evidence that defendant possessed or displayed a weapon during the argument with defendant's girlfriend. Garland v. Commonwealth,, 2009 Va. App. LEXIS 222 (May 12, 2009).

Where defendant's grandmother had the apparent authority to consent to the search of a car parked in the grandmother's driveway, there was no evidence that the grandmother withdrew consent to search, and the police were not aware that defendant's father was the owner of the car and thus, the fact that the father did not want the car searched was not a basis for withdrawal of consent, the motion to suppress was erroneously granted. Commonwealth v. Ferrell,, 2011 Va. App. LEXIS 47 (Feb. 10, 2011).

Defendant's consent to search, the search, and the evidence seized were the product of an illegal detention, occurring while the defendant was illegally detained and under circumstances in which she was not free to leave or disregard the officer's inquiries. At the time of the encounter, defendant was stopped in a rural area in the nighttime, the police emergency lights were activated the entire time, traffic was light, defendant was the only adult in her vehicle while there were two police officers present at the scene, defendant requested to search the vehicle after the purpose of the initial stop was completed, the officer was in his uniform and his weapon was displayed, and he made this request only after he had informed defendant of illegal drug trafficking in the area and had asked her if she had anything illegal in the vehicle; thus, defendant's motion to suppress was properly granted. Commonwealth v. Crooks,, 2012 Va. App. LEXIS 364 (Nov. 15, 2012).

Trial court erred in denying defendant's motion to suppress on the ground that the community caretaker doctrine was applicable, because the evidence presented failed to implicate public safety concerns or a safeguarding of personal property where the officer testified that he searched defendant's backpack because he was "curious" about its weight, without testifying that he thought the weight was suspicious of activity that posed danger to the public. Knight v. Commonwealth, 61 Va. App. 297, 734 S.E.2d 716, 2012 Va. App. LEXIS 406 (2012).

B. SUPPRESSION OF STATEMENTS, DNA, ETC.

Statements knowingly and voluntarily made. - Police officers did not violate defendant's Fifth Amendment rights, and his waiver of those rights and his subsequent statements to the police were both voluntary and intelligently and knowingly made and should not have been suppressed. Timely Miranda warnings were given twice, defendant said that he understood them but wished to answer police questions, he was 20 years old and aware of what was happening, there was no indication of any coercion, and the police did not use a certain two-step procedure, which in another state had been used essentially to trick suspects into making incriminating statements and allegedly "waiving" their rights and which the United States Supreme Court had already declared was illegal and forbidden. Commonwealth v. Kadian,, 2006 Va. App. LEXIS 246 (May 30, 2006).

Admission of defendant's statements to police was proper where defendant was not threatened during the encounter with police, was advised of Miranda rights in writing and orally, indicated that defendant understood them, and voluntarily, knowingly, and intelligently waived those rights. Angel v. Commonwealth,, 2009 Va. App. LEXIS 125 (Mar. 24, 2009).

Denial of defendant's motion to suppress inculpatory statements made to detectives was proper, as the finding that defendant voluntarily waived defendant's Miranda rights before talking to police was proper; contrary to defendant's claim, defendant's condition did not affect the voluntariness of the waiver, as defendant provided police with specific, accurate information about defendant's work and educational history, and defendant's description of the events surrounding the shooting was consistent with the physical evidence and the statements of witnesses. Oliver v. Commonwealth,, 2009 Va. App. LEXIS 297 (June 30, 2009).

Although defendant invoked the right to counsel, the trial court erred in suppressing defendant's statement to police, because defendant later reinitiated communication with the police and waived defendant's Miranda rights; defendant's waiver was voluntarily, knowingly, and intelligently made and defendant was aware of nature of defendant's Fifth Amendment rights and the potential consequences of abandoning them. Commonwealth v. Edwards,, 2009 Va. App. LEXIS 325 (July 21, 2009).

Defendant's motion to suppress statements made during police interrogation was properly denied, where defendant knowing and intelligently waived defendant's Fifth Amendment privilege against self-incrimination and the detectives' conduct was not coercive and did not overbear defendant's free will; thus, defendant's confession was freely and voluntarily given. Lewis v. Commonwealth,, 2009 Va. App. LEXIS 357 (Aug. 11, 2009).

Defendant not in custody when statements made. - Trial court did not err in denying defendant's motion to suppress statements she made to detectives in the audio-visual room of a police station because defendant was not in custody at the time she made the incriminating statements when she was not under formal arrest, and her freedom of movement was not restricted, and, therefore, the detectives were not required to advise defendant of her Miranda rights; defendant voluntarily went to the police station, and a reasonable person would not think that they were in custody merely because they were moved to another location within the police station and would not have concluded from the duration and character of the interview that she was not free to leave. Durand v. Commonwealth,, 2009 Va. App. LEXIS 419 (Sept. 22, 2009).

Suppression of DNA evidence. - Although defendant's counsel was not notified and thus was not present when a DNA sample was taken, there was no error and no violation of defendant's Sixth Amendment right to counsel, and a trial court properly denied defendant's motion to suppress the DNA evidence, which was derived from a DNA sample taken after defendant was indicted and had retained counsel. The Sixth Amendment right to have counsel present at the critical stages of a criminal proceeding did not extend to preparatory steps, which included the gathering of evidence, such as the taking of fingerprints or DNA evidence, because the risk that counsel's absence at such stages might derogate from a defendant's right to a fair trial was slight. Wilson v. Commonwealth, No. 1097-05-1, 2006 Va. App. LEXIS 243 (May 30, 2006).

Waiver of Miranda rights. - Decision granting defendant's motion to suppress defendant's statements was reversed; an investigator's termination of interrogation for a period of approximately ten minutes did not, in itself, impact the presumption that defendant's waiver of Miranda rights continued. Police were not required to repeat Miranda warnings after the initial interrogation ended. Commonwealth v. Wimbish,, 2006 Va. App. LEXIS 435 (Oct. 3, 2006).

Statements admissible. - Denial of motion to suppress was proper, because defendant's statement made it unclear whether defendant had requested the presence of an attorney during custodial interrogation, or whether defendant had simply expressed a desire to have an attorney appointed to represent defendant at trial and thus, the police were permitted to ask defendant limited questions solely for the purpose of clarifying the statement. Stevens v. Commonwealth, 57 Va. App. 566, 704 S.E.2d 585, 2011 Va. App. LEXIS 31 (2011), aff'd, 2012 Va. LEXIS 15 (Va. 2012).

Trial court did not err in denying defendant's motion to suppress statements, because defendant's statement to his supervisor was not coerced by an explicit threat of discharge or other economic sanction; the prospect of being the named subject of an investigation was not sufficient to bring any admissions defendant made at that time within the ambit of the Garrity principles. Murray v. Commonwealth, No. 1137-12-1, 2013 Va. App. LEXIS 124 (Ct. of Appeals Apr. 23, 2013).

Statements admissible under public safety exception. - Admission of statements defendant made before police advised defendant of defendant's Miranda rights was not error, because the public safety exception to Miranda permitted the officer to ask defendant whether the weapon, five feet away from the officer, was loaded and an immediate danger. Since warnings were not required, there was no taint to statements made after defendant was advised of defendant's Miranda rights. Anderson v. Commonwealth,, 2009 Va. App. LEXIS 114 (Mar. 17, 2009), aff'd, 279 Va. 85 , 688 S.E.2d 605, 2010 Va. LEXIS 13 (2010).

Admissability of out-of-court identification. - Denial of motion to suppress a witness's out-of-court identification based on a single photograph was upheld because the officer, who was investigating an unrelated burglary, had no knowledge that a credit card forgery had previously occurred at the same location and thus, there was no possibility that the officer could have manipulated the witness or misled the witness into identifying defendant as the person who had used the stolen credit card. Logan v. Commonwealth, 51 Va. App. 111, 655 S.E.2d 30, 2008 Va. App. LEXIS 2 (2008).

Unequivocal request for counsel during interrogation. - In a prosecution for first-degree murder, breaking and entering while armed with a deadly weapon, and two counts of using of a firearm in the commission of a felony, because the record evidence showed that defendant failed to make an unequivocal request for an attorney prior to confessing to his crimes, given the surrounding circumstances in which he made his statements concerning counsel, including the tone of the interview and defendant's demeanor, the trial court did not err by admitting his confession into evidence. West v. Commonwealth,, 2008 Va. App. LEXIS 241 (May 20, 2008).

Erroneous denial of defendant's motion to suppress a confession necessitated a new trial, because defendant unambiguously invoked his Fifth Amendment right to counsel before the confession was made and the error was not harmless where the erroneously admitted confession was the only evidence actually placing defendant at the scene of the robbery homicides; the only other evidence linking defendant to the crimes was the testimony of an individual who said he acted as a middleman and who did not name defendant until over a year after the crimes, one day before he himself was scheduled to be tried for the robbery homicides and related crimes. Stevens v. Commonwealth,, 2010 Va. App. LEXIS 244 (June 22, 2010).

Out of court statements deemed admissible. - Suppression of statement erroneous where defendant was not in custody at the time statement was made and thus, no Miranda violation occurred; defendant was not restrained and could have easily ended conversation at any time by disconnecting call. Commonwealth v. Carruitero,, 2007 Va. App. LEXIS 148 (Apr. 10, 2007).

Out of court identifications deemed admissible. - Trial court did not err in admitting out-of-court and in-court identifications by several witnesses based on the use of a single photograph because, while discrepancies existed in the witnesses' descriptions of defendant and three witnesses who made positive out-of-court identifications were unable to identify defendant at the suppression hearing, such issues went to weight of the evidence, not its admissibility. Rountree v. Commonwealth,, 2007 Va. App. LEXIS 279 (July 24, 2007).

Anonymous tip admissible. - Denial of defendant's motion to suppress was proper, because the anonymous tip described a progression of incidents that were corroborated by the officer as the officer approached the scene; among other things, defendant's physical characteristics matched those described, and defendant was running from the apartment complex and had cuts on defendant's face. Roberts v. Commonwealth,, 2009 Va. App. LEXIS 67 (Feb. 10, 2009).

Evidence deemed inadmissible. - Defendant's motion to suppress was properly denied because although defendant was in custody when he identified shorts containing contraband as his, he was not subject to "interrogation" where an "objective observer" would not have perceived the words and actions related to defendant's clothes as being intended to elicit incriminating information from defendant, and thus, Miranda safeguards were not implicated. Emerson v. Commonwealth, 43 Va. App. 263, 597 S.E.2d 242, 2004 Va. App. LEXIS 274 (2004).

Motion to suppress was properly granted as to pre-Miranda warning inculpatory statements because the officers deliberately engaged in a two-stop interrogation strategy, after which no curative measures were taken, and because a reasonable officer would have realized that the questions asked were likely to elicit incriminating responses. Commonwealth v. Bowman,, 2007 Va. App. LEXIS 318 (Aug. 27, 2007).

Evidence of a drug transaction was properly suppressed because: (1) a hand-to-hand transaction occurred within the curtilage of a home in which defendant had a reasonable expectation of privacy; (2) a detective lacked probable cause to enter defendant's backyard prior to observing the drug transaction; (3) the detective could not have seen the transaction without intruding into the curtilage by climbing a fence; and (4) the detective was not in a place from which he could legitimately view that transaction for purposes of the Fourth Amendment. Commonwealth v. Hackett,, 2008 Va. App. LEXIS 120 (Mar. 11, 2008).

Defendant's statements to police should have been suppressed because the officers made it clear that defendant was not free to leave and was in custody, when one officer told another to handcuff defendant and the second officer restrained defendant before putting the handcuffs on, and thus, defendant should have been Mirandized before being asked potentially incriminating questions. White v. Commonwealth,, 2009 Va. App. LEXIS 107 (Mar. 4, 2009).

Evidence deemed admissible. - Motion to suppress was properly denied, because defendant voluntarily consented to a search of his vehicle subsequent to a consensual encounter. The officer told defendant that he was not going to issue a summons in relation to initial traffic stop and that defendant was free to leave, ending the lawful detention; the ensuing encounter, during which the officer requested consent to search the vehicle, was consensual. Santos v. Commonwealth, No. 1133-12-4, 2013 Va. App. LEXIS 159 (Ct. of Appeals May 21, 2013).

Harmless error. - In a case in which defendant was indicted for murdering his wife but was convicted of voluntary manslaughter, even if the trial court erred in denying defendant's motion to suppress the interrogation transcript, defendant's testimony at trial during his case-in-chief waived his right to object to the same evidence on appeal, rendering any error harmless. Abdul-Wasi v. Commonwealth,, 2005 Va. App. LEXIS 180 (May 3, 2005).

CIRCUIT COURT OPINIONS

Return of illegally seized property. - Exclusionary rule of the Fourth Amendment applied to the suppressed evidence of a criminal action in the quasi-criminal forfeiture action; defendant was entitled to the return of money illegally seized. Commonwealth v. Turner, 58 Va. Cir. 576, 2000 Va. Cir. LEXIS 627 (Charlottesville 2000).

Timely execution of search warrant. - Despite an eight-day delay in executing a search warrant, its underlying probable cause was not stale because it suggested a continuing enterprise of drug sales; because no constitutional violation existed and defendant was not prejudiced, defendant's motion to suppress was denied. Commonwealth v. Roy, 55 Va. Cir. 299, 2001 Va. Cir. LEXIS 522 (Richmond 2001).

Inaccurate description of location in warrant. - Where the description of the unit to be searched in a warrant directly conflicted with its actual location, there was insufficient evidence for the police to determine which unit to search; as a result, defendant was entitled to suppress the evidence found. Commonwealth v. Carr, 61 Va. Cir. 491, 2003 Va. Cir. LEXIS 224 (Charlottesville 2003).

Pat-down exceeded acceptable scope of frisk. - Defendant's motion to suppress marijuana a police officer seized from his person was granted because even though the stop and frisk for weapons was permissible under Terry, lifting up defendant's shirt and looking inside his clothing during the pat-down exceeded the acceptable scope of the frisk; the officer's testimony merely disclosed that he saw a bulge and assumed it was a weapon, but a soft bulge in a defendant's waistband was not enough information to justify a conclusion that the item was immediately apparent as contraband. Commonwealth v. Wichael, 84 Va. Cir. 83, 2011 Va. Cir. LEXIS 275 (Augusta County Dec. 20, 2011).

Consent to search. - Although a police officer's initial approach and demand that defendant produce some identification was a reasonable seizure, defendant's surrender of drugs at the officer's instruction was not a consensual search. Commonwealth v. Forest, 62 Va. Cir. 340, 2003 Va. Cir. LEXIS 292 (Norfolk 2003).

Statements knowingly and voluntarily made. - Circuit court denied defendant's motion to suppress statements he made to the police during video-recorded questioning following his arrest because the recording on the whole indicated that defendant was not so impaired as to preclude a voluntary confession, and the conduct of the investigators who conducted the interview did not rise to the level of being coercive and defeating defendant's free will. Commonwealth v. Wilkins, 82 Va. Cir. 20, 2010 Va. Cir. LEXIS 318 (Augusta County Apr. 19, 2010).

Statements admissible. - Defendant's statements to police were admissible as they were unsolicited and not the result of interrogation or its functional equivalent. Commonwealth v. Adderley, 74 Va. Cir. 292, 2007 Va. Cir. LEXIS 186 (Virginia Beach 2007).

Defendant knowingly and intelligently waived his U.S. Const. amend. V right to remain silent as the evidence showed that defendant understood what he was doing when he executed the waiver form. He was advised of his rights in writing and orally in Vietnamese, his native language, and he showed that he was capable of asking appropriate questions when he did not understand something; thus, defendant's motion to suppress his statements was denied. Commonwealth v. Nguyen,, 2012 Va. Cir. LEXIS 24 (Fairfax County Feb. 27, 2012).

Evidence deemed admissible. - Because police officers were dispatched to an apartment based on an informant's report of an "urgent" or "high priority" domestic disturbance and because the officers believed that they heard someone scream after they encountered defendant, who was both drunk and bellicose, at the door, the officers' entry into the apartment did not violate defendant's Fourth Amendment rights. Commonwealth v. Soriano, 68 Va. Cir. 50, 2005 Va. Cir. LEXIS 25 (Fairfax County 2005).

Because a pat-down search of a defendant, after defendant had already told the searching officer that he had two knives on him, did not move out of the bounds of a reasonable Terry stop and could not be characterized as custody associated with a formal arrest, defendant was not entitled to Miranda warnings; hence, without any custody, defendant's statement that the hard tube-like mound in his pocket was marijuana, as well as the marijuana seized as a result, were both admissible. Commonwealth v. Herring,, 2006 Va. Cir. LEXIS 8 (Charlottesville Feb. 13, 2006).

Motion to suppress evidence seized from defendant's residence was denied because the dog sniff was performed based on the consent of the homeowner's daughter, who the police reasonably believed had authority to grant such consent. Commonwealth v. Hoa Lam,, 2006 Va. Cir. LEXIS 26 (Fairfax County Jan. 5, 2006).

Although the evidence of field sobriety tests conducted on defendant by a university police officer who was outside the university police department's patrol area may have been gathered in violation of the "color of office" doctrine, the officer's actions were in reliance on the authority of former § 19.2-17 , which the officer reasonably and in good faith believed to be the established law. Therefore, defendant's motion to suppress the evidence of the field sobriety tests was denied. Commonwealth v. Thompson, 69 Va. Cir. 283, 2005 Va. Cir. LEXIS 321 (Charlottesville 2005).

Defendant's motion to suppress was denied, as officers testified that they witnessed an improper lane change made by defendant in heavy traffic. Because the officers witnessed defendant driving in a manner that suggested defendant was violating traffic ordinances, there was an objective basis for stopping defendant's car. Commonwealth v. Clark,, 2006 Va. Cir. LEXIS 274 (Roanoke County Oct. 16, 2006).

Where officers responded to an apartment property manager's tip regarding trespassing and drug activity, detained two defendants, and seized a bag from defendants, suppression was not warranted, because the officers executed a proper Terry stop since the tip came from a known informant and the officers had a reasonable belief that criminal activity was afoot; the officers had a reasonable suspicion that there could be a weapon in the bag based on a reasonable suspicion of drug activity and the actions and words of both defendants. Commonwealth v. Cosentine,, 2003 Va. Cir. LEXIS 384 (Loudoun County Mar. 24, 2003).

Evidence obtained during search of defendant's house and neighbor's attic was admissible because the affidavit supporting the search warrant for defendant's home met the test for probable cause and thus, search of defendant's home and derivative search of the neighbor's attic were permissible. Commonwealth v. Adderley, 74 Va. Cir. 292, 2007 Va. Cir. LEXIS 186 (Virginia Beach 2007).

Defendant's motion to suppress was partially denied because: (1) a traffic stop was proper since officers had probable cause to believe that the occupants committed a traffic infraction because the driver turned right through a red light; and (2) defendant's arrest was supported by probable cause since an officer saw in plain view a plastic bag filled with marijuana near defendant. Commonwealth v. Andrews,, 2007 Va. Cir. LEXIS 260 (Prince William County June 1, 2007).

Defendant's motion to suppress drug paraphernalia that a police officer seized during a search of his person was denied because the search, which was not a pretext for investigation, would have inevitably yielded the contraband found on defendant; even if the officer lacked probable cause to arrest defendant, defendant was plainly intoxicated and seeking help from the police, and if the officer had not arrested defendant, he would have ultimately and inevitably discovered the drugs as incident to a search while transporting defendant in the police car because defendant would have been subject to a limited search pursuant to standard police procedure. Commonwealth v. Poole, 74 Va. Cir. 561, 2006 Va. Cir. LEXIS 328 (Charlottesville Dec. 12, 2006).

Defendant's statements to police were admissible, as defendant knowingly and intelligently waived defendant's Miranda rights; defendant testified that defendant knew that defendant had a right not to talk to police and that defendant did not ask for counsel. The items seized from a car defendant had been passenger in were admissible, as the search did not violate defendant's rights under the Fourth Amendment where vehicle owner gave police permission for the search and defendant had neither standing to object to the vehicle search nor an expectation of privacy in it. Commonwealth v. Porter, 74 Va. Cir. 343, 2007 Va. Cir. LEXIS 286 (Roanoke County 2007).

Evidence deemed inadmissible. - Motion to suppress evidence found in the trunk of a car after consent to search was given was granted because officers failed to return defendant's license after checking for outstanding warrants; the officers had no warrant, and there was no reasonable articulable suspicion that criminal activity was afoot where a car was stopped merely because officers suspected that the driver had a suspended license. Commonwealth v. Washington, 64 Va. Cir. 149, 2004 Va. Cir. LEXIS 185 (Norfolk 2004).

Court granted a defendant's motion to suppress since the officer directed her to get in his police van, and, with his badge and gun showing, threatened prosecution, and obtained statements and evidence in the custodial interrogation without giving Miranda warnings. It was not shown that defendant was free to leave the van. Commonwealth v. Meyers, 65 Va. Cir. 398, 2004 Va. Cir. LEXIS 285 (Fauquier County 2004).

As defendant's arrest for driving under the influence was made by an officer who did not have the statutory authority to make an arrest outside of a university's jurisdiction, the arrest was not a lawful arrest sufficient to implement the implied consent law, § 18.2-268.2 . Defendant's motion to suppress a certificate of the breath test analysis therefore had to be granted. Commonwealth v. Thompson, 69 Va. Cir. 283, 2005 Va. Cir. LEXIS 321 (Charlottesville 2005).

Since the officer lacked reasonable, articulable suspicion of criminal activity that would have permitted a Terry stop and there was no reason to believe that defendant needed police assistance, defendant was entitled to suppression of drugs seized when the officer approached defendant's car parked on the side of the road during the early morning hours. In re Commonwealth,, 2008 Va. Cir. LEXIS 114 (Roanoke County Sept. 4, 2008).

§ 19.2-60.1. Use of unmanned aircraft systems by public bodies; search warrant required.

  1. As used in this section, unless the context requires a different meaning:

    "Unmanned aircraft" means an aircraft that is operated without the possibility of human intervention from within or on the aircraft.

    "Unmanned aircraft system" means an unmanned aircraft and associated elements, including communication links, sensing devices, and the components that control the unmanned aircraft.

  2. No state or local government department, agency, or instrumentality having jurisdiction over criminal law enforcement or regulatory violations, including but not limited to the Department of State Police, and no department of law enforcement as defined in § 15.2-836 of any county, city, or town shall utilize an unmanned aircraft system except during the execution of a search warrant issued pursuant to this chapter or an administrative or inspection warrant issued pursuant to law.
  3. Notwithstanding the prohibition in this section, an unmanned aircraft system may be deployed without a warrant (i) when an Amber Alert is activated pursuant to § 52-34.3 ; (ii) when a Senior Alert is activated pursuant to § 52-34.6 ; (iii) when a Blue Alert is activated pursuant to § 52-34.9 ; (iv) where use of an unmanned aircraft system is determined to be necessary to alleviate an immediate danger to any person; (v) by a law-enforcement officer following an accident where a report is required pursuant to § 46.2-373 , to survey the scene of such accident for the purpose of crash reconstruction and record the scene by photographic or video images; (vi) by the Department of Transportation when assisting a law-enforcement officer to prepare a report pursuant to § 46.2-373 ; (vii) for training exercises related to such uses; (viii) if a person with legal authority consents to the warrantless search; or (ix) by a law-enforcement officer to (a) aerially survey a primary residence of the subject of the arrest warrant to formulate a plan to execute an existing arrest warrant or capias for a felony offense or (b) locate a person sought for arrest when such person has fled from a law-enforcement officer and a law-enforcement officer remains in hot pursuit of such person.
  4. The warrant requirements of this section shall not apply when such systems are utilized to support the Commonwealth or any locality for purposes other than law enforcement, including damage assessment, traffic assessment, flood stage assessment, and wildfire assessment. Nothing herein shall prohibit use of unmanned aircraft systems for private, commercial, or recreational use or solely for research and development purposes by institutions of higher education and other research organizations or institutions.
  5. Evidence obtained through the utilization of an unmanned aircraft system in violation of this section is not admissible in any criminal or civil proceeding.
  6. In no case may a weaponized unmanned aircraft system be deployed in the Commonwealth or its use facilitated in the Commonwealth by a state or local government department, agency, or instrumentality or department of law enforcement in the Commonwealth except in operations at the Space Port and Naval/Aegis facilities at Wallops Island.
  7. Nothing herein shall apply to the Armed Forces of the United States or the Virginia National Guard while utilizing unmanned aircraft systems during training required to maintain readiness for its federal mission or when facilitating training for other U.S. Department of Defense units.

    (2015, cc. 764, 774; 2018, cc. 419, 546, 654; 2019, c. 781.)

The 2018 amendments. - The 2018 amendment by c. 419 inserted "or any locality" in the first sentence of subsection D.

The 2018 amendments by cc. 546 and 654 are nearly identical, and added clauses (v) and (vi) and made related changes in subsection C. Subsection C is set out in the form above at the direction of the Virginia Code Commission.

The 2019 amendments. - The 2019 amendment by c. 781, in subsection C, added clause (ix) and made stylistic changes.

Chapter 6. Interception of Wire, Electronic or Oral Communications.

Sec.

Research References. - Virginia Forms (Matthew Bender). No. 9-2101. Motion to Suppress--Illegal Warrantless Search, et seq.

Michie's Jurisprudence. - For related discussion, see 16 M.J. Right of Privacy, § 1; 18 M.J. Telegraph and Telephone Companies, § 2.

§ 19.2-61. Definitions.

As used in this chapter:

"Aggrieved person" means a person who was a party to any intercepted wire, electronic or oral communication or a person against whom the interception was directed;

"Aural transfer" means a transfer containing the human voice at any point between and including the point of origin and the point of reception;

"Communications common carrier" means any person engaged as a common carrier for hire in communication by wire or radio or in radio transmission of energy;

"Contents" when used with respect to any wire, electronic or oral communication, includes any information concerning the substance, purport or meaning of that communication;

"Electronic, mechanical or other device" means any device or apparatus that can be used to intercept a wire, electronic or oral communication other than:

  1. Any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of such service and used in the ordinary course of the subscriber's or user's business; or (ii) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law-enforcement officer in the ordinary course of his duties;
  2. A hearing aid or similar device being used to correct subnormal hearing to not better than normal;

    "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system. The term does not include:

    1. Any wire communication or oral communication as defined herein;
    2. Any communication made through a tone-only paging device;
    3. Any communication from an electronic or mechanical device which permits the tracking of the movement of a person or object; or
    4. Any electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds;

      "Electronic communication service" means any service which provides to users thereof the ability to send or receive wire or electronic communications;

      "Electronic communication system" means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications;

      "Electronic storage" means any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof and any storage of such communication by an electronic communication service for purposes of backup protection of such communication;

      "Intercept" means any aural or other means of acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device;

      "Investigative or law-enforcement officer" means any officer of the United States or of a state or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses;

      "Judge of competent jurisdiction" means a judge of any circuit court of the Commonwealth with general criminal jurisdiction;

      "Monitor" or "monitoring" means the actual auditory or visual acquisition of an intercepted communication by any means;

      "Oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectations but does not include any electronic communication;

      "Pen register" means a device or process that records or decodes dialing, routing, addressing or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted; however, such information shall not include the contents of any communication. The term does not include any device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device or process used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of the provider's or customer's business;

      "Person" means any employee or agent of the Commonwealth or a political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation;

      "Readily accessible to the general public" means, with respect to a radio communication, that such communication is not (i) scrambled or encrypted; (ii) transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication; (iii) carried on a subcarrier or other signal subsidiary to a radio transmission; (iv) transmitted over a communication system provided by a communications common carrier, unless the communication is a tone-only paging system communication; or (v) transmitted on frequencies allocated under Part 25, subpart D, E, or F of Part 74, or Part 94 of the Rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under Part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio;

      "Remote computing service" means the provision to the public of computer storage or processing services by means of an electronic communications system;

      "Trap and trace device" means a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing and signaling information reasonably likely to identify the source of a wire or electronic communication; however, such information shall not include the contents of any communication;

      "User" means any person or entity who uses an electronic communication service and is duly authorized by the provider of such service to engage in such use;

      "Wire communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection, including the use of such connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities for the transmission of communications.

      (Code 1950, § 19.1-89.1; 1973, c. 442; 1975, c. 495; 1988, c. 889; 2002, cc. 588, 623; 2005, c. 934.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and added subdivision (b) 4 in the definition of "electronic communication" and made related changes; inserted "wire or" in the definition for "electronic communication system"; in the definition of "pen register," rewrote the first sentence, which formerly read: " 'Pen register' means a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached," and twice substituted "device or process" for "device" in the second sentence; rewrote the definition of "trap and trace device," which previously read: " 'Trap and trace device' means a device which captures the incoming electronic or other impulses identifying the originating number of an instrument or device from which a wire or electronic communication was transmitted; and"; and deleted "and includes electronic storage of such communication" at the end of the definition of "wire communication."

The 2005 amendments. - The 2005 amendment by c. 934 inserted the definition of "'Monitor' or 'monitoring.'"

Law review. - For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).

CASE NOTES

Definitions of "intercept" in this section and § 19.2-68 B 5 compared. - Prior to the 1980 amendment of § 19.2-68 , adding subdivision B 5 thereof, "intercept" was defined in former subsection (3) of this section and meant an "aural acquisition." Under that definition, a wiretap order could only be entered by a judge sitting in the jurisdiction where the conversation would be heard. Thus, a wiretap order could be entered, for example, in Richmond, where the listening post would be located, while the actual conversation might occur in Franklin County. This would deprive the local authorities of knowledge of the investigation involving their jurisdiction. To avoid this result, the General Assembly enacted § 19.2-68 B 5, defining "intercept" as the physical act of acquiring the means to intercept the conversation. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).

"Oral communication." - Defendant's statements confiding incriminating information did not constitute an oral communication within the meaning of this section, and, thus, defendant's convictions for the rape and forcibly sodomy of defendant's teenage stepdaughter based in part on such evidence were upheld. Carpenter v. Commonwealth, 51 Va. App. 84, 654 S.E.2d 345, 2007 Va. App. LEXIS 463 (2007).

Persona adopted by police officer not a "Person." - Because the statutory definition of "person" did not include personas, the persona of a preteen child that a police officer adopted when communicating with defendant at a website was not a person for purposes of the Virginia Wiretap Act, § § 19.2-61 to 10.2-70.3. Hence it was the officer, and not the persona, who was a person who was a party to the communications. Pick v. Commonwealth, 72 Va. App. 651, 852 S.E.2d 479, 2021 Va. App. LEXIS 5 (2021).

Applied in Newton v. Commonwealth, 29 Va. App. 433, 512 S.E.2d 846; Reed v. Commonwealth, No. 1305-15-4, 2016 Va. App. LEXIS 233 (Ct. of Appeals Aug. 30, 2016).

§ 19.2-62. Interception, disclosure, etc., of wire, electronic or oral communications unlawful; penalties; exceptions.

  1. Except as otherwise specifically provided in this chapter any person who:
    1. Intentionally intercepts, endeavors to intercept or procures any other person to intercept or endeavor to intercept, any wire, electronic or oral communication;
    2. Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical or other device to intercept any oral communication;
    3. Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, electronic or oral communication knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or
    4. Intentionally uses, or endeavors to use, the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; shall be guilty of a Class 6 felony.
    1. It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee or agent of a provider of wire or electronic communications service, whose facilities are used in the transmission of a wire communication, to intercept, disclose or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service. However, a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks. It shall not be a criminal offense under this chapter for providers of wire or electronic communications service, their officers, employees and agents, landlords, custodians, or other persons pursuant to a court order under this chapter, to provide information facilities or technical assistance to an investigative or law-enforcement officer, who, pursuant to this chapter, is authorized to intercept a wire, electronic or oral communication. B. 1.  It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee or agent of a provider of wire or electronic communications service, whose facilities are used in the transmission of a wire communication, to intercept, disclose or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service. However, a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks. It shall not be a criminal offense under this chapter for providers of wire or electronic communications service, their officers, employees and agents, landlords, custodians, or other persons pursuant to a court order under this chapter, to provide information facilities or technical assistance to an investigative or law-enforcement officer, who, pursuant to this chapter, is authorized to intercept a wire, electronic or oral communication.
    2. It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
    3. It shall not be a criminal offense under this chapter for any person:
      1. To intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public;
      2. To intercept any radio communication which is transmitted (i) by any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress, (ii) by any governmental, law-enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public, (iii) by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or (iv) by any marine or aeronautical communications system;
      3. To intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of such interference;
      4. Using the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of such system, if such communication is not scrambled or encrypted;
      5. To use a pen register or a trap and trace device pursuant to §§ 19.2-70.1 and 19.2-70.2 ; or
      6. Who is a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of such service.
  2. A person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication, other than one to such person or entity or an agent thereof, while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of the addressee or intended recipient. However, a person or entity providing electronic communication service to the public may divulge the contents of any such communication:
    1. As authorized in subdivision B 1 of this section or § 19.2-67 ;
    2. With the lawful consent of the originator or any addressee or intended recipient of such communication;
    3. To a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or
    4. Which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, to a law-enforcement agency. Conduct otherwise an offense under this subsection that consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted (i) to a broadcasting station for purposes of retransmission to the general public, or (ii) as an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls, is not an offense under this section unless the conduct is for the purposes of direct or indirect commercial advantage or private financial gain. Further, private viewing of a satellite video communication that is not scrambled or encrypted and interception of a radio communication that is transmitted on frequencies allocated under subpart D of Part 74 of the Rules of the Federal Communications Commission that is not scrambled or encrypted when the viewing or interception is not done for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, shall not be offenses under this chapter. Violation of this subsection shall be punishable as a Class 1 misdemeanor. (Code 1950, § 19.1-89.2; 1973, c. 442; 1975, c. 495; 1988, c. 889; 2004, c. 149.)

Cross references. - As to punishment for Class 6 felonies, see § 18.2-10 .

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Editor's note. - Acts 2004, c. 149, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2004 amendments. - The 2004 amendment by c. 149 inserted "electronic" preceding the second occurrence of "or oral communication" in subdivision A 4.

Law review. - For an article, "I Spy: The Newsgatherer Under Cover," see 33 U. Rich. L. Rev. 1185 (2000).

For note, "Bartnicki v. Vopper: A Public Concern Exception for the Press and its Disclosure of unlawfully Obtained Information," see 11 Geo. Mason. L. Rev. 441 (2002).

For note, see "Knowledge Is Power: The Fundamental Right to Record Present Observations In Public," 54 Wm. & Mary L. Rev. 1409 (2013).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 40 Rules of Evidence. § 40.05 Pleas, Statements, and Recordings. Friend.

CASE NOTES

Marital communications. - Defendant's statements confiding incriminating information did not constitute an oral communication within the meaning of § 19.2-61 , the wiretap statute, and, thus, defendant's convictions for the rape and forcibly sodomy of defendant's teenage stepdaughter based in part on such evidence were upheld. Carpenter v. Commonwealth, 51 Va. App. 84, 654 S.E.2d 345, 2007 Va. App. LEXIS 463 (2007).

Police officer's adoption of persona for communications. - Defendant was not entitled to suppress the contents of website chats that defendant had with a police officer because the officer did not violate the Virginia Wiretap Act, § § 19.2-61 to 19.2-70.3 , when the officer adopted the persona of a preteen child in the website chats with defendant. Pick v. Commonwealth, 72 Va. App. 651, 852 S.E.2d 479, 2021 Va. App. LEXIS 5 (2021).

OPINIONS OF THE ATTORNEY GENERAL

Telephone company employees may disclose contents of intercepted telephone conversations both to law-enforcement officers and in testimony at a criminal trial for the offense of fraudulently obtaining or using telephone service. See opinion of Attorney General to The Honorable Harvey L. Bryant, Commonwealth's Attorney for the City of Virginia Beach, 04-021 (5/27/04).

§ 19.2-63. Manufacture, possession, sale or advertising of certain devices unlawful; penalties; exceptions.

  1. Except as otherwise specifically provided in this chapter, any person who intentionally:
    1. Manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, electronic or oral communications; or
    2. Places in any newspaper, magazine, handbill, or other publication any advertisement of:
      1. Any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, electronic or oral communications, or
      2. Any other electronic, mechanical, or other device where such advertisement promotes the use of such device for the purpose of the surreptitious interception of wire, electronic or oral communications; shall be guilty of a Class 6 felony.
  2. It shall not be unlawful under this section for:
    1. A provider of wire or electronic communication service or an officer, agent, or employee of, or a person under contract with, such provider in the normal course of the provider's business, or
    2. An officer, agent, or employee of, or a person under contract with the United States, the Commonwealth or a political subdivision thereof, in the normal course of the activities of the United States, the Commonwealth, or a political subdivision thereof, to manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, electronic or oral communications.

      (Code 1950, § 19.1-89.3; 1973, c. 442; 1975, c. 495; 1988, c. 889.)

Cross references. - As to punishment for Class 6 felonies, see § 18.2-10 .

§ 19.2-63.1. Supervision and control of devices; unauthorized possession.

Any electronic, mechanical or other device as defined in this chapter which is in the possession of any sheriff's office or police department of a county, city or town, or in the possession of any employee of such office, shall be under the direct control and supervision of the sheriff or chief of police of the office or department or his designee who is an employee of the office or department. Unauthorized possession of any such device under the provisions of this section by any such employee is unlawful, notwithstanding the provisions of subdivision B 2 of § 19.2-63 , and a Class 1 misdemeanor.

(1978, c. 63; 1988, c. 889; 2011, c. 193.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 2011 amendments. - The 2011 amendment by c. 193 added "or his designee who is an employee of the office or department" at the end of the first sentence.

CASE NOTES

Virginia wiretap statute is patterned on a federal statute covering the same subject. Morton v. Commonwealth, 227 Va. 216 , 315 S.E.2d 224, cert. denied, 469 U.S. 862, 105 S. Ct. 198, 83 L. Ed. 2d 130 (1984). See 18 U.S.C.A. § 2517.

Void-for-vagueness doctrine inapplicable. - The portions of the "Virginia Wiretap Statute" which prescribe the procedure for obtaining and conducting a wiretap are not penal in nature, and thus, the void-for-vagueness doctrine is not applicable to them. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).

§ 19.2-64. Forfeiture of unlawful devices.

Any electronic, mechanical or other device used, manufactured, assembled, possessed, sold, or advertised in violation of § 19.2-62 or § 19.2-63 may be seized and forfeited to the Commonwealth, and turned over to the court of record in the city or county in which it was seized and such property shall be disposed of in such manner as the court may direct.

(Code 1950, § 19.1-89.4; 1973, c. 442; 1975, c. 495.)

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

§ 19.2-65. When intercepted communications and evidence derived therefrom not to be received in evidence.

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing or other proceeding in or before any court, grand jury, department, officer, commission, regulatory body, legislative committee or other agency of this Commonwealth or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

(Code 1950, § 19.1-89.5; 1973, c. 442; 1975, c. 495.)

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).

CASE NOTES

Admissible communications. - A recording of a whispered conversation between defendant and his mother's boyfriend in a police interrogation room while only defendant, the boyfriend, and defendant's mother were present was admissible against defendant because he had no reasonable expectation of privacy under the circumstances. Belmer v. Commonwealth, 36 Va. App. 448, 553 S.E.2d 123, 2001 Va. App. LEXIS 531 (2001).

Defendant was not entitled to suppress the contents of website chats that defendant had with a police officer because the officer did not violate the Virginia Wiretap Act, §§ 19.2-61 to 19.2-70.3 , when the officer adopted the persona of a preteen child in the website chats with defendant. Pick v. Commonwealth, 72 Va. App. 651, 852 S.E.2d 479, 2021 Va. App. LEXIS 5 (2021).

Applied in Morton v. Commonwealth, 227 Va. 216 , 315 S.E.2d 224 (1984).

§ 19.2-66. When Attorney General or Chief Deputy Attorney General may apply for order authorizing interception of communications.

  1. The Attorney General or Chief Deputy Attorney General, if the Attorney General so designates in writing, in any case where the Attorney General is authorized by law to prosecute or pursuant to a request in his official capacity of an attorney for the Commonwealth in any city or county, may apply to a judge of competent jurisdiction for an order authorizing the interception of wire, electronic or oral communications by the Department of State Police, when such interception may reasonably be expected to provide evidence of the commission of a felonious offense of extortion, bribery, kidnapping, murder, any felony violation of § 18.2-248 or 18.2-248.1 , any felony violation of Chapter 29 (§ 59.1-364 et seq.) of Title 59.1, any felony violation of Article 2 (§ 18.2-38 et seq.), Article 2.1 (§ 18.2-46.1 et seq.), Article 2.2 (§ 18.2-46.4 et seq.), Article 5 (§ 18.2-58 et seq.), Article 6 (§ 18.2-59 et seq.) or any felonies that are not Class 6 felonies in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, or any conspiracy to commit any of the foregoing offenses. The Attorney General or Chief Deputy Attorney General may apply for authorization for the observation or monitoring of the interception by a police department of a county or city, by a sheriff's office, or by law-enforcement officers of the United States. Such application shall be made, and such order may be granted, in conformity with the provisions of § 19.2-68 .
  2. The application for an order under subsection B of § 19.2-68 shall be made as follows:
    1. In the case of an application for a wire or electronic interception, a judge of competent jurisdiction shall have the authority to issue an order under subsection B of § 19.2-68 if there is probable cause to believe that an offense was committed, is being committed, or will be committed or the person or persons whose communications are to be intercepted live, work, subscribe to a wire or electronic communication system, maintain an address or a post office box, or are making the communication within the territorial jurisdiction of the court.
    2. In the case of an application for an oral intercept, a judge of competent jurisdiction shall have the authority to issue an order under subsection B of § 19.2-68 if there is probable cause to believe that an offense was committed, is being committed, or will be committed or the physical location of the oral communication to be intercepted is within the territorial jurisdiction of the court.
  3. For the purposes of an order entered pursuant to subsection B of § 19.2-68 for the interception of a wire or electronic communication, such communication shall be deemed to be intercepted in the jurisdiction where the order is entered, regardless of the physical location or the method by which the communication is captured or routed to the monitoring location. (Code 1950, § 19.1-89.6; 1973, c. 442; 1975, c. 495; 1976, c. 271; 1979, c. 602; 1982, cc. 40, 274; 1988, cc. 855, 889; 2002, cc. 588, 623; 2004, c. 122; 2005, c. 934; 2011, cc. 403, 414; 2013, cc. 448, 664.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and inserted "any felony violation of Article 2.2 ( § 18.2-46.4 et seq.) of Chapter 4 of Title 18.2" near the end of the first sentence.

The 2004 amendments. - The 2004 amendment by c. 122, in the first sentence, inserted "Article 2 ( § 18.2-38 et seq.), Article 2.1 ( § 18.2-46.1 et seq.)" following "any felony violation of" and "Article 5 ( § 18.2-58 et seq.), Article 6 ( § 18.2-59 et seq.) or any felonies that are not Class 6 felonies in Article 7 ( § 18.2-61 et seq.)" preceding "of Chapter 4."

The 2005 amendments. - The 2005 amendment by c. 934 inserted the A designation at the beginning of the first paragraph and in subsection A, deleted "for the jurisdiction where the proposed intercept is to be made" following "judge of competent jurisdiction" in the first sentence and deleted the last sentence, which formerly read: "Application for installation of a mobile interception device may be made to and granted by any court of competent jurisdiction in the Commonwealth"; added subsection B; and made a minor stylistic change.

The 2011 amendments. - The 2011 amendments by cc. 403 and 414 are identical, and rewrote the first paragraph in subsection B, which read: "The application for an order under subsection B of § 19.2-68 for the interception of a wire, electronic or oral communication shall be made in the jurisdiction where there is probable cause to believe that an offense listed in subsection A of this section was committed, is being committed, or will be committed"; in subsections B 1 and B 2, inserted "there is probable cause to believe that an offense was committed, is being committed, or will be committed or"; and redesignated former subdivision B 3 as subsection C.

The 2013 amendments. - The 2013 amendments by cc. 448 and 664 are identical, and inserted "by a sheriff's office" in the next-to-last sentence in subsection A.

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

CASE NOTES

Void-for-vagueness doctrine inapplicable. - The portions of the "Virginia Wiretap Statute" which prescribe the procedure for obtaining and conducting a wiretap are not penal in nature, and thus, the void-for-vagueness doctrine is not applicable to them. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).

This section must be read with § 19.2-68 . - This section, which delineates the parties who may initiate an application for a wiretap and the crimes for which a wiretap can be obtained, is subordinate to and must be read with § 19.2-68 . Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).

Section 19.2-68 qualifies this section. - Section 19.2-68 outlines the procedural requirements of a wiretap application and clearly qualifies this section. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).

Definition of "intercept" in § 19.2-68 B 5 applies to both this section and § 19.2-68 . For purposes of these sections, "intercept" means the physical act (such as splicing) by which the interceptor gains the ability to exercise dominion and control over the communication. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed Nationwide Mut. Ins. Co. v. Scott, 234 Va. 573 , 363 S.E.2d 703 (1988).

Interception occurred when telephone line broken and splicing occurred. - Interception of telephone conversations occurred in Franklin County when telephone line was broken and splicing occurred, even though the intercepted conversations could not have been transcribed but for the listening post in Henry County where they were monitored. Thus, intercept order entered by a judge in Franklin County was valid. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).

Applied in Morton v. Commonwealth, 227 Va. 216 , 315 S.E.2d 224 (1984).

§ 19.2-67. Disclosure of information obtained by authorized means.

  1. Any investigative or law-enforcement officer, or police officer of a county or city, who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose such contents to another investigative or law-enforcement officer, or police officer of a county or city, to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
  2. Any investigative or law-enforcement officer or police officer of a county or city, who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, electronic or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.
  3. Any person who has received, by any means authorized by this chapter, any information concerning a wire, electronic or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding for an offense specified in § 19.2-66 , or any conspiracy or attempt to commit the same, in any court of the United States or of any state or in any federal or state grand jury proceeding.
  4. No wire, electronic or oral communication which is a privileged communication between the parties to the conversation which is intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character, nor shall it be disclosed or used in any way.
  5. When an investigative or law-enforcement officer, or police officer of a county or city, while engaged in intercepting wire, electronic or oral communications in the manner authorized herein, or observing or monitoring such interception intercepts, observes or monitors wire, electronic or oral communications relating to offenses other than those specified in the order of authorization, the contents thereof, and evidence derived therefrom, shall not be disclosed or used as provided in subsections A, B and C of this section, unless such communications or derivative evidence relates to a felony, in which case use or disclosure may be made as provided in subsections A, B and C of this section. Such use and disclosure pursuant to subsection C of this section shall be permitted only when approved by a judge of competent jurisdiction where such judge finds, on subsequent application, that such communications were otherwise intercepted in accordance with the provisions of this chapter. Violations of this subsection E shall be punishable as provided in § 19.2-62 . (Code 1950, § 19.1-89.7; 1973, c. 442; 1975, c. 495; 1976, c. 231; 1979, c. 602; 1983, c. 536; 1988, c. 889.)

§ 19.2-68. Application for and issuance of order authorizing interception; contents of order; recording and retention of intercepted communications, applications and orders; notice to parties; introduction in evidence of information obtained.

  1. Each application for an order authorizing the interception of a wire, electronic or oral communication shall be made in writing upon oath or affirmation to the appropriate judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall be verified by the Attorney General to the best of his knowledge and belief and shall include the following information:
    1. The identity of the attorney for the Commonwealth and law-enforcement officer who requested the Attorney General to apply for such order;
    2. A full and complete statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being or is about to be committed, (ii) except as provided in subsection I, a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
    3. A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
    4. A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
    5. A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept wire, electronic or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application;
    6. Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results; and
    7. If authorization is requested for observation or monitoring by a police department of a county or city, by a sheriff's office, or by law-enforcement officers of the United States, a statement containing the name of the police department, sheriff's office, or United States agency and an explanation of the reasons such observation or monitoring is necessary.

      The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.

  2. Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, electronic or oral communications if the judge determines on the basis of the facts submitted by the applicant that:
    1. There is probable cause for belief that an individual is committing, has committed or is about to commit an offense enumerated in § 19.2-66 of this chapter;
    2. There is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
    3. Normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous; and interception under this chapter is the only alternative investigative procedure available;
    4. Except as provided in subsection I, there is probable cause for belief that the facilities from which, or the place where, the wire, electronic or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person;
    5. A wire, electronic or oral communication authorized to be intercepted pursuant to this section may be monitored at any location within the Commonwealth of Virginia.
  3. Each order authorizing the interception of any wire, electronic or oral communication shall specify:
    1. The identity of the person, if known, whose communications are to be intercepted;
    2. The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
    3. A particular description of the type of communication sought to be intercepted, and a statement of the particular offense enumerated in § 19.2-66 to which it relates;
    4. That such interception is to be conducted only by the Department of State Police;
    5. If observation or monitoring by the police department of a county or city, by a sheriff's office, or by law-enforcement officers of the United States is authorized, only that police department, sheriff's office, or agency or the officers from any police department of a town which originated the investigation leading to the application shall observe or monitor the interception; and
    6. The period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained. An order authorizing the interception of a wire, electronic or oral communication shall, upon request of the applicant, direct that a provider of wire or electronic communications service, landlord, custodian or other person shall furnish the Department of State Police forthwith all information, facilities and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such service provider, landlord, custodian or person is providing the person whose communications are to be intercepted. Any provider of wire or electronic communications service, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by the Commonwealth for reasonable and actual expenses incurred in providing such facilities or assistance, to be paid out of the criminal fund.
  4. No order entered under this section may authorize the interception of any wire, electronic or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days which period begins to run on the earlier of the day on which the investigative or law-enforcement officer begins to conduct an interception under the order or 10 days after the date of entry of the order. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection A of this section and the court's making the findings required by subsection B of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than 30 days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in 30 days. In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.
  5. Whenever an order authorizing interception is entered pursuant to this chapter, the order shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge shall require.
    1. The contents of any wire, electronic or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. Should it not be possible to record the intercepted communication, a detailed resume of such communication shall forthwith be reduced to writing and filed with the court. The recording of the contents of any wire, electronic or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations and shall not be duplicated except upon order of the court as hereafter provided. Immediately upon the expiration of the period of the order, or extensions thereof, such recording or detailed resume shall be made available to the judge issuing such order and sealed under his directions. Custody of any recordings or detailed resumes shall be vested with the court and shall not be destroyed for a period of 10 years from the date of the order and then only by direction of the court; provided, however, should any interception fail to reveal any information related to the offense or offenses for which it was authorized, such recording or resume shall be destroyed after the expiration of 60 days after the notice required by subdivision 4 of this subsection is served. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections A and B of § 19.2-67 for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, electronic or oral communication or evidence derived therefrom under subsection C of § 19.2-67 . F. 1.  The contents of any wire, electronic or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. Should it not be possible to record the intercepted communication, a detailed resume of such communication shall forthwith be reduced to writing and filed with the court. The recording of the contents of any wire, electronic or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations and shall not be duplicated except upon order of the court as hereafter provided. Immediately upon the expiration of the period of the order, or extensions thereof, such recording or detailed resume shall be made available to the judge issuing such order and sealed under his directions. Custody of any recordings or detailed resumes shall be vested with the court and shall not be destroyed for a period of 10 years from the date of the order and then only by direction of the court; provided, however, should any interception fail to reveal any information related to the offense or offenses for which it was authorized, such recording or resume shall be destroyed after the expiration of 60 days after the notice required by subdivision 4 of this subsection is served. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections A and B of § 19.2-67 for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, electronic or oral communication or evidence derived therefrom under subsection C of § 19.2-67.
    2. Applications made and orders granted or denied under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years.
    3. Any violation of the provisions of this subsection may be punished as contempt of the issuing or denying court.
    4. Within a reasonable time but not later than 90 days after the filing of an application for an order of authorization which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of:
      1. The fact of the entry of the order or the application;
      2. The date of the entry and the period of authorized interception, or the denial of the application;
      3. The fact that during the period wire, electronic or oral communications were or were not intercepted; and
      4. The fact that unless he files a motion with the court within 60 days after the service of notice upon him, the recordation or resume may be destroyed in accordance with subdivision 1 of this subsection. The judge, upon the filing of a motion, shall make available to such person or his counsel for inspection the intercepted communications, applications and orders. The serving of the inventory required by this subsection may be postponed for additional periods, not to exceed 30 days each, upon the ex parte showing of good cause to a judge of competent jurisdiction.
  6. The contents of any intercepted wire, electronic or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in a state court unless each party to the communication and to such proceeding, not less than 10 days before the trial, hearing or proceeding, has been furnished with a copy of the court order, accompanying application under which the interception was authorized and the contents of any intercepted wire, electronic or oral communication that is to be used in any trial, hearing or other proceeding in a state court. This 10-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing or proceeding and that the party will not be prejudiced by the delay in receiving such information; provided that such information in any event shall be given prior to the day of the trial, and the inability to comply with such 10-day period shall be grounds for the granting of a continuance to either party.

    The judge who considers an application for an interception under this chapter, whether issuing or denying the order, shall be disqualified from presiding at any trial resulting from or in any manner connected with such interception, regardless of whether the evidence acquired thereby is used in such trial.

  7. Any aggrieved person in any trial, hearing or proceeding in or before any court, department, officer, agency, regulatory body or other authority of the Commonwealth, or a political subdivision thereof, may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on the grounds that:
    1. The communication was unlawfully intercepted, or was not intercepted in compliance with this chapter; or
    2. The order of the authorization or approval under which it was intercepted is insufficient on its face; or
    3. The interception was not made in conformity with the order of authorization or approval; or
    4. The interception is not admissible into evidence in any trial, proceeding or hearing in a state court under the applicable rules of evidence.

      Such motion shall be made before the trial, hearing or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted pursuant to subdivision 1, 2 or 3 of this subsection, the contents of the intercepted wire, electronic or oral communication or evidence derived therefrom shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, shall make available to the aggrieved person, or his counsel, for inspection the intercepted communication.

  8. The requirements of subdivision 2 of subsection A and subdivision 4 of subsection B of this section relating to the specification of the facilities from which, or the place where, the communication is to be intercepted do not apply if:
    1. In the case of an application with respect to the interception of an oral communication:
      1. The application contains a full and complete statement as to why such specification is not practical and identifies the person committing the offense and whose communications are to be intercepted; and
      2. The judge finds that such specification is not practical; or
    2. In the case of an application with respect to a wire or electronic communication:

      (a) the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, to thwart interception by changing facilities; and

      (b) the judge finds that such purpose has been adequately shown.

      The interception of a communication under an order issued pursuant to this subsection shall not begin until the facilities from which, or the place where, the communication is to be intercepted is ascertained by the person implementing the interception order. A provider of wire or electronic communications service that has received an order issued pursuant to this subdivision 2 may move the court to modify or quash the order on the ground that its assistance with respect to the interception cannot be performed in a timely or reasonable fashion. The court, upon notice to the Attorney General, shall decide the motion expeditiously.

      (Code 1950, § 19.1-89.8; 1973, c. 442; 1975, c. 495; 1976, c. 163; 1977, c. 335; 1979, c. 602; 1980, c. 244; 1988, c. 889; 2002, c. 91; 2005, c. 934; 2013, cc. 448, 664.)

The 2002 amendments. - The 2002 amendment by c. 91 inserted "or the officers from any police department of a town which originated the investigation leading to the application" in subdivision C 5.

The 2005 amendments. - The 2005 amendment by c. 934, in subsection B, deleted "within the territorial jurisdiction of the court in which the judge is sitting, and outside that jurisdiction but within the Commonwealth in the case of a mobile interception device authorized by a court of competent jurisdiction within such jurisdiction" in the introductory paragraph and rewrote subdivision B 5; and made minor stylistic changes.

The 2013 amendments. - The 2013 amendments by cc. 448 and 664 are nearly identical, and inserted "by a sheriff's office" and "sheriff's office" in subdivisions A 7 and C 5.

Research References. - Virginia Forms (Matthew Bender). No. 9-1613. Motion for Disclosure of the Contents of Intercepted Wire and Oral Communications; No. 9-1614. Motion for Disclosure of Electronic Surveillance.

CASE NOTES

Void-for-vagueness doctrine inapplicable. - The portions of the "Virginia Wiretap Statute" which prescribe the procedure for obtaining and conducting a wiretap are not penal in nature, and thus, the void-for-vagueness doctrine is not applicable to them. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).

Section 19.2-66 must be read with this section. - Section 19.2-66 , which delineates the parties who may initiate an application for a wiretap and the crimes for which a wiretap can be obtained, is subordinate to and must be read with this section. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).

This section qualifies § 19.2-66 . - This section outlines the procedural requirements of a wiretap application and clearly qualifies § 19.2-66 . Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).

Definitions of "intercept" in this section and § 19.2-61 compared. - Prior to the 1980 amendment of this section, adding subdivision B 5, "intercept" was defined in § 19.2-61 and meant an "aural acquisition." Under that definition, a wiretap order could only be entered by a judge sitting in the jurisdiction where the conversation would be heard. Thus, a wiretap order could be entered, for example, in Richmond, where the listening post would be located, while the actual conversation might occur in Franklin County. This would deprive the local authorities of knowledge of the investigation involving their jurisdiction. To avoid this result, the General Assembly enacted subdivision B 5 of this section, defining "intercept" as the physical act of acquiring the means to intercept the conversation. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).

Definition of "intercept" in subdivision B 5 of this section applies to both § 19.2-66 and this section. For purposes of these sections, "intercept" means the physical act (such as splicing) by which the interceptor gains the ability to exercise dominion and control over the communication. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).

Legislature intended in subdivision B 5 to distinguish between "intercept" and "monitor." Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).

Interception occurred when telephone line was broken and splicing occurred. - Interception of telephone conversations occurred in Franklin County when telephone line was broken and splicing occurred, even though the intercepted conversations could not have been transcribed but for the listening post in Henry County where they were monitored. Thus, intercept order entered by a judge in Franklin County was valid. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).

§ 19.2-69. Civil action for unlawful interception, disclosure, or use.

Any person whose wire, electronic, or oral communication is intercepted, disclosed, or used in violation of this chapter shall (i) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use, such communications and (ii) be entitled to recover from any such person:

  1. Actual damages but not less than liquidated damages computed at the rate of $400 a day for each day of violation or $4,000, whichever is higher, provided that liquidated damages shall be computed at the rate of $800 a day for each day of violation or $8,000, whichever is higher, if the wire, electronic, or oral communication intercepted, disclosed, or used is between (i) persons married to each other; (ii) an attorney and client; (iii) a licensed practitioner of the healing arts and patient; (iv) a licensed professional counselor, licensed clinical social worker, licensed psychologist, or licensed marriage and family therapist and client; or (v) a clergy member and person seeking spiritual counsel or advice;
  2. Punitive damages; and
  3. A reasonable attorney fee and other litigation costs reasonably incurred.

    A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law.

    (Code 1950, § 19.1-89.9; 1973, c. 442; 1975, c. 495; 1988, c. 889; 2010, c. 343; 2015, c. 672; 2020, c. 900.)

The 2010 amendments. - The 2010 amendment by c. 343 substituted "$400" for "$100" and "$4,000" for "$1,000."

The 2015 amendments. - The 2015 amendment by c. 672 added the proviso at the end of subdivision 1.

The 2020 amendments. - The 2020 amendment by c. 900, in subdivision 1, substituted "persons married to each other" for "a husband and wife" in clause (i); and in subdivision 3, substituted "attorney" for "attorney's."

§ 19.2-70. Reports to be filed by courts and Attorney General.

All courts of the Commonwealth and the Attorney General shall file all reports required by 18 U.S.C.A. § 2519. The Attorney General shall file a written report with the Clerks of the Senate and House of Delegates on or before December 31 of each year setting forth the number of applications made pursuant to this chapter, the number of interceptions authorized, the number of arrests resulting from each application, the number of convictions including a breakdown by offense, the cost of each application granted and the number of requests denied. Such information shall be made available by such Clerks to any member of the General Assembly upon request. However, notwithstanding the above requirements, no report shall be made concerning a granted application until after all inventories associated with such application are served pursuant to subdivision F 4 of § 19.2-68 .

(Code 1950, § 19.1-89.10; 1973, c. 442; 1975, c. 495; 2011, cc. 403, 414.)

The 2011 amendments. - The 2011 amendments by cc. 403 and 414 are identical, and added the last sentence.

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

§ 19.2-70.1. General prohibition on pen register and trap and trace device use; exceptions.

Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under § 19.2-70.2 .

However, a court order shall not be required for use of a pen register or trap and trace device by a provider of electronic or wire communication service (i) relating to the operation, maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service; (ii) to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful or abusive use of service; or (iii) where the consent of the user of that service has been obtained.

Any person who knowingly violates this section shall be guilty of a Class 1 misdemeanor.

(1988, c. 889.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 19.2-70.2. Application for and issuance of order for a pen register or trap and trace device; assistance in installation and use.

  1. An investigative or law-enforcement officer may make application for an order or an extension of an order authorizing or approving the installation and use of a pen register or a trap and trace device, in writing under oath or equivalent affirmation, to a court of competent jurisdiction. The application shall include:
    1. The identity of the officer making the application and the identity of the law-enforcement agency conducting the investigation; and
    2. A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.

      The application may include a request that the order require information, facilities and technical assistance necessary to accomplish the installation be furnished.

  2. An application for an ex parte order authorizing the installation and use of a pen register or trap and trace device may be filed in the jurisdiction where the ongoing criminal investigation is being conducted; where there is probable cause to believe that an offense was committed, is being committed, or will be committed; or where the person or persons who subscribe to the wire or electronic communication system live, work, or maintain an address or a post office box. For the purposes of an order entered pursuant to this section for the installation and use of a pen register or trap and trace device, such installation shall be deemed to occur in the jurisdiction where the order is entered, regardless of the physical location or the method by which the information is captured or routed to the law-enforcement officer that made the application. Upon application, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device if the court finds that the investigative or law-enforcement officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.

    The order shall specify:

    1. The identity, if known, of the person in whose name the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied is listed or to whom the line or other facility is leased;
    2. The identity, if known, of the person who is the subject of the criminal investigation;
    3. The attributes of the communications to which the order applies, including the number or other identifier and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied; and
    4. A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
  3. Installation and use of a pen register or a trap and trace device shall be authorized for a period not to exceed 60 days. Extensions of the order may be granted, but only upon application made and order issued in accordance with this section. The period of an extension shall not exceed 60 days.
  4. An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that:
    1. The order and application be sealed until otherwise ordered by the court;
    2. Information, facilities and technical assistance necessary to accomplish the installation be furnished if requested in the application; and
    3. The person owning or leasing the line or other facility to which the pen register or trap and trace device is attached or applied, or who is obligated by the order to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court.
  5. Upon request of an investigative or a law-enforcement officer authorized by the court to install and use a pen register, a provider of wire or electronic communication service, a landlord, custodian or any other person so ordered by the court shall, as soon as practicable, furnish the officer with all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place.
  6. Upon request of an investigative or law-enforcement officer authorized by the court to receive the results of a trap and trace device under this section, a provider of wire or electronic communication service, a landlord, custodian or any other person so ordered by the court shall, as soon as practicable, install the device on the appropriate line and furnish the officer with all additional information, facilities and technical assistance, including installation and operation of the device, unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place. Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished to the investigative or law-enforcement officer designated by the court at reasonable intervals during regular business hours for the duration of the order. Where the law-enforcement agency implementing an ex parte order under this subsection seeks to do so by installing and using its own pen register or trap and trace device on a packet-switched data network of a provider of electronic communication service to the public, the agency shall ensure that a record will be maintained that will identify (i) any officer or officers who installed the device and any officer or officers who accessed the device to obtain information from the network; (ii) the date and time the device was installed, the date and time the device was uninstalled, and the date, time, and duration of each time the device is accessed to obtain information; (iii) the configuration of the device at the time of its installation and any subsequent modification thereof; and (iv) any information that has been collected by the device. To the extent that the pen register or trap and trace device can be set automatically to record this information electronically, the record shall be maintained electronically throughout the installation and use of such device. The record maintained hereunder shall be provided ex parte and under seal of the court that entered the ex parte order authorizing the installation and use of the device within 30 days after termination of the order, including any extensions thereof.
  7. A provider of a wire or electronic communication service, a landlord, custodian or other person who furnishes facilities or technical assistance pursuant to this section shall be reasonably compensated for reasonable and actual expenses incurred in providing such facilities and assistance. The expenses shall be paid out of the criminal fund.
  8. When disclosure of real-time location data is not prohibited by federal law, an investigative or law-enforcement officer may obtain a pen register or trap and trace device installation without a court order, in addition to any real-time location data obtained pursuant to subsection E of § 19.2-70.3 , in the following circumstances:
    1. To respond to a user's call for emergency services;
    2. With the informed, affirmative consent of the owner or user of the electronic device concerned if (i) the device is in his possession, (ii) the owner or user knows or believes that the device is in the possession of an employee or agent of the owner or user with the owner's or user's consent, or (iii) the owner or user knows or believes that the device has been taken by a third party without the consent of the owner or user;
    3. With the informed, affirmative consent of the legal guardian or next of kin of the owner or user, if reasonably available, if the owner or user is reasonably believed to be deceased, is reported missing, or is unable to be contacted;
    4. To locate a child who is reasonably believed to have been abducted or to be missing and endangered; or
    5. If the investigative or law-enforcement officer reasonably believes that an emergency involving the immediate danger to a person requires the disclosure, without delay, of pen register and trap and trace data, or real-time location data pursuant to subsection E of § 19.2-70.3 , concerning a specific person and that a court order cannot be obtained in time to prevent the identified danger. No later than three business days after seeking the installation of a pen register or trap and trace device pursuant to this subsection, the investigative or law-enforcement officer seeking the installation shall file with the appropriate court a written statement setting forth the facts giving rise to the emergency and the reasons why the installation of the pen register or trap and trace device was believed to be important in addressing the emergency.
  9. No cause of action shall lie in any court against a provider of a wire or electronic communication service, its officers, employees, agents or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order issued pursuant to this section. Good faith reliance on a court order, a legislative authorization or a statutory authorization is a complete defense against any civil or criminal action based upon a violation of this chapter.

    (1988, c. 889; 2002, cc. 588, 623; 2005, c. 934; 2016, c. 231; 2018, c. 667.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and in subdivision B 1, inserted "or other facility" twice and inserted "or applied"; rewrote subdivision B 3, which formerly read: "The number and, if known, the physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order"; in subdivision D 3, inserted "or other facility" and substituted "or applied, or who is obligated by the order" for "or who has been ordered by the court"; and added the last three sentences in subsection F.

The 2005 amendments. - The 2005 amendment by c. 934, in the first paragraph of subsection B, added the first and second sentences and deleted "within the jurisdiction of the court" following "trap and trace device" in the last sentence; and made minor stylistic changes.

The 2016 amendments. - The 2016 amendment by c. 231 inserted "where the ongoing criminal investigation is being conducted; where there is probable cause to believe that an offense was committed, is being committed, or will be committed; or" in subsection B.

The 2018 amendments. - The 2018 amendment by c. 667 inserted subsection H and made related changes.

§ 19.2-70.3. Obtaining records concerning electronic communication service or remote computing service.

  1. A provider of electronic communication service or remote computing service, which, for purposes of subdivisions 2, 3, and 4, includes a foreign corporation that provides such services, shall disclose a record or other information pertaining to a subscriber to or customer of such service, excluding the contents of electronic communications and real-time location data, to an investigative or law-enforcement officer only pursuant to:
    1. A subpoena issued by a grand jury of a court of the Commonwealth;
    2. A search warrant issued by a magistrate, general district court, or circuit court;
    3. A court order issued by a circuit court for such disclosure issued as provided in subsection B; or
    4. The consent of the subscriber or customer to such disclosure.
  2. A court shall issue an order for disclosure under this section only if the investigative or law-enforcement officer shows that there is reason to believe the records or other information sought are relevant and material to an ongoing criminal investigation, or the investigation of any missing child as defined in § 52-32 , missing senior adult as defined in § 52-34.4 , or an incapacitated person as defined in § 64.2-2000 who meets the definition of a missing senior adult except for the age requirement. Upon issuance of an order for disclosure under this section, the order and any written application or statement of facts may be sealed by the court for 90 days for good cause shown upon application of the attorney for the Commonwealth in an ex parte proceeding. The order and any written application or statement of facts may be sealed for additional 90-day periods for good cause shown upon subsequent application of the attorney for the Commonwealth in an ex parte proceeding. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify the order, if the information or records requested are unusually voluminous in nature or compliance with such order would otherwise cause an undue burden on such provider.
  3. Except as provided in subsection D or E, a provider of electronic communication service or remote computing service, including a foreign corporation that provides such services, shall disclose the contents of electronic communications or real-time location data to an investigative or law-enforcement officer only pursuant to a search warrant issued by a magistrate, a juvenile and domestic relations district court, a general district court, or a circuit court, based upon complaint on oath supported by an affidavit as required in § 19.2-54 , or judicial officer or court of any of the several states of the United States or its territories, or the District of Columbia when the warrant issued by such officer or such court complies with the provisions of subsection G. In the case of a search warrant directed to a foreign corporation, the affidavit shall state that the complainant believes that the records requested are actually or constructively possessed by a foreign corporation that provides electronic communication service or remote computing service within the Commonwealth of Virginia. If satisfied that probable cause has been established for such belief and as required by Chapter 5 (§ 19.2-52 et seq.), the magistrate, the juvenile and domestic relations district court, the general district court, or the circuit court shall issue a warrant identifying those records to be searched for and commanding the person seeking such warrant to properly serve the warrant upon the foreign corporation. A search warrant for real-time location data shall be issued if the magistrate, the juvenile and domestic relations district court, the general district court, or the circuit court is satisfied that probable cause has been established that the real-time location data sought is relevant to a crime that is being committed or has been committed or that an arrest warrant exists for the person whose real-time location data is sought.
  4. A provider of electronic communication service or remote computing service, including a foreign corporation that provides such services, shall disclose a record or other information pertaining to a subscriber to or customer of such service, including real-time location data but excluding the contents of electronic communications, to an investigative or law-enforcement officer pursuant to an administrative subpoena issued pursuant to § 19.2-10.2 concerning a violation of § 18.2-374.1 or 18.2-374.1:1 , former § 18.2-374.1:2 , or § 18.2-374.3 when the information sought is relevant and material to an ongoing criminal investigation.
  5. When disclosure of real-time location data is not prohibited by federal law, an investigative or law-enforcement officer may obtain real-time location data without a warrant in the following circumstances:
    1. To respond to the user's call for emergency services;
    2. With the informed, affirmative consent of the owner or user of the electronic device concerned if (i) the device is in his possession; (ii) the owner or user knows or believes that the device is in the possession of an employee or agent of the owner or user with the owner's or user's consent; or (iii) the owner or user knows or believes that the device has been taken by a third party without the consent of the owner or user;
    3. With the informed, affirmative consent of the legal guardian or next of kin of the owner or user, if reasonably available, if the owner or user is reasonably believed to be deceased, is reported missing, or is unable to be contacted;
    4. To locate a child who is reasonably believed to have been abducted or to be missing and endangered; or
    5. If the investigative or law-enforcement officer reasonably believes that an emergency involving the immediate danger to a person requires the disclosure, without delay, of real-time location data concerning a specific person and that a warrant cannot be obtained in time to prevent the identified danger.

      No later than three business days after seeking disclosure of real-time location data pursuant to this subsection, the investigative or law-enforcement officer seeking the information shall file with the appropriate court a written statement setting forth the facts giving rise to the emergency and the facts as to why the person whose real-time location data was sought is believed to be important in addressing the emergency.

  6. In order to comply with the requirements of § 19.2-54 , any search of the records of a foreign corporation shall be deemed to have been made in the same place wherein the search warrant was issued.
  7. A Virginia corporation or other entity that provides electronic communication services or remote computing services to the general public, when properly served with a search warrant and affidavit in support of the warrant, issued by a judicial officer or court of any of the several states of the United States or its territories, or the District of Columbia with jurisdiction over the matter, to produce a record or other information pertaining to a subscriber to or customer of such service, including real-time location data, or the contents of electronic communications, or both, shall produce the record or other information, including real-time location data, or the contents of electronic communications as if that warrant had been issued by a Virginia court. The provisions of this subsection shall only apply to a record or other information, including real-time location data, or contents of electronic communications relating to the commission of a criminal offense that is substantially similar to (i) a violent felony as defined in § 17.1-805 , (ii) an act of violence as defined in § 19.2-297.1 , (iii) any offense for which registration is required pursuant to § 9.1-902 , (iv) computer fraud pursuant to § 18.2-152.3 , or (v) identity theft pursuant to § 18.2-186.3 . The search warrant shall be enforced and executed in the Commonwealth as if it were a search warrant described in subsection C.
  8. The provider of electronic communication service or remote computing service may verify the authenticity of the written reports or records that it discloses pursuant to this section by providing an affidavit from the custodian of those written reports or records or from a person to whom said custodian reports certifying that they are true and complete copies of reports or records and that they are prepared in the regular course of business. When so authenticated, no other evidence of authenticity shall be necessary. The written reports and records, excluding the contents of electronic communications, shall be considered business records for purposes of the business records exception to the hearsay rule.
  9. No cause of action shall lie in any court against a provider of a wire or electronic communication service or remote computing service or such provider's officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, administrative subpoena, or subpoena under this section or the provisions of subsection E.
  10. A search warrant or administrative subpoena for the disclosure of real-time location data pursuant to this section shall require the provider to provide ongoing disclosure of such data for a reasonable period of time, not to exceed 30 days. A court may, for good cause shown, grant one or more extensions, not to exceed 30 days each.
  11. An investigative or law-enforcement officer shall not use any device to obtain electronic communications or collect real-time location data from an electronic device without first obtaining a search warrant authorizing the use of the device if, in order to obtain the contents of such electronic communications or such real-time location data from the provider of electronic communication service or remote computing service, such officer would be required to obtain a search warrant pursuant to this section. However, an investigative or law-enforcement officer may use such a device without first obtaining a search warrant under the circumstances set forth in subsection E. For purposes of subdivision E 5, the investigative or law-enforcement officer using such a device shall be considered to be the possessor of the real-time location data.
  12. Upon issuance of any subpoena, search warrant, or order for disclosure issued under this section, upon written certification by the attorney for the Commonwealth that there is a reason to believe that the victim is under the age of 18 and that notification or disclosure of the existence of the subpoena, search warrant, or order will endanger the life or physical safety of an individual, or lead to flight from prosecution, the destruction of or tampering with evidence, the intimidation of potential witnesses, or otherwise seriously jeopardize an investigation, the court may in an ex parte proceeding order a provider of electronic communication service or remote computing service not to disclose for a period of 90 days the existence of the subpoena, search warrant, or order and written application or statement of facts to another person, other than an attorney to obtain legal advice. The nondisclosure order may be renewed for additional 90-day periods for good cause shown upon subsequent application of the attorney for the Commonwealth in an ex parte proceeding. A court issuing an order for disclosure pursuant to this section, on a motion made promptly by the service provider, may quash or modify the order if the information or records requested are unusually voluminous in nature or compliance with such order would otherwise cause an undue burden on such provider.
  13. For the purposes of this section: "Electronic device" means a device that enables access to, or use of, an electronic communication service, remote computing service, or location information service, including a global positioning service or other mapping, locational, or directional information service. "Foreign corporation" means any corporation or other entity, whose primary place of business is located outside of the boundaries of the Commonwealth, that makes a contract or engages in a terms of service agreement with a resident of the Commonwealth to be performed in whole or in part by either party in the Commonwealth, or a corporation that has been issued a certificate of authority pursuant to § 13.1-759 to transact business in the Commonwealth. The making of the contract or terms of service agreement or the issuance of a certificate of authority shall be considered to be the agreement of the foreign corporation or entity that a search warrant or subpoena, which has been properly served on it, has the same legal force and effect as if served personally within the Commonwealth. "Properly served" means delivery of a search warrant or subpoena by hand, by United States mail, by commercial delivery service, by facsimile or by any other manner to any officer of a corporation or its general manager in the Commonwealth, to any natural person designated by it as agent for the service of process, or if such corporation has designated a corporate agent, to any person named in the latest annual report filed pursuant to § 13.1-775 . "Real-time location data" means any data or information concerning the current location of an electronic device that, in whole or in part, is generated, derived from, or obtained by the operation of the device. (1988, c. 889; 2009, c. 378; 2010, cc. 319, 473, 582, 720, 721; 2011, c. 392; 2014, c. 388; 2015, cc. 43, 634; 2016, cc. 549, 576, 616; 2018, c. 667.)

Editor's note. - At the direction of the Virginia Code Commission, the reference to "37.2-1000" was changed to "64.2-2000" to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

The 2009 amendments. - The 2009 amendment by c. 378 substituted "relevant and material to an ongoing criminal investigation" for "relevant to a legitimate law enforcement inquiry" in the first sentence in subsection B; and added subsections C, D, and F; and redesignated former subsection C as subsection E.

The 2010 amendments. - The 2010 amendment by c. 319 inserted "for judicial officer or court of another any of the several states of the United States or its territories, or the District of Columbia when the warrant issued by such officer or such court complies with the provisions of subsection E" at the end of the first sentence of subsection C; added subsection E; and redesignated former subsections C through F as subsections D through G.

The 2010 amendment by c. 473 are nearly the same as c. 319 amendments, but, inserted "or judicial officer or court of any of the several states of the United States or its territories, or the District of Columbia when the warrant issued by such officer or such court complies with the provisions of subsection E" in the first sentence of subsection C; inserted subsection E; and redesignated former subsections E and F as subsections F and G.

Subsection C is set out in the form above at the direction of the Virginia Code Commission.

The 2010 amendment by c. 582 added the language beginning "or the investigation of any missing child" at the end of the first sentence in subsection B.

The 2010 amendment by c. 720 inserted "which, for purposes of subdivisions A 2 through A 4, includes a foreign corporation that provides such services" in the introductory language of subsection A.

The 2010 amendment by c. 721 deleted "The foreign corporation may verify the authenticity of records that it produces by providing an affidavit from the person in custody of those records certifying that they are true and complete." at the end of subsection C; inserted subsection F and redesignated former subsections E and F as subsections G and H.

The 2011 amendments. - The 2011 amendment by c. 392 added the second and third sentences in subsection B.

The 2014 amendments. - The 2014 amendment by c. 388 in subsection A deleted "A" twice preceding "2" and "4," and inserted "and real-time location data"; in subdivision A 3 substituted "subsection B" for "this section"; in subsection C substituted "Except as provided in subsection D, a" for "A" and inserted "or real-time location data"; added subsections D, E, and J and redesignated the remaining subsections accordingly, and made related changes; in subsection G inserted "including real-time location data" throughout the subsection; in subsection I substituted "or remote computing service or such provider's" for "its" and inserted "administrative subpoena" and "or the provisions of subsection E"; and in subsection K added the definitions of "Electronic device" and "Real-time location data."'

The 2015 amendments. - The 2015 amendment by c. 43 added subsection K and redesignated former subsection K as subsection L.

The 2015 amendment by c. 634 added the fourth sentence in subsection C.

The 2016 amendments. - The 2016 amendment by c. 549, in subsection C, substituted "subsections" for "subsection" and inserted "and E"; and in subsection H, deleted "excluding the contents of electronic communications" following "pursuant to this section," inserted "copies of reports or records" and substituted "no other evidence of authenticity shall be necessary. The" for "the," and "excluding the contents of electronic communications, shall be considered business records for purposes of the" for "are admissible in evidence as a." Subsection C is set out in the form above at the direction of the Virginia Code Commission.

The 2016 amendment by c. 576, substituted "Subsection D or E" for "Subsection D" near the beginning of subsection C; and deleted "and the possessor of the real-time location data believes, in good faith, that an emergency involving danger to a person requires disclosure without delay" at the end of subdivision E 4.

The 2016 amendment by c. 616, inserted "issued by a circuit court" in subdivision A 3; added subsection L and redesignated former subsection L as subsection M.

The 2018 amendments. - The 2018 amendment by c. 667 inserted subdivision E 4 and made related changes.

CASE NOTES

Applicability. - Defendant's motion to suppress was properly denied because, in part, even if a detective violated 18 U.S.C.S. § 2703 and § 19.2-70.3 , those statutes did not provide suppression of the evidence in federal court as a remedy. United States v. Clenney, 631 F.3d 658, 2011 U.S. App. LEXIS 2117 (4th Cir. 2011).

Cell phone records were admissible under the business records exception, as a witness testified that they were prepared in the ordinary course of business for all customers with text messaging services and that she was the custodian of those records. Chewning v. Commonwealth, No. 2204-12-4, 2014 Va. App. LEXIS 82 (Mar. 11, 2014).

Obtaining cell-site data. - Since a circuit court judge found probable cause to issue the orders for the cell-site data, both of the subject orders met and exceeded the statutory standard and did not violate defendant's Fourth Amendment rights. Reynolds v. Commonwealth,, 2014 Va. App. LEXIS 213 (May 27, 2014).

Upon remand from the Supreme Court of the United States, the Court of Appeals of Virginia determined that while Virginia's statute contained the exact language as 18 U.S.C.S. § 2703(d) and the Supreme Court of the United States determined that § 2703(d) fell short of the probable cause required for a warrant, the exclusionary rule did not apply because there was no police or governmental conduct that needed to be deterred at the time it occurred where defendant did not contend that the statutes were invalid at the time the Commonwealth obtained his cell site location information in 2012 and 2015 and both the detectives and the Commonwealth's attorney had a reasonable, good faith belief that their actions were constitutional at the time. Reed v. Commonwealth, 69 Va. App. 332, 819 S.E.2d 446, 2018 Va. App. LEXIS 275 (2018).

Cell phone records. - Requested cell phone records were relevant and material to the criminal case against defendant because the records concerned a window of time during which defendant was allegedly involved in a drug buy with a known drug dealer and during which time defendant was alleged to have called the drug dealer. Moreover, the records corroborated a police detective's identification of defendant by placing defendant in the general area of the drug buy and connected defendant to the drug dealer through phone calls at the time relevant to the drug buy. Reed v. Commonwealth, No. 1305-15-4, 2016 Va. App. LEXIS 233 (Ct. of Appeals Aug. 30, 2016).

Chapter 7. Arrest.

Sec.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1. Courts. § 1.05 District Courts. Friend.

Virginia Forms (Matthew Bender). No. 9-401. Criminal Complaint, et seq.

§ 19.2-71. Who may issue process of arrest.

  1. 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.). 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.
  2. No law-enforcement officer shall seek issuance of process by any judicial officer, for the arrest of a person for an offense of 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. (Code 1950, § 19.1-90; 1960, c. 366; 1975, c. 495; 1999, c. 266; 2002, c. 310; 2009, cc. 291, 344; 2010, c. 240; 2011, cc. 205, 223; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendment added the subsection A designator and added subsection B.

The 2002 amendments. - The 2002 amendment by c. 310 substituted "Chapter 3 ( § 19.2-26 et seq.)" for "Chapters 3 ( § 19.2-26 et seq.) and 4 ( § 19.2-49 et seq.)" in subsection A.

The 2009 amendments. - The 2009 amendments by cc. 291 and 344 are nearly identical, and added the last sentence of subsection A. In addition, c. 291 added "having jurisdiction over the alleged offense" at the end of subsection A. The section is set out in the form above at the direction of the Virginia Code Commission.

The 2010 amendments. - The 2010 amendment by c. 240 inserted "or an animal control officer" following "law-enforcement officer" in the second sentence of subsection A.

The 2011 amendments. - The 2011 amendments by cc. 205 and 223 are identical, and substituted "without prior authorization by the attorney for the Commonwealth or by a law-enforcement agency" for "without prior consultation by the magistrate with the attorney for the Commonwealth or, if no attorney for the Commonwealth is available, without prior consultation with a law-enforcement agency" in subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "of this title" from the end of the first sentence in subsection A; and substituted "an offense of aggravated murder" for "the offense of capital murder" in the first sentence of subsection B.

Law review. - For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 19; 11B M.J. Justices and Magistrates, §§ 33, 37.

Applied in Evans v. Sturgill, 430 F. Supp. 1209 (W.D. Va. 1977); Estate of Hackler v. Hackler, 44 Va. App. 51, 602 S.E.2d 426 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Show cause summons. - Service of a criminal show cause summons does not constitute an "arrest" or trigger the reporting requirements of § 19.2-390 . See opinion of Attorney General to The Honorable Dennis S. Proffitt, Chesterfield County Sheriff, 09-070, 2009 Va. AG LEXIS 48 (10/26/09).

Prosecutorial discretion. - While a prosecutor is permitted to move to amend a misdemeanor charge alleging a violation of a municipal ordinance to the equivalent misdemeanor charge alleging a violation of state law when such an arrest or summons was made by an officer of a local police department or a deputy for a local sheriff's department, any such an amendment is subject to judicial review and may be made only by an appropriate judicial officer. See opinion of Attorney General to The Honorable Richard K. Newman, Commonwealth Attorney for the City of Hopewell, 11-080, 2012 Va. AG LEXIS 8 (2/17/12).

§ 19.2-72. When it may issue; what to recite and require.

On complaint of a criminal offense to any officer authorized to issue criminal warrants he shall examine on oath the complainant and any other witnesses, or when such officer shall suspect that an offense punishable otherwise than by a fine has been committed he may, without formal complaint, issue a summons for witnesses and shall examine such witnesses. A written complaint shall be required if the complainant is not a law-enforcement officer; however, if no arrest warrant is issued in response to a written complaint made by such complainant, the written complaint shall be returned to the complainant. If upon such examination such officer finds that there is probable cause to believe the accused has committed an offense, such officer shall issue a warrant for his arrest, except that 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. The warrant shall (i) be directed to an appropriate officer or officers, (ii) name the accused or, if his name is unknown, set forth a description by which he can be identified with reasonable certainty, (iii) describe the offense charged with reasonable certainty, (iv) command that the accused be arrested and brought before a court of appropriate jurisdiction in the county, city or town in which the offense was allegedly committed, and (v) be signed by the issuing officer. If a warrant is issued for an offense in violation of any county, city, or town ordinance that is similar to any provision of this Code, the warrant shall reference the offense using both the citation corresponding to the county, city, or town ordinance and the specific provision of this Code. The warrant shall require the officer to whom it is directed to summon such witnesses as shall be therein named to appear and give evidence on the examination. But in a city or town having a police force, the warrant shall be directed "To any policeman, sheriff or his deputy sheriff of such city (or town)," and shall be executed by the policeman, sheriff or his deputy sheriff into whose hands it shall come or be delivered. A sheriff or his deputy may execute an arrest warrant throughout the county in which he serves and in any city or town surrounded thereby and effect an arrest in any city or town surrounded thereby as a result of a criminal act committed during the execution of such warrant. A jail officer as defined in § 53.1-1 employed at a regional jail or jail farm is authorized to execute a warrant of arrest upon an accused in his jail. The venue for the prosecution of such criminal act shall be the jurisdiction in which the offense occurred.

(Code 1950, § 19.1-91; 1960, c. 366; 1975, c. 495; 1991, c. 420; 2000, c. 170; 2007, c. 412; 2009, cc. 291, 344; 2010, c. 240; 2011, cc. 205, 223; 2013, c. 207; 2016, c. 204; 2021, Sp. Sess. I, cc. 524, 542.)

Cross references. - As to issuance of summons instead of warrant in certain cases, see § 19.2-73 .

For constitutional provision as to general warrants, see Va. Const., Art. I, § 10.

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2000 amendments. - The 2000 amendment by c. 170 added the last sentence.

The 2007 amendments. - The 2007 amendment by c. 412, in the next-to-last sentence, inserted "or town" following "and in any city" and "and effect an arrest in any city or town surrounded thereby as a result of a criminal act committed during the execution of such warrant" at the end; and added the last sentence.

The 2009 amendments. - The 2009 amendments by cc. 291 and 344 are nearly identical, and added the second sentence; and in the third sentence, added the exception at the end. In addition, c. 291 inserted "having jurisdiction over the alleged offense" at the end of the third sentence. The sentence has been set out in the form above at the direction of the Virginia Code Commission.

The 2010 amendments. - The 2010 amendment by c. 240 inserted "or an animal control officer" following "a law-enforcement officer" in the third sentence of the paragraph.

The 2011 amendments. - The 2011 amendments by cc. 205 and 223 are identical, and in the second sentence, deleted "whenever practicable" following "complaint shall be required," and in the third sentence, substituted "without prior authorization by the attorney for the Commonwealth or by a law-enforcement agency" for "without prior consultation by the magistrate with the attorney for the Commonwealth or, if no attorney for the Commonwealth is available, without prior consultation with a law-enforcement agency."

The 2013 amendments. - The 2013 amendment by c. 207 inserted the next-to-last sentence.

The 2016 amendments. - The 2016 amendment by c. 204 inserted "however, if no arrest warrant is issued in response to a written complaint made by such complainant, the written complaint shall be returned to the complainant" in the second sentence.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 524 and 542, effective July 1, 2021, are identical and inserted the fifth sentence.

Law review. - For note, "Using DNA Profiles to Obtain 'John Doe' Arrest Warrants and Indictments," see 58 Wash. & Lee L. Rev. 1585 (2001).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 4; 5B M.J. Criminal Procedure, § 12; 19 M.J. Warrants, § 2.

CASE NOTES

Section mandatory. - This section leaves an officer into whose hands a warrant is delivered no choice. The warrant shall be executed by the officer into whose hands it is delivered. Hearn v. Hudson, 549 F. Supp. 949 (W.D. Va. 1982).

Sufficiency of recitation of offense in warrant. - Warrants of arrest are required to recite the offense charged, but the same particularity is not expected or required as in indictments. Lacey v. Palmer, 93 Va. 159 , 24 S.E. 930 (1896). See also Satterfield v. Commonwealth, 105 Va. 867 , 52 S.E. 979 (1906).

Motion by defendants, company and debt collector, for sanctions, attorney's fees, and costs pursuant to Fed. R. Civ. P. 11 and § 1692k(a)(3) of the Fair Debt Collection Practices Act (FDCPA) was granted where plaintiff's contention that the debt collector lacked standing to seek a warrant for her arrest was meritless; Virginia law made clear that any person could lawfully seek to have a criminal warrant issued, and such warrant would issue if the officer investigating the complaint found that there was probable cause to believe that a criminal offense took place. Guidry v. Clare, 442 F. Supp. 2d 282, 2006 U.S. Dist. LEXIS 56447 (E.D. Va. 2006).

Arrest. - Where officers went to an arrestee's home to arrest the arrestee's son pursuant to a warrant, the arrestee allegedly closed the door on an officer's foot, and the arrestee was arrested for obstruction of justice pursuant to a warrant, the officers were entitled to summary judgment based on qualified immunity as to the arrestee's Fourth Amendment claim because their belief that there was probable cause was objectively reasonable; unlike federal law, Virginia law did not require officers seeking arrest warrants to do so by way of written declarations or sworn affidavits. Graham v. Gagnon, 104 F. Supp. 3d 753, 2015 U.S. Dist. LEXIS 61241 (E.D. Va. 2015), aff'd, 831 F.3d 176, 2016 U.S. App. LEXIS 13672 (4th Cir. 2016).

Probation violation. - Fourth Amendment and § 19.2-72 do not require sworn statements for the seizure of a probationer whose sentence to confinement has been suspended based on his failure to comply with specified terms and conditions of his probation. Unsworn written statements under § 53.1-149 , which showed that appellant had had only limited contact with probation authorities and that he still owed over $51,000 in restitution, and appellant's failure to comply with a show cause order were a sufficient basis for the trial court to issue a capias for appellant's arrest. Pierce v. Commonwealth, 48 Va. App. 660, 633 S.E.2d 755, 2006 Va. App. LEXIS 407 (2006).

Applied in Evans v. Sturgill, 430 F. Supp. 1209 (W.D. Va. 1977); Zuniga v. Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988).

CIRCUIT COURT OPINIONS

False arrest claim failed. - Students' false arrest and false imprisonment claims against a college president failed as there was no allegation implicating the president in any way in the students' arrests, and a magistrate issued warrants for the arrest of the students. Long v. Commonwealth,, 2007 Va. Cir. LEXIS 78 (Norfolk Apr. 13, 2007).

OPINIONS OF THE ATTORNEY GENERAL

Withdrawal or dismissal of warrant or summons. - Neither a chief of police nor a Commonwealth's attorney has the authority to unilaterally withdraw or dismiss a lawfully issued arrest warrant or summons. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).

"Unarrest" of lawfully arrested person not authorized. - There is no authority or process by which a police officer or a Commonwealth's attorney may "unarrest" a person who is lawfully arrested on a warrant or summons. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).

§ 19.2-73. Issuance of summons instead of warrant in certain cases.

  1. In any misdemeanor case or in any class of misdemeanor cases, or in any case involving complaints made by any state or local governmental official or employee having responsibility for the enforcement of any statute, ordinance or administrative regulation, the magistrate or other issuing authority having jurisdiction may issue a summons instead of a warrant when there is reason to believe that the person charged will appear in the courts having jurisdiction over the trial of the offense charged.
  2. If any person under suspicion for driving while intoxicated has been taken to a medical facility for treatment or evaluation of his medical condition, the officer at the medical facility may issue, on the premises of the medical facility, a summons for a violation of § 18.2-266 , 18.2-266 .1, 18.2-272 , or 46.2-341.24 and for refusal of tests in violation of subsection A or B of § 18.2-268.3 or subsection A of § 46.2-341.26:3 , in lieu of securing a warrant and without having to detain that person, provided that the officer has probable cause to place him under arrest. The issuance of such summons shall be deemed an arrest for purposes of Article 2 (§ 18.2-266 et seq.) of Chapter 7 of Title 18.2.
  3. Any person on whom such summons is served shall appear on the date set forth in same, and if such person fails to appear in such court at such time and on such date then he shall be treated in accordance with the provisions of § 19.2-128 , regardless of the disposition of, and in addition to, the charge upon which he was originally arrested. (Code 1950, § 19.1-146; 1972, c. 461; 1975, c. 495; 1978, c. 500; 1981, c. 382; 2005, c. 425; 2010, c. 840; 2017, c. 623.)

The 2005 amendments. - The 2005 amendment by c. 425 redesignated the former subsection B as subsection C and inserted subsection B.

The 2010 amendments. - The 2010 amendment by c. 840, in subsection B, in the first sentence, deleted "arresting" preceding "officer" and added "and without having to detain that person, provided that the officer has probable cause to place him under arrest," and added the last sentence.

The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, in subsection B, inserted "or B" preceding "of § 18.2-268.3 ."

Law review. - For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 12; 11B M.J. Justices and Magistrates, § 33.

CASE NOTES

Constraint. - In a trial on the offense of driving under the influence, the circuit court properly admitted results of a blood test from a sample collected while defendant was in the hospital. Subsection B of § 19.2-73 authorized issuance of a summons, and an arrest followed by a release on a summons satisfied the requirement of "constraining" the arrestee's liberty under the implied consent statutes. Reading §§ 19.2-73 and 19.2-74 in pari materia with the implied consent statute, an arrest followed by a release on summons satisfies the requirement of "constraining" the arrestee's personal liberty, for purposes of implicating the statutory duty to provide a blood or breath sample. Young v. Commonwealth, 57 Va. App. 731, 706 S.E.2d 53, 2011 Va. App. LEXIS 77 (2011).

Applied in Commonwealth v. Rafferty, 241 Va. 319 , 402 S.E.2d 17 (1991).

OPINIONS OF THE ATTORNEY GENERAL

Withdrawal or dismissal of warrant or summons. - Neither a chief of police nor a Commonwealth's attorney has the authority to unilaterally withdraw or dismiss a lawfully issued arrest warrant or summons. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).

"Unarrest" of lawfully arrested person not authorized. - There is no authority or process by which a police officer or a Commonwealth's attorney may "unarrest" a person who is lawfully arrested on a warrant or summons. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).

Proper procedure for officers obtaining blood samples. - Implied consent to a blood test is triggered by a valid arrest. If a common-law arrest is not feasible because a defendant is in a medical facility, the arrest may be made by the issuance of a summons pursuant to subsection B of § 19.2-73 , because that summons is deemed an arrest document. If a summons is issued, it must be based on probable cause, and it must be issued before obtaining the blood draw. The suspect should be advised of the requirements of the implied consent law, after which the blood test may be administered. The arresting officer should remain with the suspect until after the blood is drawn and then release him on the previously issued summons. If the suspect objects to the blood test, he should be charged with a violation of § 18.2-268.3 (refusal to take a blood or breath test). See opinion of Attorney General to Colonel W.S. Flaherty, Superintendent, Department of State Police, No. 14-022, 2014 Va. AG LEXIS 66 (12/19/14).

§ 19.2-73.1. Notice of issuance of warrant or summons; appearance; failure to appear.

In any misdemeanor case or in any class of misdemeanor cases and in a Class 5 or Class 6 felony case, the chief of police of the city or county or his designee, or the sheriff or deputy sheriff of the county, if the county has no police department, in which the case is pending may notify the accused of the issuance of the warrant or summons and direct the accused to appear at the time and place directed for the purpose of the execution of the summons or warrant. However, the issuing judicial officer may direct the execution of such process prior to any such notification. If the accused does not appear, then the warrant or summons shall be executed and returned as provided by § 19.2-76 .

(1979, c. 335; 1991, c. 162; 1993, c. 350.)

§ 19.2-73.2. Law-enforcement officers to issue subpoenas; penalty.

Law-enforcement officers as defined in § 9.1-101 and state police officers, in the course of their duties, in the investigation of any Class 3 or Class 4 misdemeanor or any traffic infraction, may, within seventy-two hours of the time of the offense, issue a subpoena to any witness to appear in court and testify with respect to any such criminal charge or traffic infraction brought against any person as a result of such investigation. The return of service thereof shall be made within seventy-two hours after service to the appropriate court clerk. A subpoena so issued shall have the same force and effect as if issued by the court.

Any person failing to appear in response to a subpoena issued as provided in this section shall be punished as provided by law.

(1995, c. 335.)

§ 19.2-74. Issuance and service of summons in place of warrant in misdemeanor case; issuance of summons by special conservators of the peace.

    1. Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or for offenses listed in subsection D of § 19.2-81 , or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82 . A. 1.  Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or for offenses listed in subsection D of § 19.2-81 , or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82 .
    2. Whenever any person is detained by or is in the custody of an arresting officer for a violation of any county, city, or town ordinance or of any provision of this Code, punishable as a Class 3 or Class 4 misdemeanor or any other misdemeanor for which he cannot receive a jail sentence, except as otherwise provided in Title 46.2, or to the offense of public drunkenness as defined in § 18.2-388 , the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving of such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.
    3. Unless otherwise authorized by law, any person so summoned shall not be held in custody after the issuance of such summons for the purpose of complying with the requirements of Chapter 23 (§ 19.2-387 et seq.). Reports to the Central Criminal Records Exchange concerning such persons shall be made pursuant to subdivision A 2 of § 19.2-390 and subsection C of § 19.2-390 . Any person refusing to give such written promise to appear under the provisions of this section shall be taken immediately by the arresting or other police officer before a magistrate or other issuing authority having jurisdiction, who shall proceed according to provisions of § 19.2-82. Any person who willfully violates his written promise to appear, given in accordance with this section, shall be treated in accordance with the provisions of § 19.2-128 , regardless of the disposition of, and in addition to, the charge upon which he was originally arrested. Any person charged with committing any violation of § 18.2-407 may be arrested and immediately brought before a magistrate who shall proceed as provided in § 19.2-82.
    Anything in this section to the contrary notwithstanding, if any person is believed by the arresting officer to be likely to disregard a summons issued under the provisions of this subsection, or if any person is reasonably believed by the arresting officer to be likely to cause harm to himself or to any other person, a magistrate or other issuing authority having jurisdiction shall proceed according to the provisions of § 19.2-82.
  1. Conservators of the peace appointed under Chapter 2 (§ 19.2-12 et seq.) may issue summonses pursuant to this section, if such officers are in uniform or displaying a badge of office. On application, the chief law-enforcement officer of the county or city shall supply each officer with a supply of summons forms, for which such officer shall account pursuant to regulation of such chief law-enforcement officer.
  2. The summons used by a law-enforcement officer pursuant to this section shall be in form the same as the uniform summons for motor vehicle law violations as prescribed pursuant to § 46.2-388 . If the summons is issued for an offense in violation of any county, city, or town ordinance that is similar to any provision of this Code, the summons shall reference the offense using both the citation corresponding to the county, city, or town ordinance and the specific provision of this Code. (Code 1950, § 19.1-92.1; 1973, c. 98; 1974, c. 481; 1975, c. 495; 1976, c. 753; 1978, c. 500; 1979, cc. 679, 680; 1980, c. 492; 1981, c. 382; 1982, cc. 485, 500; 1984, c. 24; 1988, c. 455; 1995, c. 471; 2010, c. 840; 2014, c. 543; 2019, cc. 782, 783; 2021, Sp. Sess. I, cc. 524, 542.)

Cross references. - As to limitation on powers of registered armed security officers, see § 9.1-146 .

As to punishment for Class 1, Class 2, Class 3, and Class 4 misdemeanors, see § 18.2-11 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

2021 Acts, Sp. Sess. I, cc. 524 and 542, cl. 3 provides: "That the Attorney General, after consultation with the Committee on District Courts, the Superintendent of State Police, and the Commissioner of the Department of Motor Vehicles, shall amend the uniform summons described in § 46.2-388 of the Code of Virginia to reflect the amendments to the provisions of subsection C of § 19.2-74 of the Code of Virginia, as amended by this act, by July 1, 2021.

2021 Acts, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2010 amendments. - The 2010 amendment by c. 840 substituted "as otherwise provided in Title 46.2, or for offenses listed in subsection D of § 19.2-81 " for "as otherwise provided in Title 46.2, or § 18.2-266 " in the first sentence in subdivision A 1.

The 2014 amendments. - The 2014 amendment by c. 543 in subsection B substituted "Conservators" for "Special policemen of the counties as provided in § 15.2-1737 , special policemen or conservators," deleted "of this title and special policemen appointed by authority of a city's charter" following "( § 19.2-12 et seq.)," and made a minor stylistic change.

The 2019 amendments. - The 2019 amendments by cc. 782 and 783 are identical, and rewrote subdivision A 3, which read: "Any person so summoned shall not be held in custody after the issuance of such summons for the purpose of complying with the requirements of Chapter 23 ( § 19.2-387 et seq.) of this title. Reports to the Central Criminal Records Exchange concerning such persons shall be made after a disposition of guilt is entered as provided for in § 19.2-390 ."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 524 and 542, effective July 1, 2021, are identical and added the second sentence in subsection C.

Law review. - For survey of Virginia criminal law for the year 1978-1979, see 66 Va. L. Rev. 241 (1980).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 12; 8B M.J. Forgery, §§ 9, 24.

CASE NOTES

Section does not require arresting officers to issue plaintiff a summons instead of executing the warrant by arresting him. Hearn v. Hudson, 549 F. Supp. 949 (W.D. Va. 1982).

Objective standard applied to determine whether statutory circumstances obtain. - Although § 19.2-74 refers to a predictive estimation of the accused person's future conduct, the standard for determining satisfaction of the statute is objective, whether evidence supports a reasonable belief that the statutory circumstances obtain. Fox v. Commonwealth, 43 Va. App. 446, 598 S.E.2d 770, 2004 Va. App. LEXIS 306 (2004).

A police officer is entitled to detain briefly an individual who has committed an offense, in order to obtain information required for the issuance of a summons; the arresting officer had probable cause to charge defendant with violating a city ordinance, "pedestrian in the roadway," and after informing defendant that he intended to issue him a summons, the officer legally detained him. Beale v. Commonwealth, No. 1412-96-1 (Ct. of Appeals Apr. 1, 1997).

This statute does not contemplate a custodial situation equivalent to an actual custodial arrest, and under it, a suspect is detained, or in the custody of the police officer, only long enough for the officer to take down the name and address of the person and issue a summons. Lovelace v. Commonwealth, 258 Va. 588 , 522 S.E.2d 856 (1999).

Custodial arrest authorized in certain cases. - Although this section provides that, in misdemeanor cases, an arresting officer shall issue the offender a summons and shall thereafter release the offender from custody, this section in conjunction with § 19.2-82 also permits such an officer to effect a warrantless custodial arrest if the offender fails or refuses to discontinue the unlawful act or refuses to give a written promise to appear or if the officer reasonably believes the offender will likely disregard the summons or do harm to himself or others. Commonwealth v. Dickson, No. 2503-00-1, 2001 Va. App. LEXIS 221 (Ct. of Appeals Apr. 23, 2001).

Defendant's custodial arrest complied with § 19.2-74 and a search incident to defendant's arrest complied with the Fourth Amendment as the circumstances supported a belief that defendant was likely to disregard the summons for a Class 1 misdemeanor or that he was a danger to himself or others where defendant fled when the officer exited his vehicle and discarded a concealed handgun as he ran, from which the serial number had been obliterated; whether the arresting officer actually held that belief was immaterial. Fox v. Commonwealth, 43 Va. App. 446, 598 S.E.2d 770, 2004 Va. App. LEXIS 306 (2004).

Custodial arrest authorized where defendant failed to comply with prior court order. - Officer had ample reason to arrest defendant rather than issue summons and release him based on defendant's failure to comply with prior court order that he stay away from certain property; thus, defendant's motion to suppress was properly denied since the subject evidence was found during a search incident to a valid arrest. Ross v. Commonwealth, No. 0342-04-2, 2004 Va. App. LEXIS 637 (Ct. of Appeals Dec. 28, 2004).

Constraint. - In a trial on the offense of driving under the influence, the circuit court properly admitted results of a blood test from a sample collected while defendant was in the hospital. Subsection B of § 19.2-73 authorized issuance of a summons, and an arrest followed by a release on a summons satisfied the requirement of "constraining" the arrestee's liberty under the implied consent statutes. Reading §§ 19.2-73 and 19.2-74 in pari materia with the implied consent statute, an arrest followed by a release on summons satisfies the requirement of "constraining" the arrestee's personal liberty, for purposes of implicating the statutory duty to provide a blood or breath sample. Young v. Commonwealth, 57 Va. App. 731, 706 S.E.2d 53, 2011 Va. App. LEXIS 77 (2011).

Search pursuant to issuance of citation or summons. - Class 3 and 4 misdemeanors are similar in nature and duration to a traffic stop and do not contemplate a custodial situation equivalent to an actual custodial arrest. Thus, an "arrest" that is effected by issuing a citation or summons rather than taking the suspect into custody does not, by itself, justify a full field-type search. However, such an encounter between police and an individual may involve some degree of danger to the officer or need to preserve or discover evidence sufficient to warrant an additional intrusion. Farrow v. Commonwealth, 31 Va. App. 517, 525 S.E.2d 11 (2000).

When an officer "arrested" defendant for trespass he did not use the correct procedure, under § 19.2-74 , when he placed her in custody, rather than issuing her a summons, because trespass was a class 1 misdemeanor, but, if there was a statutory violation, it did not require that evidence seized from defendant in a search incident to her arrest be suppressed, because exclusion of evidence was not an available remedy for a statutory violation, where no constitutional violation occurred. Coppedge v. Commonwealth, No. 2920-03-1, 2005 Va. App. LEXIS 23 (Ct. of Appeals Jan. 18, 2005).

Search incident to an arrest. - Warrantless arrest for driving with a suspended license was reasonable under the Fourth Amendment, even if it was not permitted under § 19.2-74 . Therefore, the crack cocaine and cash that the arrestee was carrying and that was discovered in a search incidental to the arrest did not need to be suppressed. Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598, 170 L. Ed. 2d 559, 2008 U.S. LEXIS 3674 (2008).

Denial of defendant's motion to suppress was proper as defendant was arrested for trespassing under § 18.2-119 , and the Fourth Amendment's exclusionary rule did not require the exclusion of the evidence seized from defendant during a search incident to a valid seizure for a misdemeanor violation for which § 19.2-74 required release on a summons. Simmons v. Commonwealth,, 2008 Va. App. LEXIS 360 (July 29, 2008).

Issuance of summons to appear. - Traffic summons was one type of public record as an officer took the name and address of a person who had committed a crime and issued a summons to appear at a time and place to be specified in such summons, under § 19.2-74 A. 1. and 2., and the person then gave his written promise to appear at such time and place before the officer released him from custody, and any person refusing to give such written promise to appear under the provisions of § 19.2-74 was to be taken immediately by the arresting or other police officer before a magistrate or other issuing authority having jurisdiction, under § 19.2-74 A. 3. Hines v. Commonwealth, 39 Va. App. 752, 576 S.E.2d 781, 2003 Va. App. LEXIS 92 (2003).

Failure to raise argument in the trial court. - Ends of justice exception to Va. Sup. Ct. R. 5A:18 did not excuse defendant's failure to raise in the trial court the argument that defendant could not be convicted of obstructing justice because defendant was authorized to resist an unlawful arrest as the claimed error was not clear, substantial, and material. The trial court made an express finding that defendant's attempt to flee gave officers reason to believe, for purposes of § 19.2-74 , that defendant was a flight risk. Coleman v. Commonwealth,, 2008 Va. App. LEXIS 463 (Oct. 14, 2008).

Applied in Fisher v. Washington Metro. Area Transit Auth., 690 F.2d 1133 (4th Cir. 1982); Addison v. Commonwealth, 224 Va. 713 , 299 S.E.2d 521 (1983); Coston v. Commonwealth, 29 Va. App. 350, 512 S.E.2d 158 (1999); West v. Commonwealth, 36 Va. App. 237, 549 S.E.2d 605, 2001 Va. App. LEXIS 432 (2001).

CIRCUIT COURT OPINIONS

Custodial arrest authorized in certain cases. - Petitioner's custodial arrest for the misdemeanor offense of public drunkenness complied with this section and the Fourth Amendment because this section specifically excludes the offense of public drunkenness from its release from custody requirement and permits police to make custodial arrests of intoxicated persons and to search or question those persons incident to that arrest. Petitioner was taken into custody "for his safety" and officers could not release him where he was extremely intoxicated, his father had requested that he be removed from the father's home, and they had probable cause to arrest him for the murder of his wife. Hudson v. Dir. of the Dep't of Corr., 67 Va. Cir. 319, 2005 Va. Cir. LEXIS 147 (Clarke County May 16, 2005).

Where, after stopping defendant for speeding, an officer learned that defendant had committed his third driving under suspension violation, subdivision A 1 of this section applied; since defendant had repeatedly refused to cease his unlawful activity, the officer appropriately exercised his discretion in arresting defendant, and a subsequent search of the passenger compartment of the vehicle was constitutional. Commonwealth v. Williams, 68 Va. Cir. 265, 2005 Va. Cir. LEXIS 198 (Charlottesville July 19, 2005).

No probable cause for arrest. - As an officer did not and could not arrest defendant for the misdemeanor offense of possession of marijuana based on the marijuana found in defendant's car pursuant to a consent search, and as defendant withdrew his consent to a search of his person (including his wallet) before the officer found any incriminating evidence, the officer's search of defendant's wallet violated defendant's rights under U.S. Const., Amend. IV, and the methampetamine tablets found in the wallet were suppressed. Commonwealth v. Johnson, 84 Va. Cir. 518, 2012 Va. Cir. LEXIS 108 (Augusta County June 15, 2012).

Defendant not in custody. - Defendant's motion to suppress was overruled as he was not in a custodial situation before he was Mirandized because defendant could not have been arrested for the possession of marijuana offense alone. Commonwealth v. Clemmer, 101 Va. Cir. 467, 2018 Va. Cir. LEXIS 719 (Augusta County Mar. 22, 2018).

Suspended statements from illegal detention. - After a summons was issued, the defendant should have been free to leave a traffic stop and, where police lacked reasonable suspicion that he was acting illegally, his detention was an illegal seizure and any statements had to be suppressed. Commonwealth v. Hooks, 61 Va. Cir. 720, 2002 Va. Cir. LEXIS 312 (Fairfax County 2002).

§ 19.2-74.1.

Repealed by Acts 1981, c. 382.

§ 19.2-75. Copy of process to be left with accused; exception.

Except as provided in § 46.2-936 , any process issued against a person charged with a criminal offense shall be in duplicate and the officer serving such process shall leave a copy with the person charged.

(Code 1950, § 19.1-92; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 23; 19 M.J. Warrants, § 4.

CASE NOTES

Purpose of section. - The purpose of requiring a copy of a criminal process to be left with a defendant is to inform him of the specific charge made against him so that he may intelligently prepare his defense. Dorchincoz v. Commonwealth, 191 Va. 33 , 59 S.E.2d 863 (1950); Gooch v. City of Lynchburg, 201 Va. 172 , 110 S.E.2d 236 (1959); Hammer v. Commonwealth, 207 Va. 135 , 148 S.E.2d 878 (1966).

This section merely provides for the service of process against a person charged with a criminal offense once process is actually issued. It is not directed to or intended to be determinative of whether or not written notice or warrant must be issued before an accused may be tried for a misdemeanor. Gooch v. City of Lynchburg, 201 Va. 172 , 110 S.E.2d 236 (1959).

This section does not apply to an indictment. Rose v. Commonwealth, 189 Va. 771 , 55 S.E.2d 33 (1949).

Compliance with the section is not jurisdictional, and objection to noncompliance is waived if not taken advantage of at the trial. Rose v. Commonwealth, 189 Va. 771 , 55 S.E.2d 33 (1949).

But is presumed. - Where there is no showing that the accused did not receive a copy of the original process under which he was apprehended, the presumption is that this section was complied with. Rose v. Commonwealth, 189 Va. 771 , 55 S.E.2d 33 (1949).

Failure to comply is not necessarily reversible error. - While it is the duty of the arresting officer to comply with this section, his failure to do so does not constitute reversible error unless it affirmatively appears that defendant was prejudiced thereby. Dorchincoz v. Commonwealth, 191 Va. 33 , 59 S.E.2d 863 (1950); Hammer v. Commonwealth, 207 Va. 135 , 148 S.E.2d 878 (1966).

Failure to leave duplicate copy of process was not reversible under the facts of the case. Dorchincoz v. Commonwealth, 191 Va. 33 , 59 S.E.2d 863 (1950).

Formal warrant unnecessary when summons is issued under former § 46.1-178 (now § 46.2-936 ). - The clear and necessary implication to be drawn from this section, when read along with former § 46.1-178 (now § 46.2-936 ), which provides for the issuance of a summons for misdemeanors under former Title 46.1 (now Title 46.2), is that when a summons is issued under former § 46.1-178 (now § 46.2-936) there is no need for the issuance or service of a formal warrant. Tate v. Lamb, 195 Va. 1005 , 81 S.E.2d 743 (1954).

§ 19.2-76. Execution and return of warrant, capias or summons; arrest outside county or city where charge is to be tried.

A law-enforcement officer may execute within his jurisdiction a warrant, capias or summons issued anywhere in the Commonwealth. A jail officer as defined in § 53.1-1 employed at a regional jail or jail farm may execute upon a person being held in his jail a warrant, capias or summons issued anywhere in the Commonwealth. A warrant or capias shall be executed by the arrest of the accused, and a summons shall be executed by delivering a copy to the accused personally.

If the accused is a corporation, partnership, unincorporated association or legal entity other than an individual, a summons may be executed by service on the entity in the same manner as provided in Title 8.01 for service of process on that entity in a civil proceeding. However, if the summons is served on the entity by delivery to a registered agent or to any other agent who is not an officer, director, managing agent or employee of the entity, such agent shall not be personally subject to penalty for failure to appear as provided in § 19.2-128 , nor shall the agent be subject to punishment for contempt for failure to appear under his summons as provided in § 19.2-129 .

The law-enforcement officer or jail officer executing a warrant or capias shall endorse the date of execution thereon and make return thereof to a judicial officer. The law-enforcement officer executing a summons shall endorse the date of execution thereon and make return thereof to the court to which the summons is returnable.

Whenever a person is arrested upon a warrant or capias in a county or city other than that in which the charge is to be tried, the law-enforcement officer or jail officer making the arrest shall either (i) bring the accused forthwith before a judicial officer in the locality where the arrest was made or where the charge is to be tried or (ii) commit the accused to the custody of an officer from the county or city where the charge is to be tried who shall bring the accused forthwith before a judicial officer in the county or city in which the charge is to be tried. The judicial officer before whom the accused is brought shall immediately conduct a bail hearing and either admit the accused to bail or commit him to jail for transfer forthwith to the county or city where the charge is to be tried.

(Code 1950, §§ 19.1-98, 19.1-99; 1960, c. 366; 1975, c. 495; 1979, c. 661; 1993, c. 431; 1994, c. 933; 1997, c. 10; 1998, c. 615; 2013, c. 207.)

Cross references. - As to summons for use of toll facility without payment of toll, see § 46.2-819.3 .

The 2013 amendments. - The 2013 amendment by c. 207 inserted the second sentence in the first paragraph; and inserted "or jail officer" in the first sentence of the third and fourth paragraphs.

Research References. - Virginia Forms (Matthew Bender). No. 9-407. Warrant of Arrest (Bad Check); No. 9-410. Summons of Corporation--Misdemeanor/Felony; No. 9-602. Recall of Process.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 13, 17, 19; 19 M.J. Warrants, § 4.

CASE NOTES

Section is absolutely unambiguous on how the officer is to execute the warrant. Hearn v. Hudson, 549 F. Supp. 949 (W.D. Va. 1982).

An accused may waive irregularities in the warrant of his arrest, and where he has done so, and the justice has jurisdiction of his person and of the offense with which he is charged, and hears the charge on its merits, the judgment of the justice is final and conclusive, and the guilt or innocence of the accused of that charge can never again be called in question. Jones v. Morris, 97 Va. 43 , 33 S.E. 377 (1899).

Arresting officer's failure to take defendant before a magistrate in the county or corporation in which the accused was arrested, as required by this section, was a mere procedural violation of this section which did not prejudice defendant and which did not involve an error of constitutional dimension giving rise to an application of the exclusionary rule. Tharp v. Commonwealth, 221 Va. 487 , 270 S.E.2d 752 (1980).

Effect of delay in taking defendant before magistrate. - Where defendant was legally seized and constitutionally detained, delay in taking him before a magistrate did not mean that the probable cause to hold him for the crimes stated in the warrants somehow evaporated, so as to require exclusion of the evidence developed during his detention. Horne v. Commonwealth, 230 Va. 512 , 339 S.E.2d 186 (1986).

In the Commonwealth, not every violation of the requirement that a suspect be taken before a magistrate without unnecessary delay results in the exclusion of evidence. Horne v. Commonwealth, 230 Va. 512 , 339 S.E.2d 186 (1986).

Where defendant was unlawfully arrested in Berryville, subsequently held in custody on Fairfax County warrants and ultimately transported to Fairfax County where he was admitted to bail, the failure of Berryville or Fairfax County officers to take him before a magistrate in Clarke County violated the clear directive in this section. However, the failure to abide by the statute was a mere procedural violation which did not involve an error of constitutional dimension giving rise to an application of the exclusionary rule. The delay in taking defendant before a magistrate, although a patent violation of statute, did not abridge his Eighth Amendment rights. Terrell v. Commonwealth, No. 0230-85 (Ct. of Appeals Oct. 10, 1986).

The clear legislative mandate in this section was not followed, where from the time Berryville officers took defendant into custody, at some time after 1:00 p.m., until the Fairfax County officers arrived at approximately 5:15 p.m., defendant was not taken before a magistrate. Given the affirmative obligation on law-enforcement officers imposed by this section, the Commonwealth bore the burden of showing the unavailability of such official. Therefore, Berryville officers violated this section. The Fairfax County officers also violated this section when they took custody of defendant and transported him back to their jurisdiction without first taking him before a magistrate in Clarke County. Terrell v. Commonwealth, No. 0230-85 (Ct. of Appeals Oct. 10, 1986).

Applied in Rowe v. Grizzard, 591 F. Supp. 389 (E.D. Va. 1984).

CIRCUIT COURT OPINIONS

Procedural error. - Arresting officer's failure to take defendant before a magistrate in the county or corporation in which the accused was arrested as required by this section was a mere procedural error and suppression of evidence and statements was not warranted as a result. Commonwealth v. Arava, 56 Va. Cir. 240, 2001 Va. Cir. LEXIS 133 (Arlington County 2001).

OPINIONS OF THE ATTORNEY GENERAL

Absent consent of a dwelling owner, a law-enforcement officer must obtain a warrant before entering a dwelling for the purpose of serving a summons for a misdemeanor. See opinion of Attorney General to The Honorable Gary W. Waters, Sheriff for the City of Portsmouth, 03-064 (9/16/03).

Execution of criminal warrants. - Officers of a regional jail do not have the authority to execute criminal warrants in the jail. See opinion of Attorney General to The Honorable Roy F. Evans, Jr., Commonwealth's Attorney for Smyth County, 06-005 (3/22/06).

Show cause summons. - Service of a criminal show cause summons does not constitute an "arrest" or trigger the reporting requirements of § 19.2-390 . See opinion of Attorney General to The Honorable Dennis S. Proffitt, Chesterfield County Sheriff, 09-070, 2009 Va. AG LEXIS 48 (10/26/09).

Execution of summons. - A prosecution for violating § 46.2-844 (passing a stopped school bus), which is based on a video monitoring system, may not be initiated by mailing a summons, but must be instituted by a law enforcement officer issuing a summons to the alleged violator See opinion of Attorney General to Larry W. Davis, Esquire, County Attorney for Albemarle County, No. 15-047, 2015 Va. AG LEXIS 29 (10/2/15).

§ 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 that charges 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 that charges 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.

(1976, c. 252; 1979, c. 34; 1982, c. 608; 1985, c. 199; 1990, c. 626; 1991, c. 542; 1993, c. 550; 2003, c. 147; 2010, c. 652; 2011, cc. 336, 347; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2003 amendments. - The 2003 amendment by c. 147, in the second sentence of the first paragraph, twice substituted "that" for "which," deleted "and" following the first occurrence of "issuance," and inserted "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" at the end of the sentence.

The 2010 amendments. - The 2010 amendment by c. 652 inserted the second paragraph.

The 2011 amendments. - The 2011 amendments by cc. 336 and 347 are identical, and in the second paragraph, inserted "and destruction" in the first sentence and added the second sentence.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "that charges aggravated murder" for "which charges capital murder" in clause (i) of the first paragraph and in the second sentence of the second paragraph.

Law review. - For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

Research References. - Virginia Forms (Matthew Bender). No. 9-602. Recall of Process.

CASE NOTES

Validity of capias. - Even if the capias at issue was subject to being destroyed under § 19.2-76.1 as more than three years old, because it had not in fact been ordered destroyed, it remained valid for purposes of providing the authority to arrest defendant for a probation violation. Boone v. Commonwealth, 60 Va. App. 419, 728 S.E.2d 517, 2012 Va. App. LEXIS 241 (2012).

Authority to move for dismissal of warrant. - Police officer was entitled to qualified immunity with respect to plaintiffs' Fourth Amendment claims because regardless of whether a duty existed to withdraw arrest warrants after learning that the charges were erroneous, that proposed duty was certainly not clearly established. Moreover, under Virginia law, only an attorney for Commonwealth could move a court for dismissal of a lawfully issued arrest warrant. Safar v. Tingle, 859 F.3d 241 (4th Cir. 2017).

Commonwealth's attorney was entitled to absolute prosecutorial immunity with respect to plaintiffs' Fourth Amendment claims, as the choice of whether to move a court for withdrawal of a warrant was an extension of a prosecutor's fundamental judgment of whether and when to prosecute. Moreover, under Virginia law, a prosecutor did not have unilateral authority to withdraw an arrest warrant and had to first file a motion to dismiss with the appropriate court, and filing and arguing motions in court was garden-variety trial work that fell within the prosecutor's core advocacy duties. Safar v. Tingle, 859 F.3d 241 (4th Cir. 2017).

OPINIONS OF THE ATTORNEY GENERAL

"Unarrest" of lawfully arrested person not authorized. - There is no authority or process by which a police officer or a Commonwealth's attorney may "unarrest" a person who is lawfully arrested on a warrant or summons. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).

§ 19.2-76.2. Mailing of summons in certain cases.

Notwithstanding the provisions of § 19.2-76 , whenever a summons for a violation of a county, city or town parking ordinance is served in any county, city or town it may be executed by mailing by first-class mail a copy thereof to the address of the owner of the vehicle as shown on the records of the Department of Motor Vehicles. In addition, whenever a summons for a violation of a county, city or town trash ordinance punishable as a misdemeanor under § 15.2-901 is served in any county, city or town, it may be executed by mailing a copy by first-class mail to the person who occupies the subject premises. If the person fail to appear on the date of return set out in the summons mailed pursuant to this section, the summons shall be executed in the manner set out in § 19.2-76.3 of this Code.

No proceedings for contempt or arrest of a person summoned by mailing shall be instituted for his failure to appear on the return date of the summons.

(1977, c. 233; 1978, c. 781; 1983, c. 254; 1984, c. 119.)

OPINIONS OF THE ATTORNEY GENERAL

Withdrawal or dismissal of warrant or summons. - Neither a chief of police nor a Commonwealth's attorney has the authority to unilaterally withdraw or dismiss a lawfully issued arrest warrant or summons. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).

Execution of summons. - A prosecution for violating § 46.2-844 (passing a stopped school bus), which is based on a video monitoring system, may not be initiated by mailing a summons, but must be instituted by a law enforcement officer issuing a summons to the alleged violator See opinion of Attorney General to Larry W. Davis, Esquire, County Attorney for Albemarle County, No. 15-047, 2015 Va. AG LEXIS 29 (10/2/15).

§ 19.2-76.3. Failure to appear on return date for summons issued under § 19.2-76.2.

  1. If any person fails to appear on the date of the return contained in the summons issued in accordance with § 19.2-76.2 , then a summons shall be delivered to the sheriff of the county, city, or town or to another authorized process server for service on that person as set out in § 8.01-296 .
  2. If such person then fails to appear on the date of return as contained in the summons so issued, a summons shall be executed in the manner set out in § 19.2-76 .
  3. No proceedings for contempt or arrest of any person summoned under the provisions of this section shall be instituted unless such person has been personally served with a summons and has failed to appear on the return date contained therein.

    (1983, c. 254; 1994, c. 642; 2016, cc. 242, 354.)

The 2016 amendments. - The 2016 amendments by cc. 242 and 354 are identical, and inserted "or to another authorized process server" in subsection A.

§ 19.2-77. Escape, flight and pursuit; arrest anywhere in Commonwealth.

Whenever a person in the custody of an officer shall escape or whenever a person shall flee from an officer attempting to arrest him, such officer, with or without a warrant, may pursue such person anywhere in the Commonwealth and, when actually in close pursuit, may arrest him wherever he is found. If the arrest is made in a county or city adjoining that from which the accused fled, or in any area of the Commonwealth within one mile of the boundary of the county or city from which he fled, the officer may forthwith return the accused before the proper official of the county or city from which he fled. If the arrest is made beyond the foregoing limits, the officer shall proceed according to the provisions of § 19.2-76 , and if such arrest is made without a warrant, the officer shall procure a warrant from the magistrate serving the county or city wherein the arrest was made, charging the accused with the offense committed in the county or city from which he fled.

(Code 1950, § 19.1-94; 1960, c. 366; 1975, c. 495; 1992, c. 881; 2008, cc. 551, 691.)

Cross references. - As to warrants for escaped patients of state hospital, see §§ 37.2-834 and 37.2-835 .

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical and substituted "magistrate serving the county" for "magistrate of the county" in the last sentence.

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, §§ 4, 7; 16 M.J. Searches and Seizures, § 7.

CASE NOTES

"Close pursuit" is a relative term and has reference to time or distance, or both, depending on the facts of the case. Callands v. Commonwealth, 208 Va. 340 , 157 S.E.2d 198 (1967); Reyes v. Slayton, 331 F. Supp. 325 (W.D. Va. 1971).

Close pursuit is pursuit instituted immediately and with intent to recapture or reclaim, as where a thief is fleeing with stolen goods. Reyes v. Slayton, 331 F. Supp. 325 (W.D. Va. 1971).

Officer was in "close pursuit" where he was directly behind defendant the entire time he followed him, and he activated his lights as soon as it was safe to pull defendant over. Hamm v. City of Norton, No. 1607-98-3 (Ct. of Appeals Sept. 28, 1999).

Circuit court properly overruled defendant's motion to suppress because, assuming without deciding that a Virginia Military Institute police officer arrested defendant outside of his territorial jurisdiction, the issuance of an arrest warrant by a judicial officer cured any defect in the arrest, defendant never challenged the magistrate's finding of probable cause or the validity of the warrant upon which he was tried, and there was no legal basis for defendant's assertion that he was denied procedural due process and that the circuit court erred in denying his motion to suppress inasmuch as he had a full and fair opportunity to attempt to prove or disprove any prejudicial effect of the violation. Martin v. Commonwealth, No. 1219-17-3, 2018 Va. App. LEXIS 128 (May 8, 2018).

Failure to heed officer's lights and siren constituted flight. - Under the facts, where defendant disregarded the officer's pursuit and his emergency lights and siren and attempted to find refuge beyond the officer's jurisdiction, his failure to heed the officer's lights and siren constituted flight from an attempt to arrest; the fact that defendant was not speeding or was not driving so as to elude officer did not mean that he was not fleeing from officer. Neiss v. Commonwealth, 16 Va. App. 807, 433 S.E.2d 262 (1993).

OPINIONS OF THE ATTORNEY GENERAL

Absent consent of a dwelling owner, a law-enforcement officer must obtain a warrant before entering a dwelling for the purpose of serving a summons for a misdemeanor. See opinion of Attorney General to The Honorable Gary W. Waters, Sheriff for the City of Portsmouth, 03-064 (9/16/03).

§ 19.2-78. Uniform of officer making arrest.

All officers whose duties are to make arrests acting under the authority of any law of this Commonwealth or any subdivision thereof, who shall make any arrest, search or seizure on any public road or highway of this Commonwealth shall be dressed at the time of making any such arrest, search or seizure in such uniform as he may customarily wear in the performance of his duties which will clearly show him to casual observation to be an officer.

Nothing in this section shall render unlawful any arrest, search or seizure by an officer who is not in such customary uniform.

(Code 1950, §§ 19.1-95, 19.1-96; 1960, c. 366; 1975, c. 495.)

Cross references. - As to unlawful wearing of officer's uniform, see § 18.2-175 .

For provisions concerning adoption of uniforms for State Police, see §§ 52-9.1 and 52-9.2 .

§ 19.2-79. Arrest by officers of other states of United States.

Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this Commonwealth in close pursuit, and continues within this Commonwealth in such close pursuit, of a person in order to arrest him on the ground that he has committed a felony in such other state shall have the same authority to arrest and hold in custody such person as members of a duly organized state, county or municipal peace unit of this Commonwealth have to arrest and hold in custody a person on the ground that he has committed a felony in this Commonwealth, if the state from which such person has fled extends similar privileges to any member of a duly organized state, county or municipal peace unit of this Commonwealth.

If an arrest is made in this Commonwealth by an officer of another state in accordance with the provisions of the first paragraph of this section, he shall without unnecessary delay take the person arrested before a judge of a general district court, or of the circuit court, of the county or city in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the judge determines that the arrest was lawful he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the Governor. If the judge determines that the arrest was unlawful he shall discharge the person arrested.

The first paragraph of this section shall not be construed so as to make unlawful any arrest in this Commonwealth which would otherwise be lawful.

For the purpose of this section the word "State" shall include the District of Columbia.

(Code 1950, § 19.1-97; 1960, c. 366; 1975, c. 495.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?", see 48 Wash. & Lee L. Rev. 1477 (1991).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 7; 5B M.J. Criminal Procedure, §§ 13, 17.

§ 19.2-80. Duty of arresting officer; bail.

In any case in which an officer does not issue a summons pursuant to § 19.2-74 or § 46.2-936 , a law-enforcement officer making an arrest under a warrant or capias shall bring the arrested person without unnecessary delay before a judicial officer. The judicial officer shall immediately conduct a bail hearing and either admit the accused to bail or commit him to jail. However, if (i) the accused is charged with a misdemeanor and is brought before a judge of the court having jurisdiction to try the case and (ii) both the accused and the Commonwealth consent, the judge may proceed to trial instead of conducting a bail hearing.

(Code 1950, § 19.1-98; 1960, c. 366; 1975, c. 495; 1979, c. 679; 1986, c. 327; 1997, c. 10.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 13, 14, 17, 19.

CASE NOTES

Term "forthwith," as used in § 19.2-82 , is synonymous with standard used in this section, and the same remedies for a violation of this section should apply to a violation of § 19.2-82 . Slade v. Commonwealth, No. 0786-85 (Ct. of Appeals Feb. 4, 1987).

Officer cannot hold prisoner unreasonable time before making return. - Under this section there must be a reasonable time allowed for making return of the warrant of arrest, and some latitude must be given the officers in keeping a prisoner in custody after he has been arrested and before he is taken to the justice. But it is not permissible to trifle with him, and detain and interrogate him, for the ulterior purpose of extracting a confession as to his own guilt, or getting information from him as to the guilt of others, and it matters not at all that the process of arrest was in its inception regular and valid, and that it was obtained on probable cause. Sands & Co. v. Norvell, 126 Va. 384 , 101 S.E. 569 (1919).

False imprisonment may result not only from the arrest of a person without any valid warrant, but also from the unlawful detention of a prisoner who has been lawfully arrested. Unreasonable delay in presenting a prisoner for examination or trial, and a fortiori mistreatment after arrest followed by release without any hearing before the magistrate, are instances in point. Sands & Co. v. Norvell, 126 Va. 384 , 101 S.E. 569 (1919).

Statement admissible despite delay. - Failure promptly to present a defendant as required by this section is a mere procedural violation where it involves no constitutional error, thus, a statement obtained without infringing constitutional safeguards is admissible. Alatishe v. Commonwealth, 12 Va. App. 376, 404 S.E.2d 81 (1991).

Even where appeals court assumed without deciding that the delay in bringing a defendant before the magistrate violated § 19.2-80 , such violation did not require exclusion of his statements. Lewis v. Commonwealth, No. 3064-01-1, 2002 Va. App. LEXIS 640 (Ct. of Appeals Oct. 22, 2002).

Where defendant was taken before a magistrate only 15 minutes after his arrest, evidence obtained pertaining to the case should not have been suppressed as the product of a violation of this section. Pearson v. Commonwealth, 221 Va. 936 , 275 S.E.2d 893 (1981).

Appearance before magistrate did not constitute hearing contemplated by this section. - Where plaintiff who had served sentence was arrested under bench warrant mistakenly issued for failure to serve such sentence, appearance before night magistrate who did nothing beyond signing a form committing the plaintiff to jail, did not constitute the advertisement hearing contemplated by this section. McDonald v. Dunning, 760 F. Supp. 1156 (E.D. Va. 1991).

CIRCUIT COURT OPINIONS

Delay. - Five hour and 47 minute delay in presenting defendant to a magistrate did not constitute unnecessary delay proscribed by this section because the bulk of the delay was due to defendant's medical treatment by emergency personnel at the scene and at a hospital, caused by defendant's strange and erratic behavior. Commonwealth v. Long, 88 Va. Cir. 335, 2014 Va. Cir. LEXIS 24 (Roanoke County June 18, 2014).

OPINIONS OF THE ATTORNEY GENERAL

Bringing arrestee to magistrate's office. - There is no requirement that law-enforcement officer bring arrestee to nearest magistrate's office. See opinion of Attorney General to The Honorable Danny R. Fox, Sheriff for Mecklenburg County, 04-015 (4/13/04).

§ 19.2-80.1. When arrested person operating motor vehicle; how vehicle removed from scene of arrest.

In any case in which a police officer arrests the operator of a motor vehicle and there is no legal cause for the retention of the motor vehicle by the officer, the officer shall allow the person arrested to designate another person who is present at the scene of the arrest and a licensed driver to drive the motor vehicle from the scene to a place designated by the person arrested. If such a designation is not made, the officer may cause the vehicle to be taken to the nearest appropriate place for safekeeping.

(1981, c. 306.)

CASE NOTES

Police had legitimate reason to impound and inventory vehicle where there was no other licensed driver present at the scene who could have been designated by the defendant to drive the vehicle. Butler v. Commonwealth, 31 Va. App. 614, 525 S.E.2d 58 (2000).

§ 19.2-80.2. Duty of arresting officer; providing magistrate or court with criminal history information.

In any case in which an officer proceeds under §§ 19.2-76 , 19.2-80 and 19.2-82 , such officer shall, to the extent possible, obtain and provide the magistrate or court with the arrested person's criminal history information prior to any proceeding under Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title. A pretrial services agency established pursuant to § 19.2-152.2 may, in lieu of the arresting officer, provide the criminal history to the magistrate or court.

(1999, cc. 829, 846; 2007, c. 133.)

The 2007 amendments. - The 2007 amendment by c. 133, in the last sentence, substituted "pretrial services agency" for "pretrial services program" and " § 19.2-152.2 " for " § 19.2-152.4 ."

§ 19.2-81. Arrest without warrant authorized in certain cases.

  1. The following officers shall have the powers of arrest as provided in this section:
    1. Members of the State Police force of the Commonwealth;
    2. Sheriffs of the various counties and cities, and their deputies;
    3. Members of any county police force or any duly constituted police force of any city or town of the Commonwealth;
    4. The Commissioner, members and employees of the Marine Resources Commission granted the power of arrest pursuant to § 28.2-900 ;
    5. Regular conservation police officers appointed pursuant to § 29.1-200 ;
    6. United States Coast Guard and United States Coast Guard Reserve commissioned, warrant, and petty officers authorized under § 29.1-205 to make arrests;
    7. Conservation officers appointed pursuant to § 10.1-115 ;
    8. Full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to § 46.2-217 ;
    9. Special agents of the Virginia Alcoholic Beverage Control Authority;
    10. Campus police officers appointed under Article 3 (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1; and
    11. Members of the Division of Capitol Police.
  2. Such officers may arrest without a warrant any person who commits any crime in the presence of the officer and any person whom he has reasonable grounds or probable cause to suspect of having committed a felony not in his presence. Such officers may arrest without a warrant any person whom the officer has probable cause to suspect of operating any watercraft or motorboat while (i) intoxicated in violation of subsection B of § 29.1-738 or a substantially similar ordinance of any county, city, or town in the Commonwealth or (ii) in violation of an order issued pursuant to § 29.1-738.4 and may thereafter transfer custody of the person arrested to another officer, who may obtain a warrant based upon statements made to him by the arresting officer.
  3. Any such officer may, at the scene of any accident involving a motor vehicle, watercraft as defined in § 29.1-733.2 or motorboat, or at any hospital or medical facility to which any person involved in such accident has been transported, or in the apprehension of any person charged with the theft of any motor vehicle, on any of the highways or waters of the Commonwealth, upon reasonable grounds to believe, based upon personal investigation, including information obtained from eyewitnesses, that a crime has been committed by any person then and there present, apprehend such person without a warrant of arrest. For purposes of this section, "the scene of any accident" shall include a reasonable location where a vehicle or person involved in an accident has been moved at the direction of a law-enforcement officer to facilitate the clearing of the highway or to ensure the safety of the motoring public.
  4. Such officers may, within three hours of the alleged offense, arrest without a warrant at any location any person whom the officer has probable cause to suspect of driving or operating a motor vehicle, watercraft or motorboat while intoxicated in violation of § 18.2-266 , 18.2-266 .1, 46.2-341.24 , or subsection B of § 29.1-738 ; or a substantially similar ordinance of any county, city, or town in the Commonwealth, whether or not the offense was committed in such officer's presence. Such officers may, within three hours of the alleged offense, arrest without a warrant at any location any person whom the officer has probable cause to suspect of operating a watercraft or motorboat in violation of an order issued pursuant to § 29.1-738.4 , whether or not the offense was committed in such officer's presence.
  5. Such officers may arrest, without a warrant or a capias, persons duly charged with a crime in another jurisdiction upon receipt of a photocopy of a warrant or a capias, telegram, computer printout, facsimile printout, a radio, telephone or teletype message, in which photocopy of a warrant, telegram, computer printout, facsimile printout, radio, telephone or teletype message shall be given the name or a reasonably accurate description of such person wanted and the crime alleged.
  6. Such officers may arrest, without a warrant or a capias, for an alleged misdemeanor not committed in his presence when the officer receives a radio message from his department or other law-enforcement agency within the Commonwealth that a warrant or capias for such offense is on file.
  7. Such officers may also arrest without a warrant for an alleged misdemeanor not committed in their presence involving (i) shoplifting in violation of § 18.2-96 or 18.2-103 or a similar local ordinance, (ii) carrying a weapon on school property in violation of § 18.2-308.1 , (iii) assault and battery, (iv) brandishing a firearm in violation of § 18.2-282 , or (v) destruction of property in violation of § 18.2-137 , when such property is located on premises used for business or commercial purposes, or a similar local ordinance, when any such arrest is based on probable cause upon reasonable complaint of the person who observed the alleged offense. The arresting officer may issue a summons to any person arrested under this section for a misdemeanor violation involving shoplifting. (Code 1950, § 19.1-100; 1960, c. 366; 1974, c. 241; 1975, c. 495; 1976, cc. 515, 570; 1977, c. 97; 1979, c. 268; 1982, c. 272; 1983, c. 206; 1984, c. 534; 1985, c. 507; 1988, cc. 353, 744, 752, 853; 1989, c. 726; 1990, cc. 635, 744, 784; 1995, c. 465; 1996, cc. 866, 929, 1015; 1998, c. 684; 2004, c. 949; 2005, cc. 88, 435; 2008, cc. 460, 737; 2010, c. 840; 2011, cc. 510, 643; 2012, c. 776; 2013, c. 787; 2014, c. 543; 2015, cc. 38, 730; 2017, c. 208.)

Cross references. - For arrests without warrants in cases of flight and pursuit, see § 19.2-77 .

For statute authorizing arrests without warrants in connection with the extradition of criminals, see § 19.2-100 .

Editor's note. - Acts 2013, c. 787, cl. 3 provides: "That the provisions of this act shall become effective on July 1, 2014."

Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: "That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019."

At the direction of the Virginia Code Commission, "Article 3 ( § 23.1-809 et seq.) of Chapter 8 of Title 23.1" was substituted for "Chapter 17 ( § 23-232 et seq.) of Title 23" in subdivision A 10 to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

The 2004 amendments. - The 2004 amendment by c. 949, in subdivision 7, added the last sentence in the fourth paragraph.

The 2005 amendments. - The 2005 amendment by c. 88 added subdivision 8 and made related changes.

The 2005 amendment by c. 435 inserted "or a capias" in the fifth and sixth paragraphs.

The 2008 amendments. - The 2008 amendment by c. 460 added subdivision 9; and made related changes.

The 2008 amendment by c. 737 inserted the present second sentence in the third paragraph following subdivision 8 [now subdivision 9].

The 2010 amendments. - The 2010 amendment by c. 840 added the subsection designations; deleted the last paragraph in subsection B, which dealt with an officer's power to arrest without a warrant persons intoxicated while in violation of subsection B of § 29.1-738 or of an order issued pursuant to § 29.1-738.4 ; and rewrote subsection D, in part by adding the last sentence.

The 2011 amendments. - The 2011 amendment by c. 510 added the last paragraph in subsection B.

The 2011 amendment by c. 643 added subdivision A 10 and made a related change.

The 2012 amendments. - The 2012 amendment by c. 776 inserted subdivision A 11 and made a related change.

The 2013 amendments. - The 2013 amendment by c. 787, effective July 1, 2014, substituted " § 29.1-733.2 " for " § 29.1-712 " in subsection C.

The 2014 amendments. - The 2014 amendment by c. 543 deleted subdivision A 7 and redesignated the remaining subdivisions accordingly.

The 2015 amendments. - The 2015 amendments by cc. 38 and 730, effective January 15, 2018, are identical, and substituted "Virginia Alcoholic Beverage Control Authority" for "Department of Alcoholic Beverage Control" in subdivision A 9.

The 2017 amendments. - The 2017 amendment by c. 208 added subdivision A 11, and made related changes.

Law review. - For comment on the presence requirement and the "police-team" rule in arrest for misdemeanors, see 26 Wash. & Lee L. Rev. 119 (1969). For survey of recent legislation on criminal procedure - authority of police to question and search suspicious persons, see 5 U. Rich. L. Rev. 191 (1970). For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For note comparing Virginia law with a model implied consent statute for drunken drivers, see 12 Wm. & Mary L. Rev. 654 (1971). For survey of Virginia law on criminal procedure for the year 1973-1974, see 60 Va. L. Rev. 1505 (1974). For survey of Virginia law on criminal procedure for the year 1977-1978, see 64 Va. L. Rev. 1419 (1978). For survey of Virginia law on criminal procedure for the year 1978-1979, see 66 Va. L. Rev. 261 (1980). For note on the constitutionality of an identification requirement for lawfully stopped persons, see 37 Wash. & Lee L. Rev. 253 (1980). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981). For article, "State Court Activism and Searches Incident to Arrest," see 68 Va. L. Rev. 1085 (1982). For note on stop and frisk based upon anonymous telephone tips, see 39 Wash. & Lee L. Rev. 1437 (1982). For comment on spouse abuse in Virginia, see 17 U. Rich. L. Rev. 633 (1983). For 1985 survey of Virginia criminal procedure, see 19 U. Rich. L. Rev. 697 (1985). For comment on what standard governs investigative stops in Virginia, see 9 G.M.U. L. Rev. 313 (1987).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For note, "New Theories of Guilt on Appeal in Virginia Criminal Cases," see 50 Wm. and Mary L. Rev. 2177 (2009).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, §§ 4, 6, 8-10, 12; 16 M.J. Right of Privacy, § 1.

CASE NOTES

I. IN GENERAL.

Editor's note. - Some of the cases annotated below were decided under former § 19.2-83 .

The test of constitutional validity is whether at the moment of arrest the arresting officer had knowledge of sufficient facts and circumstances to warrant a reasonable man in believing that an offense has been committed. DePriest v. Commonwealth, 4 Va. App. 577, 359 S.E.2d 540 (1987), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 571 (1988).

Section violation does not necessarily result in Fourth Amendment violation. - Violation of this section did not necessarily result in a Fourth Amendment violation or warrant application of the exclusionary rule, where a police officer had probable cause to arrest defendant on a "peeping tom" charge and anything seized as a result of that arrest was subject to being used against him. Lovelace v. Commonwealth, No. 0822-88-4 (Ct. of Appeals Apr. 24, 1990).

There is no Fourth Amendment violation for misdemeanor arrests committed outside the presence of the arresting state officer. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).

There is no constitutional violation where state police officers make warrantless arrests for misdemeanors not committed in their presence. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).

Purpose of provision for arrest at scene of accident. - The legislature intended for the provisions of this section, inter alia, to facilitate the timely arrest of persons in motor vehicle accidents involving alcohol or other intoxicants so that they may be tested under the implied consent law to determine their blood alcohol content. Smith v. Commonwealth, 32 Va. App. 228, 527 S.E.2d 456, 2000 Va. App. LEXIS 281 (2000).

The term "accident" means an event occurring by chance or from unknown causes or an unfortunate event; there is nothing inherent in the meaning of the word that suggests that it applies only when a vehicle strikes or collides with a person or property. Leveroni v. County of Arlington, 18 Va. App. 626, 445 S.E.2d 723 (1994).

Trial court did not err in ruling that an "accident" occurred sufficient to authorize warrantless arrest, where defendant's vehicle went far enough off paved roadway to become mired in mud up to its axles. Ferrufino v. Commonwealth, No. 1930-98-4, 1999 Va. App. LEXIS 626 (Nov. 9, 1999).

Lineal and temporal criteria for arrest at scene of accident. - The time and place elements of the res gestae doctrine are applicable by analogy to a court's determination of whether a warrantless arrest occurred "at the scene of any accident," and whether an arrest occurred at the scene of an accident depends upon whether the relevant factors are linked by time and place or by any reasonable temporal and/or lineal criteria. Smith v. Commonwealth, 32 Va. App. 228, 527 S.E.2d 456, 2000 Va. App. LEXIS 281 (2000).

Arrest at scene of accident shown. - A defendant was arrested at the scene of an accident within the meaning of this section where the evidence established that the arresting officer arrived at the intersection at which the accident occurred within minutes of its occurrence, and that from that intersection he could see the tow truck and the house where defendant's vehicle was parked and that he then proceeded directly to that location, which was about 100 yards away, arriving twenty to thirty seconds later; under a res gestae analysis of time and place, the officer's arrest of the defendant, at this location and so close in time to the accident, met the lineal and temporal requirements necessary to constitute an arrest at the scene of the accident. Smith v. Commonwealth, 32 Va. App. 228, 527 S.E.2d 456, 2000 Va. App. LEXIS 281 (2000).

Surveillance and legitimate inquiry. - This section does not deny to the police the authority to discharge their proper and expected function of maintaining public order through surveillance and legitimate inquiry. Troncoso v. Commonwealth, 12 Va. App. 942, 407 S.E.2d 349 (1991).

Departure from misdemeanor presence rule contrary to legislative intent. - A careful reading of the statute indicates that any departure from the misdemeanor presence rule, except as specified by the statute, is contrary to the legislative intent. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).

Protective search of area of suspect's immediate control. - Police officers may, whenever they possess an articulable and objectively reasonable belief that a suspect is presently or potentially dangerous, conduct a protective search of the area within the suspect's immediate control. If the suspect moves about, an officer is justified in staying with the individual during the course of the stop and conducting a protective search of the areas which come within the suspect's immediate control, even if this action necessitates entry into the suspect's home. Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).

It makes no difference that the object removed from subject's person is not a weapon. To justify removal, it is only necessary that the officer reasonably believes the object could be a weapon. Lansdown v. Commonwealth, 226 Va. 204 , 308 S.E.2d 106 (1983), cert. denied, 465 U.S. 1104, 104 S. Ct. 1604, 80 L. Ed. 2d 134 (1984).

When pat-down search authorized. - The authority to conduct a pat-down search does not automatically accompany an investigative detention. Only where the officer can point to particular facts from which he reasonably inferred that the individual was armed and dangerous is he justified in searching for weapons. Williams v. Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 (1987).

To justify removal of item from pocket of defendant during pat-down search, it was not necessary that the item actually be a weapon. Officer was entitled to remove the item if he reasonably believed that it could be a weapon. Williams v. Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 (1987).

Pat-down search for weapons held reasonable. - Even though the officers who detained defendant had no information that he was armed or that he had a past history of violence, they acted reasonably when conducting a protective pat-down search for weapons in light of the fact that they had a reasonable suspicion that defendant was presently engaged in narcotics distribution. Williams v. Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 (1987).

Search of passenger compartment subsequent to arrest authorized. - Once defendant was lawfully arrested for reckless driving, police officer was authorized to undertake a related search of the vehicle's passenger compartment. Joe v. Commonwealth, No. 1996-93-1, 1995 Va. App. LEXIS 33 (Ct. of Appeals Jan. 10, 1995).

Good faith. - Under this section the good faith of the arresting officer is not a factor. Foote v. Commonwealth, 11 Va. App. 61, 396 S.E.2d 851 (1990).

Arrest upon knowledge of existence of unexecuted felony warrant. - An officer has probable cause, and indeed the legal duty, to arrest upon knowledge of the existence of an unexecuted felony warrant for the suspect. Crowder v. Commonwealth, 213 Va. 151 , 191 S.E.2d 239 (1972).

Where the arresting officer was acting on personal knowledge of the existence of felony warrants commanding the arrest of defendant, it would be a strained construction of the law to vitiate an arrest made under such circumstances, notwithstanding a statute which permits the arrest had the required information and allegation come to him by radio, telegram or teletype. Crowder v. Commonwealth, 213 Va. 151 , 191 S.E.2d 239 (1972).

Arrest resulting from mistake of law should be judged by same test as one stemming from mistake of fact, viz., whether the arresting officer acted "in good faith and with probable cause." This test "has been consistently read as meaning good faith and 'reasonable belief' in the validity of the arrest." DeChene v. Smallwood, 226 Va. 475 , 311 S.E.2d 749, cert. denied, 469 U.S. 857, 105 S. Ct. 184, 83 L. Ed. 2d 118 (1984).

Where conduct which prompted arrest occurred in officer's presence, the legality of the arrest will turn on whether the officer acted in good faith and with reasonable belief in the validity of the arrest. DeChene v. Smallwood, 226 Va. 475 , 311 S.E.2d 749, cert. denied, 469 U.S. 857, 105 S. Ct. 184, 83 L. Ed. 2d 118 (1984).

An offense is committed within the presence of an officer, within the meaning of the misdemeanor presence rule, when he has direct personal knowledge, through his sight, hearing, or other senses that it is then and there being committed. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).

When an officer came upon defendant's vehicle with its hazard lights operating, while defendant went into a building to make a delivery, defendant had not terminated the operation of the vehicle and he committed the crime of operating the vehicle without a license in the officer's presence, authorizing the officer to arrest him without a warrant. Harris v. Commonwealth, No. 1615-01-2, 2002 Va. App. LEXIS 365 (Ct. of Appeals July 2, 2002).

Eyewitness testimony of sexual assault sufficiently independent of evidence obtained by GPS device. - Exclusionary rule under Va. Const., Art. I, § 10, did not bar the eyewitness testimony of the officers who saw defendant commit a sexual assault, which was a new and distinct offense, and sufficiently independent of any information obtained by them from the GPS that they had placed on a van driven by defendant without a warrant. Foltz v. Commonwealth, 58 Va. App. 107, 706 S.E.2d 914, 2011 Va. App. LEXIS 165 (2011).

Officer's personal knowledge of offense. - Unless the arrest is one within the various statutory exceptions to the general rule, a police officer may not arrest a misdemeanant without a warrant except when an officer has personal knowledge acquired by his personal senses that an offense was committed in his presence. Durant v. City of Suffolk, 4 Va. App. 445, 358 S.E.2d 732 (1987).

A legal warrantless arrest cannot be effectuated based upon the officer having information from others which leads him to believe an offense is being committed in his presence. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).

Information received from a third party, even a fellow law-enforcement officer, is an inadequate substitute for the arresting officer's own observations and perceptions. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).

Misdemeanor committed, but not in officer's presence. - If the officer has information that a misdemeanor has been committed, but not in his presence, he must obtain a warrant and make the arrest pursuant to that warrant. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).

Suspicion of narcotics possession and distribution gives rise to inference of dangerousness. - Suspicion of narcotics possession and distribution is a circumstance which, standing alone, gives rise to an inference of dangerousness, so as to confer authority to conduct a pat-down search. Williams v. Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 (1987).

Commonwealth's interlocutory appeal not allowed based on this section. - Where the trial court's suppressing order was not based on a violation of a provision of the Virginia or federal Constitutions, but was based on this section, which limits the authority of a police officer to stop, question and search a suspicious person, the interlocutory appeal by the Commonwealth from the order suppressing evidence of cocaine found on the defendant when law-enforcement officers searched him was not one which the Commonwealth is permitted to appeal. Commonwealth v. Brown, 8 Va. App. 41, 378 S.E.2d 623 (1989).

Third sentence of section applies to defendant charged with offense in another jurisdiction. - Where defendant is charged with an offense in another jurisdiction, it is the third sentence of this section, and not the first sentence, by which the lawfulness of defendant's arrest is to be judged. Grajales v. Commonwealth, No. 0508-85 (Ct. of Appeals Nov. 12, 1986).

Warrantless arrest of a person charged with a crime in another jurisdiction. - Three conditions are necessary to empower a police officer to effectuate a warrantless arrest of a person charged with a crime in another jurisdiction: an officer must be given the name or a description of the person wanted, a description of the crime, and an allegation that such person is likely to flee the Commonwealth. Foote v. Commonwealth, 11 Va. App. 61, 396 S.E.2d 851 (1990).

A reasonably accurate description should address gender, race, age, height, weight, hair color, and any unique characteristics. Foote v. Commonwealth, 11 Va. App. 61, 396 S.E.2d 851 (1990).

Where radio transmission informed a deputy sheriff that the driver of a suspicious truck was wanted, that the deputy should use caution, and that the driver was a "Rambo-type" suspect, this transmission did not meet the statutory requirements authorizing a warrantless arrest of a person charged with a crime in another jurisdiction. Foote v. Commonwealth, 11 Va. App. 61, 396 S.E.2d 851 (1990).

Applied in Lowe v. Commonwealth, 218 Va. 670 , 239 S.E.2d 112 (1977); Thompson v. Commonwealth, 10 Va. App. 117, 390 S.E.2d 198 (1990); Poindexter v. Commonwealth, 16 Va. App. 730, 432 S.E.2d 527 (1993); Harris v. Commonwealth, 39 Va. App. 670, 576 S.E.2d 228, 2003 Va. App. LEXIS 39 (2003); United States v. Day, 591 F.3d 679, 2010 U.S. App. LEXIS 429 (4th Cir. 2010).

II. ILLUSTRATIVE CASES.

Probable cause to make warrantless arrest. - The events witnessed by the police officer during his surveillance provided him with a suspicion of criminal activity, but not probable cause, where he did not observe suspected narcotics change hands, nor did he observe the exchange of any object which in his experience suggested narcotics, and there was no evidence that the area under surveillance was noted for heroin transactions or that the transactions observed were furtive in nature. DePriest v. Commonwealth, 4 Va. App. 577, 359 S.E.2d 540 (1987), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 571 (1988).

Where the defendant and codefendant were stopped and patted down for weapons but not subjected to further investigation until another police officer arrived, the initial stop did not constitute an arrest; the defendant was not actually arrested until the other officer arrived on the scene and found a substance he suspected was heroin in the pocket of codefendant, and the discovery of this substance, along with the other officer's prior observations, provided probable cause to arrest defendant. DePriest v. Commonwealth, 4 Va. App. 577, 359 S.E.2d 540 (1987), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 571 (1988).

Arrest was supported by probable cause. - Where police articulated facts supporting reasonable suspicion that appellant was the person they sought for leaving the scene of an accident without filing a report, and it was appellant's action that produced in plain view the cocaine that gave them probable cause to arrest him, notwithstanding that the police described their actions as an investigatory detention, not an arrest, arrest of the appellant which was supported by probable cause occurred when the cocaine was discovered as a result of Terry stop and appellant was placed in handcuffs, and police did not violate this section which prohibits warrantless arrest for a misdemeanor. Mazza v. Commonwealth, 16 Va. App. 907, 434 S.E.2d 339 (1993).

Officer had probable cause to arrest defendant for driving under the influence of alcohol, in violation of § 18.2-266 , because a reasonable person could have properly inferred from the totality of the circumstances that defendant had drunk enough alcohol, at the time of the accident, to observably affect his manner, disposition, speech, muscular movement, general appearance, or behavior, since: (1) the officer knew that defendant had been in a bar until nearly closing time; (2) the officer knew that defendant struck the victim while driving his motorcycle; (3) the officer observed at the hospital that defendant had a quite strong odor of alcohol about his person; and (4) the officer saw that, although defendant's only apparent injuries were scrapes and bruises, defendant's speech was slurred. Bristol v. Commonwealth, 47 Va. App. 584, 625 S.E.2d 676, 2006 Va. App. LEXIS 53 (2006), reversed, remanded, 272 Va. 568 , 636 S.E.2d 460 (2006), as to validity of arrest.

Because a police officer heard a judge orally order that a capias be issued for defendant's failure to appear, the officer had sufficient probable cause and authority to arrest defendant under § 19.2-81 . Jones v. Commonwealth,, 2007 Va. App. LEXIS 29 (Jan. 30, 2007).

Because defendant's post-entry assaults on police officers were outside the scope of the exclusionary rule, and because police officers had probable cause under § 19.2-81 to make a warrantless arrest for public intoxication, the Fourth Amendment was irrelevant; since defendant had no right to resist the arrest, defendant's motion to suppress was properly denied and defendant was properly convicted of assault and battery on a police officer and obstruction of justice. Messier v. Commonwealth,, 2007 Va. App. LEXIS 201 (May 15, 2007).

Trial court did not err in denying defendant's motion to suppress cocaine the police discovered in defendant's vehicle incident to an arrest on a separate charge because the police had probable cause to arrest defendant since a reasonable officer could conclude that there was probable cause to believe that defendant committed the crime of possession of cocaine, either solely or jointly; it was an entirely reasonable inference from the facts that either defendant or a passenger had knowledge of, and exercised dominion and control over, the cocaine. Jones v. Commonwealth,, 2011 Va. App. LEXIS 98 (Mar. 22, 2011).

Where, at night, an officer observed a van operating in a grossly reckless manner under circumstances suggesting that its occupants were engaged in "possibly criminal behavior" or that they were fleeing from the scene of a crime; the situation appeared sufficiently aggravated that he felt it necessary to radio for assistance; after attempting unsuccessfully to elude arrest, the driver brought the van to a halt in an unlit area; with "no rear windows or side windows" in the van, the actions of the occupants were hidden from the officer; none of the occupants could produce any personal identification or any registration for the van; and the officer stated that he was concerned about the occupants possibly having weapons to make an assault on him regarding the traffic stop, the intrusion that occurred when the officer ordered the defendant from the van and detained him until he was frisked by another officer was reasonably warranted. Lansdown v. Commonwealth, 226 Va. 204 , 308 S.E.2d 106 (1983), cert. denied, 465 U.S. 1104, 104 S. Ct. 1604, 80 L. Ed. 2d 134 (1984).

Arrest on reasonable belief is valid. - In United States v. Gearhart, 326 F.2d 412 (4th Cir. 1964)the court said that an arrest was in order, because, in the aggregate, the sheriff had "reasonable grounds to believe" that a crime had been committed by the defendant,.

A police officer may arrest, without a warrant, one whom he has reasonable grounds or probable cause to suspect of having committed a felony even though the crime is not committed in his presence. Crowder v. Commonwealth, 213 Va. 151 , 191 S.E.2d 239 (1972).

Protective search held reasonable. - Police officer had an articulable and objectively reasonable basis for suspecting that the defendant was potentially dangerous, where the hour was late and the area was rural, the police had been called to the scene to investigate a possible break-in to the motel room in which the defendant was found, the defendant appeared nervous, highly upset, and under the influence of some intoxicant, twice he gave false answers to the police about to whom the rooms were registered, chairs were piled against the door to block entry, and when asked for his identification, the defendant quickly retreated into the room without responding. Based on the totality of the circumstances, the officer could reasonably suspect that the defendant was the reported burglar who might be armed and potentially dangerous. Accordingly, he was justified in conducting a pat-down of the defendant's outer clothing and a protective search of the area within the defendant's immediate control, as well as monitoring the defendant's movements during the course of the stop. Therefore, his warrantless entry into the motel room was reasonable. Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).

Warrantless arrests at hospital of any person involved in accident. - This section authorizes law-enforcement officers to make warrantless arrests at a hospital of any person involved in a motor vehicle accident even though the crime was not committed in the officer's presence, provided the officer is in uniform or displaying a badge of office and has reasonable grounds to believe based upon personal investigation that a crime arising from the accident was committed by that person. Paige v. City of Lynchburg, 10 Va. App. 162, 390 S.E.2d 524 (1990).

Warrantless arrest of defendant in the hospital at 4:35 p.m. was invalid, where the motor vehicle accident occurred at 3:00 p.m. The officer had no authority without a warrant to arrest the accused except at the scene of the motor vehicle accident for driving under the influence and after his driver's license had been revoked, offenses which were committed not in his presence. Thomas v. Town of Marion, 226 Va. 251 , 308 S.E.2d 120 (1983).

After-the-fact appraisal does not lessen cause to stop, question, and search. - An officer's concessions on the witness stand that he had no reason to stop the vehicle other than the actions of the vehicle itself and that the defendant individually did nothing to indicate he possessed a concealed weapon, posed any danger to the officer, or had committed any crime, obviously were the result of an after-the-fact appraisal of the situation. They neither lessen the fact that he did have ample cause to stop the vehicle nor take away from his on-the-scene concern for his safety and his fear that the vehicle's occupants might have weapons to make an assault on him. In determining whether to detain the defendant, the officer was entitled to rely upon the totality of the circumstances - the whole picture. Lansdown v. Commonwealth, 226 Va. 204 , 308 S.E.2d 106 (1983), cert. denied, 465 U.S. 1104, 104 S. Ct. 1604, 80 L. Ed. 2d 134 (1984).

Defendant's identification. - Police officers were authorized to seek defendant's identification, where they saw him and others engaged in a drug transaction and stopped the vehicle he was driving. Smith v. Commonwealth, No. 0138-89-2 (Ct. of Appeals Oct. 16, 1990).

Suppression of evidence not appropriate for noncompliance with section. - Where officers who arrested defendant were wearing plain clothes at the time they placed defendant under arrest, and in addition, the trial court specifically found that the officers had no chance to display their badges prior to arresting defendant, suppression of evidence was not the appropriate remedy for the officers' failure to comply with this section. Graves v. Commonwealth, No. 1113-88-2 (Ct. of Appeals July 17, 1990).

Although defendant's warrantless arrest for littering violated this section because the misdemeanor offense was not committed in the presence of the arresting officer, such a violation of state law did not warrant application of the exclusionary rule to suppress the cocaine discovered in the search. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).

Suppression of evidence. - Not every violation of this section necessarily results in the exclusion of evidence; where an illegal arrest under this section does not violate any constitutional rights, the defendant is not entitled to have evidence seized pursuant to that arrest excluded. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).

The exclusionary rule adopted in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), does not operate to exclude evidence where the defendant claims that rights provided to him under state statute have been violated, but fails to allege a deprivation of constitutional rights. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).

In the absence of any deprivation of constitutional rights, an arrest in violation of state statute does not require exclusion of any evidence obtained as a result of the arrest. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).

Under Virginia law, no suppression of evidence is required when evidence is obtained in violation of state law but no constitutional violation has occurred. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).

A violation of this section does not require the exclusion of evidence absent a constitutional violation. Hailey v. Commonwealth, No. 0627-99-3, 2000 Va. App. LEXIS 593 (Ct. of Appeals Aug. 15, 2000).

Cocaine found in defendant's vehicle was admissible because a police officer had probable cause under subsection B of § 19.2-81 to arrest defendant for public intoxication, in violation of § 18.2-388 , as the officer testified that as the officer approached defendant's parked vehicle and spoke with defendant there was a very strong odor of alcohol coming from defendant's breath, defendant's speech was slurred, and defendant's eyes were very bloodshot. Furthermore, the officer's search of defendant's vehicle was a proper search incident to arrest under then existing law, as defendant was in custody and an occupant of the vehicle. McGhee v. Commonwealth, 280 Va. 620 , 701 S.E.2d 58, 2010 Va. LEXIS 260 (2010).

Section 52-21 , relating to procedure after arrest without warrant, held not applicable where the record showed that the accident occurred in Stafford County and defendant was taken directly from the scene to a Fredericksburg hospital and arrested at the hospital and upon his release, officer took the accused to a Stafford County magistrate and obtained a warrant since the warrantless arrest at the hospital following the accident was made pursuant to this section. Walter v. Commonwealth, 8 Va. App. 485, 382 S.E.2d 484 (1989).

The defendant's warrantless arrest for driving under the influence of alcohol was unlawful where the police officer had not observed the defendant driving, and the police officer's only source of knowledge that the defendant drove in that city was the radio call for assistance. Durant v. City of Suffolk, 4 Va. App. 445, 358 S.E.2d 732 (1987).

Warrantless arrest was lawful where defendant was asked whether he would accompany police officer in the police car to speak to another officer and he agreed and was arrested by the other officer after the other officer identified defendant as the person he had seen trespassing. James v. Commonwealth, 8 Va. App. 98, 379 S.E.2d 378 (1989).

Petit larceny is a continuing offense, and where two police officers observed the defendant and the radio in question in his car, a misdemeanor was being committed in their presence which permitted them to arrest the defendant without a warrant pursuant to this section. Ford v. Commonwealth, No. 0885-89-4 (Ct. of Appeals Nov. 6, 1990).

Warrantless arrest invalid. - Officer made an invalid warrantless arrest for a misdemeanor not committed in his presence as the single-vehicle accident occurred on or beside a private road in a gated, guarded residential complex; thus, the exceptions to the warrant requirement in § 19.2-81 did not apply. Therefore, the implied consent law did not apply to permit the certificate of analysis of defendant's breath test to be admitted into evidence. Roseborough v. Commonwealth, 281 Va. 233 , 704 S.E.2d 414, 2011 Va. LEXIS 13 (2011).

"Accident" found. - Where defendant's car came in contact with sign 20 feet from the hard surface, which resulted from her admitted failure to pay attention, this event was an accident within the meaning of the statute. Leveroni v. County of Arlington, 18 Va. App. 626, 445 S.E.2d 723 (1994).

CIRCUIT COURT OPINIONS

Authority to arrest. - Defendant's motion to dismiss was granted because, while a county police officer had authority to arrest him as a private citizen for an alleged felony hit and run that occurred in the county, the county police lacked authority to arrest defendant where no emergency existed in the city of which they were on notice that required their presence, the city police had not requested their assistance, and neither a mutual aid agreement nor an executive agreement gave them authority to arrest defendant. Commonwealth v. Valdez, 87 Va. Cir. 386, 2014 Va. Cir. LEXIS 29 (Charlottesville Jan. 28, 2014).

In a case in which a Chesapeake detective arrested defendant for actions that occurred in Norfolk, the circuit court, in the absence of express statutory directive, declined to restrain the officer in a manner inapplicable to a private citizen engaging in the same conduct. Commonwealth v. Creekmore, 94 Va. Cir. 19, 2016 Va. Cir. LEXIS 93 (Chesapeake July 7, 2016).

Lack of signature on warrant. - Defendant was not entitled to have evidence seized during an arrest and statements made in course of and following the arrest suppressed because the lack of a magistrate's signature on an otherwise valid warrant did not render defendant's arrest unlawful under § 19.2-81 , where the facts otherwise failed to set forth a violation of defendant's rights under the Fourth Amendment. Commonwealth v. Osborne, 72 Va. Cir. 601, 2005 Va. Cir. LEXIS 376 (Scott County 2005).

"In the presence" requirement. - Court rejected "police team" argument to satisfy the "in the presence" requirement for misdemeanor arrests under § 19.2-81 . Commonwealth v. Coakley, 56 Va. Cir. 99, 2001 Va. Cir. LEXIS 446 (Norfolk 2001).

Trial court did not violate petitioner's Fourth Amendment rights by denying his motion to suppress, despite his claim that the police officers lacked probable cause to arrest him for being drunk in public where he was inside his parents' home when he was arrested, because there was evidence that petitioner was extremely intoxicated and had been in public when he left his home where his wife's dead body was found and went to his parents' home. The officers' failure to observe petitioner's intoxication "in public," prior to arresting him, may have constituted a violation of § 19.2-81 , which authorized a warrantless arrest of any person who committed a crime in the presence of an officer, but it did not strip the officers of probable cause to arrest him and did not warrant exclusion of evidence or statements obtained as a result of the arrest. Hudson v. Dir. of the Dep't of Corr., 67 Va. Cir. 319, 2005 Va. Cir. LEXIS 147 (Clarke County May 16, 2005).

Park ranger's arrest of defendant not improper. - Park rangers were permitted to exercise the powers of a conservator of the peace when engaged in the performance of their official duties; as a conservator of the peace, a ranger was permitted to make an arrest for a misdemeanor committed in his presence. A ranger's arrest of defendant for driving under the influence based on the ranger's observations of defendant was proper. Commonwealth v. Stickle, 72 Va. Cir. 494, 2007 Va. Cir. LEXIS 154 (Loudoun County 2007).

Objective standard. - Correct inquiry is whether, based on an objective standard, a deputy had sufficient information to support probable cause for an arrest for a crime. Commonwealth v. May, 63 Va. Cir. 474, 2003 Va. Cir. LEXIS 339 (Loudoun County 2003).

While defendant argued that the arrest was illegal because a deputy did not have probable cause to arrest defendant for the felony of grand larceny for which defendant was subsequently charged, the deputy did have probable cause to believe that defendant committed the crime of petit larceny in the deputy's presence because: (1) the victim of the grand larceny told the deputy that the victim's purse had been stolen and described two individuals that the victim suspected of taking the purse; (2) because the deputy had no information that the purse had been recovered, the deputy had reason to believe that the asportation of the stolen purse continued; (3) the deputy had reason to believe that the purse the deputy saw near defendant was the one that the victim reported as being stolen; and (4) because the purse had some value, it was the subject of, at least, petit larceny. Commonwealth v. May, 63 Va. Cir. 474, 2003 Va. Cir. LEXIS 339 (Loudoun County 2003).

Court stated that §§ 18.2-266 , 19.2-81 , and 46.2-100 , read together, require that an individual drive or operate, or be in actual physical control of a motor vehicle in the presence of the arresting officer for an arrest to be valid. Commonwealth v. Coakley, 56 Va. Cir. 99, 2001 Va. Cir. LEXIS 446 (Norfolk 2001).

Information obtained from National Criminal Information Center sufficient to support arrest under a warrant from a foreign jurisdiction. - Determination that there was an outstanding warrant for defendant through a check using the National Criminal Information Center enabled officers to arrest defendant despite the fact that the officers did not have an actual copy of the warrant. Commonwealth v. Makeen, 62 Va. Cir. 269, 2003 Va. Cir. LEXIS 293 (Norfolk 2003).

Defendant's refusal to submit not unlawful in absence of valid arrest. - Court found the driving under the influence (DUI) defendant was improperly charged under § 18.2-268 [see now § 18.2-268 .1 et seq.] with refusing to submit to a breath or blood test since the defendant was not legally under arrest for DUI, as the defendant's arrest was in violation of former § 19.2-81 ; therefore, when the defendant was read his implied consent rights under former § 18.2-268 (requiring the defendant to have been lawfully arrested in order to be subject to former § 18.2-268's mandate to submit) the defendant's refusal to submit did not constitute a violation of former § 18.2-268, and his refusal to submit was not admissible since the test itself, even if he had consented to the test, was inadmissible. Commonwealth v. Coakley, 56 Va. Cir. 99, 2001 Va. Cir. LEXIS 446 (Norfolk 2001).

Arrest was supported by probable cause. - Officer had probable cause to arrest defendant under this section where he had reasonably trustworthy information about her erratic driving, including her rear-ending another vehicle and attempting to leave the scene, the officer detected an odor of alcohol emanating from defendant, defendant admitted having consumed a few beers, and the officer observed defendant's slurred speech, her dazed demeanor, and her strange conduct. Commonwealth v. Long, 88 Va. Cir. 335, 2014 Va. Cir. LEXIS 24 (Roanoke County June 18, 2014).

OPINIONS OF THE ATTORNEY GENERAL

Execution of misdemeanor capias not in officer's possession. - A law-enforcement officer has the authority to execute a misdemeanor capias, not in his possession, based upon an official dispatch from another county, provided the officer informs the accused of the existence of, and the charges contained in, the capias and delivers the capias to the accused as soon thereafter as is practicable. See opinion of Attorney General to Mr. George S. Webb, III, Commonwealth's Attorney for Madison County, 05-017 (4/26/05).

Law-enforcement officers may inquire into immigration status. - Virginia law-enforcement officers, including conservation officers, may inquire into the immigration status of persons stopped or arrested; however, persons tasked with enforcing zoning laws lack the authority to investigate criminal violations of the law, including criminal violations of the immigration laws of the United States. See opinion of Attorney General to The Honorable Robert G. Marshall, Member, Virginia House of Delegates, 10-047, 2010 Va. AG LEXIS 37 (7/30/10).

§ 19.2-81.1. Arrest without warrant by correctional officers in certain cases.

Any correctional officer, as defined in § 53.1-1 , may arrest, in the same manner as provided in § 19.2-81 , persons for crimes involving:

  1. The escape of an inmate from a correctional institution, as defined in § 53.1-1 ;
  2. Assisting an inmate to escape from a correctional institution, as defined in § 53.1-1 ;
  3. The delivery of contraband to an inmate in violation of § 18.2-474 or § 18.2-474.1 ; and
  4. Any other criminal offense which may contribute to the disruption of the safety, welfare, or security of the population of a correctional institution.

    (1976, c. 752.)

§ 19.2-81.2. Power of correctional officers and designated noncustodial employees to detain.

  1. A correctional officer, as defined in § 53.1-1 , who has completed the minimum training standards established by the Department of Criminal Justice Services, or other noncustodial employee of the Department of Corrections who has been designated to carry a weapon by the Director of the Department of Corrections pursuant to § 53.1-29 of the Code and who has completed the basic course in detention training as approved by the Department of Criminal Justice Services, may, while on duty in or on the grounds of a correctional institution, or with custody of prisoners without the confines of a correctional institution, detain any person whom he has reasonable suspicion to believe has committed a violation of §§ 18.2-473 through 18.2-475 , or of aiding or abetting a prisoner in violating the provisions of § 53.1-203 . Such detention shall be for the purpose of summoning a law-enforcement officer in order that the law-enforcement officer can arrest the person who is alleged to have violated any of the above sections.
  2. Any employee of the Department of Corrections having the authority to detain any person pursuant to subsection A hereof shall not be held civilly liable for unlawful detention, slander, malicious prosecution, false imprisonment, false arrest, or assault and battery of the person so detained, whether such detention takes place within or without the grounds of a correctional institution, provided that, in causing the detention of such person, the employee had at the time of the detention reasonable suspicion to believe that the person committed a violation for which the detention was undertaken.
  3. It is the purpose and intent of this section to ensure that the safety, stability, welfare and security of correctional institutions be preserved insofar as possible.

    (1976, c. 740; 1979, c. 642; 1984, cc. 720, 779.)

The number of this section was assigned by the Virginia Code Commission, the number in the 1976 act having been 19.2-81.1 .

§ 19.2-81.3. Arrest without a warrant authorized in cases of assault and battery against a family or household member and stalking and for violations of protective orders; procedure, etc.

  1. Any law-enforcement officer with the powers of arrest may arrest without a warrant for an alleged violation of § 18.2-57.2 , 18.2-60.4 , or 16.1-253.2 regardless of whether such violation was committed in his presence, if such arrest is based on probable cause or upon personal observations or the reasonable complaint of a person who observed the alleged offense or upon personal investigation.
  2. A law-enforcement officer having probable cause to believe that a violation of § 18.2-57.2 or 16.1-253.2 has occurred shall arrest and take into custody the person he has probable cause to believe, based on the totality of the circumstances, was the predominant physical aggressor unless there are special circumstances which would dictate a course of action other than an arrest. The standards for determining who is the predominant physical aggressor shall be based on the following considerations: (i) who was the first aggressor, (ii) the protection of the health and safety of family and household members, (iii) prior complaints of family abuse by the allegedly abusing person involving the family or household members, (iv) the relative severity of the injuries inflicted on persons involved in the incident, (v) whether any injuries were inflicted in self-defense, (vi) witness statements, and (vii) other observations.
  3. A law-enforcement officer having probable cause to believe that a violation of § 18.2-60.4 has occurred that involves physical aggression shall arrest and take into custody the person he has probable cause to believe, based on the totality of the circumstances, was the predominant physical aggressor unless there are special circumstances which would dictate a course of action other than an arrest. The standards for determining who is the predominant physical aggressor shall be based on the following considerations: (i) who was the first aggressor, (ii) the protection of the health and safety of the person to whom the protective order was issued and the person's family and household members, (iii) prior acts of violence, force, or threat, as defined in § 19.2-152.7:1 , by the person against whom the protective order was issued against the person protected by the order or the protected person's family or household members, (iv) the relative severity of the injuries inflicted on persons involved in the incident, (v) whether any injuries were inflicted in self-defense, (vi) witness statements, and (vii) other observations.
  4. Regardless of whether an arrest is made, the officer shall file a written report with his department, which shall state whether any arrests were made, and if so, the number of arrests, specifically including any incident in which he has probable cause to believe family abuse has occurred, and, where required, including a complete statement in writing that there are special circumstances that would dictate a course of action other than an arrest. The officer shall provide the allegedly abused person or the person protected by an order issued pursuant to § 19.2-152.8 , 19.2-152.9 , or 19.2-152.10 , both orally and in writing, information regarding the legal and community resources available to the allegedly abused person or person protected by the order. Upon request of the allegedly abused person or person protected by the order, the department shall make a summary of the report available to the allegedly abused person or person protected by the order.
  5. In every case in which a law-enforcement officer makes an arrest under this section for a violation of § 18.2-57.2 , he shall petition for an emergency protective order as authorized in § 16.1-253.4 when the person arrested and taken into custody is brought before the magistrate, except if the person arrested is a minor, a petition for an emergency protective order shall not be required. Regardless of whether an arrest is made, if the officer has probable cause to believe that a danger of acts of family abuse exists, the law-enforcement officer shall seek an emergency protective order under § 16.1-253.4, except if the suspected abuser is a minor, a petition for an emergency protective order shall not be required.
  6. A law-enforcement officer investigating any complaint of family abuse, including but not limited to assault and battery against a family or household member shall, upon request, transport, or arrange for the transportation of an abused person to a hospital or safe shelter, or to appear before a magistrate. Any local law-enforcement agency may adopt a policy requiring an officer to transport or arrange for transportation of an abused person as provided in this subsection.
  7. The definition of "family or household member" in § 16.1-228 applies to this section.
  8. As used in this section, "law-enforcement officer" means (i) any full-time or part-time employee of a police department or sheriff's office which is part of or administered by the Commonwealth or any political subdivision thereof, and any campus police officer appointed under Article 3  (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1, and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of this Commonwealth; (ii) any member of an auxiliary police force established pursuant to § 15.2-1731 ; and (iii) any special conservator of the peace who meets the certification requirements for a law-enforcement officer as set forth in § 15.2-1706 . Part-time employees are compensated officers who are not full-time employees as defined by the employing police department or sheriff's office. (1991, c. 715; 1992, c. 886; 1995, cc. 413, 433; 1996, c. 866; 1997, c. 603; 1998, c. 569; 1999, cc. 697, 721, 807; 2002, cc. 810, 818; 2004, c. 1016; 2008, cc. 551, 691; 2011, cc. 445, 480; 2012, cc. 776, 827; 2014, cc. 779, 797.)

Cross references. - As to arrest policies and procedures in domestic violence and family abuse cases, see § 9.1-1300 .

Editor's note. - At the direction of the Virginia Code Commission, "Article 3 ( § 23.1-809 et seq.) of Chapter 8 of Title 23.1" was substituted for "Chapter 17 ( § 23-232 et seq.) of Title 23" in subsection H to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

The 1999 amendments. - The 1999 amendments by cc. 697 and 721, are identical, and rewrote subsection F, which formerly read: "As used in this section, "family or household member" means (i) the person's spouse, whether or not he or she resides in the same home with the person; (ii) the person's former spouse, whether or not he or she resides in the same home with the person; (iii) the person's parents, stepparents, children, stepchildren, brothers and sisters, grandparents and grandchildren who reside in the same home with the person; (iv) the person's mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the person; (v) any person who has a child in common with the defendant, whether or not the person and that person have been married or have resided together at any time; or (vi) any individual who cohabits or who, within the previous twelve months, cohabited with the person, and any children of either of them then residing in the same home with the defendant."

The 1999 amendment by c. 807, in subsection D, inserted "except if the person arrested is a minor, a petition for an emergency protective order shall not be required" in the first sentence, and added "except if the suspected abuser is a minor, a petition for an emergency protective order shall not be required" in the second sentence.

The 2002 amendments. - The 2002 amendments by cc. 810 and 818 are identical, and rewrote subsection C; and substituted "member shall" for "member may" in the first sentence in subsection E.

The 2004 amendments. - The 2004 amendment by c. 1016, in subsection B, substituted "predominant" for "primary" in the first sentence and added the last sentence.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and deleted one of the section symbols preceding "18.2-87.2" in subsection A; and substituted "a hospital or safe shelter, or to appear before a magistrate" for "a hospital, safe shelter, or magistrate" in subsection E.

The 2011 amendments. - The 2011 amendments by cc. 245 and 480 are identical, and added present subsection C and redesignated former subsections C through G as subsections D through H; in subsection D, inserted "or the person protected by an order issued pursuant to § 19.2-152.8 , 19.2-152.9 , or 19.2-152.10 " and "or person protected by the order" in the second sentence, and inserted "or person protected by the order" two times in the last sentence; and inserted "for a violation of § 18.2-57.2 ," in the first sentence of subsection E.

The 2012 amendments. - The 2012 amendment by c. 776 substituted "with the powers of arrest under subsection A of § 19.2-81 " for "as defined in § 19.2-81 " and inserted "and any campus police officers appointed under Chapter 17 ( § 23-232 et seq.) of Title 23" in subsection H.

The 2012 amendment by c. 827, effective April 18, 2012, deleted "subsection B of" preceding " § 15.2-1731 " at the end of H (ii).

The 2014 amendments. - The 2014 amendments by cc. 779 and 797 are identical, and deleted "under subsection A of § 19.2-81 " following "powers of arrest" in subsection A; and in subsection H inserted "and (iii) any special conservator of the peace who meets the certification requirements for a law-enforcement officer as set forth in § 15.2-1706 " and made stylistic changes.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

Research References. - Virginia Forms (Matthew Bender). No. 5-155. Petition for Protective Order--Family Abuse, et seq.; No. 9-203. Emergency Protective Order--Family Abuse; No. 9-208. Protective Order--Family Abuse (District Court).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Husband and Wife, § 87.

CASE NOTES

Applicability. - Virginia statutory law provided support for officers' actions when they entered a bathroom in plaintiff's home because the officers' actions were justified by the exigent circumstances in responding to a domestic situation where there may have been a gun in the residence. Trull v. Smolka,, 2011 U.S. App. LEXIS 3404 (4th Cir. Feb. 18, 2011), cert. denied, 2011 U.S. LEXIS 6760, 132 S. Ct. 106, 181 L. Ed. 2d 33 (U.S. 2011).

Probable cause. - Where an officer arrested an arrestee after questioning the arrestee's daughter about alleged domestic violence, summary judgment was inappropriate as to the false arrest claim because (1) the application of de minimus force by a parent did not automatically create probable cause for arrest under Virginia law, and (2) the arrestee pled a plausible claim that the officer lacked probable cause to arrest the arrestee. Pleasants v. Town of Louisa,, 2013 U.S. App. LEXIS 9267 (4th Cir. May 7, 2013).

OPINIONS OF THE ATTORNEY GENERAL

Attorney General declined to render opinion on matter delegated to Department of Criminal Justice Services. - The Attorney General declined to render an opinion on what constitutes "special circumstances which would dictate a course of action other than an arrest" under subsection B as the Department of Criminal Justice Services was the appropriate agency to make such a determination. See opinion of Attorney General to The Honorable Matthew J. Britton, Commonwealth's Attorney for King George County, 01-001 (6/27/01).

§ 19.2-81.4.

Repealed by Acts 2008, cc. 600 and 771, cl. 2.

Cross references. - For current provisions as to arrest policies and procedures in domestic violence and family abuse cases, see § 9.1-1300 .

§ 19.2-81.5. Cooperation with a law-enforcement officer.

Upon receipt of a request and documentation of an indictment or issuance of a warrant from a law-enforcement agency, any public agency within the Commonwealth may disclose to the requesting law-enforcement agency from agency records, to the extent permitted by federal law, the address of an individual who has been indicted or for whom a warrant for arrest for a crime punishable by incarceration has been issued.

(1998, c. 436.)

§ 19.2-81.6. Authority of law-enforcement officers to arrest illegal aliens.

All law-enforcement officers enumerated in § 19.2-81 shall have the authority to enforce immigration laws of the United States, pursuant to the provisions of this section. Any law-enforcement officer enumerated in § 19.2-81 may, in the course of acting upon reasonable suspicion that an individual has committed or is committing a crime, arrest the individual without a warrant upon receiving confirmation from the Bureau of Immigration and Customs Enforcement of the United States Department of Homeland Security that the individual (i) is an alien illegally present in the United States, and (ii) has previously been convicted of a felony in the United States and deported or left the United States after such conviction. Upon receiving such confirmation, the officer shall take the individual forthwith before a magistrate or other issuing authority and proceed pursuant to § 19.2-82 .

(2004, cc. 360, 412.)

OPINIONS OF THE ATTORNEY GENERAL

Virginia law-enforcement officers have authority to detain and arrest individuals who have committed violations of the laws of the United States and other states, and such authority extends to violations of federal criminal immigration law. It would not be advisable to enforce such violations outside of the scope of an agreement with federal authorities. See opinion of Attorney General to The Honorable Kenneth W. Stolle, Member, Senate of Virginia, and The Honorable David B. Albo, Member, House of Delegates, 07-086 (10/15/07).

Law-enforcement officers may inquire into immigration status. - Virginia law-enforcement officers, including conservation officers, may inquire into the immigration status of persons stopped or arrested; however, persons tasked with enforcing zoning laws lack the authority to investigate criminal violations of the law, including criminal violations of the immigration laws of the United States. See opinion of Attorney General to The Honorable Robert G. Marshall, Member, Virginia House of Delegates, 10-047, 2010 Va. AG LEXIS 37 (7/30/10).

Authority of state and local law-enforcement officers to arrest for immigration violations. - Prior Attorney General opinions concluding that state and local law-enforcement officers may not arrest individuals for civil violations of immigration law absent express federal authorization or direction remain valid. Virginia statutes do not preclude the implementation of agreements between the United States Attorney General and state or local law-enforcement agencies entered pursuant to 8 U.S.C. § 1357(g). See opinion of Attorney General to The Honorable Scott Surovell, Member of the Virginia Senate, and the Honorable Alfonso Lopez, Member of the Virginia House of Delegates, 16-045, 2019 Va. AG LEXIS 9 (4/12/19).

§ 19.2-82. Procedure upon arrest without warrant.

  1. A person arrested without a warrant shall be brought forthwith before a magistrate or other issuing authority having jurisdiction who shall proceed to examine the officer making the arrest under oath. If the magistrate or other issuing authority having jurisdiction has lawful probable cause upon which to believe that a criminal offense has been committed, and that the person arrested has committed such offense, he shall issue either a warrant under the provisions of § 19.2-72 or a summons under the provisions of § 19.2-73 . As used in this section the term "brought before a magistrate or other issuing authority having jurisdiction" shall include a personal appearance before such authority or any two-way electronic video and audio communication meeting the requirements of § 19.2-3.1 , in order that the accused and the arresting officer may simultaneously see and speak to such magistrate or authority. If electronic means are used, any documents filed may be transmitted in accordance with § 19.2-3.1 . If a warrant is issued the case shall thereafter be disposed of under the provisions of §§ 19.2-183 through 19.2-190 , if the issuing officer is a judge; under the provisions of §§ 19.2-119 through 19.2-134 , if the issuing officer is a magistrate or other issuing officer having jurisdiction. If such warrant or summons is not issued, the person so arrested shall be released.
  2. A warrant may be issued pursuant to this section, where the person has been arrested in accordance with § 19.2-81.6 , and the magistrate or other issuing authority examines the officer making the arrest under oath, and finds lawful probable cause to believe the arrested individual meets the conditions of clauses (i) and (ii) of § 19.2-81.6 . If such warrant is issued, it shall recite § 19.2-81.6 and the applicable violation of federal criminal law previously confirmed with Immigration and Customs Enforcement. Upon the person being taken into federal custody, such state warrant shall be dismissed. Any warrant issued under this subsection shall expire within 72 hours, or when the person is taken into federal custody, whichever occurs first. Recurrent applications for a warrant under this subsection shall not be permitted within a six-month period except where confirmation has been received from Immigration and Customs Enforcement that the arrested person will be taken into federal custody. (Code 1950, § 19.1-100.1; 1968, c. 639; 1975, c. 495; 1981, c. 382; 1983, c. 564; 1984, c. 766; 1991, c. 41; 2002, c. 310; 2004, cc. 360, 412; 2009, c. 669.)

The 2002 amendments. - The 2002 amendment by c. 310 deleted "however, this section shall not bar a judge of a district court from proceeding in accord with the provisions of § 16.1-129.1" at the end of the last sentence of the last paragraph.

The 2004 amendments. - The 2004 amendments by cc. 360 and 412 are identical, and inserted the A designation at the beginning of the first paragraph and added subsection B.

The 2009 amendments. - The 2009 amendment by c. 669, in subsection B, deleted "the Bureau" preceding "Immigration and Customs" in the second sentence and added "except where confirmation has been received from Immigration and Customs Enforcement that the arrested person will be taken into federal custody" in the last sentence.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, §§ 8, 12; 5B M.J. Criminal Procedure, §§ 13, 17, 19, 21; 19 M.J. Warrants, § 2.

CASE NOTES

Term "forthwith," as used in this section, is synonymous with standard used in § 19.2-80 , and the same remedies for a violation of § 19.2-80 should apply to a violation of this section. Slade v. Commonwealth, No. 0786-85 (Ct. of Appeals Feb. 4, 1987).

Failure promptly to present defendant as required by this section is a mere procedural violation where it involves no constitutional error. Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).

Delay in presentment violates constitution only if exculpatory evidence thereby lost. - While, under Virginia law, an arresting officer must take an accused before a judicial officer with reasonable promptness and without unreasonable delay, violation of this requirement reaches constitutional dimension only if it results in the defendant's loss of exculpatory evidence. Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).

And evidence need not be excluded unless loss of exculpatory evidence results. - A violation of the prompt presentment provision of this section does not require the exclusion of evidence unless the violation caused a loss of exculpatory evidence. Jumper v. Commonwealth, No. 0497-85 (Ct. of Appeals Oct. 10, 1986).

Failure to have accused appear before magistrate. - Where the officer who had arrested the defendant for driving while intoxicated had appeared before a magistrate and obtained a warrant for the defendant's arrest without the defendant being present, it was undeniable that the probable cause determination did not adhere to the procedure set forth in this section but this violation alone did not constitute reversible error where it did not infringe any constitutional right of the defendant. Jones v. Town of Marion, 28 Va. App. 791, 508 S.E.2d 921 (1999), aff'd, 259 Va. 7 , 524 S.E.2d 866 (2000).

Effect of delay in taking defendant before magistrate. - Where defendant was legally seized and constitutionally detained, delay in taking him before a magistrate did not mean that the probable cause to hold him for the crimes stated in the warrants somehow evaporated, so as to require exclusion of the evidence developed during his detention. Horne v. Commonwealth, 230 Va. 512 , 339 S.E.2d 186 (1986).

In the Commonwealth, not every violation of the requirement that a suspect be taken before a magistrate without unnecessary delay results in the exclusion of evidence. Horne v. Commonwealth, 230 Va. 512 , 339 S.E.2d 186 (1986).

Confessions held not excludable despite unreasonable delay. - Assuming, without deciding, that the arresting officers failed to present defendant to the magistrate before an unreasonable period of time had elapsed, thereby violating this section, this violation does not result in exclusion of the confession obtained from him in the interim interrogation. Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).

Warrant issued after arrest irrelevant in false arrest action. - In an action under 42 U.S.C. § 1983 alleging that defendant officer denied plaintiff due process by subjecting him to a false arrest for being drunk in public, the arrest warrant issued by the magistrate subsequent to the arrest did not establish as a matter of law that probable cause existed for the defendant to arrest the plaintiff. Robinson v. Goff, 517 F. Supp. 350 (W.D. Va. 1981).

When a defendant officer in a civil action relies upon probable cause as a defense to a charge of illegal arrest under 42 U.S.C. § 1983, he must establish that probable cause existed at the time the arrest was made. A warrant, subsequently issued by a magistrate, is irrelevant to the determination of whether the officer arresting an individual without a warrant had probable cause to arrest. Robinson v. Goff, 517 F. Supp. 350 (W.D. Va. 1981).

Search incident to illegal arrest. - Warrantless arrest for driving with a suspended license was reasonable under the Fourth Amendment, even if it was not permitted under § 19.2-74 . Therefore, the crack cocaine and cash that the arrestee was carrying and that was discovered in a search incidental to the arrest did not need to be suppressed. Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598, 170 L. Ed. 2d 559, 2008 U.S. LEXIS 3674 (2008).

CIRCUIT COURT OPINIONS

Delay. - Even assuming that the delay in taking defendant to the magistrate was unnecessary, there was only a procedural violation that did not amount to a constitutional error and, suppression of evidence and statements was not warranted as a result. Commonwealth v. Arava, 56 Va. Cir. 240, 2001 Va. Cir. LEXIS 133 (Arlington County 2001).

Five hour and 47 minute delay in presenting defendant to a magistrate did not constitute unnecessary delay proscribed by this section because the bulk of the delay was due to defendant's medical treatment by emergency personnel at the scene and at a hospital, caused by defendant's strange and erratic behavior. Commonwealth v. Long, 88 Va. Cir. 335, 2014 Va. Cir. LEXIS 24 (Roanoke County June 18, 2014).

No cautionary instruction necessary. - Code does not require the magistrate to give any particularly cautionary instruction to defendant during the course of a hearing under the statute. Commonwealth v. McDowell, 101 Va. Cir. 125, 2019 Va. Cir. LEXIS 14 (Norfolk Jan. 29, 2019).

Motion to supress denied. - It was proper for the detective to summarize the evidence of probable cause to the magistrate with defendant present, and although not required by statute, the magistrate reminded defendant that anything he said in response could be used against him, and thus his statement was not obtained in violation of his rights and his motion to suppress was denied. Commonwealth v. McDowell, 101 Va. Cir. 125, 2019 Va. Cir. LEXIS 14 (Norfolk Jan. 29, 2019).

OPINIONS OF THE ATTORNEY GENERAL

Virginia law-enforcement officers have authority to detain and arrest individuals who have committed violations of the laws of the United States and other states, and such authority extends to violations of federal criminal immigration law. It would not be advisable to enforce such violations outside of the scope of an agreement with federal authorities. See opinion of Attorney General to The Honorable Kenneth W. Stolle, Member, Senate of Virginia, and The Honorable David B. Albo, Member, House of Delegates, 07-086 (10/15/07).

Authority of state and local law-enforcement officers to arrest for immigration violations. - Prior Attorney General opinions concluding that state and local law-enforcement officers may not arrest individuals for civil violations of immigration law absent express federal authorization or direction remain valid. Virginia statutes do not preclude the implementation of agreements between the United States Attorney General and state or local law-enforcement agencies entered pursuant to 8 U.S.C. § 1357(g). See opinion of Attorney General to The Honorable Scott Surovell, Member of the Virginia Senate, and the Honorable Alfonso Lopez, Member of the Virginia House of Delegates, 16-045, 2019 Va. AG LEXIS 9 (4/12/19).

§ 19.2-82.1. Giving false identity to law-enforcement officer; penalty.

Any person who falsely identifies himself to a law-enforcement officer with the intent to deceive the law-enforcement officer as to his real identity after having been lawfully detained and after being requested to identify himself by a law-enforcement officer, is guilty of a Class 1 misdemeanor.

(2006, c. 387.)

Cross references. - As to punishment for Class 1 misdemeanor, see § 18.2-11 .

Law review. - For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

CASE NOTES

Double jeopardy. - Defendant was properly convicted of felony identity theft, second offense and falsely identifying himself to a law-enforcement officer because while the statutes were similar in nature, they did not violate defendant's double jeopardy rights inasmuch as one required the use of "identification documents or identifying information," such as name and date of birth, with the intent "to avoid summons, arrest, prosecution, or to impede a criminal investigation" and the other required only the intent to deceive a law-enforcement officer as to one's "real identity" after having been detained and asked to identify oneself. Garcia v. Commonwealth, No. 0831-17-2, 2018 Va. App. LEXIS 162 (June 19, 2018).

§ 19.2-83.

Repealed by Acts 1994, c. 273.

§ 19.2-83.1. Report of arrest of school employees and adult students for certain offenses.

  1. Every state official or agency and every sheriff, police officer, or other local law-enforcement officer or conservator of the peace having the power to arrest for a felony, upon arresting a person who is known or discovered by the arresting official to be a full-time, part-time, permanent, or temporary teacher or other employee in any public school division in this Commonwealth for a felony or a Class 1 misdemeanor or an equivalent offense in another state shall file a report of such arrest with the division superintendent of the employing division as soon as practicable. The contents of the report required pursuant to this section shall be utilized by the local school division solely to implement the provisions of subsection B of § 22.1-296.2 and § 22.1-315.
  2. Every state official or agency and every sheriff, police officer, or other local law-enforcement officer or conservator of the peace having the power to arrest for a felony, shall file a report, as soon as practicable, with the division superintendent of the school division in which the student is enrolled upon arresting a person who is known or discovered by the arresting official to be a student age 18 or older in any public school division in this Commonwealth for:
    1. A firearm offense pursuant to Article 4 (§ 18.2-279 et seq.), 5 (§ 18.2-288 et seq.), 6 (§ 18.2-299 et seq.), 6.1 (§ 18.2-307.1 et seq.), or 7 (§ 18.2-308.1 et seq.) of Chapter 7 of Title 18.2;
    2. Homicide, pursuant to Article 1 (§ 18.2-30 et seq.) of Chapter 4 of Title 18.2;
    3. Felonious assault and bodily wounding, pursuant to Article 4 (§ 18.2-51 et seq.) of Chapter 4 of Title 18.2;
    4. Criminal sexual assault, pursuant to Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2;
    5. Manufacture, sale, gift, distribution or possession of Schedule I or II controlled substances, pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2;
    6. Manufacture, sale or distribution of marijuana pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2;
    7. Arson and related crimes, pursuant to Article 1 (§ 18.2-77 et seq.) of Chapter 5 of Title 18.2;
    8. Burglary and related offenses, pursuant to §§ 18.2-89 through 18.2-93 ;
    9. Robbery pursuant to § 18.2-58 ;
    10. Prohibited criminal street gang activity pursuant to § 18.2-46.2 ;
    11. Recruitment of juveniles for criminal street gang pursuant to § 18.2-46.3 ;
    12. An act of violence by a mob pursuant to § 18.2-42.1 ; or
    13. Abduction of any person pursuant to § 18.2-47 or 18.2-48 . (1991, c. 2; 1996, cc. 958, 960; 1997, c. 721; 2001, c. 591; 2004, c. 517; 2011, cc. 384, 410; 2013, c. 746; 2014, cc. 674, 719; 2018, c. 281.)

Editor's note. - Acts 2013, c. 746, cl. 2 provides: "That the provisions of this act are declaratory of existing law."

Acts 2014, cc. 674 and 719, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $66,663 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2001 amendments. - The 2001 amendment by c. 591 substituted "or a Class 1 misdemeanor" for "a misdemeanor involving (i) sexual assault as established in Article 7 ( § 18.2-61 et seq.) of Chapter 4 of Title 18.2, (ii) obscenity and related offenses as established in Article 5 ( § 18.2-372 et seq.) of Chapter 8 of Title 18.2, (iii) drugs as established in Article 1 ( § 18.2-247 et seq.) of Chapter 7 of Title 18.2, (iv) moral turpitude, or (v) the physical or sexual abuse or neglect of a child."

The 2004 amendments. - The 2004 amendment by c. 517 added the subsection A designation; in subsection A, substituted "as practicable" for "as reasonably practical" at the end of the first sentence, and "subsection B of § 22.1-296.2 and § 22.1-315" for " §§ 22.1-296.2 B and 22.1-315" at the end of the last sentence; and added subsection B.

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and, inserted "or synthetic cannabinoids" in subdivision B 6.

The 2013 amendments. - The 2013 amendment by c. 746 inserted "6.1 ( § 18.2-307.1 et seq.)," and substituted "18.2-308.1" for "18.2-308" in subdivision B 1.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "or synthetic cannabinoids" following "marijuana" in subdivision B 6.

The 2018 amendments. - The 2018 amendment by c. 281 added subdivisions B 12 and B 13 and made related changes.

Michie's Jurisprudence. - For related discussion, see 16 M.J. Schools, § 14.

§ 19.2-83.2. Jail officer to ascertain citizenship of inmate.

Whenever any person is taken into custody at any jail for a felony offense, the sheriff or other officer in charge of such facility shall inquire as to whether the person (i) was born in a country other than the United States and (ii) is a citizen of a country other than the United States. The sheriff or other officer in charge of such facility shall make an immigration alien query to the Law Enforcement Support Center of the U.S. Immigration and Customs Enforcement for any person taken into custody for a felony who (i) was born in a country other than the United States and (ii) is a citizen of a country other than the United States, or for whom the answer to clause (i) or (ii) is unknown. The sheriff or other officer in charge shall communicate the results of any immigration alien query to the Local Inmate Data System of the State Compensation Board. The State Compensation Board shall communicate, on a monthly basis, the results of any immigration alien query that results in a confirmation that the person is illegally present in the United States to the Central Criminal Records Exchange of the Department of State Police in a format approved by the Exchange. The information received by the Central Criminal Records Exchange concerning the person's immigration status shall be recorded in the person's criminal history record.

(2008, cc. 180, 415; 2020, cc. 995, 996.)

Editor's note. - Acts 2008, cc. 180 and 415, cl. 2 provides: "That the State Compensation Board shall maintain in the Local Inmate Data System, and the Department of Corrections shall maintain in its offender management system, a specific data field for the entry of the response received from the Law Enforcement Support Center of the United States Immigration and Customs Enforcement pursuant to the request made in accordance with § 19.2-83.2 or 53.1-218 of the Code of Virginia for information on an inmate's immigration status."

Acts 2008, cc. 180 and 415, cl. 3 provides: "That the Department of Corrections shall confirm the validity of the social security numbers given by inmates and omit from its database those social security numbers determined to be fictitious."

The 2020 amendments. - The 2020 amendments by cc. 995 and 996 are identical, and in the first sentence, inserted "for a felony offense"; in the second sentence, substituted "U.S. Immigration and Customs Enforcement for any person taken into custody for a felony" for "United States Immigration and Customs Enforcement for any person" and "to clause (i) or (ii) is unknown" for "to (i) or (ii) is unknown" and made stylistic changes.

Chapter 7.1. Law-Enforcement Officer Conduct During an Arrest or Detention.

Sec.

§ 19.2-83.3. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Deadly force" means any force that is likely or intended to cause serious bodily injury or death.

"Deadly weapon" means any object, other than a body part or stationary object, that in the manner of its actual, attempted, or threatened use is likely to cause serious bodily injury or death.

"Excessive force" means any force that is objectively unreasonable given the totality of the circumstances, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

"Kinetic impact munitions" includes impact rounds and baton rounds, such as rubber batons, bean bag rounds, foam baton rounds, and plastic, wax, wood, or rubber-coated projectiles.

"Neck restraint" means the use of any body part or object to attempt to control or disable a person by applying pressure against the neck, including the trachea or carotid artery, with the purpose, intent, or effect of controlling or restricting the person's movement or restricting the person's blood flow or breathing, including chokeholds, carotid restraints, and lateral vascular neck restraints.

(2020, Sp. Sess. I, cc. 25, 35, 37, 55.)

Editor's note. - Acts 2020 Sp. Sess. I, c. 37, cl. 2 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020 Sp. Sess. I, c. 55, cl. 2, effective March 1, 2021, provides: "That the Department of Criminal Justice Services shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment."

Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 19.2-83.4. Prohibited practices for law-enforcement officers during an arrest or detention.

  1. The use of a neck restraint by a law-enforcement officer is prohibited unless the use of a neck restraint is immediately necessary to protect the law-enforcement officer or another person from death or serious bodily injury.
  2. The willful discharge of a firearm by a law-enforcement officer into or at a moving vehicle is prohibited unless the discharge of a firearm is immediately necessary to protect the law-enforcement officer or another person from death or serious bodily injury.
  3. The use of kinetic impact munitions by a law-enforcement officer is prohibited unless the use of kinetic impact munitions is necessary to protect the law-enforcement officer or another person from bodily injury.

    (2020, Sp. Sess. I, cc. 35, 37, 55.)

Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 19.2-83.5. Use of deadly force by a law-enforcement officer during an arrest or detention.

  1. A law-enforcement officer shall not use deadly force against a person unless:
    1. The law-enforcement officer reasonably believes that deadly force is immediately necessary to protect the law-enforcement officer or another person, other than the subject of the use of deadly force, from the threat of serious bodily injury or death;
    2. If feasible, the law-enforcement officer has provided a warning to the subject of the deadly force that he will use deadly force;
    3. The law-enforcement officer's actions are reasonable, given the totality of the circumstances; and
    4. All other options have been exhausted or do not reasonably lend themselves to the circumstances.
  2. In determining if a law-enforcement officer's use of deadly force is proper, the following factors shall be considered:
    1. The reasonableness of the law-enforcement officer's belief and actions from the perspective of a reasonable law-enforcement officer on the scene at the time of the incident; and
    2. The totality of the circumstances, including (i) the amount of time available to the law-enforcement officer to make a decision; (ii) whether the subject of the use of deadly force (a) possessed or appeared to possess a deadly weapon and (b) refused to comply with the law-enforcement officer's lawful order to surrender an object believed to be a deadly weapon prior to the law-enforcement officer using deadly force; (iii) whether the law-enforcement officer engaged in de-escalation measures prior to the use of deadly force, including taking cover, waiting for backup, trying to calm the subject prior to the use of force, or using non-deadly force prior to the use of deadly force; (iv) whether any conduct by the law-enforcement officer prior to the use of deadly force intentionally increased the risk of a confrontation resulting in deadly force being used; and (v) the seriousness of the suspected crime.

      (2020, Sp. Sess. I, c. 37.)

Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 19.2-83.6. Failure of a law-enforcement officer to intervene in use of excessive force.

  1. Any law-enforcement officer who, while in the performance of his official duties, witnesses another law-enforcement officer engaging or attempting to engage in the use of excessive force against another person shall intervene, when such intervention is feasible, to end the use of excessive force or attempted use of excessive force, or to prevent the further use of excessive force. A law-enforcement officer shall also render aid, as circumstances reasonably permit, to any person injured as the result of the use of excessive force.
  2. Any law-enforcement officer who intervenes pursuant to subsection A or who witnesses another law-enforcement officer engaging or attempting to engage in the use of excessive force against another person shall report such intervention or use of excessive force in accordance with the law-enforcement officer's employing agency's policies and procedures for reporting misconduct committed by a law-enforcement officer. No employing agency shall retaliate, threaten to retaliate, or take or threaten to take any disciplinary action against a law-enforcement officer who intervenes pursuant to subsection A or makes a report pursuant to this subsection.

    (2020, Sp. Sess. I, cc. 25, 37.)

The number of this section was assigned by Acts 2020, Sp. Sess. 1, c. 37, and the Virginia Code Commission; the number in Acts 2020, c. 25 was § 19.2-83.4 .

Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 19.2-83.7. Penalties for violations of this chapter.

In addition to any other penalty authorized by law, any law-enforcement officer who knowingly violates the provisions of this chapter shall be subject to disciplinary action, including dismissal, demotion, suspension, or transfer of the law-enforcement officer or decertification as provided in subsection D of § 15.2-1707 .

(2020, Sp. Sess. I, cc. 25, 35, 37, 55.)

The number of this section was assigned by Acts 2020, Sp. Sess. 1, c. 37, and the Virginia Code Commission; the number in Acts 2020, cc. 25, 35, and 55 was § 19.2-83.5 .

Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.

Chapter 8. Extradition of Criminals.

Fugitives From Foreign Nations.

Uniform Criminal Extradition Act.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Extradition, § 2.

Article 1. Fugitives From Foreign Nations.

§ 19.2-84. Governor to surrender on requisition of President.

The Governor shall whenever required by the executive authority of the United States, pursuant to the Constitution and laws thereof, deliver over to justice any person found within the Commonwealth, who is charged with having committed any crime without the jurisdiction of the United States.

(Code 1950, § 19.1-47; 1960, c. 366; 1975, c. 495.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?", see 48 Wash. & Lee L. Rev. 1477 (1991).

Article 2. Uniform Criminal Extradition Act.

Research References. - Virginia Forms (Matthew Bender). No. 9-415. Warrant of Arrest for Extradition, et seq.

§ 19.2-85. Definitions.

When appearing in this chapter:

  1. The term "Governor" includes any person performing the functions of Governor by authority of the law of this Commonwealth;
  2. The term "executive authority" includes the Governor, and any person performing the functions of Governor in a state other than this Commonwealth;
  3. The term "State," referring to a state other than this Commonwealth, includes any other state or territory, organized or unorganized, of the United States of America, and the District of Columbia; and
  4. The term "judge" means a judge of a court of record having criminal jurisdiction.

    (Code 1950, § 19.1-49; 1960, c. 366; 1975, c. 495.)

Uniform law cross references. - For other signatory state provisions, see:

Alaska: Alaska Stat. §§ 12.70.010 to 12.70.290.

Arizona: A.R.S. §§ 13-3841 to 13-3870.01.

Arkansas: A.C.A. §§ 16-94-201 to 16-94-231.

California: Cal. Pen. Code, § 1548 et seq.

Colorado: C.R.S. §§ 16-19-101 through 16-19-134.

Connecticut: Conn. Gen. Stat. §§ 54-157 to 54-185.

Delaware: 11 Del. Ch. § 2501 et seq.

Florida: Fla. Stat. § 941.01 et seq.

Georgia: O.C.G.A. §§ 17-13-20 to 17-13-49.

Hawaii: H.R.S. §§ 832-1 to 832-27.

Idaho: Idaho Code § 19-4501 et seq.

Illinois: 725 I.L.C.S. 225/1 to 225/32.

Indiana: Burns Ind. Code Ann., IC 35-33-10-3.

Iowa: Iowa Code §§ 820.1 to 820.29.

Kansas: K.S.A. §§ 22-2701 to 22-2730.

Kentucky: K.R.S. §§ 440.150 to 440.420.

Maine: 15 M.R.S. §§ 201 to 229.

Maryland: Md. Criminal Procedure Code Ann. §§ 9-101 through 9-128.

Michigan: M.C.L.S. §§ 780.1 to 780.31.

Minnesota: Minn. Stat. §§ 629.01 to 629.29.

Missouri: §§ 548.011 through 548.300 R.S. Mo.

Montana: Mont. Code Anno. §§ 46-30-101 to 46-30-413.

Nebraska: R.R.S. Neb. §§ 29-729 to 29-758.

Nevada: N.R.S. §§ 179.177 to 179.235.

New Hampshire: R.S.A. §§ 612:1 to 612:30.

New Jersey: N.J. Stat. § 2A-160-1 et seq.

New Mexico: N.M. Stat. Ann. §§ 31-4-1 to 31-4-30.

New York: NY CLS CPL §§ 570.02 to 570.66.

North Carolina: N.C. Gen. Stat. §§ 15A-721 to 15A-751.

Ohio: ORC Ann. 2963.01 et seq.

Oklahoma: 22 Okl. St. §§ 1141.1 to 1141.30.

Oregon: O.R.S. §§ 133.743 to 133.857.

Pennsylvania: 42 Pa. C.S. § 9121 et seq.

Puerto Rico: 34 L.P.R.A. § 1881 et seq.

Rhode Island: R.I. Gen. Laws § 12-9-1 et seq.

South Dakota: S.D. Codified Laws §§ 23-24-1 through 23-24-39.

Tennessee: Tenn. Code Ann. § 40-9-101 et seq.

Texas: Tex. Code Crim. Proc., art. 51.13.

Utah: Utah Code Ann. § 77-30-1 et seq.

Vermont: 13 V.S.A. §§ 4941 to 4969.

Virgin Islands: 5 V.I.C. §§ 3801 through 3829.

Washington: Rev. Code Wash. §§ 10.88.200 to 10.88.930.

West Virginia: W. Va. Code § 5-1-7 et seq.

Wisconsin: Wis. Stat. § 976.03.

Wyoming: Wyo. Stat. §§ 7-3-201 through 7-3-227.

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?", see 48 Wash. & Lee L. Rev. 1477 (1991).

CASE NOTES

Matters of extradition are constitutionally controlled by U.S. Const., Art. IV, § 2, cl. 2. They are statutorily controlled by the Uniform Criminal Extradition Act (this article) and the Interstate Agreement on Detainers ( § 53.1-210 et seq.). Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).

Governor of asylum state must make findings and conclusions. - While the Constitution mandates that a fugitive in one state "shall" be returned to the demanding state, the Governor of the asylum state must make factual findings and legal conclusions following specific inquiries prior to granting extradition. First, he must determine whether the accused has been charged with a crime under the laws of the demanding state, and second, whether the accused was within the demanding state at the time of the offense. The former is generally a question of law but it may be a question of fact. The latter is generally a question of fact. The Governor's factual determination may not be set aside unless it appears conclusively that the accused could not be a fugitive. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).

Governor's determination of probable cause precludes further judicial inquiry in asylum state. - Once the Governor of the asylum state has acted on a requisition for extradition based on the demanding state's judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).

Habeas court in asylum state cannot discharge person arrested on merely contradictory evidence. - A habeas court in an asylum state cannot discharge one who has been arrested under a governor's warrant where there is merely contradictory evidence on the subject of presence in or absence from the State, as habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of the accused. Only when it is conclusively proved that no question can be made that the person was not within the demanding state when the crime is said to have been committed is he to be released. Manning v. Commonwealth, 1 Va. App. 60, 334 S.E.2d 151 (1985).

Only function of an Attorney General, in extradition proceedings, is to assist the Governor in determining whether extradition ought to be granted. In this sense, he is entitled to absolute immunity because of the quasi-judicial function he is performing. If it be deemed that his duty in this connection be that of an advocate, he is entitled to the absolute immunity accorded public prosecutors. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).

Immunity of Governor and Attorney General where statutory duty breached. - If the Governor and Attorney General, in acting on an extradition request, breach some statutory duty or are derelict in their statutory duties, they are, nevertheless, entitled to absolute immunity from damages. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).

Governor immune since he acts in judicial capacity. - When the Governor of an asylum state acts on an extradition request he performs a judicial function. Accordingly, he would be entitled to absolute immunity in carrying out this function. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).

Judicial immunity of magistrate ordering temporary confinement of extradited prisoner. - Even if, as prison inmate contended, state magistrates have no authority under the Virginia Uniform Criminal Extradition Act (UCEA) (this article) to order temporary confinement of extradited prisoners, judicial immunity would still be appropriate. The very applicability of the UCEA with regard to the inmate's transfer represented an unsettled and disputed point of law. In contrast, the general authority of magistrates to commit persons accused of crimes to jail is well established in Virginia by statute. Pressly v. Gregory, 831 F.2d 514 (4th Cir. 1987).

§ 19.2-86. Fugitives from justice; duty of Governor.

Subject to the provisions of this chapter, the provisions of the Constitution of the United States controlling, and any and all acts of Congress enacted in pursuance thereof, the Governor shall have arrested and delivered up to the executive authority of any other of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this Commonwealth.

(Code 1950, § 19.1-50; 1960, c. 366; 1975, c. 495.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?", see 48 Wash. & Lee L. Rev. 1477 (1991).

CASE NOTES

A charge of crime is not merged in the conviction and sentence, for the purpose of extradition, but the criminal is still charged with the crime until completion of the sentence imposed upon him. United States ex rel. Faris v. McClain, 42 F. Supp. 429 (M.D. Pa. 1942).

Inapplicable to non-fleers. - Since this section addresses the extradition only of persons who have "fled from justice," and defendant was clearly not such a person, defendant's contentions with respect to the Uniform Criminal Extradition Act were without merit. Stewart v. Bailey, 7 F.3d 384 (4th Cir. 1993).

§ 19.2-87. Form of demand.

No demand for the extradition of a person charged with, or convicted of, crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under § 19.2-91 , that the accused was present in the demanding state at the time of the commission of the alleged crime and that thereafter he fled from such state, and accompanied: (1) by a copy of an indictment found, (2) by a copy or an information supported by an affidavit filed in the state having jurisdiction of the crime, (3) by a copy of an affidavit made before a magistrate in such state together with a copy of any warrant which was issued thereupon, or (4) by a copy of a judgment of conviction or of a sentence imposed in execution thereof together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of the indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.

(Code 1950, § 19.1-51; 1960, c. 366; 1975, c. 495.)

CIRCUIT COURT OPINIONS

Request for extradition and affidavit incorrect. - Because the Florida extradition warrant signed by the Governor of Florida and its underlying request for extradition and probable cause affidavit were incorrect on their face, and because the office of the Secretary of the Commonwealth failed to provide a resident 10 days in which to respond to Florida's extradition warrant, the resident was entitled to have the petition for writ of habeas corpus be granted. Cole v. Commonwealth, 84 Va. Cir. 367, 2012 Va. Cir. LEXIS 38 (Fairfax County Mar. 14, 2012).

Petition for writ of habeas corpus. - Because it was clear that the Governor of California made the extradition request for an inmate in Virginia, albeit through a duly authorized agent, the circuit court in Virginia had to give full faith and credit to the manner in which the request was communicated to the Governor of Virginia, and the requesting authorities accurately named and identified the fugitive sought in an indictment. The court ordered the suspension of the execution of its order and ordered the inmate to remain in Virginia pending resolution of an appeal. Soriano v. Commonwealth, 98 Va. Cir. 243, 2018 Va. Cir. LEXIS 41 (Fairfax County Mar. 19, 2018).

§ 19.2-88. Governor may investigate case.

When a demand shall be made upon the Governor by the executive authority of another state for the surrender of a person so charged with, or convicted of, crime, the Governor may call upon the Attorney General or any other officer of this Commonwealth to investigate or assist in investigating the demand and to report to him the situation and circumstances of the person so demanded and whether he ought to be surrendered.

(Code 1950, § 19.1-52; 1960, c. 366; 1975, c. 495.)

CASE NOTES

Only function of an Attorney General, in extradition proceedings, is to assist the Governor in determining whether extradition ought to be granted. In this sense, he is entitled to absolute immunity because of the quasi-judicial function he is performing. If it be deemed that his duty in this connection be that of an advocate, he is entitled to the absolute immunity accorded public prosecutors. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).

Immunity of Governor and Attorney General where statutory duty breached. - If the Governor and Attorney General, in acting on an extradition request, breach some statutory duty or are derelict in their statutory duties, they are, nevertheless, entitled to absolute immunity from damages. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).

§ 19.2-89. Extradition of persons imprisoned or awaiting trial in another state.

When it is desired to have returned to this Commonwealth a person charged in this Commonwealth with a crime and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the Governor may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this Commonwealth as soon as the prosecution in this Commonwealth is terminated.

(Code 1950, § 19.1-53; 1960, c. 366; 1975, c. 495.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).

§ 19.2-90. Extradition of persons who have left demanding state involuntarily.

The Governor may also surrender on demand of the executive authority of any other state any person in this Commonwealth who is charged in the manner provided in §§ 19.2-109 to 19.2-111 , with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state involuntarily.

(Code 1950, § 19.1-54; 1960, c. 366; 1975, c. 495.)

§ 19.2-91. Extradition of persons not in demanding state at time of commission of crime.

The Governor may also surrender, on demand of the executive authority of any other state, any person in this Commonwealth charged in such other state in the manner provided in § 19.2-87 with committing an act in this Commonwealth, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand. The provisions of this chapter not otherwise inconsistent shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.

(Code 1950, § 19.1-55; 1960, c. 366; 1975, c. 495.)

CIRCUIT COURT OPINIONS

Request for extradition and affidavit incorrect. - Because the Florida extradition warrant signed by the Governor of Florida and its underlying request for extradition and probable cause affidavit were incorrect on their face, and because the office of the Secretary of the Commonwealth failed to provide a resident 10 days in which to respond to Florida's extradition warrant, the resident was entitled to have the petition for writ of habeas corpus be granted. Cole v. Commonwealth, 84 Va. Cir. 367, 2012 Va. Cir. LEXIS 38 (Fairfax County Mar. 14, 2012).

§ 19.2-92. Issuance of Governor's warrant of arrest; its recitals.

If the Governor decides that a demand for the extradition of a person, charged with, or convicted of, crime in another state should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to the sheriff or sergeant of any county or city or to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance. Any electronically transmitted facsimile of a Governor's warrant shall be treated as an original document, provided the original is received within four working days of receipt of the facsimile.

(Code 1950, § 19.1-56; 1960, c. 366; 1975, c. 495; 2001, cc. 214, 226; 2011, c. 59.)

The 2001 amendments. - The 2001 amendment by cc. 214 and 226 are identical, and added the last sentence.

The 2011 amendments. - The 2011 amendment by c. 59 inserted "working" in the last sentence.

§ 19.2-93. Manner and place of execution of warrant.

Such warrant shall authorize the officer or other person to whom it is directed to arrest the accused at any time and at any place where he may be found within the Commonwealth and to command the aid of all peace officers or other persons in the execution of the warrant and to deliver the accused, subject to the provisions of this chapter, to the duly authorized agent of the demanding state.

(Code 1950, § 19.1-57; 1960, c. 366; 1975, c. 495.)

§ 19.2-94. Assistance to arresting officer.

Every officer or other person empowered to make the arrest, as provided in the preceding section, shall have the same authority, in arresting the accused, to command assistance therein as the sheriffs and sergeants of the several counties and cities of this Commonwealth have by law in the execution of any criminal process directed to them, with like penalties against those who refuse to render their assistance.

(Code 1950, § 19.1-58; 1960, c. 366; 1975, c. 495.)

§ 19.2-95. Rights of accused persons; application for writ of habeas corpus.

No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a circuit or general district court in the Commonwealth, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof and of the time and place of hearing thereon shall be given to the attorney for the Commonwealth of the county or city in which the arrest is made and in which the accused is in custody, and to the agent of the demanding state.

(Code 1950, § 19.1-59; 1960, c. 366; 1975, c. 495; 2005, c. 839.)

The 2005 amendments. - The 2005 amendment by c. 839, effective October 1, 2005, substituted "the Commonwealth" for "this Commonwealth"; and deleted "or trial justice" preceding "shall fix."

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 33 Writs and Injunctions. § 33.01 Writs. Friend.

Michie's Jurisprudence. - For related discussion, see 9A M.J. Habeas Corpus, § 16.

CASE NOTES

A petitioner is required to exhaust his state remedies as a prerequisite to seeking habeas corpus in a federal court to avoid extradition. Tickle v. Summers, 270 F.2d 848 (4th Cir. 1959).

CIRCUIT COURT OPINIONS

Petition for writ of habeas corpus. - Because it was clear that the Governor of California made the extradition request for an inmate in Virginia, albeit through a duly authorized agent, the circuit court in Virginia had to give full faith and credit to the manner in which the request was communicated to the Governor of Virginia, and the requesting authorities accurately named and identified the fugitive sought in an indictment. The court ordered the suspension of the execution of its order and ordered the inmate to remain in Virginia pending resolution of an appeal. Soriano v. Commonwealth, 98 Va. Cir. 243, 2018 Va. Cir. LEXIS 41 (Fairfax County Mar. 19, 2018).

Mental competency. - In an extradition proceeding where the mental competency of the detainee is placed in issue, due process compels the court to first determine whether the detainee is sufficiently irrational to compel a mental health evaluation; if such threshold is met, the detainee is entitled to a limited mental health evaluation, to determine whether he or she can assist counsel with the narrow inquiry of whether he or she is the person sought by the demanding jurisdiction and was present at the offense. Solomon v. Kincaid, 105 Va. Cir. 166, 2020 Va. Cir. LEXIS 68 (Fairfax County Apr. 30, 2020).

If the detainee possesses requisite capacity to assist his or her counsel, then the extradition process may proceed; if he or she lacks such cognition, he or she is instead entitled to be sufficiently restored to a level commensurate with the degree of assistance required. Solomon v. Kincaid, 105 Va. Cir. 166, 2020 Va. Cir. LEXIS 68 (Fairfax County Apr. 30, 2020).

Petitioner was entitled to a mental health evaluation limited to whether he could assist counsel to determine whether he was the person wanted by New Jersey and was present in that state at the time of the alleged offense because he exhibited sufficient irrationality; petitioner displayed consistent indicia of irrational thought and behavior sufficient to compel the circuit court to direct a limited competency evaluation. Solomon v. Kincaid, 105 Va. Cir. 166, 2020 Va. Cir. LEXIS 68 (Fairfax County Apr. 30, 2020).

"Middle of the road approach" fulfilled the constitutional right to due process in extradition proceedings applicable in Virginia, affording petitioner, having met an initial threshold test of irrationality, a right to a limited evaluation to determine whether he was sufficiently competent to consult meaningfully with his counsel with regard to his identity and presence in New Jersey at the time of the alleged offense. Solomon v. Kincaid, 105 Va. Cir. 166, 2020 Va. Cir. LEXIS 68 (Fairfax County Apr. 30, 2020).

Petitioner was entitled to a mental health evaluation, and if he was shown to possess limited required competence, he could be extradited based on the unrebutted evidence already adduced that he is the person sought; if, conversely, petitioner was found to lack the necessary fitness of mind, he could be ordered restored to the limited mental competence called for in the context of extradition proceedings, and the circuit court may revisit the extradition evidence anew at a future hearing. Solomon v. Kincaid, 105 Va. Cir. 166, 2020 Va. Cir. LEXIS 68 (Fairfax County Apr. 30, 2020).

§ 19.2-96. Penalty for noncompliance with preceding section.

Any officer who shall deliver to the agent for extradition of the demanding state a person in his custody under the Governor's warrant in willful disobedience to the last preceding section shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 19.1-60; 1960, c. 366; 1975, c. 495.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 19.2-97. Confinement in jail when necessary.

The officer or persons executing the Governor's warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered, may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail shall receive and safely keep the prisoner until the officer or person having charge of him is ready to proceed on his route, such officer or person being chargeable with the expense of keeping.

(Code 1950, § 19.1-61; 1960, c. 366; 1975, c. 495.)

§ 19.2-98. Same; for prisoners being taken through Commonwealth.

The officer or agent of a demanding state to whom a prisoner may have been delivered following extradition proceedings in another state or to whom a prisoner may have been delivered after waiving extradition in such other state, and who is passing through this Commonwealth with such prisoner for the purpose of returning immediately such prisoner to the demanding state may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail shall receive and safely keep the prisoner until the officer or agent having charge of him is ready to proceed on his route, such officer or agent, however, being chargeable with the expense of keeping, provided, however, that such officer or agent shall deliver to the jailer the warrant or legal order authorizing custody of the prisoner. Such prisoner shall not be entitled to demand a new requisition while in this Commonwealth.

(Code 1950, § 19.1-62; 1960, c. 366; 1975, c. 495.)

§ 19.2-99. Arrest prior to requisition.

Whenever: (1) any person within this Commonwealth shall be charged on the oath of any credible person before any judge, magistrate or other officer authorized to issue criminal warrants in this Commonwealth with the commission of any crime in any other state and, except in cases arising under § 19.2-91 , (a) with having fled from justice, (b) with having been convicted of a crime in that state and of having escaped from confinement, or (c) of having broken the terms of his bail, probation, or parole, or (2) complaint shall have been made before any such judge, magistrate or other officer in this Commonwealth setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime, and, except in cases arising under § 19.2-91 , (a) has fled from justice, (b) having been convicted of a crime in that state has escaped from confinement, or (c) broken the terms of his bail, probation or parole, and that the accused is believed to be in this Commonwealth, such judge, magistrate or other officer shall issue a warrant directed to any sheriff or to any peace officer commanding him to apprehend the person named therein, wherever he may be found in this Commonwealth, and to bring him before any judge who may be available in or convenient of access to the place where the arrest may be made, to answer the charge of complaint and affidavit. A certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.

(Code 1950, § 19.1-63; 1960, c. 366; 1975, c. 495.)

§ 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 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 the Commonwealth with all practicable speed and complaint made against him under oath setting forth the ground for the arrest as in § 19.2-99 , and thereafter his answer shall be heard as if he had been arrested on a warrant.

(Code 1950, § 19.1-64; 1960, c. 366; 1975, c. 495; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - For arrest without warrant in cases of flight and pursuit, see § 19.2-77 .

For other statutes authorizing arrests without warrants, see §§ 19.2-81 and 52-20 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "death or" preceding "imprisonment" in the first sentence; substituted " § 19.2-99 " for "the preceding section" in the last sentence; and made stylistic changes.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, §§ 5, 12.

CASE NOTES

Reasonable information that accused stands charged with crime. - Where a Kentucky warrant on its face charged accused with the commission of a felony, it constituted "reasonable information" to a deputy sheriff of Virginia that accused stood charged in the courts of another state with a crime, punishable by "imprisonment for a term exceeding one year," and justified the local officer in arresting him without a warrant within the meaning of this section. Mullins v. Sanders, 189 Va. 624 , 54 S.E.2d 116 (1949).

The person arrested must be taken before a judicial officer within a reasonable time, or without unnecessary delay, in order that a charge may be formulated against him. Mullins v. Sanders, 189 Va. 624 , 54 S.E.2d 116 (1949).

Unreasonable delay constitutes false imprisonment. - Unreasonable delay in failing to comply with such statutory mandate constitutes false imprisonment. Moreover, any person who causes, induces, aids, assists or encourages an officer to delay unreasonably in bringing the arrested person before the committing judicial officer is likewise liable for such unlawful imprisonment. Mullins v. Sanders, 189 Va. 624 , 54 S.E.2d 116 (1949).

Question for jury. - Whether an arrested person has been brought before a magistrate "with all practicable speed," as is required by this section, or without unnecessary delay, depends upon the circumstances of the particular case. Ordinarily, this is a question for the jury unless the facts are undisputed. Mullins v. Sanders, 189 Va. 624 , 54 S.E.2d 116 (1949).

§ 19.2-101. Confinement to await requisition; bail.

If from the examination before the judge it appears that the person held pursuant to either of the two preceding sections is the person charged with having committed the crime alleged and, except in cases arising under § 19.2-91 , that he has fled from justice, the judge shall, by a warrant reciting the accusation, commit him to jail for such a time, not exceeding thirty days, specified in the warrant as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in the next section, or until he shall be legally discharged.

(Code 1950, § 19.1-65; 1960, c. 366; 1975, c. 495.)

CASE NOTES

The impact of this section and § 19.2-103 is that an individual arrested in this State as a fugitive from justice in another state cannot be confined in jail upon the warrant of the judge or trial justice for longer than ninety days, sixty days of which must be on a recommitment order of a judge or trial justice. At the end of this time period, if no governor's warrant has been issued, it appears that the accused must be released. Speaks v. Pittsylvania County, 355 F. Supp. 1129 (W.D. Va. 1973).

The time period specified in this section begins to run from the date of execution of the warrant. Unless recommitted under § 19.2-103 , the Commonwealth is required to release defendant on this warrant at the end of thirty days. Speaks v. Pittsylvania County, 355 F. Supp. 1129 (W.D. Va. 1973).

§ 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 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 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 the Commonwealth.

(Code 1950, § 19.1-66; 1960, c. 366; 1975, c. 495; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "death or" preceding "life"; and made stylistic changes.

Research References. - Virginia Forms (Matthew Bender). No. 9-1111. Motion to Set Bail for Defendant Under Detainer.

§ 19.2-103. Discharge, recommitment or renewal of bail.

If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, any judge in this Commonwealth may discharge him or may recommit him for a further period not to exceed sixty days, or such judge may again take bail for his appearance and surrender, as provided in the preceding section, but within a period not to exceed sixty days after the date of such new bond.

(Code 1950, § 19.1-67; 1960, c. 366; 1975, c. 495.)

CASE NOTES

The impact of this section and § 19.2-101 is that an individual arrested in this State as a fugitive from justice in another state cannot be confined in jail upon the warrant of the judge, trial justice, or justice of the peace for longer than ninety days, sixty days of which must be on a recommitment order of a judge or trial justice. At the end of this time period, if no governor's warrant has been issued, it appears that the accused must be released. Speaks v. Pittsylvania County, 355 F. Supp. 1129 (W.D. Va. 1973).

§ 19.2-104. Forfeiture of bail.

If the prisoner is admitted to bail and fails to appear and surrender himself according to the conditions of his bond, any judge of a circuit or general district court by proper order, shall declare the bond forfeited and order his immediate arrest without warrant if he be within this Commonwealth. Recovery may be had on such bond in the name of the Commonwealth as in the case of other bonds given by the accused in criminal proceedings within this Commonwealth.

(Code 1950, § 19.1-68; 1960, c. 366; 1975, c. 495.)

§ 19.2-105. Persons under criminal prosecution in this Commonwealth at time of requisition.

If a criminal prosecution has been instituted against such person under the laws of this Commonwealth and is still pending, the Governor, in his discretion, either may surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this Commonwealth.

(Code 1950, § 19.1-69; 1960, c. 366; 1975, c. 495.)

§ 19.2-106. When guilt or innocence of accused inquired into.

The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.

(Code 1950, § 19.1-70; 1960, c. 366; 1975, c. 495.)

§ 19.2-107. Governor may recall warrant or issue alias.

The Governor may recall his warrant of arrest or may issue another warrant whenever he deems it proper.

(Code 1950, § 19.1-71; 1960, c. 366; 1975, c. 495.)

§ 19.2-108. Fugitives from this Commonwealth; duty of Governor.

Whenever the Governor shall demand a person charged with crime or with escaping from confinement or breaking the terms of his bail, probation or parole in this Commonwealth, from the executive authority of any other state, or from the chief justice or an associate justice of the Supreme Court of the District of Columbia authorized to receive such demand under the laws of the United States, he shall issue a warrant under the seal of this Commonwealth to some agent commanding him to receive the person so charged if delivered to him and convey him to the proper officer of the county or city in this Commonwealth in which the offense was committed. Nothing herein shall prevent the sheriff or police chief of a county or city who has been directed to execute such warrant from authorizing a private prisoner transportation company meeting the minimum qualifications set by the Department of Criminal Justice Services to receive and return the person to the Commonwealth.

(Code 1950, § 19.1-72; 1960, c. 366; 1975, c. 495; 2009, c. 848.)

The 2009 amendments. - The 2009 amendment by c. 848 added the last sentence.

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).

OPINIONS OF THE ATTORNEY GENERAL

Governor may appoint any agent he chooses to retrieve and return to court a fugitive located in another state. See opinion of Attorney General to The Honorable H. S. Caudill, Sheriff for Tazewell County, 02-096 (12/20/02).

§ 19.2-109. Application for requisition for return of person charged with crime.

When the return to this Commonwealth of a person charged with crime in this Commonwealth is required, the attorney for the Commonwealth shall present to the Governor his written application for a requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him, the approximate time, place and circumstances of its commission, the state in which he is believed to be, including the location of the accused therein at the time the application is made, and certifying that, in the opinion of the attorney for the Commonwealth, the ends of justice require the arrest and return of the accused to this Commonwealth for trial and that the proceeding is not instituted to enforce a private claim.

(Code 1950, § 19.1-73; 1960, c. 366; 1975, c. 495.)

§ 19.2-110. Application for requisition for return of escaped convict, etc.

When the return to this Commonwealth is required of a person who has been convicted of a crime in this Commonwealth and has escaped from confinement or broken the terms of his bail, probation or parole, the attorney for the Commonwealth, of the county or city in which the offense was committed, or the warden of the institution or sheriff of the county or city from which the escape was made, shall present to the Governor a written application for a requisition for the return of such person, in which application shall be stated the name of the person, the crime of which he was convicted, the circumstances of his escape from confinement or of the breach of the terms of his bail, probation or parole and the state in which he is believed to be, including the location of the person therein at the time application is made.

(Code 1950, § 19.1-74; 1960, c. 366; 1975, c. 495.)

§ 19.2-111. Form of such applications; copies, etc.

The application shall be verified by affidavit, shall be executed in duplicate and shall be accompanied by two certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the judge of a circuit or general district court or other officer issuing the warrant stating the offense with which the accused is charged, or of the judgment of conviction or of the sentence. The attorney for the Commonwealth, warden or sheriff may also attach such further affidavits and other documents in duplicate as he shall deem proper to be submitted with such application. One copy of the application, with the action of the Governor indicated by endorsement thereon, and one of the certified copies of the indictment, complaint, information, and affidavits, or of the judgment of conviction or of the sentence shall be filed in the office of the Secretary of the Commonwealth, to remain of record in that office. The other copies of all papers shall be forwarded with the Governor's requisition.

(Code 1950, § 19.1-75; 1960, c. 366; 1975, c. 495.)

§ 19.2-112. Costs and expenses of extradition.

  1. The expenses incident to the extradition of any person under the four preceding sections may be paid out of the state treasury, on warrants of the Comptroller issued upon vouchers signed by the Governor, or such other person as may be designated by him for such purpose.
  2. If the person extradited is found guilty, or if the person was extradited after illegally leaving the Commonwealth while on parole or on probation, the person extradited, and not the Commonwealth, shall be responsible for the costs and expenses of extradition. The state treasury shall continue to reimburse local jurisdictions for the costs and expenses of extradition. The fugitive shall pay the costs and expenses of his extradition into the state treasury.

    (Code 1950, § 19.1-76; 1960, c. 366; 1975, c. 495; 1999, c. 322; 2002, c. 622.)

The 1999 amendment, added the subsection A designation, substituted "may" for "shall" in subsection A, and added subsection B.

The 2002 amendments. - The 2002 amendment by c. 622 inserted "extradited is found guilty, or if the person" in the first sentence of subsection B.

§ 19.2-113. Immunity from service of process in certain civil actions.

A person brought into this Commonwealth by, or after waiver of, extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceeding to answer which he is being or has been returned, until he has been convicted in the criminal proceeding, or, if acquitted, until he has had reasonable opportunity to return to the state from which he was extradited.

(Code 1950, § 19.1-77; 1960, c. 366; 1975, c. 495.)

§ 19.2-114. Written waiver of extradition proceedings.

Any person arrested in this Commonwealth charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole may waive the issuance and service of the warrant provided for in §§ 19.2-92 and 19.2-93 and all other procedures incidental to extradition proceedings by executing or subscribing in the presence of a judge of a circuit or district court within this Commonwealth a writing which states that he consents to return to the demanding state. However, before the waiver is executed or subscribed by the person, it shall be the duty of the judge to inform the person of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in § 19.2-95 .

If and when such consent has been duly executed, it shall forthwith be forwarded to the office of the Governor and filed therein. The judge shall direct the officer having the person in custody to promptly deliver him to the duly accredited agent of the demanding state, and shall deliver or cause to be delivered to such agent a copy of the consent.

This section shall not be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an executive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this Commonwealth.

(Code 1950, § 19.1-78; 1960, c. 366; 1975, c. 495; 1992, c. 306.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).

Michie's Jurisprudence. - For related discussion, see 9A M.J. Habeas Corpus, § 16.

§ 19.2-115. Nonwaiver by this Commonwealth.

Nothing in this chapter contained shall be deemed to constitute a waiver by this Commonwealth of its right, power or privilege to try such demanded person for crime committed within this Commonwealth, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this Commonwealth, nor shall any proceedings had under this chapter which result in, or fail to result in, extradition be deemed a waiver by this Commonwealth of any of its rights, privileges or jurisdiction in any way whatsoever.

(Code 1950, § 19.1-79; 1960, c. 366; 1975, c. 495.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).

§ 19.2-116. No right of asylum; no immunity from other criminal prosecutions while in this Commonwealth.

After a person has been brought back to this Commonwealth by, or after waiver of, extradition proceedings he may be tried in this Commonwealth for other crimes which he may be charged with having committed here as well as that specified in the requisition for his extradition.

(Code 1950, § 19.1-80; 1960, c. 366; 1975, c. 495.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).

§ 19.2-117. Interpretation of article.

The provisions of this article shall be so interpreted and construed as to effectuate its general purposes to make uniform the law of those states which enact statutes similar thereto.

(Code 1950, § 19.1-81; 1960, c. 366; 1975, c. 495.)

§ 19.2-118. Short title.

This article may be cited as the Uniform Criminal Extradition Act.

(Code 1950, § 19.1-82; 1960, c. 366; 1975, c. 495.)

Applied in Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).

Chapter 9. Bail and Recognizances.

Bail.

Recognizances.

Satisfaction and Discharge.

Bail Bondsmen [Repealed].

Pretrial Services Act.

Research References. - Virginia Forms (Matthew Bender). No. 9-1110. Motion to Set Bail, et seq.

Article 1. Bail.

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, §§ 2, 8, 16, 32, 33; 5B M.J. Criminal Procedure, §§ 12, 19, 20, 39.

§ 19.2-119. Definitions.

As used in this chapter:

"Bail" means the pretrial release of a person from custody upon those terms and conditions specified by order of an appropriate judicial officer.

"Bond" means the posting by a person or his surety of a written promise to pay a specific sum, secured or unsecured, ordered by an appropriate judicial officer as a condition of bail to assure performance of the terms and conditions contained in the recognizance.

"Criminal history" means records and data collected by criminal justice agencies or persons consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations or other formal charges, and any deposition arising therefrom.

"Judicial officer" means, unless otherwise indicated, any magistrate serving the jurisdiction, any judge of a district court and the clerk or deputy clerk of any district court or circuit court within their respective cities and counties, any judge of a circuit court, any judge of the Court of Appeals and any justice of the Supreme Court of Virginia.

"Person" means any accused, or any juvenile taken into custody pursuant to § 16.1-246.

"Recognizance" means a signed commitment by a person to appear in court as directed and to adhere to any other terms ordered by an appropriate judicial officer as a condition of bail.

(Code 1950, § 19.1-109.1; 1973, c. 485; 1974, c. 114; 1975, c. 495; 1984, c. 703; 1991, c. 581; 1993, c. 636; 1999, cc. 829, 846; 2008, cc. 551, 691.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and added the paragraphs defining "Criminal history" and "Person."

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical and substituted "magistrate serving the jurisdiction" for "magistrate within his jurisdiction" in the definition for "Judicial officer."

CASE NOTES

Immunity of magistrates for acts in judicial capacity. - As judicial officers, magistrates are entitled to absolute immunity for acts performed in their judicial capacity. That immunity is vitiated only when the judicial officer acts in the clear absence of all jurisdiction. Pressly v. Gregory, 831 F.2d 514 (4th Cir. 1987).

OPINIONS OF THE ATTORNEY GENERAL

Surety bail bondsman. - A surety bail bondsman who executes a secured bail bond as a disclosed agent-in-fact for the stated corporate surety is not personally liable to the Commonwealth when the criminal defendant absconds, and the bond is forfeited. See opinion of Attorney General to The Honorable James S. Mathews, Judge, Norfolk General District Court, 09-025, 2009 Va. AG LEXIS 28 (6/1/09).

§ 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.

  1. 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, family or household members as defined in § 16.1-228, or the public.
  2. In making a determination under subsection A, the judicial officer shall consider all relevant information, including (i) the nature and circumstances of the offense; (ii) whether a firearm is alleged to have been used in the commission of the offense; (iii) the weight of the evidence; (iv) the history of the accused or juvenile, including his family ties or involvement in employment, education, or medical, mental health, or substance abuse treatment; (v) his length of residence in, or other ties to, the community; (vi) his record of convictions; (vii) his appearance at court proceedings or flight to avoid prosecution or convictions for failure to appear at court proceedings; and (viii) whether the person is likely to obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness, juror, victim, or family or household member as defined in § 16.1-228.
  3. 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 .
  4. 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. (1975, c. 495; 1978, c. 755; 1979, c. 649; 1987, c. 390; 1991, c. 581; 1993, c. 636; 1996, c. 973; 1997, cc. 6, 476; 1999, cc. 829, 846; 2000, c. 797; 2002, cc. 588, 623; 2004, cc. 308, 360, 406, 412, 461, 819, 954, 959; 2005, c. 132; 2006, c. 504; 2007, cc. 134, 386, 745, 923; 2008, c. 596; 2010, c. 862; 2011, cc. 445, 450, 480; 2012, c. 467; 2015, c. 413; 2018, c. 71; 2020, c. 999; 2021, Sp. Sess. I, cc. 337, 344, 345, 523, 540.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2006, c. 504, provided in cl. 2: "That the provisions of this act shall not become effective unless an appropriation of funds effectuating the purposes of this act is included in the general appropriation act for the period of July 1, 2006, through June 30, 2008, passed during the 2006 Session of the General Assembly and signed into law by the Governor." Such an appropriation was not made. Had an appropriation been made, Acts 2006, c. 504, would have amended subdivision B 7 by substituting "A violation of § 18.2-67.3 or conspiracy to commit an offense under that section; or any other offense" for "An offense" and "if the person" for "and the person."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendments. - The 1999 amendments by cc. 829 and 846, which are identical, substituted "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" for "An accused, or juvenile taken into custody pursuant to § 16.1-246" in the present first paragraph, and adding "A person" in the second paragraph; deleted "as defined in § 19.2-119 " following "judicial officer" in the present second paragraph, substituted the sentence beginning "The judicial officer shall presume" and including subdivisions 1 through 7 for "If the judicial officer finds by clear and convincing evidence that (i) within the preceding sixteen years, the accused or juvenile was convicted of an offense listed in §§ 18.2-248 , 18.2-248 .01, 18.2-255 , or § 18.2-255.2 that involves a Schedule I or II controlled substance, was previously convicted as a 'drug kingpin' as defined in § 18.2-248, or was previously convicted of an act of violence as defined in § 19.2-297.1 and finds probable cause to believe that the accused or juvenile who is currently charged with one of these offenses committed the offense charged, or (ii) the accused or juvenile had previously been convicted of an offense listed in subsection B of § 18.2-67.5:2 and finds probable cause to believe that the accused or juvenile who is currently charged with one of these offenses committed the offense charged, then 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," inserted subdivisions 1 through 7, and substituted "person" for "accused or juvenile" in the last paragraph.

The 2000 amendments. - The 2000 amendment by c. 797 designated the former second, third and fourth paragraphs as present subsections A, B and D, respectively; and added subsection C.

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and deleted "or" from the end of subdivision B 6; added "or" to the end of subdivision B 7; and added subdivision B 8.

The 2004 amendments. - The 2004 amendments by cc. 308 and 819 are identical, and substituted "10" for "ten" in subdivision B 3; and inserted " § 18.2-46.2 , 18.2-46.3 " in subdivision B 8; and inserted "membership in a criminal street gang as defined in § 18.2-46.1 " in subdivision C 2.

The 2004 amendments by cc. 360 and 412 are identical, and substituted "10" for "ten" in subdivision B 3; inserted subsection C; and redesignated former subsections C and D as present subsections D and E.

The 2004 amendment by c. 406 substituted "10" for "ten" in subdivision B 3; added subdivision B 9; and made minor stylistic changes.

The 2004 amendment by c. 461 substituted "10" for "ten" in subdivision B 3 and "mandatory minimum" for "minimum, mandatory" in subdivision B 4.

The 2004 amendment by cc. 954 and 959 are identical, and substituted "10" for "ten" in subdivision B 3; and added subdivision B 9 and made minor stylistic changes.

The 2005 amendments. - The 2005 amendment by c. 132 inserted "or a substantially similar offense under the laws of any state or the United States" in subdivision B 7 and made minor stylistic changes.

The 2007 amendments. - The 2007 amendments by cc. 134 and 386 are identical, and in subsection B, inserted subdivision 8 and redesignated former subdivisions 8 and 9 as subdivisions 9 and 10.

The 2007 amendments by cc. 745 and 923 are identical, and added subdivision B 10 [now B 11] and made related changes.

The 2008 amendments. - The 2008 amendment by c. 596 deleted "or" at the end of subdivision B 10; substituted "; or" for a period at the end of subdivision B 11; and added subdivision B 12.

The 2010 amendments. - The 2010 amendment by c. 862 added subsection F.

The 2011 amendments. - The 2011 amendments by cc. 445 and 480 are identical, and inserted "or 18.2-60.4 " in subdivision B 11.

The 2011 amendment by c. 450 added subdivision B 13 and made related changes.

The 2012 amendments. - The 2012 amendment by c. 467 added subsection D; and redesignated former subsections D through F as subsections E through G.

The 2015 amendments. - The 2015 amendment by c. 413 added subdivision B 14 and made related changes.

The 2018 amendments. - The 2018 amendment by c. 71 added subdivision B 15 and made related changes.

The 2020 amendments. - The 2020 amendment by c. 999, in subsection D, deleted the first sentence, which read, "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"; in the second sentence, substituted "judicial officer" for "judge" and deleted "after notice and an opportunity to be heard has been provided to the attorney for the Commonwealth" at the end and in subsection E, substituted "judicial officer" for "court" in the introductory paragraph.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 337, effective July 1, 2021, inserted "family or household members as defined in § 16.1-228" in subdivision A 2; deleted former subsections B through D, which created presumptions against bail if a person is charged with certain offenses and rewrote former subsection E as subsection B and redesignated the remaining subdivisions accordingly.

The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "or death" from the end of subdivision B 2.

The 2021 amendments by Sp. Sess. I, cc. 523 and 540, effective July 1, 2021, are identical, and inserted "including a diagnosis of an intellectual or developmental disability as defined in § 37.2-100 " in subdivision E 2.

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

CASE NOTES

Pretrial detention regulatory rather than punitive. - This section allowing pretrial detention is not punishment in the usual sense; it serves a regulatory function by providing for pretrial detention only if the accused is a threat to abscond or poses a risk to the safety of the community rather than a punitive function. Dorsey v. Commonwealth, 32 Va. App. 154, 526 S.E.2d 787 (2000).

Bond not necessarily required. - Once an accused is admitted to bail, a bond may be, but is not necessarily required. Heacock v. Commonwealth, 228 Va. 235 , 321 S.E.2d 645 (1984).

Pre-conviction bail granted. - Trial court did not abuse its discretion in allowing defendant, an accused murderer, to pre-conviction bail; pursuant to subsection B of § 19.2-120 , the trial court found that defendant's history and characteristics, and the lack of danger he would pose to the community if released, outweighed the circumstances and nature of the offenses charged. Commonwealth v. Jawad, No. 1828-02-1, 2002 Va. App. LEXIS 703 (Ct. of Appeals Nov. 25, 2002).

Trial court's decision to grant defendant's motion for pre-conviction bail was sound judicial discretion, not arbitrary discretion, because the record fairly supported the trial court's action; the trial court considered the factors of subsection D of § 19.2-120 and found that defendant successfully rebutted the presumption that no conditions of bail would reasonably assure defendant's appearance at trial or the safety of the public. Commonwealth v. Lee,, 2008 Va. App. LEXIS 156 (Apr. 8, 2008).

Bail may be denied and revoked upon finding of probable cause. - If an application for bail, i.e., release from custody, can be denied upon a finding of probable cause to believe that the accused will not appear or will constitute an unreasonable danger while at liberty, bail can be revoked upon such a finding. Heacock v. Commonwealth, 228 Va. 235 , 321 S.E.2d 645 (1984).

Revocation of bail did not violate defendant's substantive due process rights. - Where a trial court revoked the defendant's bail after finding, based on evidence presented at a joinder hearing, that the defendant posed a danger to the community, the defendant's pretrial detention did not violate his substantive or procedural due process rights. Dorsey v. Commonwealth, 32 Va. App. 154, 526 S.E.2d 787 (2000).

Denial of bail upheld. - Where the record demonstrated defendant's extensive criminal record, his general and specific threats against the lives of witnesses against him, and his lack of ties to the community of the forum, denial of bail was within the trial court's discretion and the trial court made the requisite findings under subdivisions A 1 and A 2 and both were supported by the record. Fisher v. Commonwealth, 236 Va. 403 , 374 S.E.2d 46 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1766, 104 L. Ed. 2d 201 (1989).

Granting bail was abuse of discretion. - Where defendant was charged with felonies punishable by possible life sentences and with "acts of violence," under this section there was a presumption against bail, which the intermediate appellate court held he failed to overcome; as the trial court did not explain its reasons for granting bail, the intermediate appellate court did not err in implicitly concluding that the trial court abused its discretion by not considering defendant's status as a registered sex offender, a relevant factor that should have been given substantial weight. Shannon v. Commonwealth, 289 Va. 203 , 768 S.E.2d 433, 2015 Va. LEXIS 21 (2015).

Court of Appeals erred in ruling that the trial court did not abuse its discretion in granting defendant pre-trial bail under § 19.2-120 , because the doctrine of presumed innocence did not apply to the pre-trial bail hearing, the circuit court erred by finding that the brutal and calculated circumstances of the murder were outweighed by the absence of a specific threat to any individual, the circuit court erred by speculating that defendant was unlikely to abscond because he was 76 years old, and the circuit court abused its discretion by wholly discounting and according no weight to defendant's well-documented history of mental illness. Commonwealth v. Duse, 295 Va. 1 , 809 S.E.2d 513, 2018 Va. LEXIS 29 (2018).

Despite the significant evidence favoring the denial of bail in an action against defendant for robbery and use of a firearm, the lack of evidence favoring release on bail, and the presumption itself, trial court erred in granting bail, as it did not articulate factual findings in support of its conclusion that defendant had borne his burden of persuasion that he was neither a flight risk nor a danger to the public and should be released on bail. Commonwealth v. Watson, No. 1284-20-4, 2021 Va. App. LEXIS 87 (June 8, 2021).

Trial court's order granting defendant pre-trial bail was reversed because a presumption against bail applied to defendant because the charges of forcible sodomy and rape were felonies and punishable by possible life sentences, the trial court gave no reasons to support its decision to grant pre-trial bond, and defendant offered no evidence rebutting the presumption that no conditions of bail could assure his future court appearance and the safety of the community. Commonwealth v. Thomas, 73 Va. App. 121, 855 S.E.2d 879, 2021 Va. App. LEXIS 51 (2021).

Presumption against bail. - Grant of bail was reversed, as the circuit did not mention the presumption against bail or explain how the facts it recited applied to the factors the statute required the court to consider in overcoming the presumption. Commonwealth v. Wade, No. 0327-19-1, 2019 Va. App. LEXIS 199 (Sept. 10, 2019).

Although the trial court did not articulate the basis of its ruling sufficiently to enable the appellate court to make a determination it had not abused its discretion, after reviewing the record made in the trial court, the appellate court found that the trial court's ruling that defendant had rebutted the presumption against bond had significant factual support and was made after the court thoroughly considered the factors enumerated in this section. Commonwealth v. Johnston, No. 1720-19-1, 2020 Va. App. LEXIS 104 (Apr. 14, 2020).

CIRCUIT COURT OPINIONS

Bail during Commonwealth's pretrial appeal. - Presumption against bail for a murder charge applied in a bail determination under § 19.2-406 ; the burden on the Commonwealth to show good cause why bail should not have been reduced or defendant released on his own recognizance during the Commonwealth's pretrial appeal did not eliminate the presumption against bail for defendant's murder charge. Commonwealth v. Ludwig, 69 Va. Cir. 460, 2006 Va. Cir. LEXIS 87 (Loudoun County 2006).

Suppressed or excluded statements may be considered at a bail determination hearing. Commonwealth v. Ludwig, 69 Va. Cir. 460, 2006 Va. Cir. LEXIS 87 (Loudoun County 2006).

§ 19.2-120.1.

Repealed by Acts 2021, Sp. Sess. I, c. 337, cl. 2, effective July 1, 2021.

Editor's note. - Former § 19.2-120.1 , which provided for a presumption of no bail for illegal aliens charged with certain crimes, derived from 2008, cc. 469, 834; 2013, c. 746.

§ 19.2-121. Fixing terms of bail.

  1. If the person is admitted to bail, the terms thereof shall be such as, in the judgment of any official granting or reconsidering the same, will be reasonably fixed to assure the appearance of the accused and to assure his good behavior pending trial. The judicial officer shall take into account (i) the nature and circumstances of the offense; (ii) whether a firearm is alleged to have been used in the offense; (iii) the weight of the evidence; (iv) the financial resources of the accused or juvenile and his ability to pay bond; (v) the character of the accused or juvenile including his family ties, employment or involvement in education; (vi) his length of residence in the community; (vii) his record of convictions; (viii) his appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings; (ix) whether the person is likely to obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate a prospective witness, juror, or victim; and (x) any other information available which the court considers relevant to the determination of whether the accused or juvenile is unlikely to appear for court proceedings.
  2. When a magistrate conducts a bail hearing for a person arrested on a warrant or capias for a jailable offense, the magistrate shall describe the information considered under subsection A on a form provided by the Executive Secretary of the Supreme Court and shall transmit the completed form to the circuit court or district court before which the warrant or capias is returnable.
  3. In any case where the accused has appeared and otherwise met the conditions of bail, no bond therefor shall be used to satisfy fines and costs unless agreed to by the person who posted such bond.

    (1975, c. 495; 1978, c. 755; 1980, c. 190; 1991, c. 581; 1992, c. 576; 1993, c. 636; 1999, cc. 829, 846; 2019, c. 176.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846, which are identical, in the first paragraph, substituted "If the person" for "If the accused, or juvenile taken into custody pursuant to § 16.1-246" in the first sentence, and in the second sentence, deleted "and" following "court proceedings," inserted present clause (ix), and redesignated former clause (ix) as present clause (x).

The 2019 amendments. - The 2019 amendment by c. 176 designated the existing provisions as subsections A and C, and added subsection B.

CIRCUIT COURT OPINIONS

Cash or surety bond release. - Circuit court found that release of defendant under supervised release and a personal recognizance bond was appropriate because there was no constitutional right to cash bail and the imposition of a cash or surety bond release term upon defendant, who was determined to be indigent, would have been an unconstitutional application of the Virginia statutory bail bond scheme in derogation of the Due Process Clause of the United States Constitution. Commonwealth v. Hunter,, 2020 Va. Cir. LEXIS 491 (Fairfax County Nov. 6, 2020).

§ 19.2-122.

Repealed by Acts 1986, c. 327.

§ 19.2-123. Release of accused on secured or unsecured bond or promise to appear; conditions of release.

  1. Any person arrested for a felony who has previously been convicted of a felony, or who is presently on bond for an unrelated arrest in any jurisdiction, or who is on probation or parole, may be released only upon a secure bond. This provision may be waived with the approval of the judicial officer and with the concurrence of the attorney for the Commonwealth or the attorney for the county, city or town. Subject to the foregoing, when a person is arrested for either a felony or a misdemeanor, any judicial officer may impose any one or any combination of the following conditions of release:
    1. Place the person in the custody and supervision of a designated person, organization or pretrial services agency which, for the purposes of this section, shall not include a court services unit established pursuant to § 16.1-233;
    2. Place restrictions on the travel, association or place of abode of the person during the period of release and restrict contacts with household members for a specified period of time; 2a. Require the execution of an unsecured bond;
    3. Require the execution of a secure bond which at the option of the accused shall be satisfied with sufficient solvent sureties, or the deposit of cash in lieu thereof. Only the actual value of any interest in real estate or personal property owned by the proposed surety shall be considered in determining solvency and solvency shall be found if the value of the proposed surety's equity in the real estate or personal property equals or exceeds the amount of the bond; 3a. Require that the person do any or all of the following: (i) maintain employment or, if unemployed, actively seek employment; (ii) maintain or commence an educational program; (iii) avoid all contact with an alleged victim of the crime and with any potential witness who may testify concerning the offense; (iv) comply with a specified curfew; (v) refrain from possessing a firearm, destructive device, or other dangerous weapon; (vi) refrain from excessive use of alcohol, or use of any illegal drug or any controlled substance not prescribed by a health care provider; and (vii) submit to testing for drugs and alcohol until the final disposition of his case; 3b. Place a prohibition on a person who holds an elected constitutional office and who is accused of a felony arising from the performance of his duties from physically returning to his constitutional office; 3c. Require the accused to accompany the arresting officer to the jurisdiction's fingerprinting facility and submit to having his photograph and fingerprints taken prior to release; or
    4. Impose any other condition deemed reasonably necessary to assure appearance as required, and to assure his good behavior pending trial, including a condition requiring that the person return to custody after specified hours or be placed on home electronic incarceration pursuant to § 53.1-131.2 or, when the person is required to execute a secured bond, be subject to monitoring by a GPS (Global Positioning System) tracking device, or other similar device. The defendant may be ordered by the court to pay the cost of the device. Upon satisfaction of the terms of recognizance, the accused shall be released forthwith. In addition, where the accused is an individual receiving services in a state training center for individuals with intellectual disability, the judicial officer may place the individual in the custody of the director of the training center, if the director agrees to accept custody. The director is hereby authorized to take custody of the individual and to maintain him at the training center prior to a trial or hearing under such circumstances as will reasonably assure the appearance of the accused for the trial or hearing.
  2. In any jurisdiction served by a pretrial services agency which offers a drug or alcohol screening or testing program approved for the purposes of this subsection by the chief general district court judge, any such person charged with a crime may be requested by such agency to give voluntarily a urine sample, submit to a drug or alcohol screening, or take a breath test for presence of alcohol. A sample may be analyzed for the presence of phencyclidine (PCP), barbiturates, cocaine, opiates or such other drugs as the agency may deem appropriate prior to any hearing to establish bail. The judicial officer and agency shall inform the accused or juvenile being screened or tested that test results shall be used by a judicial officer only at a bail hearing and only to determine appropriate conditions of release or to reconsider the conditions of bail at a subsequent hearing. All screening or test results, and any pretrial investigation report containing the screening or test results, shall be confidential with access thereto limited to judicial officers, the attorney for the Commonwealth, defense counsel, other pretrial service agencies, any criminal justice agency as defined in § 9.1-101 and, in cases where a juvenile is screened or tested, the parents or legal guardian or custodian of such juvenile. However, in no event shall the judicial officer have access to any screening or test result prior to making a bail release determination or to determining the amount of bond, if any. Following this determination, the judicial officer shall consider the screening or test results and the screening or testing agency's report and accompanying recommendations, if any, in setting appropriate conditions of release. In no event shall a decision regarding a release determination be subject to reversal on the sole basis of such screening or test results. Any accused or juvenile whose urine sample has tested positive for such drugs and who is admitted to bail may, as a condition of release, be ordered to refrain from use of alcohol or illegal drugs and may be required to be tested on a periodic basis until final disposition of his case to ensure his compliance with the order. Sanctions for a violation of any condition of release, which violations shall include subsequent positive drug or alcohol test results or failure to report as ordered for testing, may be imposed in the discretion of the judicial officer and may include imposition of more stringent conditions of release, contempt of court proceedings or revocation of release. Any test given under the provisions of this subsection which yields a positive drug or alcohol test result shall be reconfirmed by a second test if the person tested denies or contests the initial drug or alcohol test positive result. The results of any drug or alcohol test conducted pursuant to this subsection shall not be admissible in any judicial proceeding other than for the imposition of sanctions for a violation of a condition of release.
  3. [Repealed.]
  4. Nothing in this section shall be construed to prevent an officer taking a juvenile into custody from releasing that juvenile pursuant to § 16.1-247. If any condition of release imposed under the provisions of this section is violated, a judicial officer may issue a capias or order to show cause why the recognizance should not be revoked.
  5. Nothing in this section shall be construed to prevent a court from imposing a recognizance or bond designed to secure a spousal or child support obligation pursuant to § 16.1-278.16, Chapter 5 (§ 20-61 et seq.) of Title 20, or § 20-114 in addition to any recognizance or bond imposed pursuant to this chapter. (Code 1950, § 19.1-109.2; 1973, c. 485; 1975, c. 495; 1978, cc. 500, 755; 1979, c. 518; 1981, c. 528; 1984, c. 707; 1989, c. 369; 1991, cc. 483, 512, 581, 585; 1992, c. 576; 1993, c. 636; 1999, cc. 829, 846; 2000, cc. 885, 1020, 1041; 2001, c. 201; 2006, c. 296; 2008, cc. 129, 884; 2011, cc. 799, 837; 2012, cc. 476, 507; 2013, c. 614; 2014, c. 466.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and in subsection A, substituted the present introductory paragraph for the former first and second paragraphs, which read:

"If any judicial officer has brought before him any person held in custody and charged with an offense, other than an offense punishable by death, or a juvenile taken into custody pursuant to § 16.1-246, the judicial officer shall consider the release pending trial or hearing of the accused on his recognizance.

"In the case of a juvenile or in any case where the judicial officer determines that such a release will not reasonably assure the appearance of the accused as required, the judicial officer shall then, either in lieu of or in addition to the above methods of release, impose any one or any combination of the following conditions of release which will reasonably assure the appearance of the accused or juvenile for trial or hearing," and substituted "and supervision of a designated person, organization or" for "of a designated person or organization agreeing to supervise him or in the custody and under the supervision of a" in subdivision 1, deleted "or" at the end of subdivision 3, and added subdivision 3a, and substituted "person" for "accused or juvenile" in the first sentence in subsection B.

The 2000 amendments. - The 2000 amendment by c. 885, in subsection A, inserted the first two sentences and added "Subject to the foregoing" at the beginning of the third sentence.

The 2000 amendments by cc. 1020 and 1041 are identical, and in subsection B, inserted "or alcohol" following "drug" throughout the subsection, inserted "screened or" or "screening or" preceding "test," "tested," or "testing" throughout the subsection, added the language following "urine sample" through the end of the first sentence, substituted "A" for "This" at the beginning of the second sentence, inserted "and any pretrial investigation report containing the screening or test results," and inserted "other pretrial service agencies, any criminal justice agency as defined in § 9-169" in the fourth sentence.

The 2001 amendments. - The 2001 amendment by c. 201 inserted "when a person is arrested for either a felony or a misdemeanor" in the introductory paragraph of subsection A.

The 2006 amendments. - The 2006 amendment by c. 296 substituted a semicolon for a period at the end of subdivision A 3.

The 2008 amendments. - The 2008 amendment by c. 129 added subsection E.

The 2008 amendment by c. 884, inserted subdivision A 3b and made minor stylistic changes.

The 2011 amendments. - The 2011 amendments by cc. 799 and 837 are identical, and in the first paragraph in subdivision A 4, added "or, when the person is required to execute a secured bond, be subject to monitoring by a GPS (Global Positioning System) tracking device, or other similar device" in the first sentence, and added the last sentence.

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and in the third paragraph in subdivision A 4, substituted "is an individual receiving services in a state training center for individuals with intellectual disability" for "is a resident of a state training center for the mentally retarded," "individual" for "person" and "training center" for "state facility" in the first sentence and substituted "The director" for "Such director" and "the individual" for "such person" in the second sentence.

The 2013 amendments. - The 2013 amendments by c. 614 added subdivision A 3c.

The 2014 amendments. - The 2014 amendment by c. 466 in subdivision A 2 inserted "specified" and substituted "of time" for "not to exceed 72 hours."

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973). For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

CASE NOTES

Discriminatory or arbitrary administration of bail system. - Where a state engages in discriminatory or arbitrary administration of a bail system, this gives rise to a constitutional claim. Wilborn v. Peyton, 287 F. Supp. 787 (W.D. Va. 1968) (decided under former § 19.1-110).

Bond not necessarily required. - Once an accused is admitted to bail, a bond may be, but is not necessarily required. Heacock v. Commonwealth, 228 Va. 235 , 321 S.E.2d 645 (1984).

Waiver of right to bail. - See Wilborn v. Peyton, 287 F. Supp. 787 (W.D. Va. 1968) (decided under former § 19.1-110).

CIRCUIT COURT OPINIONS

Cash or surety bond release. - Circuit court found that release of defendant under supervised release and a personal recognizance bond was appropriate because there was no constitutional right to cash bail and the imposition of a cash or surety bond release term upon defendant, who was determined to be indigent, would have been an unconstitutional application of the Virginia statutory bail bond scheme in derogation of the Due Process Clause of the United States Constitution. Commonwealth v. Hunter,, 2020 Va. Cir. LEXIS 491 (Fairfax County Nov. 6, 2020).

§ 19.2-124. Appeal from bail, bond, or recognizance order.

  1. If a judicial officer denies bail to a person, requires excessive bond, or fixes unreasonable terms of a recognizance under this article, the person may appeal the decision of the judicial officer.

    If the initial bail decision on a charge brought by a warrant or district court capias is made by a magistrate, clerk, or deputy clerk, the person shall first appeal to the district court in which the case is pending.

    If the initial bail decision on a charge brought by direct indictment or presentment or circuit court capias is made by a magistrate, clerk, or deputy clerk, the person shall first appeal to the circuit court in which the case is pending.

    If the appeal of an initial bail decision is taken on any charge originally pending in a district court after that charge has been appealed, certified, or transferred to a circuit court, the person shall first appeal to the circuit court in which the case is pending.

    Any bail decision made by a judge of a court may be appealed successively by the person to the next higher court, up to and including the Supreme Court of Virginia, where permitted by law.

    The bail decision of the higher court on such appeal, unless the higher court orders otherwise, shall be remanded to the court in which the case is pending for enforcement and modification. The court in which the case is pending shall not modify the bail decision of the higher court, except upon a change in the circumstances subsequent to the decision of the higher court.

  2. The attorney for the Commonwealth may appeal a bail, bond, or recognizance decision to the same court to which the accused person is required to appeal under subsection A.
  3. The court granting or denying such bail may, upon appeal thereof, and for good cause shown, stay execution of such order for so long as reasonably practicable for the party to obtain an expedited hearing before the next higher court.

    No such stay under this subsection may be granted after any person who has been granted bail has been released from custody on such bail.

  4. No filing or service fees shall be assessed or collected for any appeal taken pursuant to this section.

    (Code 1950, §§ 19.1-109.3, 19.1-112; 1960, c. 366; 1973, cc. 130, 485; 1975, c. 495; 1978, c. 755; 1984, c. 703; 1991, c. 581; 1999, cc. 829, 846; 2007, cc. 462, 549; 2010, cc. 404, 592; 2013, cc. 408, 474; 2016, c. 621; 2019, c. 616; 2021, Sp. Sess. I, c. 337.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and added the subsection A designator, and substituted "judicial officer denies bail to a person, requires excessive bond, or fixes unreasonable terms of a recognizance under this article, the person" for "magistrate or other judicial officer denies bail to an accused or juvenile taken into custody pursuant to § 16.1-246, requires excessive bond, or fixes unreasonable terms of a recognizance under § 19.2-123 , the accused or juvenile," and added subsection B.

The 2007 amendments. - The 2007 amendments by cc. 462 and 549 are identical, and added subsection C.

The 2010 amendments. - The 2010 amendments by cc. 404 and 592 are identical, and in subsection A, substituted "the decision of the judicial officer" for "therefrom successively to the next higher court or judge thereof, up to and including the Supreme Court of Virginia or any justice thereof where permitted by law" in the introductory paragraph and added the second to last paragraphs; and rewrote subsection B.

The 2013 amendments. - The 2013 amendments by cc. 408 and 474 are identical, and added subsection C and redesignated former subsection C as D.

The 2016 amendments. - The 2016 amendment by c. 621 rewrote subsection C, which formerly read: "The court granting or denying such bail may, upon appeal thereof, and for good cause shown, stay execution of such order for so long as reasonably practicable for the party to obtain an expedited hearing before the next higher court. No such stay may be granted after any person who has been granted bail has been released from custody on such bail."

The 2019 amendments. - The 2019 amendment by c. 616 added the sixth paragraph to subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 337, effective July 1, 2021, in the first paragraph of subsection C, deleted "In a matter not governed by subsection B or C of § 19.2-120 or § 19.2-120.1 " at the beginning, and deleted the second sentence, which read: "When a district court grants bail over the presumption against bail in a matter that is governed by subsection B or C of § 19.2-120 or § 19.2-120.1 , and upon notice by the Commonwealth of its appeal of the court's decision, the court shall stay execution of such order for so long as reasonably practical for the Commonwealth to obtain an expedited hearing before the circuit court, but in no event more than five days, unless the defendant requests a hearing date outside the five-day limit"; and made stylistic changes.

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

For article, "Criminal Law and Procedure," see 54 U. Rich. L. Rev. 31 (2019).

CASE NOTES

Federal habeas corpus. - A federal court may grant habeas corpus relief prior to the state trial if the setting of bail is arbitrary or discriminatory in violation of constitutional requirements. Bowring v. Cox, 334 F. Supp. 334 (W.D. Va. 1971).

When prisoner's continued confinement will endanger his life. - A prisoner indicted for a felony will be let out on bail, when his continued confinement will endanger his life. Commonwealth v. Seemes, 38 Va. (11 Leigh) 665 (1841); Archer's Case, 47 Va. (6 Gratt.) 705 (1849).

What evidence to be considered. - When a prisoner, who has been remanded for trial by the examining court to the higher court, on a charge of felony, and against whom a bill of indictment has been found by the grand jury, applies to the higher court to be let to bail, on the ground that there is only a slight suspicion of guilt against him, that judgment, and the finding of the bill, are not conclusive evidence against the application, but the court may examine other evidence. It is a question for the exercise of the sound discretion of the court, and if the court is satisfied that there is material evidence for the Commonwealth that is not before the court, was not before the examining court, or spread on the record, the court ought not to sustain the motion. Commonwealth v. Rutherford, 26 Va. (5 Rand.) 646 (1826).

Revocation of bail appealable. - The revocation of a defendant's bail has the same effect as a denial of bail and is appealable under this section. Dorsey v. Commonwealth, 32 Va. App. 154, 526 S.E.2d 787 (2000).

CIRCUIT COURT OPINIONS

Stay of execution discretionary. - Under subsection C of § 19.2-124 , the General Assembly intended to keep in place the circuit courts' traditional inherent discretionary authority to stay its order, and thus, for appeals of presumption of bail cases, the authority of the circuit courts to stay execution of the court's decision remains, and it remains discretionary; defendant's motion to lift stay of order was denied. Commonwealth v. Johnson,, 2021 Va. Cir. LEXIS 50 (Fairfax County Mar. 25, 2021).

OPINIONS OF THE ATTORNEY GENERAL

Civil proceeding. - Appeal of a determination of bond from a general district court to a circuit court is civil in nature; therefore, the fees and costs for such appeal should be calculated, taxed, and collected as a civil proceeding. See opinion of Attorney General to The Honorable Michael D. Wolfe, Clerk of the Circuit Court of Alleghany County, 05-065 (10/4/05).

§ 19.2-125. Release pending appeal from conviction in court not of record.

A person who has been convicted of an offense in a district court and who has noted an appeal shall be given credit for any bond that he may have posted in the court from which he appeals and shall be treated in accordance with the provisions of this article.

(Code 1950, § 19.1-109.4; 1973, c. 485; 1975, c. 495; 1978, c. 755; 1999, cc. 829, 846.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and substituted "this article" for " § 19.2-123 and 19.2-124 ."

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

§ 19.2-126.

Repealed by Acts 1999, cc. 829 and 846.

§ 19.2-127. Conditions of release of material witness.

If it appears by affidavit that the testimony of a person is material in any criminal proceeding, and it reasonably appears that it will be impossible to secure his presence by a subpoena, a judge shall inquire into the conditions of his release pursuant to this article.

(Code 1950, § 19.1-109.6; 1973, c. 485; 1975, c. 495; 1999, cc. 829, 846.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and substituted "this article" for " § 19.2-123 ."

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

Research References. - Virginia Forms (Matthew Bender). No. 9-1616. Motion to Compel Access to Witnesses.

§ 19.2-128. Penalties for failure to appear.

  1. Whoever, having been released pursuant to this chapter or § 19.2-319 or on a summons pursuant to § 19.2-73 or § 19.2-74 , willfully fails to appear before any court or judicial officer as required, shall, after notice to all interested parties, incur a forfeiture of any security which may have been given or pledged for his release, unless one of the parties can show good cause for excusing the absence, or unless the court, in its sound discretion, shall determine that neither the interests of justice nor the power of the court to conduct orderly proceedings will be served by such forfeiture.
  2. Any person (i) charged with a felony offense or (ii) convicted of a felony offense and execution of sentence is suspended pursuant to § 19.2-319 who willfully fails to appear before any court as required shall be guilty of a Class 6 felony.
  3. Any person (i) charged with a misdemeanor offense or (ii) convicted of a misdemeanor offense and execution of sentence is suspended pursuant to § 19.2-319 who willfully fails to appear before any court as required shall be guilty of a Class 1 misdemeanor. (Code 1950, § 19.1-109.7; 1973, c. 485; 1975, c. 495; 1981, c. 382; 1982, c. 271; 1999, c. 821.)

Cross references. - As to punishment for Class 6 felonies, see § 18.2-10 .

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 1999 amendment inserted "or § 19.2-319 " following "this chapter" in subsection A; added the subsection C designator, in subsections B and C, inserted the clause (i) designation, and added "or (ii) convicted of a felony offense and execution of sentence is suspended pursuant to § 19.2-319 ."

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

CASE NOTES

"Willfully," as used in subsection A of this section, has the customary meaning that the act must have been done purposely, intentionally, or designedly. Hunter v. Commonwealth, 15 Va. App. 717, 427 S.E.2d 197 (1993).

Construction. - Courts cannot create ambiguity by straining to interpret a statute whose understanding requires no such exertion, and there is no ambiguity to resolve within the statute. Johnson v. Commonwealth, No. 1138-14-2, 2015 Va. App. LEXIS 211 (July 7, 2015), aff'd, 793 S.E.2d 321, 2016 Va. LEXIS 181 (Va. 2016).

Fundamentally, § 19.2-128 does not require the Commonwealth to prove where someone was, only where someone was not. Although a court dismissing a failure to appear charge is free to announce a finding that the defendant was present in a certain location instead of in court, it is not required to make such a finding. Winder v. Commonwealth, No. 1813-16-1, 2018 Va. App. LEXIS 28 (Feb. 6, 2018).

Defendant did not violate this section because the statute did not apply to revocation proceedings, and therefore it was error to convict her of failure to appear. Because defendant was improperly convicted of conduct not proscribed by the statute under which she was charged, the ends of the justice exception of Va. Sup. Ct. R. 5A:18 applied; even though defendant failed to raise the ends of justice exception, because the Commonwealth raised the exception the court could utilize it. Merritt v. Commonwealth, 69 Va. App. 452, 820 S.E.2d 379, 2018 Va. App. LEXIS 313 (2018).

Notice of continuances. - An accused who is given notice of the original trial date is charged with notice of those dates to which his or her case is expressly continued when such action is duly recorded in the order of the court; also if the attorney had actual notice of the client's trial date, the fact finder may infer from that evidence that the client also had actual notice of the trial date. Hunter v. Commonwealth, 15 Va. App. 717, 427 S.E.2d 197 (1993).

Continuance no relief from appearance requirement. - Pre-trial continuance of the jury trial scheduled for January 10, 1992, did not relieve the defendant, who had been declared a fugitive, from appearing on January 10, 1992, as required by his bond; the appellant was required to appear on this date under the terms of his bond as charged in the indictment. Sloan v. Commonwealth, No. 0934-93-3 (Ct. of Appeals Oct. 4, 1994).

Judicial notice. - Trial court did not err in taking notice of its judicial records and the facts regarding the date and time of defendant's scheduled hearings because the trial court reasonably concluded that (1) the Commonwealth requested it take judicial notice of the entire record regarding defendant's failure to appear, (2) the trial court took such notice, and (3) the statements of the trial court, more specifically the facts recited by the trial court in rendering its decision, and the evidence and arguments of the parties demonstrated clearly that the trial court was taking note of its entire record. Williams v. Commonwealth, 57 Va. App. 750, 706 S.E.2d 530, 2011 Va. App. LEXIS 96 (2011).

Multiple convictions. - Trial court did not err in finding defendant guilty of three counts of felony failure to appear because the multiple convictions did not violate the Double Jeopardy Clauses of the United States Constitution or the Virginia Constitution; defendant had three different obligations to appear and faced three distinct criminal allegations with different elements of proof, and in failing to appear as to each underlying felony, he prevented a hearing as to each of the three charges. Johnson v. Commonwealth, No. 1138-14-2, 2015 Va. App. LEXIS 211 (July 7, 2015), aff'd, 793 S.E.2d 321, 2016 Va. LEXIS 181 (Va. 2016).

Legislature intended the unit of prosecution in the statute to correspond to the number of underlying offenses for which a defendant is obligated to appear; a single act of failure to appear may result in multiple convictions for failure to appear when each such count is based on a distinct underlying felony. Johnson v. Commonwealth, No. 1138-14-2, 2015 Va. App. LEXIS 211 (July 7, 2015), aff'd, 793 S.E.2d 321, 2016 Va. LEXIS 181 (Va. 2016).

Legislature chose to criminalize the failure to appear of anyone charged "with a felony offense," rather than, for example, "with any felony offense" or "with felony offenses"; legislature's use of the words "a felony offense" evinces an intent that the unit of prosecution for failure to appear corresponds to the number of individual felony offenses for which a defendant is obligated to appear. Johnson v. Commonwealth, No. 1138-14-2, 2015 Va. App. LEXIS 211 (July 7, 2015), aff'd, 793 S.E.2d 321, 2016 Va. LEXIS 181 (Va. 2016).

Defendant's double jeopardy rights were not violated when he was convicted of three counts of felony failure to appear because three separate summonses independently required defendant to appear, each felony charge had separate consequences and effects, the fact that defendant's three separate felonies were scheduled to be heard at one time did not change the result, and the net effect of defendant's willful failure to appear were three distinct injuries to the administration of justice even if the injuries occurred at the same time. Johnson v. Commonwealth, 292 Va. 738 , 793 S.E.2d 321, 2016 Va. LEXIS 181 (2016).

Applicable to defendant who has pled guilty and is awaiting sentencing. - Trial court did not err in holding that the failure to appear statute, subsection B of § 19.2-128 , applied to a person such as defendant, who had pled guilty and was awaiting sentencing when defendant failed to appear. If the statute was not read to apply to those people who had pled guilty and were awaiting sentencing, no repercussions would attach to a defendant who pled guilty and did not show up at sentencing, which would require the absurd result that the trial court would have no alternative but to jail such people until sentencing. Bowling v. Commonwealth, 51 Va. App. 102, 654 S.E.2d 354, 2007 Va. App. LEXIS 461 (2007).

Evidence was sufficient to establish willful failure to appear, etc. where the defendant had notice of the original trial date, all continuances were duly recorded by order of the court, thereby charging the defendant with notice of the trial date, and defense counsel was aware of the trial date and, in fact, had asked for it. Poindexter v. Commonwealth, No. 0457-98-2 (Ct. of Appeals Apr. 27, 1999).

Evidence supported defendant's conviction for a subsection B of § 19.2-128 violation as defendant willfully failed to appear since: (1) a bail bond agreement was introduced, which provided that defendant could not leave the Commonwealth; (2) defendant understood that defendant could not leave the Commonwealth; (3) defendant went to New York twice; and (4) defendant failed to contact the clerk's office or defendant's appointed counsel after defendant was arrested in New York on both visits. Deslandes v. Commownealth,, 2008 Va. App. LEXIS 352 (July 8, 2008).

Evidence that defendant knew his hearing date and did not appear in court on that date supported the trial court's conclusion that his failure to appear was willful and thus, the evidence supported his conviction. Brown v. Commonwealth, No. 1737-14-2, 2015 Va. App. LEXIS 225 (July 21, 2015).

Defendant was properly convicted of felony failure to appear because the evidence was sufficient to establish that his failure to appear was willful where he did not appear for trial, the only evidence concerning whether defendant had notice of the trial date was a note in the trial court's file, of which the trial court took judicial notice under Va. Sup. Ct. R. 2:201 without objection, indicating that defendant contacted the trial court minutes before the trial was set to commence and informed it that he was "running late," and, based on that message, it was not unreasonable for the trial court to conclude that he had notice of the trial date. Nelson v. Commonwealth, No. 0227-15-2, 2015 Va. App. LEXIS 390 (Dec. 22, 2015).

Evidence presented at trial was sufficient for a rational trier of fact to conclude defendant willfully failed to appear, as defendant had notice of the date and time of trial and the jury was entitled to reject testimony that defendant's aunt was responsible for his failure to appear on time. Cosby v. Commonwealth, No. 1982-16-2, 2017 Va. App. LEXIS 290 (Nov. 21, 2017).

Defendant's conviction for felony failure to appear was supported by evidence that defendant had actual personal notice of the hearing date and that his attorney had actual knowledge of that hearing date, allowing the jury to reasonably infer defendant received timely notice of when and where he was to appear in court and to conclude that his failure to appear was in fact willful. Chavez v. Commonwealth, 69 Va. App. 149, 817 S.E.2d 330, 2018 Va. App. LEXIS 223 (2018).

Evidence sufficient to infer willful failure to appear. - Based on the evidence that defendant had notice of the date, time and place of his scheduled felony trial, that he failed to appear, that he purposefully engaged in conduct that prevented receipt of notice, and that he left the state in violation of the conditions of his bail bond, the jury could reasonably infer that defendant willfully failed to appear at his felony trial. Hunter v. Commonwealth, 15 Va. App. 717, 427 S.E.2d 197 (1993).

Where defendant contended that because he was incarcerated in Maine at the time of trial he did not have the intent to "willfully" fail to appear, the facts and circumstances of this case showed that the defendant escaped from jail, fled to Maine, was captured and held in jail, and did not inform his counsel or the Commonwealth of his whereabouts. Neither the Commonwealth nor defendant's counsel had any idea of his location until he was returned by Maine. Upon this evidence the jury was entitled to infer that his intent was not to appear for trial. Hooper v. Commonwealth, No. 2100-96-1 (Ct. of Appeals Sept. 23, 1997).

Traffic summons was a public record as it became the charging document on which a general district court tried an accused, under § 16.1-129, and if an accused willfully violated his written promise to appear in court, given when he signed the summons, he could be convicted for failure to appear under § 19.2-128 , regardless of the disposition of, and in addition to, the charge upon which he was originally arrested, under subdivision A 3 of § 19.2-74 , and, given this statutory scheme, each signed summons clearly could constitute a separate offense under § 18.2-168 , regarding forgery of a public document. Hines v. Commonwealth, 39 Va. App. 752, 576 S.E.2d 781, 2003 Va. App. LEXIS 92 (2003).

Court records reflecting that defendant was recognized to appear in court on the specified date as part of his bond was prima facie evidence proving defendant's knowledge of the court date; thus, the evidence was sufficient to sustain defendant's conviction for felony failure to appear since defendant failed to show why his absence was not willful. Gillard v. Commonwealth, No. 0037-02-2, 2003 Va. App. LEXIS 437 (Ct. of Appeals Aug. 19, 2003).

Where the state showed that defendant's failure to appear was "willful," and she failed to rebut that showing, the evidence supported conviction; defendant had notice but did not appear so it was inferred her failure to appear was willful. James v. Commonwealth, No. 3005-02-3, 2003 Va. App. LEXIS 617 (Ct. of Appeals Dec. 2, 2003).

Evidence that defendant knew he had an upcoming review hearing, yet failed to maintain contact with his attorney and failed to keep his attorney or the court advised of his whereabouts, and that defendant knew maintaining contact with his probation officer was a condition imposed by the trial judge, yet failed to do so and specifically testified that he "absconded," was sufficient to support a conviction for failure to appear. Ferguson v. Commonwealth,, 2007 Va. App. LEXIS 72 (Feb. 27, 2007).

Conviction for felony failure to appear under § 19.2-128 was supported by evidence defendant's name and address was clearly and correctly present on the face of the subpoena, which clearly indicated the date and time defendant was expected to appear, included the name, address, and phone number of the court, and instructed defendant to "PLEASE NOTE CHANGE OF COURT DATE FROM 6/22/05." Koral v. Commonwealth,, 2007 Va. App. LEXIS 213 (May 22, 2007).

Although defendant was incarcerated in Maryland on the day of defendant's North Carolina trial, there was sufficient evidence that defendant violated subsection B of § 19.2-128 since: (1) defendant left Virginia in violation of the conditions of defendant's bond; (2) defendant did not contact or attempt to contact defendant's attorney or the trial court to notify them of defendant's whereabouts; (3) defendant's Maryland probation officer testified that defendant's real name and birth date were other than those given to the North Carolina authorities at the time of defendant's arrest; and (4) the jury could infer that defendant's failure to appear was willful, and that defendant presented a false identification card when defendant was arrested to evade prosecution. Nelson v. Commonwealth, 50 Va. App. 413, 650 S.E.2d 562, 2007 Va. App. LEXIS 343 (2007).

Evidence was sufficient to support defendant's conviction for failure to appear in violation of § 19.2-128 because defendant was charged with notice of the trial date since the documents that the trial court noticed proved that defendant was given notice of his original trial date by a recognizance bond, which he signed, and established that the trial court entered an order continuing defendant's case; those documents provided prima facie evidence that defendant's failure to appear was willful, and the trial court was entitled to infer that defendant's failure to appear was willful. Williams v. Commonwealth, 57 Va. App. 750, 706 S.E.2d 530, 2011 Va. App. LEXIS 96 (2011).

Evidence was sufficient to convict defendant of failure to appear as the record contained sufficient evidence of willfulness because a trooper testified that defendant was present on May 2, 2018, the date from which the proceedings were continued, and that he had notice to appear on June 11, 2018; defendant testified that there was no excuse for his missing court and that it was a complete lapse of memory; the circuit court reasonably inferred from his statements that defendant knew when and where he was required to appear; and the circuit court was not required to believe that defendant forgot about the court appearance and could also infer that, as defendant knew about the court appearance and did not appear, his absence was intentional. Partain v. Commonwealth, No. 0488-19-1, 2019 Va. App. LEXIS 311 (Dec. 27, 2019).

Evidence of willfulness insufficient. - "Willfulness" element of felony failure to appear, subsection B of § 19.2-128 , was not proven because defendant, who did not have a driver's license, contacted three people to transport him to court on the required date and contacted the clerk of the circuit court to inform the circuit court of his lack of transportation. Abell v. Commonwealth,, 2007 Va. App. LEXIS 94 (Mar. 13, 2007).

Trial court erred in convicting defendant of failure to appear in violation of § 19.2-128 because the evidence was insufficient to show that defendant's failure to appear was willful; the evidence was insufficient to show that defendant had notice of the order to appear on a certain date, and although the trial court had made an oral ruling setting a new trial date, it did not enter the written order memorializing that action until the actual date on which defendant was required to appear. Williams v. Commonwealth, 57 Va. App. 750, 706 S.E.2d 530, 2011 Va. App. LEXIS 96 (2011).

Evidence insufficient to prove actual notice. - Evidence was insufficient to support defendant's conviction for felony failure to appear, as it did not show that she had notice of the date and time of the hearing she was supposed to attend, which was set out in the warrant allegedly served upon her, or that the trial court took judicial notice of the hearing date and time contained in the warrant; accordingly, it was not shown that she willfully failed to appear at that hearing, and, thus, her conviction for felony failure to appear had to be reversed. Edmonds v. Commonwealth, 43 Va. App. 197, 597 S.E.2d 210, 2004 Va. App. LEXIS 275 (2004).

Conviction for willfully failing to appear in violation of subsection B of § 19.2-128 was reversed because the trial court failed to instruct the jury on the standard procedure of trial court, which included notification to the accused of the date the accused must reappear after a continuance has been granted due to the accused's failure to have counsel, leaving the jury with insufficient evidence to prove actual notice. Thomas v. Commonwealth, 48 Va. App. 605, 633 S.E.2d 229, 2006 Va. App. LEXIS 379 (2006).

Evidence held insufficient. - The evidence was insufficient to support the defendant's conviction for willfully failing to appear, where the only evidence presented by the Commonwealth was that the defendant was not in court on a specific date, but the record did not indicate that the defendant was required to appear on that date and, instead, reflected that she was scheduled to appear on a later date. Wiglesworth v. Commonwealth, No. 1291-99-2, 2000 Va. App. LEXIS 276 (Ct. of Appeals Apr. 11, 2000).

The evidence was insufficient to convict defendant of the felony of willfully failing to appear in the trial court since the applicable statute required that in order to be convicted under that statute, § 19.2-128 B(i), a person had to be charged with a felony; where defendant had not been charged with a felony for purposes of appearing in front of the trial court, but instead was supposed to appear before the trial court at a show cause hearing on a probation violation defendant could not be convicted under it. Lawson v. Commonwealth, 38 Va. App. 93, 561 S.E.2d 775, 2002 Va. App. LEXIS 212 (2002).

Waiver of right to challenge willfulness. - Defendant waived the right to challenge the sufficiency of the evidence to prove willfulness for failure to appear purposes in any way other than by notice to him because he did not object with specificity on any other basis in the trial court; his narrow argument preserved for appeal, that he did not receive notice of the trial date, even if accurate, failed to establish that the evidence was insufficient to prove willfulness in other recognized ways and his conviction was affirmed on waiver principles. Burgess v. Commonwealth, No. 1270-19-1, 2020 Va. App. LEXIS 158 (May 26, 2020).

Applied in Bottoms v. Commonwealth, 281 Va. 23 , 704 S.E.2d 406, 2011 Va. LEXIS 22 (2011).

§ 19.2-129. Power of court to punish for contempt.

Nothing in this chapter shall interfere with or prevent the exercise by any court of the Commonwealth of its power to punish for contempt, except that a person shall not be sentenced for contempt and under the provisions of § 19.2-128 for the same absence.

(Code 1950, § 19.1-109.8; 1973, c. 485; 1975, c. 495.)

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

§ 19.2-130. Bail in subsequent proceeding arising out of initial arrest.

  1. Any person admitted to bail by a judge or clerk of a district court or by a magistrate shall not be required to be admitted to bail in any subsequent proceeding arising out of the initial arrest unless the court having jurisdiction of such subsequent proceeding deems the initial amount of bond or security taken inadequate. When the court having jurisdiction of the proceeding believes the amount of bond or security inadequate or excessive, it may change the amount of such bond or security, require new and additional sureties, or set other terms of bail as are appropriate to the case, including, but not limited to, drug and alcohol monitoring. The court may, after notice to the parties, initiate a proceeding to alter the terms and conditions of bail on its own motion.
  2. Any motion to alter the terms and conditions of bail where the initial bail decision is made by a judge or clerk of a district court or by a magistrate on any charge originally pending in that district court shall be filed in that district court unless (i) a bail decision is on appeal, (ii) such charge has been transferred pursuant to § 16.1-269.1 to a circuit court, or (iii) such charge has been certified by a district court.

    (Code 1950, § 19.1-111.1; 1972, c. 366; 1975, c. 495; 1978, c. 755; 1991, c. 581; 2008, cc. 363, 812; 2019, c. 616.)

The 2008 amendments. - The 2008 amendments by cc. 363 and 812 are identical, and substituted "security inadequate or excessive, it may change the amount of such bond or security, require new and additional sureties, or set other terms of bail as are appropriate to the case, including, but not limited to, drug and alcohol monitoring" for "security inadequate, it may increase the amount of such bond or security or require new and additional sureties" in the second sentence and added the last sentence.

The 2019 amendments. - The 2019 amendment by c. 616 inserted the subsection A designation and added subsection B.

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

For article, "Criminal Law and Procedure," see 54 U. Rich. L. Rev. 31 (2019).

§ 19.2-130.1. Bail terms set by court on a capias to be honored by magistrate.

A magistrate who is to set the terms of bail of a person arrested and brought before him pursuant to § 19.2-234 shall, unless circumstances exist that require him to set more restrictive terms, set the terms of bail in accordance with the order of the court that issued the capias, if such an order is affixed to or made a part of the capias by the court.

(2010, cc. 312, 375; 2011, c. 112.)

The 2011 amendments. - The 2011 amendment by c. 112 substituted "shall, unless circumstances exist that require him to set more restrictive terms, set the terms of bail" for "shall do so."

§ 19.2-131. Bail for person held in jurisdiction other than that of trial.

In any case in which a person charged with a misdemeanor or felony, or a juvenile taken into custody pursuant to § 16.1-246 is held in some county, city or town other than that in which he is to be tried upon such charge, he may be admitted to bail by any judicial officer of the county, city or town in which he is so held in accordance with the provisions of law concerning the granting of bail in cases in which persons are so admitted to bail, when held in the county, city or town in which they are to be tried.

In such case, such judicial officer before whom he is brought may, without trial or examination, let him to bail, upon taking a recognizance for his appearance before the court having cognizance of the case. The fact of taking such recognizance shall be certified by the court or officer taking it upon the warrant under which such person was arrested or taken into custody and the warrant and recognizance shall be returned forthwith to the clerk of the court before whom the accused or juvenile taken into custody pursuant to § 16.1-246 is to appear. And to such court, the judicial officer who issued such warrant shall recognize or cause to be summoned such witnesses as he may think proper.

(Code 1950, §§ 19.1-118, 19.1-119; 1960, c. 366; 1975, c. 495; 1978, c. 755; 1992, c. 576.)

§ 19.2-132. Motion to increase amount of bond fixed by judicial officer; when bond may be increased.

  1. If the amount of any bond fixed by a judicial officer is subsequently deemed insufficient, or the security taken inadequate, or if it appears that bail should have been denied or that the person has violated a term or condition of his release, or has been convicted of or arrested for a felony or misdemeanor, the attorney for the Commonwealth of the county or city in which the person is held for trial may, on reasonable notice to the person and, if such person has been admitted to bail, to any surety on the bond of such person, move the appropriate judicial officer to increase the amount of such bond or to revoke bail. The court may grant such motion and may require new or additional sureties therefor, or both, or revoke bail. Any surety in a bond for the appearance of such person may take from his principal collateral or other security to indemnify such surety against liability. The failure to notify the surety will not prohibit the court from proceeding with the bond hearing.

    The court ordering any increase in the amount of such bond, ordering new or additional sureties, or both, or revoking such bail may, upon appeal, and for good cause shown, stay execution of such order for so long as reasonably practicable for such person to obtain an expedited hearing before the court to which such order has been appealed.

  2. Any motion filed pursuant to subsection A where the initial bail decision is made by a judge or clerk of a district court or by a magistrate on any charge originally pending in that district court shall be filed in that district court unless (i) a bail decision is on appeal, (ii) such charge has been transferred pursuant to § 16.1-269.1 to a circuit court, or (iii) such charge has been certified by a district court.

    (Code 1950, § 19.1-120; 1960, c. 366; 1975, c. 495; 1978, c. 755; 1989, c. 519; 1991, c. 581; 1999, cc. 829, 846; 2010, cc. 404, 592; 2013, cc. 408, 474; 2019, c. 616.)

Cross references. - As to constitutional provision against excessive bail, see Va. Const., Art. I, § 9.

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and in subsection A, in the first sentence, substituted "person" for "party," inserted "or if it appears that bail should have been denied," substituted "person" for "accused or juvenile taken into custody pursuant to § 16.1-246," substituted "person" for "accused or juvenile," substituted "person" for "accused or juvenile," substituted "such person" for "such accused or juvenile," and added "or to revoke bail," inserted "or revoke bail" in the second sentence, and substituted "such person" for "such party"; in subsection B, substituted "person" for "accused or juvenile" twice, inserted "or revoke bail" following "such bond," and in clause (ii), substituted "person's family ties" for "accused's or juvenile's family ties," and inserted "whether the person is likely to obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate a prospective witness, juror, or victim."

The 2010 amendments. - The 2010 amendments by cc. 404 and 592 are identical, and deleted the subsection A designation; in the first sentence, substituted "If the amount of any bond fixed by a judicial officer" for "Although a person has been admitted to bail, if the amount of any bond," inserted "or that the person has violated a term or condition of his release, or has been convicted of or arrested for a felony or misdemeanor" and "if such person has been admitted to bail" and deleted "court, or the" preceding "appropriate judicial officer," and deleted "in accordance with subsection B" following "court may" in the second sentence; and deleted subsection B.

The 2013 amendments. - The 2013 amendments by cc. 408 and 474 are identical, and added the second paragraph.

The 2019 amendments. - The 2019 amendment by c. 616 inserted the subsection A designation and added subsection B; and inserted "or both" in the second paragraph of subsection A.

Law review. - For article, "Criminal Law and Procedure," see 54 U. Rich. L. Rev. 31 (2019).

CASE NOTES

Revocation of bail. - Nothing in this section prohibits or limits a trial court in an appropriate case from revoking the defendant's bail sua sponte upon learning information that establishes probable cause to believe the defendant is a danger to society. Dorsey v. Commonwealth, 32 Va. App. 154, 526 S.E.2d 787 (2000).

§§ 19.2-132.1, 19.2-133.

Repealed by Acts 1991, c. 581.

Cross references. - For current provision relating to when accused admitted to bail may be subject to a motion to increase his bond, see § 19.2-132 .

§ 19.2-134. When bail piece to be delivered to accused; form of bail piece.

In all cases in which recognizances, at the suit of the Commonwealth, may have been, or shall hereafter be entered into, it shall be the duty of the clerk of the court in which, or in the clerk's office of which, any recognizance is filed, to deliver to the accused and his sureties upon request, a bail piece, in substance, as follows: "A. B. of the county or city of ......, is delivered to bail, unto C. D. of the county or city of ......, at the suit of the Commonwealth. Given under my hand, this day of ........, in the year ............."

(Code 1950, § 19.1-123; 1960, c. 366; 1975, c. 495; 1991, c. 581; 1992, c. 576.)

§ 19.2-134.1. Collection and reporting of data related to adults charged with a criminal offense punishable by confinement in jail or a term of imprisonment.

  1. The Virginia Criminal Sentencing Commission shall, on an annual basis, collect statewide and locality-level data related to all adults charged with any criminal offense punishable by confinement in jail or a term of imprisonment in the Commonwealth. The Virginia Criminal Sentencing Commission may request data and shall be provided such data upon request from (i) every department, division, board, bureau, commission, authority, or other agency created by the Commonwealth, or to which the Commonwealth is a party, or any political subdivision thereof; (ii) any criminal justice agency as defined in § 9.1-101 ; and (iii) the clerk of each circuit court. If the statewide Circuit Court Case Management System is used by the circuit court clerk, the Executive Secretary of the Supreme Court shall provide for the transfer of such data upon request of the Virginia Criminal Sentencing Commission. The Virginia Criminal Sentencing Commission shall use the data only for research, evaluation, or statistical purposes and shall ensure the confidentiality and security of the data.
  2. The Virginia Criminal Sentencing Commission shall collect data as necessary to report on the following:
    1. Information about the individual charged, including sex, race, year of birth, and residential zip code;
    2. The type of charging document, including summons, warrant, direct indictment, or any other charging document;
    3. Information related to the offense or offenses with which the individual was charged, including (i) the date on which the individual was charged; (ii) the total number of charges; (iii) the Code section or county, city, or town ordinance under which the charge was issued; (iv) whether the charge was a felony, misdemeanor, or other type of offense; and (v) the classification of each such felony, misdemeanor, or other type of offense;
    4. Whether, at the time the individual was charged, that individual was a named defendant in any pending criminal proceeding in the Commonwealth;
    5. Whether, at the time the individual was charged, that individual was under the supervision of the Department of Corrections, any local community-based probation agency, or any pretrial services agency;
    6. Whether, at the time the individual was charged, that individual's criminal history record included any charges or convictions for failure to appear within the Commonwealth, and if so, the date of such charge or conviction;
    7. Whether, at the time the individual was charged, that individual's criminal history record included any conviction for any criminal offense committed within the Commonwealth, and if so, the offense for which that individual was convicted and the date of such conviction;
    8. Whether, at the time the individual was charged, that individual's criminal history record included any convictions for which the individual was ordered to serve an active term of incarceration;
    9. Information related to the individual's detention status at the time of the charge and any changes to the individual's detention status prior to the final disposition of the charge, including whether that individual was released on a summons, denied bail, or admitted to bail, and if admitted to bail, the date of release from custody;
    10. For those individuals who were detained at the time of the charge, information related to the conditions of bail and the bond initially ordered on the charge, including (i) whether bail was denied, (ii) whether the bond was secured or unsecured, and (iii) all monetary amounts set on the bond;
    11. For those individuals admitted to bail prior to the final disposition of the charge, whenever available, information related to the conditions of bail and the bond at the time that individual was admitted to bail, including (i) whether the bond was secured or unsecured, (ii) all monetary amounts set on the bond, (iii) whether that individual was ordered to be supervised by a pretrial services agency, and (iv) whether that individual utilized the services of a bail bondsman;
    12. Whether the individual was charged with failure to appear in the Commonwealth prior to the final disposition of the charge, and if so, the date on which the failure to appear was alleged to have occurred and whether the individual was convicted of the charge of failure to appear;
    13. Whether the individual was charged with any other criminal offense punishable by confinement in jail or a term of imprisonment in the Commonwealth prior to the final disposition of the charge, and if so, the offense for which the individual was charged, the date of the offense, the date of arrest, and whether the individual was convicted of the offense;
    14. Information related to the final disposition of the charge, including (i) the date of final disposition; (ii) whether the charge resulted in a conviction, dismissal, entry of a nolle prosequi, finding of not guilty, or other disposition; (iii) whether the individual was sentenced to a term of incarceration for such charge, and if so, the length of such term of incarceration and the length of time that the individual was incarcerated for such charge; (iv) whether the individual was placed under the supervision of the Department of Corrections; and (v) when available, whether the individual was placed under the supervision of any local community-based probation agency for such charge;
    15. Whether the individual was represented by a public defender or court-appointed attorney on the charge at the time of the final disposition of the case; and
    16. Any other data deemed relevant and reliable by the Virginia Criminal Sentencing Commission.
  3. The Virginia Criminal Sentencing Commission shall submit an annual report on the statewide and locality-level data collected pursuant to this section on or before December 1 to the General Assembly, the Governor, and the Office of the Executive Secretary of the Supreme Court of Virginia. Such report may include recommendations related to the collection of data.
  4. The Virginia Criminal Sentencing Commission shall annually make the statewide and locality-level data collected pursuant to this section publicly available on a website established and maintained by the Virginia Criminal Sentencing Commission on or before December 1. The data shall be made available as (i) an electronic dataset, excluding any personal and case identifying information, that may be downloaded by members of the public and (ii) an electronic interactive data dashboard tool that displays aggregated data based on characteristics or indicators selected by the user. The Virginia Criminal Sentencing Commission shall not be required to provide electronic data in a format not regularly used by the agency. Data containing any personal or case identifying information shall not be subject to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) and shall not be made publicly available.
  5. Nothing in this section shall require any (i) department, division, board, bureau, commission, authority, or other agency created by the Commonwealth, or to which the Commonwealth is a party, or any political subdivision thereof; (ii) criminal justice agency as defined in § 9.1-101 ; or (iii) clerk of circuit court to provide data to the Virginia Criminal Sentencing Commission if the requested data is not regularly maintained by such entity or if such data is prohibited from such disclosure under any other law or under the Virginia Rules of Professional Conduct. (2021, Sp. Sess. I, cc. 111, 112.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 111 and 112, cl. 2 provides: "That the Virginia Criminal Sentencing Commission shall not be required to submit an annual report or make statewide or locality-level data publicly available as required by subsections C and D of § 19.2-134.1 , as created by this act, prior to December 1, 2022."

Acts 2021, Sp. Sess. I, cc. 111 and 112, cl. 3 provides: "That the Virginia State Crime Commission shall provide the Virginia Criminal Sentencing Commission with the final dataset of all adults charged with a criminal offense punishable by confinement in jail or a term of imprisonment in October 2017 and that the Virginia Criminal Sentencing Commission shall make such statewide and locality-level data publicly available as an electronic dataset, excluding any personal and case identifying information, by October 1, 2021, and on an electronic interactive data dashboard tool that displays aggregated data based on characteristics or indicators selected by the user by December 1, 2022. The Virginia Criminal Sentencing Commission shall not be required to provide electronic data in a format not regularly used by the agency. Data from this dataset containing any personal or case identifying information shall not be subject to the Virginia Freedom of Information Act ( § 2.2-3700 et seq. of the Code of Virginia) and shall not be made publicly available."

Effective date. - This section is effective July 1, 2021.

Article 2. Recognizances.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 16. Continuances. § 16.04 Discretionary Continuances. Friend. Virginia Forms (Matthew Bender). No. 9-305. Motion for Show Cause Summons; No. 9-1114. Appeal of Bond Decision. No. 9-2408. Witness Recognizance.

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail & Recognizance, §§ 12-15, 24, 27, 30, 32; 3A M.J. Bonds, § 22; 5B M.J. Criminal Procedure, § 64.

§ 19.2-135. Commitment for trial; recognizance; notice to attorney for Commonwealth; remand on violation of condition.

When a judicial officer considers that there is sufficient cause for charging the accused or juvenile taken into custody pursuant to § 16.1-246 with a felony, unless it be a case wherein it is otherwise specially provided, the commitment shall be for trial or hearing. Any recognizance taken of the accused or juvenile shall be upon the following conditions: (1) that he appear to answer for the offense with which he is charged before the court or judge before whom the case will be tried at such time as may be stated in the recognizance and at any time or times to which the proceedings may be continued and before any court or judge thereafter in which proceedings on the charge are held; (2) that he shall not depart from the Commonwealth unless the judicial officer taking recognizance or a court in a subsequent proceeding specifically waives such requirement; and (3) that he shall keep the peace and be of good behavior until the case is finally disposed of. Every such recognizance shall also include a waiver such as is required by § 49-12 in relation to the bonds therein mentioned and though such waiver be not expressed in the recognizance it shall be deemed to be included therein in like manner and with the same effect as if it was so expressed. The judge shall return to the clerk of the court wherein the accused or juvenile is to be tried, or the case be heard as soon as may be, a certificate of the nature of the offense, showing whether the accused or juvenile was committed to jail or recognized for his appearance; and the clerk, as soon as may be, shall inform the attorney for the Commonwealth of such certificate.

The court may, in its discretion, in the event of a violation of any condition of a recognizance taken pursuant to this section, remand the principal to jail until the case is finally disposed of, and if the principal is remanded to jail, the surety is discharged from liability.

When a recognizance is taken of a witness in a case against an accused or juvenile, the condition thereof shall be that he appear to give evidence in such case and that he shall not depart from the Commonwealth without the leave of such court or judge.

(Code 1950, §§ 19.1-125, 19.1-128, 19.1-133; 1960, c. 366; 1968, c. 639; 1975, c. 495; 1977, c. 287; 1978, c. 755; 1979, c. 735; 1988, c. 688; 1992, c. 576.)

CASE NOTES

Standing of Commonwealth to challenge 1979 amendment. - The Commonwealth had no standing to assert the constitutional rights of those posting cash bonds where the Commonwealth argued that the classification created by the 1979 amendment to this section discriminated against those posting cash bonds in violation of the equal protection clause. Esper Bonding Co. v. Commonwealth, 222 Va. 595 , 283 S.E.2d 185 (1981).

Form of condition. - A recognizance should show on its face that the condition it contains is to do some act, for the performance of which such an obligation may be properly taken, and that the court or officer before whom it is taken has authority to act in cases of that general character. Cannon v. Commonwealth, 96 Va. 573 , 32 S.E. 33 (1899).

Both the principal and his surety were estopped to question the constitutionality of the good behavior condition in this section and in the bonds executed under it where they accepted the benefits conferred by the section. Bisping v. Commonwealth, 218 Va. 753 , 240 S.E.2d 656, cert. denied, 435 U.S. 1007, 98 S. Ct. 1878, 56 L. Ed. 2d 389 (1978).

Judge need not find accused "guilty" of crime to revoke bail. - To revoke bail, the judge is not required to find that the accused was "guilty" of a crime or that a breach of the good behavior condition upon which he had been admitted to bail has been established by a preponderance of the evidence. Heacock v. Commonwealth, 228 Va. 235 , 321 S.E.2d 645 (1984).

§ 19.2-136. How bonds in recognizances payable; penalty.

Bonds in recognizances in criminal or juvenile cases shall be payable to the county or city in which the case is prosecuted. The treasurer or director of finance of such locality may engage in collection activity regarding the judgment of default rendered pursuant to § 19.2-143 . Any responses to the judgment of default rendered pursuant to § 19.2-143 shall be filed with the court, with notice given to such locality. Every bond under this title shall be in such sum as the court or officer requiring it may direct.

(Code 1950, § 19.1-127; 1960, c. 366; 1973, c. 485; 1975, c. 495; 1978, c. 755; 1991, c. 581; 2011, c. 802; 2012, c. 408.)

Cross references. - As to increase in amount of bail, see § 19.2-132 .

As to recognizance containing waiver, see § 19.2-135 .

As to recognizance for mentally incapacitated persons, see § 19.2-141 .

As to effect of defects in form of recognizance, see § 19.2-146 .

The 2011 amendments. - The 2011 amendment by c. 802 rewrote the first two sentences, which read: "Bonds in recognizances in criminal or juvenile cases, where the violation is committed against the Commonwealth or where the Commonwealth is a party, shall be payable to the Commonwealth of Virginia. Bonds in recognizances in criminal cases where the violation is a violation of a county, city or town ordinance, shall be payable to such county, city or town"; and added the third sentence.

The 2012 amendments. - The 2012 amendment by c. 408 substituted "to the county or city in which the case is prosecuted" for "to the county, city or town wherein the recognizance was taken" at the end of the first sentence, substituted "locality" for "county, city or town" in the second sentence, and substituted "notice given to such locality" for "notice given to the county, city or town wherein the recognizance was taken" at the end of the third sentence.

Law review. - For note, "Grand Jury Reform: A Proposal for Change in Virginia," see 23 U. Rich. L. Rev. 279 (1989).

CASE NOTES

The examining court must enter of record that the prisoner was bailable and fix the amount of bail. Saunders v. Commonwealth, 44 Va. (3 Gratt.) 214 (1846).

§ 19.2-137. Order of court on recognizance.

When such recognizance is taken by a court of a person to answer a charge or of a witness to give evidence it shall be sufficient for the order of the court taking the recognizance to state that the party or parties recognized were duly recognized upon a bond in such sum as the court may have directed with such surety as the court may have accepted for his or their appearance before such court at such time as may have been prescribed by the court to answer for the offense with which such person is charged or to give evidence, as the case may be.

(Code 1950, § 19.1-129; 1960, c. 366; 1975, c. 495; 1991, c. 581.)

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, § 3.

§§ 19.2-138 through 19.2-140.

Repealed by Acts 1987, c. 670.

Cross references. - As to cash bonds, see § 19.2-143 .

§ 19.2-141. How recognizance taken for incapacitated or insane person or one under disability.

A recognizance which would be taken of a person but for his being a minor, insane or otherwise mentally incapacitated, may be taken of another person and without further surety, if such other person is deemed sufficient, for the performance by such minor, insane or otherwise incapacitated person, of the conditions of the recognizance.

(Code 1950, § 19.1-134; 1960, c. 366; 1975, c. 495; 1997, c. 801.)

Editor's note. - Acts 1997, c. 801, cl. 2, provides: "That the provisions of this act shall become effective on January 1, 1998. The powers granted and duties imposed pursuant to this act shall apply prospectively to guardians and conservators appointed by court order entered on or after that date, or modified on or after that date if the court so directs, without regard to when the petition was filed. The procedures specified in this act governing proceedings for appointment of a guardian or conservator or termination or other modification of a guardianship shall apply on and after that date without regard to when the petition therefor was filed or the guardianship or conservatorship created."

§ 19.2-142. Where recognizance taken out of court to be sent.

A person taking a recognizance out of court shall forthwith transmit it to the clerk of the court for appearance before which it is taken; or, if it be not for appearance before a court, to the clerk of the circuit court of the county or city in which it is taken; and it shall remain filed in the clerk's office.

(Code 1950, § 19.1-136; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, § 18.

§ 19.2-143. Where default recorded; process on recognizance; forfeiture on recognizance; when copy may be used; cash bond.

When a person, under recognizance in a case, either as party or witness, fails to perform the condition of appearance thereof, if it is to appear before a court of record, or a district court, the court shall record the default therein, and shall issue a notice of default within five days of the breach of the condition of appearance.

If the defendant or juvenile is brought before the court within 150 days of the findings of default, the court shall dismiss the default upon the filing of a motion by the party in default. After 150 days of the finding of default, his default shall be recorded therein, and if it is to appear before a district court, his default shall be entered by the judge of such court, on the case papers unless the defendant or juvenile has been delivered or appeared before the court. The process on any such forfeited recognizance shall be issued from the court before which the appearance was to be, and wherein such forfeiture was recorded or entered. Any such process issued by a judge shall be made returnable before, and tried by, such judge, who shall promptly transmit to the clerk of the circuit court of his county or city wherein deeds are recorded an abstract of such judgment as he may render thereon, which shall be forthwith docketed by the clerk of such court. If the forfeited recognizance is not paid by 4:00 p.m. on the last day of the 150-day period from the finding of default, the license of any bail bondsman on the bond shall be suspended in accordance with § 9.1-185.8 . At such time, the court shall issue a notice to pay within 10 business days to any employer of such bail bondsman if a property bondsman. If the forfeiture is not paid within 10 business days of the notice to pay, licenses of the employer of the bail bondsman and agents thereof shall be suspended in accordance with § 9.1-185.8 .

If the defendant or juvenile appears before or is delivered to the court within 24 months of the findings of default, the court shall remit any bond previously ordered forfeited by the courts, less such costs as the court may direct.

If it is brought to the attention of the court that the defendant or juvenile is incarcerated in another state or country within 48 months of the finding of default, thereby preventing his delivery or appearance within that period, the court shall remit any bond previously ordered forfeited. If the defendant or juvenile left the Commonwealth with the permission of the court, the bond shall be remitted without deduction of costs; otherwise, the cost of returning him to the Commonwealth shall be deducted from the bond.

Evidence that the defendant or juvenile is incarcerated or subject to court process in another jurisdiction on the day his appearance is required or a medical certificate from a duly licensed physician that the defendant was physically unable to so appear shall be considered evidence of good cause why the recognizance should not be forfeited.

If such recognizance so forfeited is not for such appearance, process thereon shall be issued from the court in which it was taken, or the court to which it was made returnable, and in a proceeding in one court on a recognizance entered in another a copy thereof shall be evidence in like manner as the original would be if it had been entered in the court wherein the proceeding is being had thereon.

However, when any defendant or juvenile who posted a cash bond and failed to appear is tried in his absence and is convicted, the court or judge trying the case shall first apply the cash bond, or so much thereof as may be necessary, to the payment of any fines or costs, or both, adjudged against the defendant or juvenile or imposed by law. Any remaining funds shall be forfeited without further notice. However, if a rehearing is granted, the court may remit part or all of such cash bond not applied ultimately to fines or costs, and order a refund of the same by the State Treasurer, or by the treasurer or director of finance of the locality, if the bond was collected by a locality pursuant to § 19.2-136 , but only if good cause is shown.

If the defendant or juvenile posted a cash bond and failed to appear, but is not tried in his absence, the bond shall be forfeited promptly without further notice. However, if the defendant or juvenile appears in court within 60 days after the bond is forfeited, the judge may remit part or all of any bond previously forfeited and order a refund of the same by the State Treasurer, or by the treasurer or director of finance of the locality, if the bond was collected by a locality pursuant to § 19.2-136 .

(Code 1950, § 19.1-137; 1960, c. 366; 1962, c. 499; 1970, c. 371; 1973, c. 409; 1975, c. 495; 1978, c. 755; 1979, c. 735; 1987, c. 670; 1988, c. 443; 1990, c. 624; 2000, c. 885; 2003, c. 840; 2005, c. 585; 2006, cc. 296, 316; 2011, c. 802; 2012, c. 408; 2019, c. 200.)

Cross references. - As to when penalty of recognizance remitted, see § 19.2-145 .

As to action on recognizance not being defeated by defect in form of recognizance, see § 19.2-146 .

As to limitation of action on recognizance, see § 8.01-246 .

The 2000 amendments. - The 2000 amendment by c. 885 added the second sentence in the first paragraph.

The 2003 amendments. - The 2003 amendment by c. 840 substituted "45" for "forty-five" in the second sentence of the first paragraph; substituted "60" for "sixty" in the first and second sentences of the second paragraph and in the second sentence of the last paragraph; substituted "on the case papers unless" for "on the page of his docket whereon the case is docketed unless" in the second sentence of the second paragraph; and substituted "12" for "twelve" in the third paragraph and in the first sentence of the fourth paragraph.

The 2005 amendments. - The 2005 amendment by c. 585, substituted "48 months" for "12 months" in the fourth paragraph.

The 2006 amendments. - The 2006 amendment by c. 296 substituted "150 days" for "60 days" in two places in the second paragraph; and substituted "24 months" for "12 months" in the third paragraph.

The 2006 amendment by c. 316, in the second paragraph, deleted the comma following "unless" in the first sentence and "when the penalty of the recognizance so forfeited is in excess of the maximum jurisdictional amount specified in § 16.1-77 (1) shall be made returnable to the circuit court of his county or city, and when not in excess of such amount it" following "by a judge" in the last sentence.

The 2011 amendments. - The 2011 amendment by c. 802, in the last two paragraphs, inserted "or by the treasurer or director of finance of the county, city or town, if the bond was collected by a county, city or town pursuant to § 19.2-136 ."

The 2012 amendments. - The 2012 amendment by c. 408 substituted "locality" for "county, city or town" in the last two paragraphs.

The 2019 amendments. - The 2019 amendment by c. 200 in the first paragraph substituted "the court shall record the default therein, and shall issue a notice of default within five" for "a hearing shall be held upon reasonable notice to all parties affording them opportunity to show cause why the recognizance or any part thereof should not be forfeited. The show cause notice shall be issued within 45"; in the second paragraph, deleted "the court finds the recognizance or any part thereof should be forfeited, the default shall be recorded therein, unless" following "If" and inserted "the court shall dismiss the default upon the filing of a motion by the party in default" in the first sentence and added the last three sentences.

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, §§ 3, 27-31 .

CASE NOTES

Bail revocation and bond forfeiture proceedings may be combined. - While nothing in the statutes requires that a bail revocation proceeding and a bond forfeiture proceeding be combined for hearing, nothing forbids such a procedure. Heacock v. Commonwealth, 228 Va. 235 , 321 S.E.2d 645 (1984) (decided prior to the 1987 amendment).

Improper to use finding of probable cause to revoke bail as proof in bond forfeiture proceeding. - The surety was denied procedural due process in a bond forfeiture hearing by the treatment of the finding of probable cause in the bail revocation hearing as prima facie proof for purposes of the bond forfeiture proceeding. Heacock v. Commonwealth, 228 Va. 235 , 321 S.E.2d 645 (1984) (decided prior to the 1987 amendment).

Judge need not find accused "guilty" of crime to revoke bail. - To revoke bail, the judge is not required to find that the accused was "guilty" of a crime or that a breach of the good behavior condition upon which he had been admitted to bail has been established by a preponderance of the evidence. Heacock v. Commonwealth, 228 Va. 235 , 321 S.E.2d 645 (1984).

Standard of proof in bail revocation and bond forfeiture proceedings compared. - Probable cause is the standard of proof in a bail revocation proceeding. On the other hand, the effort of the Commonwealth to collect a debt due by reason of the forfeiture of the recognizance is a matter purely civil, and the Commonwealth must prove its case by a preponderance of the evidence. Heacock v. Commonwealth, 228 Va. 235 , 321 S.E.2d 645 (1984) (decided prior to the 1987 amendment).

Burden of proof. - The movant in a show-cause proceeding has the burden of proving the premise of the show-cause order, and, if the movant makes a prima facie case, the burden shifts to the other party to go forward with the evidence. Heacock v. Commonwealth, 228 Va. 235 , 321 S.E.2d 645 (1984).

Surety is essential party to bond forfeiture proceeding. - A surety on a cash recognizance has no viable due process complaint about the proceeding to revoke bail. He was not a party to that proceeding and, accordingly, had no standing to challenge lack of notice and no right to call or cross-examine witnesses. As surety on the cash recognizance, however, he is an essential party to the bond forfeiture proceeding and, under the provisions of § 19.2-135 and this section, is entitled to notice and hearing. Heacock v. Commonwealth, 228 Va. 235 , 321 S.E.2d 645 (1984) (decided prior to the 1987 amendment).

Limitation of notice requirement. - The notice required by this section is limited to "a hearing ... to show cause" why a bail bond should not be forfeited. The statutory language cannot be stretched to include a requirement for notice to a surety of the nonappearance of a defendant. Commonwealth v. Allstate Bonding Co., 246 Va. 189 , 435 S.E.2d 396 (1993).

Lack of standing. - Where sureties failed to satisfy dual burden assumed under the bond agreement of taking some action to secure the defendant's appearance and of ascertaining whether the action was successful, they were in no position to complain when the Commonwealth failed to notify them of the defendants' nonappearance until 13 months to more than three years after the fact. Commonwealth v. Allstate Bonding Co., 246 Va. 189 , 435 S.E.2d 396 (1993).

Since a surety has no standing to challenge lack of notice of a defendant's bail revocation hearing, there is no reason why a surety would have standing to challenge lack of notice of a defendant's initial nonappearance. Commonwealth v. Allstate Bonding Co., 246 Va. 189 , 435 S.E.2d 396 (1993).

CIRCUIT COURT OPINIONS

Time limits not met. - Commonwealth had failed to comply with the 45-day rule in § 19.2-143 with respect to the felony charges where the date that defendant first failed to appear on those charges was more than 45 days before the show cause order. Commonwealth v. Hunter,, 2006 Va. Cir. LEXIS 445 (Lancaster County June 29, 2006).

Commonwealth had complied with the 45-day rule in § 19.2-143 with respect to a misdemeanor charge where defendant's to appear on his misdemeanor charge on either January 12, 2006 or February 7, 2006, constituted a violation of the recognizance condition of appearance on the misdemeanor for which timely notice of forfeiture to the surety was made by the court order of February 16, 2006. Commonwealth v. Hunter,, 2006 Va. Cir. LEXIS 445 (Lancaster County June 29, 2006).

§ 19.2-144. Forfeiture of recognizance while in military or naval service.

If in any motion, action, suit or other proceeding made or taken in any court of this Commonwealth on a forfeited bail bond or forfeited recognizance, or to enforce the payment of the bond in any manner or any judgment thereon, or to forfeit any bail bond or recognizance, it appears that the person for whose alleged default such bail bond or recognizance was forfeited or judgment rendered, or such motion is made or proceeding taken, was prevented from complying with the condition of such bail bond or recognizance by reason of his having enlisted or been drafted in the army or navy of the United States, then judgment or decree on such motion, action, suit or other proceeding shall be given for the defendant.

(Code 1950, § 19.1-139; 1960, c. 366; 1975, c. 495; 1991, c. 581.)

§ 19.2-145. How penalty remitted.

When in an action or on a motion to extend the period for enforcement of a judgment on a recognizance the penalty is adjudged to be forfeited the court may on an application of a defendant or juvenile remit the penalty or any part of it and render judgment on such terms and conditions as it deems reasonable.

(Code 1950, § 19.1-140; 1960, c. 366; 1975, c. 495; 1978, c. 755; 1982, c. 153.)

Cross references. - As to discharge of recognizance in misdemeanor cases where injured party acknowledges satisfaction, etc., see §§ 19.2-151 and 19.2-152 .

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, § 20.

CASE NOTES

Court has discretion. - The statute invests the courts with discretionary powers to meet the exigencies of particular cases by remitting the penalty in whole or in part, and rendering judgment on such terms and conditions as it deems reasonable. Caldwell v. Commonwealth, 55 Va. (14 Gratt.) 698 (1858); Bolanz v. Commonwealth, 65 Va. (24 Gratt.) 31 (1873); Bowling v. Commonwealth, 123 Va. 340 , 96 S.E. 739 (1918).

This section, which is an extension of the common-law rule, invests the courts with discretionary power to meet the exigencies of the particular case. Bisping v. Commonwealth, 218 Va. 753 , 240 S.E.2d 656, cert. denied, 435 U.S. 1007, 98 S. Ct. 1878, 56 L. Ed. 2d 389 (1978).

Section does not apply when final judgment entered. - The discretion vested in the trial court by this section is limited to cases in which there is a pending action or scire facias on the recognizance which has been forfeited, and does not extend to cases in which final judgment has been entered in the action or scire facias. In the latter class of cases the recognizance, as such, no longer remains in court. Jordan v. Commonwealth, 135 Va. 560 , 115 S.E. 569 (1923).

This is true where the trial court did not pass on the merits of the case, but denied relief solely on the ground that it had no control over the final judgment on the scire facias which had been entered at a former term. Jordan v. Commonwealth, 135 Va. 560 , 115 S.E. 569 (1923).

Impossibility of performance as excuse for breach. - Bail will generally be exonerated from liability where the performance of the conditions of the recognizance are rendered impossible by the act of God, the act of the law, or the act of the obligee. Caldwell v. Commonwealth, 55 Va. (14 Gratt.) 698 (1858); Bowling v. Commonwealth, 123 Va. 340 , 96 S.E. 739 (1918).

The prisoner's confinement in the state correctional facility for another felony having rendered it impossible for him to appear at the court at the time prescribed by the recognizance, it constitutes a good defense for the bail to the scire facias. Caldwell v. Commonwealth, 55 Va. (14 Gratt.) 698 (1858).

Where the bail was guilty of no negligence whatever, and, without fault on his part, the attorney for the Commonwealth, with full knowledge of the facts voluntarily suffered the principal to be taken out of the control of his bondsmen by federal authority, by which act the latter was rendered powerless to produce the principal at the time and place of trial the bail should be exonerated from liability upon recognizance. Bowling v. Commonwealth, 123 Va. 340 , 96 S.E. 739 (1918).

It is not competent for the accused to absolve himself or his bail by accepting a federal office. Bolanz v. Commonwealth, 65 Va. (24 Gratt.) 31 (1873).

Discretion not abused. - Where the record conclusively showed that the principal, while on bail, violated the specific good behavior condition of the recognizances by committing additional crimes of the same nature and character as his earlier convictions, and no evidence was adduced at the scire facias (now motion to extend) hearing by either the principal or the surety in explanation, excuse, mitigation or palliation of the principal's flagrant violation of the condition, the trial court did not abuse its discretion in failing to remit the whole or any part of the forfeiture. Bisping v. Commonwealth, 218 Va. 753 , 240 S.E.2d 656, cert. denied, 435 U.S. 1007, 98 S. Ct. 1878, 56 L. Ed. 2d 389 (1978).

§ 19.2-146. Defects in form of recognizance not to defeat action or judgment.

No action or judgment on a recognizance shall be defeated or arrested by reason of any defect in the form of the recognizance, if it appear to have been taken by a court or officer authorized to take it and be substantially sufficient.

(Code 1950, § 19.1-141; 1960, c. 366; 1975, c. 495.)

Cross references. - As to form and sufficiency of recognizance, etc., see § 19.2-135 .

CASE NOTES

The words "action or judgment" as used in this section are broad enough to include a proceeding by scire facias. The award of execution on a recognizance is commonly spoken of as a judgment on a scire facias. Walker v. Commonwealth, 144 Va. 648 , 131 S.E. 230 (1926).

"Substantially sufficient." - A recognizance is not invalid because it required defendant in a prosecution for violation of the prohibition law to appear not before the court or any court, but only before the judge of the court, and, it appearing that the recognizance was "taken by a court, or officer, authorized to take it," the recognizance was certainly "substantially sufficient" within this section. Alls v. Commonwealth, 131 Va. 640 , 108 S.E. 645 (1921).

A substantially sufficient memorandum of the recognizance taken by a justice of the peace, is protected under this section. Walker v. Commonwealth, 144 Va. 648 , 131 S.E. 230 (1926).

Recognizance held not substantially sufficient as required by this section. Commonwealth v. Fulks, 94 Va. 585 , 27 S.E. 498 (1897).

Variance held immaterial. - Pursuant to this section and §§ 19.2-135 and 19.2-136 , it was held that where the condition of the recognizance of one accused of a felony was for his personal appearance "to answer the charge against him," and the language of the scire facias of such recognizance was for his personal appearance "to answer as of a felony whereof he stands accused," the variance was immaterial, no form of language being prescribed for the recognizance. Allen v. Commonwealth, 90 Va. 356 , 18 S.E. 437 (1893).

For other instances of variance between the scire facias and the recognizance, see Wood v. Commonwealth, 25 Va. (4 Rand.) 329 (1826); Bias v. Floyd, 34 Va. (7 Leigh) 640 (1836); Alls v. Commonwealth, 131 Va. 640 , 108 S.E. 645 (1921).

§ 19.2-147. Docketing judgment on forfeited recognizance or bond.

Whenever a judgment is entered in any court of record in favor of the Commonwealth of Virginia upon a forfeited recognizance or bond, the clerk of the court in which the judgment is rendered shall certify an abstract of the same to the clerk of the circuit court of the county or city wherein the judgment debtor resides or of any city or county in which he may own real property, who shall thereupon enter the abstract of judgment upon his judgment docket.

(Code 1950, § 19.1-142; 1960, c. 366; 1975, c. 495; 1994, c. 432.)

§ 19.2-148. Surety discharged on payment of amount, etc., into court.

A surety on a bond in a recognizance may, after default, pay into the court from which the process has issued, or may issue thereon, the amount for which he is bound, with such costs as the court may direct, and be thereupon discharged.

(Code 1950, § 19.1-143; 1960, c. 366; 1975, c. 495; 1991, c. 581.)

Cross references. - As to procedure for discharge of surety by surrender of principal, see §§ 19.2-149 and 19.2-150 .

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, §§ 19, 25.

§ 19.2-149. How surety on a bond in recognizance may surrender principal and be discharged from liability; deposit for surrender of principal.

  1. A bail bondsman or his licensed bail enforcement agent on a bond in a recognizance may at any time arrest his principal and surrender him to the court before which the recognizance was taken or before which such principal's appearance is required, or to the sheriff, sergeant or jailer of the county or city wherein the court before which such principal's appearance is required is located; in addition to the above authority, upon the application of the surety, the court, or the clerk thereof, before which the recognizance was taken, or before which such principal's appearance is required, or any magistrate shall issue a capias for the arrest of such principal, and such capias may be executed by such bail bondsman or his licensed bail enforcement agent, or by any sheriff, sergeant or police officer, and the person executing such capias shall deliver such principal and such capias to the sheriff or jailer of the county or the sheriff, sergeant or jailer of the city in which the appearance of such principal is required, and thereupon the surety or the property bail bondsman shall be discharged from liability for any act of the principal subsequent thereto. Upon application of the surety for a capias, the surety shall state the basis for which the capias is being requested. Such sheriff, sergeant or jailer shall thereafter deliver such capias to the clerk of such court, with his endorsement thereon acknowledging delivery of such principal to his custody.

    If a magistrate issues a capias pursuant to this section, the magistrate shall transmit a copy of the capias to the court before which such principal's appearance is required by the close of business on the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed.

  2. If a bail bondsman on a bond in a recognizance surrenders his principal for any reason other than the principal's failure to appear in any court, the bondsman shall deposit with the clerk or magistrate the greater of 10 percent of the amount of the bond or $50, which shall be made at such time the bondsman makes application for a capias. The bondsman shall petition the court within 15 days from the surrender of the principal to show cause, if any can be shown, why the bondsman is entitled to the amount deposited. If the court finds that there was sufficient cause to surrender the principal, the court shall return the deposited funds to the bondsman. If the court finds that the surrender of the principal by the bondsman was unreasonable, the deposited funds shall be returned to the payer. Remission of funds shall not be issued by the court until the sixteenth day after the finding. If the bondsman does not petition the court for the return of the deposited funds within 15 days from the surrender of the principal, the deposited funds shall be paid into the state treasury to be credited to the Literary Fund. Nothing in this subsection shall apply to a private citizen who posted cash or real estate to secure the release of a defendant.

    (Code 1950, § 19.1-144; 1960, c. 366; 1975, c. 495; 1991, c. 581; 2004, c. 460; 2015, c. 622; 2019, cc. 176, 205; 2020, cc. 20, 531.)

Cross references. - As to right of surety to take indemnity from bail, see § 19.2-132 .

As to how penalty remitted, see § 19.2-145 .

As to discharge of surety upon payment, see § 19.2-148 .

Editor's note. - Acts 2004, c. 460, cl. 5 provides: "That the provisions of this act, except for § 16.1-77, shall become effective on July 1, 2005."

Acts 2004, c. 460, cl. 6 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2004 amendments. - The 2004 amendment by c. 460, effective July 1, 2005, in the first sentence, substituted "bail bondsman or his licensed bail enforcement agent" for "surety" and "bail bondsman or his licensed bail enforcement" for "surety, or his authorized," inserted "or the property bail bondsman" near the end, and made a minor stylistic change.

The 2015 amendments. - The 2015 amendment by c. 622 inserted "or any magistrate" following "appearance is required" in the first sentence and added the third sentence.

The 2019 amendments. - The 2019 amendment by c. 176 inserted the second sentence in the first paragraph.

The 2019 amendment by c. 205 designated the existing provisions as subsection A and added subsection B.

The 2020 amendments. - The 2020 amendment by c. 20, in subdivision B, substituted "principal's failure to appear in any court" for "a summons to show cause issued by the court for which the principal is to appear" in the first sentence; substituted "payer" for "principal" at the end of the fourth sentence; and added the sixth sentence.

The 2020 amendment by c. 531 added an identical sixth sentence as was added by c. 20.

Law review. - For note on liability of bail bondsmen under 42 U.S.C. § 1983, see 42 Wash. & Lee L. Rev. 215 (1985).

Research References. - Virginia Forms (Matthew Bender). No. 9-522. Surety's Capias and Bailpiece Release--Circuit Court.

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, §§ 19, 25.

CASE NOTES

Nothing in this section imparted legal justification to beat the victim and handcuff him for six hours to a door before surrendering him to jail. The fact finder could have found beyond a reasonable doubt that defendant detained the victim, by force, without legal justification, and with the intent to deprive him of his personal liberty. The evidence was sufficient to prove beyond a reasonable doubt that the bondsman committed abduction. Perry v. Commonwealth, No. 0237-95-2 (Ct. of Appeals July 9, 1996).

Fugitive recovery agent exceeded authority. - Evidence was sufficient to convict a fugitive recovery agent of violating § 18.2-174 in connection with his stop of a vehicle in which he thought a fugitive might be riding, as he exceeded the scope of the authority granted him under this section and by: (1) wearing a misleading badge representing that he was part of a "special investigations unit" of a law-enforcement body; (2) by stating that he was with a "violent crimes unit"; and (3) by interrogating the woman he stopped about her possible drunk driving after he realized that the fugitive was not in the car. English v. Commonwealth, 43 Va. App. 370, 598 S.E.2d 322, 2004 Va. App. LEXIS 294 (2004).

§ 19.2-150. Proceeding when surety surrenders principal.

If the surrender is to the court, the court shall make such order as it deems proper; if the surrender is to a sheriff or jailer, the officer to whom the accused has been surrendered shall give the surety a certificate of the fact. After such surrender the person shall be treated in accordance with the provisions of Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title unless the court or judge thereof has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community.

(Code 1950, § 19.1-145; 1960, c. 366; 1973, c. 485; 1975, c. 495; 1978, c. 755; 1999, cc. 829, 846.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and in the first sentence, substituted "If the surrender is to the court, the court shall make" for "If the surrender be to the court it shall make," substituted "surrender is to a sheriff" for "surrender be to a sheriff, sergeant," in the second sentence, substituted "person" for "accused or juvenile," substituted "Article 1 ( § 19.2-119 et seq.) of Chapter 9 of this title" for " § 19.2-123 ," and substituted "person" for "accused or juvenile."

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, §§ 19, 25; 5B M.J. Criminal Procedure, § 64.

Article 3. Satisfaction and Discharge.

Research References. - Virginia Forms (Matthew Bender). No. 9-2306 Accord and Satisfaction; No. 9-2308 Order Dismissing Charge Upon Accord and Satisfaction.

Michie's Jurisprudence. - For related discussion, see 4A M.J. Compromise and Settlement, §§ 2, 6; 5B M.J. Criminal Procedure, § 11.

§ 19.2-151. Satisfaction and discharge of assault and similar charges.

When a person is in jail or under a recognizance to answer a charge of assault and battery or other misdemeanor, or has been indicted for an assault and battery or other misdemeanor for which there is a remedy by civil action, unless the offense was committed (i) by or upon any law-enforcement officer, (ii) riotously in violation of §§ 18.2-404 to 18.2-407 , (iii) against a family or household member in violation of § 18.2-57.2 , or (iv) with intent to commit a felony, if the person injured appears before the court which made the commitment or took the recognizance, or before the court in which the indictment is pending, and acknowledges in writing that he has received satisfaction for the injury, the court may, in its discretion, by an order, supersede the commitment, discharge the recognizance, or dismiss the prosecution, upon payment by the defendant of costs accrued to the Commonwealth or any of its officers.

(Code 1950, § 19.1-18; 1960, c. 366; 1968, c. 639; 1975, c. 495; 1997, c. 532; 1999, c. 963.)

The 1999 amendment deleted "and the person charged has before been convicted of a violation of § 18.2-57.2 or had a charge of such a violation dismissed pursuant to this section or by a nolle prosequi" following " § 18.2-57.2 " in clause (iii).

CASE NOTES

Section accords with policy of the law. - Private adjustment of prosecutions for misdemeanors, provided for by this section, is in accord with the general policy of the law. Of course, compounding or concealing crimes, or stifling prosecutions to defeat the ends of justice, will not be permitted, but in prosecutions not involving any great offense against the public, the courts will encourage settlements between the parties as less injurious to the public than litigation. Glidewell v. Murray-Lacy & Co., 124 Va. 563 , 98 S.E. 665 (1919).

It applies to misdemeanors involving civil wrongs. - This section applies to those classes of misdemeanors which also involve the infliction of a civil wrong. The course adopted for the disposal of a criminal charge is set out in the statute and is judicial in nature. It contemplates acknowledgment of satisfaction for the civil wrong, and the dismissal of the criminal charge then rests in the judicial discretion of the justice (now judge or court). Darnell v. Davis, 190 Va. 701 , 58 S.E.2d 68 (1950).

It may apply though formalities not strictly followed. - The fact that the formalities of this section were not strictly followed will not prevent its application, where it appears that the aggrieved party received satisfaction, appeared before the justice (now judge or court) and the warrant was dismissed. Orndorff v. Bond, 185 Va. 497 , 39 S.E.2d 352 (1946).

And there may be estoppel to allege irregularity. - In an action for abuse of process, where defendants claimed that the settlement with plaintiff was in accordance with this section, plaintiff cannot complaint of an alleged irregularity in the dismissal of the warrant against him, when what was done was upon his own proposition. Glidewell v. Murray-Lacy & Co., 124 Va. 563 , 98 S.E. 665 (1919).

Dismissal of warrant is discretionary. - Under the explicit terms of this section, the written request for dismissal of the warrant is addressed to the discretion of the judicial officer empowered to take the action authorized and allowed by law, and his action terminates the prosecution. Darnell v. Davis, 190 Va. 701 , 58 S.E.2d 68 (1950).

And warrant may be dismissed though costs not paid. - There is no merit in the contention that a justice of the peace (now judge or court) has no right or jurisdiction to dismiss a warrant under this section where the defendant fails to pay the costs accrued. Darnell v. Davis, 190 Va. 701 , 58 S.E.2d 68 (1950).

Accord and satisfaction letter a "public record." - Forged accord and satisfaction letter presented to a general district court by defendant to obtain the dismissal of an assault and battery case pending against defendant was a public record, even though the statutory requirements of personal appearance by the victim and acknowledgement by the victim were not met, was a public record as it was received in pursuance of law. Moreno v. Commonwealth, 65 Va. App. 121, 775 S.E.2d 422, 2015 Va. App. LEXIS 242 (2015).

The words "or other misdemeanor," following "assault and battery," are not limited to other misdemeanors of the same kind as assault and battery. Glidewell v. Murray-Lacy & Co., 124 Va. 563 , 98 S.E. 665 (1919).

Settlement not a concealing or compounding of offense. - Defendants, who procured plaintiff's arrest for a misdemeanor, upon obtaining a settlement of their claim against plaintiff, had him released and the warrant dismissed. It was held that the transaction did not fall within the condemnation of § 18.2-462 against concealing or compounding offenses, but was within the spirit, if not within the terms, of this section. Glidewell v. Murray-Lacy & Co., 124 Va. 563 , 98 S.E. 665 (1919).

Applied in Commonwealth v. Jackson, 255 Va. 552 , 499 S.E.2d 276 (1998).

§ 19.2-152. Order discharging recognizance or superseding commitment; judgment for costs.

Every order discharging a recognizance shall be filed with the clerk before the session of the court at which the party was to appear. Where a person is held under a commitment, any order superseding a commitment shall be delivered to the jailer, who shall forthwith discharge the witnesses, if any, and the accused or juvenile, and judgment against the accused or juvenile shall be entered in the court for the costs of the prosecution.

(Code 1950, § 19.1-19; 1960, c. 366; 1975, c. 495; 1978, c. 755.)

Article 4. Bail Bondsmen.

§§ 19.2-152.1 through 19.2-152.1:7.

Repealed by Acts 2004, c. 460, effective July 1, 2005.

Article 5. Pretrial Services Act.

§ 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. 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 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.

(1994, 2nd Sp. Sess., cc. 1, 2; 1999, cc. 829, 846; 2004, c. 378; 2007, c. 133; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to dissemination of juvenile record information, see § 19.2-389.1 .

As to limitations on the release of criminal incident information, see § 2.2-3706.1 .

As to the confidentiality of court records, see § 16.1-305.

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and substituted "Article 1 ( § 19.2-119 et seq.) of Chapter 9 of this title" for " §§ 19.2-121 and 19.2-123 " in the first sentence.

The 2004 amendments. - The 2004 amendment by c. 378 inserted "age 18 or over or persons under the age of 18 who have been transferred for trial as adults" in the second sentence and made a minor stylistic change.

The 2007 amendments. - The 2007 amendment by c. 133 substituted "pretrial services agencies" for "programs" in the first sentence, substituted "agencies" for "programs" in the second sentence and in the last sentence, substituted "pretrial services agency" for "pretrial services program" in two places.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "of this title" from the end of the first sentence; and substituted "as a Class 1 felony" for "by death" in the second sentence.

§ 19.2-152.3. Department of Criminal Justice Services to prescribe standards; biennial plan.

The Department of Criminal Justice Services shall prescribe standards for the development, implementation, operation and evaluation of services authorized by this article. The Department of Criminal Justice Services shall develop risk assessment and other instruments to be used by pretrial services agencies in assisting judicial officers in discharging their duties pursuant to Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title. Any city, county or combination thereof which establishes pretrial services pursuant to this article shall submit a biennial plan to the Department of Criminal Justice Services for review and approval.

(1994, 2nd Sp. Sess., cc. 1, 2; 1999, cc. 829, 846; 2007, c. 133.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and substituted "Article 1 ( § 19.2-119 et seq.) of Chapter 9 of this title" for " §§ 19.2-121 and 19.2-123 " in the second sentence.

The 2007 amendments. - The 2007 amendment by c. 133 substituted "services" for "programs" in the first sentence, substituted "pretrial services agencies" for "pretrial services programs" in the second sentence and substituted "pretrial services" for "a pretrial services program" in the last sentence.

§ 19.2-152.4. Mandated services.

Any city, county or combination thereof which elects or is required to establish a pretrial services agency shall provide all information and services for use by judicial officers as set forth in Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title.

(1994, 2nd Sp. Sess., cc. 1, 2; 1999, cc. 829, 846; 2007, c. 133.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and substituted "Article 1 ( § 19.2-119 et seq.) of Chapter 9 of this title" for " §§ 19.2-121 and 19.2-123 ."

The 2007 amendments. - The 2007 amendment by c. 133 substituted "pretrial services agency" for "pretrial services program."

§ 19.2-152.4:1. Form of oath of office for local pretrial services officer; authorization to seek capias.

Every pretrial services officer who is an employee of a local pretrial services agency established by any city, county or combination thereof or operated pursuant to this article shall take an oath of office as prescribed in § 49-1 and to provide services pursuant to the requirements of this article before entering the duties of his office. The oath of office shall be taken before any general district or circuit court judge in any county or city which has established services for use by judicial officers pursuant to this article.

In addition, any officer of a pretrial services agency established or operated pursuant to this article may seek a capias from any judicial officer for the arrest of any person under the agency's custody and supervision for failure to comply with any conditions of release imposed by a judicial officer, for failure to comply with the conditions of pretrial supervision as established by a pretrial services agency, or when there is reason to believe that the person will fail to appear, will leave, or has left the jurisdiction to avoid prosecution.

(2000, c. 1040; 2007, c. 133.)

Editor's note. - Acts 2000, c. 1040, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2010."

The 2007 amendments. - The 2007 amendment by c. 133 deleted "warrant or" following "may seek a" in the second paragraph.

§ 19.2-152.4:2. Confidentiality of records of and reports on adult persons under investigation by or in the custody or supervision of a local pretrial services agency.

  1. Any pretrial investigation report prepared by a local pretrial services officer is confidential and is exempt from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). Such reports shall be filed as a part of the case record. Such reports shall be sealed upon receipt by the court and made available only by court order; except that such reports shall be available upon request to (i) any criminal justice agency, as defined in § 9.1-101 , of this or any other state or of the United States; (ii) any agency where the accused is referred for assessment or treatment; or (iii) counsel for the person who is the subject of the report.
  2. Any report on the progress of an accused under the supervision or custody of a pretrial services agency and any information relative to the identity of or inferring personal characteristics of an accused, including demographic information, diagnostic summaries, records of office visits, medical, substance abuse, psychiatric or psychological records or information, substance abuse screening, assessment and testing information, and other sensitive information not explicitly classified as criminal history record information, is exempt from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). However, such information may be disseminated to criminal justice agencies as defined in § 9.1-101 in the discretion of the custodian of these records. (2002, c. 769; 2007, c. 133.)

The 2007 amendments. - The 2007 amendment by c. 133 deleted "no right of review or correction by subject of record or report" from the end in the section heading.

§ 19.2-152.4:3. Duties and responsibilities of local pretrial services officers.

  1. Each local pretrial services officer, for the jurisdictions served, shall:
    1. Investigate and interview defendants arrested on state and local warrants and who are detained in jails located in jurisdictions served by the agency while awaiting a hearing before any court that is considering or reconsidering bail, at initial appearance, advisement or arraignment, or at other subsequent hearings;
    2. Present a pretrial investigation report with recommendations to assist courts in discharging their duties related to granting or reconsidering bail;
    3. Supervise and assist all defendants residing within the jurisdictions served and placed on pretrial supervision by any judicial officer within the jurisdictions to ensure compliance with the terms and conditions of bail;
    4. Conduct random drug and alcohol tests on any defendant under supervision for whom a judicial officer has ordered testing or who has been required to refrain from excessive use of alcohol or use of any illegal drug or controlled substance or other defendant-specific condition of bail related to alcohol or substance abuse;
    5. Seek a capias from any judicial officer pursuant to § 19.2-152.4:1 for any defendant placed under supervision or the custody of the agency who fails to comply with the conditions of bail or supervision, when continued liberty or noncompliance presents a risk of flight, a risk to public safety or risk to the defendant;
    6. Seek an order to show cause why the defendant should not be required to appear before the court in those cases requiring a subsequent hearing before the court;
    7. Provide defendant-based information to assist any law-enforcement officer with the return to custody of defendants placed on supervision for which a capias has been sought; and
    8. Keep such records and make such reports as required by the Commonwealth of Virginia Department of Criminal Justice Services.
  2. Each local pretrial services officer, for the jurisdictions served, may provide the following optional services, as appropriate and when available resources permit:
    1. Conduct, subject to court approval, drug and alcohol screenings, or tests at investigation pursuant to subsection B of § 19.2-123 or following release to supervision, and conduct or facilitate the preparation of screenings or assessments or both pursuant to state approved protocols;
    2. Facilitate placement of defendants in a substance abuse education or treatment program or services or other education or treatment service when ordered as a condition of bail;
    3. Sign for the custody of any defendant investigated by a pretrial services officer, and released by a court to pretrial supervision as the sole term and condition of bail or when combined with an unsecured bond;
    4. Provide defendant information and investigation services for those who are detained in jails located in jurisdictions served by the agency and are awaiting an initial bail hearing before a magistrate;
    5. Supervise defendants placed by any judicial officer on home electronic monitoring as a condition of bail and supervision;
    6. Prepare, for defendants investigated, the financial statement-eligibility determination form for indigent defense services; and
    7. Subject to approved procedures and if so requested by the court, coordinate for defendants investigated, services for court-appointed counsel and for interpreters for foreign-language speaking and deaf or hard of hearing defendants. (2003, c. 603; 2007, c. 133; 2008, cc. 551, 691; 2019, c. 288.)

The 2007 amendments. - The 2007 amendment by c. 133 substituted "agency" for "program" in subdivisions A 1 and B 4; and inserted "or services" following "treatment program" in subdivision B 2.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical and deleted "local" preceding "magistrate" at the end of subdivision B 4.

The 2019 amendments. - The 2019 amendment by c. 288 substituted "deaf or hard of hearing" for "hearing-impaired" in subdivision B 7.

§ 19.2-152.5. Community criminal justice boards.

Each city, county or combination thereof establishing a pretrial services agency shall also establish a community criminal justice board pursuant to § 9.1-178 .

(1994, 2nd Sp. Sess., cc. 1, 2; 2007, c. 133.)

The 2007 amendments. - The 2007 amendment by c. 133 substituted "pretrial services agency" for "pretrial services program."

§ 19.2-152.6. Withdrawal from pretrial services.

Any participating city or county may, at the beginning of any calendar quarter, by ordinance or resolution of its governing authority, notify the Department of Criminal Justice Services of its intention to withdraw from participation in pretrial services. Such withdrawal shall be effective as of the last day of the quarter in which such notice is given.

(1994, 2nd Sp. Sess., cc. 1, 2; 2007, c. 133.)

The 2007 amendments. - The 2007 amendment by c. 133 substituted "participation in pretrial services" for "the pretrial services program."

§ 19.2-152.7. Funding; failure to comply.

Counties and cities shall be required to establish a pretrial services agency only to the extent funded by the Commonwealth through the general appropriation act. The Department of Criminal Justice Services shall annually review each agency established under this article to determine compliance with the submitted plan and operating standards. If the Department determines that any agency is not in substantial compliance with the submitted plan or standards, the Department may suspend all or any portion of financial aid made available to the locality for purposes of this article until there is compliance.

The Department shall report annually on or before December 31 to the Governor and the General Assembly on the performance of each pretrial services agency, to include (i) the total amount of funding received by that agency; (ii) the number of investigations conducted by that agency; (iii) the number of defendants placed on pretrial supervision with that agency; (iv) the average daily caseload of that agency; (v) the appearance, public safety, and compliance rates of defendants placed on pretrial supervision with that agency; and (vi) a determination of whether that agency is in substantial compliance with all grant conditions and standards prescribed by the Department pursuant to § 19.2-152.3 . If an agency is not in substantial compliance with all grant conditions and standards prescribed by the Department pursuant to § 19.2-152.3 , that agency and the Department shall develop a plan and identify a timeframe to achieve compliance. A copy of that plan of compliance shall be included in the annual report. The Department shall ensure such report is available to the public.

(1994, 2nd Sp. Sess., cc. 1, 2; 2007, c. 133; 2018, cc. 180, 407.)

The 2007 amendments. - The 2007 amendment by c. 133 substituted "agency" for "program" in the first and second sentences and substituted "any agency" for "a program" in the second sentence.

The 2018 amendments. - The 2018 amendments by cc. 180 and 407 are nearly identical, and in the first paragraph, substituted "annually review" for "periodically review"; and added the second paragraph.

Chapter 9.1. Protective Orders.

Sec.

§ 19.2-152.7:1. Definitions.

As used in this chapter:

"Act of violence, force, or threat" means any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury. Such act includes, but is not limited to, any forceful detention, stalking, criminal sexual assault in violation of Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, or any criminal offense that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury.

(2011, cc. 445, 480.)

Cross references. - As to communication of emergency substantial risk orders, see § 19.2-152.13 et seq.

CASE NOTES

Evidence of stalking. - Evidence supported the trial court's finding that defendant's acts amounted to stalking and that defendant twice violated a protective order because the victim, defendant's former paramour, testified as to receiving harassing phone calls and text messages and as to defendant following the victim to a convenience store on two occasions. Additionally, defendant admitted to seeing the victim in the store parking lot on one date, while receipts from the store on the two dates were found in defendant's residence. Peters v. Commonwealth, No. 1888-15-1, 2016 Va. App. LEXIS 315 (Ct. of Appeals Nov. 15, 2016).

§ 19.2-152.8. Emergency protective orders authorized.

  1. Any judge of a circuit court, general district court, juvenile and domestic relations district court or magistrate may issue a written or oral ex parte emergency protective order pursuant to this section in order to protect the health or safety of any person.
  2. When a law-enforcement officer or an alleged victim asserts under oath to a judge or magistrate that such person is being or has been subjected to an act of violence, force, or threat and on that assertion or other evidence the judge or magistrate finds that (i) there is probable danger of a further such act being committed by the respondent against the alleged victim or (ii) a petition or warrant for the arrest of the respondent has been issued for any criminal offense resulting from the commission of an act of violence, force, or threat, the judge or magistrate shall issue an ex parte emergency protective order imposing one or more of the following conditions on the respondent:
    1. Prohibiting acts of violence, force, or threat or criminal offenses resulting in injury to person or property;
    2. Prohibiting such contacts by the respondent with the alleged victim or the alleged victim's family or household members, including prohibiting the respondent from being in the physical presence of the alleged victim or the alleged victim's family or household members, as the judge or magistrate deems necessary to protect the safety of such persons;
    3. Such other conditions as the judge or magistrate deems necessary to prevent (i) acts of violence, force, or threat, (ii) criminal offenses resulting in injury to person or property, or (iii) communication or other contact of any kind by the respondent; and
    4. Granting the petitioner the possession of any companion animal as defined in § 3.2-6500 if such petitioner meets the definition of owner in § 3.2-6500.
  3. An emergency protective order issued pursuant to this section shall expire at 11:59 p.m. on the third day following issuance. If the expiration occurs on a day that the court is not in session, the emergency protective order shall be extended until 11:59 p.m. on the next day that the court which issued the order is in session. The respondent may at any time file a motion with the court requesting a hearing to dissolve or modify the order. The hearing on the motion shall be given precedence on the docket of the court.
  4. A law-enforcement officer may request an emergency protective order pursuant to this section and, if the person in need of protection is physically or mentally incapable of filing a petition pursuant to § 19.2-152.9 or 19.2-152.10 , may request the extension of an emergency protective order for an additional period of time not to exceed three days after expiration of the original order. The request for an emergency protective order or extension of an order may be made orally, in person or by electronic means, and the judge of a circuit court, general district court, or juvenile and domestic relations district court or a magistrate may issue an oral emergency protective order. An oral emergency protective order issued pursuant to this section shall be reduced to writing, by the law-enforcement officer requesting the order or the magistrate, on a preprinted form approved and provided by the Supreme Court of Virginia. The completed form shall include a statement of the grounds for the order asserted by the officer or the alleged victim of such crime.
  5. The court or magistrate shall forthwith, but in all cases no later than the end of the business day on which the order was issued, enter and transfer electronically to the Virginia Criminal Information Network the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court or magistrate. A copy of an emergency protective order issued pursuant to this section containing any such identifying information shall be forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith upon the respondent and due return made to the court. However, if the order is issued by the circuit court, the clerk of the circuit court shall forthwith forward an attested copy of the order containing the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court to the primary law-enforcement agency providing service and entry of protective orders and upon receipt of the order, the primary law-enforcement agency shall enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith upon the respondent. Upon service, the agency making service shall enter the date and time of service and other appropriate information required into the Virginia Criminal Information Network and make due return to the court. One copy of the order shall be given to the alleged victim of such crime. The judge or magistrate who issues an oral order pursuant to an electronic request by a law-enforcement officer shall verify the written order to determine whether the officer who reduced it to writing accurately transcribed the contents of the oral order. The original copy shall be filed with the clerk of the appropriate district court within five business days of the issuance of the order. If the order is later dissolved or modified, a copy of the dissolution or modification order shall also be attested, forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders, and upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network as described above and the order shall be served forthwith and due return made to the court. Upon request, the clerk shall provide the alleged victim of such crime with information regarding the date and time of service.
  6. The issuance of an emergency protective order shall not be considered evidence of any wrongdoing by the respondent.
  7. As used in this section, a "law-enforcement officer" means any (i) person who is a full-time or part-time employee of a police department or sheriff's office which is 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 and (ii) member of an auxiliary police force established pursuant to § 15.2-1731 . Part-time employees are compensated officers who are not full-time employees as defined by the employing police department or sheriff's office.
  8. Neither a law-enforcement agency, the attorney for the Commonwealth, a court nor the clerk's office, nor any employee of them, may disclose, except among themselves, the residential address, telephone number, or place of employment of the person protected by the order or that of the family of such person, except to the extent that disclosure is (i) required by law or the Rules of the Supreme Court, (ii) necessary for law-enforcement purposes, or (iii) permitted by the court for good cause.
  9. As used in this section:

    "Copy" includes a facsimile copy.

    "Physical presence" includes (i) intentionally maintaining direct visual contact with the petitioner or (ii) unreasonably being within 100 feet from the petitioner's residence or place of employment.

  10. No fee shall be charged for filing or serving any petition pursuant to this section.
  11. No emergency protective order shall be issued pursuant to this section against a law-enforcement officer for any action arising out of the lawful performance of his duties.
  12. Upon issuance of an emergency protective order, the clerk of the court shall make available to the petitioner information that is published by the Department of Criminal Justice Services for victims of domestic violence or for petitioners in protective order cases.

    (1997, c. 831; 1998, cc. 569, 684; 1999, c. 371; 2001, c. 474; 2002, cc. 507, 706, 810, 818; 2003, c. 730; 2008, cc. 73, 246; 2009, cc. 341, 732; 2011, cc. 445, 480; 2012, cc. 146, 637, 827; 2014, c. 346; 2016, c. 455; 2018, c. 652.)

Cross references. - As to penalty for violation of stalking protective order, see § 18.2-60.4 .

Editor's note. - Acts 2014, c. 346, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 806 of the Acts of Assembly of 2013 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendment inserted "of any kind" in subdivision B 3.

The 2001 amendments. - The 2001 amendment by c. 474 added the second sentence in subsection E.

The 2002 amendments. - The 2002 amendment by ch. 507 substituted "Upon" for "As soon as practicable after" at the beginning of the first sentence of subsection E; and inserted present subsection H and redesignated former subsections H and I as present subsections I and J.

The 2002 amendment by c. 706, in subsection E, inserted the present fifth sentence, deleted "verified by the judge or magistrate who issued the order and then" preceding "filed" in the present sixth sentence, and substituted "shall be" for "shall also be attested" in the seventh sentence.

The 2002 amendments by cc. 810 and 818 are identical and, in subsection E, substituted "Upon" for "As soon as practicable after" in the first sentence, deleted "feasible and" preceding "practical" in the second sentence, and capitalized "criminal information network" throughout.

The 2003 amendments. - The 2003 amendment by c. 730, in the introductory language of subsection B, inserted "or an alleged victim of a criminal offense resulting in a serious bodily injury to the alleged victim," inserted "or a criminal offense resulting in a serious bodily injury to the alleged victim," and substituted "the alleged victim and" for "the allegedly stalked person and" in clause (i); inserted "violence or acts of" in subdivision B 1; substituted "the alleged victim of such crime" for "the allegedly stalked person" in subdivision B 2; substituted "prevent acts of stalking, or criminal offenses resulting in injury to person or property, or" for "prevent further acts of stalking" in subdivision B 3; substituted "72 hours" for "seventy-two hours" in the first sentence, and "72-hour period" for "seventy-two-hour period" in the second sentence of subsection C; and substituted "the alleged victim of such crime" for "the allegedly stalked person" at the end of subsection D, at the end of the fourth sentence of subsection E, and near the middle of the last sentence of subsection E.

The 2008 amendments. - The 2008 amendments by cc. 73 and 246 are identical, and in subsection C, substituted "shall expire at the end of the third day following issuance" for "shall expire 72 hours after issuance" at the end of the first sentence, and in the second sentence, deleted "of the 72-hour period" following "If the expiration" and substituted "the end" for "5 p.m."; rewrote subsection E; and added subsection K.

The 2009 amendments. - The 2009 amendment by c. 341, in subsection B, inserted "sexual battery in violation of § 18.2-67.4 , aggravated sexual battery in violation of § 18.2-67.3 " twice and made a related change; and in subdivisions B 1 and B 3, inserted "acts of sexual battery."

The 2009 amendment by c. 732, in subsection C, in the first sentence, substituted "11:59 p.m. on" for "the end of," in the second sentence, substituted "on a day" for "at a time" and "11:59 p.m. on" for "the end of" and deleted "business" preceding "day that the"; in subsection E, in the first sentence, inserted "electronically to the Virginia Criminal Information Network the respondent's" and "and the name, date of birth, sex, and race of each protected person," and deleted "electronically to the Virginia Criminal Information Network" from the end, in the second sentence, deleted "and an addendum" preceding "containing any such," in the third sentence, deleted "and addendum" preceding "by the primary," in the fourth sentence, deleted "and an addendum" following "copy of the order," inserted "the respondent's" and "and the name, date of birth, sex, and race of each protected person provided to the court" and deleted "and addendum" following "receipt of the order"; and deleted subsection K, which read: "If any identifying information in the addendum is determined to be incorrect by the entering agency, the agency shall enter the corrected information into the Virginia Criminal Information Network."

The 2011 amendments. - The 2011 amendments by cc. 445 and 480 are identical, and rewrote the first paragraph in subsection B; in subdivision B 1, substituted "force, or threat or criminal offenses resulting in injury to person or property" for "acts of sexual battery, or acts of stalking in violation of § 18.2-60.3 "; in subdivision B 2, deleted "of such crime" following "victim"; in subdivision B 3, added the clause (i) designation, and therein substituted "acts of violence, force, or threat" for "acts of stalking, acts of sexual battery, or" and added the clause (ii) and (iii) designations; and in subsection D, subdivided the former first sentence, adding the language beginning "and, if the person in need of protection" in the first sentence and "The request for an emergency protective order or extension of an order may be made" in the second sentence.

The 2012 amendments. - The 2012 amendment by c. 146 added subsection K.

The 2012 amendment by c. 637 substituted "or the alleged victim's family" for "or such person's family" in subdivision B 2.

The 2012 amendment by c. 827, effective April 18, 2012, deleted "subsection B of" preceding " § 15.2-1731 " in G (ii).

The 2014 amendments. - The 2014 amendment by c. 346 added subdivision B 4 and made related changes.

The 2016 amendments. - The 2016 amendment by c. 455, in subdivision B 2, inserted "including prohibiting the respondent from being in the physical presence of the alleged victim or the alleged victim's family or household members"; and in subsection I, added the definition of "Physical presence" and made related changes.

The 2018 amendments. - The 2018 amendment by c. 652 added subsection L.

Law review. - For article "Making the Case to Avoid Entering the eBay Marketplace: A Recommended Analytical Framework for Evaluating Requests for Permanent Injunctions in Virginia," see 32 Regent U.L. Rev. 1 (2019).

Research References. - Virginia Forms (Matthew Bender). No. 9-219. Emergency Protective Order.

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of protective orders. - A law-enforcement agency should not remove a protective order from Virginia Criminal Information Network (VCIN) unless it receives a court order of dissolution or the protective order has expired by its own terms or by operation of law. Where more than one active protective order exists involving the same parties, an individual may be charged with violating a discrete provision of either order. See opinion of Attorney General to The Honorable Steve A. Hutcherson, Campbell County Sheriff's Office, 19-006, 2019 Va. AG LEXIS 37 (12/20/19).

A law-enforcement officer may lawfully detain an individual for the purpose of serving a protective order issued pursuant to Chapter 9.1 of Title 19.2 if the officer has reasonable, articulable suspicion of criminal activity, but may not lawfully extend the period of an otherwise-justified but unrelated detention for the purpose of serving such an order. See opinion of Attorney General to The Honorable Colette Wallace McEachin, Commonwealth's Attorney, City of Richmond, 20-002, 2020 Va. AG LEXIS 35 (10/30/20).

Petition for protective orders by law enforcement on behalf of minors. - Law-enforcement officers may file petitions for emergency protective orders on behalf of minors who are victims of family abuse, stalking, sexual assault or other acts of criminal violence. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by emancipated minors for protective orders. - Emancipated minor may file petitions for protective orders under applicable statutes. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Meaning of "primary law-enforcement agency." - In a city with both a police department and a sheriff's office, the police department is the primary law-enforcement agency responsible for the service of protective orders issued pursuant to §§ 16.1-253.1, 16.1-253.4, 16.1-279.1, and §§ 19.2-152.8 , 19.2-152.9 , and 19.2-152.10 . See opinion of Attorney General to The Honorable Dana Lawhorne, Sheriff, City of Alexandria, 20-037, 2020 Va. AG LEXIS 37 (12/11/20).

§ 19.2-152.9. Preliminary protective orders.

  1. Upon the filing of a petition alleging that (i) the petitioner is or has been, within a reasonable period of time, subjected to an act of violence, force, or threat, or (ii) a petition or warrant has been issued for the arrest of the alleged perpetrator for any criminal offense resulting from the commission of an act of violence, force, or threat, the court may issue a preliminary protective order against the alleged perpetrator in order to protect the health and safety of the petitioner or any family or household member of the petitioner. The order may be issued in an ex parte proceeding upon good cause shown when the petition is supported by an affidavit or sworn testimony before the judge or intake officer. If an ex parte order is issued without an affidavit or a completed form as prescribed by subsection D of § 19.2-152.8 being presented, the court, in its order, shall state the basis upon which the order was entered, including a summary of the allegations made and the court's findings. Immediate and present danger of any act of violence, force, or threat or evidence sufficient to establish probable cause that an act of violence, force, or threat has recently occurred shall constitute good cause. A preliminary protective order may include any one or more of the following conditions to be imposed on the respondent:
    1. Prohibiting acts of violence, force, or threat or criminal offenses that may result in injury to person or property;
    2. Prohibiting such other contacts by the respondent with the petitioner or the petitioner's family or household members as the court deems necessary for the health and safety of such persons;
    3. Such other conditions as the court deems necessary to prevent (i) acts of violence, force, or threat, (ii) criminal offenses that may result in injury to person or property, or (iii) communication or other contact of any kind by the respondent; and
    4. Granting the petitioner the possession of any companion animal as defined in § 3.2-6500 if such petitioner meets the definition of owner in § 3.2-6500.
  2. The court shall forthwith, but in all cases no later than the end of the business day on which the order was issued, enter and transfer electronically to the Virginia Criminal Information Network the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court. A copy of a preliminary protective order containing any such identifying information shall be forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith on the alleged perpetrator in person as provided in § 16.1-264, and due return made to the court. However, if the order is issued by the circuit court, the clerk of the circuit court shall forthwith forward an attested copy of the order containing the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court to the primary law-enforcement agency providing service and entry of protective orders and upon receipt of the order, the primary law-enforcement agency shall enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith on the alleged perpetrator in person as provided in § 16.1-264. Upon service, the agency making service shall enter the date and time of service and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network and make due return to the court. The preliminary order shall specify a date for the full hearing. The hearing shall be held within 15 days of the issuance of the preliminary order, unless the court is closed pursuant to § 16.1-69.35 or 17.1-207 and such closure prevents the hearing from being held within such time period, in which case the hearing shall be held on the next day not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed. If such court is closed pursuant to § 16.1-69.35 or 17.1-207 , the preliminary protective order shall remain in full force and effect until it is dissolved by such court, until another preliminary protective order is entered, or until a protective order is entered. If the respondent fails to appear at this hearing because the respondent was not personally served, the court may extend the protective order for a period not to exceed six months. The extended protective order shall be served as soon as possible on the respondent. However, upon motion of the respondent and for good cause shown, the court may continue the hearing. The preliminary order shall remain in effect until the hearing. Upon request after the order is issued, the clerk shall provide the petitioner with a copy of the order and information regarding the date and time of service. The order shall further specify that either party may at any time file a motion with the court requesting a hearing to dissolve or modify the order. The hearing on the motion shall be given precedence on the docket of the court. Upon petitioner's motion to dissolve the preliminary protective order, a dissolution order may be issued ex parte by the court with or without a hearing. If an ex parte hearing is held, it shall be heard by the court as soon as practicable. If a dissolution order is issued ex parte, the court shall serve a copy of such dissolution order on respondent in conformity with §§ 8.01-286.1 and 8.01-296 . Upon receipt of the return of service or other proof of service pursuant to subsection C of § 16.1-264, the clerk shall forthwith forward an attested copy of the preliminary protective order to primary law-enforcement agency and the agency shall forthwith verify and enter any modification as necessary into the Virginia Criminal Information Network as described above. If the order is later dissolved or modified, a copy of the dissolution or modification order shall also be attested, forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders, and upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network as described above and the order shall be served forthwith and due return made to the court.
  3. The preliminary order is effective upon personal service on the alleged perpetrator. Except as otherwise provided, a violation of the order shall constitute contempt of court.
  4. At a full hearing on the petition, the court may issue a protective order pursuant to § 19.2-152.10 if the court finds that the petitioner has proven the allegation that the petitioner is or has been, within a reasonable period of time, subjected to an act of violence, force, or threat by a preponderance of the evidence.
  5. No fees shall be charged for filing or serving petitions pursuant to this section.
  6. Neither a law-enforcement agency, the attorney for the Commonwealth, a court nor the clerk's office, nor any employee of them, may disclose, except among themselves, the residential address, telephone number, or place of employment of the person protected by the order or that of the family of such person, except to the extent that disclosure is (i) required by law or the Rules of the Supreme Court, (ii) necessary for law-enforcement purposes, or (iii) permitted by the court for good cause.
  7. As used in this section, "copy" includes a facsimile copy.
  8. Upon issuance of a preliminary protective order, the clerk of the court shall make available to the petitioner information that is published by the Department of Criminal Justice Services for victims of domestic violence or for petitioners in protective order cases.

    (1997, c. 831; 1998, cc. 569, 684; 1999, c. 371; 2001, c. 101; 2002, cc. 507, 810, 818; 2003, c. 730; 2008, cc. 73, 128, 246; 2009, cc. 341, 732; 2011, cc. 445, 480; 2014, c. 346; 2018, c. 652; 2019, cc. 197, 718; 2020, c. 137.)

Cross references. - As to penalty for violation of stalking protective order, see § 18.2-60.4 .

Editor's note. - Acts 2014, c. 346, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 806 of the Acts of Assembly of 2013 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendment inserted "of any kind" in subdivision A 3.

The 2001 amendments. - The 2001 amendment by c. 101 added the sixth and seventh sentences in subsection B.

The 2002 amendments. - The 2002 amendment by ch. 507, in subsection B, substituted "Upon" for "As soon as practicable after" at the beginning of the first paragraph, and substituted "shall, upon receipt, enter" for "shall, on the date of receipt, enter" in the first sentence of the second paragraph; and inserted present subsection F and redesignated former subsection F as present subsection G.

The 2002 amendments by cc. 810 and 818 are identical and, in subsection B, capitalized "criminal information network" throughout, in the first paragraph, substituted "Upon" for "As soon as practicable after" in the first sentence and deleted "feasible and" preceding "practical" in the second sentence; and substituted "upon" for "on the date of" in the first sentence in the second paragraph.

The 2003 amendments. - The 2003 amendment by c. 730, in subsection A, in the first sentence, inserted "or a criminal offense resulting in a serious bodily injury to the petitioner" in clause (i) and substituted "alleged perpetrator of such act or acts" for "alleged stalker" and "alleged perpetrator in order" for "alleged stalker in order" in clause (ii) of the first sentence, and in the third sentence, inserted "or another criminal offense that may result in a serious bodily injury to the petitioner" and "or a criminal offense resulting in a serious bodily injury to the petitioner"; inserted "criminal offenses that may result in injury to person or property or" in subdivision A 1; substituted "prevent acts of stalking, criminal offenses that may result in injury to person or property, or" for "prevent further acts of stalking" in subdivision A 3; substituted "15 days" for "fifteen days" in the fifth sentence of subsection B; substituted "alleged perpetrator" for "alleged stalker" at the end of the first sentence of subsection C; and inserted "a criminal offense resulting in a serious bodily injury to the petitioner" in subsection D.

The 2008 amendments. - The 2008 amendments by cc. 73 and 246 are identical and rewrote subsection B and added subsection H.

The 2008 amendment by c. 128 inserted the eighth and ninth sentences in the first paragraph of subsection B.

The 2009 amendments. - The 2009 amendment by c. 341, in subsection A, inserted "sexual battery in violation of § 18.2-67.4 , aggravated sexual battery in violation of § 18.2-67.3 " twice; in subdivisions A 1 and A 3, inserted "acts of sexual battery"; in subsection B, in the first paragraph, substituted "perpetrator" for "stalker" twice; and in subsection D, inserted "sexual battery in violation of § 18.2-67.4 , aggravated sexual battery in violation of § 18.2-67.3 ."

The 2009 amendment by c. 732, in subsection B, in the first sentence, inserted "electronically to the Virginia Criminal Information Network the respondent's" and "and the name, date of birth, sex, and race of each protected person," and deleted "electronically to the Virginia Criminal Information Network" from the end, in the second sentence, deleted "and an addendum" preceding "containing any such," in the third sentence, deleted "and addendum"' preceding "by the primary," in the fourth sentence, deleted "and an addendum" following "copy of the order," inserted "the respondent's" and "and the name, date of birth, sex, and race of each protected person provided to the court" and deleted "and addendum" following "receipt of the order"; and deleted subsection H, which read: "If any identifying information in the addendum is determined to be incorrect by the entering agency, the agency shall enter the corrected information into the Virginia Criminal Information Network."

The 2011 amendments. - The 2011 amendments, by cc. 445 and 480 are identical, and in the first paragraph in subsection A, in the first sentence, rewrote clause (i), which read "the petitioner is or has been, within a reasonable period of time subjected to stalking, sexual battery in violation of § 18.2-67.4 , aggravated sexual battery in violation of § 18.2-67.3 , or a criminal offense resulting in a serious bodily injury to the petitioner, and," in clause (ii), inserted "petition or" and substituted "for any criminal offense resulting from the commission of an act of violence, force, or threat" for "of such act or acts," and rewrote the last sentence; in subdivision A 1, inserted "acts of violence, force, or threat or" and deleted "acts of sexual battery, or acts of stalking in violation of § 18.2-60.3 " from the end; in subdivision A 3, added the clause designations, and substituted "violence, force, or threat" for "stalking, acts of sexual battery"; in subsection C, deleted "in § 16.1-253.2" following "provided"; and in subsection D, substituted "allegation that the petitioner is or has been, within a reasonable period of time, subjected to an act of violence, force, or threat" for "allegation of a criminal offense resulting in a serious bodily injury to the petitioner, sexual battery in violation of § 18.2-67.4 , aggravated sexual battery in violation of § 18.2-67.3 , or stalking."

The 2014 amendments. - The 2014 amendment by c. 346 added subdivision A 4 and made related changes.

The 2018 amendments. - The 2018 amendment by c. 652 added subsection H.

The 2019 amendments. - The 2019 amendment by c. 197 inserted "unless the court is closed pursuant to § 16.1-69.35 or 17.1-207 and such closure prevents the hearing from being held within such time period, in which case the hearing shall be held on the next day not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed. If such court is closed pursuant to § 16.1-69.35 or 17.1-207 , the preliminary protective order shall remain in full force and effect until it is dissolved by such court, until another preliminary protective order is entered, or until a protective order is entered" in the first paragraph of subsection B.

The 2019 amendment by c. 718, in subsection A, inserted "If an ex parte order is issued without an affidavit or a completed form as prescribed by subsection D of § 19.2-152.8 being presented, the court, in its order, shall state the basis upon which the order was entered, including a summary of the allegations made and the court's findings."

The 2020 amendments. - The 2020 amendment by c. 137, added the last three sentences in the first paragraph of subsection B.

Law review. - For article, "Family Law," see 35 U. Rich. L. Rev. 651 (2001).

For article "Making the Case to Avoid Entering the eBay Marketplace: A Recommended Analytical Framework for Evaluating Requests for Permanent Injunctions in Virginia," see 32 Regent U.L. Rev. 1 (2019).

Research References. - Virginia Forms (Matthew Bender). No. 9-221. Petition for Protective Order (Spanish); No. 9-223. Preliminary Protective Order--Stalking (Spanish).

CASE NOTES

Statements in service return of protective order not testimonial. - Trial court did not err in admitting into evidence a deputy sheriff's statements in the return portion of a preliminary protective order because defendant had no right to confront the deputy who made them when the statements were not testimonial; the statements were primarily created to comply with statutory provisions that governed the service of the protective order and, therefore, enable the entity to administer its affairs, a non-prosecutorial purpose. Logan v. Commonwealth, 71 Va. App. 568, 838 S.E.2d 548, 2020 Va. App. LEXIS 53 (Mar. 3, 2020), aff'd, 72 Va. App. 309, 845 S.E.2d 228, 2020 Va. App. LEXIS 214 (2020).

Statements contained in service returns on protective orders are not testimonial; the primary purpose of the return of service is to show that it has been served on the subject of that protective order and is, therefore, in effect. Logan v. Commonwealth, 71 Va. App. 568, 838 S.E.2d 548, 2020 Va. App. LEXIS 53 (Mar. 3, 2020), aff'd, 72 Va. App. 309, 845 S.E.2d 228, 2020 Va. App. LEXIS 214 (2020).

Wrongful termination. - In a wrongful termination case arising from an employee's act of obtaining a preliminary protective order against a co-worker, there was no viable Bowman v. State Bank of Keysville, 229 Va. 534 , 331 S.E.2d 797 (1985), claim under scenario 1 because the termination of employment itself did not violate the stated public policy of protection of health and safety; there was no public policy in the Protective Order Statutes protecting the exercise of the right to seek a protective order. Even if the employee was a member of a protected class of persons entitled to the protections enunciated by that public policy, there was no viable Bowman claim under scenario 2 because there was no allegation that the termination of employment violated the public policy to protect the employee's health and safety. Francis v. Nat'l Accrediting Comm'n of Career Arts & Scis., Inc., 293 Va. 167 , 796 S.E.2d 188, 2017 Va. LEXIS 14 (2017).

CIRCUIT COURT OPINIONS

Expungement of preliminary protective order not authorized. - Absent a provision allowing expungement of a preliminary protective order, issued pursuant to § 19.2-152.9 , the superior court judge declined to order the same. Petition for Expungement, 74 Va. Cir. 463, 2008 Va. Cir. LEXIS 2 (Newport News 2008).

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of protective orders. - A law-enforcement agency should not remove a protective order from Virginia Criminal Information Network (VCIN) unless it receives a court order of dissolution or the protective order has expired by its own terms or by operation of law. Where more than one active protective order exists involving the same parties, an individual may be charged with violating a discrete provision of either order. See opinion of Attorney General to The Honorable Steve A. Hutcherson, Campbell County Sheriff's Office, 19-006, 2019 Va. AG LEXIS 37 (12/20/19).

A law-enforcement officer may lawfully detain an individual for the purpose of serving a protective order issued pursuant to Chapter 9.1 of Title 19.2 if the officer has reasonable, articulable suspicion of criminal activity, but may not lawfully extend the period of an otherwise-justified but unrelated detention for the purpose of serving such an order. See opinion of Attorney General to The Honorable Colette Wallace McEachin, Commonwealth's Attorney, City of Richmond, 20-002, 2020 Va. AG LEXIS 35 (10/30/20).

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by emancipated minors for protective orders. - Emancipated minor may file petitions for protective orders under applicable statutes. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Meaning of "primary law-enforcement agency." - In a city with both a police department and a sheriff's office, the police department is the primary law-enforcement agency responsible for the service of protective orders issued pursuant to §§ 16.1-253.1, 16.1-253.4, 16.1-279.1, and §§ 19.2-152.8 , 19.2-152.9 , and 19.2-152.10 . See opinion of Attorney General to The Honorable Dana Lawhorne, Sheriff, City of Alexandria, 20-037, 2020 Va. AG LEXIS 37 (12/11/20).

§ 19.2-152.10. (Effective until January 1, 2022) Protective order.

  1. The court may issue a protective order pursuant to this chapter to protect the health and safety of the petitioner and family or household members of a petitioner upon (i) the issuance of a petition or warrant for, or a conviction of, any criminal offense resulting from the commission of an act of violence, force, or threat or (ii) a hearing held pursuant to subsection D of § 19.2-152.9 . A protective order issued under this section may include any one or more of the following conditions to be imposed on the respondent:
    1. Prohibiting acts of violence, force, or threat or criminal offenses that may result in injury to person or property;
    2. Prohibiting such contacts by the respondent with the petitioner or family or household members of the petitioner as the court deems necessary for the health or safety of such persons;
    3. Any other relief necessary to prevent (i) acts of violence, force, or threat, (ii) criminal offenses that may result in injury to person or property, or (iii) communication or other contact of any kind by the respondent; and
    4. Granting the petitioner the possession of any companion animal as defined in § 3.2-6500 if such petitioner meets the definition of owner in § 3.2-6500.
  2. Except as provided in subsection C, the protective order may be issued for a specified period of time up to a maximum of two years. The protective order shall expire at 11:59 p.m. on the last day specified or at 11:59 p.m. on the last day of the two-year period if no date is specified. Prior to the expiration of the protective order, a petitioner may file a written motion requesting a hearing to extend the order. Proceedings to extend a protective order shall be given precedence on the docket of the court. The court may extend the protective order for a period not longer than two years to protect the health and safety of the petitioner or persons who are family or household members of the petitioner at the time the request for an extension is made. The extension of the protective order shall expire at 11:59 p.m. on the last day specified or at 11:59 p.m. on the last day of the two-year period if no date is specified. Nothing herein shall limit the number of extensions that may be requested or issued.
  3. Upon conviction for an act of violence as defined in § 19.2-297.1 and upon the request of the victim or of the attorney for the Commonwealth on behalf of the victim, the court may issue a protective order to the victim pursuant to this chapter to protect the health and safety of the victim. The protective order may be issued for any reasonable period of time, including up to the lifetime of the defendant, that the court deems necessary to protect the health and safety of the victim. The protective order shall expire at 11:59 p.m. on the last day specified in the protective order, if any. Upon a conviction for violation of a protective order issued pursuant to this subsection, the court that issued the original protective order may extend the protective order as the court deems necessary to protect the health and safety of the victim. The extension of the protective order shall expire at 11:59 p.m. on the last day specified, if any. Nothing herein shall limit the number of extensions that may be issued.
  4. A copy of the protective order shall be served on the respondent and provided to the petitioner as soon as possible. The court, including a circuit court if the circuit court issued the order, shall forthwith, but in all cases no later than the end of the business day on which the order was issued, enter and transfer electronically to the Virginia Criminal Information Network the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court and shall forthwith forward the attested copy of the protective order and containing any such identifying information to the primary law-enforcement agency responsible for service and entry of protective orders. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith upon the respondent and due return made to the court. Upon service, the agency making service shall enter the date and time of service and other appropriate information required into the Virginia Criminal Information Network and make due return to the court. If the order is later dissolved or modified, a copy of the dissolution or modification order shall also be attested, forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders, and upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network as described above and the order shall be served forthwith and due return made to the court.
  5. Except as otherwise provided, a violation of a protective order issued under this section shall constitute contempt of court.
  6. The court may assess costs and attorneys' fees against either party regardless of whether an order of protection has been issued as a result of a full hearing.
  7. Any judgment, order or decree, whether permanent or temporary, issued by a court of appropriate jurisdiction in another state, the United States or any of its territories, possessions or Commonwealths, the District of Columbia or by any tribal court of appropriate jurisdiction for the purpose of preventing violent or threatening acts or harassment against or contact or communication with or physical proximity to another person, including any of the conditions specified in subsection A, shall be accorded full faith and credit and enforced in the Commonwealth as if it were an order of the Commonwealth, provided reasonable notice and opportunity to be heard were given by the issuing jurisdiction to the person against whom the order is sought to be enforced sufficient to protect such person's due process rights and consistent with federal law. A person entitled to protection under such a foreign order may file the order in any appropriate district court by filing with the court, an attested or exemplified copy of the order. Upon such a filing, the clerk shall forthwith forward an attested copy of the order to the primary law-enforcement agency responsible for service and entry of protective orders which shall, upon receipt, enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. Where practical, the court may transfer information electronically to the Virginia Criminal Information Network. Upon inquiry by any law-enforcement agency of the Commonwealth, the clerk shall make a copy available of any foreign order filed with that court. A law-enforcement officer may, in the performance of his duties, rely upon a copy of a foreign protective order or other suitable evidence which has been provided to him by any source and may also rely upon the statement of any person protected by the order that the order remains in effect.
  8. Either party may at any time file a written motion with the court requesting a hearing to dissolve or modify the order. Proceedings to modify or dissolve a protective order shall be given precedence on the docket of the court. Upon petitioner's motion to dissolve the protective order, a dissolution order may be issued ex parte by the court with or without a hearing. If an ex parte hearing is held, it shall be heard by the court as soon as practicable. If a dissolution order is issued ex parte, the court shall serve a copy of such dissolution order on respondent in conformity with §§ 8.01-286.1 and 8.01-296 .
  9. Neither a law-enforcement agency, the attorney for the Commonwealth, a court nor the clerk's office, nor any employee of them, may disclose, except among themselves, the residential address, telephone number, or place of employment of the person protected by the order or that of the family of such person, except to the extent that disclosure is (i) required by law or the Rules of the Supreme Court, (ii) necessary for law-enforcement purposes, or (iii) permitted by the court for good cause.
  10. No fees shall be charged for filing or serving petitions pursuant to this section.
  11. As used in this section:

    "Copy" includes a facsimile copy; and

    "Protective order" includes an initial, modified or extended protective order.

  12. Upon issuance of a protective order, the clerk of the court shall make available to the petitioner information that is published by the Department of Criminal Justice Services for victims of domestic violence or for petitioners in protective order cases.

    (1997, c. 831; 1998, cc. 569, 684; 1999, c. 371; 2002, cc. 507, 810, 818; 2003, c. 730; 2008, cc. 73, 246; 2009, cc. 341, 732; 2010, cc. 425, 468; 2011, cc. 445, 480; 2012, cc. 152, 261; 2014, c. 346; 2018, c. 652; 2020, cc. 137, 1005.)

Cross references. - As to penalty for violation of stalking protective order, see § 18.2-60.4 .

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 19.2-152.10 .

Editor's note. - Acts 2012, cc. 152 and 261, cl. 2 provides: "That beginning July 1, 2013, any circuit court clerk who does not use the Statewide Case Management System operated and maintained by the Executive Secretary of the Supreme Court shall provide protective orders directly to the Virginia Criminal Information Network in an electronic format approved by the Department of State Police; and that until July 1, 2013, such clerks shall forthwith forward the protective order to the primary law-enforcement agency providing service and entry of protective orders for entry into the Virginia Criminal Information Network."

Acts 2014, c. 346, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 806 of the Acts of Assembly of 2013 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2002, c. 1005, cl. 2 provides: "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 $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendment inserted "of any kind" in subdivision A 3.

The 2002 amendments. - The 2002 amendment by ch. 507 substituted "shall, upon receipt, enter" for "shall, on the date of receipt, enter" in the third sentence of subsections B and E; and inserted present subsection G, and redesignated former subsections G and H as present subsections H and I.

The 2002 amendments by cc. 810 and 818 are identical, and capitalized "criminal information network" throughout subsections B and E; in subsection B, inserted "upon receipt" following "The clerk shall" and substituted "upon receipt, enter" for "on the date of receipt, enter" in the third sentence, and deleted "feasible and" preceding "practical" in the fourth sentence; and substituted "upon" for "on the date of" in the third sentence in subsection E.

The 2003 amendments. - The 2003 amendment by c. 730, in subsection A, inserted "a criminal offense resulting in a serious bodily injury to the petitioner, or" in clauses (i) and (iii) of the first sentence of the introductory language; substituted "Prohibiting criminal offenses that may result in injury to person or property, or acts" for "Prohibiting further acts" in subdivision A 1; and substituted "prevent criminal offenses that may result in injury to person or property, or acts" for "prevent further acts" in subdivision A 3.

The 2008 amendments. - The 2008 amendments by cc. 73 and 246 are identical, and rewrote subsection B; in the first paragraph of subsection E, substituted "shall forthwith forward an attested copy of the order to the primary law-enforcement agency responsible for service and entry of protective orders" for "shall forward forthwith an attested copy of the order to the local police department or sheriff's office" in the third sentence, and added the fourth sentence; and added subsection J.

The 2009 amendments. - The 2009 amendment by c. 341, in subsection A, inserted "sexual battery in violation of § 18.2-67.4 , aggravated sexual battery in violation of § 18.2-67.3 " twice; and in subdivisions A 1 and A 3, inserted "acts of sexual battery."

The 2009 amendment by c. 732, in subsection B, in the second sentence, substituted "11:59 p.m. on" for "the end of," "specified or at 11:59 p.m. on the last day of the two-year period" for "identified for the two-year period and,"' and "specified" for "identified, it shall expire at the end of the two years following the date of issuance," in the fourth sentence, inserted "electronically to the Virginia Criminal Information Network the respondent's" and "and the name, date of birth, sex, and race of each protected person," and deleted "electronically to the Virginia Criminal Information Network" following "provided to the court" and "an addendum" preceding "containing any such," in the fifth sentence, deleted "and addendum" following "receipt of the order," in the sixth sentence, deleted "and an addendum" following "copy of the order," inserted "the respondent's" and "and the name, date of birth, sex, and race of each protected person provided to the court" and deleted "and addendum" following "receipt of the order"; and deleted subsection J, which read: "If any identifying information in the addendum is determined to be incorrect by the entering agency, the agency shall enter the corrected information into the Virginia Criminal Information Network."

The 2010 amendments. - The 2010 amendments by cc. 425 and 468 are identical, and divided former subsection B into subsections B and C by inserting the C designation following the second sentence; redesignated former subsections C through I as subsections D through J; in subsection B, substituted "of time up to a maximum of" for "however, unless otherwise authorized by law, a protective order may not be issued under this section for a period longer than" near the end of the first sentence, and added the last five sentences; added the definition of "Protective order" in subsection J and made related changes.

The 2011 amendments. - The 2011 amendments by cc. 445 and 480 are identical, and in the first paragraph in subsection A, rewrote clause (i), which read: "the issuance of a petition or warrant for sexual battery in violation of § 18.2-67.4 , aggravated sexual battery in violation of § 18.2-67.3 , or a criminal offense resulting in a serious bodily injury to the petitioner, or a violation of § 18.2-60.3 ," and deleted clause (iii), which read: "a conviction for sexual battery in violation of § 18.2-67.4 , aggravated sexual battery in violation of § 18.2-67.3 , a criminal offense resulting in a serious bodily injury to the petitioner, or a violation of § 18.2-60.3 "; in subdivision A 1, inserted "acts of violence, force, or threat or" and deleted "act of sexual battery, or acts of stalking in violation of § 18.2-60.3" from the end; and in subdivision A 3, added clause (i), added the clause (ii) designation, and therein deleted "acts of sexual battery, or acts of stalking" from the end, and inserted "or (iii)."

The 2012 amendments. - The 2012 amendments by cc. 152 and 261 are identical, and in subsection C, inserted "including a circuit court if the circuit court issued the order" in the second sentence, and deleted the former fourth sentence, which read: "However, if the order is issued by the circuit court, the clerk of the circuit court shall forthwith forward an attested copy of the order containing the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court to the primary law-enforcement agency providing service and entry of protective orders and upon receipt of the order, the primary law-enforcement agency shall enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 ( § 52-12 et seq.) of Title 52 and the order shall be served forthwith on the respondent."; and made minor stylistic changes.

The 2014 amendments. - The 2014 amendment by c. 346 added subdivision A 4 and made related changes.

The 2018 amendments. - The 2018 amendment by c. 652 added subsection K.

The 2020 amendments. - The 2020 amendment by c. 137, added the last three sentences in subsection G [now subsection H].

The 2020 amendment by c. 1005, added "Except as provided in subsection C" at the beginning of subsection B; and inserted present subsection C and redesignated the remaining subsections accordingly.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 31. Proceedings in General District Court. § 31.21 Appeals. Friend. Virginia Forms (Matthew Bender). No. 5-149. Preliminary Child Protective Order; No. 5-150. Child Protective Order--Abuse and Neglect; No. 9-219. Emergency Protective Order, et seq.

CASE NOTES

Sufficiency of the evidence. - Trial court properly issued a protective order based on a finding of stalking because an ex-boyfriend persistently tried to contact the ex-girlfriend through social media and e-mail, contacted her parents, called her at home and work, sent her flowers, visited her home, acknowledged that she did not wish to associate with him, was told by others to leave her alone, and should have known that his abnormally persistent efforts to contact her were unwelcomed and would cause fear. Stephens v. Rose, 288 Va. 150 , 762 S.E.2d 758, 2014 Va. LEXIS 118 (2014).

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of protective orders. - A law-enforcement agency should not remove a protective order from Virginia Criminal Information Network (VCIN) unless it receives a court order of dissolution or the protective order has expired by its own terms or by operation of law. Where more than one active protective order exists involving the same parties, an individual may be charged with violating a discrete provision of either order. See opinion of Attorney General to The Honorable Steve A. Hutcherson, Campbell County Sheriff's Office, 19-006, 2019 Va. AG LEXIS 37 (12/20/19).

A law-enforcement officer may lawfully detain an individual for the purpose of serving a protective order issued pursuant to Chapter 9.1 of Title 19.2 if the officer has reasonable, articulable suspicion of criminal activity, but may not lawfully extend the period of an otherwise-justified but unrelated detention for the purpose of serving such an order. See opinion of Attorney General to The Honorable Colette Wallace McEachin, Commonwealth's Attorney, City of Richmond, 20-002, 2020 Va. AG LEXIS 35 (10/30/20).

Petition for protective orders by law enforcement on behalf of minors. - Law-enforcement officers may file petitions for emergency protective orders on behalf of minors who are victims of family abuse, stalking, sexual assault or other acts of criminal violence. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by emancipated minors for protective orders. - Emancipated minor may file petitions for protective orders under applicable statutes. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Meaning of "primary law-enforcement agency." - In a city with both a police department and a sheriff's office, the police department is the primary law-enforcement agency responsible for the service of protective orders issued pursuant to §§ 16.1-253.1, 16.1-253.4, 16.1-279.1, and §§ 19.2-152.8 , 19.2-152.9 , and 19.2-152.10 . See opinion of Attorney General to The Honorable Dana Lawhorne, Sheriff, City of Alexandria, 20-037, 2020 Va. AG LEXIS 37 (12/11/20).

§ 19.2-152.10. (Effective January 1, 2022) Protective order.

  1. The court may issue a protective order pursuant to this chapter to protect the health and safety of the petitioner and family or household members of a petitioner upon (i) the issuance of a petition or warrant for, or a conviction of, any criminal offense resulting from the commission of an act of violence, force, or threat or (ii) a hearing held pursuant to subsection D of § 19.2-152.9 . A protective order issued under this section may include any one or more of the following conditions to be imposed on the respondent:
    1. Prohibiting acts of violence, force, or threat or criminal offenses that may result in injury to person or property;
    2. Prohibiting such contacts by the respondent with the petitioner or family or household members of the petitioner as the court deems necessary for the health or safety of such persons;
    3. Any other relief necessary to prevent (i) acts of violence, force, or threat, (ii) criminal offenses that may result in injury to person or property, or (iii) communication or other contact of any kind by the respondent; and
    4. Granting the petitioner the possession of any companion animal as defined in § 3.2-6500 if such petitioner meets the definition of owner in § 3.2-6500.
  2. Except as provided in subsection C, the protective order may be issued for a specified period of time up to a maximum of two years. The protective order shall expire at 11:59 p.m. on the last day specified or at 11:59 p.m. on the last day of the two-year period if no date is specified. Prior to the expiration of the protective order, a petitioner may file a written motion requesting a hearing to extend the order. Proceedings to extend a protective order shall be given precedence on the docket of the court. The court may extend the protective order for a period not longer than two years to protect the health and safety of the petitioner or persons who are family or household members of the petitioner at the time the request for an extension is made. The extension of the protective order shall expire at 11:59 p.m. on the last day specified or at 11:59 p.m. on the last day of the two-year period if no date is specified. Nothing herein shall limit the number of extensions that may be requested or issued.
  3. Upon conviction for an act of violence as defined in § 19.2-297.1 and upon the request of the victim or of the attorney for the Commonwealth on behalf of the victim, the court may issue a protective order to the victim pursuant to this chapter to protect the health and safety of the victim. The protective order may be issued for any reasonable period of time, including up to the lifetime of the defendant, that the court deems necessary to protect the health and safety of the victim. The protective order shall expire at 11:59 p.m. on the last day specified in the protective order, if any. Upon a conviction for violation of a protective order issued pursuant to this subsection, the court that issued the original protective order may extend the protective order as the court deems necessary to protect the health and safety of the victim. The extension of the protective order shall expire at 11:59 p.m. on the last day specified, if any. Nothing herein shall limit the number of extensions that may be issued.
  4. A copy of the protective order shall be served on the respondent and provided to the petitioner as soon as possible. The court, including a circuit court if the circuit court issued the order, shall forthwith, but in all cases no later than the end of the business day on which the order was issued, enter and transfer electronically to the Virginia Criminal Information Network the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court and shall forthwith forward the attested copy of the protective order and containing any such identifying information to the primary law-enforcement agency responsible for service and entry of protective orders. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith upon the respondent and due return made to the court. Upon service, the agency making service shall enter the date and time of service and other appropriate information required into the Virginia Criminal Information Network and make due return to the court. If the order is later dissolved or modified, a copy of the dissolution or modification order shall also be attested, forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders, and upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network as described above and the order shall be served forthwith and due return made to the court.
  5. Except as otherwise provided, a violation of a protective order issued under this section shall constitute contempt of court.
  6. The court may assess costs and attorneys' fees against either party regardless of whether an order of protection has been issued as a result of a full hearing.
  7. Any judgment, order or decree, whether permanent or temporary, issued by a court of appropriate jurisdiction in another state, the United States or any of its territories, possessions or Commonwealths, the District of Columbia or by any tribal court of appropriate jurisdiction for the purpose of preventing violent or threatening acts or harassment against or contact or communication with or physical proximity to another person, including any of the conditions specified in subsection A, shall be accorded full faith and credit and enforced in the Commonwealth as if it were an order of the Commonwealth, provided reasonable notice and opportunity to be heard were given by the issuing jurisdiction to the person against whom the order is sought to be enforced sufficient to protect such person's due process rights and consistent with federal law. A person entitled to protection under such a foreign order may file the order in any appropriate district court by filing with the court, an attested or exemplified copy of the order. Upon such a filing, the clerk shall forthwith forward an attested copy of the order to the primary law-enforcement agency responsible for service and entry of protective orders which shall, upon receipt, enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. Where practical, the court may transfer information electronically to the Virginia Criminal Information Network. Upon inquiry by any law-enforcement agency of the Commonwealth, the clerk shall make a copy available of any foreign order filed with that court. A law-enforcement officer may, in the performance of his duties, rely upon a copy of a foreign protective order or other suitable evidence which has been provided to him by any source and may also rely upon the statement of any person protected by the order that the order remains in effect.
  8. Either party may at any time file a written motion with the court requesting a hearing to dissolve or modify the order. Proceedings to modify or dissolve a protective order shall be given precedence on the docket of the court. Upon petitioner's motion to dissolve the protective order, a dissolution order may be issued ex parte by the court with or without a hearing. If an ex parte hearing is held, it shall be heard by the court as soon as practicable. If a dissolution order is issued ex parte, the court shall serve a copy of such dissolution order on respondent in conformity with §§ 8.01-286.1 and 8.01-296 .
  9. Neither a law-enforcement agency, the attorney for the Commonwealth, a court nor the clerk's office, nor any employee of them, may disclose, except among themselves, the residential address, telephone number, or place of employment of the person protected by the order or that of the family of such person, except to the extent that disclosure is (i) required by law or the Rules of the Supreme Court, (ii) necessary for law-enforcement purposes, or (iii) permitted by the court for good cause.
  10. No fees shall be charged for filing or serving petitions pursuant to this section.
  11. As used in this section:

    "Copy" includes a facsimile copy; and

    "Protective order" includes an initial, modified or extended protective order.

  12. Upon issuance of a protective order, the clerk of the court shall make available to the petitioner information that is published by the Department of Criminal Justice Services for victims of domestic violence or for petitioners in protective order cases.
  13. An appeal of a protective order issued pursuant to this section shall be given expedited review by the Court of Appeals.

    (1997, c. 831; 1998, cc. 569, 684; 1999, c. 371; 2002, cc. 507, 810, 818; 2003, c. 730; 2008, cc. 73, 246; 2009, cc. 341, 732; 2010, cc. 425, 468; 2011, cc. 445, 480; 2012, cc. 152, 261; 2014, c. 346; 2018, c. 652; 2020, cc. 137, 1005; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 19.2-152.10 .

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, added subsection M.

§ 19.2-152.11. Venue for protective orders.

Proceedings in which a protective order is sought pursuant to this chapter shall be commenced where (i) either party has his principal residence; (ii) the act of violence, force, or threat by the respondent against the petitioner occurred; or (iii) a protective order was issued if, at the time the proceeding is commenced, the order is in effect to protect the petitioner or a family or household member of the petitioner.

(2012, c. 637.)

§ 19.2-152.12. Compensation for required representation of respondents.

Notwithstanding any other provision of law, when, in a proceeding pursuant to this chapter, representation of a respondent by counsel is required under the Servicemembers Civil Relief Act (50 U.S.C. § 3901 et seq.) or a guardian ad litem is required by law and there is no other provision for the compensation of counsel or a guardian ad litem, the court may order such counsel or guardian ad litem to be compensated for services pursuant to § 19.2-163 .

(2015, cc. 545, 556.)

Editor's note. - At the direction of the Virginia Code Commission, "50 U.S.C. § 3901 et seq." was substituted for "50 U.S.C. App. § 501 et seq." to conform to editorial reclassification of Title 50, U.S.C.

Chapter 9.2. Substantial Risk Orders.

Sec.

§ 19.2-152.13. Emergency substantial risk order.

  1. Upon the petition of an attorney for the Commonwealth or a law-enforcement officer, a judge of a circuit court, general district court, or juvenile and domestic relations district court or a magistrate, upon a finding that there is probable cause to believe that a person poses a substantial risk of personal injury to himself or others in the near future by such person's possession or acquisition of a firearm, shall issue an ex parte emergency substantial risk order. Such order shall prohibit the person who is subject to the order from purchasing, possessing, or transporting a firearm for the duration of the order. In determining whether probable cause for the issuance of an order exists, the judge or magistrate shall consider any relevant evidence, including any recent act of violence, force, or threat as defined in § 19.2-152.7:1 by such person directed toward another person or toward himself. No petition shall be filed unless an independent investigation has been conducted by law enforcement that determines that grounds for the petition exist. The order shall contain a statement (i) informing the person who is subject to the order of the requirements and penalties under § 18.2-308.1:6 , including that it is unlawful for such person to purchase, possess, or transport a firearm for the duration of the order and that such person is required to surrender his concealed handgun permit if he possesses such permit, and (ii) advising such person to voluntarily relinquish any firearm within his custody to the law-enforcement agency that serves the order.
  2. The petition for an emergency substantial risk order shall be made under oath and shall be supported by an affidavit.
  3. Upon service of an emergency substantial risk order, the person who is subject to the order shall be given the opportunity to voluntarily relinquish any firearm in his possession. The law-enforcement agency that executed the emergency substantial risk order shall take custody of all firearms that are voluntarily relinquished by such person. The law-enforcement agency that takes into custody a firearm pursuant to the order shall prepare a written receipt containing the name of the person who is subject to the order and the manufacturer, model, condition, and serial number of the firearm and shall provide a copy thereof to such person. Nothing in this subsection precludes a law-enforcement officer from later obtaining a search warrant for any firearms if the law-enforcement officer has reason to believe that the person who is subject to an emergency substantial risk order has not relinquished all firearms in his possession.
  4. An emergency substantial risk order issued pursuant to this section shall expire at 11:59 p.m. on the fourteenth day following issuance of the order. If the expiration occurs on a day that the circuit court for the jurisdiction where the order was issued is not in session, the order shall be extended until 11:59 p.m. on the next day that the circuit court is in session. The person who is subject to the order may at any time file with the circuit court a motion to dissolve the order.
  5. An emergency substantial risk order issued pursuant to this section is effective upon personal service on the person who is subject to the order. The order shall be served forthwith after issuance. A copy of the order, petition, and supporting affidavit shall be given to the person who is subject to the order together with a notice informing the person that he has a right to a hearing under § 19.2-152.14 and may be represented by counsel at the hearing.
  6. The court or magistrate shall forthwith, but in all cases no later than the end of the business day on which the emergency substantial risk order was issued, enter and transfer electronically to the Virginia Criminal Information Network (VCIN) established and maintained by the Department of State Police (Department) pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 the identifying information of the person who is subject to the order provided to the court or magistrate. A copy of an order issued pursuant to this section containing any such identifying information shall be forwarded forthwith to the primary law-enforcement agency responsible for service and entry of the order. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department into the VCIN, and the order shall be served forthwith upon the person who is subject to the order. However, if the order is issued by the circuit court, the clerk of the circuit court shall forthwith forward an attested copy of the order containing the identifying information of the person who is subject to the order provided to the court to the primary law-enforcement agency providing service and entry of the order. Upon receipt of the order by the primary law-enforcement agency, the agency shall enter the name of the person subject to the order and other appropriate information required by the Department into the VCIN and the order shall be served forthwith upon the person who is subject to the order. Upon service, the agency making service shall enter the date and time of service and other appropriate information required into the VCIN and make due return to the court. If the order is later dissolved or modified, a copy of the dissolution or modification order shall also be attested and forwarded forthwith to the primary law-enforcement agency responsible for service and entry of the order. Upon receipt of the dissolution or modification order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department into the VCIN and the order shall be served forthwith.
  7. The law-enforcement agency that serves the emergency substantial risk order shall make due return to the circuit court, which shall be accompanied by a written inventory of all firearms relinquished.
  8. Proceedings in which an emergency substantial risk order is sought pursuant to this section shall be commenced where the person who is subject to the order (i) has his principal residence or (ii) has engaged in any conduct upon which the petition for the emergency substantial risk order is based.
  9. A proceeding for a substantial risk order shall be a separate civil legal proceeding subject to the same rules as civil proceedings.

    (2020, cc. 887, 888.)

Editor's note. - Acts 2020, cc. 887 and 888, in cl. 2 provide: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, cc. 887 and 888, in cl. 3 provide: "That the Supreme Court shall create standard forms to implement the intent of this act."

§ 19.2-152.14. Substantial risk order.

  1. Not later than 14 days after the issuance of an emergency substantial risk order pursuant to § 19.2-152.13 , the circuit court for the jurisdiction where the order was issued shall hold a hearing to determine whether a substantial risk order should be entered. The attorney for the Commonwealth for the jurisdiction that issued the emergency substantial risk order shall represent the interests of the Commonwealth. Notice of the hearing shall be given to the person subject to the emergency substantial risk order and the attorney for the Commonwealth. Upon motion of the respondent and for good cause shown, the court may continue the hearing, provided that the order shall remain in effect until the hearing. The Commonwealth shall have the burden of proving all material facts by clear and convincing evidence. If the court finds by clear and convincing evidence that the person poses a substantial risk of personal injury to himself or to other individuals in the near future by such person's possession or acquisition of a firearm, the court shall issue a substantial risk order. Such order shall prohibit the person who is subject to the order from purchasing, possessing, or transporting a firearm for the duration of the order. In determining whether clear and convincing evidence for the issuance of an order exists, the judge shall consider any relevant evidence including any recent act of violence, force, or threat as defined in § 19.2-152.7:1 by such person directed toward another person or toward himself. The order shall contain a statement (i) informing the person who is subject to the order of the requirements and penalties under § 18.2-308.1:6 , including that it is unlawful for such person to purchase, possess, or transport a firearm for the duration of the order and that such person is required to surrender his concealed handgun permit if he possesses such permit, and (ii) advising such person to voluntarily relinquish any firearm that has not been taken into custody to the law-enforcement agency that served the emergency substantial risk order.
  2. If the court issues a substantial risk order pursuant to subsection A, the court shall (i) order that any firearm that was previously relinquished pursuant to § 19.2-152.13 from the person who is subject to the substantial risk order continue to be held by the agency that has custody of the firearm for the duration of the order and (ii) advise such person that a law-enforcement officer may obtain a search warrant to search for any firearms from such person if such law-enforcement officer has reason to believe that such person has not relinquished all firearms in his possession. If the court finds that the person does not pose a substantial risk of personal injury to himself or to other individuals in the near future, the court shall order that any firearm that was previously relinquished be returned to such person in accordance with the provisions of § 19.2-152.15 .
  3. The substantial risk order may be issued for a specified period of time up to a maximum of 180 days. The order shall expire at 11:59 p.m. on the last day specified or at 11:59 p.m. on the last day of the 180-day period if no date is specified. Prior to the expiration of the order, an attorney for the Commonwealth or a law-enforcement officer may file a written motion requesting a hearing to extend the order. Proceedings to extend an order shall be given precedence on the docket of the court. The court may extend the order for a period not longer than 180 days if the court finds by clear and convincing evidence that the person continues to pose a substantial risk of personal injury to himself or to other individuals in the near future by such person's possession or acquisition of a firearm at the time the request for an extension is made. The extension of the order shall expire at 11:59 p.m. on the last day specified or at 11:59 p.m. on the last day of the 180-day period if no date is specified. Nothing herein shall limit the number of extensions that may be requested or issued. The person who is subject to the order may file a motion to dissolve the order one time during the duration of the order; however, such motion may not be filed earlier than 30 days from the date the order was issued.
  4. Any person whose firearm has been voluntarily relinquished pursuant to § 19.2-152.13 or this section, or such person's legal representative, may transfer the firearm to another individual 21 years of age or older who is not otherwise prohibited by law from possessing such firearm, provided that:
    1. The person subject to the order and the transferee appear at the hearing;
    2. At the hearing, the attorney for the Commonwealth advises the court that a law-enforcement agency has determined that the transferee is not prohibited from possessing or transporting a firearm;
    3. The transferee does not reside with the person subject to the order;
    4. The court informs the transferee of the requirements and penalties under § 18.2-308.2:1 ; and
    5. The court, after considering all relevant factors and any evidence or testimony from the person subject to the order, approves the transfer of the firearm subject to such restrictions as the court deems necessary. The law-enforcement agency holding the firearm shall deliver the firearm to the transferee within five days of receiving a copy of the court's approval of the transfer.
  5. The court shall forthwith, but in all cases no later than the end of the business day on which the substantial risk order was issued, enter and transfer electronically to the Virginia Criminal Information Network (VCIN) established and maintained by the Department of State Police (Department) pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 the identifying information of the person who is subject to the order provided to the court and shall forthwith forward the attested copy of the order containing any such identifying information to the primary law-enforcement agency responsible for service and entry of the order. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department into the VCIN and the order shall be served forthwith upon the person who is subject to the order and due return made to the court. Upon service, the agency making service shall enter the date and time of service and other appropriate information required by the Department into the VCIN and make due return to the court. If the person who is subject to an emergency substantial risk order fails to appear at the hearing conducted pursuant to this section because such person was not personally served with notice of the hearing pursuant to subsection A, or if personally served was incarcerated and not transported to the hearing, the court may extend the emergency substantial risk order for a period not to exceed 14 days. The extended emergency substantial risk order shall specify a date for a hearing to be conducted pursuant to this section and shall be served forthwith on such person and due return made to the court. If the order is later dissolved or modified, a copy of the dissolution or modification order shall also be attested and forwarded forthwith to the primary law-enforcement agency responsible for service and entry of the order. Upon receipt of the dissolution or modification order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network, and the order shall be served forthwith and due return made to the court. (2020, cc. 887, 888.)

Cross references. - As to penalty for purchase, possession, or transportation of firearms by persons subject to substantial risk orders, see § 18.2-308.1:6 .

§ 19.2-152.15. Return or disposal of firearms.

  1. Any firearm taken into custody pursuant to § 19.2-152.13 or 19.2-152.14 and held by a law-enforcement agency shall be returned by such agency to the person from whom the firearm was taken upon a court order for the return of the firearm issued pursuant to § 19.2-152.14 or the expiration or dissolution of an order issued pursuant to § 19.2-152.13 or 19.2-152.14 . Such agency shall return the firearm within five days of receiving a written request for the return of the firearm by the person from whom the firearm was taken and a copy of the receipt provided to such person pursuant to § 19.2-152.13 . Prior to returning the firearm to such person, the law-enforcement agency holding the firearm shall confirm that such person is no longer subject to an order issued pursuant to § 19.2-152.13 or 19.2-152.14 and is not otherwise prohibited by law from possessing a firearm.
  2. A firearm taken into custody pursuant to pursuant to § 19.2-152.13 or 19.2-152.14 and held by a law-enforcement agency may be disposed of in accordance with the provisions of § 15.2-1721 if (i) the person from whom the firearm was taken provides written authorization for such disposal to the agency or (ii) the firearm remains in the possession of the agency more than 120 days after such person is no longer subject to an order issued pursuant to § 19.2-152.13 or 19.2-152.14 and such person has not submitted a request in writing for the return of the firearm. (2020, cc. 887, 888.)

§ 19.2-152.16. False statement to law-enforcement officer, etc.; penalty.

Any person who knowingly and willfully makes any materially false statement or representation to a law-enforcement officer or attorney for the Commonwealth who is in the course of conducting an investigation undertaken pursuant to this chapter is guilty of a Class 1 misdemeanor.

(2020, cc. 887, 888.)

§ 19.2-152.17. Immunity of law-enforcement officers, etc.; chapter not exclusive.

  1. An attorney for the Commonwealth or a law-enforcement officer shall be immune from civil liability for any act or omission related to petitioning or declining to petition for a substantial risk order pursuant to this chapter.
  2. Any law-enforcement agency or law-enforcement officer that takes into custody, stores, possesses, or transports a firearm pursuant to § 19.2-152.13 or 19.2-152.14 , or by a search warrant for a person who has failed to voluntarily relinquish his firearm, shall be immune from civil or criminal liability for any damage to or deterioration, loss, or theft of such firearm.
  3. Nothing in this chapter precludes a law-enforcement officer from conducting a search for a firearm or removing a firearm from a person under any other lawful authority.

    (2020, cc. 887, 888.)

Chapter 10. Disability of Judge or Attorney for Commonwealth; Court- Appointed Counsel; Interpreters; Transcripts.

Disability of Judge.

Disability of Attorney for Commonwealth.

Appointment of Attorney for Accused.

Indigent Defense.

Public Defenders.

Counsel in Capital Cases.

Interpreters.

Recording Evidence and Incidents of Trial.

Article 1. Disability of Judge.

§ 19.2-153. When judge cannot sit on trial; how another judge procured to try the case.

When the judge of a circuit court in which a prosecution is pending is connected with the accused or party injured, or is so situated in respect to the case as in his opinion to render it improper that he should preside at the trial, or if he has rejected a plea bargain agreement submitted by both parties and the parties do not agree that he may hear the case, he shall enter the fact of record and the clerk of the court shall at once certify this fact to the Chief Justice of the Supreme Court and thereupon another judge shall be appointed, in the manner prescribed by § 17.1-105 , to preside at the trial.

(Code 1950, § 19.1-7; 1960, c. 366; 1975, c. 495; 1984, c. 585; 1985, c. 253.)

Law review. - For article, "Signaling and Plea Bargaining's Innocence Problem," see 66 Wash. & Lee L. Rev. 73 (2009).

Research References. - Virginia Forms (Matthew Bender). No. 9-1701. Disqualification/Waiver of Disqualification of General District Court Judge, et seq. No. 9-2309. Plea Agreement for Specific Sentence.

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judges, § 14.

CASE NOTES

Resentencing by another judge. - Prosecutor's references to defendant's refusal to accept plea offer during sentencing hearing were improper and trial judge erred in overruling defense counsel's objections to the statements; Court of Appeals could not conclude that the comments were harmless and remanded the case for resentencing by another judge. Craddock v. Commonwealth, 16 Va. App. 402, 429 S.E.2d 889 (1993).

CIRCUIT COURT OPINIONS

Circuit Court rejects the contention that it is solely the individual judge and not a court that is deemed to reject a plea agreement. - This section does not authorize a defendant to seek to present a proposed agreed disposition, one by one, to each individual judge in that circuit, and, if unsuccessful, to every other circuit court judge in the Commonwealth, hoping to eventually find a judge who was willing to accept the agreed disposition rejected by all of his or her colleagues. Commonwealth v. Stepek,, 2007 Va. Cir. LEXIS 183 (Fairfax County Aug. 23, 2007).

§ 19.2-154. Death or disability of judge during trial; how another judge procured to continue with trial.

If by reason of death, sickness or other disability the judge who presided at a criminal jury trial is unable to proceed with and finish the trial, another judge of that court or a judge designated by the Chief Justice of the Supreme Court or by a justice designated by him for that purpose, may proceed with and finish the trial or, in his discretion, may grant and preside at a new trial. If by reason of such disability, the judge who presided at any trial is unable to perform the duties to be performed by the court after a finding of guilty by the jury or the court, another judge of that court, or a judge designated as provided in the preceding sentence, may perform those duties or, in his discretion, may grant and preside at a new trial. Before proceeding with the trial or performing such duties, such judge shall certify that he has familiarized himself with the record of the trial.

(1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 68.

Article 2. Disability of Attorney for Commonwealth.

§ 19.2-155. Disqualification or temporary disability of attorney for Commonwealth; appointment of substitute; powers, duties and compensation of such appointee.

If the attorney for the Commonwealth of any county or city is connected by blood or marriage with the accused, or is so situated with respect to such accused as to render it improper, in his opinion, concurred in by the judge, for him to act, or if such attorney for the Commonwealth of any county or city is unable to act, or to attend to his official duties as attorney for the Commonwealth, due to sickness, disability or other reason of a temporary nature, then upon notification by such attorney for the Commonwealth, or upon the certificate of his attending physician, or the clerk of the court, which fact shall be entered of record, the judge of the circuit court shall appoint from another jurisdiction an attorney for the Commonwealth or an assistant attorney for the Commonwealth, with the consent of such attorney for the Commonwealth or assistant, who is not authorized by law to engage in private practice for such case or cases, term or terms of court, or period or periods of time, as may be necessary or desirable, and the same to be forthwith entered of record. However, if the circuit court determines that the appointment of such attorney for the Commonwealth or such assistant attorney for the Commonwealth is not appropriate or that such an attorney or assistant is unavailable, or for other good cause, then the circuit court may appoint an attorney-at-law who shall be compensated pursuant to § 19.2-332 . Such appointee shall act in place of, and otherwise perform the duties and exercise the powers of, such disqualified or disabled attorney for the Commonwealth, in regard to such case or cases, for the term or terms of the court, or the period or periods of time, for which the appointment and designation is made, or until the disqualified or disabled attorney for the Commonwealth shall again be able to attend to his duties as such. Nothing herein shall prevent a court from appointing as a special assistant attorney for the Commonwealth, without additional compensation, an attorney employed by a state agency when such appointment is requested by the attorney for the Commonwealth and the court determines such appointment will aid in the prosecution of a particular case or cases.

An attorney for the Commonwealth or assistant attorney for the Commonwealth who is required by law to devote full time to his duties as such shall not receive additional compensation for services rendered on appointment pursuant to this section. However, such attorney for the Commonwealth or assistant may receive reimbursement for actual expenses incurred, as approved by the Compensation Board to be paid by the Compensation Board, provided such expenses are not otherwise reimbursed by the county or city which he is elected or appointed to serve or by the Compensation Board.

(Code 1950, §§ 19.1-9, 19.1-10; 1960, c. 366; 1975, c. 495; 1983, c. 362; 1985, c. 321; 1996, c. 968.)

Editor's note. - Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 41 I 1, effective for the biennium ending June 30, 2022, provides: "Notwithstanding the provisions of § 19.2-155 , Code of Virginia, in cases where an Attorney for the Commonwealth must recuse himself from a case or a special prosecutor must be appointed, the circuit court judge must appoint an Attorney for the Commonwealth or an Assistant Attorney for the Commonwealth from another jurisdiction. If the circuit court judge determines that the appointment of such Attorney for the Commonwealth or such Assistant Attorney for the Commonwealth is not appropriate or that such an attorney or assistant is unavailable then the judge must request approval from the Executive Secretary of the Supreme Court for an exception to this requirement."

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 33 Writs and Injunctions. § 33.01 Writs. Friend.

Virginia Forms (Matthew Bender). No. 9-1706. Motion to Disqualify Commonwealth Attorney, et seq.; No. 9-2221. Order Appointing Special Prosecutors--Venue Change.

Michie's Jurisprudence. - For related discussion, see 4A M.J. Commonwealth's and State's Attorney, § 9; 11A M.J. Judges, § 14.

CASE NOTES

Appointment of substitute in disciplinary action against attorney. - Section 54.1-3935 as it stood prior to the 1980 amendment did not prohibit the appointment of a substitute attorney for the Commonwealth pursuant to this section or the designation of a substitute judge in accordance with § 17-7 [see now § 17.1-105 ] in a disciplinary proceeding brought against an attorney. Blue v. Virginia State Bar ex rel. First Dist. Comm., 222 Va. 357 , 282 S.E.2d 6 (1981).

Appointment of prosecutor retained by victim's family to act as special prosecutor. - Trial judge violated defendant's due process rights by appointing private prosecutor retained by victim's family to act as special prosecutor after Commonwealth's attorney withdrew from the case. Adkins v. Commonwealth, 26 Va. App. 14, 492 S.E.2d 833 (1997).

The general statutory language, "or other reason of a temporary nature," must be restricted in its meaning to conditions analogous to "sickness" or "disability." In re Morrissey, 246 Va. 333 , 433 S.E.2d 918 (1993).

CIRCUIT COURT OPINIONS

Failure to raise issue. - Because defendant's trial counsel never raised an issue at trial or on direct appeal that the appointment of a special prosecutor to retry defendant did not comport with § 19.2-155 , the issue was not cognizable in defendant's habeas corpus proceeding. Pease v. Huffman, 72 Va. Cir. 610, 2005 Va. Cir. LEXIS 377 (Wise County 2005).

§ 19.2-156. Prolonged absence of attorney for Commonwealth.

If it shall be necessary for the attorney for the Commonwealth of any county or city to absent himself for a prolonged period of time from the performance of the duties of his office, then, upon notification by such attorney for the Commonwealth, or by the court on its own motion, and the facts being entered of record, the judge of the circuit court shall appoint an attorney-at-law as acting attorney for the Commonwealth to serve for such length of time as may be necessary. Such acting attorney for the Commonwealth shall act in place of and otherwise perform the duties and exercise the powers of such regular attorney for the Commonwealth, and while so acting shall receive the salary and allowance for expenses fixed by the State Compensation Board for such regular attorney for the Commonwealth, who during such length of time shall not receive any such salary or allowance.

(Code 1950, § 19.1-11; 1960, c. 366; 1975, c. 495.)

Law review. - For 2006 survey article, "Election Law," see 41 U. Rich. L. Rev. 121 (2006).

CASE NOTES

Trial court authority to appoint. - Trial court was authorized to appoint an attorney-at-law to fulfill the duties of the duly-elected Commonwealth's attorney while he was serving with his military unit in Iraq and, thus, petitioner's application for writ of mandamus and/or prohibition was denied; although § 2.2-2800 would prohibit petitioner from serving both the federal government and the state government at the same time, § 2.2-2802 contained an exception for Virginia office holders who were called into active military service and prevented from vacating or forfeiting their office. In re Hannett, 270 Va. 223 , 619 S.E.2d 465 (2005).

OPINIONS OF THE ATTORNEY GENERAL

Commonwealth's attorney involuntarily recalled to active military duty has the sole discretion to appoint an assistant Commonwealth's attorney to perform the duties of the office during his absence. See opinion of Attorney General to The Honorable Gordon E. Hannett, Floyd County Commonwealth's Attorney, 05-040 (5/5/05).

Person appointed pursuant to the provisions of this section upon the resignation of the regular Commonwealth's attorney may act in place of and otherwise perform the duties and exercise the powers of that office. See opinion of Attorney General to The Honorable Gordon E. Hannett, Floyd County Commonwealth's Attorney, 05-040 (5/5/05).

Article 3. Appointment of Attorney for Accused.

Research References. - Virginia Forms (Matthew Bender). No. 9-701. Advisement and Request for Appointment of Counsel, et seq.; No. 9-801. Request for Appointment of a Lawyer, et seq. No. 9-902. Report of Commonwealth's Attorney as to Indigence of Defendant, et seq.; No. 9-1006. Motion for Substitution of Counsel, et seq.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 20, 24, 41, 77, 100; 9A M.J. Habeas Corpus, §§ 8, 15.

§ 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 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.

(Code 1950, §§ 19.1-241.1, 19.1-241.7; 1964, c. 657; 1966, c. 460; 1973, c. 316; 1975, c. 495; 1978, c. 362; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to supplementing compensation of public defender by county or city, see § 19.2-163.01:1 .

As to Supreme Court of Virginia rules governing petitions for writ of actual innocence, see Rule 5:7B, Rules of the Virginia Supreme Court.

As to Court of Appeals rules governing petitions for writ of actual innocence, see Rule 5A:5(b), Rules of the Virginia Supreme Court.

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "death or" preceding "confinement" in the first sentence.

Law review. - For note on the indigent in Virginia, see 51 Va. L. Rev. 163 (1965). For comment, "Right to Court-Appointed Counsel for Misdemeanants in Virginia," see 4 U. Rich. L. Rev. 306 (1970). For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973). For article discussing the requirement of counsel in misdemeanor cases and its implementation in Virginia, see 30 Wash. & Lee L. Rev. 431 (1973). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

CASE NOTES

This section and §§ 19.2-159 and 19.2-160 provide procedural guidelines which are not jurisdictional requirements. Compliance with the provisions of § 19.2-160 , for example, may establish a prima facie case of waiver; noncompliance may make more difficult the Commonwealth's burden of proving waiver. Van Sant v. Commonwealth, 224 Va. 269 , 295 S.E.2d 883 (1982).

No person may be deprived of his liberty who has been denied assistance of counsel as guaranteed by the Sixth Amendment. This holding is applicable to all criminal prosecutions, including prosecutions for violations of municipal ordinances. The denial of the assistance of counsel will preclude the imposition of a jail sentence. Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).

No imprisonment may be imposed at the trial of a misdemeanor, even though local law permits it, unless the accused is represented by counsel. Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).

Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).

Noncompliance with section does not prove Commonwealth failed to establish waiver. - Although compliance with the requirements of this section and following sections may be sufficient to establish a prima facie case of waiver, and noncompliance may make it more difficult for the Commonwealth to meet its burden of establishing a waiver, noncompliance alone does not prove that the Commonwealth has failed to meet its burden of proving that the defendant waived his right to counsel. Bolden v. Commonwealth, 11 Va. App. 187, 397 S.E.2d 534 (1990), cert. denied, 502 U.S. 943, 112 S. Ct. 382, 116 L. Ed. 2d 333 (1991).

This section does not grant new rights to an accused not already embodied in the Sixth Amendment to the Constitution and by the Fourteenth Amendment made applicable to the states. Timmons v. Peyton, 360 F.2d 327 (4th Cir.), cert. denied, 385 U.S. 960, 87 S. Ct. 396, 17 L. Ed. 2d 305 (1966).

Sections 19.2-157 through 19.2-161 deal with matters of procedure. Arey v. Peyton, 209 Va. 370 , 164 S.E.2d 691 (1968).

No continuing obligation to represent. - Under the facts of the instant case, the defendant was not deprived of effective representation of counsel because appointed counsel did not recognize a continuing obligation of representation between stages of the proceedings. Jackson v. Cox, 435 F.2d 1089 (4th Cir. 1970).

Appointed counsel after defendant requested public defender. - Defendant's right to counsel was violated when the trial court proceeded to trial without defendant being represented by counsel despite the fact that defendant, who alleged defendant had retained counsel, requested a public defender and the record contained no facts supporting a conclusion that defendant was attempting to delay the proceedings or that defendant acted in bad faith. Fattaleh v. Commonwealth,, 2006 Va. App. LEXIS 391 (Aug. 22, 2006).

An indigent accused is entitled to have counsel appointed at a preliminary hearing. The purpose of this rule is to protect the indigent accused against an erroneous or improper prosecution. This rule should apply only to those preliminary hearings held after June 22, 1970. Noe v. Cox, 320 F. Supp. 849 (W.D. Va. 1970).

Preliminary hearing is critical stage of proceedings. - The preliminary hearing, even one whose sole purpose is merely to determine whether or not sufficient evidence exists to hold an accused, is a critical stage of the proceedings. Grey v. Slayton, 345 F. Supp. 1278 (W.D. Va. 1972).

But not retroactively. - The holding that a preliminary hearing, even one whose sole purpose is merely to determine whether or not sufficient evidence exists to hold an accused, is a critical stage is not retroactive. Grey v. Slayton, 345 F. Supp. 1278 (W.D. Va. 1972).

Since the preliminary hearing in Virginia was not critical at the time of the hearing, then nonobservance of this section did not violate petitioner's constitutional rights. Grey v. Slayton, 345 F. Supp. 1278 (W.D. Va. 1972).

Court-appointed investigator not constitutionally required. - An indigent defendant has no constitutional right to the appointment, at public expense, of an investigator to assist in his defense. When a trial court employs an investigator at public expense, it is an act of judicial grace not constitutionally required. Stockton v. Commonwealth, 227 Va. 124 , 314 S.E.2d 371, cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984).

Assistance of counsel on motion to withdraw guilty pleas. - Because defendant was denied the constitutional right to be represented by counsel at the hearing on defendant's motion to withdraw defendant's guilty pleas, as defense counsel withdrew without offering argument on the motion and defendant's newly appointed counsel could not then participate in the motion, remand was required for a rehearing on the motion in that defendant was denied the assistance of counsel at a critical stage of the criminal proceeding. Owens v. Commonwealth, No. 1793-15-4, 2016 Va. App. LEXIS 291 (Ct. of Appeals Nov. 1, 2016).

Right to counsel at both appellate levels. - This section, when considered with § 19.2-326 , provides an indigent with a statutory right to court-appointed counsel at both appellate levels. Dodson v. Director of Dep't of Cors., 233 Va. 303 , 355 S.E.2d 573 (1987).

Court-appointed counsel on appeal. - This section, when considered with § 19.2-326 , provides an indigent with a statutory right to court-appointed counsel at both appellate levels. Dodson v. Director of Dep't of Cors., 233 Va. 303 , 355 S.E.2d 573 (1987).

Failure to appoint counsel to assist indigent defendant in making appeal from a conviction is a denial of equal protection and due process guaranteed to him under the federal Constitution and the Virginia Bill of Rights. Cabaniss v. Cunningham, 206 Va. 330 , 143 S.E.2d 911 (1965); Via v. Peyton, 208 Va. 387 , 158 S.E.2d 127 (1967).

Appellant may allege ineffective counsel on appeal to Virginia Supreme Court. - The General Assembly intended to provide an accused who is indigent a right to counsel in the Virginia Supreme Court. Therefore, appellant is not precluded from raising the allegation that his counsel rendered ineffective assistance in an appeal to the court. Dodson v. Director of Dep't of Cors., 233 Va. 303 , 355 S.E.2d 573 (1987).

Burden of proving waiver. - The burden is on the Commonwealth to prove waiver of the right to counsel by clear, precise and unequivocal evidence. Sargent v. Commonwealth, 5 Va. App. 143, 360 S.E.2d 895 (1987).

Failure to appoint counsel was error. - Defendant did not voluntarily waive his right to counsel when he signed a waiver because there was no evidence that the trial court made defendant aware of the dangers and disadvantages of waiving his right to counsel. Nothing in § 19.2-159 or in the financial statement form required child care payments to be made pursuant to a court order; deducting defendant's child care payments, his income was below 125 percent of the poverty guidelines, and he was entitled to court-appointed counsel. Blue v. Commonwealth, 49 Va. App. 704, 644 S.E.2d 385, 2007 Va. App. LEXIS 195 (2007).

Applied in Lemke v. Commonwealth, 218 Va. 870 , 241 S.E.2d 789 (1978).

CIRCUIT COURT OPINIONS

Section inapplicable. - A petitioner had no right to appointed counsel in trials of his parking citations because there was no threat of confinement for a parking ticket. In re Scott, 80 Va. Cir. 558, 2010 Va. Cir. LEXIS 89 (Norfolk July 13, 2010).

§ 19.2-158. When person not free on bail shall be informed of right to counsel and amount of bail.

Every person charged with an offense described in § 19.2-157 , who is not free on bail or otherwise, shall be brought before the judge of a court not of record, unless the circuit court issues process commanding the presence of the person, in which case the person shall be brought before the circuit court, on the first day on which such court sits after the person is charged, at which time the judge shall inform the accused of the amount of his bail and his right to counsel. If the court not of record sits on a day prior to the scheduled sitting of the court which issued process, the person shall be brought before the court not of record. The court shall also hear and consider motions by the person or Commonwealth relating to bail or conditions of release pursuant to Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title. Absent good cause shown, a hearing on bail or conditions of release shall be held as soon as practicable but in no event later than three calendar days, excluding Saturdays, Sundays, and legal holidays, following the making of such motion.

No hearing on the charges against the accused shall be had until the foregoing conditions have been complied with, and the accused shall be allowed a reasonable opportunity to employ counsel of his own choice, or, if appropriate, the statement of indigence provided for in § 19.2-159 may be executed.

(Code 1950, §§ 19.1-241.2, 19.1-241.8; 1964, c. 657; 1966, c. 460; 1973, c. 316; 1975, c. 495; 1998, c. 773; 1999, cc. 829, 846; 2014, c. 515.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and added the second sentence in the first paragraph.

The 2014 amendments. - The 2014 amendment by c. 515 in the first paragraph added the second sentence and substituted the last sentence for "If the court not of record sits on a day prior to the scheduled sitting of the court which issued process, the person shall be brought before the court not of record."

Law review. - For article discussing the requirement of counsel in misdemeanor cases and its implementation in Virginia, see 30 Wash. & Lee L. Rev. 431 (1973).

CASE NOTES

Compliance with this section is a matter of state law, and where the state trial court decided after a hearing that the section was not violated, a federal court will not, in a habeas corpus proceeding, disturb that finding, unless the state criminal process, taken as a whole, impugns the concept of fundamental fairness. Barksdale v. Robinson, 397 F. Supp. 267 (W.D. Va. 1975).

The constitutional right to counsel is satisfied if counsel is appointed in sufficient time to allow counsel to become familiar with the case, to confer with his client and to prepare for and participate in the trial. Even if a significant and unjustified delay in appointing counsel occurs, that delay does not rise to constitutional dimension if the record affirmatively shows that no prejudice resulted. Graves v. Commonwealth, 12 Va. App. 53, 402 S.E.2d 500 (1991).

Effect of failure to appoint counsel. - While there was a failure to appoint counsel for defendant charged with a felony on the first day a municipal court sat after petitioner's arrest, as provided by this section and Rule 3A:5 (b) (1) (now repealed) of the Supreme Court, such a violation of the statute and rule does not affect the jurisdiction of a court of record to subsequently try defendant for a felony. Ferguson v. Superintendent of Va. State Penitentiary, 215 Va. 269 , 208 S.E.2d 749 (1974).

The failure of the trial court to appoint counsel for the appellant until 25 days after his arrest, in violation of the requirements of this section, was not a denial of his constitutional right to counsel warranting a reversal of his conviction for distribution of cocaine. Graves v. Commonwealth, 12 Va. App. 53, 402 S.E.2d 500 (1991).

Applied in Ferguson v. Boyd, 566 F.2d 873 (4th Cir. 1977).

§ 19.2-159. Determination of indigency; guidelines; statement of indigence; appointment of counsel.

  1. If the accused shall claim that he is indigent, and the charge against him is a criminal offense that may be punishable by 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.
  2. 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 the first paragraph of this subdivision 3. 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.

  3. 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:

    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.

  4. 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. (Code 1950, § 19.1-241.3; 1964, c. 657; 1966, c. 460; 1975, c. 495; 1976, c. 553; 1978, c. 720; 1984, c. 709; 2004, cc. 884, 921; 2006, cc. 680, 708; 2008, cc. 122, 154; 2021, Sp. Sess. I, cc. 344, 345.)

"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)

Cross references. - As to eligibility for public guardian or conservator, see § 64.2-2010 .

As to Department of Corrections issued identification, see § 53.1-31.4 .

As to expert assistance for indigent defendants, see § 19.2-266.4 .

Editor's note. - Acts 2008, cc. 122 and 154, cl. 2 repealed Acts 2006, cc. 680 and 708, cl. 2, which provided a July 1, 2008, expiration date for the 2006 amendments to this section. Therefore, the 2006 amendments will not expire.

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2004 amendments. - The 2004 amendment by cc. 884 and 921 are identical, and in subdivision 3, substituted "125 percent" for "125%" in the second and third paragraphs; and in the last paragraph, deleted "pursuant to Article 4 ( § 19.2-163.1 et seq.) of Chapter 10 of Title 19.2" following "public defender" and substituted "whose names are on the list maintained by the Indigent Defense Commission pursuant to § 19.2-163.01 " for "whose practice regularly includes representation of persons accused of crimes and who have indicated their willingness to accept such appointments."

The 2006 amendments. - The 2006 amendments by cc. 680 and 708 are nearly identical, and added the last two sentences of subsection D; chapter 708 also inserted the subsection designations.

This section has been set out in the form above at the direction of the Virginia Code Commission.

The 2008 amendments. - The 2008 amendments by cc. 122 and 154 are identical, and inserted "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," and made related changes, in subsection D.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "death or" preceding "confinement" in subsection A; substituted "in the first paragraph of this subdivision 3" for "above" in the first sentence of the second paragraph of subdivision B 3.

Law review. - For comment, "Right to Court-Appointed Counsel for Misdemeanants in Virginia," see 4 U. Rich. L. Rev. 306 (1970). For article discussing the requirement of counsel in misdemeanor cases and its implementation in Virginia, see 30 Wash. & Lee L. Rev. 431 (1973). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

For note, see "Too Poor to Hire a Lawyer but Not Indigent: How States Use the Federal Poverty Guidelines to Deprive Defendants of their Sixth Amendment Right to Counsel," 70 Wash & Lee L. Rev. 1173 (2013).

CASE NOTES

This section and §§ 19.2-157 and 19.2-160 provide procedural guidelines which are not jurisdictional requirements. Compliance with the provisions of § 19.2-160 , for example, may establish a prima facie case of waiver; noncompliance may make more difficult the Commonwealth's burden of proving waiver. Van Sant v. Commonwealth, 224 Va. 269 , 295 S.E.2d 883 (1982).

Term "an appeal" is used in its generic sense and simply means that an indigent is entitled to counsel throughout the appellate process. Dodson v. Director of Dep't of Cors., 233 Va. 303 , 355 S.E.2d 573 (1987).

Failure of Commonwealth to show asset was readily convertible to cash. - In conviction for perjury based upon appellant's statement of indigence for the appointment of counsel, the record failed to disclose that the motor vehicles upon which the Commonwealth relied to support the conviction were available to appellant so as to be readily convertible to cash; therefore, there was insufficient evidence to support the conviction. Smith v. Commonwealth, 12 Va. App. 606, 405 S.E.2d 626 (1991).

Failure to appoint counsel was error. - Defendant did not voluntarily waive his right to counsel when he signed a waiver because there was no evidence that the trial court made defendant aware of the dangers and disadvantages of waiving his right to counsel. Nothing in § 19.2-159 or in the financial statement form required child care payments to be made pursuant to a court order; deducting defendant's child care payments, his income was below 125 percent of the poverty guidelines, and he was entitled to court-appointed counsel. Blue v. Commonwealth, 49 Va. App. 704, 644 S.E.2d 385, 2007 Va. App. LEXIS 195 (2007).

Evidence sufficient. - Defendant was properly convicted of perjury, under §§ 19.2-161 and 19.2-159 , based on the false statements in defendant's financial statements to determine indigency because defendant owned real estate when defendant signed under oath that defendant did not; § 19.2-159 does not require that real estate be readily convertible into cash. Henry v. Commonwealth, 63 Va. App. 30, 753 S.E.2d 868, 2014 Va. App. LEXIS 51 (Feb. 18, 2014).

Applied in Harris v. Commonwealth, 20 Va. App. 194, 455 S.E.2d 759 (1995); Brown v. Commonwealth, 288 Va. 439 , 764 S.E.2d 58, 2014 Va. LEXIS 154 (Oct. 31, 2014); Velasquez-Lopez v. Clarke, 290 Va. 443 , 778 S.E.2d 504, 2015 Va. LEXIS 167 (2015).

CIRCUIT COURT OPINIONS

Defendant not eligible once husband's income and assets were considered. - Defendant did not meet the eligibility requirements for court-appointed counsel under § 19.2-159 , where defendant's husband, with whom defendant resided, had an annual income of $42,000 and a home valued at approximately $300,000, and defendant had a job for $10 per hour, because 125% of the applicable federal poverty income guideline for such a household was $25,000. Commonwealth v. Thomas,, 2006 Va. Cir. LEXIS 179 (Fairfax County Sept. 13, 2006).

§ 19.2-159.1. Interrogation by court; filing; change in circumstances; investigation by attorney for Commonwealth.

  1. The court shall thoroughly interrogate any person making the statement of indigency required in § 19.2-159 and shall further advise such person of the penalty which might result from false swearing, as provided in § 19.2-161 .
  2. The statement and oath of the defendant shall be filed with the papers in the case, and shall follow and be in effect at all stages of the proceedings against him without further oath. In the event the defendant undergoes a change of circumstances so that he is no longer indigent, the defendant shall thereupon obtain private counsel and shall forthwith advise the court of the change of circumstances. The court shall grant reasonable continuance to allow counsel to be obtained and to prepare for trial. When private counsel has been retained, appointed counsel shall forthwith be relieved of further responsibility and compensated for his services, pro rata, pursuant to § 19.2-163 .
  3. Upon the request of the court, it shall be the duty of the attorney for the Commonwealth of the county or city in which such statement and oath was made to make an investigation as to the indigency of the defendant, or of any other person making such statement. The attorney for the Commonwealth is authorized to delegate the responsibility for such investigation to any subordinate in his office, or to any agency, state or local, which possesses the facilities to quickly make such investigation. Such investigation shall be reduced to writing and forwarded to the court in which the statement and oath was made within fourteen days after such request by the court is made. Such report shall be placed with the papers in the case.

    (Code 1950, § 19.1-241.3:1; 1975, c. 580; 1977, c. 6; 1981, c. 289; 1984, c. 709.)

The number of this section was assigned by the Virginia Code Commission, the number in the 1975 act having been 19.1-241.3:1.

CASE NOTES

Continuance motion was not one contemplated by section. - Although defendant's father had apparently undertaken to retain counsel for him immediately prior to trial, the defendant advised the court that he "didn't have anything to do with" this effort, had not spoken with such attorney, and remained unable to compensate counsel. Under such circumstances, defendant's continuance motion was clearly not one contemplated by this section. A trial court's decision to deny a continuance will not be reversed on appeal unless there was a clear abuse of discretion and prejudice to the defendant. The record demonstrated no prejudice to defendant from the ruling. Armstead v. Commonwealth, No. 2251-96-1 (Ct. of Appeals Sept. 23, 1997).

Continuance properly denied. - Defendant's request to substitute retained counsel for his court-appointed counsel, and his request for a continuance under this statute were properly denied because this statute conferred no rights on defendant, so he was not entitled to a remedy under this statute if the court declined to substitute counsel and to grant a continuance for him to prepare; and defendant was harmed only if his constitutional rights were violated, and that determination was evaluated according to familiar Sixth Amendment precedents - if defendant appropriately invoked them at the proper time, which defendant did not. Reyes v. Commonwealth, 297 Va. 133 , 823 S.E.2d 243, 2019 Va. LEXIS 11 (Feb. 21, 2019).

Abuse of discretion. - When a previously indigent accused obtains retained counsel, due to the hiring of counsel by the accused's parent, the trial court's failure to substitute retained counsel, and to grant a reasonable continuance to permit retained counsel an opportunity to prepare for trial, was inconsistent with the requirements of subsection B of § 19.2-159.1 . London v. Commonwealth, 49 Va. App. 230, 638 S.E.2d 721, 2006 Va. App. LEXIS 578 (2006).

Trial court did not abuse its discretion in denying a motion to continue, made the day before the sentencing hearing, to permit substitution of defendant's retained private counsel because defendant failed to present exceptional circumstances to the court. Defendant had previously been granted a last-minute continuance, the victim was present and prepared to testify just as when the prior continuance was granted, and both the Commonwealth of Virginia's attorney and defendant's appointed attorney were prepared to proceed with the hearing. Reyes v. Commonwealth, 68 Va. App. 379, 808 S.E.2d 838, 2018 Va. App. LEXIS 3 (2018).

Applied in Brown v. Commonwealth, 288 Va. 439 , 764 S.E.2d 58, 2014 Va. LEXIS 154 (Oct. 31, 2014).

§ 19.2-160. Appointment of counsel or waiver of right.

If the charge against the accused is a crime the penalty for which may be incarceration, and the accused is not represented by counsel, the court shall ascertain by oral examination of the accused whether or not the accused desires to waive his right to counsel.

In the event the accused desires to waive his right to counsel, and the court ascertains that such waiver is voluntary and intelligently made, then the court shall provide the accused with a statement to be executed by the accused to document his waiver. The statement shall be in a form designed and provided by the Supreme Court. Any executed statement herein provided for shall be filed with and become a part of the record of such proceeding.

In the absence of a waiver of counsel by the accused, and if he shall claim that he is indigent, the court shall proceed in the same manner as is provided in § 19.2-159 .

Should the defendant refuse or otherwise fail to sign either of the statements described in this section and § 19.2-159 , the court shall note such refusal on the record. Such refusal shall be deemed to be a waiver of the right to counsel, and the court, after so advising the accused and offering him the opportunity to rescind his refusal shall, if such refusal is not rescinded and the accused's signature given, proceed to hear and decide the case. However, if, prior to the commencement of the trial, the court states in writing, either upon the request of the attorney for the Commonwealth or, in the absence of the attorney for the Commonwealth, upon the court's own motion, that a sentence of incarceration will not be imposed if the defendant is convicted, the court may try the case without appointing counsel, and in such event no sentence of incarceration shall be imposed.

(Code 1950, § 19.1-241.9; 1973, c. 316; 1975, c. 495; 1978, c. 365; 1979, c. 468; 1983, c. 97; 1989, c. 385.)

Law review. - For survey of Virginia Law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973). For article discussing the requirement of counsel in misdemeanor cases and its implementation in Virginia, see 30 Wash. & Lee L. Rev. 431 (1973). For survey of Virginia law on criminal procedure for the year 1978-1979, see 66 Va. L. Rev. 261 (1980). For note on competence to plead guilty and to stand trial when a criminal defendant waives counsel, see 68 Va. L. Rev. 1139 (1982).

CASE NOTES

Applicability. - Record did not support the conclusion that the statute applied to this case; not only did the circuit court not state in writing that a sentence of incarceration would not be imposed, but the circuit court judge also told defendant repeatedly that he could be sentenced to jail if he opted for a jury trial. Breznick v. Commonwealth, No. 0982-19-3, 2020 Va. App. LEXIS 216 (July 28, 2020).

This section and §§ 19.2-157 and 19.2-159 provide procedural guidelines which are not jurisdictional requirements. Compliance with the provisions of this section, for example, may establish a prima facie case of waiver; noncompliance may make more difficult the Commonwealth's burden of proving waiver. Van Sant v. Commonwealth, 224 Va. 269 , 295 S.E.2d 883 (1982).

Burden of proof of waiver. - Absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless he is represented by counsel at trial. The burden is on the Commonwealth to prove waiver of the right to counsel by clear, precise, and unequivocal evidence. Van Sant v. Commonwealth, 224 Va. 269 , 295 S.E.2d 883 (1982).

The burden is on the Commonwealth to prove waiver of the right to counsel by clear, precise and unequivocal evidence. Sargent v. Commonwealth, 5 Va. App. 143, 360 S.E.2d 895 (1987).

Right to counsel did not attach where defendant only sentenced to pay a fine. - Trial court did not err by admitting evidence of an uncounseled misdemeanor conviction in order to elevate defendant's third offense of petit larceny to a felony, where despite defendant's contention to the contrary she did not have the right to counsel for a prior misdemeanor conviction, as she was only sentenced to pay a fine; moreover, any violation of the statutory right to counsel did not mandate exclusion of the conviction order. Kapoor v. Commonwealth, No. 2582-03-4, 2004 Va. App. LEXIS 557 (Ct. of Appeals Nov. 16, 2004).

Trial judge's failure to advise petitioner of the hazards of a pro se defense, or to inquire whether petitioner's choice to proceed pro se was an informed choice, or, indeed, even to acknowledge petitioner's desire to waive counsel, taken together with the judge's effort to force petitioner to proceed with counsel he did not want, deprived petitioner of his Sixth Amendment guarantees. Van Sant v. Gondles, 596 F. Supp. 484 (E.D. Va. 1983), aff'd, 742 F.2d 1450 (4th Cir. 1984).

Trial judge's failure to allow petitioner a continuance requested for purpose of preparing his own defense without even an inquiry into petitioner's level of preparedness, taken in light of petitioner's representations of unpreparedness, deprived petitioner of effective self-representation. Van Sant v. Gondles, 596 F. Supp. 484 (E.D. Va. 1983), aff'd, 742 F.2d 1450 (4th Cir. 1984).

The fact that a defendant had other retained counsel representing her at trial in the general district court did not necessarily prove that she was ineligible to receive the benefit of court-appointed counsel on appeal to the circuit court. Lemke v. Commonwealth, 218 Va. 870 , 241 S.E.2d 789 (1978).

Applied in Harris v. Commonwealth, 20 Va. App. 194, 455 S.E.2d 759 (1995).

CIRCUIT COURT OPINIONS

Purpose. - Purpose of this section is to impose on the government, the prosecuting party, through the court, the duty to consider waiver of jail time when appropriate to conserve taxpayer funds. Commonwealth v. Thomas, 103 Va. Cir. 139, 2019 Va. Cir. LEXIS 455 (Fairfax County Sept. 24, 2019).

Construction. - Under a plain reading of this section, "in such event" refers not to the trial itself but to the operative factual decision of the lower court that states in writing that a sentence of incarceration will not be imposed if the defendant is convicted; irrespective of whether the waiver comes at the behest of the Commonwealth's Attorney or is product of the initiative of a court, the effect is the same: the Commonwealth waives incarceration once the court so affirms in writing. Commonwealth v. Thomas, 103 Va. Cir. 139, 2019 Va. Cir. LEXIS 455 (Fairfax County Sept. 24, 2019).

§ 19.2-161. Penalty for false swearing with regard to statement of indigence.

Any person charged with a felony who shall falsely swear or who shall execute the statement provided for in § 19.2-159 knowing such statement to be false, shall be guilty of perjury, punishable as a Class 5 felony.

Any person charged with a misdemeanor punishable by confinement in jail who shall falsely swear or who shall execute the statement provided for in § 19.2-159 knowing such statement to be false shall be guilty of a Class 1 misdemeanor.

(Code 1950, §§ 19.1-241.6, 19.1-241.12; 1964, c. 657; 1973, c. 316; 1975, c. 495.)

Cross references. - As to punishment for Class 5 felonies, see § 18.2-10 .

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see Va. L. Rev. 1478 (1973). For note, "Lying on the Stand Won't Cost You a Dime: Should Courts Recognize a Civil Action in Tort for Perjury," see 44 Wash. & Lee L. Rev. 1257 (1988).

CASE NOTES

Failure of Commonwealth to show asset was readily convertible to cash. - In conviction for perjury based upon appellant's statement of indigence for the appointment of counsel, the record failed to disclose that the motor vehicles upon which the Commonwealth relied to support the conviction were available to appellant so as to be readily convertible to cash; therefore, there was insufficient evidence to support the conviction. Smith v. Commonwealth, 12 Va. App. 606, 405 S.E.2d 626 (1991).

Evidence sufficient. - Defendant was properly convicted of perjury, under §§ 19.2-161 and 19.2-159 , based on the false statements in defendant's financial statements to determine indigency because defendant owned real estate when defendant signed under oath that defendant did not; § 19.2-159 does not require that real estate be readily convertible into cash. Henry v. Commonwealth, 63 Va. App. 30, 753 S.E.2d 868, 2014 Va. App. LEXIS 51 (Feb. 18, 2014).

§ 19.2-162. Continuances to be granted if necessary.

Courts before which criminal proceedings are pending shall afford such continuances and take such other action as is necessary to comply with the provisions of this chapter.

(Code 1950, §§ 19.1-241.4, 19.1-241.10; 1964, c. 657; 1973, c. 316; 1975, c. 495.)

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

Research References. - Virginia Forms (Matthew Bender). No. 9-2201. Motion for Continuance, et seq.

CASE NOTES

In order to work a delay by the last minute change of counsel, exceptional circumstances must exist. Shifflett v. Commonwealth, 218 Va. 25 , 235 S.E.2d 316 (1977).

No adequate cause to delay trial. - There were no circumstances suggesting adequate cause to delay a trial on a motion for a continuance to enable the defendant to retain counsel of his own choosing, where the only ground assigned was that the defendant needed more time in preparing his defense, and where the record showed that the defendant had adequate time to prepare his defense if he had cooperated with his court-appointed attorney. Shifflett v. Commonwealth, 218 Va. 25 , 235 S.E.2d 316 (1977).

Surprise. - When a litigant is surprised in the midst of a trial, that is precisely the situation in which a continuance may be appropriate. Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200 (1989).

Defendant could not successfully attack the trial court's decision to grant continuance on the ground that his right of surprise was undermined since there is no such right. Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200 (1989).

Discretion of trial court. - A motion for a continuance in order to obtain the presence of a missing witness is addressed to the sound discretion of the trial court whose decision will not be reversed unless the record affirmatively shows an abuse of such discretion. Shifflett v. Commonwealth, 218 Va. 25 , 235 S.E.2d 316 (1977); Van Sant v. Commonwealth, 224 Va. 269 , 295 S.E.2d 883 (1982).

The same standard of appellate review applies to the denial of a request for a recess during the trial as to a request for a continuance; the decision whether to grant a continuance is a matter within the sound discretion of the trial court, and abuse of discretion and prejudice to the complaining party are essential to reversal. Lowery v. Commonwealth, 9 Va. App. 304, 387 S.E.2d 508 (1990).

There was no abuse of discretion in the trial court's granting the Commonwealth a continuance from 12:25 p.m. on October 20, to the start of trial on October 21, in order to allow the authentication of important papers. Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200 (1989).

The court did not abuse its discretion in refusing a continuance to obtain the presence of a missing witness where it was not indicated that the person whose presence was sought was a material witness, and where there was a lack of due diligence in obtaining his presence. Shifflett v. Commonwealth, 218 Va. 25 , 235 S.E.2d 316 (1977).

When the Commonwealth was obviously surprised by defendant's evidence, the trial court's grant of a four-day continuance was not an abuse of discretion, despite the fact that the jury had been empaneled. Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200 (1989).

Continuance properly granted. - Continuance was necessary where motion was made in order to secure the testimony of a material witness and a subpoena had been requested and issued, but service was unobtainable due to the witness' absence from the state, and there was no evidence that the defense encouraged and/or participated in the witness' departure from the state. Cherricks v. Commonwealth, 11 Va. App. 96, 396 S.E.2d 397 (1990).

§ 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, 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 is punishable 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, 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 is punishable 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 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 Committee on Appropriations, and members of the Senate Committee on Finance and Appropriations on a quarterly basis.

    (Code 1950, §§ 14.1-184, 14.1-184.1, 19.1-241.5, 19.1-241.11; 1964, cc. 386, 651, 657; 1968, c. 481; 1973, c. 316; 1975, c. 495; 1976, c. 553; 1980, c. 626; 1981, cc. 472, 486; 1985, c. 525; 1986, c. 425; 1987, c. 638; 1988, cc. 465, 472; 1989, c. 565; 1994, c. 451; 1995, cc. 571, 713; 1997, c. 492; 1998, cc. 440, 451; 2000, cc. 436, 448; 2001, c. 509; 2006, c. 332; 2007, cc. 938, 946; 2008, c. 760; 2009, c. 284; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2000, cc. 436 and 448, cl. 2 provide: "That this act shall be effective if funds are appropriated by the 2000 Session of the General Assembly, subject to the restrictions of paragraphs a, b, c, and d.

"a. If the funds appropriated by the 2000 Session of the General Assembly are less than $8,173,204 for FY 2001 and $8,591,029 for FY 2002, the increases in fees authorized in this act for counsel appointed pursuant to § 19.2-163 shall be prorated by the Executive Secretary of the Supreme Court as provided for in paragraphs b, c, and d.

"b. A proration factor for each year shall be derived by dividing the actual amounts included in the appropriation act for an increase in fees pursuant to this act for each year by the amounts in paragraph a above for each fiscal year.

"c. The increase in fees for each year, derived by subtracting the fees authorized in § 19.2-163 as of January 1, 2000, from the fees included in this act, shall be multiplied by the proration factor derived in paragraph b above.

"d. The actual fees to be paid to counsel appointed pursuant to this act shall not exceed the sum of the existing fees authorized in § 19.2-163 as of January 1, 2000, plus the prorated increase derived in paragraph c above."

An appropriation of an additional $5.2 million was made to the general fund for FY 2002 to provide for additional expenses under HB 1312 (c. 436) and a related Senate Bill. No appropriation was made as an increase for FY 2001.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 40 C, effective for the biennium ending June 30, 2022, provides: "The amount of attorney's fees allowed counsel to indigent defendants in appeals to the Court of Appeals shall be in the discretion of the court."

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 41 E 2, effective for the biennium ending June 30, 2022, provides: "The Chief Justice of the Supreme Court of Virginia shall determine how the amounts appropriated to Other Courts Costs and Allowances (Criminal Fund) will be allocated, consistent with statutory provisions in the Code of Virginia. Funds within these appropriations are to be used to fund fully the statutory caps on compensation applicable to attorneys appointed by the court to defend criminal charges. Should this appropriation not be sufficient to fund fully all of the statutory caps on compensation as established by § 19.2-163 , Code of Virginia, that this appropriation shall be applied first to fully fund the statutory caps for the most serious noncapital felonies and then, should funds still remain in this appropriation, to the other statutory caps, in declining order of the severity of the charges to which each cap is applicable."

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 41 E 3, effective for the biennium ending June 30, 2022, provides: "Notwithstanding the provisions of § 19.2-163 , Code of Virginia, the amount of compensation allowed to counsel appointed by the court to defend a felony charge that may be punishable by death shall be calculated on an hourly basis at a rate set by the Supreme Court of Virginia."

The Virginia Code Commission authorized the substitution of "members of the House Committee on Appropriations, and members of the Senate Committee on Finance and Appropriations" for "members of the House Appropriations Committee, and members of the Senate Finance Committee" in the last paragraph. March 10, 2021.

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2000 amendments. - The 2000 amendments by cc. 436 and 448 are identical, and substituted "$120" for "$100" in subdivision 1; in subdivision 2, substituted "$1,235" for "$845 beginning July 1, 1998, and $882 beginning July 1, 1999, and thereafter" in clause (ii), substituted "$445" for "$305 beginning July 1, 1998, and $318 beginning July 1, 1999, and thereafter" in clause (iii) and substituted "$158" for "$132" in clause (iv).

The 2001 amendments. - The 2001 amendment by c. 509 added the last sentence in subdivision 2 and substituted "counsel" for "attorney" in the second paragraph.

The 2006 amendments. - The 2006 amendment by c. 332 inserted "upon written request made to the court within 30 days of trial or preliminary hearing" in the introductory paragraph.

The 2007 amendments. - The 2007 amendments by cc. 938 and 946 are nearly identical, and rewrote the introductory paragraph; in subdivision 1, divided the former sentence into two sentences by substituting "Such" for "such," added the proviso in the first sentence and deleted "without a requirement for accounting of time devoted thereto" following " § 19.2-306 in the last sentence; and in subdivision 2, in the first sentence, inserted the proviso in clauses (ii) and (iii) and inserted "in the circuit court only" in clause (iv), added the present second, third and last paragraphs and inserted the next-to-last sentence in the seventh paragraph.

The 2008 amendments. - The 2008 amendment by c. 760 inserted the clause (i) and (iii) designators and inserted clause (ii) in subdivision 1; and substituted "20 years" for "twenty years" in clause (ii) in subdivision 2.

The 2009 amendments. - The 2009 amendment by c. 284 inserted "or counsel representing an indigent prisoner under sentence of death in a state habeas corpus proceeding" in the seventh paragraph.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and in the first paragraph in subdivision 2, substituted "Class 1 felony charge" for "felony charge that may be punishable by death" in clause (i), and in the next-to-last sentence, substituted "is punishable as a Class 1 felony" for "may be punishable by death" and "lesser felony" for "felony that may not be punishable by death"; substituted "is punishable as a Class 1 felony" for "may be punishable by death" at the end of the fourth paragraph, deleted "or counsel representing an indigent prisoner under sentence of death in a state habeas corpus proceeding" following "Class 1 felony" in the first sentence of the sixth paragraph; and made stylistic changes.

Law review. - For note, "Judicial Problems in Administering Court-Appointment of Counsel for Indigents," see 28 Wash. & Lee L. Rev. 120 (1971). For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973). For article discussing the requirement of counsel in misdemeanor cases and its implementation in Virginia, see 30 Wash. & Lee L. Rev. 431 (1973). For 1985 survey of Virginia criminal procedure, see 19 U. Rich. L. Rev. 697 (1985). For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

For foreword to 2007 annual survey of Virginia law, "Has a New Day Dawned for Indigent Defense in Virginia?," see 42 U. Rich. L. Rev. 93 (2007).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

CASE NOTES

Constitutionality. - This section, which provides a scheme and guidelines for compensating court-appointed counsel, is narrowly tailored to serve a compelling state interest and, therefore, is constitutional; it can not be said that, by establishing a statutory cap on attorney's fees, the state has deprived indigent defendants of their constitutional right to effective assistance of counsel. Webb v. Commonwealth, 32 Va. App. 337, 528 S.E.2d 138, 2000 Va. App. LEXIS 325 (2000).

The compensation allowable under this section for attorneys defending felony cases is not inadequate and does not operate to deny a defendant his right to conflict-free and effective assistance of counsel on grounds that it creates a financial disincentive for a lawyer to effectively represent his client. Webb v. Commonwealth, 32 Va. App. 337, 528 S.E.2d 138, 2000 Va. App. LEXIS 325 (2000).

Possibility of repayment does not chill exercise of convicted criminal's right to counsel. - The possibility that at some future date a convicted criminal might be called upon to repay the State an attorney's fee incurred in his defense of the commission by him of a criminal act doesn't "chill" the exercise of his constitutional entitlement to legal representation. Wicks v. City of Charlottesville, 215 Va. 274 , 208 S.E.2d 752 (1974), appeal dismissed, 421 U.S. 901, 95 S. Ct. 1548, 43 L. Ed. 2d 769 (1975).

Basis for judgment for court costs where there is conviction. - A judgment rendered against a defendant for court costs in a criminal case when there is a conviction is not rendered on any demand for a debt or liability contracted by him. Wicks v. City of Charlottesville, 215 Va. 274 , 208 S.E.2d 752 (1974), appeal dismissed, 421 U.S. 901, 95 S. Ct. 1548, 43 L. Ed. 2d 769 (1975).

Appropriateness addresses whether the purpose of the expense is suitable for the particular case. An expense would not be justified, even if reasonable in amount, if it served little or no purpose in the particular case. Singleton v. Commonwealth, 16 Va. App. 841, 433 S.E.2d 507 (1993).

Compensation for investigative services for indigent defendants not mandated. - Denial of defendant's request for appointment of an investigator was affirmed because neither § 19.2-332 nor § 19.2-163 mandated the appointment of experts to assist indigent defendants and their counsel. Dowdy v. Commonwealth, 278 Va. 577 , 686 S.E.2d 710, 2009 Va. LEXIS 108 (2009).

Statute not applicable to guardian ad litem compensation. - In a case in which the trial court properly denied the mother's motion to amend custody and visitation, §§ 16.1-267 and 19.2-163 were inapplicable to guardian ad litem compensation because § 16.1-267 granted authority to the juvenile and domestic relations district court to award guardian ad litem fees in cases originating in that court, but the present action took place entirely in circuit court, beginning with the 2010 divorce proceedings; and § 19.2-163 pertained to the cap for compensation of court-appointed counsel in criminal cases. The amount of the award to the guardian ad litem was clearly within the discretion of the trial court. Sims-Bernard v. Bernard, No. 0918-17-2, 2018 Va. App. LEXIS 13 (Jan. 23, 2018).

CIRCUIT COURT OPINIONS

Availability of funds. - Attorney's motion for additional fees was futile because his claim was liquidated and matured, the case was brought to resolve a disputed issue rather than an adjudication of the attorney's right, the Supreme Court of Virginia had not approved the attorney's claim, the Comptroller's duties were not ministerial, and there were no funds left to pay for waivers for the fiscal year. Coggeshall v. Va. Dep't of the Treasury, 87 Va. Cir. 402, 2014 Va. Cir. LEXIS 30 (Norfolk Feb. 12, 2014).

OPINIONS OF THE ATTORNEY GENERAL

No taxation of defendant with approved expenses or fees that exceed the pre-waiver compensation limit. - Because subdivision 2 of § 19.2-163 specifically sets the amount that a convicted indigent defendant can be taxed at the pre-waiver compensation limit, a defendant cannot be taxed with approved expenses or fees that exceed the pre-waiver compensation limit. See opinion of Attorney General to the Honorable Cathy C. Hogan, Clerk of the Circuit Court of Bedford County, 13-060, 2013 Va. AG LEXIS 80 (9/20/13).

Assessment of expenses for indigent defendant. - An indigent criminal defendant convicted in a circuit court may be taxed for court-approved, reasonable expenses in addition to, and over and above the court-appointed counsel pre-waiver compensation limit set forth in subdivision 2 of § 19.2-163 . Sections 17.1-275.5 and 19.2-163 must be read together to determine the amount of combined court-appointed counsel compensation and approved expenses that may be assessed. The amount of expenses that may be assessed against such a defendant who is represented by an attorney from a public defender or capital defender office is not limited by the court-appointed counsel pre-waiver compensation limit set forth in subdivision 2 of § 19.2-163. See opinion of Attorney General to The Honorable Cathy C. Hogan, Clerk of the Circuit Court of Bedford County, 13-095, 2013 Va. AG LEXIS 100 (12/27/13).

Clerk of court's role. - Circuit court clerk's role in the process by which court-appointed counsel may request payment for their services is limited to determining whether the form is correctly and completely filled out. The clerk must forward the applications to the Supreme Court of Virginia after they have been approved by the circuit court judge. See opinion of Attorney General to The Honorable J. Jack Kennedy, Jr., Clerk, Circuit Court for Wise County/City of Norton, 15-084, 2016 Va. AG LEXIS 12 (7/22/16).

Article 3.1. Indigent Defense.

§ 19.2-163.01. Virginia Indigent Defense Commission established; powers and duties.

  1. 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 Committee for Courts of Justice, the Senate Committee on the Judiciary, the House Committee on Appropriations, and the Senate Committee on Finance and Appropriations on the caseload handled by each public defender office.
    7. To maintain all public 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 who shall devote his full time to his duties and not engage in the private practice of law.
    9. To authorize the public defender to employ such assistants as authorized by the Commission.
    10. To authorize the public 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 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 Committee for Courts of Justice, the Senate Committee on the Judiciary, the House Committee on Appropriations, and the Senate Committee on Finance and Appropriations 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.
  2. 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.
  3. 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.

    (2004, cc. 884, 921; 2005, c. 230; 2006, cc. 429, 501; 2007, c. 371; 2008, cc. 536, 815; 2010, c. 314; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 48 A, effective for the biennium ending June 30, 2022, provides: "Pursuant to § 19.2-163.01 , Code of Virginia, the Executive Director of the Indigent Defense Commission shall serve at the pleasure of the commission."

The Virginia Code Commission authorized the substitution of "the House Committee for Courts of Justice, the Senate Committee on the Judiciary, the House Committee on Appropriations, and the Senate Committee on Finance and Appropriations" for "the House and the Senate Committees for Courts of Justice, the House Committee on Appropriations, and the Senate Committee on Finance" in subdivisions A 6 and A 14. March 10, 2021.

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2005 amendments. - The 2005 amendment by c. 230 rewrote subdivision A 7 which read: "To establish appropriate caseload limits for public defender offices."

The 2006 amendments. - The 2006 amendments by cc. 429 and 501 are identical, and added the second sentence in the first paragraph of subsection A; inserted "and public defenders" in subdivision A 4; deleted "and to establish standards of practice for public defenders" following "eligibility" in subdivision A 5; deleted former subdivision A 6, which read: "To establish and thereafter maintain, in conjunction with the Virginia State Bar, the Supreme Court and the Virginia State Crime Commission, standards of conduct for indigent defense counsel in Virginia"; redesignated former subdivisions A 7 through A 15 as subdivisions A 6 through A 14; inserted "after prior notice to the Commission, a deputy director, and" in subdivision A 8; inserted "approve requests for appropriations and" in subdivision A 12; added subsection B; redesignated former subsection B as subsection C; and added the last sentence in subsection C.

The 2007 amendments. - The 2007 amendment by c. 371 inserted "executive director of the Commission, in consultation with the" to subdivision A 11; and inserted "or, in the absence of the executive director, the deputy executive director" in the second sentence of subsection B.

The 2008 amendments. - The 2008 amendments by cc. 536 and 815 are identical, and in subdivision A 12, inserted "and to receive and distribute funds from a county or city as provided by § 19.2-163.01:1 " at the end and made a related change; and inserted the second through the fourth sentences in subsection C.

The 2010 amendments. - The 2010 amendment by c. 314, in subdivision A 12, deleted "and to receive and distribute funds from a county or city as provided by § 19.2-163.01:1 " from the end; and in subsection C, deleted the second through fourth sentences, which read: "When funds are received from a county or city as provided in § 19.2-163.01:1 , the executive director, in accordance with policies adopted by the Commission, shall use the funds to adjust the compensation of the public defender and other personnel in the public defender's office in the county or city from which such funds are received. The adjustments to the compensation shall be effective only for the period for which such funds are provided by the county or city."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "or capital defender" or similar language following "public defender" in subdivisions A 7 through A 11; and made a stylistic change.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

For foreword to 2007 annual survey of Virginia law, "Has a New Day Dawned for Indigent Defense in Virginia?," see 42 U. Rich. L. Rev. 93 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Locality does not have authority to supplement the salaries of the public defender or his staff. See opinion of Attorney General to The Honorable Mitchell Van Yahres, Member, House of Delegates, 05-033 (12/2/05).

§ 19.2-163.01:1. Supplementing compensation of public defender.

  1. The governing body of any county or city may supplement the compensation of the public defender or any of his deputies or employees above the compensation fixed by the executive director, in such amounts as it may deem expedient. Such additional compensation shall be wholly payable from the funds of any such county or city.
  2. Due to the privileged and protected nature of the attorney-client relationship and the statutory scope of representation provided in §§ 19.2-157 and 19.2-163.3 , no county or city providing a supplement to compensation under this section shall place any condition or requirement upon the receipt of such funds.
  3. Funds provided by any county or city under this section shall be paid directly to the employees with notice to the Indigent Defense Commission of any amount so provided.

    (2008, cc. 536, 815; 2010, c. 314.)

The 2010 amendments. - The 2010 amendment by c. 314, in subsection C, inserted "directly to the employees with notice" and substituted "of any amount so provided" for "in accordance with any required state procedures and processes."

§ 19.2-163.02. Membership of Indigent Defense Commission; expenses.

The Virginia Indigent Defense Commission shall consist of 14 members as follows: the Chairman of the House Committee for Courts of Justice or his designee and the Chairman of the Senate Committee on the Judiciary or his designee who shall be members of the Courts of Justice committees; the chairman of the Virginia State Crime Commission or his designee; the Executive Secretary of the Supreme Court or his designee; two attorneys officially designated by the Virginia State Bar; two persons appointed by the Governor; three persons appointed by the Speaker of the House of Delegates; and three persons appointed by the Senate Committee on Rules. At least one of the appointments made by the Governor, one of the appointments made by the Speaker, and one of the appointments made by the Senate Committee on Rules, shall be an attorney in private practice with a demonstrated interest in indigent defense issues. Persons who are appointed by virtue of their office shall hold terms coincident with their terms of office. If the chairman of the Virginia State Crime Commission is (i) the chairman of the House Committee for Courts of Justice, then the vice-chairman of the Committee shall serve in the position designated for the Committee chairman or (ii) the chairman of the Senate Committee on the Judiciary, then the Senate Committee on Rules, upon the recommendation of the chairman of the Committee, shall appoint a member of the Committee to serve in the position designated for the Committee chairman. All other members shall be appointed for terms of three years and may be reappointed.

The Commission shall elect a chairman and a vice-chairman from among its membership annually. The chairman or his designee shall preside at all regular and called meetings of the Commission and shall have no additional duties or authority unless set by statute or by resolution of the Commission and annually confirmed by the Commission. A majority of the members shall constitute a quorum. The Commission shall meet at least four times each year. The meetings of the Commission shall be held at the call of the chairman or whenever three of the members so request.

Members shall be paid reasonable and necessary expenses incurred in the performance of their duties. Legislative members shall receive compensation as provided in § 30-19.12 and nonlegislative citizen members shall receive compensation for their services as provided in §§ 2.2-2813 and 2.2-2825 .

(2004, cc. 884, 921; 2005, cc. 176, 758; 2006, cc. 429, 501; 2008, c. 115.)

Editor's note. - Acts 2005, c. 758, cl. 2, provides: "That this act shall not be construed to affect existing appointments, made by the Senate Committee on Privileges and Elections, for which the terms have not expired. However, any new appointments made after July 1, 2005 shall be made in accordance with the provisions of this act."

The Virginia Code Commission authorized the substitution of "the Chairman of the House Committee for Courts of Justice or his designee and the Chairman of the Senate Committee on the Judiciary or his designee" for "the chairmen of the House and Senate Committees for Courts of Justice or their designees" and "Senate Committee on the Judiciary" for "Senate Committee for Courts of Justice." March 10, 2021.

The 2005 amendments. - The 2005 amendment by c. 176 added the fourth sentence in the first paragraph.

The 2005 amendment by c. 758, in the first paragraph, substituted "as follows" for "including," "Rules" for "Privileges and Elections" in two places, and "members shall be appointed for terms of three years and may be reappointed" for "appointments shall be for terms of three years."

The 2006 amendments. - The 2006 amendments by cc. 429 and 501 are identical, and in the first paragraph, in the first sentence, substituted "14 members" for "12 members," inserted "or their designees" following "Courts of Justice" and "or his designee" following "Crime Commission" and substituted "three persons" for "two persons" twice; and in the second paragraph, in the first sentence, inserted "annually," inserted the second sentence and substituted "three" for "the majority" in the third sentence.

The 2008 amendments. - The 2008 amendment by c. 115 inserted "who shall be members of the Courts of Justice committees" near the beginning of the first sentence of the first paragraph.

§ 19.2-163.03. Qualifications for court-appointed counsel.

  1. Initial qualification requirements. An attorney seeking to represent an indigent accused in a criminal case, in addition to being a member in good standing of the Virginia State Bar, shall meet the specific criteria required for each type or level of case. The following criteria shall be met for qualification and subsequent court appointment:
    1. Misdemeanor case. To initially qualify to serve as counsel appointed pursuant to § 19.2-159 for an indigent defendant charged with a misdemeanor, the attorney shall:
      1. If an active member of the Virginia State Bar for less than one year, have completed eight hours of MCLE-approved continuing legal education developed by the Indigent Defense Commission, two of which shall cover the representation of individuals with behavioral or mental health issues and individuals with intellectual or developmental disabilities as defined in § 37.2-100 ;
      2. If an active member of the Virginia State Bar for one year or more, either complete the eight hours of approved continuing legal education developed by the Commission, two of which shall cover the representation of individuals with behavioral or mental health disorders and individuals with intellectual or developmental disabilities as defined in § 37.2-100 , or certify to the Commission that he has represented, in a district court within the past year, four or more defendants charged with misdemeanors; or
      3. Be qualified pursuant to this section to serve as counsel for an indigent defendant charged with a felony.
    2. Felony case.
      1. To initially qualify to serve as counsel appointed pursuant to § 19.2-159 for an indigent defendant charged with a felony, the attorney shall (i) have completed the eight hours of MCLE-approved continuing legal education developed by the Commission, two of which shall cover the representation of individuals with behavioral or mental health disorders and individuals with intellectual or developmental disabilities as defined in § 37.2-100, and (ii) certify that he has participated as either lead counsel or co-counsel in four felony cases from their beginning through to their final resolution, including appeals, if any.
      2. If the attorney has been an active member of the Virginia State Bar for more than one year and certifies that he has participated, within the past year, as lead counsel in four felony cases through to their final resolution, including appeals, if any, the requirement to complete eight hours of continuing legal education and the requirement to participate as co-counsel shall be waived.
      3. If the attorney has been an active member of the Virginia State Bar for more than one year and certifies that he has participated, within the past five years, as lead counsel in five felony cases through to their final resolution, including appeals, if any, the requirement to participate as either lead counsel or co-counsel in four felony cases within the past year shall be waived.
    3. Juvenile and domestic relations case.
      1. To initially qualify to serve as appointed counsel in a juvenile and domestic relations district court pursuant to subdivision C 2 of § 16.1-266, the attorney shall (i) have completed the eight hours of MCLE-approved continuing legal education developed by the Commission, two of which shall cover the representation of individuals with behavioral or mental health disorders and individuals with intellectual or developmental disabilities as defined in § 37.2-100, (ii) have completed four additional hours of MCLE-approved continuing legal education on representing juveniles developed by the Commission, and (iii) certify that he has participated as either lead counsel or co-counsel in four cases involving juveniles in a juvenile and domestic relations district court.
      2. If the attorney has been an active member of the Virginia State Bar for more than one year and certifies that he has, within the past year, been lead counsel in four cases involving juveniles in juvenile and domestic relations district court, the requirement to complete the 12 hours of continuing legal education shall be waived.
      3. If the attorney has been an active member of the Virginia State Bar for more than one year and certifies that he has participated, within the past five years in five cases involving juveniles in a juvenile and domestic relations district court, the requirement to participate as either lead counsel or co-counsel in four juvenile cases shall be waived.
  2. Requalification requirements. After initially qualifying as provided in subsection A, an attorney shall maintain his eligibility for certification biennially by notifying the Commission of completion of at least eight hours of Commission and MCLE-approved continuing legal education, two of which shall cover the representation of individuals with behavioral or mental health disorders and individuals with intellectual or developmental disabilities as defined in § 37.2-100 . The Commission shall provide information on continuing legal education programs that have been approved. In addition, to maintain eligibility to accept court appointments under subdivision C 2 of § 16.1-266, an attorney shall complete biennially thereafter four additional hours of MCLE-approved continuing legal education on representing juveniles, certified by the Commission.
  3. Waiver and exceptions. The Commission or the court before which a matter is pending, may, in its discretion, waive the requirements set out in this section for individuals who otherwise demonstrate their level of training and experience. A waiver of such requirements pursuant to this subsection shall not form the basis for a claim of error at trial, on appeal, or in any habeas corpus proceeding.

    (2004, cc. 884, 921; 2006, c. 708; 2007, c. 571; 2021, Sp. Sess. I, cc. 523, 540.)

Editor's note. - Acts 2004, c. 884, cl. 4, provides: "That the provisions of § 19.2-163.03 shall become effective July 1, 2005."

Acts 2004, c. 921, cl. 4, provides: "That § 19.2-163.03 shall become effective July 1, 2005, only if funds are appropriated by the General Assembly to carry out the purposes of that section." Funding was provided in Acts 2004, Sp. Sess. I, c. 4, Item 39.

The 2006 amendments. - The 2006 amendment by c. 708, in subsection E, inserted "or the court before which a matter is pending" in the first sentence and added the last sentence.

The 2007 amendments. - The 2007 amendment by c. 571 rewrote the section.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 523 and 540, effective July 1, 2021, are identical, and inserted "two of which shall cover the representation of individuals with behavioral or mental health disorders and individuals with intellectual or developmental disabilities as defined in § 37.2-100 " and similar language throughout the section; redesignated subdivisions A 1 (i) through A 1 (iii) as subdivisions A 1 a through A 1 c; substituted "eight hours" for "six hours" in clause A 2 a (i), subdivision A 2 b, and clause A 3 a (i); substituted "12 hours" for "10 hours" in subdivision A 3 b; substituted "eight hours" for "six hours" in the first paragraph in subsection B.

§ 19.2-163.04. Public defender offices.

Public defender offices are established in:

  1. The City of Virginia Beach;
  2. The City of Petersburg;
  3. The Cities of Buena Vista, Lexington, Staunton, and Waynesboro and the Counties of Augusta and Rockbridge;
  4. The City of Roanoke;
  5. The City of Portsmouth;
  6. The City of Richmond;
  7. The Counties of Clarke, Frederick, Page, Shenandoah, and Warren, and the City of Winchester;
  8. The City and County of Fairfax;
  9. The City of Alexandria;
  10. The City of Radford and the Counties of Bland, Pulaski, and Wythe;
  11. The Counties of Fauquier, Loudoun, and Rappahannock;
  12. The City of Suffolk;
  13. The City of Franklin and the Counties of Isle of Wight and Southampton;
  14. The County of Bedford;
  15. The City of Danville;
  16. The Counties of Halifax, Lunenburg, and Mecklenburg;
  17. The City of Fredericksburg and the Counties of King George, Stafford, and Spotsylvania;
  18. The City of Lynchburg;
  19. The City of Martinsville and the Counties of Henry and Patrick;
  20. The City of Charlottesville and the County of Albemarle;
  21. The City of Norfolk;
  22. The County of Arlington and the City of Falls Church;
  23. The City of Newport News;
  24. The City of Chesapeake;
  25. The City of Hampton;
  26. The Cities of Manassas and Manassas Park and the County of Prince William; and

    aa. The County of Chesterfield.

    (2004, cc. 884, 921; 2004, Sp. Sess. I, c. 4, cl. 2; 2005, c. 951; 2006, Sp. Sess. I, c. 2; 2016, cc. 164, 312; 2020, cc. 348, 376; 2021, Sp. Sess. I, c. 341.)

Editor's note. - Acts 2004, Special Session I, c. 4, cl. 2, as amended by Acts 2005, c. 951, and as amended by Acts 2006, Sp. Sess. I, c. 2, amended § 19.2-163.2, from which this section is derived. At the direction of the Virginia Code Commission, effect has been given in this section, as set out above, to Acts 2004, Special Session I, c. 4, cl. 2, as amended by Acts 2005, c. 951, and Acts 2006, Sp. Sess. I, c. 2, by adding subdivisions v, w, x and y.

The 2016 amendments. - The 2016 amendments by cc. 164 and 312 are identical, and deleted "City of Bedford and the" preceding "County of Bedford" in subdivision n.

The 2020 amendments. - The 2020 amendments by cc. 348 and 376 are identical, and added subdivision z and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 341, effective July 1, 2021, added subdivision aa; and made related changes,

Article 4. Public Defenders.

§§ 19.2-163.1, 19.2-163.2.

Repealed by Acts 2004, cc. 884 and 921.

Cross references. - For current provisions relating to public defenders offices, see § 19.2-163.04 .

Editor's note. - Repealed § 19.2-163.2 was amended by Acts 2004, Sp. Sess. I, c. 4. At the direction of the Virginia Code Commission the amendments have been incorporated into § 19.2-163.04 .

§ 19.2-163.3. Duties of public defenders.

Public defenders shall carry out the following duties in accordance with the guidance, policies, and authorizations of the Indigent Defense Commission:

  1. To assist the executive director of the Commission in securing office space, to employ a staff, to fix salaries and to do such other things necessary to carry out the duties imposed upon them with the approval of the Commission.
  2. To represent or supervise assistants in representing within their respective jurisdictions as set out in § 19.2-163.04 indigent persons charged with a crime or offense when such persons are entitled to be represented by law by court-appointed counsel in a court of record or a court not of record.
  3. To represent or supervise assistants in representing indigent persons who are entitled to be represented by court-appointed counsel in an appeal of their conviction to the Court of Appeals or the Supreme Court of Virginia.
  4. To submit such reports as required by the Commission.

    (Code 1950, § 19.1-32.4; 1972, c. 800; 1975, c. 495; 1978, c. 698; 1979, c. 194; 1990, c. 734; 1992, c. 80; 2007, c. 680.)

Cross references. - As to supplementing compensation of public defender by county or city, see § 19.2-163.01:1 .

The 2007 amendments. - The 2007 amendment by c. 680, in the introductory paragraph, deleted "and their assistants" preceding "shall carry," and added the language beginning "in accordance with" to the end; substituted "assist the executive director of the Commission in securing" for "secure" in subsection (a); inserted "or supervise assistants in representing" in subsections (b) and (c); and deleted subsection (d), which read: "To represent indigent prisoners when a habeas corpus proceeding is brought by such prisoners"; and redesignated subsection (e) as (d).

Applied in Mackall v. Murray, 109 F.3d 957 (4th Cir. 1997).

§ 19.2-163.4. Inapplicability of §§ 17.1-606 and 19.2-163 where public defender offices established; exception.

In counties and cities in which public defender offices are established pursuant to § 19.2-163.04 , defense services for indigents charged with jailable offenses shall be provided by the public defenders unless (i) the public defender is unable to represent the defendant or petitioner by reason of conflict of interest or (ii) the court finds that appointment of other counsel is necessary to attain the ends of justice. Except for the provisions of § 19.2-163 relating to reasonable expenses, §§ 17.1-606 and 19.2-163 shall not apply when defense services are provided by the public defenders.

(Code 1950, § 19.1-32.5; 1972, c. 800; 1975, cc. 476, 495; 1992, c. 80; 1994, c. 415.)

Law review. - For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

§ 19.2-163.4:1. Repayment of representation costs by convicted persons.

In any case in which an attorney from a public 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.

(2004, cc. 884, 921; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "or capital defender" following "public defender" near the beginning of the section.

§ 19.2-163.5. Legal services to public defenders and/or assistant public defenders.

At the request of a public defender, the Attorney General shall provide legal services to such attorney, his assistants, or members of his staff in any proceeding brought against him, his assistants, or staff for money damages, when the cause of action allegedly arises out of the duties of his office.

Any costs chargeable against the defendant or defendants in any such case shall be paid by the Commonwealth from the appropriation for the payment of criminal charges.

(1978, c. 698.)

§ 19.2-163.6.

Repealed by Acts 2004, c. 884 and 921.

Article 4.1. Counsel in Capital Cases.

§§ 19.2-163.7, 19.2-163.8.

Repealed by Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 2, effective July 1, 2021.

Editor's note. - Former § 19.2-163.7 , pertaining to counsel in capital cases, derived from 1991, c. 664; 1995, c. 503; 2001, c. 766; 2002, c. 614; 2004, cc. 329, 884, 921.

Former § 19.2-163.8, pertaining to the list of qualified attorneys kept by the Supreme Court and the Indigent Defense Commission, derived from 1991, c. 664; 2001, c. 766; 2004, cc. 884, 921.

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Article 5. Interpreters.

Research References. - Virginia Forms (Matthew Bender). No. 2-1405. Voir Dire to Qualify Noncertified Interpreter. No. 9-2209. Motion for Interpreter for Non-English Speaking Person, et seq.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 38.

§ 19.2-164. Interpreters for non-English-speaking persons (Supreme Court Rule 2:507 derived in part from this section).

In any criminal case in which a non-English-speaking person is the accused, an interpreter for the non-English-speaking person shall be appointed. In any criminal case in which a non-English-speaking person is a victim or witness, an interpreter shall be appointed by the judge of the court in which the case is to be heard unless the court finds that the person does not require the services of a court-appointed interpreter. An English-speaking person fluent in the language of the country of the accused, a victim or a witness shall be appointed by the judge of the court in which the case is to be heard, unless such person obtains an interpreter of his own choosing who is approved by the court as being competent. The compensation of an interpreter appointed by the court pursuant to this section shall be fixed by the court in accordance with guidelines set by the Judicial Council of Virginia and shall be paid from the general fund of the state treasury as part of the expense of trial. Such fee shall not be assessed as part of the costs unless (i) an interpreter has been appointed for the defendant, (ii) the defendant fails to appear, (iii) the interpreter appears in the case and no other case on that date, and (iv) the defendant is convicted of a failure to appear on that date the interpreter appeared in the case, then the court, in its discretion, may assess as costs the fee paid to the interpreter. Whenever a person communicates through an interpreter to any person under such circumstances that the communication would be privileged, and such person could not be compelled to testify as to the communications, this privilege shall also apply to the interpreter. The provisions of this section shall apply in both circuit courts and district courts.

(Code 1950, § 19.1-246.1; 1966, c. 240; 1974, c. 110; 1975, c. 495; 1978, c. 601; 1982, c. 444; 1985, c. 396; 1995, c. 546; 1996, c. 402; 2003, c. 1011; 2007, c. 383.)

Cross references. - As to interpreters for the deaf in criminal cases, see now § 19.2-164.1 .

As to privileged communications by interpreters for the deaf in civil cases, see § 8.01-400.1 .

As to the visual electronic recording of the testimony of a deaf individual and the interpretation thereof for use in verification of the official transcript of civil proceedings, see § 8.01-406 .

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

The 2003 amendments. - The 2003 amendment by c. 1011 inserted "in accordance with guidelines set by the Judicial Council of Virginia" in the fourth sentence.

The 2007 amendments. - The 2007 amendment by c. 383 inserted "unless" and clauses (i) through (iv) in the fifth sentence.

Law review. - For survey of Virginia criminal law for the year 1973-1974, see 60 Va. L. Rev. 1499 (1974). For survey of Virginia law on evidence for the year 1977-1978, see 64 Va. L. Rev. 1451 (1978).

CASE NOTES

Transcribed testimony properly admitted. - Trial court did not abuse its discretion in admitting the transcribed testimony of the victim; although the interpreter had difficulty conveying a precise translation of some words and concepts, the interpreter performed her duties within reasonable limits of accuracy. Majette v. Commonwealth, No. 1400-01-1, 2002 Va. App. LEXIS 512 (Ct. of Appeals Aug. 20, 2002).

Adequate interpreter services provided. - Trial court did not err in denying defendant's motion to set aside the jury's verdict finding him guilty of involuntary manslaughter and reckless driving in a case where defendant, a Somalia native who had been in the United States for six years and who understood English, struck and fatally injured a pedestrian while defendant was driving a taxicab; defendant's due process rights were not violated because he was provided with adequate interpreter services and the evidence showed that he understood the trial process, which meant he was given a fair chance to defend himself against the State's accusations. Takow v. Commonwealth,, 2006 Va. App. LEXIS 255 (June 6, 2006).

Interpreter not required. - Trial court's decision not to provide the victim with a translator during the victim's testimony did not violate § 19.2-164 , because the witness clearly understood what was asked of him, and although the witness may have spoken with some minor imperfections, those imperfections did not establish that the victim was a non-English speaking person as set forth in § 19.2-164 . Tharp v. Commonwealth,, 2011 Va. App. LEXIS 308 (Oct. 11, 2011).

Challenges to interpreter waived. - Because defendant made no objection at a preliminary hearing to the victim's use of an interpreter pursuant to § 19.2-164 , defendant's arguments challenging the interpreter were waived under Va. Sup. Ct. R. 5A:18. McDowell v. Commonwealth,, 2009 Va. App. LEXIS 253 (June 9, 2009).

Applied in Saunders v. Commonwealth, 38 Va. App. 192, 562 S.E.2d 367, 2002 Va. App. LEXIS 238 (2002).

§ 19.2-164.1. Interpreters for the deaf (Supreme Court Rule 2:507 derived in part from this section).

In any criminal case in which a deaf person is the accused, an interpreter for the deaf person shall be appointed. In any criminal case in which a deaf person is the victim or a witness, an interpreter for the deaf person shall be appointed by the court in which the case is to be heard unless the court finds that the deaf person does not require the services of a court-appointed interpreter and the deaf person waives his rights. Such interpreter shall be procured by the judge of the court in which the case is to be heard through the Department for the Deaf and Hard-of-Hearing.

The compensation of an interpreter appointed by the court pursuant to this section shall be fixed by the court and paid from the general fund of the state treasury as part of the expense of trial. Such fee shall not be assessed as part of the costs.

Any person entitled to the services of an interpreter under this section may waive these services for all or a portion of the proceedings. Such a waiver shall be made by the person upon the record after an opportunity to consult with legal counsel. A judicial officer, utilizing an interpreter obtained in accordance with this section, shall explain to the deaf person the nature and effect of any waiver. Any waiver shall be approved in writing by the deaf person's legal counsel. If the person does not have legal counsel, approval shall be made in writing by a judicial officer. A person who waives his right to an interpreter may provide his own interpreter at his own expense without regard to whether the interpreter is qualified under this section.

The provisions of this section shall apply in both circuit courts and district courts.

Whenever a person communicates through an interpreter to any person under such circumstances that the communication would be privileged, and such person could not be compelled to testify as to the communications, this privilege shall also apply to the interpreter.

In any judicial proceeding, the judge on his own motion or on the motion of a party to the proceeding may order all of the testimony of a deaf person and the interpretation thereof to be visually electronically recorded for use in verification of the official transcript of the proceedings.

(1982, c. 444; 1985, c. 396; 1995, c. 546; 1996, c. 402.)

Cross references. - As to interpreters for the deaf in civil proceedings, see § 8.01-384.1 .

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

Article 6. Recording Evidence and Incidents of Trial.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 204; 5A M.J. Courts, §§ 26, 27; 5B M.J. Criminal Procedure, §§ 35, 40, 69; 9A M.J. Habeas Corpus, § 17.

§ 19.2-165. (Effective until January 1, 2022) Recording evidence and incidents of trial in felony cases; cost of recording; cost of transcripts; certified transcript deemed prima facie correct; request for copy of transcript.

In all felony cases, the court or judge trying the case shall by order entered of record provide for the recording verbatim of the evidence and incidents of trial either by a court reporter or by mechanical or electronic devices approved by the court. The expense of reporting or recording the trial of criminal cases shall be paid by the Commonwealth out of the appropriation for criminal charges, upon approval of the trial judge. However, if the defendant is convicted, the Commonwealth shall be entitled to receive the amount allocated to the court reporter fund under the fixed felony fee. Localities that maintain mechanical or electronic devices for this purpose shall be entitled to retain their reasonable expenses attributable to the cost of operating and maintaining such equipment. The clerk shall receive the evidence at the time of admission of such evidence by the court and shall maintain control over such evidence until the time such evidence is transferred on appeal, or destroyed or returned in accordance with law.

In all felony cases where it appears to the court from the affidavit of the defendant and other evidence that the defendant intends to seek an appeal and is financially unable to pay such costs or to bear the expense of a copy of the transcript of the evidence for an appeal, the trial court shall, upon the motion of counsel for the defendant, order the evidence transcribed for such appeal and all costs therefor paid by the Commonwealth out of the appropriation for criminal charges. If the conviction is not reversed, all costs paid by the Commonwealth, under the provisions hereof, shall be assessed against the defendant.

The reporter or other individual designated to report and record the trial shall file the original shorthand notes or other original records with the clerk of the circuit court who shall preserve them in the public records of the court for not less than five years if an appeal was taken and a transcript was prepared, or ten years if no appeal was taken. The transcript in any case certified by the reporter or other individual designated to report and record the trial shall be deemed prima facie a correct statement of the evidence and incidents of trial.

Upon the request of any counsel of record, or of any party not represented by counsel, and upon payment of the reasonable cost thereof, the court reporter covering any proceeding shall provide the requesting party with a copy of the transcript of such proceeding or any requested portion thereof.

The court shall not direct the court reporter to cease recording any portion of the proceeding without the consent of all parties or of their counsel of record.

The administration of this section shall be under the direction of the Supreme Court of Virginia.

(Code 1950, § 17-30.1; 1952, c. 642; 1956, c. 699; 1962, c. 419; 1964, c. 533; 1968, c. 358; 1975, cc. 495, 640; 1983, c. 505; 1984, c. 752; 1994, c. 497; 1999, c. 9; 2014, c. 291.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 19.2-165 .

The 1999 amendment, in the first paragraph, in the third sentence, inserted "if the defendant is convicted" following "however" and substituted "the amount allocated to the court reporter fund under the fixed felony fee. Localities that maintain mechanical or electronic devices for this purpose shall be entitled to retain their reasonable expenses attributable to the cost of operating and maintaining such equipment" for "from the defendant, if convicted, the per diem charges of the reporter or reasonable charge attributable to the cost of operating such mechanical or electronic devices, which charges shall be taxed as a part of the costs of the case."

The 2014 amendments. - The 2014 amendments by c. 291, added the fifth sentence in the first paragraph.

Law review. - For note on the indigent in Virginia, see 51 Va. L. Rev. 163 (1965). For survey of Virginia law on criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970).

CASE NOTES

This section is plain. Hudgins v. Circuit Court, 294 F. Supp. 258 (E.D. Va. 1968).

Refusal to provide an indigent defendant with a free transcript constitutes a denial of constitutional rights. Cabaniss v. Cunningham, 206 Va. 330 , 143 S.E.2d 911 (1965).

As does counsel's failure to advise of right to such transcript. - An indigent defendant is denied his constitutional right to a free transcript where his counsel fails to advise him of this right. Cabaniss v. Cunningham, 206 Va. 330 , 143 S.E.2d 911 (1965).

And it makes no difference that court-appointed counsel may think there are no grounds for review. Cabaniss v. Cunningham, 206 Va. 330 , 143 S.E.2d 911 (1965).

Nor does it matter whether the trial judge may think an appeal to be frivolous. Cabaniss v. Cunningham, 206 Va. 330 , 143 S.E.2d 911 (1965).

In camera hearing. - The in camera hearing was a stage of the trial where something could be done to affect the defendant's interests, therefore, the defendant was entitled to have a court reporter present. The in camera hearing was not merely to determine a legal question. Testimony was heard to determine whether appellant was promised immunity from prosecution. Defense counsel was given the right to cross-examine the witness. The witness was taken to the judge's chambers for the purpose of asking him substantive evidentiary questions. Brittingham v. Commonwealth, 10 Va. App. 530, 394 S.E.2d 336 (1990).

Section inapplicable in habeas corpus. - This section is not applicable to the initial request for a transcript if for the purpose of habeas corpus. McLaren v. Peyton, 262 F. Supp. 120 (W.D. Va. 1966).

No provision is made for a transcript of the evidence of the criminal trial for use in applying for habeas corpus. Hudgins v. Circuit Court, 294 F. Supp. 258 (E.D. Va. 1968); Hogan v. Aiken, 339 F. Supp. 1005 (W.D. Va. 1972).

The use of a narrative statement is recognized by Sup. Ct. Rule 5:9 as a proper method of furnishing a record of evidence and incidents of trial for appeal. Houghtaling v. Commonwealth, 209 Va. 309 , 163 S.E.2d 560 (1968), cert. denied, 394 U.S. 1021, 89 S. Ct. 1642, 23 L. Ed. 2d 46 (1969).

Applied in Crumble v. Commonwealth, 2 Va. App. 231, 343 S.E.2d 359 (1986); Jones v. Commonwealth, 29 Va. App. 503, 513 S.E.2d 431 (1999); Dickerson v. Commonwealth, 36 Va. App. 8, 548 S.E.2d 230, 2001 Va. App. LEXIS 398 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Court has discretion in choosing and contracting for private court reporting services. - It is within the discretion of the court to establish procedures for choosing and contracting for private court reporting services, and the court may exercise its discretion in choosing those people it determines to be trustworthy for the task. See opinion of Attorney General to The Honorable Clifford R. Weckstein, Judge, Twenty-Third Judicial Circuit, 02-004 (4/12/02).

§ 19.2-165. (Effective January 1, 2022) Recording evidence and incidents of trial in felony cases; cost of recording; cost of transcripts; certified transcript deemed prima facie correct; request for copy of transcript.

In all criminal cases in a court of record, the court or judge trying the case shall by order entered of record provide for the recording verbatim of the evidence and incidents of trial either by a court reporter or by mechanical or electronic devices approved by the court. The expense of reporting or recording the trial of criminal cases shall be paid by the Commonwealth out of the appropriation for criminal charges, upon approval of the trial judge. However, if the defendant is convicted, the Commonwealth shall be entitled to receive the amount allocated to the court reporter fund under the fixed felony fee. Localities that maintain mechanical or electronic devices for this purpose shall be entitled to retain their reasonable expenses attributable to the cost of operating and maintaining such equipment. The clerk shall receive the evidence at the time of admission of such evidence by the court and shall maintain control over such evidence until the time such evidence is transferred on appeal, or destroyed or returned in accordance with law.

The costs for the preparation of the transcript of the evidence for an appeal shall be paid by the Commonwealth out of the appropriation for criminal charges.

The reporter or other individual designated to report and record the trial shall file the original shorthand notes or other original records with the clerk of the circuit court who shall preserve them in the public records of the court for not less than five years if an appeal was taken and a transcript was prepared, or ten years if no appeal was taken. The transcript in any case certified by the reporter or other individual designated to report and record the trial shall be deemed prima facie a correct statement of the evidence and incidents of trial.

Upon the request of any counsel of record, or of any party not represented by counsel, and upon payment of the reasonable cost thereof, the court reporter covering any proceeding shall provide the requesting party with a copy of the transcript of such proceeding or any requested portion thereof.

The court shall not direct the court reporter to cease recording any portion of the proceeding without the consent of all parties or of their counsel of record.

The administration of this section shall be under the direction of the Supreme Court of Virginia.

(Code 1950, § 17-30.1; 1952, c. 642; 1956, c. 699; 1962, c. 419; 1964, c. 533; 1968, c. 358; 1975, cc. 495, 640; 1983, c. 505; 1984, c. 752; 1994, c. 497; 1999, c. 9; 2014, c. 291; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 19.2-165 .

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 1999 amendment, in the first paragraph, in the third sentence, inserted "if the defendant is convicted" following "however" and substituted "the amount allocated to the court reporter fund under the fixed felony fee. Localities that maintain mechanical or electronic devices for this purpose shall be entitled to retain their reasonable expenses attributable to the cost of operating and maintaining such equipment" for "from the defendant, if convicted, the per diem charges of the reporter or reasonable charge attributable to the cost of operating such mechanical or electronic devices, which charges shall be taxed as a part of the costs of the case."

The 2014 amendments. - The 2014 amendments by c. 291, added the fifth sentence in the first paragraph.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, substituted "criminal cases in a court of record" for "In all felony cases" in the first paragraph; and rewrote the second paragraph, which read: "In all felony cases where it appears to the court from the affidavit of the defendant and other evidence that the defendant intends to seek an appeal and is financially unable to pay such costs or to bear the expense of a copy of the transcript of the evidence for an appeal, the trial court shall, upon the motion of counsel for the defendant, order the evidence transcribed for such appeal and all costs therefor paid by the Commonwealth out of the appropriation for criminal charges. If the conviction is not reversed, all costs paid by the Commonwealth, under the provisions hereof, shall be assessed against the defendant."

Law review. - For note on the indigent in Virginia, see 51 Va. L. Rev. 163 (1965). For survey of Virginia law on criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970).

CASE NOTES

This section is plain. Hudgins v. Circuit Court, 294 F. Supp. 258 (E.D. Va. 1968).

Refusal to provide an indigent defendant with a free transcript constitutes a denial of constitutional rights. Cabaniss v. Cunningham, 206 Va. 330 , 143 S.E.2d 911 (1965).

As does counsel's failure to advise of right to such transcript. - An indigent defendant is denied his constitutional right to a free transcript where his counsel fails to advise him of this right. Cabaniss v. Cunningham, 206 Va. 330 , 143 S.E.2d 911 (1965).

And it makes no difference that court-appointed counsel may think there are no grounds for review. Cabaniss v. Cunningham, 206 Va. 330 , 143 S.E.2d 911 (1965).

Nor does it matter whether the trial judge may think an appeal to be frivolous. Cabaniss v. Cunningham, 206 Va. 330 , 143 S.E.2d 911 (1965).

In camera hearing. - The in camera hearing was a stage of the trial where something could be done to affect the defendant's interests, therefore, the defendant was entitled to have a court reporter present. The in camera hearing was not merely to determine a legal question. Testimony was heard to determine whether appellant was promised immunity from prosecution. Defense counsel was given the right to cross-examine the witness. The witness was taken to the judge's chambers for the purpose of asking him substantive evidentiary questions. Brittingham v. Commonwealth, 10 Va. App. 530, 394 S.E.2d 336 (1990).

Section inapplicable in habeas corpus. - This section is not applicable to the initial request for a transcript if for the purpose of habeas corpus. McLaren v. Peyton, 262 F. Supp. 120 (W.D. Va. 1966).

No provision is made for a transcript of the evidence of the criminal trial for use in applying for habeas corpus. Hudgins v. Circuit Court, 294 F. Supp. 258 (E.D. Va. 1968); Hogan v. Aiken, 339 F. Supp. 1005 (W.D. Va. 1972).

The use of a narrative statement is recognized by Sup. Ct. Rule 5:9 as a proper method of furnishing a record of evidence and incidents of trial for appeal. Houghtaling v. Commonwealth, 209 Va. 309 , 163 S.E.2d 560 (1968), cert. denied, 394 U.S. 1021, 89 S. Ct. 1642, 23 L. Ed. 2d 46 (1969).

Applied in Crumble v. Commonwealth, 2 Va. App. 231, 343 S.E.2d 359 (1986); Jones v. Commonwealth, 29 Va. App. 503, 513 S.E.2d 431 (1999); Dickerson v. Commonwealth, 36 Va. App. 8, 548 S.E.2d 230, 2001 Va. App. LEXIS 398 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Court has discretion in choosing and contracting for private court reporting services. - It is within the discretion of the court to establish procedures for choosing and contracting for private court reporting services, and the court may exercise its discretion in choosing those people it determines to be trustworthy for the task. See opinion of Attorney General to The Honorable Clifford R. Weckstein, Judge, Twenty-Third Judicial Circuit, 02-004 (4/12/02).

§ 19.2-165.1. Payment of medical fees in certain criminal cases; reimbursement.

  1. Except as provided in subsection B, all medical fees expended in the gathering of evidence for all criminal cases where medical evidence is necessary to establish a crime has occurred and for cases involving abuse of children under the age of 18 shall be paid by the Commonwealth out of the appropriation for criminal charges, provided that any medical evaluation, examination, or service rendered be performed by a physician or facility specifically designated by the attorney for the Commonwealth in the city or county having jurisdiction of such case for such a purpose. If no such physician or facility is reasonably available in such city or county, then the attorney for the Commonwealth may designate a physician or facility located outside and adjacent to such city or county.

    Where there has been no prior designation of such a physician or facility, such medical fees shall be paid out of the appropriation for criminal charges upon authorization by the attorney for the Commonwealth of the city or county having jurisdiction over the case. Such authorization may be granted prior to or within 48 hours after the medical evaluation, examination, or service rendered.

  2. All medical fees expended in the gathering of evidence through physical evidence recovery kit examinations conducted on victims complaining of sexual assault under Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 shall be paid by the Commonwealth pursuant to subsection F of § 19.2-368.11:1 . Victims complaining of sexual assault shall not be required to participate in the criminal justice system or cooperate with law-enforcement authorities in order to be provided with such forensic medical exams.
  3. Upon conviction of the defendant in any case requiring the payment of medical fees authorized by this section, the court shall order that the defendant reimburse the Commonwealth for payment of such fees.

    (1976, c. 292; 1982, c. 507; 1987, c. 330; 1997, c. 322; 1999, c. 853; 2000, c. 292; 2003, cc. 28, 772; 2008, cc. 203, 251.)

The 1999 amendment, in the first paragraph, in the first sentence, inserted "all" following "evidence for," inserted "and all medical fees involved in the gathering of evidence for cases involving abuse of children under the age of eighteen including but not limited to aggravated malicious wounding, malicious wounding, felony child abuse, reckless endangerment, cruelty to children, assault and battery, domestic assault and battery, and homicide," and in the first and second paragraphs, substituted "evaluation" for "treatment."

The 2000 amendments. - The 2000 amendment by c. 292 substituted "criminal cases where medical evidence is necessary to establish a crime has occurred and for cases involving abuse of children under the age of eighteen" for "cases involving rape, attempted rape, child molestation, the taking of indecent liberties with children, sodomy, forcible sodomy, incest, inanimate or animate object sexual penetration, sexual battery, marital sexual assault and aggravated sexual battery, and all medical fees involved in the gathering of evidence for cases involving abuse of children under the age of eighteen including but not limited to aggravated malicious wounding, malicious wounding, felony child abuse, reckless endangerment, cruelty to children, assault and battery, domestic assault and battery, and homicide" in the first sentence of the first paragraph.

The 2003 amendments. - The 2003 amendment by cc. 28 and 772 are virtually identical, and substituted "18" for "eighteen" in the first paragraph; in the second paragraph, inserted "such" preceding "medical fees" in the first sentence and substituted "48" for "forty-eight" in the last sentence; and added the last paragraph.

The 2008 amendments. - The 2008 amendments by cc. 203 and 251 are identical, and in subsection A, inserted "Except as provided in subsection B" and substituted "expended" for "involved" in the first sentence and deleted the last sentence requiring reimbursement of medical fees; and added subsections B and C.

§ 19.2-166. Court reporters.

Each judge of a court of record having jurisdiction over criminal proceedings shall be authorized, in all felony cases and habeas corpus proceedings to appoint a court reporter to report proceedings or to operate mechanical or electrical devices for recording proceedings, to transcribe the report or record of such proceedings, to perform any stenographic work related to such report, record or transcript including work pertinent to the court's findings of fact and conclusions of law pertinent thereto. Such reporter shall be paid by the Commonwealth on a per diem or work basis as appropriate out of the appropriation for criminal charges.

(Code 1950, § 17-30.1:1; 1968, c. 486; 1975, c. 495; 2003, c. 140.)

The 2003 amendments. - The 2003 amendment by c. 140, in the first sentence, inserted "and habeas corpus proceedings" following "felony cases," and deleted "and to perform stenographic work relating to habeas corpus proceedings within such court's jurisdiction" following "transcript."

Chapter 11. Proceedings on Question of Insanity.

Sec.

Research References. - Virginia Forms (Matthew Bender). No. 9-2031. Motion for Competency Determination --Commonwealth, et seq. No. 9-2041. Notice of Insanity Defense.

§ 19.2-167. Accused not to be tried while insane or feebleminded.

No person shall, while he is insane or feebleminded, be tried for a criminal offense.

(Code 1950, § 19.1-227; 1960, c. 366; 1964, c. 231; 1968, c. 789; 1975, c. 495.)

Law review. - For note on partial responsibility as a mitigating factor, see 18 Wash. & Lee L. Rev. 118 (1961). For comment on the procedural methods for raising insanity in criminal actions in Virginia, see 18 Wash. & Lee L. Rev. 365 (1961).

For an article, "An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases," see 86 Va. L. Rev. 1199 (2000).

CASE NOTES

Article sets forth procedure for commitment. - This article sets forth the procedure for the commitment to a state hospital for observation of a person charged with crime when there is reason to believe that his mental condition makes such confinement necessary. Barber v. Commonwealth, 206 Va. 241 , 142 S.E.2d 484 (1965).

This section is merely declaratory of the common law. Delp v. Commonwealth, 172 Va. 564 , 200 S.E. 594 (1939); Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963).

Insanity and feeblemindedness are placed on the same plane with respect to criminal liability. Graham v. Gathright, 345 F. Supp. 1148 (W.D. Va. 1972).

Commitment proceedings as to persons accused of crime are for their protection. Timmons v. Peyton, 240 F. Supp. 749 (E.D. Va. 1965), rev'd on other grounds, 360 F.2d 327 (4th Cir.), cert. denied, 385 U.S. 960, 87 S. Ct. 396, 17 L. Ed. 2d 305 (1966).

What emerges from this humane legislation is the assurance by the Commonwealth that one whose mental capacity to cope with the exigencies of a trial is in doubt shall not be put in jeopardy without a preliminary inquiry into his present mental condition. Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963); Kibert v. Peyton, 383 F.2d 566 (4th Cir. 1967).

An accused is presumed to be sane at trial unless his mental condition is called into question by proof to the contrary. Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963); Poteat v. Peyton, 270 F. Supp. 220 (W.D. Va. 1967); Jefferson v. Commonwealth, 214 Va. 747 , 204 S.E.2d 258 (1974).

But he must have opportunity to raise issue of insanity. - While efforts to overcome the presumption of sanity may be circumscribed by state prescriptions as to the quantum of proof and legal tests of insanity, procedural due process requires that a state shall afford an accused adequate opportunity to raise the issue. Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963).

Or the protection is illusory. - The protection afforded the defendant by this section is illusory, however, if, when a reasonable doubt as to his sanity arises, neither court nor counsel seeks to utilize the procedures provided by the state for determining competency. Kibert v. Peyton, 383 F.2d 566 (4th Cir. 1967).

Separate hearing on issue of sanity was unjustified where the court, upon the concurrence of two qualified psychologists, considered defendant mentally competent to stand trial for murder, and the jury affirmed such a conclusion. Wilson v. Cox, 312 F. Supp. 209 (W.D. Va. 1970).

Availability of psychiatric testimony. - The right to a judicial determination of fitness to stand trial is not to be confused with the contention that a state is constitutionally obligated to provide at public expense the services of psychiatrists whose expert testimony may later prove useful in establishing the affirmative defense of lack of criminal responsibility. While the availability of such evidence at state expense may be invaluable to an indigent accused unable to employ his own psychiatrists, this would appear to be a merely incidental consequence of the primary statutory objective of preserving his right to a fair trial by first resolving his mental capacity to understand the charges and the nature of the proceedings against him. Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963).

Ake v. Oklahoma to be applied prospectively. - The rule announced in Ake v. Oklahoma , 105 S. Ct. 1087 (1985) (that due process of law was denied where no psychiatrist was appointed to examine the defendant, to help him prepare his case, to serve as an expert witness for the defense, and to assist in the defense at trial) should be applied only to those cases tried subsequent to Feb. 26, 1985. Snurkowski v. Commonwealth, 2 Va. App. 532, 348 S.E.2d 1 (1986).

Refusal to appoint second psychiatrist not error. - The trial court did not err in refusing to appoint a second independent private psychiatrist, where soon after defendant was formally charged, his counsel moved for the appointment of a private psychiatrist to examine and evaluate the defendant and to aid in his defense and that motion was granted. Ake v. Oklahoma , 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) does not require the appointment of a psychiatrist of the defendant's choice. The United States Supreme Court was careful not to prescribe the method for the selection of the independent psychiatrist. Beaver v. Commonwealth, 232 Va. 521 , 352 S.E.2d 342, cert. denied, 483 U.S. 1033, 107 S. Ct. 3277, 97 L. Ed. 2d 781 (1987).

Plea of guilty by insane defendant. - A man whose mind is so crippled by psychosis that he cannot understand the proceedings or confer intelligently about the case is in no position to plead guilty or to consent to such a plea in his behalf. If a trial court accepts a plea of guilty from such a man, the resulting judgment is vulnerable to collateral attack. Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963).

CIRCUIT COURT OPINIONS

Defendant entitled to additional examination and testing. - Indigent defendant was entitled to a neurological examination and testing and reexamination of his competency to stand trial and sanity at the time of the offense because he showed a particularized need for the additional testing when the doctor who initially examined him testified that the additional tests would allow him to provide a more definitive opinion. Commonwealth v. Mallory, 97 Va. Cir. 113, 2012 Va. Cir. LEXIS 206 (Hanover County Dec. 20, 2012).

Defendant competent to stand trial. - Defendant did not meet his burden of proving by the preponderance of the evidence that he was not competent to stand trial because the court found the testimony and opinions of the physician who opined that defendant was not incompetent to be more credible and persuasive than that of the physician who opined that defendant was not competent, and the court found that whatever issues defendant may have had with his counsel he had the capacity to represent himself and the desire and constitutional right to do so. Commonwealth v. Graves, 88 Va. Cir. 32, 2013 Va. Cir. LEXIS 150 (Prince William County Nov. 7, 2013).

§ 19.2-168. Notice to Commonwealth of intention to present evidence of insanity; continuance if notice not given.

In any case in which a person charged with a crime intends (i) to put in issue his sanity at the time of the crime charged and (ii) to present testimony of an expert to support his claim on this issue at his trial, he, or his counsel, shall give notice in writing to the attorney for the Commonwealth, at least 60 days prior to his trial, of his intention to present such evidence. However, if the period between indictment and trial is less than 120 days, the person or his counsel shall give such notice no later than 60 days following indictment. In the event that such notice is not given, and the person proffers such evidence at his trial as a defense, then the court may in its discretion, either allow the Commonwealth a continuance or, under appropriate circumstances, bar the defendant from presenting such evidence. The period of any such continuance shall not be counted for speedy trial purposes under § 19.2-243 .

(Code 1950, § 19.1-227.1; 1970, c. 336; 1975, c. 495; 1986, c. 535; 2008, c. 372.)

The 2008 amendments. - The 2008 amendment by c. 372 substituted "60 days prior" for "twenty one days prior" near the end of clause (ii) in the first sentence; and inserted the second sentence.

Law review. - For survey of Virginia law on criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For comment on the insanity defense in Virginia, see 17 U. Rich. L. Rev. 129 (1982). For article, "Virginia's Capital Murder Sentencing Proceeding: A Defense Perspective," see 18 U. Rich. L. Rev. 341 (1984).

Michie's Jurisprudence. - For related discussion, see 4A M.J. Continuances, § 47; 10A M.J. Insane and Other Incompetent Persons, § 46.

CASE NOTES

Statute inapplicable in juvenile proceedings. - The reference in this section to "any person" who intends to raise an insanity defense does not include juveniles, and such a defense may not be raised in delinquency proceedings. Commonwealth v. Chatman, 260 Va. 562 , 538 S.E.2d 304, 2000 Va. LEXIS 131 (2000).

Refusal to allow defendant to adduce evidence of insanity at trial. - Trial court did not err in refusing to allow defendant to adduce evidence of insanity at trial because although her counsel initially filed notice of his intention to introduce insanity evidence, that notice was withdrawn and repudiated by defendant when she began representing herself and formally withdrew the insanity defense. Given the time elapsed, the trial court reasonably concluded it was inappropriate to continue the matter yet again to accommodate another shift in defense strategy. Barksdale v. Commonwealth, No. 0736-20-3, 2021 Va. App. LEXIS 126 (July 20, 2021).

Commonwealth entitled to other sanity evaluations. - Subsection E of § 19.2-169.5 clearly provides that the Commonwealth is entitled not only to the report ordered under § 19.2-169.5 , but also to the results of any other evaluation of the defendant's sanity when notice is given by the defense pursuant to this section; subsection E of § 19.2-169.5 cannot be read as applying only to the report ordered. Blevins v. Commonwealth, 11 Va. App. 429, 399 S.E.2d 173 (1990).

Disclosure of mental health records to the Commonwealth. - Psychiatric, psychological, medical, and other records produced by the mental health experts in the course of fulfilling their court-ordered responsibilities under § 19.2-169.5 are protected under that statute from being disclosed to the Commonwealth until the defendant gives notice under this section. Schwartz v. Commonwealth, 45 Va. App. 407, 611 S.E.2d 631, 2005 Va. App. LEXIS 156 (2005).

Plea of "not guilty by reason of insanity" not required to preserve defense of insanity. Thus, trial judge erred when he ruled that the trial could not proceed in an orderly fashion on the defendant's insanity defense unless the defendant entered a formal plea of "not guilty by reason of insanity." Jones v. Commonwealth, 28 Va. App. 444, 506 S.E.2d 27 (1998).

Equal protection not denied. - Defendant juvenile was not denied his equal protection rights under U.S. Const. amend. XIV, § 1 because he had no right in juvenile court to assert an insanity defense to attempting to poison his mother's tea with intent to kill or injure her in violation of § 18.2-54.1 as defendant suffered no disparate treatment as he had the same ability as an adult to assert an insanity defense under § 19.2-168 in the trial court, but he did not exercise his right under § 16.1-270 to be tried as adult and to assert the insanity defense available to him under the adult system. D.L.G. v. Commonwealth, 60 Va. App. 77, 724 S.E.2d 208, 2012 Va. App. LEXIS 123 (2012).

Expert evidence inadmissible. - Trial court did not err by finding that, under Stamper, defendant's expert evidence related to his mental state and mens rea was inadmissible because, although he pleaded involuntary intoxication, he did not plead insanity and did not follow the statutory requirements for putting forward an insanity defense. Schmuhl v. Commonwealth, 69 Va. App. 281, 818 S.E.2d 71, 2018 Va. App. LEXIS 238 (2018).

Applied in Shifflett v. Commonwealth, 221 Va. 760 , 274 S.E.2d 305 (1981).

§ 19.2-168.1. Evaluation on motion of the Commonwealth after notice.

  1. If the attorney for the defendant gives notice pursuant to § 19.2-168 , and the Commonwealth thereafter seeks an evaluation of the defendant's sanity at the time of the offense, the court shall appoint one or more qualified mental health experts to perform such an evaluation. The court shall order the defendant to submit to such an evaluation and advise the defendant on the record in court that a refusal to cooperate with the Commonwealth's expert could result in exclusion of the defendant's expert evidence. The qualification of the experts shall be governed by subsection A of § 19.2-169.5 . The location of the evaluation shall be governed by subsection B of § 19.2-169.5 . The attorney for the Commonwealth shall be responsible for providing the experts the information specified in subsection C of § 19.2-169.5. After performing their evaluation, the experts shall report their findings and opinions, and provide copies of psychiatric, psychological, medical or other records obtained during the course of the evaluation to the attorneys for the Commonwealth and the defense. The evaluator shall also send a redacted copy of the report removing references to the defendant's name, date of birth, case number, and court of jurisdiction to the Commissioner of Behavioral Health and Developmental Services for the purpose of peer review to establish and maintain the list of approved evaluators described in subsection A of § 19.2-169.5.
  2. If the court finds, after hearing evidence presented by the parties, that the defendant has refused to cooperate with an evaluation requested by the Commonwealth, it may admit evidence of such refusal or, in the discretion of the court, bar the defendant from presenting expert psychiatric or psychological evidence at trial on the issue of his sanity at the time of the offense.

    (1982, c. 653; 1986, c. 535; 2016, c. 445.)

The 2016 amendments. - The 2016 amendment by c. 445 added the last sentence in subsection A.

Law review. - For comment suggesting the need for reform of the insanity defense in Virginia, see 13 U. Rich. L. Rev. 397 (1979). For review of Fourth Circuit cases on criminal procedure, see 36 Wash. & Lee L. Rev. 485 (1979). For survey of Virginia law on criminal procedure for the year 1978-1979, see 66 Va. L. Rev. 261 (1980). For article, "The Role of Mental Health Professionals in the Criminal Process: The Case for Informed Speculation," see 66 Va. L. Rev. 427 (1980). For comment on the insanity defense in Virginia, see 17 U. Rich. L. Rev. 129 (1982).

Michie's Jurisprudence. - For related discussion, see 10A M.J. Insane and Other Incompetent Persons, §§ 43, 46.

CASE NOTES

There exists no constitutional right to the appointment of a private psychiatrist of the defendant's own choosing at public expense. Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir.), cert. denied, 436 U.S. 920, 98 S. Ct. 2270, 56 L. Ed. 2d 762 (1978), decided under repealed § 19.2-169 .

Liability for expenses where hospitalized under Title 37.2. - A person is liable for the expenses of his care, treatment, and maintenance when confined to a state hospital pursuant to former Title 37.1 [now Title 37.2], even though he previously had been confined to the facility pursuant to former § 19.2-169 as a person charged with crime. Commonwealth, Dep't of Mental Health & Mental Retardation v. Jenkins, 224 Va. 456 , 297 S.E.2d 692 (1982).

Refusal to cooperate with Commonwealth's mental health expert. - Based on defendant's admissions to an inmate that defendant's only chance to get less than 20 years was to act strangely, and to the trial court that defendant understood that a refusal to cooperate with the Commonwealth's mental health expert could result in exclusion of defendant's own expert's opinion, the trial court did not err in finding that any mental illness asserted by defendant did not preclude defendant from cooperating with the Commonwealth's expert. Grattan v. Commonwealth,, 2008 Va. App. LEXIS 516 (Nov. 25, 2008), aff'd, 278 Va. 602 , 685 S.E.2d 634, 2009 Va. LEXIS 103 (2009).

Exclusion of expert's testimony under § 19.2-168.1 was affirmed because having found defendant competent to stand trial, it was reasonable for the court to conclude that defendant understood the court's repeated instructions that he was required to cooperate with the Commonwealth's mental health evaluators and its constant warnings about the potential ramifications of his refusal to do so. Grattan v. Commonwealth, 278 Va. 602 , 685 S.E.2d 634, 2009 Va. LEXIS 103 (2009).

§ 19.2-169.

Repealed by Acts 1982, c. 653.

Cross references. - For present provisions covering the subject matter of the repealed section, see §§ 19.2-168.1 and 19.2-169.1 .

§ 19.2-169.1. Raising question of competency to stand trial or plead; evaluation and determination of competency.

  1. Raising competency issue; appointment of evaluators. - If, at any time after the attorney for the defendant has been retained or appointed and before the end of trial, the court finds, upon hearing evidence or representations of counsel for the defendant or the attorney for the Commonwealth, that there is probable cause to believe that the defendant, whether a juvenile transferred pursuant to § 16.1-269.1 or adult, lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense, the court shall order that a competency evaluation be performed by at least one psychiatrist or clinical psychologist who (i) has performed forensic evaluations; (ii) has successfully completed forensic evaluation training recognized by the Commissioner of Behavioral Health and Developmental Services; (iii) has demonstrated to the Commissioner competence to perform forensic evaluations; and (iv) is included on a list of approved evaluators maintained by the Commissioner.
  2. Location of evaluation. - The evaluation shall be performed on an outpatient basis at a mental health facility or in jail unless an outpatient evaluation has been conducted and the outpatient evaluator opines that a hospital-based evaluation is needed to reliably reach an opinion or unless the defendant is in the custody of the Commissioner of Behavioral Health and Developmental Services pursuant to § 19.2-169.2 , 19.2-169.6 , 19.2-182.2 , 19.2-182.3 , 19.2-182.8 , 19.2-182.9 , or Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2.
  3. Provision of information to evaluators. - The court shall require the attorney for the Commonwealth to provide to the evaluators appointed under subsection A any information relevant to the evaluation, including, but not limited to (i) a copy of the warrant or indictment; (ii) the names and addresses of the attorney for the Commonwealth, the attorney for the defendant, and the judge ordering the evaluation; (iii) information about the alleged crime; and (iv) a summary of the reasons for the evaluation request. The court shall require the attorney for the defendant to provide any available psychiatric records and other information that is deemed relevant. The court shall require that information be provided to the evaluator within 96 hours of the issuance of the court order pursuant to this section.
  4. The competency report. - Upon completion of the evaluation, the evaluators shall promptly submit a report in writing to the court and the attorneys of record concerning (i) the defendant's capacity to understand the proceedings against him; (ii) his ability to assist his attorney; and (iii) his need for treatment in the event he is found incompetent but restorable, or incompetent for the foreseeable future. If a need for restoration treatment is identified pursuant to clause (iii), the report shall state whether inpatient or outpatient treatment (community-based or jail-based) is recommended. Outpatient treatment may occur in a local correctional facility or at a location determined by the appropriate community services board or behavioral health authority. In cases where a defendant is likely to remain incompetent for the foreseeable future due to an ongoing and irreversible medical condition, and where prior medical or educational records are available to support the diagnosis, or if the defendant was previously determined to be unrestorably incompetent in the past two years, the report may recommend that the court find the defendant unrestorably incompetent to stand trial and the court may proceed with the disposition of the case in accordance with § 19.2-169.3 . No statements of the defendant relating to the time period of the alleged offense shall be included in the report. The evaluator shall also send a redacted copy of the report removing references to the defendant's name, date of birth, case number, and court of jurisdiction to the Commissioner of Behavioral Health and Developmental Services for the purpose of peer review to establish and maintain the list of approved evaluators described in subsection A.
  5. The competency determination. - After receiving the report described in subsection D, the court shall promptly determine whether the defendant is competent to stand trial. A hearing on the defendant's competency is not required unless one is requested by the attorney for the Commonwealth or the attorney for the defendant, or unless the court has reasonable cause to believe the defendant will be hospitalized under § 19.2-169.2 . If a hearing is held, the party alleging that the defendant is incompetent shall bear the burden of proving by a preponderance of the evidence the defendant's incompetency. The defendant shall have the right to notice of the hearing, the right to counsel at the hearing and the right to personally participate in and introduce evidence at the hearing. The fact that the defendant claims to be unable to remember the time period surrounding the alleged offense shall not, by itself, bar a finding of competency if the defendant otherwise understands the charges against him and can assist in his defense. Nor shall the fact that the defendant is under the influence of medication bar a finding of competency if the defendant is able to understand the charges against him and assist in his defense while medicated. (1982, c. 653; 1983, c. 373; 1985, c. 307; 2003, c. 735; 2007, c. 781; 2009, cc. 813, 840; 2014, cc. 329, 739; 2016, c. 445; 2018, c. 367; 2020, cc. 299, 937, 1121; 2021, Sp. Sess. I, c. 316.) I. General Consideration. II. Action by the Court. III. Proof. IV. Practice and Procedure.

Cross references. - As to representation by counsel in proceeding for commitment, see § 19.2-182 .

The 2003 amendments. - The 2003 amendment by c. 735 inserted "whether a juvenile transferred pursuant to § 16.1-269.1 or adult" near the middle of subsection A.

The 2007 amendments. - The 2007 amendment by c. 781 deleted "or master's level psychologist" following "clinical psychologist" in subsection A and made related changes; substituted "the court finds that hospitalization is necessary" for "either finding is made" in the second sentence in subsection B; added the last sentence to subsection C; inserted "but restorable, or incompetent for the foreseeable future" to the end of the first sentence of subsection D; and made minor stylistic changes.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in subsection B.

The 2014 amendments. - The 2014 amendments by cc. 329 and 739 are identical, and in subsection D added the second sentence.

The 2016 amendments. - The 2016 amendment by c. 445, in subsection A, substituted "(i) has performed forensic evaluations; (ii) has successfully completed forensic evaluation training recognized by the Commissioner of Behavioral Health and Developmental Services; (iii) has demonstrated to the Commissioner competence to perform forensic evaluations; and (iv) is included on a list of approved evaluators maintained by the Commissioner" for "is qualified by training and experience in forensic evaluation"; and in subsection D, added the last sentence.

The 2018 amendments. - The 2018 amendment by c. 367 rewrote subsection B, which read "The evaluation shall be performed on an outpatient basis at a mental health facility or in jail unless the court specifically finds that outpatient evaluation services are unavailable or unless the results of outpatient evaluation indicate that hospitalization of the defendant for evaluation on competency is necessary. If the court finds that hospitalization is necessary, the court, under authority of this subsection, may order the defendant sent to a hospital designated by the Commissioner of Behavioral Health and Developmental Services as appropriate for evaluations of persons under criminal charge. The defendant shall be hospitalized for such time as the director of the hospital deems necessary to perform an adequate evaluation of the defendant's competency, but not to exceed 30 days from the date of admission to the hospital."

The 2020 amendments. - The 2020 amendments by cc. 299 and 1121 are identical, and in subsection D, inserted "(community-based or jail-based)" in clause (iii) of the first sentence, and inserted the fourth sentence.

The 2020 amendments by c. 937, in subsection D, inserted the third sentence.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 316, effective July 1, 2021, inserted "or if the defendant was previously determined to be unrestorably incompetent in the past two years" in the fourth sentence of subsection D.

Law review. - For note, "Law and Morality 'Unspeakable Justice': The Oswaldo Martinez Case and the Failure of the Legal System to Adequately Provide for Incompetent Defendants," see 48 Wm. & Mary L. Rev. 2075 (2007).

For article, "Reconceptualizing Competence: An Appeal," see 66 Wash. & Lee L. Rev. 259 (2009).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 43; 10A M.J. Insane and Other Incompetent Persons, §§ 43, 50; 20 M.J. Witnesses, § 8.

I. GENERAL CONSIDERATION.

Editor's note. - Many of the cases cited in the following annotations were decided under repealed § 19.2-169 .

CASE NOTES

As to constitutionality of procedure under former § 19.2-169 , see Payne v. Slayton, 329 F. Supp. 886 (W.D. Va. 1971).

Former § 19.2-169 was enacted in clear recognition of the State's constitutional obligation to provide a hearing on the question of whether a person to be tried is in such a mental condition that his confinement in a hospital for the insane or colony for the feebleminded for proper care and observation is necessary to attain the ends of justice. Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963).

Due process requires state to provide means to raise issue. - Due process requires that the State must provide an adequate means by which an accused can raise the issue of insanity at the time of trial and at the commission of the alleged offense. Hodnett v. Slayton, 343 F. Supp. 1142 (W.D. Va. 1972), appeal dismissed, 471 F.2d 648 (4th Cir. 1973).

Trial court's refusal to suspend proceedings as denial of due process. - Where insanity at the time of the trial was established by reliable and uncontroverted sworn medical testimony, on the strength of this prima facie showing, the trial court's refusal to suspend the proceedings and its decision to hold trial the very next morning was so arbitrary as to constitute a denial of due process. Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963).

Procedures must be set in motion whenever bona fide doubt as to competency exists. - State hearing procedures must be set in motion whenever it appears in the course of the proceedings that a bona fide doubt as to a defendant's competency exists. McLaughlin v. Royster, 346 F. Supp. 297 (E.D. Va. 1972).

Commitment proceedings as to persons accused of crime are for their protection. Timmons v. Peyton, 240 F. Supp. 749 (E.D. Va. 1965), rev'd on other grounds, 360 F.2d 327 (4th Cir.), cert. denied, 385 U.S. 960, 87 S. Ct. 396, 17 L. Ed. 2d 305 (1966).

Failure to raise question. - The protection afforded the defendant is illusory if, when a reasonable doubt as to his sanity arises, neither court nor counsel seeks to utilize the procedures provided by the State for determining competency. Kibert v. Peyton, 383 F.2d 566 (4th Cir. 1967).

There exists no constitutional right to the appointment of a private psychiatrist of the defendant's own choosing at public expense. Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir.), cert. denied, 436 U.S. 920, 98 S. Ct. 2270, 56 L. Ed. 2d 762 (1978).

No constitutional guarantee of examination. - There is no constitutional guarantee that every person indicted for a felony is entitled to a mental examination. Kerns v. Peyton, 292 F. Supp. 182 (W.D. Va. 1968); Newman v. Peyton, 303 F. Supp. 462 (W.D. Va. 1969).

A state prisoner who alleges mental incapacity to stand trial is not entitled as a matter of right to pretrial commitment and examination at state expense. Morris v. Peyton, 283 F. Supp. 63 (W.D. Va. 1968).

No obligation on court where defendant's mental health not in doubt. - Former § 19.2-169 placed no obligation upon the court or the attorney for the Commonwealth in cases where there was no reason to doubt petitioner's mental health. Newman v. Peyton, 303 F. Supp. 462 (W.D. Va. 1969). See also Kerns v. Peyton, 292 F. Supp. 182 (W.D. Va. 1968).

Former § 19.2-169 placed no obligation upon the court to appoint a committee except where the court or attorney for the Commonwealth had reason to believe that the person to be tried was in such mental condition that his confinement in a hospital for the insane or colony for the feebleminded for proper care and observation was necessary to attain the ends of justice. Wood v. Commonwealth, 146 Va. 296 , 135 S.E. 895 (1926); Delp v. Commonwealth, 172 Va. 564 , 200 S.E. 594 (1939); Tilton v. Commonwealth, 196 Va. 774 , 85 S.E.2d 368 (1955).

State must assure indigent defendant access to competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense when the defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial. Tuggle v. Commonwealth, 230 Va. 99 , 334 S.E.2d 838 (1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3309, 92 L. Ed. 2d 722 (1986).

Indigent entitled to psychiatrist in capital case on issue of future dangerousness. - When the prosecution in a capital sentencing proceeding presents psychiatric evidence of an indigent defendant's future dangerousness, due process requires that a state provide the defendant the assistance of a psychiatrist on the issue. Where the Commonwealth presented psychiatric evidence that defendant showed a high probability of future dangerousness, even though defendant's trial and direct appeal predated the decision of the United States Supreme Court in Ake v. Oklahoma , 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), in light of that decision the trial court erred in denying his motion for an independent psychiatrist to rebut the Commonwealth's psychiatric evidence of future dangerousness. Tuggle v. Commonwealth, 230 Va. 99 , 334 S.E.2d 838 (1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3309, 92 L. Ed. 2d 722 (1986).

Ake v. Oklahoma to be applied prospectively. - The rule announced in Ake v. Oklahoma , 105 S. Ct. 1087 (1985) (that due process of law was denied where no psychiatrist was appointed to examine the defendant, to help him prepare his case, to serve as an expert witness for the defense, and to assist in the defense at trial) should be applied only to those cases tried subsequent to Feb. 26, 1985. Snurkowski v. Commonwealth, 2 Va. App. 532, 348 S.E.2d 1 (1986).

Commitment to a hospital or other means of inquisition is not granted ex mero motu; it is not a perfunctory order. Hawks v. Peyton, 370 F.2d 123 (4th Cir. 1966), cert. denied, 387 U.S. 925, 87 S. Ct. 2044, 18 L. Ed. 2d 982 (1967). See also Kerns v. Peyton, 292 F. Supp. 182 (W.D. Va. 1968).

Use of competency evaluation of a witness. - Trial court did not err in refusing to admit into evidence a competency evaluation of a co-conspirator who testified against defendant because nothing in the competency report about the co-conspirator suggested he was untruthful, given to making up facts, had impaired memory functions, had any cognitive impairments, and nothing suggested his mental conditions made him more likely to lie than anyone else. Waters v. Commonwealth, 43 Va. App. 636, 600 S.E.2d 918, 2004 Va. App. LEXIS 399 (2004).

Appellate jurisdiction. - Virginia Supreme Court had no jurisdiction to hear an appeal from the denial of a motion to dismiss a case in which defendant was found incompetent because a competency determination and an appeal from such a determination were criminal in nature, so any appeal had to first be brought to the Virginia Court of Appeals. Martinez v. Commonwealth, 296 Va. 387 , 821 S.E.2d 529, 2018 Va. LEXIS 176 (2018).

Applied in Washington v. Commonwealth, 228 Va. 535 , 323 S.E.2d 577 (1984).

II. ACTION BY THE COURT.

Action by court is discretionary. - Under former § 19.2-169 the lower court, after hearing the evidence, could in its discretion commit a person held for trial to the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services [now the Commissioner of Behavioral Health and Developmental Services] at the proper hospital, pending determination of his mental condition. Delp v. Commonwealth, 172 Va. 564 , 200 S.E. 594 (1939).

The language of former § 19.2-169 imported the exercise of discretion by the trial court in deciding whether the circumstances warranted further inquiry into defendant's mental condition, rather than the imposition of a mandate requiring such action regardless of the circumstances. Elkins v. Commonwealth, 208 Va. 336 , 157 S.E.2d 243 (1967).

And will not be disturbed absent abuse. - The trial court's choice is discretionary and its denial of defendant's motion for a mental examination before trial will not be disturbed unless it is clearly shown that the trial court abused its discretion. Poteat v. Peyton, 270 F. Supp. 220 (W.D. Va. 1967).

The use of former § 19.2-169 was entirely discretionary with the trial court. The failure of the trial court to exercise such discretion was reviewable only in the event of clear abuse of judicial discretion. Morris v. Peyton, 283 F. Supp. 63 (W.D. Va. 1968).

Denial of a motion for pretrial examination cannot be assailed except for abuse of discretion. Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963); Poteat v. Peyton, 270 F. Supp. 220 (W.D. Va. 1967); Morris v. Peyton, 283 F. Supp. 63 (W.D. Va. 1968).

The denial of a motion for a pretrial examination or the denial of a motion for a continuance in order to effectuate a mental examination cannot be assailed except for a clear abuse of discretion. Ashby v. Cox, 344 F. Supp. 759 (W.D. Va. 1972).

While the Supreme Court has the power to review the action of the trial court in committing or refusing to commit persons to the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services [now the Commissioner of Behavioral Health and Developmental Services], it will not disturb the trial court's ruling unless it plainly appears that the discretion of the trial court has been abused. Delp v. Commonwealth, 172 Va. 564 , 200 S.E. 594 (1939); Tilton v. Commonwealth, 196 Va. 774 , 85 S.E.2d 368 (1955).

Denial of motion held not an abuse. - Where there was no prima facie showing of insanity that would cause the court to doubt the defendant's sanity, there was no abuse of discretion by the trial court in denying defendant's motion. Poteat v. Peyton, 270 F. Supp. 220 (W.D. Va. 1967).

A trial judge did not abuse his discretion in denying a pretrial examination under former § 19.2-169 where testimony indicated that petitioner understood the nature of the charges against him and that he was aware that he was subject to punishment for them if found guilty, where the reason for an expert witness's lack of faith in the petitioner's ability to stand trial was not his present mental condition or competence but was caused by petitioner's memory lapse occasioned by heavy drinking, where the petitioner appeared normal while in court, and the petitioner's own testimony revealed nothing which indicated any mental defect or disease at the time of trial, and where there was no evidence that the petitioner had any prior history of mental instability. South v. Slayton, 336 F. Supp. 879 (W.D. Va. 1972).

No abuse of discretion found. - Circuit court did not abuse its discretion in finding there was no probable cause to order a second competency evaluation of defendant, as information related to injuries reportedly sustained by defendant decades prior to the subject murder did not provide evidence of a substantial change in his competence, and the circuit court carefully considered representations made by counsel regarding defendant's competency. Dang v. Commonwealth, 287 Va. 132 , 752 S.E.2d 885, 2014 Va. LEXIS 12 (2014).

The trial court has the inherent power to require defendant to be examined by a psychiatric committee in order that his examiners might report their opinion as to his sanity at the time of his alleged crimes and testify to such opinion if called by the Commonwealth as rebuttal witnesses. Shifflett v. Commonwealth, 221 Va. 760 , 274 S.E.2d 305 (1981).

Second psychiatric opinion. - Trial court properly denied defendant's motion for a second psychiatric opinion, where defendant was cogent and responsive, her trial testimony was detailed, and there was no evidence that her mental condition had changed since her first psychiatric evaluation. Rothwell v. Commonwealth, No. 1342-98-1 (Ct. of Appeals Jan. 4, 2000).

Judge may invoke procedure sua sponte. - Since a defendant cannot always be expected to demand a sanity examination for himself, the judge may invoke the procedure sua sponte. Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963).

No error in failing to order sua sponte evaluation. - Trial court did not err in failing to order sua sponte an evaluation of defendant's competency to stand trial under the terms of § 19.2-169.1 because there was no probable cause to believe that defendant lacked substantial capacity to understand the criminal proceedings against him or to assist his counsel in his defense; when entering his plea defendant stated his full name, gave his date of birth, and indicated that he fully understood the grand larceny charge for which he was being prosecuted, defendant pleaded not guilty to that charge and acknowledged that he was doing so knowingly and voluntarily, at the end of the colloquy, the trial court found that defendant had entered a free and voluntary plea of not guilty, and at no time did defense counsel raise with the trial court any issue regarding defendant's competency to stand trial. Anderson v. Commonwealth,, 2011 Va. App. LEXIS 80 (Mar. 8, 2011).

And should do so when adequate showing has been made. - When an adequate showing has been made to raise the issue of the defendant's sanity, the trial court should order a hearing sua sponte. McLaughlin v. Royster, 346 F. Supp. 297 (E.D. Va. 1972).

III. PROOF.

An accused is presumed to be sane at the trial unless his mental condition is called into question by proof to the contrary. Payne v. Slayton, 329 F. Supp. 886 (W.D. Va. 1971).

An accused is presumed to be sane at the trial and during the commission of the offense, and it is his burden to prove the contrary. Graham v. Gathright, 345 F. Supp. 1148 (W.D. Va. 1972).

A simple suggestion of mental deficiency is not enough to require deferment of trial. Hawks v. Peyton, 370 F.2d 123 (4th Cir. 1966), cert. denied, 387 U.S. 925, 87 S. Ct. 2044, 18 L. Ed. 2d 982 (1967).

Fact that defendant had been in a mental institution on different occasions did not make out a prima facie case of insanity where that fact was not established before the trial court. Poteat v. Peyton, 270 F. Supp. 220 (W.D. Va. 1967).

Burden on accused upon motion for pretrial commitment. - In proceeding on a motion for pretrial commitment for observation and report, an accused was not required to prove actual insanity, as is necessary where lack of criminal responsibility is asserted as an affirmative defense. His sole burden was to adduce facts sufficient to create in the court's mind reasonable grounds to doubt his sanity. Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963); Ashby v. Cox, 344 F. Supp. 759 (W.D. Va. 1972).

In proceeding on a motion for pretrial commitment, an accused met his burden of creating a reasonable doubt as to his sanity where two specialists testified without contradiction or reservation that accused was presently in the grip of a serious psychosis, disabling him from assisting his counsel. Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963).

In Virginia, unlike the federal practice, the burden rests upon the accused to prove his mental incompetency. Timmons v. Peyton, 240 F. Supp. 749 (E.D. Va. 1965), rev'd on other grounds, 360 F.2d 327 (4th Cir.), cert. denied, 385 U.S. 960, 87 S. Ct. 396, 17 L. Ed. 2d 305 (1966).

The duty of carrying the burden of proving a defendant's insanity at the time of trial falls upon the petitioner's attorney to present the issue to the court when he has reasonable belief that his client's mental condition is of a nature which may render him incompetent to stand trial and which may also raise a question of his client's sanity at the time of the crime. Payne v. Slayton, 329 F. Supp. 886 (W.D. Va. 1971).

The burden of proof on the issue of insanity rests with the accused. Hodnett v. Slayton, 343 F. Supp. 1142 (W.D. Va. 1972), appeal dismissed, 471 F.2d 648 (4th Cir. 1973).

Petitioner need not prove actual insanity. - In proceeding on a motion for pretrial commitment for observation and report, the petitioner is not required to prove actual insanity, but only to adduce facts sufficient to create in the court's mind reasonable grounds to doubt his sanity. Morris v. Peyton, 283 F. Supp. 63 (W.D. Va. 1968).

The question of whether or not the defendant knows right from wrong is not relevant to the question of whether he should have been afforded a pretrial mental examination. Ashby v. Cox, 344 F. Supp. 759 (W.D. Va. 1972).

Efforts to overcome presumption of sanity may be circumscribed by state. - The Supreme Court of the United States has stated that a defendant's efforts to overcome the presumption of sanity may be circumscribed by state prescriptions as to the quantum of proof and legal tests of sanity. Payne v. Slayton, 329 F. Supp. 886 (W.D. Va. 1971).

But due process requires opportunity to raise issue. - Although efforts to overcome the presumption of sanity may be circumscribed by state rules as to the quantum of proof and legal tests of insanity, due process requires that a state shall afford the accused adequate opportunity to raise the issue. Graham v. Gathright, 345 F. Supp. 1148 (W.D. Va. 1972).

Before indigent defendant is entitled to psychiatric assistance, he must make a threshold showing to the trial court that his sanity is likely to be a significant factor in his defense. Tuggle v. Commonwealth, 230 Va. 99 , 334 S.E.2d 838 (1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3309, 92 L. Ed. 2d 722 (1986).

Evidence supported the trial court's finding of competency. - Credible evidence supported the trial court's finding of competency, and the appeals court would not disturb it on appeal; a hospital treatment team submitted a report stating that defendant was competent to be sentenced, and two of the doctors involved in the report pointed out that the dissociative episodes defendant demonstrated were generally quite brief, lasting from just five to six minutes. Orndorff v. Commonwealth, 45 Va. App. 822, 613 S.E.2d 876, 2005 Va. App. LEXIS 288 (2005), aff'd in part, rev'd in part, 2006 Va. LEXIS 43 (Va. 2006).

Finding that defendant was competent to stand trial was supported by evidence that defendant understood the nature of the proceedings against defendant, had substantial capacity to meaningfully participate in defendant's defense should defendant have chosen to do so, and was capable of understanding the consequences of defendant's failure to cooperate with the Commonwealth's mental health expert's efforts to evaluate defendant. Grattan v. Commonwealth,, 2008 Va. App. LEXIS 516 (Nov. 25, 2008), aff'd, 278 Va. 602 , 685 S.E.2d 634, 2009 Va. LEXIS 103 (2009).

IV. PRACTICE AND PROCEDURE.

Proof of reasonable ground for questioning mental capacity entitles a person to a preliminary inquiry upon his mental capability to understand the nature of the charge against him and to assist in his defense. Owsley v. Peyton, 368 F.2d 1002 (4th Cir. 1966).

Hearing contemplated. - Former § 19.2-169 contemplated that the court would rule on the suggestion "after hearing evidence." Hawks v. Peyton, 370 F.2d 123 (4th Cir. 1966), cert. denied, 387 U.S. 925, 87 S. Ct. 2044, 18 L. Ed. 2d 982 (1967).

Presence of accused at hearing. - If the personal presence of the party sought to be committed is required at any hearing prescribed, it will present grave difficulties with respect to many suspected mentally ill persons accused of crime, and will, in effect, prejudice the rights of an accused, as many such persons are not in condition to appear in court. Timmons v. Peyton, 240 F. Supp. 749 (E.D. Va. 1965), rev'd on other grounds, 360 F.2d 327 (4th Cir.), cert. denied, 385 U.S. 960, 87 S. Ct. 396, 17 L. Ed. 2d 305 (1966).

Precommitment hearing does not decide issue of competency. - The precommitment hearing does not decide the issue of competency, but rather the existence of reason to believe that the defendant may be incompetent. McLaughlin v. Royster, 346 F. Supp. 297 (E.D. Va. 1972).

Separate hearing on issue of sanity was unjustified where the court, upon the concurrence of two qualified psychologists, considered defendant mentally competent to stand trial for murder, and the jury affirmed such a conclusion. Wilson v. Cox, 312 F. Supp. 209 (W.D. Va. 1970).

The report from the hospital does not conclude the issue of competency. Counsel has a duty to explore the matter further and adduce evidence in court, when there is reason for doubt as to the mental condition of the accused. McLaughlin v. Royster, 346 F. Supp. 297 (E.D. Va. 1972).

Effective assistance of counsel. - If reasonable grounds exist for questioning the sanity or competency of a defendant and counsel fails to explore the matter, the defendant has been denied effective assistance of counsel. Wood v. Zahradnick, 430 F. Supp. 107 (E.D. Va. 1977), aff'd, 578 F.2d 980 (4th Cir. 1978).

Where the facts known or reasonably ascertainable by counsel prior to trial were sufficient to inject the issues of whether the defendant was incompetent to stand trial or whether he was not responsible for his acts in the case, counsel had an affirmative obligation to make suitable inquiry to determine whether these defenses could be advanced. Counsel's failure to do so rendered his assistance ineffective within the meaning of the sixth amendment. Wood v. Zahradnick, 430 F. Supp. 107 (E.D. Va. 1977), aff'd, 578 F.2d 980 (4th Cir. 1978).

The defense attorney's failure to explore the mental condition of his client deprived his client of his right to effective assistance of counsel where the trial was certain to result in his conviction unless an insanity defense prevailed and where the circumstances suggested such a defense. Wood v. Zahradnick, 578 F.2d 980 (4th Cir. 1978).

The failure of the defendant's lawyer to explore the matter and adduce evidence in court where there was reason for doubt as to the mental condition of the accused constituted a denial of his right to effective assistance of counsel. Kibert v. Peyton, 383 F.2d 566 (4th Cir. 1967).

Defense of incompetency cannot be waived. - The defense of incompetency to stand trial cannot be waived by the incompetent, and his counsel cannot waive it for him by failing to move for examination of his competency. Kibert v. Peyton, 383 F.2d 566 (4th Cir. 1967).

The due process right to face trial only while capable of understanding and assisting in the proceedings is not subject to waiver. McLaughlin v. Royster, 346 F. Supp. 297 (E.D. Va. 1972).

Effect of evaluation request on speedy trial right. - Where record clearly indicated that the substantial delay of trial was occasioned by defendant's motion for an evaluation pursuant to this section and his conduct in relation to the evaluation, i.e., waiting almost five months to supply information necessary for the examination to commence, no denial of speedy trial occurred. Jones v. Commonwealth, 13 Va. App. 566, 414 S.E.2d 193 (1992).

While defendant argued that the tolling of the statutory speedy trial period ended when the doctor who evaluated him issued her report opining that defendant was competent to stand trial, the court rejected this, concluding that, pursuant to subsection E of § 19.2-169.1 , only the court, not the evaluator, could determine whether a criminal defendant was competent to stand trial. Although the trial court did not make a competency determination until eight months after the doctor issued her report, this did not violate the statutory mandate to promptly determine whether defendant was competent to stand trial as subsection E of § 19.2-169.1 required the trial court to promptly determine a defendant's competency only after receiving the evaluator's report concerning a defendant's competency, and the trial court made a competency decision two months after receiving the report, which had been sent to the wrong court initially. Brown v. Commonwealth, 57 Va. App. 381, 702 S.E.2d 582, 2010 Va. App. LEXIS 490 (2010).

Defendant may subsequently raise defense of insanity at time of offense. - Even if the trial court determines that the accused has the capacity to stand trial, he is not precluded from, and must be given the opportunity of, raising a defense of insanity at the time of the commission of the offense. Graham v. Gathright, 345 F. Supp. 1148 (W.D. Va. 1972).

On habeas corpus a federal court may, in its discretion, entertain and consider a review of the issue of insanity at the time of trial, even where the state court has previously determined the same issue after hearing. It is not, however, required to do so. Owsley v. Cunningham, 190 F. Supp. 608 (E.D. Va. 1961).

Where no hearing has ever been had in any state court proceeding on the issue of insanity at the time of trial, either at or immediately prior to the trial on the merits or by way of post-conviction remedies in the state court, it seems appropriate that a federal court should grant a plenary hearing. Owsley v. Cunningham, 190 F. Supp. 608 (E.D. Va. 1961).

While the provisions of former §§ 19.2-169 and 19.2-170 were discretionary, the failure of the trial court to exercise such discretion, while reviewable on direct appeal in the event of a clear abuse of judicial discretion, did not preclude the accused from proving his lack of mental capacity under his plea of not guilty, and the jury could find the accused not guilty by reason of insanity. The trial court, in exercising its discretion by denying the motion to commit, conducted a hearing on the reasonable necessity of such commitment for observation and report. Any error of the state court in evaluating the issue of mental competency would not go to jurisdiction; it is only the denial of the opportunity to tender the issue of insanity which affords the right to present the issue of insanity in habeas corpus proceedings. Owsley v. Cunningham, 190 F. Supp. 608 (E.D. Va. 1961).

Since due process entitled an accused to have the matter of sanity thoroughly canvassed and the Commonwealth provided the means for it, a federal court was obliged to scrutinize the procedures by which an accused's claim was rejected. Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963).

Petition for habeas corpus on the grounds of alleged insanity at the time of trial was entertained by a federal court even though the petitioner never took a direct appeal from his convictions. Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1963).

When the opportunity to raise the issue of the defendant's sanity has been provided, a federal court in a habeas corpus proceeding need not inquire again into the mental fitness of the state prisoner. Hodnett v. Slayton, 343 F. Supp. 1142 (W.D. Va. 1972), appeal dismissed, 471 F.2d 648 (4th Cir. 1973).

Where the issue is insanity at the time of trial, a federal court is obliged to examine the procedures by which this claim was rejected, but it is not required to review the merits of the determination where the State has done so. Graham v. Gathright, 345 F. Supp. 1148 (W.D. Va. 1972).

Under the rule governing federal habeas corpus proceedings, a federal district court cannot rely upon the state court's findings as sufficient basis to decide a defendant's claim of incompetence to stand trial where no specific finding of fact was made by the state court as to petitioner's condition when he was tried, and where the ruling against petitioner was apparently based upon a restrictive rule of the relevance of evidence, which kept the state court from deciding the central issue of competency. McLaughlin v. Royster, 346 F. Supp. 297 (E.D. Va. 1972).

On the issue of the competency of a petitioner to stand trial, he has the right to a federal hearing. McLaughlin v. Royster, 346 F. Supp. 297 (E.D. Va. 1972).

Liability for expenses where hospitalized under Title 37.2. - A person is liable for the expenses of his care, treatment, and maintenance when confined to a state hospital pursuant to former Title 37.1 [now Title 37.2], even though he previously had been confined to the facility pursuant to former § 19.2-169 as a person charged with crime. Commonwealth, Dep't of Mental Health & Mental Retardation v. Jenkins, 224 Va. 456 , 297 S.E.2d 692 (1982).

Appointment on prior occasions did not preclude status as "independent" psychiatrist. - Doctor was not precluded from being an "independent" psychiatrist simply because he had been appointed by the court on prior occasions. Hogan v. Commonwealth, 5 Va. App. 36, 360 S.E.2d 371 (1987).

Ordering of examination not a finding of probable cause. - Where the court ordered the psychiatric examination solely because "this is a capital murder case," the court did not, merely by ordering the psychiatric examination pursuant to §§ 19.2-169.1 and 19.2-169.5 , as a matter of law, find probable cause. Tuggle v. Commonwealth, 230 Va. 99 , 334 S.E.2d 838 (1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3309, 92 L. Ed. 2d 722 (1986).

Withdrawal of notice of intent did not moot issue of error in denying motion for psychiatric assistance. - The issue of whether the court erred in denying defendant's pre-trial motion for independent psychiatric assistance was not moot, where defendant withdrew his notice of intent to rely on an insanity defense because of his belief that he had not been given sufficient opportunity to develop evidence of his mental state at the time of the offense. Hogan v. Commonwealth, 5 Va. App. 36, 360 S.E.2d 371 (1987).

Issue of whether defendant met burden not addressed on appeal where psychiatrist provided. - It is not necessary to address the issue on appeal whether defendant carried the threshold burden required in Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), where the trial court did, in fact, provide him with the services of an independent psychiatrist. Hogan v. Commonwealth, 5 Va. App. 36, 360 S.E.2d 371 (1987).

Erroneous burden shifting. - With regard to defendant's conviction for murder and the affirmance of the denial of defendant's motion for a new trial based on after-discovered evidence, the trial court erred by concluding that defendant failed to meet her burden of proving reasonable diligence as to the alleged new evidence that she suffered from dissociative identity disorder to support an insanity defense, which was not asserted by her at trial, as the trial court improperly shifted the focus of the reasonable diligence inquiry by effectively assigning to defendant's counsel the responsibility for reaching a different medical diagnosis. Error was also found by the trial court misapplying the materiality standard since it should have made its own determination of the materiality of the alleged new evidence instead of relying upon the jury's rejection of defendant's mitigation evidence presented during the sentencing phase of defendant's trial. Orndorff v. Commonwealth, 271 Va. 486 , 628 S.E.2d 344, 2006 Va. LEXIS 43 (2006).

Rehearing not required. - The trial court properly denied the defendant's motion for a new preliminary hearing, as there was no probable cause to believe that he lacked substantial capacity to understand the proceedings against him or to assist his attorney in his own defense where he made numerous appearances before both the general district and circuit courts prior to the preliminary hearing, appropriately participated in such proceedings and failed to raise the issue of competency, either through counsel or otherwise. Stoneman v. Commonwealth, No. 3069-96-3 (Ct. of Appeals June 9, 1998).

CIRCUIT COURT OPINIONS

Effect of evaluation request on speedy trial right. - Defendant's motion to dismiss an indictment charging him with murder on the ground that his right to a speedy trial under § 19.2-243 had been violated was denied because the speedy trial clock could not have resumed running based solely upon the issuance of a competency report, and until the circuit court determined the issue of defendant's competency, no trial could take place; it is the circuit court, not the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services, which determines a defendant's competency to stand trial. Commonwealth v. Brown,, 2009 Va. Cir. LEXIS 56 (Fairfax Aug. 10, 2009).

Defendant entitled to additional examination and testing. - Indigent defendant was entitled to a neurological examination and testing and reexamination of his competency to stand trial and sanity at the time of the offense because he showed a particularized need for the additional testing when the doctor who initially examined him testified that the additional tests would allow him to provide a more definitive opinion. Commonwealth v. Mallory, 97 Va. Cir. 113, 2012 Va. Cir. LEXIS 206 (Hanover County Dec. 20, 2012).

OPINIONS OF THE ATTORNEY GENERAL

Competency evaluation report ordered by and submitted to a court as part of the court's record is open to inspection under § 17.1-208 , provided such report is not sealed by court order. See opinion of Attorney General to The Honorable George E. Schaefer, Clerk of Norfolk Circuit Court, 08-099, 2009 Va. AG LEXIS 13 (2/25/09).

§ 19.2-169.2. Disposition when defendant found incompetent.

  1. Upon finding pursuant to subsection E of § 19.2-169.1 that the defendant, including a juvenile transferred pursuant to § 16.1-269.1, is incompetent, the court shall order that the defendant receive treatment to restore his competency on an outpatient basis or, if the court specifically finds that the defendant requires inpatient hospital treatment, at a hospital designated by the Commissioner of Behavioral Health and Developmental Services as appropriate for treatment of persons under criminal charge. Outpatient treatment may occur in a local correctional facility or at a location determined by the appropriate community services board or behavioral health authority. Notwithstanding the provisions of § 19.2-178 , if the court orders inpatient hospital treatment, the defendant shall be transferred to and accepted by the hospital designated by the Commissioner as soon as practicable, but no later than 10 days, from the receipt of the court order requiring treatment to restore the defendant's competency. If the 10-day period expires on a Saturday, Sunday, or other legal holiday, the 10 days shall be extended to the next day that is not a Saturday, Sunday, or legal holiday. Any psychiatric records and other information that have been deemed relevant and submitted by the attorney for the defendant pursuant to subsection C of § 19.2-169.1 and any reports submitted pursuant to subsection D of § 19.2-169.1 shall be made available to the director of the community services board or behavioral health authority or his designee or to the director of the treating inpatient facility or his designee within 96 hours of the issuance of the court order requiring treatment to restore the defendant's competency. If the 96-hour period expires on a Saturday, Sunday, or other legal holiday, the 96 hours shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.
  2. If, at any time after the defendant is ordered to undergo treatment under subsection A of this section, 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 believes the defendant's competency is restored, the director or his designee shall immediately send a report to the court as prescribed in subsection D of § 19.2-169.1 . The court shall make a ruling on the defendant's competency according to the procedures specified in subsection E of § 19.2-169.1 .
  3. The clerk of court shall certify and forward forthwith to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of an order for treatment issued pursuant to subsection A.

    (1982, c. 653; 2003, c. 735; 2007, c. 781; 2008, cc. 751, 788; 2009, cc. 813, 840; 2014, cc. 373, 408; 2017, c. 461; 2020, c. 937.)

The 2003 amendments. - The 2003 amendment by c. 735 inserted "including a juvenile transferred pursuant to § 16.1-269.1" near the beginning of the first sentence of subsection A.

The 2007 amendments. - The 2007 amendment by c. 781, in subsection A, inserted "to the director of the community services board or behavioral health authority or his designee or" and "inpatient" following "of the treating," and added "or his designee" to the end in the last sentence; and, in subsection B, substituted "community services board or behavioral health authority or his designee or the director of the treating inpatient facility or his designee" for "treatment facility."

The 2008 amendments. - The 2008 amendments by cc. 751 and 788 are identical and added subsection C.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in subsection A.

The 2014 amendments. - The 2014 amendments by cc. 373 and 408 are identical, and in subsection A inserted "psychiatric records and other information that have been deemed relevant and submitted by the attorney for the defendant pursuant to subsection C of § 19.2-169.1 and any" and "within 96 hours of the issuance of the court order requiring treatment to restore the defendant's competency. If the 96-hour period expires on a Saturday, Sunday, or other legal holiday, the 96 hours shall be extended to the next day that is not a Saturday, Sunday, or legal holiday."

The 2017 amendments. - The 2017 amendment by c. 461 inserted the second and third sentences.

The 2020 amendments. - The 2020 amendment by c. 937, added the second sentence in subsection A.

Law review. - For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

CASE NOTES

Inmates with serious mental health conditions. - Competency Order scheme presumes that inmates with serious mental health conditions are more likely to have their competency restored if they receive treatment at a state mental health hospital. But that does not mean that inmates with such conditions who remain in Virginia's prison system are per se subject to an excessive risk to inmate health or safety. Adams v. Ferguson, 884 F.3d 219, 2018 U.S. App. LEXIS 5656 (4th Cir. 2018).

Appellate jurisdiction. - Virginia Supreme Court had no jurisdiction to hear an appeal from the denial of a motion to dismiss a case in which defendant was found incompetent because a competency determination and an appeal from such a determination were criminal in nature, so any appeal had to first be brought to the Virginia Court of Appeals. Martinez v. Commonwealth, 296 Va. 387 , 821 S.E.2d 529, 2018 Va. LEXIS 176 (2018).

Applied in Burns v. Commonwealth, 279 Va. 243 , 688 S.E.2d 263, 2010 Va. LEXIS 19 (2010).

CIRCUIT COURT OPINIONS

Effect of evaluation request on speedy trial right. - Defendant's motion to dismiss an indictment charging him with murder on the ground that his right to a speedy trial under § 19.2-243 had been violated was denied because the speedy trial clock could not have resumed running based solely upon the issuance of a competency report, and until the circuit court determined the issue of defendant's competency, no trial could take place; it is the circuit court, not the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services, which determines a defendant's competency to stand trial. Commonwealth v. Brown,, 2009 Va. Cir. LEXIS 56 (Fairfax Aug. 10, 2009).

OPINIONS OF THE ATTORNEY GENERAL

Involuntary treatment of individuals in jail. - A local court in limited circumstances may issue an order under subsection A of this section or § 19.2-169.3 authorizing the superintendent of a regional jail to force an individual in custody to take prescribed medication for treatment of mental illness. Further, the court having jurisdiction over such individual's trial may enter such an order to restore competency pursuant to those provisions. Additionally, when a court previously has entered an order to restore competency, any court with jurisdiction may enter the order pursuant to § 37.2-1101 , as limited by § 37.2-1102(3) . See opinion of Attorney General to The Honorable William J. Howell, Speaker, House of Delegates, 07-006 (9/20/07).

§ 19.2-169.3. Disposition of the unrestorably incompetent defendant; aggravated murder charge; sexually violent offense charge.

  1. 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 .
  2. 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.
  3. 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.
  4. Unless an incompetent defendant is charged with 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.
  5. 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 .
  6. In any case when an incompetent defendant is charged with 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 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 aggravated murder shall be released except pursuant to a court order.
  7. The attorney for the Commonwealth may bring charges that have been dismissed against the defendant when he is restored to competency.

    (1982, c. 653; 1999, cc. 946, 985; 2003, cc. 915, 919, 989, cls. 4, 5, 1018, cls. 4, 5, 1042, cls. 10, 11; 2006, cc. 863, 914; 2007, cc. 781, 876; 2008, cc. 406, 796; 2009, cc. 813, 840; 2012, cc. 668, 800; 2019, c. 797; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 1999, cc. 946 and 985, cl. 3, as amended by Acts 2000, c. 1024, and Acts 2001, c. 776, cl. 3, had provided that the amendments by Acts 1999, cc. 946 and 985 would be effective July 1, 2003.

Acts 2002, c. 899, Items 49 C and 331 C 1, prior to amendment by Acts 2003, c. 1042, had provided: "The effective date of Chapters 946 and 985 of the 1999 Acts of Assembly, which establishes the civil commitment and treatment of sexual predators, is postponed to January 1, 2004."

Acts 2002, c. 899, and Acts 2003, c. 1042, in Item 49 E, provide: "E. The Attorney General shall review the decision of the U.S. Supreme Court in the case of Kansas v. Crane, decided on January 22, 2002, and determine what effect this decision may have on the implementation of Chapters 946 and 985 of the Acts of Assembly of 1999. The Attorney General shall make a report of his review, including any recommended changes to this legislation, to the Governor and the General Assembly by September 1, 2002."

Acts 2003, cc. 989 and 1018, cl. 3, provide: "That an emergency exists and this act is in force from its passage [April 2, 2003], notwithstanding the provisions of Items 49 C and 331 C1 of Chapter 899 of the Acts of Assembly of 2002."

Acts 2003, cc. 989 and 1018, cl. 4, provide: "That, notwithstanding the provisions of Items 49 C and 331 C1 of Chapter 899 of the Acts of Assembly of 2002, the provisions of Chapters 946 and 985, as they may be amended, of the Acts of Assembly of 1999 shall become effective on the effective date of this act [April 2, 2003.]"

Acts 2003, cc. 989 and 1018, cl. 5, provide: "That the third enactments of Chapter 946 and Chapter 985, as amended, of the Acts of Assembly of 1999 are amended and reenacted as follows:

"3. That the effective date of this act is the date of enactment of House Bill 1400, House Bill 2445 or Senate Bill 1149 of the 2003 General Assembly Session, whichever is the first to be enacted.

"3. That the effective date of this act is the date of enactment of House Bill 1400, House Bill 2445 or Senate Bill 1149 of the 2003 General Assembly Session, whichever is the first to be enacted."

Acts 2003, c. 1042, cls. 10 and 11, also amended cl. 3 of Acts 1999, cc. 946 and 985, in an identical fashion.

Acts 2002, c. 899, as amended by Acts 2003, c. 1042, in Items 59 C 1 and 331 C 1, provide that the provisions of Title 37.1, Chapter 2, Article 1.1 "shall be effective upon passage of House Bill 2445 of the 2003 General Assembly Session, Senate Bill 1149 of the 2003 General Assembly Session, or this act, whichever is first to be enacted." See also Acts 2002, c. 899, Item 421 H, as added by Acts 2003, c. 1042.

House Bill 2445 (Chapter 989) and Senate Bill 1149 (Chapter 1018) of the 2003 General Assembly were enacted on April 2, 2003, the date they were approved by the Governor.

Acts 2006, c. 914, cl. 5, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $2,419,496 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2012, cc. 668 and 800, cl. 2 provides: "That the Director, in coordination with the Department, shall develop protocols to assess whether the individual meets the definition of a sexually violent predator and shall report to the General Assembly on protocol objectives, design, methodology, statistical considerations, embedded assumptions, risk assessments, and organization of the full assessment process. All measures shall be consistent with evidenced-based best practices. The primary tool of the protocols shall be a risk assessment instrument and corresponding reference score designated by the Commissioner. The Director shall submit the report to the Governor and the General Assembly by January 1, 2013."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendments. - The 1999 amendments by cc. 946 and 985, effective April 2, 2003, are identical, and in subsection A, inserted "committed pursuant to § 37.1-70.9," and substituted "(iii) reviewed for commitment pursuant to § 37.1-70.6, or (iv)" for "or (iii)," substituted "unrestorably" for "unrestorable" in subsection C, and added subsection D.

The 2003 amendments. - The 2003 amendments by cc. 915 and 919 are identical, and substituted "Unless an incompetent defendant is charged with capital murder or the charges against an incompetent criminal defendant have been previously dismissed" for "If not dismissed without prejudice at an earlier time" at the beginning of subsection C; and added subsections E and F.

The 2006 amendments. - The 2006 amendments by cc. 863 and 914 are identical, and added "referral to Commitment Review Committee" to the end of the section heading; and in subsection A, substituted "Chapter 9 ( § 37.2-900 et seq.) of Title 37.2" for " § 37.2-908 " in the second sentence and "Chapter 9 ( § 37.2-900 et seq.) of Title 37.2" for " § 37.2-905 " in the fourth sentence; and in subsection D, in the first sentence, substituted " § 37.2-904 " for " § 37.2-905 " and "Commitment Review Committee established pursuant to § 37.2-902 " for "Attorney General" and inserted "Commitment Review Committee's and" in the second sentence.

The 2007 amendments. - The 2007 amendment by c. 781 inserted "or his designee" throughout; in subsection A, inserted "the director of the community services board or behavioral health authority" and "inpatient" following "director of the treating"; inserted "board, authority, or inpatient facility" in subsections A and B; and substituted "community services board, behavioral health authority, or treating inpatient facility" for "treating facility" in subsection D.

The 2007 amendment by c. 876, in subsection A, deleted "reviewed for commitment pursuant to Chapter 9 ( § 37.2-900 et seq.) of Title 37.2, or (iv)" following "(iii)," and inserted the second to last sentence.

The 2008 amendments. - The 2008 amendments by cc. 406 and 796 are nearly identical, and inserted subsection C and redesignated former subsections C through F as subsections D through G.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" twice in subsection E.

The 2012 amendments. - The 2012 amendment by c. 668, effective January 1, 2013, substituted "he shall be screened pursuant to the procedures set forth in §§ 37.2-903 and 37.2-904 " for "he shall be reviewed for commitment pursuant to Chapter 9 ( § 37.2-900 et seq.) of Title 37.2" at the end of the fifth sentence of subsection A, and substituted "provide the Director of the Department of Corrections with" for "provide the Commitment Review Committee established pursuant to § 37.2-902 with" in the first sentence of subsection E.

The 2012 amendment by c. 800, effective January 1, 2013, made the same amendments as c. 668 and in addition, substituted "screened pursuant to the procedures set forth in §§ 37.2-903 and 37.2-904 " for "reviewed for commitment pursuant to § 37.2-904 " in subsection E.

The 2019 amendments. - The 2019 amendment by c. 797 rewrote subsection F, which read: "In any case when an incompetent defendant is charged with capital murder notwithstanding any other provision of this section, the charge shall not be dismissed and the court having jurisdiction over the capital murder case may order that the defendant receive continued treatment under subsection A of § 19.2-169.2 for additional six-month periods without limitation provided that (i) a hearing pursuant to subsection E of § 19.2-169.1 is held at the completion of each such period, (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."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "aggravated murder" for "capital murder" in subsection D and twice in in subsection F.

Law review. - For note, "Law and Morality 'Unspeakable Justice': The Oswaldo Martinez Case and the Failure of the Legal System to Adequately Provide for Incompetent Defendants," see 48 Wm. & Mary L. Rev. 2075 (2007).

CASE NOTES

Jurisdiction. - State hospital director's request for a writ of prohibition seeking to prevent a circuit court from proceeding in a habeas matter was denied where the habeas petition complained of detention under another circuit court's finding as to subsection F of § 19.2-169.3 , not a detention pursuant to a conviction rendered by that court, the parties agreed that there was no need for determination of unrecorded matters related to any previous judicial proceeding, and thus, the statutory scheme governing habeas corpus jurisdiction did not prohibit the instant circuit court from hearing the petition. In re Vauter, 292 Va. 761 , 793 S.E.2d 793, 2016 Va. LEXIS 191 (2016).

Virginia Supreme Court had no jurisdiction to hear an appeal from the denial of a motion to dismiss a case in which defendant was found incompetent because a competency determination and an appeal from such a determination were criminal in nature, so any appeal had to first be brought to the Virginia Court of Appeals. Martinez v. Commonwealth, 296 Va. 387 , 821 S.E.2d 529, 2018 Va. LEXIS 176 (2018).

Liability for expenses when hospitalized under Title 37.2. - A person is liable for the expenses of his care, treatment, and maintenance when confined to a state hospital pursuant to Title 37.1 [now Title 37.2], even though he previously had been confined to the facility pursuant to former § 19.2-169 as a person charged with crime. Commonwealth, Dep't of Mental Health & Mental Retardation v. Jenkins, 224 Va. 456 , 297 S.E.2d 692 (1982).

Sufficiency of the evidence. - Evidence was sufficient to support the civil commitment of an inmate as a sexually violent predator because the inmate was incarcerated upon a conviction for a sexually violent offense, the inmate was clearly diagnosed with the mental abnormality of pedophilia by experts, and there was clear and convincing evidence that because of his mental abnormality the inmate found it difficult to control his predatory behavior, which made it likely that he would engage in sexually violent acts. Shivaee v. Commonwealth, 270 Va. 112 , 613 S.E.2d 570, 2005 Va. LEXIS 68, cert. denied, 546 U.S. 1005, 126 S. Ct. 626, 163 L. Ed. 2d 509 (2005).

CIRCUIT COURT OPINIONS

Second grand jury indictment following release from hospital permitted. - Defendant first indicted capital murder and robbery was found to be mentally incompetent and confined to a state hospital, accordingly the indictment was dismissed; however, later indictment for the same crimes obtained upon the defendant's release from the hospital could not be dismissed on the ground of the passage of time. Commonwealth v. Sink, 61 Va. Cir. 279, 2003 Va. Cir. LEXIS 18 (Portsmouth 2003).

OPINIONS OF THE ATTORNEY GENERAL

Involuntary treatment of individuals in jail. - A local court in limited circumstances may issue an order under subsection A of § 19.2-169.2 or this section authorizing the superintendent of a regional jail to force an individual in custody to take prescribed medication for treatment of mental illness. Further, the court having jurisdiction over such individual's trial may enter such an order to restore competency pursuant to those provisions. Additionally, when a court previously has entered an order to restore competency, any court with jurisdiction may enter the order pursuant to § 37.2-1101 , as limited by § 37.2-1102(3) . See opinion of Attorney General to The Honorable William J. Howell, Speaker, House of Delegates, 07-006 (9/20/07).

§ 19.2-169.3:1. Disposition of the unrestorably incompetent defendant; capital murder charge; inpatient custody of the Commissioner.

  1. When a defendant charged with capital murder has been determined to be unrestorably incompetent, pursuant to subsections D and F of § 19.2-169.3 , the court may commit such defendant to the inpatient custody of the Commissioner of the Department of Behavioral Health and Developmental Services under this section, provided that such defendant has remained unrestorably incompetent for a period of five years.
  2. After a capital murder defendant has been committed to the inpatient custody of the Commissioner of the Department of Behavioral Health and Developmental Services under subsection A, the Commissioner may make interfacility transfers and treatment and management decisions regarding such defendant after obtaining prior approval of or review by the committing court.
  3. The Commissioner of the Department of Behavioral Health and Developmental Services shall notify the committing court, the attorney for the Commonwealth in the committing jurisdiction, and the defendant's counsel in writing of recommended changes in a defendant's course of treatment that will involve authorization for the defendant to leave the grounds of the hospital in which he is confined. Upon receipt of such notice, the court shall hold a hearing to determine whether the recommendation of the Commissioner is authorized by the court.
  4. The Commissioner of the Department of Behavioral Health and Developmental Services may delegate any of the duties and powers imposed on or granted to him by this section to an administrative board composed of persons with demonstrated expertise in such matters. The Department of Behavioral Health and Developmental Services shall assist the board in its administrative and technical duties. Members of the board shall exercise their powers and duties without compensation and shall be immune from personal liability while acting within the scope of their duties except for intentional misconduct.
  5. Copies of all orders and notices issued pursuant to this chapter shall be sent to the Commissioner of the Department of Behavioral Health and Developmental Services.
  6. Nothing in this section shall alter the requirement that hearings be held pursuant to subsection F of § 19.2-169.3 . (2021, Sp. Sess. I, c. 312.)

Effective date. - This section is effective July 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 19.2-169.4. Litigating certain issues when the defendant is incompetent.

A finding of incompetency does not preclude the adjudication, at any time before trial, of a motion objecting to the sufficiency of the indictment, nor does it preclude the adjudication of similar legal objections which, in the court's opinion, may be undertaken without the personal participation of the defendant.

(1982, c. 653.)

§ 19.2-169.5. Evaluation of sanity at the time of the offense; disclosure of evaluation results.

  1. Raising issue of sanity at the time of offense; appointment of evaluators.

    If, at any time before trial, the court finds, upon hearing evidence or representations of counsel for the defendant, that there is probable cause to believe that the defendant's sanity will be a significant factor in his defense and that the defendant is financially unable to pay for expert assistance, the court shall appoint one or more qualified mental health experts to evaluate the defendant's sanity at the time of the offense and, where appropriate, to assist in the development of an insanity defense. Such mental health expert shall be a psychiatrist or a clinical psychologist who (i) has performed forensic examinations, (ii) has successfully completed forensic evaluation training recognized by the Commissioner of Behavioral Health and Developmental Services, (iii) has demonstrated to the Commissioner competence to perform forensic evaluations, and (iv) is included on a list of approved evaluators maintained by the Commissioner. The defendant shall not be entitled to a mental health expert of his own choosing or to funds to employ such expert.

  2. Location of evaluation. The evaluation shall be performed on an outpatient basis, at a mental health facility or in jail unless an outpatient evaluation has been conducted and the outpatient evaluator opines that a hospital-based evaluation is needed to reliably reach an opinion or unless the defendant is in the custody of the Commissioner of Behavioral Health and Developmental Services pursuant to § 19.2-169.2 , 19.2-169.6 , 19.2-182.2 , 19.2-182.3 , 19.2-182.8 , 19.2-182.9 , or Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2.
  3. Provision of information to evaluator.

    The court shall require the party making the motion for the evaluation, and such other parties as the court deems appropriate, to provide to the evaluators appointed under subsection A any information relevant to the evaluation, including, but not limited to (i) copy of the warrant or indictment; (ii) the names and addresses of the attorney for the Commonwealth, the attorney for the defendant and the judge who appointed the expert; (iii) information pertaining to the alleged crime, including statements by the defendant made to the police and transcripts of preliminary hearings, if any; (iv) a summary of the reasons for the evaluation request; (v) any available psychiatric, psychological, medical or social records that are deemed relevant; and (vi) a copy of the defendant's criminal record, to the extent reasonably available.

  4. The evaluators shall prepare a full report concerning the defendant's sanity at the time of the offense, including whether he may have had a significant mental disease or defect which rendered him insane at the time of the offense. The report shall be prepared within the time period designated by the court, said period to include the time necessary to obtain and evaluate the information specified in subsection C.
  5. Disclosure of evaluation results. The report described in subsection D shall be sent solely to the attorney for the defendant and shall be deemed to be protected by the lawyer-client privilege. However, the Commonwealth shall be given the report in all felony cases, the results of any other evaluation of the defendant's sanity at the time of the offense, and copies of psychiatric, psychological, medical, or other records obtained during the course of any such evaluation, after the attorney for the defendant gives notice of an intent to present psychiatric or psychological evidence pursuant to § 19.2-168 . In addition, in all cases, the evaluator shall send a redacted copy of the report removing references to the defendant's name, date of birth, case number, and court of jurisdiction to the Commissioner of Behavioral Health and Developmental Services for the purpose of peer review to establish and maintain the list of approved evaluators described in subsection A.
  6. In any case where the defendant obtains his own expert to evaluate the defendant's sanity at the time of the offense, the provisions of subsections D and E, relating to the disclosure of the evaluation results, shall apply.

    (1982, c. 653; 1986, c. 535; 1987, c. 439; 1996, cc. 937, 980; 2005, c. 428; 2009, cc. 813, 840; 2016, c. 445; 2018, c. 367.)

The 2005 amendments. - The 2005 amendment by c. 428 inserted "in all felony cases" in the second sentence of subsection E; added subsection F; and made a minor stylistic change.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in subsections A and B.

The 2016 amendments. - The 2016 amendment by c. 445, in subsection A, rewrote the second sentence, which read "Such mental health expert shall be (i) a psychiatrist, a clinical psychologist, or an individual with a doctorate degree in clinical psychology who has successfully completed forensic evaluation training as approved by the Commissioner of Behavioral Health and Developmental Services and (ii) qualified by specialized training and experience to perform forensic evaluations"; and in subsection E, added the last sentence.

The 2018 amendments. - The 2018 amendment by c. 367 rewrote subsection B, which read "The evaluation shall be performed on an outpatient basis, at a mental health facility or in jail, unless the court specifically finds that outpatient services are unavailable, or unless the results of the outpatient evaluation indicate that hospitalization of the defendant for further evaluation of his sanity at the time of the offense is necessary. If either finding is made, the court, under authority of this subsection, may order that the defendant be sent to a hospital designated by the Commissioner of Behavioral Health and Developmental Services as appropriate for evaluation of the defendant under criminal charge. The defendant shall be hospitalized for such time as the director of the hospital deems necessary to perform an adequate evaluation of the defendant's sanity at the time of the offense, but not to exceed 30 days from the date of admission to the hospital."

Law review. - For comment on the insanity defense in Virginia, see 17 U. Rich. L. Rev. 129 (1982).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

Michie's Jurisprudence. - For related discussion, see 6A M.J. Discovery, § 38.

Editor's note. - Many of the cases cited in the following annotations were decided under repealed §§ 19.2-169 and 19.2-170 .

CASE NOTES

Due process requires that State must provide adequate means by which accused can raise issue of insanity at the time of trial and at the commission of the alleged offense. Hodnett v. Slayton, 343 F. Supp. 1142 (W.D. Va. 1972), appeal dismissed, 471 F.2d 648 (4th Cir. 1973).

State must assure indigent defendant access to competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense when the defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial. Tuggle v. Commonwealth, 230 Va. 99 , 334 S.E.2d 838 (1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3309, 92 L. Ed. 2d 722 (1986).

Indigent entitled to psychiatrist in capital case on issue of future dangerousness. - When the prosecution in a capital sentencing proceeding presents psychiatric evidence of an indigent defendant's future dangerousness, due process requires that a state provide the defendant the assistance of a psychiatrist on the issue. Where the Commonwealth presented psychiatric evidence that defendant showed high probability of future dangerousness, even though defendant's trial and direct appeal predated in light of the trial court erred in denying his motion for an independent psychiatrist to rebut the Commonwealth's psychiatric evidence of future dangerousness. Tuggle v. Commonwealth, 230 Va. 99 , 334 S.E.2d 838 (1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3309, 92 L. Ed. 2d 722 (1986).

Ake v. Oklahoma to be applied prospectively. - The rule announced in Ake v. Oklahoma , 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) (that due process of law was denied where no psychiatrist was appointed to examine the defendant, to help him prepare his case, to serve as an expert witness for the defense, and to assist in the defense at trial) should be applied only to those cases tried subsequent to Feb. 26, 1985. Snurkowski v. Commonwealth, 2 Va. App. 532, 348 S.E.2d 1 (1986).

Examination by staff clinical psychologist and mental health professionals satisfied requirements. - The trial court correctly ruled that the examination and evaluation of defendant by a staff clinical psychologist and the mental health professionals at Central State Hospital satisfied the requirements of both subsection A and the due process requirements defined in Ake v. Oklahoma , 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). Funk v. Commonwealth, 8 Va. App. 91, 379 S.E.2d 371 (1989).

Before indigent defendant is entitled to psychiatric assistance, he must make a threshold showing to the trial court that this sanity is likely to be a significant factor in his defense. Tuggle v. Commonwealth, 230 Va. 99 , 334 S.E.2d 838 (1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3309, 92 L. Ed. 2d 722 (1986).

Right of defendant to raise defense of insanity at time of offense despite competency finding. - Even if the trial court determines that the accused has the capacity to stand trial, he is not precluded from, and must be given the opportunity of, raising a defense of insanity at the time of the commission of the offense. Graham v. Gathright, 345 F. Supp. 1148 (W.D. Va. 1972).

The trial court has the inherent power to require defendant to be examined by a psychiatric committee in order that his examiners might report their opinion as to his sanity at the time of his alleged crimes and testify to such opinion if called by the Commonwealth as rebuttal witnesses. Shifflett v. Commonwealth, 221 Va. 760 , 274 S.E.2d 305 (1981).

Commonwealth entitled to other sanity evaluations. - Subsection E of this section clearly provides that the Commonwealth is entitled not only to the report ordered under this section, but also to the results of any other evaluation of the defendant's sanity when notice is given by the defense pursuant to § 19.2-168 ; subsection E of this section cannot be read as applying only to the report ordered. Blevins v. Commonwealth, 11 Va. App. 429, 399 S.E.2d 173 (1990).

Disclosure of mental health records to the Commonwealth. - Psychiatric, psychological, medical, and other records produced by the mental health experts in the course of fulfilling their court-ordered responsibilities under § 19.2-169.5 are protected under that statute from being disclosed to the Commonwealth until the defendant gives notice pursuant to § 19.2-168 . Schwartz v. Commonwealth, 45 Va. App. 407, 611 S.E.2d 631, 2005 Va. App. LEXIS 156 (2005).

Trial court did not abuse its discretion in denying defendant access to a psychologist's testimony and notes and a county mental health center's notes regarding her father's alleged killer, a crime in which defendant was an alleged conspirator, as the Commonwealth would have had access to those documents if they were released to defendant. Schwartz v. Commonwealth, 45 Va. App. 407, 611 S.E.2d 631, 2005 Va. App. LEXIS 156 (2005).

Inquiry into competency to stand trial not limited. - Neither former § 19.2-169 nor former § 19.2-170 , though preceded by § 19.2-168 requiring notice of an insanity defense, contained any language expressly or impliedly limiting the committee's (now evaluators') inquiry to competency to stand trial, or forbidding it to go into the question of insanity at the time of the alleged offense. Shifflett v. Commonwealth, 221 Va. 760 , 274 S.E.2d 305 (1981).

Burden of proving insanity. - An accused is presumed to be sane at the trial and during the commission of the offense, and it is his burden to prove the contrary. Graham v. Gathright, 345 F. Supp. 1148 (W.D. Va. 1972).

The duty of carrying the burden of proving a defendant's insanity at the time of trial falls upon the petitioner's attorney to present the issue to the court when he has reasonable belief that his client's mental condition is of a nature which may render him incompetent to stand trial and which may also raise a question of his client's sanity at the time of the crime. Payne v. Slayton, 329 F. Supp. 886 (W.D. Va. 1971).

The burden of proof on the issue of insanity rests with the accused. Hodnett v. Slayton, 343 F. Supp. 1142 (W.D. Va. 1972), appeal dismissed, 471 F.2d 648 (4th Cir. 1973).

In Virginia, unlike the federal practice, the burden rests upon the accused to prove his mental incompetency. Timmons v. Peyton, 240 F. Supp. 749 (E.D. Va. 1965), rev'd on other grounds, 360 F.2d 327 (4th Cir.), cert. denied, 385 U.S. 960, 87 S. Ct. 396, 17 L. Ed. 2d 305 (1966).

Expert testimony. - Defendant's convictions for multiple counts of abduction and use of a firearm in the commission of a felony were appropriate because, even assuming that the side-switching doctrine applied, defendant failed to prove that he disclosed confidential or privileged information to the doctor. Thus, the trial court did not err by allowing the doctor to testify as an expert for the Commonwealth. Chappelle v. Commonwealth, 62 Va. App. 339, 746 S.E.2d 530, 2013 Va. App. LEXIS 235 (2013).

Motion in limine barring testimony of multiple mental health experts. - Trial court did not err by granting the Commonwealth's motion in limine barring the testimony of two mental health experts because defendant was provided the basic tools of an adequate defense. Defendant was appointed an expert witness who evaluated him and presented an opinion that he was insane at the time of the offenses for which he was being tried (malicious wounding, assault of a law-enforcement officer, and obstruction of justice), and non-expert evidence was also admitted for the jury to consider on the issue of defendant's sanity. Young v. Commonwealth, No. 0815-12-3, 2013 Va. App. LEXIS 316 (Nov. 5, 2013).

Ordering of examination not a finding of probable cause. - Where the court ordered the psychiatric examination solely because "this is a capital murder case," the court did not, merely by ordering the psychiatric examination pursuant to § 19.2-169.1 and this section, as a matter of law, find probable cause. Tuggle v. Commonwealth, 230 Va. 99 , 334 S.E.2d 838 (1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3309, 92 L. Ed. 2d 722 (1986).

Effective assistance of counsel. - If reasonable grounds exist for questioning the sanity or competency of a defendant and counsel fails to explore the matter, the defendant has been denied effective assistance of counsel. Wood v. Zahradnick, 430 F. Supp. 107 (E.D. Va. 1977), aff'd, 578 F.2d 980 (4th Cir. 1978).

Where the facts known or reasonably ascertainable by counsel prior to trial were sufficient to inject the issues of whether the defendant was incompetent to stand trial or whether he was not responsible for his acts in the case, counsel had an affirmative obligation to make suitable inquiry to determine whether these defenses could be advanced. Counsel's failure to do so rendered his assistance ineffective within the meaning of the sixth amendment. Wood v. Zahradnick, 430 F. Supp. 107 (E.D. Va. 1977), aff'd, 578 F.2d 980 (4th Cir. 1978).

The defense attorney's failure to explore the mental condition of his client deprived his client of his right to effective assistance of counsel where the trial was certain to result in his conviction unless an insanity defense prevailed and where the circumstances suggested such a defense. Wood v. Zahradnick, 578 F.2d 980 (4th Cir. 1978).

Consideration of insanity in federal habeas proceedings. - While the provisions of former §§ 19.2-169 and 19.2-170 were discretionary, the failure of the trial court to exercise such discretion, while reviewable on direct appeal in the event of a clear abuse of judicial discretion, did not preclude the accused from proving his lack of mental capacity under his plea of not guilty, and the jury could find the accused not guilty by reason of insanity. The trial court, in exercising its discretion by denying the motion to commit, conducted a hearing on the reasonable necessity of such commitment for observation and report. Any error of the state court in evaluating the issue of mental competency would not go to jurisdiction; it is only the denial of the opportunity to tender the issue of insanity which affords the right to present the issue of insanity in habeas corpus proceedings. Owsley v. Cunningham, 190 F. Supp. 608 (E.D. Va. 1961).

CIRCUIT COURT OPINIONS

Defendant entitled to additional examination and testing. - Indigent defendant was entitled to a neurological examination and testing and reexamination of his competency to stand trial and sanity at the time of the offense because he showed a particularized need for the additional testing when the doctor who initially examined him testified that the additional tests would allow him to provide a more definitive opinion. Commonwealth v. Mallory, 97 Va. Cir. 113, 2012 Va. Cir. LEXIS 206 (Hanover County Dec. 20, 2012).

§ 19.2-169.6. Inpatient psychiatric hospital admission from local correctional facility.

  1. Any inmate of a local correctional facility may be hospitalized for psychiatric treatment at a hospital designated by the Commissioner of Behavioral Health and Developmental Services as appropriate for treatment of persons under criminal charge if:
    1. The court with jurisdiction over the inmate's case, if it is still pending, on the petition of the person having custody over an inmate or on its own motion, holds a hearing at which the inmate is represented by counsel and finds by clear and convincing evidence that (i) the inmate has a mental illness; (ii) there exists a substantial likelihood that, as a result of a mental illness, the inmate will, in the near future, (a) cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and any other relevant information or (b) suffer serious harm due to his lack of capacity to protect himself from harm as evidenced by recent behavior and any other relevant information; and (iii) the inmate requires treatment in a hospital rather than the local correctional facility. Prior to making this determination, the court shall consider the examination conducted in accordance with § 37.2-815 and the preadmission screening report prepared in accordance with § 37.2-816 and conducted in-person or by means of a two-way electronic video and audio communication system as authorized in § 37.2-804.1 by an employee or designee of the local community services board or behavioral health authority who is skilled in the assessment and treatment of mental illness, who is not providing treatment to the inmate, and who has completed a certification program approved by the Department of Behavioral Health and Developmental Services as provided in § 37.2-809 . The examiner appointed pursuant to § 37.2-815 , if not physically present at the hearing, shall be available whenever possible for questioning during the hearing through a two-way electronic video and audio or telephonic communication system as authorized in § 37.2-804.1 . Any employee or designee of the local community services board or behavioral health authority, as defined in § 37.2-809 , representing the board or authority that prepared the preadmission screening report shall attend the hearing in person or, if physical attendance is not practicable, shall participate in the hearing through a two-way electronic video and audio communication system as authorized in § 37.2-804.1. When the hearing is held outside the service area of the community services board or behavioral health authority that prepared the preadmission screening report, and it is not practicable for a representative of the board or authority to attend or participate in the hearing, arrangements shall be made by the board or authority for an employee or designee of the board or authority serving the area in which the hearing is held to attend or participate on behalf of the board or authority that prepared the preadmission screening report; or
    2. Upon petition by the person having custody over an inmate, a magistrate finds probable cause to believe that (i) the inmate has a mental illness; (ii) there exists a substantial likelihood that, as a result of a mental illness, the inmate will, in the near future, (a) cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and any other relevant information or (b) suffer serious harm due to his lack of capacity to protect himself from harm as evidenced by recent behavior and any other relevant information; and (iii) the inmate requires treatment in a hospital rather than a local correctional facility, and the magistrate issues a temporary detention order for the inmate. Prior to the filing of the petition, the person having custody shall arrange for an evaluation of the inmate conducted in-person or by means of a two-way electronic video and audio communication system as authorized in § 37.2-804.1 by an employee or designee of the local community services board or behavioral health authority who is skilled in the assessment and treatment of mental illness and who has completed a certification program approved by the Department as provided in § 37.2-809. After considering the evaluation of the employee or designee of the local community services board or behavioral health authority, and any other information presented, and finding that probable cause exists to meet the criteria, the magistrate may issue a temporary detention order in accordance with the applicable procedures specified in §§ 37.2-809 through 37.2-813 . A temporary detention order issued pursuant to this subdivision may be executed by a deputy sheriff or jail officer, as those terms are defined in § 53.1-1 , employed at the local correctional facility where the inmate is incarcerated. The person having custody over the inmate shall notify the court having jurisdiction over the inmate's case, if it is still pending, and the inmate's attorney prior to the detention pursuant to a temporary detention order or as soon thereafter as is reasonable. Upon detention pursuant to this subdivision, a hearing shall be held either before the court having jurisdiction over the inmate's case or before a district court judge or a special justice, as defined in § 37.2-100 , in accordance with the provisions of §§ 37.2-815 through 37.2-821 , in which case the inmate shall be represented by counsel as specified in § 37.2-814 . The hearing shall be held within 72 hours of execution of the temporary detention order issued pursuant to this subdivision. If the 72-hour period terminates on a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed, the inmate may be detained until the close of business on the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed. Any employee or designee of the local community services board or behavioral health authority, as defined in § 37.2-809, representing the board or authority that prepared the preadmission screening report shall attend the hearing in person or, if physical attendance is not practicable, shall participate in the hearing through a two-way electronic video and audio communication system as authorized in § 37.2-804.1. When the hearing is held outside the service area of the community services board or behavioral health authority that prepared the preadmission screening report, and it is not practicable for a representative of the board or authority to attend or participate in the hearing, arrangements shall be made by the board or authority for an employee or designee of the board or authority serving the area in which the hearing is held to attend or participate on behalf of the board or authority that prepared the preadmission screening report. The judge or special justice conducting the hearing may order the inmate hospitalized if, after considering the examination conducted in accordance with § 37.2-815, the preadmission screening report prepared in accordance with § 37.2-816 , and any other available information as specified in subsection C of § 37.2-817 , he finds by clear and convincing evidence that (1) the inmate has a mental illness; (2) there exists a substantial likelihood that, as a result of a mental illness, the inmate will, in the near future, (a) cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and any other relevant information or (b) suffer serious harm due to his lack of capacity to protect himself from harm as evidenced by recent behavior and any other relevant information; and (3) the inmate requires treatment in a hospital rather than a local correctional facility. The examiner appointed pursuant to § 37.2-815, if not physically present at the hearing, shall be available whenever possible for questioning during the hearing through a two-way electronic video and audio or telephonic communication system as authorized in § 37.2-804.1. The examination and the preadmission screening report shall be admitted into evidence at the hearing.
  2. In no event shall an inmate have the right to make application for voluntary admission as may be otherwise provided in § 37.2-805 or 37.2-814 or be subject to an order for mandatory outpatient treatment as provided in § 37.2-817 .
  3. If an inmate is hospitalized pursuant to this section and his criminal case is still pending, the court having jurisdiction over the inmate's case may order that the admitting hospital evaluate the inmate's competency to stand trial and his mental state at the time of the offense pursuant to §§ 19.2-169.1 and 19.2-169.5 .
  4. An inmate may not be hospitalized longer than 30 days under subsection A unless the court which has criminal jurisdiction over him or a district court judge or a special justice, as defined in § 37.2-100 , holds a hearing and orders the inmate's continued hospitalization in accordance with the provisions of subdivision A 2. If the inmate's hospitalization is continued under this subsection by a court other than the court which has jurisdiction over his criminal case, the facility at which the inmate is hospitalized shall notify the court with jurisdiction over his criminal case and the inmate's attorney in the criminal case, if the case is still pending.
  5. Hospitalization may be extended in accordance with subsection D for periods of 60 days for inmates awaiting trial, but in no event may such hospitalization be continued beyond trial, nor shall such hospitalization act to delay trial, as long as the inmate remains competent to stand trial. Hospitalization may be extended in accordance with subsection D for periods of 180 days for an inmate who has been convicted and not yet sentenced, or for an inmate who has been convicted of a crime and is in the custody of a local correctional facility after sentencing, but in no event may such hospitalization be continued beyond the date upon which his sentence would have expired had he received the maximum sentence for the crime charged. Any inmate who has not completed service of his sentence upon discharge from the hospital shall serve the remainder of his sentence.
  6. For any inmate who has been convicted and not yet sentenced, or who has been convicted of a crime and is in the custody of a local correctional facility after sentencing, the time the inmate is confined in a hospital for psychiatric treatment shall be deducted from any term for which he may be sentenced to any penal institution, reformatory or elsewhere.
  7. Any health care provider, as defined in § 32.1-127.1:03 , or other provider rendering services to an inmate who is the subject of a proceeding under this section, upon request, shall disclose to a magistrate, the court, the inmate's attorney, the inmate's guardian ad litem, the examiner appointed pursuant to § 37.2-815 , the community service board or behavioral health authority preparing the preadmission screening pursuant to § 37.2-816 , or the sheriff or administrator of the local correctional facility any and all information that is necessary and appropriate to enable each of them to perform his duties under this section. These health care providers and other service providers shall disclose to one another health records and information where necessary to provide care and treatment to the inmate and to monitor that care and treatment. Health records disclosed to a sheriff or administrator of the local correctional facility shall be limited to information necessary to protect the sheriff or administrator of the local correctional facility and his employees, the inmate, or the public from physical injury or to address the health care needs of the inmate. Information disclosed to a law-enforcement officer shall not be used for any other purpose, disclosed to others, or retained. Any health care provider disclosing records pursuant to this section shall be immune from civil liability for any harm resulting from the disclosure, including any liability under the federal Health Insurance Portability and Accountability Act (42 U.S.C. § 1320d et seq.), as amended, unless the person or provider disclosing such records intended the harm or acted in bad faith.
  8. Any order entered where an inmate is the subject of proceedings under this section shall provide for the disclosure of medical records pursuant to subsection G. This subsection shall not preclude any other disclosures as required or permitted by law.
  9. If the person having custody over an inmate files a petition pursuant to this section, such person shall ensure that the appropriate community services board or behavioral health authority is advised of the need for a preadmission screening. If the community services board or behavioral health authority does not respond upon being advised of the need for a preadmission screening or fails to complete the preadmission screening, the person having custody over the inmate shall contact the director or other senior management at the community services board or behavioral health authority.
  10. As used in this section, "person having custody over an inmate" means the sheriff or other person in charge of the local correctional facility where the inmate is incarcerated at the time of the filing of a petition for the psychiatric treatment of the inmate.

    (1982, c. 653; 1986, c. 629; 1987, c. 96; 1990, c. 76; 1995, c. 844; 2005, c. 716; 2008, cc. 779, 782, 850, 870; 2010, cc. 340, 406; 2012, c. 801; 2014, cc. 499, 538, 691; 2016, cc. 357, 599; 2017, cc. 463, 468, 605; 2018, c. 144.)

Editor's note. - Acts 2014, c. 390, cl. 1, repealed Acts 2012, c. 801, cl. 2, which had provided that the provisions of the act would expire on July 1, 2014.

The 2005 amendments. - The 2005 amendment by c. 716, effective October 1, 2005, throughout the section, substituted "has mental illness" for "is mentally ill," and inserted "district court" preceding "judge," and "or a special justice" preceding "as defined in" and updated references to recodified title 37.2; in subdivision A 2, inserted "order" preceding "for treatment," deleted "order of" preceding "detention," in the paragraph following subdivision A 2, substituted "a" for "an order for," and inserted "order" preceding "issued pursuant to"; in subsection B, substituted "for a mental illness" for "as mentally ill," inserted "being" preceding "imminently dangerous," and deleted "either" preceding clause (i); and in subsection C, deleted "be" preceding clause (i), substituted "have a mental illness" for "mentally ill," and inserted "be" at the beginning of clause (ii); and made minor stylistic changes.

The 2008 amendments. - The 2008 amendment by c. 779 substituted "and that there exists a substantial likelihood that, as a result of mental illness, the defendant will, in the near future, cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any" for "and is imminently dangerous to himself or others" in clause (ii) in subdivision A 1, in clause (i) in subdivision A 2 and in clause (i) in subsection C; moved the clause (i) designator to follow "the defendant" in subdivision A 2; substituted "and the continued substantial likelihood that, as a result of mental illness, the defendant will, in the near future, cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening such harm and other relevant information, if any, and" for "and being imminently dangerous" in subsection B; in subsection C, inserted "and that there continues to exist a substantial likelihood that, as a result of mental illness, the defendant will, in the near future, cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any" at the end of clause (i); deleted former clause (ii), which read: "be immently dangerous to self or others"; redesignated former clause (iii) as clause (ii); and made a minor stylistic change.

The 2008 amendment by c. 782 added subsections D and E.

The 2008 amendments by cc. 850 and 870 are identical and rewrote the section.

The 2010 amendments. - The 2010 amendments by cc. 340 and 406 are nearly identical, and rewrote the section.

The 2012 amendments. - The 2012 amendment by c. 801, in the first sentence of subdivision A 1, inserted the A 1 (ii) (a) designation, substituted "or" for "if any" at the end of A 1 (ii) (a), and inserted A 1 (ii) (b); in the first sentence of subdivision A 2, inserted the A 2 (ii) (a) designation, substituted "or" for "if any" at the end of A 2 (ii) (a), and inserted A 2 (ii) (b); in the last paragraph of subsection A, in the first sentence, deleted the (a) designation following "held either", and deleted the (b) designation following "inmate's case or", and in the sixth sentence, inserted the (2) (a) designation, and substituted "any other relevant information or (b) suffer serious harm due to his lack of capacity to protect himself from harm as evidenced by recent behavior and any other relevant information" for "other relevant information, if any."

The 2014 amendments. - The 2014 amendments by cc. 499, 538, and 691 are identical and, in the last paragraph of subsection A, substituted "72" for "48" twice.

The 2016 amendments. - The 2016 amendments by cc. 357 and 599 are identical, and added subsection I.

The 2017 amendments. - The 2017 amendment by c. 463 inserted subsection I, and redesignated former subsection I as subsection J.

The 2017 amendments by cc. 468 and 605 are identical, and deleted "who is not subject to the provisions of § 19.2-169.2 " following "local correctional facility" in subsection A.

The 2018 amendments. - The 2018 amendment by c. 144 inserted the fourth sentence in the first paragraph of subdivision A 2.

Research References. - Virginia Forms (Matthew Bender). No. 9-2005. Order for Treatment of Inmate. No. 9-2021. Order for Emergency Hospital Treatment Pending Trial. No. 9-2026. Temporary Detention Order--Judge.

§ 19.2-169.7. Disclosure by defendant during evaluation or treatment; use at guilt phase of trial.

No statement or disclosure by the defendant concerning the alleged offense made during a competency evaluation ordered pursuant to § 19.2-169.1 , a mental state at the time of the offense evaluation ordered pursuant to § 19.2-169.5 , or treatment ordered pursuant to § 19.2-169.2 or § 19.2-169.6 may be used against the defendant at trial as evidence or as a basis for such evidence, except on the issue of his mental condition at the time of the offense after he raises the issue pursuant to § 19.2-168 .

(1982, c. 653.)

Law review. - For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For an article, "An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases," see 86 Va. L. Rev. 1199 (2000).

Michie's Jurisprudence. - For related discussion, see 9A M.J. Habeas Corpus, § 8.

CASE NOTES

Applicability. - This section explicitly refers to statements "concerning the alleged offense"; it does not bar irrelevant or highly prejudicial statements. Thus, in view of defendant's concession that the questions did not directly relate to the offense and in the absence of a record of the trial judge's ruling, which is presumed to be correct, the court had no basis to resolve this issue in her favor. Zelenak v. Commonwealth, 23 Va. App. 259, 475 S.E.2d 853 (1996), aff'd on reh'g en banc, 25 Va. App. 295, 487 S.E.2d 873 (1997).

Where defendant admitted that the cross-examination questions concerning her abuse by her family did not relate directly to the offense, they were properly admissible. Zelenak v. Commonwealth, 25 Va. App. 295, 487 S.E.2d 873 (1997).

§ 19.2-169.8. Orders for evaluation or treatment; duties of clerk; copies.

  1. Whenever a court orders an evaluation pursuant to § 19.2-168.1 , 19.2-169.1 , or 19.2-169.5 or orders treatment pursuant to § 19.2-169.2 or 19.2-169.6 , the clerk of the court shall provide a copy of the order to the appointed evaluator or to the director of the community services board, behavioral health authority, or hospital named in the order as soon as practicable but no later than the close of business on the next business day following entry of the order. The party requesting the evaluation pursuant to § 19.2-168.1 , 19.2-169.1 , or 19.2-169.5 , the attorney for the Commonwealth if treatment is ordered pursuant to § 19.2-169.2 , or the petitioner if treatment is ordered pursuant to § 19.2-169.6 shall be responsible for providing to the court the name, address, and other contact information for the appointed evaluator or the director of the community services board, behavioral health authority, or hospital unless the court or clerk already has this information. The appointed evaluator or the director of the community services board, behavioral health authority, or hospital shall acknowledge receipt of the order to the clerk of the court on a form developed by the Office of the Executive Secretary of the Supreme Court of Virginia as soon as practicable but no later than the close of business on the next business day following receipt of the order.
  2. No person shall be liable for any act or omission relating to the performance of any requirement set forth in subsection A unless the person was grossly negligent or engaged in willful misconduct.

    (2016, cc. 446, 449.)

§§ 19.2-170 through 19.2-174.

Repealed by Acts 1982, c. 653.

Cross references. - For present provisions covering the subject matter of the repealed sections, see §§ 19.2-168.1 and 19.2-169.1 through 19.2-169.7 .

§ 19.2-174.1. Information required prior to admission to a mental health facility.

Prior to any person being placed into the custody of the Commissioner for evaluation or treatment pursuant to §§ 19.2-169.2 , 19.2-169.3 , 19.2-169.6 , 19.2-182.2 , and 19.2-182.3 , and Chapter 9 (§ 37.2-900 et seq.) of Title 37.2, the court or special justice shall provide the Commissioner with the following, if available: (i) the commitment order, (ii) the names and addresses for the attorney for the Commonwealth, the attorney for the person and the judge holding jurisdiction over the person, (iii) a copy of the warrant or indictment, and (iv) a copy of the criminal incident information as defined in § 2.2-3706.1 or a copy of the arrest report or a summary of the facts relating to the crime. The party requesting the placement into the Commissioner's custody or, in the case of admissions pursuant to §§ 19.2-169.3 and 19.2-169.6 , and Chapter 9 (§ 37.2-900 et seq.) of Title 37.2, the person having custody over the defendant or inmate shall gather the above information for submission to the court at the hearing. If the information is not available at the hearing, it shall be provided by the party requesting placement or the person having custody directly to the Commissioner within 96 hours of the person being placed into the Commissioner's custody. If the 96-hour period expires on a Saturday, Sunday or legal holiday, the 96 hours shall be extended to the next day that is not a Saturday, Sunday or legal holiday.

(1995, c. 645; 1999, cc. 946, 985; 2001, c. 837; 2003, c. 989, cls. 4, 5, 1018, cls. 4, 5, 1042, cls. 10, 11; 2010, cc. 340, 406; 2021, Sp. Sess. I, c. 483.)

Editor's note. - Acts 1999, cc. 946 and 985, cl. 3, as amended by Acts 2000, c. 1024, and Acts 2001, c. 776, cl. 3, had provided that the amendments by Acts 1999, cc. 946 and 985 would be effective July 1, 2003.

Acts 2002, c. 899, Items 49 C and 331 C 1, prior to amendment by Acts 2002, c. 1042, had provided: "The effective date of Chapters 946 and 985 of the 1999 Acts of Assembly, which establishes the civil commitment and treatment of sexual predators, is postponed to January 1, 2004."

Acts 2002, c. 899, and Acts 2003, c. 1042, in Item 49 E, provides: "E. The Attorney General shall review the decision of the U.S. Supreme Court in the case of Kansas v. Crane, decided on January 22, 2002, and determine what effect this decision may have on the implementation of Chapters 946 and 985 of the Acts of Assembly of 1999. The Attorney General shall make a report of his review, including any recommended changes to this legislation, to the Governor and the General Assembly by September 1, 2002."

Acts 2003, cc. 989 and 1018, cl. 3, provide: "That an emergency exists and this act is in force from its passage [April 2, 2003], notwithstanding the provisions of Items 49 C and 331 C1 of Chapter 899 of the Acts of Assembly of 2002."

Acts 2003, cc. 989 and 1018, cl. 4, provide: "That, notwithstanding the provisions of Items 49 C and 331 C1 of Chapter 899 of the Acts of Assembly of 2002, the provisions of Chapters 946 and 985, as they may be amended, of the Acts of Assembly of 1999 shall become effective on the effective date of this act [April 2, 2003.]"

Acts 2003, cc. 989 and 1018, cl. 5, provide: "That the third enactments of Chapter 946 and Chapter 985, as amended, of the Acts of Assembly of 1999 are amended and reenacted as follows:

"3. That the effective date of this act is the date of enactment of House Bill 1400, House Bill 2445 or Senate Bill 1149 of the 2003 General Assembly Session, whichever is the first to be enacted.

"3. That the effective date of this act is the date of enactment of House Bill 1400, House Bill 2445 or Senate Bill 1149 of the 2003 General Assembly Session, whichever is the first to be enacted."

Acts 2003, c. 1042, cls. 10 and 11 also amended cls. 3 of Acts 1999, cc. 946 and 985, in an identical fashion.

Acts 2002, c. 899, as amended by Acts 2003, c. 1042, in Items 49 C 1 and 331 C 1, provide that the provisions of Title 37.1, Chapter 2, Article 1.1 "shall be effective upon passage of House Bill 2445 of the 2003 General Assembly Session, Senate Bill 1149 of the 2003 General Assembly Session, or this act, whichever is first to be enacted." See also Acts 2002, c. 899, Item 421 H, as added by Acts 2003, c. 1042.

House Bill 2445 (Chapter 989) and Senate Bill 1149 (Chapter 1018) of the 2003 General Assembly were enacted on April 2, 2003, the date they were approved by the Governor.

The 1999 amendments. - The 1999 amendments by cc. 946 and 985, effective April 2, 2003, are identical, and in the first sentence, inserted "19.2-169.6," and inserted "and Article 1.1 (37.1-70.1 et seq.) of Chapter 2 of Title 37.1," in the second sentence, inserted "19.2-169.3," and inserted "and Article 1.1 (37.1-70.1 et seq.) of Chapter 2 of Title 37.1."

The 2001 amendments. - The 2001 amendment by c. 837, effective April 2, 2003, added the last sentence.

The 2003 amendments. - Acts 2003, cc. 989 and 1018, cls. 4 and 5, and Acts 2003, c. 1042, cls. 10 and 11, changed the effective date of the 1999 amendments to April 2, 2003. See Editor's note.

The 2010 amendments. - The 2010 amendments by cc. 340 and 406 are identical, and deleted "19.2-176, 19.2-177.1 " following "19.2-169.6" in the first sentence; in the second sentence, deleted "19.2-176, and 19.2-177.1 " following "19.2-169.6" and inserted "or inmate"; and made minor stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 483, effective July 1, 2021, substituted " § 2.2-3706.1 " for " § 2.2-3706 " in clause (iv).

§ 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 , 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 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 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 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.

(Code 1950, § 19.1-233; 1960, c. 366; 1968, c. 657; 1970, c. 640; 1975, c. 495; 1976, c. 140; 1978, cc. 195, 794; 1979, c. 516; 1982, c. 653; 1986, c. 535; 1990, c. 697; 1995, c. 645; 2003, cc. 1031, 1040; 2006, cc. 114, 170; 2007, c. 829; 2009, cc. 813, 840; 2010, cc. 340, 406; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2001, c. 480, which would have amended this section by substituting "$800" for "$400" in the third sentence, provided in cl. 2, "That the provisions of this act shall not become effective unless an appropriation effectuating the purposes of this act is included in the 2001 Appropriation Act, passed during the 2001 Session of the General Assembly and signed into law by the Governor." Such an appropriation was not made.

Acts 2003, cc. 1031 and 1040, cl. 3, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2003 amendments. - The 2003 amendments by c. 1031, effective April 29, 2003, and by c. 1040, effective May 1, 2003, are identical, and inserted "19.2-264.3:3" in the first sentence.

The 2006 amendments. - The 2006 amendments by cc. 114 and 170 are identical, and inserted "Commonwealth University" in the first sentence and inserted the second sentence.

The 2007 amendments. - The 2007 amendment by c. 829, substituted "$750" for "$400" in the fourth sentence.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in the third sentence; and made a minor stylistic change in the first sentence.

The 2010 amendments. - The 2010 amendments by cc. 340 and 406 are identical, and in the first sentence, deleted "subsection A of § 19.2-176 " following "19.2-169.5" and made a minor stylistic change.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and in the first sentence, deleted "19.2-261.3:1, 19.2-264.3:3" preceding "or 19.2-301 ," substituted "Virginia Commonwealth University School of Medicine" for "Medical College of Virginia Commonwealth University" twice; and substituted "aggravated murder cases pursuant to § 18.2-31 " for "capital murder cases" in the second sentence.

Law review. - For comment on the insanity defense in Virginia, see 17 U. Rich. L. Rev. 129 (1982).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

§ 19.2-176.

Repealed by Acts 2010, cc. 340 and 406, cl. 2.

Editor's note. - Former § 19.2-176 , authorizing evaluation for determination of insanity after conviction but before sentence, was derived from Code 1950, § 19.1-234; 1960, c. 366; 1964, c. 231; 1966, c. 715; 1972, c. 295; 1975, c. 495; 1982, c. 653; 1986, c. 629; 1990, c. 76; 2008, cc. 779, 850, 870.

§ 19.2-177.

Repealed by Acts 1988, cc. 787, 873.

§ 19.2-177.1.

Repealed by Acts 2010, cc. 340 and 406, cl. 2.

Editor's note. - Former § 19.2-177.1 , relating to determination of mental illness after sentencing, was enacted by Acts 1988, c. 787, and amended by Acts 1995, c. 844; 2005, c. 716; 2008, cc. 779, 850, 870.

§ 19.2-178. Where prisoner kept when no vacancy in facility or hospital.

When a court shall have entered any of the orders provided for in § 19.2-168.1 , 19.2-169.1 , 19.2-169.5 , or 19.2-169.6 , the sheriff of the county or city or the proper officer of the penal institution shall immediately proceed to ascertain whether a vacancy exists at the proper facility or hospital and until it is ascertained that there is a vacancy such person shall be kept in the jail of such county or city or in such custody as the court may order, or in the penal institution in which he is confined, until there is room in such facility or hospital. Any person whose care and custody is herein provided for shall be taken to and from the facility or hospital to which he was committed by an officer of the penal institution having custody of him, or by the sheriff of the county or city whose court issued the order of commitment, and the expenses incurred in such removals shall be paid by such penal institution, county or city.

(Code 1950, § 19.1-236; 1960, c. 366; 1975, c. 495; 1995, c. 645; 2010, cc. 340, 406.)

The 2010 amendments. - The 2010 amendments by cc. 340 and 406 are identical, and in the first sentence, deleted "19.2-176, or § 19.2-177.1 ," and made minor stylistic changes.

§ 19.2-179.

Repealed by Acts 1981, c. 310.

§ 19.2-180. Sentence or trial of prisoner when restored to sanity.

When a prisoner whose trial or sentence was suspended by reason of his being found to be insane or feebleminded, has been found to be mentally competent and is brought from a hospital and committed to jail, if already convicted, he shall be sentenced, and if not, the court shall proceed to try him as if no delay had occurred on account of his insanity or feeblemindedness.

(Code 1950, § 19.1-238; 1960, c. 366; 1975, c. 495.)

§ 19.2-181.

Repealed by Acts 1991, c. 427.

Cross references. - For provisions pertaining to disposition of persons acquitted by reason of insanity, see § 19.2-182.2 et seq.

§ 19.2-182. Representation by counsel in proceeding for commitment.

  1. In any proceeding for commitment under this title, the judge before whom or upon whose order the proceeding is being held shall ascertain if the person whose commitment is sought is represented by counsel. If the person is not represented by counsel, the judge shall appoint an attorney at law to represent him in the proceeding. The attorney shall receive a fee of $150 for his services, to be paid by the Commonwealth.
  2. Any attorney representing any person in any proceeding for commitment under this title shall, prior to such proceeding, personally consult with such person.

    (Code 1950, § 19.1-239.1; 1966, c. 715; 1975, c. 495; 1991, c. 427; 2016, c. 474.)

The 2016 amendments. - The 2016 amendment by c. 474 substituted "$150" for "twenty-five dollars."

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 24, 41.

§ 19.2-182.1.

Repealed by Acts 1982, c. 653.

Chapter 11.1. Disposition of Persons Acquitted by Reason of Insanity.

Sec.

§ 19.2-182.2. Verdict of acquittal by reason of insanity to state the fact; temporary custody and evaluation.

When the defense is insanity of the defendant at the time the offense was committed, the jurors shall be instructed, if they acquit him on that ground, to state the fact with their verdict. The court shall place the person so acquitted (the acquittee) in temporary custody of the Commissioner of Behavioral Health and Developmental Services (hereinafter referred to in this chapter as the Commissioner) for evaluation as to whether the acquittee may be released with or without conditions or requires commitment. The court may authorize that the evaluation be conducted on an outpatient basis. If the court authorizes an outpatient evaluation, the Commissioner shall determine, on the basis of all information available, whether the evaluation shall be conducted on an outpatient basis or whether the acquittee shall be confined in a hospital for evaluation. If the court does not authorize an outpatient evaluation, the acquittee shall be confined in a hospital for evaluation. If an acquittee who is being evaluated on an outpatient basis fails to comply with such evaluation, the Commissioner shall petition the court for an order to confine the acquittee in a hospital for evaluation. A copy of the petition shall be sent to the acquittee's attorney and the attorney for the Commonwealth. The evaluation shall be conducted by (i) one psychiatrist and (ii) one clinical psychologist. The psychiatrist or clinical psychologist shall be skilled in the diagnosis of mental illness and intellectual disability and qualified by training and experience to perform such evaluations. The Commissioner shall appoint both evaluators. In the case of an acquittee confined in a hospital, at least one of the evaluators shall not be employed by the hospital in which the acquittee is primarily confined. The evaluators shall determine whether the acquittee currently has mental illness or intellectual disability and shall assess the acquittee and report on his condition and need for hospitalization with respect to the factors set forth in § 19.2-182.3 . The evaluators shall conduct their examinations and report their findings separately within 45 days of the Commissioner's assumption of custody. Copies of the report shall be sent to the acquittee's attorney, the attorney for the Commonwealth for the jurisdiction where the person was acquitted and the community services board or behavioral health authority as designated by the Commissioner. If either evaluator recommends conditional release or release without conditions of the acquittee, the court shall extend the evaluation period to permit (a) the Department of Behavioral Health and Developmental Services and (b) the appropriate community services board or behavioral health authority to jointly prepare a conditional release or discharge plan, as applicable, prior to the hearing.

(1991, c. 427; 1993, c. 295; 1996, cc. 937, 980; 2007, cc. 485, 565; 2009, cc. 813, 840; 2012, cc. 476, 507; 2018, c. 16.)

The 2007 amendments. - The 2007 amendments by cc. 485 and 565 are identical, and substituted "or behavioral health authority as designated by the Commissioner" for "serving the locality where the acquittee was acquitted" at the end of the next-to-last sentence and inserted "or behavioral health authority" following "community services board" in the last sentence.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Commissioner of Behavioral Health and Developmental Services" for "Commissioner of Mental Health, Mental Retardation and Substance Abuse Services" in the second sentence and "currently has mental illness or mental retardation" for "is currently mentally ill or mentally retarded" in the sixth sentence; and made minor stylistic changes throughout the section.

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and substituted "intellectual disability" for "mental retardation" twice, and made a minor stylistic change.

The 2018 amendments. - The 2018 amendment by c. 16 inserted the third through seventh sentences, substituted "evaluators. In the case of an acquittee confined in a hospital, at least one of the evaluators" for "evaluators, at least one of whom" in the tenth sentence, and in the last sentence, substituted "(a) the Department of Behavioral Health and Developmental Services and (b)" for "the hospital in which the acquittee is confined and."

Law review. - For an article, "The Confusion of Cause and Reasons in Forensic Psychology: Deconstructing Mens Rea and Other Mental Events," see 33 U. Rich. L. Rev. 107 (1999).

Research References. - Virginia Forms (Matthew Bender). No. 9-2324. Motion to Withdraw Guilty Plea (Change to Insanity Plea).

Editor's note. - The cases annotated below were decided under prior law.

CASE NOTES

Court of appeals had no jurisdiction of appeal from commitment order. - The court of appeals had no jurisdiction of an appeal from a commitment order under subsection (1) of former § 19.2-181 ; an examination of former § 17-116.05 (see now § 17.1-405 ) revealed no proceeding remotely resembling the proceeding at issue. Antzes v. Commonwealth, 13 Va. App. 172, 409 S.E.2d 172 (1991) (decided under prior law).

Court of appeals had no jurisdiction of an appeal from a subsection (1) of former § 19.2-181 commitment order, as none has been conferred by the legislature; if the hearing held under subsection (1) of former § 19.2-181 was criminal in nature, the court of appeals had no jurisdiction, as there had been no final conviction of a crime from which to appeal (see § 17-116.05:1 (i) [see now § 17.1-406 ]); furthermore, conferral of jurisdiction on the court of appeals by subsection (5) of former § 19.2-181 did not apply to a commitment proceeding under subsection (1) of former § 19.2-181. Antzes v. Commonwealth, 13 Va. App. 172, 409 S.E.2d 172 (1991) (decided under prior law).

Administrative procedures under this section not proper as jury instructions. - The detailed administrative procedures to be followed by the court and the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services [now the Commissioner of Behavioral Health and Developmental Services] under this section when a defendant is acquitted by reason of insanity are directed to the court and are not the concern of the jury and thus are not proper as jury instructions. Spruill v. Commonwealth, 221 Va. 475 , 271 S.E.2d 419 (1980).

Trial court properly refused to instruct jury on the consequences of a verdict of not guilty by reason of insanity although defendant argued that the jury should have been told that, pursuant to a finding of not guilty by reason of insanity, defendant would not be set free but instead would be committed to the custody of state mental health authorities. As interpreted by the Virginia Supreme Court, the language in the statute that details these consequences specifically directs itself to the attention of the court. Furthermore, the court of appeals presumed that the jury conscientiously followed the explicit cautionary instruction. Miller v. Commonwealth, 15 Va. App. 301, 422 S.E.2d 795 (1992), aff'd, 246 Va. 336 , 437 S.E.2d 411 (1993) (decided under former § 19.2-181 ).

Informing jury of consequences of acquittal by reason of insanity. - Due process under the United States and Virginia Constitutions did not require that the jury be informed during the guilt phase that an acquittal by reason of insanity would not entitle defendant to be released and could result in his commitment to a mental health facility. Such information would encourage an acquittal irrespective of the evidence. Holmes v. Commonwealth, No. 0905-07-3, 2008 Va. App. LEXIS 515 (Nov. 25, 2008).

Commitment procedures for insanity acquittees distinguished from that for other persons. - Virginia's scheme for the commitment of insanity acquittees is different in a number of respects from its scheme for the commitment of persons other than insanity acquittees. A person other than an insanity acquittee may be committed only if the factfinder determines that there is clear and convincing evidence that the person is insane and dangerous; he is given the right to a jury trial at the precommitment stage; he is automatically released after 180 days and if the State wishes to confine him for a longer period, it must initiate a fresh commitment proceeding every 180 days; and, finally, before the 180-day period has run, he has an unlimited right to seek release. Harris v. Ballone, 681 F.2d 225 (4th Cir. 1982).

Differences in standards for incarceration constitutional. - It is not a denial of due process for a person who has committed a criminal act to be incarcerated as long as he is considered dangerous. This aspect of Virginia's scheme does not deny equal protection because a different standard (i.e., insane and dangerous) is used for persons other than insanity acquittees. The fact that an insanity acquittee has already been shown beyond a reasonable doubt to have committed at least one dangerous act justifies the distinction Virginia has drawn. Harris v. Ballone, 681 F.2d 225 (4th Cir. 1982).

Person may not be incarcerated solely because he is insane (at least in the absence of any showing that an involuntary confinement is necessary to ensure his own survival or safety or to alleviate or cure his illness). Harris v. Ballone, 681 F.2d 225 (4th Cir. 1982).

Hearing rights of insanity acquittees generally. - While the Code of Virginia does not explicitly guarantee to insanity acquittees the right to receive advance notice of hearings, to present evidence, and to cross-examine experts, neither does it explicitly deny them. Harris v. Ballone, 681 F.2d 225 (4th Cir. 1982).

Denial of jury trial and automatic release constitutional. - The denial of a jury trial at the precommitment stage and the denial of automatic release after 180 days are clearly not unconstitutional as denying due process, nor equal protection of the laws. The fact that an insanity acquittee has already been shown beyond a reasonable doubt to have committed at least one dangerous act provides a rational basis for the distinctions drawn by the General Assembly. Harris v. Ballone, 681 F.2d 225 (4th Cir. 1982).

Standard of proof under former section held constitutional. - The requirement of subsection (3) of former section 19.2-181 that the judge be "satisfied" that the insanity acquittee qualified for commitment invoked at least the preponderance-of-the-evidence standard, and the use of that standard was constitutionally permissible. Harris v. Ballone, 681 F.2d 225 (4th Cir. 1982).

Although clear-and-convincing standard used for other committees. - The clear-and-convincing-evidence standard is required for the commitment of persons other than insanity acquittees, but the situation of an insanity acquittee is distinguishable because an insanity acquittee has already been shown beyond a reasonable doubt to have committed at least one dangerous act. Harris v. Ballone, 681 F.2d 225 (4th Cir. 1982).

One-per-year restriction does not deny equal protection. - That no similar restriction is imposed on committed persons other than insanity acquittees does not make the rule limiting applications for discharge to one-per-year unconstitutional under the equal protection clause. The obvious rationale for this restriction is to encourage the patient who has demonstrated dangerousness to cooperate with the treating physicians in curing his ills, and the General Assembly could rationally have distinguished between insanity acquittees and other committed persons in evaluating the wisdom of imposing such a restriction. Harris v. Ballone, 681 F.2d 225 (4th Cir. 1982).

Nor due process. - The force of the argument that the one-per-year restriction on applications for a release order denies due process because it creates the possibility that an insanity acquittee will remain committed for almost a year after the justification for his commitment has ceased to exist is substantially diluted by the fact that the hospital where the insanity acquittee is committed is free to apply for his release as often as it wishes. Harris v. Ballone, 681 F.2d 225 (4th Cir. 1982).

Burden of proof. - Both in habeas corpus proceedings and other statutory proceedings for the release of a person committed to a mental institution after his acquittal of a criminal offense on the ground of insanity, the burden of proving eligibility for release rests on the petitioner. Blalock v. Markley, 207 Va. 1003 , 154 S.E.2d 158 (1967).

Where language of the statute improperly placed upon insanity acquittee the burden of proving, even if she was not insane, that she was not dangerous, it violated protections of the Due Process Clause. Williams v. Commonwealth, 18 Va. App. 384, 444 S.E.2d 16 (1994) (decided under former § 19.2-181 ).

Applied in Eastlack v. Commonwealth, 282 Va. 120 , 710 S.E.2d 723, 2011 Va. LEXIS 126 (2011).

§ 19.2-182.3. Commitment; civil proceedings.

Upon receipt of the evaluation report and, if applicable, a conditional release or discharge plan, the court shall schedule the matter for hearing on an expedited basis, giving the matter priority over other civil matters before the court, to determine the appropriate disposition of the acquittee. Except as otherwise ordered by the court, the attorney who represented the defendant at the criminal proceedings shall represent the acquittee through the proceedings pursuant to this section. The matter may be continued on motion of either party for good cause shown. The acquittee shall be provided with adequate notice of the hearing, of the right to be present at the hearing, the right to the assistance of counsel in preparation for and during the hearing, and the right to introduce evidence and cross-examine witnesses at the hearing. The hearing is a civil proceeding.

At the conclusion of the hearing, the court shall commit the acquittee if it finds that he has mental illness or intellectual disability and is in need of inpatient hospitalization. For the purposes of this chapter, mental illness includes any mental illness, as defined in § 37.2-100 , in a state of remission when the illness may, with reasonable probability, become active. The decision of the court shall be based upon consideration of the following factors:

  1. To what extent the acquittee has mental illness or intellectual disability, as those terms are defined in § 37.2-100 ;
  2. The likelihood that the acquittee will engage in conduct presenting a substantial risk of bodily harm to other persons or to himself in the foreseeable future;
  3. The likelihood that the acquittee can be adequately controlled with supervision and treatment on an outpatient basis; and
  4. Such other factors as the court deems relevant. If the court determines that an acquittee does not need inpatient hospitalization solely because of treatment or habilitation he is currently receiving, but the court is not persuaded that the acquittee will continue to receive such treatment or habilitation, it may commit him for inpatient hospitalization. The court shall order the acquittee released with conditions pursuant to §§ 19.2-182.7 , 19.2-182.8 , and 19.2-182.9 if it finds that he is not in need of inpatient hospitalization but that he meets the criteria for conditional release set forth in § 19.2-182.7 . If the court finds that the acquittee does not need inpatient hospitalization nor does he meet the criteria for conditional release, it shall release him without conditions, provided the court has approved a discharge plan prepared by the appropriate community services board or behavioral health authority in consultation with the appropriate hospital staff. The court shall order that any person acquitted by reason of insanity and committed pursuant to this section who is sentenced to a term of incarceration for any other offense in the same proceeding or in any proceeding conducted prior to the proceeding in which the person is acquitted by reason of insanity complete any sentence imposed for such other offense prior to being placed in the custody of the Commissioner of Behavioral Health and Developmental Services until released from commitment pursuant to this chapter. The court shall order that any person acquitted by reason of insanity and committed pursuant to this section who is sentenced to a term of incarceration in any proceeding conducted during the period of commitment be transferred to the custody of the correctional facility where he is to serve his sentence, and, upon completion of his sentence, such person shall be placed in the custody of the Commissioner of Behavioral Health and Developmental Services until released from commitment pursuant to this chapter. (1991, c. 427; 1993, c. 295; 2005, c. 716; 2012, cc. 476, 507; 2018, c. 768.)

The 2005 amendments. - The 2005 amendment by c. 716, effective October 1, 2005, in the second paragraph, substituted "has mental illness" for "is mental ill" two times, "mental retardation" for "mentally retarded" two times, and "37.2-100" for "37.1-1" two times, and inserted "is" preceding "in need of inpatient hospitalization"; and in the last paragraph, deleted "jointly" following "discharge plan prepared," and "the hospital staff and" preceding "the appropriate community" and inserted "or behavioral health authority in consultation with the appropriate hospital staff" at the end of the last sentence.

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and substituted "intellectual disability" for "mental retardation" in the second paragraph and in subdivision 1; and in the last paragraph, substituted " §§ 19.2-182.7 , 19.2-182.8 , and 19.2-182.9 " for " §§ 19.2-182.7 through 19.2-182.9 " in the second sentence.

The 2018 amendments. - The 2018 amendment by c. 768 added the last paragraph.

CASE NOTES

Mental illness. - The term "mental illness" in this section is not limited solely to the definition of "mentally ill" in § 37.1-1 [see now § 37.2-100 ]. Mercer v. Commonwealth, 259 Va. 235 , 523 S.E.2d 213 (2000).

Continued commitment does not establish nature of an individual's particular condition. - It is simply not the case that a person committed to a mental hospital in Virginia must remain insane throughout the duration of his commitment. Given the specific provisions of § 19.2-182.3 , the mere fact of continued commitment does not establish the nature or characteristics of the individual's particular condition, much less his ability to understand and appreciate the requirements of state and federal habeas litigation. Farabee v. Johnson,, 2005 U.S. App. LEXIS 7030 (4th Cir. Apr. 22, 2005).

Inpatient hospitalization appropriate. - Trial court properly required defendant's commitment to inpatient hospitalization after she was found not guilty of arson by reason of insanity, as it properly evaluated each of the four statutory factors and determined the appropriate treatment for her. Bates v. Commonwealth, 287 Va. 58 , 752 S.E.2d 846, 2014 Va. LEXIS 1 (2014).

Applied in Eastlack v. Commonwealth, 282 Va. 120 , 710 S.E.2d 723, 2011 Va. LEXIS 126 (2011).

CIRCUIT COURT OPINIONS

Risk of future dangerousness. - Statute regarding the review of a continuation of confinement hearing does not violate the Due Process Clause because it requires that an evaluation of an acquittee for commitment must take into account the acquittee's risk of future dangerousness, as well as finding that he is mentally ill. Commonwealth v. Belete, 101 Va. Cir. 142, 2019 Va. Cir. LEXIS 21 (Fairfax County Feb. 5, 2019).

§ 19.2-182.4. Confinement and treatment; interfacility transfers; out-of-hospital visits; notice of change in treatment.

  1. Upon commitment of an acquittee for inpatient hospitalization, the Commissioner shall determine the appropriate placement for him, based on his clinical needs and security requirements. The Commissioner may make interfacility transfers and treatment and management decisions regarding acquittees in his custody without obtaining prior approval of or review by the committing court. If the Commissioner is of the opinion that a temporary visit from the hospital would be therapeutic for the acquittee and that such visit would pose no substantial danger to others, the Commissioner may grant such visit not to exceed forty-eight hours.
  2. The Commissioner shall give notice of the granting of an unescorted community visit to any victim of a felony offense against the person punishable by more than five years in prison that resulted in the charges on which the acquittee was acquitted or the next-of-kin of the victim at the last known address, provided the person seeking notice submits a written request for such notice to the Commissioner.
  3. The Commissioner shall notify the attorney for the Commonwealth for the committing jurisdiction in writing of changes in an acquittee's course of treatment which will involve authorization for the acquittee to leave the grounds of the hospital in which he is confined.

    (1991, c. 427; 1993, c. 295; 2006, c. 358.)

The 2006 amendments. - The 2006 amendment by c. 358 inserted the subsection A and C designations and added subsection B.

§ 19.2-182.5. Review of continuation of confinement hearing; procedure and reports; disposition.

  1. The committing court shall conduct a hearing twelve months after the date of commitment to assess the need for inpatient hospitalization of each acquittee who is acquitted of a felony by reason of insanity. A hearing for assessment shall be conducted at yearly intervals for five years and at biennial intervals thereafter. The court shall schedule the matter for hearing as soon as possible after it becomes due, giving the matter priority over all pending matters before the court.
  2. Prior to the hearing, the Commissioner shall provide to the court a report evaluating the acquittee's condition and recommending treatment, to be prepared by a psychiatrist or a psychologist. The psychologist who prepares the report shall be a clinical psychologist and any evaluating psychiatrist or clinical psychologist shall be skilled in the diagnosis of mental illness and qualified by training and experience to perform forensic evaluations. If the examiner recommends release or the acquittee requests release, the acquittee's condition and need for inpatient hospitalization shall be evaluated by a second person with such credentials who is not currently treating the acquittee. A copy of any report submitted pursuant to this subsection shall be sent to the attorney for the Commonwealth for the jurisdiction from which the acquittee was committed.
  3. The acquittee shall be provided with adequate notice of the hearing, of the right to be present at the hearing, the right to the assistance of counsel in preparation for and during the hearing, and the right to introduce evidence and cross-examine witnesses at the hearing. Written notice of the hearing shall be provided to the attorney for the Commonwealth for the committing jurisdiction. The hearing is a civil proceeding and may be conducted using a two-way electronic video and audio communication system that meets the standards set forth in subsection B of § 19.2-3.1 , unless objected to by the acquittee, the acquittee's attorney, or the attorney for the Commonwealth. According to the determination of the court following the hearing, and based upon the report and other evidence provided at the hearing, the court shall (i) release the acquittee from confinement if he does not need inpatient hospitalization and does not meet the criteria for conditional release set forth in § 19.2-182.7 , provided the court has approved a discharge plan prepared jointly by the hospital staff and the appropriate community services board or behavioral health authority; (ii) place the acquittee on conditional release if he meets the criteria for conditional release, and the court has approved a conditional release plan prepared jointly by the hospital staff and the appropriate community services board or behavioral health authority; or (iii) order that he remain in the custody of the Commissioner if he continues to require inpatient hospitalization based on consideration of the factors set forth in § 19.2-182.3 .
  4. An acquittee who is found not guilty of a misdemeanor by reason of insanity on or after July 1, 2002, shall remain in the custody of the Commissioner pursuant to this chapter for a period not to exceed one year from the date of acquittal. If, prior to or at the conclusion of one year, the Commissioner determines that the acquittee meets the criteria for conditional release or release without conditions pursuant to § 19.2-182.7 , emergency custody pursuant to § 37.2-808 , temporary detention pursuant to §§ 37.2-809 to 37.2-813 , or involuntary commitment pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, he shall petition the committing court. Written notice of an acquittee's scheduled release shall be provided by the Commissioner to the attorney for the Commonwealth for the committing jurisdiction not less than thirty days prior to the scheduled release. The Commissioner's duty to file a petition upon such determination shall not preclude the ability of any other person meeting the requirements of § 37.2-808 to file the petition. (1991, c. 427; 1993, c. 295; 1996, cc. 937, 980; 2002, c. 750; 2007, cc. 485, 565; 2020, c. 96.)

Editor's note. - Acts 2002, c. 750, cl. 2, provides: "That, on or before October 1, 2002, the Commissioner shall implement the provisions of this act for misdemeanor acquittees who are in the custody of the Commissioner on the effective date of this act."

The 2002 amendments. - The 2002 amendment by c. 750, in the first sentence of subsection A, substituted "the need" for "each confined acquittee's need," and added "of each acquittee who is acquitted of a felony by reason of insanity" at the end; and added subsection D.

The 2007 amendments. - The 2007 amendments by cc. 485 and 565 are identical, and inserted "or behavioral health authority" following "community services board" in clauses (i) and (ii) of the last paragraph in subsection C.

The 2020 amendments. - The 2020 amendment by c. 96, added "and may be conducted using a two-way electronic video and audio communication system that meets the standards set forth in subsection B of § 19.2-3.1 , unless objected to by the acquittee, the acquittee's attorney, or the attorney for the Commonwealth" in the first paragraph of subsection C.

CASE NOTES

Confinement not limited in duration. - The provisions of the Code dealing with the disposition of persons acquitted by reason of insanity do not limit the length of time that an acquittee can be confined for inpatient treatment, and it is conceivable that an acquittee could be confined for inpatient treatment for many years or for the remainder of his life, if the acquittee continues to be mentally ill and in need of inpatient treatment. Commonwealth v. Chatman, 260 Va. 562 , 538 S.E.2d 304, 2000 Va. LEXIS 131 (2000).

Continued confinement after mental health review hearings. - Under § 19.2-182.5 , a prisoner was not unlawfully confined for 11 years, after being found not guilty by reason of insanity, because at each of his mental health review hearings, the prisoner had been found to be mentally ill and unsuitable for release and his commitment had been renewed; thus, he was no longer confined on the original commitment, and instead, was confined under the most recent decision that his confinement should be continued. McKinney v. Kilgore,, 2005 U.S. Dist. LEXIS 8384 (W.D. Va. Apr. 29, 2005).

Applied in Eastlack v. Commonwealth, 282 Va. 120 , 710 S.E.2d 723, 2011 Va. LEXIS 126 (2011).

CIRCUIT COURT OPINIONS

Showing of mental illness and future dangerousness. - Acquittee's motion to strike was denied as this statute did not violate the Due Process Clause; and the Commonwealth showed a current mental illness and future dangerousness as the acquittee relapsed into illegal drug use and nonadherence to his medication regimen while on conditional release, which resulted in the deterioration of his mental state and in acts of aggression and violence, and the psychologists were concerned that, if he did not remain in inpatient hospitalization, he was at a high risk of discontinuing his medication regimen that would lead to an event that would necessitate re-admittance to in-patient hospitalization. Commonwealth v. Belete, 101 Va. Cir. 142, 2019 Va. Cir. LEXIS 21 (Fairfax County Feb. 5, 2019).

Due process not violated. - This statute does not violate the Due Process Clause because it requires that an evaluation of an acquittee for commitment must take into account the acquittee's risk of future dangerousness, as well as finding that he is mentally ill. Commonwealth v. Belete, 101 Va. Cir. 142, 2019 Va. Cir. LEXIS 21 (Fairfax County Feb. 5, 2019).

§ 19.2-182.6. Petition for release; conditional release hearing; notice; disposition.

  1. The Commissioner may petition the committing court for conditional or unconditional release of the acquittee at any time he believes the acquittee no longer needs hospitalization. The petition shall be accompanied by a report of clinical findings supporting the petition with respect to the factors set forth in § 19.2-182.3 and by a conditional release or discharge plan, as applicable, prepared jointly by the hospital and the appropriate community services board or behavioral health authority. The acquittee may petition the committing court for release only once in each year in which no annual judicial review is required pursuant to § 19.2-182.5 . The party petitioning for release shall transmit a copy of the petition to the attorney for the Commonwealth for the committing jurisdiction.
    1. When a petition for release is made by the acquittee, the court shall order the Commissioner to appoint two persons in the same manner as set forth in § 19.2-182.2 to assess and report on the acquittee's need for inpatient hospitalization by reviewing his condition with respect to the factors set forth in § 19.2-182.3 . The evaluators shall conduct their evaluations and report their finding in accordance with the provisions of § 19.2-182.2 , except that the evaluations shall be completed and findings reported within 45 days of issuance of the court's order for evaluation. B. 1.  When a petition for release is made by the acquittee, the court shall order the Commissioner to appoint two persons in the same manner as set forth in § 19.2-182.2 to assess and report on the acquittee's need for inpatient hospitalization by reviewing his condition with respect to the factors set forth in § 19.2-182.3 . The evaluators shall conduct their evaluations and report their finding in accordance with the provisions of § 19.2-182.2 , except that the evaluations shall be completed and findings reported within 45 days of issuance of the court's order for evaluation.
    2. When a petition for release is made by the Commissioner no further evaluations of the acquittee shall be required unless otherwise deemed necessary by the court. If the court determines that further evaluation is necessary, the court shall order the Commissioner to appoint two persons in the same manner as set forth in § 19.2-182.2 to assess and report on the acquittee's need for inpatient hospitalization by reviewing his condition with respect to the factors set forth in § 19.2-182.3. The evaluators shall conduct their evaluations and report their finding in accordance with the provisions of § 19.2-182.2, except that the evaluations shall be completed and findings reported within 45 days of issuance of the court's order for evaluation. The Commissioner shall give notice of the hearing to any victim of the act resulting in the charges on which the acquittee was acquitted or the next of kin of the victim at the last known address, provided the person submits a written request for such notification to the Commissioner.
  2. Upon receipt of the reports of evaluation, the court shall conduct a hearing on the petition. The hearing shall be scheduled on an expedited basis and given priority over other civil matters before the court. The acquittee shall be provided with adequate notice of the hearing, of the right to be present at the hearing, the right to the assistance of counsel in preparation for and during the hearing, and the right to introduce evidence and cross-examine witnesses. Written notice of the hearing shall be provided to the attorney for the Commonwealth for the committing jurisdiction. The hearing is a civil proceeding. At the conclusion of the hearing, based upon the report and other evidence provided at the hearing, the court shall order the acquittee (i) released from confinement if he does not need inpatient hospitalization and does not meet the criteria for conditional release set forth in § 19.2-182.3 , provided the court has approved a discharge plan prepared jointly by the hospital and the appropriate community services board or behavioral health authority; (ii) placed on conditional release if he meets the criteria for such release as set forth in § 19.2-182.7 , and the court has approved a conditional release plan prepared jointly by the hospital and the appropriate community services board or behavioral health authority; or (iii) retained in the custody of the Commissioner if he continues to require inpatient hospitalization based on consideration of the factors set forth in § 19.2-182.3 .
  3. Persons committed pursuant to this chapter shall be released only in accordance with the procedures set forth governing release and conditional release.

    (1991, c. 427; 1993, c. 295; 2007, cc. 485, 565, 785.)

The 2007 amendments. - The 2007 amendments by cc. 485 and 565 are identical, and inserted "or behavioral health authority" following "community services board" at the end of the second sentence in subsection A and at the end of clauses (i) and (ii) in the last paragraph of subsection C.

The 2007 amendment by c. 785 inserted "with respect to the factors set forth in § 19.2-182.3 " in subsection A; inserted the subdivision designators, substituted "When a petition for release is made by the acquittee" for "Upon receipt of a petition for release" in subdivision B 1; added subdivision B 2 and made related changes.

§ 19.2-182.7. Conditional release; criteria; conditions; reports.

At any time the court considers the acquittee's need for inpatient hospitalization pursuant to this chapter, it shall place the acquittee on conditional release if it finds that (i) based on consideration of the factors which the court must consider in its commitment decision, he does not need inpatient hospitalization but needs outpatient treatment or monitoring to prevent his condition from deteriorating to a degree that he would need inpatient hospitalization; (ii) appropriate outpatient supervision and treatment are reasonably available; (iii) there is significant reason to believe that the acquittee, if conditionally released, would comply with the conditions specified; and (iv) conditional release will not present an undue risk to public safety. The court shall subject a conditionally released acquittee to such orders and conditions it deems will best meet the acquittee's need for treatment and supervision and best serve the interests of justice and society.

The community services board or behavioral health authority as designated by the Commissioner shall implement the court's conditional release orders and shall submit written reports to the court on the acquittee's progress and adjustment in the community no less frequently than every six months. An acquittee's conditional release shall not be revoked solely because of his voluntary admission to a state hospital.

After a finding by the court that the acquittee has violated the conditions of his release but does not require inpatient hospitalization pursuant to § 19.2-182.8 , the court may hold the acquittee in contempt of court for violation of the conditional release order.

(1991, c. 427; 1999, cc. 700, 746; 2007, cc. 485, 565; 2008, c. 810.)

The 1999 amendments. - The 1999 amendments by cc. 700 and 746 are identical, and added the third paragraph.

The 2007 amendments. - The 2007 amendments by cc. 485 and 565 are identical, and substituted "or behavioral health authority as designated by the Commissioner" for "serving the locality in which the acquittee will reside upon release" in the second paragraph.

The 2008 amendments. - The 2008 amendment by c. 810 added the last sentence to the second paragraph.

CASE NOTES

Inpatient hospitalization appropriate. - Trial court properly applied the four statutory factors in making its determination regarding inpatient hospitalization for defendant because it completed a thorough evaluation of the supervision and treatment options and concluded that defendant's circumstances failed to satisfy each of the elements required for conditional release. Bates v. Commonwealth, 287 Va. 58 , 752 S.E.2d 846, 2014 Va. LEXIS 1 (2014).

Circuit court's duty. - Supreme Court of Virginia holds that a circuit court has a statutory duty to assign orders and conditions for an acquittee's treatment and supervision only when each statutory element is met and the acquittee is eligible for conditional release; the circuit court does not have an affirmative duty to locate an alternative residence that might make an otherwise unacceptable conditional release plan acceptable. Bates v. Commonwealth, 287 Va. 58 , 752 S.E.2d 846, 2014 Va. LEXIS 1 (2014).

§ 19.2-182.8. Revocation of conditional release.

If at any time the court that released an acquittee pursuant to § 19.2-182.7 finds reasonable ground to believe that an acquittee on conditional release (i) has violated the conditions of his release or is no longer a proper subject for conditional release based on application of the criteria for conditional release and (ii) requires inpatient hospitalization, it may order an evaluation of the acquittee by a psychiatrist or clinical psychologist, provided the psychiatrist or clinical psychologist is qualified by training and experience to perform forensic evaluations. If the court, based on the evaluation and after hearing evidence on the issue, finds by a preponderance of the evidence that an acquittee on conditional release (a) has violated the conditions of his release or is no longer a proper subject for conditional release based on application of the criteria for conditional release and (b) has mental illness or intellectual disability and requires inpatient hospitalization, the court may revoke the acquittee's conditional release and order him returned to the custody of the Commissioner.

At any hearing pursuant to this section, the acquittee shall be provided with adequate notice of the hearing, of the right to be present at the hearing, the right to the assistance of counsel in preparation for and during the hearing, and the right to introduce evidence and cross-examine witnesses at the hearing. The hearing shall be scheduled on an expedited basis and shall be given priority over other civil matters before the court. Written notice of the hearing shall be provided to the attorney for the Commonwealth for the committing jurisdiction. The hearing is a civil proceeding.

(1991, c. 427; 1993, c. 295; 1996, cc. 937, 980; 2006, cc. 343, 369, 370; 2008, c. 810; 2012, cc. 476, 507.)

The 2006 amendments. - The 2006 amendments by cc. 343 and 370 are identical, and added the last sentence in the first paragraph.

The 2006 amendment by c. 369 inserted the second sentence in the last paragraph.

The 2008 amendments. - The 2008 amendment by c. 810 deleted the last sentence of the first paragraph, which read: "An acquittee's conditional release shall not be revoked solely because of his voluntary hospital admission."

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and substituted in the second sentence of the first paragraph, substituted the clause (a) designator for the former clause (i) designator and "(b) has mental illness or intellectual disability" for "(ii) is mentally ill or mentally retarded."

Applied in Eastlack v. Commonwealth, 282 Va. 120 , 710 S.E.2d 723, 2011 Va. LEXIS 126 (2011).

§ 19.2-182.9. Emergency custody of conditionally released acquittee.

When exigent circumstances do not permit compliance with revocation procedures set forth in § 19.2-182.8 , any district court judge or a special justice, as defined in § 37.2-100 , or a magistrate may issue an emergency custody order, upon the sworn petition of any responsible person or upon his own motion based upon probable cause to believe that an acquittee on conditional release (i) has violated the conditions of his release or is no longer a proper subject for conditional release and (ii) requires inpatient hospitalization. The emergency custody order shall require the acquittee within his judicial district to be taken into custody and transported to a convenient location where a person designated by the community services board or behavioral health authority who is skilled in the diagnosis and treatment of mental illness shall evaluate such acquittee and assess his need for inpatient hospitalization. A law-enforcement officer who, based on his observation or the reliable reports of others, has probable cause to believe that any acquittee on conditional release has violated the conditions of his release and is no longer a proper subject for conditional release and requires emergency evaluation to assess the need for inpatient hospitalization, may take the acquittee into custody and transport him to an appropriate location to assess the need for hospitalization without prior judicial authorization. The evaluation shall be conducted immediately. The acquittee shall remain in custody until a temporary detention order is issued or until he is released, but in no event shall the period of custody exceed eight hours. If it appears from all evidence readily available (a) that the acquittee has violated the conditions of his release or is no longer a proper subject for conditional release and (b) that he requires emergency evaluation to assess the need for inpatient hospitalization, the district court judge or a special justice, as defined in § 37.2-100 , or magistrate, upon the advice of such person skilled in the diagnosis and treatment of mental illness, may issue a temporary detention order authorizing the executing officer to place the acquittee in an appropriate institution for a period not to exceed 72 hours prior to a hearing. If the 72-hour period terminates on a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed, the acquittee may be detained until the next day which is not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed.

The committing court or any district court judge or a special justice, as defined in § 37.2-100 , shall have jurisdiction to hear the matter. Prior to the hearing, the acquittee shall be examined by a psychiatrist or licensed clinical psychologist, provided the psychiatrist or clinical psychologist is skilled in the diagnosis of mental illness, who shall certify whether the person is in need of hospitalization. At the hearing the acquittee shall be provided with adequate notice of the hearing, of the right to be present at the hearing, the right to the assistance of counsel in preparation for and during the hearing, and the right to introduce evidence and cross-examine witnesses at the hearing. Following the hearing, if the court determines, based on a preponderance of the evidence presented at the hearing, that the acquittee (1) has violated the conditions of his release or is no longer a proper subject for conditional release and (2) has mental illness or intellectual disability and is in need of inpatient hospitalization, the court shall revoke the acquittee's conditional release and place him in the custody of the Commissioner.

When an acquittee on conditional release pursuant to this chapter is taken into emergency custody, detained, or hospitalized, such action shall be considered to have been taken pursuant to this section, notwithstanding the fact that his status as an insanity acquittee was not known at the time of custody, detention, or hospitalization. Detention or hospitalization of an acquittee pursuant to provisions of law other than those applicable to insanity acquittees pursuant to this chapter shall not render the detention or hospitalization invalid. If a person's status as an insanity acquittee on conditional release is not recognized at the time of emergency custody or detention, at the time his status as such is verified, the provisions applicable to such persons shall be applied and the court hearing the matter shall notify the committing court of the proceedings.

(1991, c. 427; 1993, c. 295; 1996, cc. 937, 980; 2001, c. 837; 2005, c. 716; 2006, cc. 343, 370; 2008, c. 810; 2009, cc. 21, 838; 2012, cc. 476, 507; 2014, cc. 499, 538, 691, 761.)

Editor's note. - Acts 2014, c. 691, cl. 5 and c. 761, cl. 2 provides: "That the Governor's Task Force on Improving Mental Health Services and Crisis Response created on December 10, 2013, by Executive Order 68 shall identify and examine issues related to the use of law enforcement in the involuntary admission process. The task force shall consider options to reduce the amount of resources needed to detain individuals during the emergency custody order period, including the amount of time spent providing transportation throughout the admission process. Such options shall include developing crisis stabilization units in all regions of the Commonwealth and contracting for retired officers to provide needed transportation. The task force shall report its findings and recommendations to the Governor and the General Assembly by October 1, 2014."

The 2001 amendments. - The 2001 amendment by c. 837 rewrote the last sentence of the first paragraph, which read: "If the forty-eight-hour period terminates on a Saturday, Sunday, or legal holiday, the acquittee may be detained until the next day which is not a Saturday, Sunday, or legal holiday, but in no event may he be detained for longer than seventy-two hours or ninety-six hours when the legal holiday occurs on a Monday or Friday. For purposes of this section, a Saturday, Sunday or legal holiday shall be deemed to include the time period up to 8 a.m. of the next day which is not a Saturday, Sunday or legal holiday."

The 2005 amendments. - The 2005 amendment by c. 716, effective October 1, 2005, throughout the section, inserted "district court" preceding "judge" three times, "or a special justice" preceding "as defined in" three times, and substituted "37.2-100" for "37.1-1" three times; in the first paragraph, inserted "or behavioral health authority" preceding "who is skilled," and "order" preceding "authorizing," and substituted "a" for "an order of" preceding "temporary detention"; and made minor stylistic changes.

The 2006 amendments. - The 2006 amendments by cc. 343 and 370 are identical, and added the last sentence in the second paragraph.

The 2008 amendments. - The 2008 amendment by c. 810 deleted the last sentence of the second paragraph, which read: "An acquittee's conditional release shall not be revoked solely because of his voluntary hospital admission."

The 2009 amendments. - The 2009 amendment by c. 21, effective February 23, 2009, inserted the sixth and seventh sentences in the first paragraph.

The 2009 amendments by c. 838, effective April 8, 2009, added nearly identical sentences as c. 21, but inserted "district court judge, special justice, or" preceding "magistrate shall extend" in the sixth sentence and made a minor stylistic change in the seventh sentence. The first paragraph has been set out in the form above at the direction of the Virginia Code Commission.

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and substituted "intellectual disability" for "mental retardation" in clause (ii) of the second paragraph.

The 2014 amendments. - The 2014 amendments by cc. 499 and 538 are identical and, in the first paragraph, substituted "(1)" for "(i)," "(2)" for "(ii)," and "72" for "48" twice; and in the second paragraph substituted "(A)" for "(i)" and "(B)" for "(ii)."

The 2014 amendment by cc. 691 and 761 are almost identical, and in the first paragraph substituted "eight" for "four," "(b)" for "(ii)," and "72" for "48" twice, and deleted the fifth and sixth sentences, which read "However, upon a finding by a district court judge, special justice as defined in § 37.2-100 , or magistrate that good cause exists to grant an extension, the district court judge, special justice, or magistrate shall extend the emergency custody order, or shall issue an order extending the period of emergency custody, one time for an additional period not to exceed two hours. Good cause for an extension includes the need for additional time to allow (a) the community services board to identify a suitable facility in which the person can be temporarily detained pursuant to this section or (b) a medical evaluation of the person to be completed if necessary." The section is set out in the form above at the direction of the Virginia Code Commission.

Law review. - For annual survey article, "Health Care Law," see 44 U. Rich. L. Rev. 473 (2009).

Research References. - Virginia Forms (Matthew Bender). No. 6-744. Civil Mental Emergency Custody Order. No. 9-1909. Order Extending Emergency Custody Initiated by Law Enforcement Officer. No. 9-2002. Petition for Involuntary Admission for Treatment.

§ 19.2-182.10. Release of person whose conditional release was revoked.

If an acquittee is returned to the custody of the Commissioner for inpatient treatment pursuant to revocation proceedings, and his condition improves to the degree that, within 60 days of resumption of custody following the hearing, the acquittee, in the opinion of hospital staff treating the acquittee and the supervising community services board or behavioral health authority, is an appropriate candidate for conditional release, he may be, with the approval of the court, conditionally released as if revocation had not taken place. If treatment is required for longer than 60 days, the acquittee shall be returned to the custody of the Commissioner for a period of hospitalization and treatment which is governed by the provisions of this chapter applicable to committed acquittees.

(1991, c. 427; 1993, c. 295; 2006, cc. 199, 225; 2007, cc. 485, 565.)

The 2006 amendments. - The 2006 amendments by cc. 199 and 225 are identical, and substituted "60 days" for "30 days" in the first and last sentences.

The 2007 amendments. - The 2007 amendments by cc. 485 and 565 are identical, and inserted "or behavioral health authority" following "community services board" in the first sentence.

§ 19.2-182.11. Modification or removal of conditions; notice; objections; review.

  1. The committing court may modify conditions of release or remove conditions placed on release pursuant to § 19.2-182.7 , upon petition of the supervising community services board or behavioral health authority, the attorney for the Commonwealth, or the acquittee or upon its own motion based on reports of the supervising community services board or behavioral health authority. However, the acquittee may petition only annually commencing six months after the conditional release order is issued. Upon petition, the court shall require the supervising community services board or behavioral health authority to provide a report on the acquittee's progress while on conditional release.
  2. As it deems appropriate based on the community services board's or behavioral health authority's report and any other evidence provided to it, the court may issue a proposed order for modification or removal of conditions. The court shall provide notice of the order, and their right to object to it within ten days of its issuance, to the acquittee, the supervising community services board or behavioral health authority and the attorney for the Commonwealth for the committing jurisdiction and for the jurisdiction where the acquittee is residing on conditional release. The proposed order shall become final if no objection is filed within ten days of its issuance. If an objection is so filed, the court shall conduct a hearing at which the acquittee, the attorney for the Commonwealth, and the supervising community services board or behavioral health authority have an opportunity to present evidence challenging the proposed order. At the conclusion of the hearing, the court shall issue an order specifying conditions of release or removing existing conditions of release.

    (1991, c. 427; 2007, cc. 485, 565.)

The 2007 amendments. - The 2007 amendments by cc. 485 and 565 are identical, and inserted "or behavioral health authority" following "community services board" three times in subsection A and twice in subsection B; and inserted "or behavioral health authority's" following "community services board's" in the first sentence of subsection B.

§ 19.2-182.12. Representation of Commonwealth and acquittee.

The attorney for the Commonwealth shall represent the Commonwealth in all proceedings held pursuant to this chapter. The court shall appoint counsel for the acquittee unless the acquittee waives his right to counsel. The court shall consider appointment of the person who represented the acquittee at the last proceeding.

(1991, c. 427; 1993, c. 295.)

§ 19.2-182.13. Authority of Commissioner; delegation to board; liability.

The Commissioner may delegate any of the duties and powers imposed on or granted to him by this chapter to an administrative board composed of persons with demonstrated expertise in such matters. The Department of Behavioral Health and Developmental Services shall assist the board in its administrative and technical duties. Members of the board shall exercise their powers and duties without compensation and shall be immune from personal liability while acting within the scope of their duties except for intentional misconduct.

(1991, c. 427; 2009, cc. 813, 840.)

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Department of Behavioral Health and Developmental Services" for "Department of Mental Health, Mental Retardation and Substance Abuse Services."

§ 19.2-182.14. Escape of persons placed or committed; penalty.

Any person placed in the temporary custody of the Commissioner pursuant to § 19.2-182.2 or committed to the custody of the Commissioner pursuant to § 19.2-182.3 who escapes from such custody shall be guilty of a Class 6 felony.

(1993, c. 295.)

Cross references. - As to punishment for Class 6 felonies, see § 18.2-10 .

§ 19.2-182.15. Escape of persons placed on conditional release; penalty.

Any person placed on conditional release pursuant to § 19.2-182.7 who leaves the Commonwealth without permission from the court which conditionally released the person shall be guilty of a Class 6 felony.

(1993, c. 295.)

Cross references. - As to punishment for Class 6 felonies, see § 18.2-10 .

§ 19.2-182.16. Copies of orders to Commissioner.

Copies of all orders and notices issued pursuant to this chapter shall be sent to the Commissioner of the Department of Behavioral Health and Developmental Services.

(1993, c. 295; 2009, cc. 813, 840.)

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Department of Behavioral Health and Developmental Services" for "Department of Mental Health, Mental Retardation and Substance Abuse Services."

Chapter 12. Preliminary Hearing.

Sec.

§ 19.2-183. Examination of witnesses; assistance of counsel; evidentiary matters and remedies; power to adjourn case.

  1. The judge before whom any person is brought for an offense shall, as soon as may be practical, in the presence of such person, examine on oath the witnesses for and against him. Before conducting the hearing or accepting a waiver of the hearing, the judge shall advise the accused of his right to counsel and, if the accused is indigent and the offense charged be punishable by confinement in jail or the state correctional facility, the judge shall appoint counsel as provided by law.
  2. At the hearing the judge shall, in the presence of the accused, hear testimony presented for and against the accused in accordance with the rules of evidence applicable to criminal trials in this Commonwealth. In felony cases, the accused shall not be called upon to plead, but he may cross-examine any witness who testifies on behalf of the Commonwealth or on behalf of any other defendant, introduce witnesses in his own behalf, and testify in his own behalf.
  3. A judge may adjourn a trial, pending before him, not exceeding 10 days at one time, without the consent of the accused.
  4. At any preliminary hearing under this section, certificates of analysis and reports prepared pursuant to §§ 19.2-187 and 19.2-188 shall be admissible without the testimony of the person preparing such certificate or report. (Code 1950, §§ 19.1-101, 19.1-102; 1960, c. 366; 1968, c. 639; 1973, c. 485; 1975, c. 495; 1982, c. 513; 2010, c. 555.)

The 2010 amendments. - The 2010 amendment by c. 555 substituted "any witness who testifies on behalf of the Commonwealth or on behalf of any other defendant" for "witnesses" in subsection B; added subsection D; and made a minor stylistic change.

Research References. - Virginia Forms (Matthew Bender). No. 9-2702. Waiver of Preliminary Hearing and Certification.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 17, 18, 20, 24.

CASE NOTES

Purpose. - This section's purpose is to provide for the orderly and expeditious handling of criminal charges to determine whether they should go forward; it authorizes continuances of up to ten days without the consent of the accused, but it does not forbid granting longer continuances for good cause. Ricks v. Commonwealth, No. 0882-89-1 (Ct. of Appeals, Feb. 12, 1991).

The preliminary hearing is essentially a screening process. Its primary purpose is to determine whether there is "sufficient cause" for charging the accused with the crime alleged, that is, whether there is reasonable ground to believe that the crime has been committed and whether the accused is the person who committed it. Moore v. Commonwealth, 218 Va. 388 , 237 S.E.2d 187 (1977).

A preliminary hearing may not be used for the purpose of discovery. Foster v. Commonwealth, 209 Va. 297 , 163 S.E.2d 565 (1968).

Neither this section nor any rule of court gives counsel for the accused the right to call witnesses at the preliminary hearing for the purpose of discovery. Williams v. Commonwealth, 208 Va. 724 , 160 S.E.2d 781, cert. denied, 393 U.S. 1006, 89 S. Ct. 497, 21 L. Ed. 2d 470 (1968); Foster v. Commonwealth, 209 Va. 297 , 163 S.E.2d 565 (1968).

Because a preliminary hearing is essentially a screening process, the Code of Virginia prescribed as early as 1849, and still prescribes, that the examining judge "shall examine on oath the witnesses for and against . . . [the accused]." Defense counsel therefore had the right to present evidence for accused, that is, to show there was no reasonable ground for belief that he had committed murder. But counsel could not complain of the county judge's actions at the preliminary hearing on the ground that they were denied the right to discover evidence that might be used by the Commonwealth at a subsequent trial in the circuit court. Williams v. Commonwealth, 208 Va. 724 , 160 S.E.2d 781, cert. denied, 393 U.S. 1006, 89 S. Ct. 497, 21 L. Ed. 2d 470 (1968).

Refusal to permit witnesses to testify. - Where counsel for defendant made no suggestion to the police court that the testimony of any of the witnesses not permitted to testify would tend to show either that the crime had not been committed or that any of the defendants had not committed the crime, and there was no showing that defendant was prejudiced by the court's action in refusing to permit the witnesses to testify, the trial court committed no error in overruling defendant's motion to quash the indictment because he was denied a proper preliminary hearing. Foster v. Commonwealth, 209 Va. 297 , 163 S.E.2d 565 (1968).

§ 19.2-183.1. Joint preliminary hearings.

Upon motion of the attorney for the Commonwealth, preliminary hearings for persons alleged to have participated in contemporaneous and related acts or occurrences or in a series of such acts or occurrences constituting an offense or offenses may be heard jointly if jurisdiction over each person and offense lies in the same court, unless the court finds that such joint preliminary hearing would constitute prejudice to a defendant. Upon such a finding, the court shall order that the preliminary hearing for that defendant be held separately.

(1993, cc. 462, 489.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 20.

§ 19.2-184. Witnesses may be separated (Subsection (a) of Supreme Court Rule 2:615 derived in part from this section).

While a witness is under such examination all other witnesses may by order of the judge be excluded from the place of examination and kept separate from each other.

(Code 1950, § 19.1-104; 1960, c. 366; 1968, c. 639; 1975, c. 495.)

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 19 Trial Procedure. § 19.02 Order of Procedure at Trial. Friend. Virginia Forms (Matthew Bender). No. 9-2225. Motion to Sequester"'Gag" Witnesses (General District Court).

Michie's Jurisprudence. - For related discussion, see 20 M.J. Witnesses, § 35.

§ 19.2-185. Testimony may be reduced to writing and subscribed.

When the judge deems it proper the testimony of the witnesses may be reduced to writing, and, if required by him, shall be signed by them respectively.

The judge of the court of record to which the case may be or has been certified may order the testimony of the witnesses at the preliminary hearing to be reduced to writing.

(Code 1950, § 19.1-105; 1960, c. 366; 1968, c. 639; 1975, c. 495.)

Research References. - Virginia Forms (Matthew Bender). No. 9-2214. Motion for Appointment of Court Reporter to Record Preliminary Hearing. No. 9-2215. Order Appointing Court Reporter to Record Preliminary Hearing.

CASE NOTES

Failure to record preliminary hearing as error of judgment by counsel. - In a prosecution under § 18.2-361 , defense counsel's failure to record the preliminary hearing constitutes a serious error of judgment in a case where the credibility of the prosecutrix is at issue. Lankford v. Foster, 546 F. Supp. 241 (W.D. Va. 1982), aff'd, 716 F.2d 896 (4th Cir. 1983), cert. denied, 467 U.S. 1214, 104 S. Ct. 2655, 81 L. Ed. 2d 362 (1984).

Circuit court authorized defendant to employ court reporter because transcript of the preliminary hearing may be an effective tool for cross-examining and impeaching witnesses at trial. However, the responsibility for employing the court reporter and having her present rested with the defendant, and the court's denial of a motion for continuance based on the court reporter's absence, did not result in an abuse of discretion. Lebedun v. Commonwealth, 27 Va. App. 697, 501 S.E.2d 427 (1998).

§ 19.2-186. When accused to be discharged, tried, committed or bailed by judge.

The judge shall discharge the accused if he considers that there is not sufficient cause for charging him with the offense.

If a judge considers that there is sufficient cause only to charge the accused with an offense which the judge has jurisdiction to try, then he shall try the accused for such offense and convict him if he deems him guilty and pass judgment upon him in accordance with law just as if the accused had first been brought before him on a warrant charging him with such offense.

If a judge considers that there is sufficient cause to charge the accused with an offense that he does not have jurisdiction to try then he shall certify the case to the appropriate court having jurisdiction and shall commit the accused to jail or let him to bail pursuant to the provisions of Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title.

(Code 1950, § 19.1-106; 1960, c. 366; 1968, c. 639; 1973, c. 485; 1975, c. 495; 1999, cc. 829, 846.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and substituted "considers" for "consider" throughout the section; substituted "deems" for "deem" in the second paragraph, and substituted "Article 1 ( § 19.2-119 et seq.) of Chapter 9 of this title" for " § 19.2-123 " in the third paragraph.

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, § 8; 5B M.J. Criminal Procedure, §§ 19, 21.

CASE NOTES

The word "shall" in the clause "then he shall try the accused for such an offense" means the court has the responsibility to proceed to try the accused on the misdemeanor, either at the time of the hearing (but subsequent to the finding of no probable cause on the felony) or at some later time. Moore v. Commonwealth, 218 Va. 388 , 237 S.E.2d 187 (1977).

"Shall" is directory only. - It is manifest from the statutes that the General Assembly intended "shall," in the clause "then he shall try the accused for such offense," to be directory only, and not mandatory. Moore v. Commonwealth, 218 Va. 388 , 237 S.E.2d 187 (1977).

And district court need not immediately try accused on merits of lesser misdemeanor offense. - The district court has the potential jurisdiction to proceed under certain circumstances to try the accused for a lesser misdemeanor offense included within the felony charge then before the court. But, the district court, when it makes a finding of no probable cause, is not required to proceed immediately to try the accused on the merits of such lesser offense, although the court may elect to do so. Moore v. Commonwealth, 218 Va. 388 , 237 S.E.2d 187 (1977).

Under this section, the court, in order to try the defendant for the lesser offense, must find not only lack of probable cause on the felony charge but also sufficient cause to charge the accused with the misdemeanor. And even then, as we construe the statute, the court is not obligated as a part of that proceeding to try the defendant at that time on the merits of the misdemeanor. Moore v. Commonwealth, 218 Va. 388 , 237 S.E.2d 187 (1977).

Where the defendant is not before the court on a felony, the only options open to the court are a finding of guilty or not guilty. Greenwalt v. Commonwealth, 224 Va. 498 , 297 S.E.2d 709 (1982).

Municipal court had jurisdiction to convict defendants of lesser misdemeanor offenses included within felonies then before the circuit court. Rouzie v. Commonwealth, 215 Va. 174 , 207 S.E.2d 854 (1974).

But such convictions placed defendants in double jeopardy. - Municipal court convictions for lesser misdemeanors placed defendants in danger, absent a double jeopardy bar, of prosecution for identical or greater included offenses. Rouzie v. Commonwealth, 215 Va. 174 , 207 S.E.2d 854 (1974).

The county judge had only one issue to decide when he presided at a preliminary hearing: whether there was sufficient cause for charging accused with murder, or, in other words, whether there was reasonable ground to believe that a murder had been committed and accused was the person who had committed the murder. Williams v. Commonwealth, 208 Va. 724 , 160 S.E.2d 781, cert. denied, 393 U.S. 1006, 89 S. Ct. 497, 21 L. Ed. 2d 470 (1968).

Dismissal of felony warrant is not acquittal or finding of not guilty. - A mere dismissal of a felony warrant at a preliminary hearing indicates only a finding of lack of probable cause. Since jeopardy has not attached, discharge cannot operate as an acquittal, or finding of not guilty, of any lesser included misdemeanor offense. Moore v. Commonwealth, 218 Va. 388 , 237 S.E.2d 187 (1977).

Retrial precluded after swearing of witness and dismissal on refusal of Commonwealth to proceed. - Where the trial court ruled against prosecuting defendant on a felony charge, but found probable cause supporting a misdemeanor charge and accordingly swore in a witness, but the attorney for the Commonwealth refused to question the witness, stating that he wished to secure a grand jury for a felony charge, upon which the judge properly dismissed the case, the attorney for the Commonwealth could not prosecute the case anew on a felony charge, as double jeopardy had attached. The Commonwealth had the opportunity to question the sworn witness, defendant had risked a determination of guilt, and absent manifest necessity defendant could not be retried for the same offense. Goolsby v. Hutto, 529 F. Supp. 92 (E.D. Va. 1981), aff'd, 691 F.2d 199 (4th Cir. 1982).

Applied in Herrington v. Commonwealth, 291 Va. 181 , 781 S.E.2d 561, 2016 Va. LEXIS 10 (2016).

CIRCUIT COURT OPINIONS

Double jeopardy. - Defendant's double jeopardy rights were not violated when a prosecutor had a felony charge reinstated after taking a dismissal of a lesser included misdemeanor charge on appeal; although jeopardy attached when a general district court tried defendant on a lesser offense, the judgment was annulled when defendant exercised the right to appeal and sought a trial de novo in a circuit court. Commonwealth v. Painter, 64 Va. Cir. 455, 2004 Va. Cir. LEXIS 161 (Rockingham County 2004), aff'd, 47 Va. App. 225, 623 S.E.2d 408 (2005).

§ 19.2-187. Admission into evidence of certain certificates of analysis.

  1. In any hearing or trial of any criminal offense or in any proceeding brought pursuant to Chapter 22.1 (§ 19.2-386.1 et seq.), a certificate of analysis of a person performing an analysis or examination, duly attested by such person, shall be admissible in evidence as evidence of the facts therein stated and the results of the analysis or examination referred to therein, provided that (i) the certificate of analysis is filed with the clerk of the court hearing the case at least seven days prior to the proceeding if the attorney for the Commonwealth intends to offer it into evidence in a preliminary hearing or the accused intends to offer it into evidence in any hearing or trial, or (ii) the requirements of subsection A of § 19.2-187.1 have been satisfied and the accused has not objected to the admission of the certificate pursuant to subsection B of § 19.2-187.1 , when any such analysis or examination is performed in any laboratory operated by the Division of Consolidated Laboratory Services or the Department of Forensic Science or authorized by such Department to conduct such analysis or examination, or performed by a person licensed by the Department of Forensic Science pursuant to § 18.2-268.9 or 46.2-341.26:9 to conduct such analysis or examination, or performed by the Federal Bureau of Investigation, the United States Postal Service, the federal Bureau of Alcohol, Tobacco and Firearms, the Naval Criminal Investigative Service, the National Fish and Wildlife Forensics Laboratory, the federal Drug Enforcement Administration, the Forensic Document Laboratory of the U.S. Department of Homeland Security, or the U.S. Secret Service Laboratory. For purposes of this section, any laboratory that has entered into a contract with the Department of Forensic Science for the provision of forensic laboratory services shall be deemed authorized by the Department to conduct such analyses or examinations.
  2. In a hearing or trial in which the provisions of subsection A of § 19.2-187.1 do not apply, a copy of such certificate shall be mailed or delivered by the clerk or attorney for the Commonwealth to counsel of record for the accused at no charge at least seven days prior to the hearing or trial upon request made by such counsel to the clerk with notice of the request to the attorney for the Commonwealth. The request to the clerk shall be on a form prescribed by the Supreme Court and filed with the clerk at least 10 days prior to the hearing or trial. In the event that a request for a copy of a certificate is filed with the clerk with respect to a case that is not yet before the court, the clerk shall advise the requester that he must resubmit the request at such time as the case is properly before the court in order for such request to be effective. If, upon proper request made by counsel of record for the accused, a copy of such certificate is not mailed or delivered by the clerk or attorney for the Commonwealth to counsel of record for the accused in a timely manner in accordance with this section, the accused shall be entitled to continue the hearing or trial.
  3. The certificate of analysis of any examination conducted by the Department of Forensic Science relating to a controlled substance or marijuana shall be mailed or forwarded by personnel of the Department of Forensic Science to the attorney for the Commonwealth of the jurisdiction where such offense may be heard. The attorney for the Commonwealth shall acknowledge receipt of the certificate on forms provided by the laboratory.

    Any such certificate of analysis purporting to be signed, either by hand or by electronic means, by any such person shall be admissible as evidence in such hearing or trial without any proof of the seal or signature or of the official character of the person whose name is signed to it. The attestation signature of a person performing the analysis or examination may be either hand or electronically signed.

  4. Any testimony offered by either party in a preliminary hearing or sentencing hearing, or offered by the accused in any hearing other than a trial, from a person who performed an analysis or examination that resulted in a certificate of analysis may be presented by two-way video conferencing. The two-way video testimony permitted by this section shall comply with the provisions of subsection B of § 19.2-3.1 . In addition, unless otherwise agreed by the parties and the court, (i) all orders pertaining to witnesses apply to witnesses testifying by video conferencing; (ii) upon request, all materials read or used by the witness during his testimony shall be identified on the video; and (iii) any witness testifying by video conferencing shall certify at the conclusion of his testimony, under penalty of perjury, that he did not engage in any off-camera communications with any person during his testimony.
  5. For the purposes of this section and §§ 19.2-187.01 , 19.2-187.1 , and 19.2-187.2 , the term "certificate of analysis" includes reports of analysis and results of laboratory examination.
  6. Nothing in this section shall be construed as requiring a locality to purchase a two-way electronic video and audio communication system. Any decision to purchase such a system is at the discretion of the locality.

    (Code 1950, § 19.1-106.1; 1974, c. 200; 1975, c. 495; 1976, c. 245; 1983, c. 178; 1984, c. 607; 1988, c. 494; 1990, cc. 737, 825; 1992, c. 56; 1994, cc. 41, 375; 1995, c. 437; 1999, c. 296; 2000, c. 336; 2002, c. 832; 2005, cc. 868, 881; 2006, c. 294; 2009, Sp. Sess. I, cc. 1, 4; 2010, c. 656; 2011, cc. 384, 410, 645; 2014, cc. 328, 674, 719; 2015, cc. 75, 126; 2017, c. 669; 2019, cc. 478, 479.)

Editor's note. - Acts 2014, cc. 674 and 719, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $66,663 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendment, at the end of the first paragraph, substituted "made by" for "of" and inserted "to the clerk with notice of the request to the attorney for the Commonwealth."

The 2000 amendments. - The 2000 amendment by c. 336 added the last sentence of the first paragraph.

The 2002 amendments. - The 2002 amendment by c. 832, in the first paragraph, substituted "on a form prescribed by the Supreme Court and filed with the clerk at least ten days prior to trial" for "in writing at least ten days prior to trial and shall clearly state in its heading 'Request for Copy of Certificate of Analysis'" in the next-to-last sentence, and added the last sentence.

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "Department" for "Division" throughout the section, and "10" for "ten" in the first paragraph.

The 2006 amendments. - The 2006 amendment by c. 294 divided the first paragraph into the first and second paragraphs; in the first paragraph, deleted the clause (i) and (ii) designations near the end; and in the present second paragraph, substituted "shall be" for "is" and inserted "at no charge" in the first sentence and added the last sentence.

The 2009 amendments. - The 2009 amendments by Sp. Sess. I, c. 1, effective August 21, 2009, and Sp. Sess. I, c. 4, effective September 15, 2009, are identical, and rewrote the first paragraph; and in the second paragraph, added "In a hearing or trial in which the provisions of subsection A of § 19.2-187.1 do not apply" at the beginning of the first sentence, inserted "the hearing or" preceding "trial" at the end of the second sentence, and substituted "accused" for "defendant" near the end of the last sentence.

The 2010 amendments. - The 2010 amendment by c. 656 inserted the last paragraph.

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and inserted "synthetic cannabinoids as defined in § 18.2-248.1:1 " and made a related change in the first sentence of the third paragraph, and made a minor stylistic change.

The 2011 amendment by c. 645, in the first paragraph, inserted "the Forensic Document Laboratory of the U.S. Department of Homeland Security" and substituted "U.S. Secret Service Laboratory" for "United States Secret Service Laboratory."

The 2014 amendments. - The 2014 amendment by c. 328 in the fourth paragraph inserted "either by hand or by electronic means" and added the last sentence.

The 2014 amendments by cc. 674 and 719 are identical, and deleted "or synthetic cannabinoids" following "marijuana" in the third paragraph, and made a stylistic change.

The 2015 amendments. - The 2015 amendments by cc. 75 and 126 are identical, and substituted "United States Postal Service" for "federal Postal Inspection Service" in clause (ii) of the first paragraph.

The 2017 amendments. - The 2017 amendment by c. 669 added the subsection designations inserted subsections D and F; and made a stylistic change.

The 2019 amendments. - The 2019 amendments by cc. 478 and 479 are identical, and added the last sentence to subsection A.

Law review. - For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976).

For 1995 survey of criminal law and procedure, see 29 U. Rich. L. Rev. 951 (1995).

For an article on bifurcated sentencing in noncapital felony cases in Virginia, see 30 U. Rich. L. Rev. 465 (1996).

For an article, "Criminal Law and Procedure," see 31 U. Rich. L. Rev. 1015 (1997).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 40 Rules of Evidence. § 40.03 Records and Documents. Friend. Virginia Forms (Matthew Bender). No. 9-1609. Objection to Admission of Certificate of Analysis (Another Form); No. 9-1610. Request for Copy of Certificate of Analysis.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 56; 7B M.J. Evidence, §§ 86, 199.

CASE NOTES

I. IN GENERAL.

Purpose of statute. - The purpose of § 19.2-187 is to ensure that a breath test certificate to be used in evidence is lodged timely in a secure and appropriate place, accessible to the accused, and available to the accused upon request; the statute sets forth a specific statement of admissibility of certificates and once its provisos are satisfied, the statement is complete, and a certificate thus qualified is properly received into evidence. Cephas v. Commonwealth, No. 3359-01-4, 2003 Va. App. LEXIS 114 (Ct. of Appeals Mar. 4, 2003).

Admission of a certificate of analysis prepared by a forensic scientist that detailed the results of tests he performed to determine that the two substances found on defendant's person were crack cocaine and marijuana was not error, and § 19.2-187 allowing for the admission of certain writings even though they would otherwise be considered inadmissible hearsay was not implicated, as the forensic scientist who prepared the certificate was present, he testified and authenticated the certificate, and he was available to be cross-examined. Bell v. Commonwealth, 49 Va. App. 570, 643 S.E.2d 497, 2007 Va. App. LEXIS 152 (2007).

Purpose of provisos and the second paragraph of this section. - The purpose of the provisos is to ensure that the certificate to be used in evidence is lodged timely in a secure and appropriate place, accessible to the accused, and available to him upon request. Stokes v. Commonwealth, 11 Va. App. 550, 399 S.E.2d 453 (1991).

The second paragraph of this section serves an entirely different purpose: it provides for the coordination of governmental agencies to facilitate the development of his case by the attorney for the Commonwealth. Stokes v. Commonwealth, 11 Va. App. 550, 399 S.E.2d 453 (1991).

Had the legislature intended the provisions of the second paragraph of this section to be a condition of admissibility, it would have incorporated those requirements as enumerated provisos into the first paragraph. Stokes v. Commonwealth, 11 Va. App. 550, 399 S.E.2d 453 (1991).

Exception to hearsay rule. - This section creates an exception to the hearsay rule and permits the written analysis to be admitted into evidence without requiring the in-court presence of the person who prepared the document. Allen v. Commonwealth, 3 Va. App. 657, 353 S.E.2d 162 (1987).

This section was enacted to allow into evidence a written report of an analysis or examination conducted by specified laboratories, without requiring that the technicians be present. Myrick v. Commonwealth, 13 Va. App. 333, 412 S.E.2d 176 (1991).

Court rejected petitioner's claim that he was denied the effective assistance of counsel at trial due to his counsel's failure to raise the issue that the Commonwealth violated his right to confront and cross-examine witnesses when it introduced certificates of analysis in an attempt to authenticate several letters allegedly written by petitioner. The record, including the certificates of analysis, showed that the Commonwealth complied with the requirements of § 19.2-187 as the certificates were attested to by the scientists who performed the handwriting analysis and, therefore, the scientists were not required to appear at trial; also petitioner admitted to the police that he wrote the letters. Powell v. Warden of the Sussex I State Prison,, 2005 Va. LEXIS 106 (Nov. 8, 2005).

This section imposes a condition for the exoneration of an otherwise hearsay document from the application of the hearsay rule, thus making that document admissible. Winston v. Commonwealth, 16 Va. App. 901, 434 S.E.2d 4 (1993).

No violation of Confrontation Clause. - Defendant waived her Sixth Amendment rights to confrontation by failing to avail herself of her statutory right under § 19.2-187 .1 to subpoena the operator of a breath test in her driving under the influence trial under § 18.2-266 . Thus, it was proper to admit the certificate of the blood alcohol analysis without live testimony of the operator pursuant to §§ 18.2-268.9 and 19.2-187 . McKeel v. Commonwealth,, 2006 Va. App. LEXIS 575 (Dec. 19, 2006).

Defendant's failure to timely notify the Commonwealth of his desire to confront forensic analyst at trial on drug charges constituted a waiver of his right to confrontation in that the procedure of §§ 19.2-187 and 19.2-187.1 adequately protected defendant's Confrontation Clause rights. Brooks v. Commonwealth, 49 Va. App. 155, 638 S.E.2d 131, 2006 Va. App. LEXIS 574 (2006).

Because defendant did not timely notify the Commonwealth of defendant's desire to confront a forensic analyst at trial, the procedure in §§ 19.2-187 and 19.2-187.1 adequately protected defendant's Sixth Amendment Confrontation Clause rights; therefore, the trial court did not err in admitting a certificate of analysis when the forensic scientist did not testify. Morton v. Commonwealth,, 2007 Va. App. LEXIS 39 (Feb. 6, 2007).

Because defendant, charged with possession of cocaine with intent to distribute, in violation of § 18.2-248 , neglected to inform the Commonwealth of his desire to have the scientist who prepared the certificate of analysis present until the day of trial, defendant waived his Confrontation Clause rights. Thus, no error resulted in admitting the certificate of analysis without the scientist's testimony. McCray v. Commonwealth,, 2008 Va. App. LEXIS 36 (Jan. 22, 2008).

Defendant was properly convicted of driving while intoxicated because the trial court did not violate defendant's constitutional right to confrontation when it admitted his blood alcohol breath analysis into evidence in accordance with the terms of § 19.2-187 ; because defendant did not subpoena the booking tech who administered the blood alcohol breath analysis, he waived his opportunity to cross-examine potential witnesses. Ki-Ho Min v. Commonwealth,, 2008 Va. App. LEXIS 144 (Mar. 25, 2008).

Defendant waived the constitutional right to confront the person who performed a certificate of analysis on the substance found under the car seat in which he was sitting because defendant did not follow the procedures provided by §§ 19.2-187 and 19.2-187.1 ; defendant never notified the Commonwealth or the trial court of his desire to confront the witness until the middle of trial. Cypress v. Commonwealth,, 2007 Va. App. LEXIS 497 (Jan. 3, 2007).

Defendant waived the constitutional right to confront the person who prepared the certificates of analysis that were performed on the substances found in defendant's apartment and on his person because defendant did not follow the procedures of §§ 19.2-187 and 19.2-187.1 ; defendant did not notify the Commonwealth or the trial court of his desire to confront the witness until the middle of trial. Briscoe v. Commonwealth,, 2007 Va. App. LEXIS 498 (Jan. 18, 2007).

In defendants' prosecutions for drug-related offenses, the admission of analysts' certificates of analysis, without the analysts' live testimony, pursuant to §§ 19.2-187 and 19.2-187.1 , violated defendants' rights to confrontation because the statutory procedure allowing defendants to call the analysts as adverse witnesses impermissibly relieved the prosecution of the duty to present witnesses and required defendants to call those witnesses, as defendants were not given a period of time, after notice, in which to object to the admission of the certificates absent the analysts' testimony. Cypress v. Commonwealth, 280 Va. 305 , 699 S.E.2d 206, 2010 Va. LEXIS 225 (2010).

In defendants' prosecutions for drug-related offenses, the admission of analysts' certificates of analysis, without the analysts' live testimony, pursuant to §§ 19.2-187 and 19.2-187.1 , violated defendants' rights to confrontation because neither defendant waived this objection by not using § 19.2-187.1 's procedure for calling the analysts to testify, as this procedure impermissibly burdened and did not adequately protect defendants' confrontation rights. Cypress v. Commonwealth, 280 Va. 305 , 699 S.E.2d 206, 2010 Va. LEXIS 225 (2010).

Violation of confrontation clause. - In defendants' prosecutions for drug-related offenses, the admission of analysts' certificates of analysis, without the analysts' live testimony, pursuant to §§ 19.2-187 and 19.2-187.1 , violated defendants' rights to confrontation because the certificates were testimonial as: (1) each attested that an analyst performed an analysis and that the certificate accurately reflected the results of the analysis; and (2) each showed the substance analyzed was cocaine and the amount of cocaine, so the certificates were functionally identical to live testimony. Cypress v. Commonwealth, 280 Va. 305 , 699 S.E.2d 206, 2010 Va. LEXIS 225 (2010).

Chain of custody. - Because the Commonwealth established that evidence submitted was the same as that tested and that it had not been altered, substituted or contaminated prior to testing, any lack of proof regarding identity of the "authorized agent" at testing laboratory who received the evidence was harmless. Harris v. Commonwealth, No. 0909-99-1 (Ct. of Appeals Mar. 7, 2000).

Transfer does not eliminate benefit of prima facie proof. - Because the Commonwealth presented a duly attested certificate of analysis, it established its prima facie evidence of chain of custody. The Commonwealth did not lose the benefit of its prima facie proof when the cocaine was transferred between regional laboratories within the Division of Forensic Science [now the Department of Forensic Science]. While the relevant statutory sections are construed strictly against the Commonwealth, no language in § 19.2-187.01 compels the conclusion that the General Assembly intended to eliminate the presumed, valid chain of custody when items are transferred between Division laboratories. Dunn v. Commonwealth, 20 Va. App. 217, 456 S.E.2d 135 (1995).

In-court appearance of certificate preparer to "certify" document. - Commonwealth incorrectly argued that in-court appearance of preparer of a certificate of analysis to "certify" the document was sufficient to render its out-of-court statements admissible for their truth. Assuming that trooper authenticated the certificate, its contents were inadmissible because they were offered to prove the truth of the matter asserted and did not fall within an exception to the hearsay rule. Hughes v. Commonwealth, No. 2802-96-4 (Ct. of Appeals Nov. 25, 1997).

Duplicate originals are made at the same time, by the same mechanical impression, and each is an exact counterpart of the other. A duplicate original is accorded the same dignity as an original and, if otherwise proper, is similarly admissible in evidence. Winston v. Commonwealth, 16 Va. App. 901, 434 S.E.2d 4 (1993).

Since the duplicate originals of certificates of fingerprint analysis were as reliable and trustworthy as the originals, and the prosecution properly filed them with the clerk, they were admissible under this section. Compliance with § 8.01-390 was unnecessary. Lovak v. Commonwealth, No. 2001-93-4 (Ct. of Appeals March 14, 1995).

Filing of copy raised "best evidence" question. - Defendant's objection on the ground that a copy rather than the original was filed raised a "best evidence" question, which was whether a copy of the certificate of analysis qualified as an original or could be filed in lieu of the original for the purposes of pretrial filing as required by this section. Myrick v. Commonwealth, 13 Va. App. 333, 412 S.E.2d 176 (1991).

While this section provides for pretrial filing of a certificate, rather than for its admissibility in evidence, the purpose of the filing requirement is solely to satisfy the statutory prerequisites in order for the certificate to be admissible at trial; thus, in considering whether a copy, rather than the original, can be filed under this section, the same requirements for admitting a copy into evidence must be satisfied. Myrick v. Commonwealth, 13 Va. App. 333, 412 S.E.2d 176 (1991).

Trial court did not err in ruling that a photocopy of a certificate of analysis could be filed in lieu of an original certificate under this section, provided the proof established that the photocopy was a replica of the original. Myrick v. Commonwealth, 13 Va. App. 333, 412 S.E.2d 176 (1991).

Error found in admitting test results. - Where the record before the appellate court contained no evidence that the field test used by detective had been approved by the division, the appellate court could not determine the reliability of the field test kit used to support detective's testimony that the substance tested positive as cocaine, therefore, the trial court erred when it permitted the detective to testify to the result produced by the test. Galbraith v. Commonwealth, 18 Va. App. 734, 446 S.E.2d 633 (1994).

In this instance, the court of appeals was "unable to say what effect the inadmissible evidence had on the fact finder's decision," despite "independent evidence of the nature of the controlled substance," thus defendant's conviction was reversed. Payne v. Commonwealth, No. 2870-95-4, 1997 Va. App. LEXIS 166 (Ct. of Appeals Mar. 25, 1997).

Opinion testimony. - This section does not allow opinions into evidence without expert testimony. Barber v. Commonwealth, 19 Va. App. 497, 452 S.E.2d 873 (1995).

Opportunity to cross-examine the chemist who performed the tests and who prepared the certificate eliminated the hearsay problem associated with the admission of the certificate when the Commonwealth failed to comply with the filing requirements of this section. Lewis v. Commonwealth, No. 0430-96-2 (Ct. of Appeals June 3, 1997).

Virginia's statutory scheme provides a mechanism for governmental and judicial economy by obviating the need for the prosecution to call the preparer and chain of custody witness. The statutes provide a defendant with adequate notice that the prosecution intends to rely on the certificate and affords a defendant the absolute right to call the preparer or chain of custody witness as an adverse witness should he so desire. Wingfield v. Commonwealth, No. 3000-95-2 (Ct. of Appeals Apr. 1, 1997).

Admission proper. - There was no abuse of discretion in the trial court's admission of certificates of analysis, because the senior analyst from the Division of Forensic Science who testified made her own conclusions from the data to determine the rarity of defendant's DNA profile. Pope v. Commonwealth, 60 Va. App. 486, 729 S.E.2d 751, 2012 Va. App. LEXIS 250 (2012).

Admission of certificate harmless error. - Any error by a trial court in admitting a certificate of analysis into evidence was harmless because the evidence without the certificate was sufficient to prove that defendant was driving under the influence of drugs. Hicks v. Commonwealth, No. 1093-16-3, 2017 Va. App. LEXIS 221 (Aug. 29, 2017).

No Brady violation found. - In a case where the Commonwealth provided defendant with notice that it intended to offer each of the certificates of analysis into evidence specifying that the narcotics recovered in the three controlled purchases were cocaine, no Brady violation occurred based on the termination for cause of the forensic scientist that signed each certificate as the date of her termination letter was two months post trial, and the Commonwealth, could not have provided defendant the information prior to or during trial; her performance as a scientist or technician in other cases did not establish that defendant was innocent; and no reasonable doubt existed that the three certificates of analysis returned in defendant's case were accurate. Mercer v. Commonwealth, 66 Va. App. 139, 783 S.E.2d 56 (2016).

II. REQUIREMENTS OF CERTIFICATE OF ANALYSIS.

This section is mandatory, not discretionary. Lewis v. Commonwealth, No. 2479-99-1, 2000 Va. App. LEXIS 560 (Ct. of Appeals Aug. 1, 2000).

Burden of proof. - When the Commonwealth seeks to admit a certificate of analysis containing hearsay evidence, it has the burden of proving that the certificate satisfies the requirements of this section. Taylor v. Commonwealth, 28 Va. App. 1, 502 S.E.2d 113 (1998).

Strict compliance. - This section demands strict compliance. Basfield v. Commonwealth, No. 0291-89-2 (Ct. of Appeals Oct. 2, 1990).

Strict compliance with the pretrial filing provisions of this section is required. Myrick v. Commonwealth, 13 Va. App. 333, 412 S.E.2d 176 (1991); Taylor v. Commonwealth, 28 Va. App. 1, 502 S.E.2d 113 (1998).

A certificate of analysis is not admissible if the Commonwealth fails strictly to comply with the provisions of this section. Bottoms v. Commonwealth, 20 Va. App. 466, 457 S.E.2d 796 (1995).

Where defense counsel sent the Commonwealth's Attorney's Office a copy of the letter it sent to the circuit court clerk requesting a certificate of analysis, that the letter did not include a "cc:" reference indicating the Commonwealth was to receive a copy did not render defendant's notice deficient because such a notation was not required by § 19.2-187 . Dotson v. Commonwealth, No. 1416-02-2, 2003 Va. App. LEXIS 282 (Ct. of Appeals May 6, 2003).

Trial court erred in admitting a certificate of analysis establishing that the substances seized from defendant were marijuana and cocaine, because his attorney requested the certificate in the manner provided for in § 19.2-187 and the evidence failed to show a copy of such certificate was mailed or delivered to counsel of record for the accused at least seven days prior to the hearing or trial upon request made by such counsel; moreover, assuming without deciding that the evidence other than the certificate of analysis would have been sufficient to support a finding that the substances seized from defendant and admitted at trial were, in fact, cocaine and marijuana, the appeals court could not conclude, without usurping the trial court's fact-finding function, that the error did not influence the fact-finder. Bell v. Commonwealth, 47 Va. App. 126, 622 S.E.2d 751, 2005 Va. App. LEXIS 493 (2005).

Because appellant, who was convicted of possession with intent to sell marijuana, did not comply with the filing requirement under § 19.2-187 , and § 19.2-187.1 is not applicable when the defendant seeks to admit a certificate of analysis, the circuit court did not err in excluding the certificate at trial. Samson v. Commonwealth, No. 0528-16-4, 2017 Va. App. LEXIS 121 (May 2, 2017).

Filing requirements and legislative intent. There is no indication that the legislature intended that the filing requirements of this section relate only to the seven consecutive days immediately preceding a hearing or trial. Mostyn v. Commonwealth, 14 Va. App. 920, 420 S.E.2d 519 (1992).

Timing of indictment, filing of certificate. - This section contains no requirement that the indictment precede the filing of the certificate. The provisos of the statute having been satisfied, the trial court did not err in admitting the certificate into evidence. Blackwell v. Commonwealth, No. 0124-94-3 (Ct. of Appeals July 25, 1995).

Commencement of bench trial. - For most purposes, a bench trial begins when the trial court starts to hear evidence because at that point, a bench trial commences for double jeopardy purposes and likewise triggers the timing of the speedy trial statute; there is no reason why the same principle should not also govern the commencement of bench trials for purposes of § 19.2-187 's pretrial disclosure requirements. Bolden v. Commonwealth, 49 Va. App. 285, 640 S.E.2d 526, 2007 Va. App. LEXIS 52 (2007).

Authentication of date stamp. - The Commonwealth must authenticate a date stamp used as proof that a certificate was timely filed with the circuit court but the court may take judicial notice of the date stamp's authenticity where the identity of the official date stamp of the court clerk's office is easily ascertainable from a reliable source such that a reasonably informed person would not regard the identity of the trial court's official date stamp as reasonably subject to dispute. Taylor v. Commonwealth, 28 Va. App. 1, 502 S.E.2d 113 (1998).

Signature requirement. - In order to be admissible as an exception to the hearsay rule, a certificate introduced under this section must bear the examiner's signature as part of an attestation clause included on the certificate. Petit Frere v. Commonwealth, 19 Va. App. 460, 452 S.E.2d 682 (1995).

Signature need not be notarized. - This section does not require notarization of the preparer's signature. Petit Frere v. Commonwealth, 19 Va. App. 460, 452 S.E.2d 682 (1995).

This section should be construed strictly against the Commonwealth and in favor of the accused, particularly the filing requirements. Gray v. Commonwealth, 220 Va. 943 , 265 S.E.2d 705 (1980).

Although the court must construe this section strictly against the Commonwealth and in favor of the accused, this section only requires that the certificate be filed. Mostyn v. Commonwealth, 14 Va. App. 920, 420 S.E.2d 519 (1992).

Because this statute deals with criminal matters, and it undertakes to make admissible evidence which otherwise might be objectionable, it should be construed strictly against the Commonwealth and in favor of the accused. Winston v. Commonwealth, 16 Va. App. 901, 434 S.E.2d 4 (1993).

This section should be construed strictly against the Commonwealth and in favor of the accused, because it undertakes to make admissible evidence which otherwise might be subject to a valid hearsay objection. Coleman v. Commonwealth, 27 Va. App. 768, 501 S.E.2d 461 (1998).

Statute sets forth specific safeguards with which Commonwealth must comply. - The statute sets forth specific safeguards with which the Commonwealth must comply when it seeks to have a certificate of drug analysis admitted into evidence without independently proving the test results or authenticity of the report. Myrick v. Commonwealth, 13 Va. App. 333, 412 S.E.2d 176 (1991); Taylor v. Commonwealth, 28 Va. App. 1, 502 S.E.2d 113 (1998).

This section provides a basis for admitting into evidence the results of an analysis performed by the Division of Forensic Science [now the Department of Forensic Science] or the Division of Consolidated Laboratory Services when the certificate showing the results is attested by the person who performed the test, without requiring that person to appear at trial. Galbraith v. Commonwealth, 18 Va. App. 734, 446 S.E.2d 633 (1994).

Statement of admissibility is complete when the provisos are satisfied. - The first paragraph of this section sets forth a specific statement of admissibility of certificates of laboratory analysis subject to provisos expressly stated: When those provisos are satisfied, the statement of admissibility is complete, and a certificate thus qualified is properly received into evidence. Stokes v. Commonwealth, 11 Va. App. 550, 399 S.E.2d 453 (1991).

Once the integrity of the chain is properly established and the remaining provisions of this section and § 19.2-187.01 are satisfied, a certificate of analysis shall be admissible as evidence of facts therein stated and the results of the analysis or examination referred to therein. Crews v. Commonwealth, 18 Va. App. 115, 442 S.E.2d 407 (1994).

The admissibility of a certificate of blood analysis prepared pursuant to former § 18.2-268 (now § 18.2-268.1 et seq.) is governed by the requirements of this section. Basfield v. Commonwealth, No. 0291-89-2 (Ct. of Appeals Oct. 2, 1990); Basfield v. Commonwealth, 11 Va. App. 122, 398 S.E.2d 80 (1990).

Failure to comply with filing provisions renders certificate inadmissible. - In the absence of the preparer of the certificate of analysis as a witness at trial, the failure of the Commonwealth fully to comply with the filing provisions of this section renders the certificate inadmissible. Gray v. Commonwealth, 220 Va. 943 , 265 S.E.2d 705 (1980).

If the preparer of the certificate is not produced as a witness at trial, the failure of the Commonwealth fully to comply with the filing provisions of this section renders the certificate inadmissible. Nonnemacker v. Commonwealth, No. 0367-88-2 (Ct. of Appeals Sept. 11, 1990).

A certificate of analysis is not admissible if the commonwealth fails strictly to comply with the provisions of this section. Woodward v. Commonwealth, 16 Va. App. 672, 432 S.E.2d 510 (1993).

As defendant's request to the Commonwealth for copy of the analysis of his breath alcohol content was in proper form, but the certificate was not provided as required by § 19.2-187 , his conviction of driving under the influence was reversed; and since the trial court expressly ruled that the remaining evidence was by itself insufficient to convict, the warrant was dismissed. Dotson v. Commonwealth, No. 1416-02-2, 2003 Va. App. LEXIS 282 (Ct. of Appeals May 6, 2003).

Manner in which certificates marked not prescribed. - Section 19.2-187 does not prescribe the manner in which a clerk's office must mark certificates of analysis; accordingly, if there is an objective basis in the record from which a fact finder can determine if and when the certificate was filed in the court, § 19.2-187 is satisfied. Cephas v. Commonwealth, No. 3359-01-4, 2003 Va. App. LEXIS 114 (Ct. of Appeals Mar. 4, 2003).

Prejudice to defendant need not be shown. - Prejudice to the defendant from a failure to comply with this section need not be shown in order to hold evidence inadmissible. Woodward v. Commonwealth, 16 Va. App. 672, 432 S.E.2d 510 (1993).

Defendant's conviction for possession of heroin was reversed and the case remanded for new trial because the admission of a certificate of analysis is always deemed prejudicial. Sheppard v. Commonwealth, No. 1270-03-1, 2004 Va. App. LEXIS 340 (Ct. of Appeals July 13, 2004).

Certificates admissible although improperly filed. - Where certificates of analysis of the controlled substances found in the defendant's vehicle pertaining to each of the charges were filed with the clerk of the court more than seven days before the trial, but the certificates, although filed in the defendant's files, were not filed in the correct ones, and the record did not reflect that the defendant had been harmed in any manner by the way the certificates were filed, the trial court properly admitted the certificates into evidence. Burns v. Commonwealth, No. 1571-89-4 (Ct. of Appeals Dec. 11, 1990).

Certificate inadmissible absent strict compliance. - In the absence of strict compliance with filing requirement of this section, the certificates were inadmissible and prejudice to the defendant would be presumed. Allen v. Commonwealth, 3 Va. App. 657, 353 S.E.2d 162 (1987).

Although the legislature has excepted a certificate of analysis prepared in accordance with this section from the disability of hearsay, a certificate lacking the requisite attestation clause or otherwise not in "strict compliance" with the statute remains "subject to a valid hearsay objection." Payne v. Commonwealth, No. 2870-95-4, 1997 Va. App. LEXIS 166 (Ct. of Appeals Mar. 25, 1997).

Filing in general district court not authorized as substitute for filing in circuit court. - This section requires that the certificate shall be filed with the clerk of the court hearing the case at least seven days prior to hearing or trial. The statute does not authorize filing in the general district court as a substitute for the proviso that the certificate be filed in the circuit court at least seven days prior to the hearing in the circuit court. Allen v. Commonwealth, 3 Va. App. 657, 353 S.E.2d 162 (1987).

Trial court did not err in admitting certificate of analysis. - Defendant's claim that the trial court erred in admitting a breath test certificate because the Commonwealth did not prove the certificate was filed seven days prior to trial with the clerk of the trial court as required by § 19.2-187 , was without merit, as the order of the general district court transferring the case to the trial court was stamped "filed"; when the order arrived in the trial court clerk's office and was stamped as "filed," it was accompanied by the other papers in the case, including the certificate, all of which were "filed" when the order was filed with the clerk. Cephas v. Commonwealth, No. 3359-01-4, 2003 Va. App. LEXIS 114 (Ct. of Appeals Mar. 4, 2003).

Because this section did not not require a preliminary finding of fact that no alcohol was consumed by a defendant between her act of driving and the blood alcohol test, the trial court properly admitted the certificate of analysis. Acheson v. Commonwealth, No. 1706-03-4, 2004 Va. App. LEXIS 566 (Ct. of Appeals Nov. 16, 2004).

On appeal from a conviction of possession of cocaine, pursuant to § 18.2-250 , the appeals court found that no error resulted from the trial court's admission of a certificate of analysis, as such was turned over to defendant's first counsel, but lost as a result of transferring defendant's case file to his second counsel, and absent evidence to the contrary, such did not impute fault to the Commonwealth. Hobson v. Commonwealth,, 2007 Va. App. LEXIS 388 (Oct. 23, 2007).

Certificate of analysis confirming the substance defendant distributed was cocaine was lodged in the file for a related case charging distribution of cocaine. Thus, the certificate was accessible and available to defendant, satisfying both the letter and spirit of § 19.2-187 . Stevens v. Commonwealth,, 2008 Va. App. LEXIS 412 (Sept. 2, 2008).

Certificate properly admitted. - Certificate of analysis was properly admitted as it was filed in compliance with this section where it was filed in the general district court, a stapled packet of paperwork was received by the trial court from the general district court, and despite the trial court clerk's failure to mark the certificate as filed, it had identical holes to other district court documents the clerk had marked as filed; further, a second copy of the certificate was stapled to the Commonwealth's response to the trial court's discovery order. Holmes v. Commonwealth, No. 2929-03-1, 2004 Va. App. LEXIS 601 (Ct. of Appeals Dec. 7, 2004).

Commonwealth may introduce certificate. - Disjunctive "or" as used in the statute provides the Commonwealth with the opportunity of filing the certificate seven days prior to a preliminary hearing or satisfying the subsection A of § 19.2-187.1 requirements; read together, §§ 19.2-187 and 19.2-188 clearly indicate that at a preliminary hearing the Commonwealth may introduce the certificate itself. Amonett v. Commonwealth, 70 Va. App. 1, 823 S.E.2d 504, 2019 Va. App. LEXIS 41 (2019).

Evidence sufficient to support finding of compliance with this section. - Evidence consisting of the notation that the document was filed on a certain date with the initials of the deputy clerk on the face of the certificate was sufficient to support the finding of the trial court that it was filed in compliance with this section. Carter v. Commonwealth, No. 1930-89-2 (Ct. of Appeals March 26, 1991).

The notation that the document had been "filed" and date and initials of the deputy clerk who filed it were sufficient for the trial court to determine that the certificate had been filed in that court. Carter v. Commonwealth, 12 Va. App. 156, 403 S.E.2d 360 (1991).

Where the trial judge found the original was simply missing without explanation, and the record contained no evidence or testimony from the clerk's office that the certificate in fact had been filed but was misplaced, there was no evidence in the record to support a finding that the certificate was filed in accordance with the mandates of this section. The evidence that the police had in their possession a copy of a certificate stamped "filed on May 27, 1988," was insufficient to establish that the original certificate was properly filed. Johnson v. Commonwealth, No. 1573-89-3 (Ct. of Appeals April 9, 1991).

Where the record was clear that the challenged certificate of analysis was properly filed with the clerk "at least seven days prior" to trial in compliance with this section, and it was thereafter accessible and available to defendant because it was lodged with another certificate which related to simultaneously tried offenses, both the letter and spirit of this section were fully satisfied. Harshaw v. Commonwealth, 16 Va. App. 69, 427 S.E.2d 733 (1993).

Trial court reasonably inferred from partially legible information on copy of certificate of analysis from Bureau of Forensic Science in cocaine distribution case that certificate was filed in the proper court at least seven days prior to trial. Waller v. Commonwealth, 27 Va. App. 71, 497 S.E.2d 508 (1998).

This section does not require that the certificates must be filed according to any particular system, only in a way which is accessible to the accused and available to him on request; therefore there was no requirement for evidence showing that certificate filed in cocaine buyer's file also was filed in defendant's file. Waller v. Commonwealth, 27 Va. App. 71, 497 S.E.2d 508 (1998).

The Commonwealth complied with the statute and, therefore, the court properly admitted a certificate of blood alcohol analysis into evidence where the attorney for the Commonwealth timely mailed a copy of the certificate to defendant's counsel prior to trial in the circuit court, notwithstanding defendant's counsel's contention that he never received the document. Johnson v. Commonwealth, No. 2371-97-2 (Ct. of Appeals Oct. 27, 1998).

The presence of a certificate of analysis in the proper circuit court case file at least seven days before trial was sufficient to permit its admissibility under the statute even without proof of filing. Hopkins v. Commonwealth, No. 0644-98-2 (Ct. of Appeals Apr. 27, 1999).

III. REQUEST FOR COPY OF CERTIFICATE.

Failure to specifically request certificate. - Where the defendant chose to move the trial court to enter a discovery order, which was a request directed to the trial court and not a direct request to the clerk or the Commonwealth's Attorney, the fact that a copy of the request had to be mailed to the opposing counsel was not sufficient to alert either the clerk or the Commonwealth's Attorney that the motion was a request pursuant to this section, and because the defendant did not make a sufficient request, the trial court did not err in admitting the certificate of analysis even though the defendant had not been provided with a copy of it seven days before trial. Smith v. Commonwealth, No. 2077-99-2, 2000 Va. App. LEXIS 520 (Ct. of Appeals July 18, 2000).

Request for discovery rather than proceeding under this section. - Because a defendant, who was charged with misdemeanor possession of marijuana, chose to seek discovery of a certificate of analysis under Rule 3A:11, which is not applicable to misdemeanor cases, instead of directly proceeding under this section, his request for the certificate of analysis was not valid and the court did not err in admitting the certificate into evidence even though a copy of it had not been provided to the defendant seven days before trial. Lewis v. Commonwealth, No. 2479-99-1, 2000 Va. App. LEXIS 560 (Ct. of Appeals Aug. 1, 2000).

The trial court did not err in admitting into evidence a certificate of analysis because defendant failed to satisfy the requirement of § 19.2-187 where he chose discovery under Va. Sup. Ct. Rule 3A:11, which was a method not available to him as he was charged with a misdemeanor, not a felony. Lewis v. Commonwealth, No. 2479-99-1, 2001 Va. App. LEXIS 604 (Ct. of Appeals Mar. 20, 2001).

Appellant entitled to subpoena writings used by chemist. - In trial for possession of cocaine with the intent to distribute, pursuant to Supreme Court Rule 3A:11, appellant was entitled to subpoena all writings used by chemist to conclude that the substance examined and tested by him was cocaine. Ellis v. Commonwealth, 14 Va. App. 18, 414 S.E.2d 615 (1992).

Failure to comply with mailing provisions. - Clerk failed to comply with appellant's request for a copy of certificate prior to his trial. Because the mailing requirement was not satisfied, trooper's hearsay statements contained in the certificate were not admissible as evidence of the facts and the results of the analysis referred to therein. Hughes v. Commonwealth, No. 2802-96-4 (Ct. of Appeals Nov. 25, 1997).

Defendant's claim that court erred in admitting certificate of analysis because Commonwealth failed to mail or deliver a copy of the certificate upon request of the defendant, as required by this section, was without merit. Defendant never made a direct request for the certificate as provided under this section, and instead endorsed the discovery order which directed that all discovery would take place in the Commonwealth Attorney's office, and failed to appear at the prosecutor's office for discovery of the certificate. By failing to conduct discovery as prescribed by the discovery order, defendant waived any objection concerning delivery of the certificate to him. Coleman v. Commonwealth, 27 Va. App. 768, 501 S.E.2d 461 (1998).

Untimely delivery. - Delivery of the certificate of analysis to defendant's counsel three days before trial was not timely. Copeland v. Commonwealth, 19 Va. App. 515, 452 S.E.2d 876 (1995).

Continuance not remedy for noncompliance. - Continuance for seven days after trial had begun would not allow the Commonwealth to comply with clause (ii) of this section [now the second paragraph]. Clause (ii) requires that the certificate be mailed or delivered to counsel "at least seven days prior to . . . trial." A continuance of any length after the trial had begun would not have remedied the Commonwealth's noncompliance. Bottoms v. Commonwealth, 20 Va. App. 466, 457 S.E.2d 796 (1995).

Continuance properly granted. - Trial court did not abuse its discretion in granting the Commonwealth a continuance, even though it had not complied with this section, as the Commonwealth had complied with § 19.2-187 by the continued date, when the bench trial actually began and the trial court began to take evidence. Bolden v. Commonwealth, 49 Va. App. 285, 640 S.E.2d 526, 2007 Va. App. LEXIS 52 (2007).

CIRCUIT COURT OPINIONS

Applicability. - Although Virginia case law has required strict compliance with § 19.2-187 , which requires the Commonwealth to file a certificate of analysis at least one week prior to trial in a DUI case, where § 19.2-187 is not implicated, denial of a continuance does not preclude the granting of a nolle prosequi under § 19.2-265.3 , even where both motions are predicated on the same assertions. Commonwealth v. Van Luu, 79 Va. Cir. 43, 2009 Va. Cir. LEXIS 69 (Fairfax Apr. 14, 2009).

Exception to hearsay rule. - Trial court overruled defendant's objection to the admission of a laboratory certificate of analysis stating that the substance defendant possessed was cocaine, as statutory law allowed for the admission of such evidence, and gave the accused the right to summon the person performing the chemical analysis and examine him as an adverse witness; as a result, admission of that evidence was recognized as an exception to the hearsay rule and defendant's confrontation clause rights were not violated since the statute gave him a right to confront the person who authored the certificate. Commonwealth v. Williams, 69 Va. Cir. 277, 2005 Va. Cir. LEXIS 322 (Charlottesville 2005).

OPINIONS OF THE ATTORNEY GENERAL

Accused, or his counsel, need not be in possession of copy of certificate of analysis within seven days of hearing or trial. - Requirement that copy of certificate of analysis be "mailed or delivered" to counsel for accused at least seven days before hearing or trial does not impose condition that the accused, or his counsel, be in possession of such copy within seven days of hearing or trial. See opinion of Attorney General to The Honorable George W. Grayson, Member, House of Delegates, 00-099 (11/20/00).

§ 19.2-187.01. Certificate of analysis as evidence of chain of custody of material described therein.

A report of analysis duly attested by the person performing such analysis or examination in any laboratory operated by (i) the Division of Consolidated Laboratory Services, the Department of Forensic Science or any of its regional laboratories, or by any laboratory authorized by such Division or Department to conduct such analysis or examination; (ii) the Federal Bureau of Investigation; (iii) the federal Bureau of Alcohol, Tobacco and Firearms; (iv) the Naval Criminal Investigative Service; (v) the federal Drug Enforcement Administration; (vi) the United States Postal Service; (vii) the U.S. Secret Service; or (viii) the Forensic Document Laboratory of the U.S. Department of Homeland Security shall be prima facie evidence in a criminal or civil proceeding as to the custody of the material described therein from the time such material is received by an authorized agent of such laboratory until such material is released subsequent to such analysis or examination. Any such certificate of analysis purporting to be signed by any such person shall be admissible as evidence in such hearing or trial without any proof of the seal or signature or of the official character of the person whose name is signed to it. The signature of the person who received the material for the laboratory on the request for laboratory examination form shall be deemed prima facie evidence that the person receiving the material was an authorized agent and that such receipt constitutes proper receipt by the laboratory for purposes of this section. For purposes of this section, any laboratory that has entered into a contract with the Department of Forensic Science for the provision of forensic laboratory services shall be deemed authorized by the Department to conduct such analyses or examinations.

(1979, c. 364; 1989, c. 458; 1990, cc. 548, 825; 1991, c. 687; 1993, c. 32; 1994, c. 375; 1995, c. 437; 2005, cc. 868, 881; 2011, c. 645; 2015, cc. 75, 126; 2019, cc. 478, 479.)

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and in the first sentence, substituted "Department" for "Division" and "such" for "either" following "any laboratory authorized by," and inserted "or Department" preceding "to conduct such analysis"; and made minor stylistic changes.

The 2011 amendments. - The 2011 amendment by c. 645, in the first sentence, substituted "U.S. Secret Service" for "United States Secret Service" in clause (i), added clause (viii), and made a related change.

The 2015 amendments. - The 2015 amendments by cc. 75 and 126 are identical, and substituted "United States Postal Service" for "Postal Inspection Service" in clause (vi) in the first sentence.

The 2019 amendments. - The 2019 amendments by cc. 478 and 479 are identical, and added the last sentence.

Law review. - For survey of Virginia law on evidence for the year 1978-1979, see 66 Va. L. Rev. 293 (1980).

Research References. - Virginia Forms (Matthew Bender). No. 9-1609. Objection to Admission of Certificate of Analysis (Another Form).

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 92; 5B M.J. Criminal Procedure, § 56.

CASE NOTES

The underlying rationale of this section was to relieve the Commonwealth of having to call into court every employee who handled tested material to prove its chain of custody. Dunn v. Commonwealth, 20 Va. App. 217, 456 S.E.2d 135 (1995).

This section relieves the Commonwealth of having to present testimony regarding the chain of custody of an analyzed or examined substance, provided certain safeguards are met. Harris v. Commonwealth, 261 Va. 185 , 541 S.E.2d 547, 2001 Va. LEXIS 7 (2001).

Standard of proof. - The chain of custody rule requires a showing with reasonable certainty that the item has not been altered, substituted, or contaminated prior to analysis, in any way that would affect the results of the analysis. In proving the chain of custody, however, the Commonwealth is not required to exclude every conceivable possibility of substitution, alteration or tampering. Feltner v. Commonwealth, No. 2596-95-4 (Ct. of Appeals Oct. 1, 1996).

The statutory scheme for establishing proper receipt is not the only method of proof available to the Commonwealth. This section does not require the signature of the person who received the evidence to be on the certificate of analysis; rather, it specifies that a signature on the request for laboratory examination form is prima facie evidence that the individual is an authorized agent of the laboratory. This section does not specifically require the Commonwealth to identify the recipient of analyzed material evidence only through a request for laboratory examination form. The agency relationship may be established by other evidence. Feltner v. Commonwealth, No. 2596-95-4 (Ct. of Appeals Oct. 1, 1996).

"Laboratory." - A common-sense analysis of the 1991 amendment to this section belies appellant's argument and confirms that "laboratory" refers not to one specific testing site (for example, Building A of the Northern Laboratory of the Division of Forensic Science), but to the entire state-approved entity, such as the laboratories that comprise either of the Division systems or the other enumerated agencies. Dunn v. Commonwealth, 20 Va. App. 217, 456 S.E.2d 135 (1995).

Section has no filing requirement for certificates of analysis. - Where, in possession of cocaine case, certificate of analysis was not timely filed according to § 19.2-187 and where defendant contended that admission of certificate prejudiced him by establishing link in chain-of-custody of cocaine before trial, certificate was properly admitted for this limited purpose since this section provides that certificate of analysis from any laboratory operated by Division of Consolidated Laboratory Services is prima facie evidence of laboratory's custody of evidence and unlike § 19.2-187 , this section does not make filing of certificate with court seven days prior to trial prerequisite to admission into evidence. Smith v. Commonwealth, No. 0783-87-2 (Ct. of Appeals Mar. 21, 1989).

The trial court did not err in allowing the Commonwealth to rely on certificates of analysis to establish prima facie evidence of the chain of custody of a sample, notwithstanding that the certificates were not timely filed according to § 19.2-187 . Jackson v. Commonwealth, No. 0075-98-4 (Ct. of Appeals Feb. 23, 1999).

This section does not specifically require the Commonwealth to identify the recipient of analyzed material evidence only through a request for laboratory examination form; the agency relationship prescribed by this section may be established by other evidence. Harshaw v. Commonwealth, 16 Va. App. 69, 427 S.E.2d 733 (1993).

Once the integrity of the chain is properly established and the remaining provisions of § 19.2-187 and this section are satisfied, a certificate of analysis shall be admissible as evidence of facts therein stated and the results of the analysis or examination referred to therein. Crews v. Commonwealth, 18 Va. App. 115, 442 S.E.2d 407 (1994).

Forensic scientists need not physically receive mail for purposes of chain of custody. - Nothing in § 19.2-187.01 requires the forensic scientists in the Virginia Division of Forensic Science [now the Department of Forensic Science] to physically receive the mail from the postman or sign the postal receipts; postal receipts addressed to the Division give rise to a presumption of receipt by the Division. Martin v. Commonwealth, No. 1221-02-2, 2003 Va. App. LEXIS 341 (Ct. of Appeals June 17, 2003).

Presumption of regularity. - In cases where authorized personnel handle a tested material, a "presumption of regularity" attaches at the moment the material is received by an authorized agent of any of the listed entities until it is released after analysis. Dunn v. Commonwealth, 20 Va. App. 217, 456 S.E.2d 135 (1995).

Forensic scientist could properly testify regarding his analysis of gunshot residue test, notwithstanding Commonwealth's failure to introduce certificate of analysis, where Commonwealth did not rely upon certificate of analysis and its accompanying attestation to establish chain of custody, but upon testimony of scientist and investigating officer who administered test. Hill v. Commonwealth, No. 2336-98-1 (Ct. of Appeals Nov. 23, 1999).

Appellant entitled to subpoena writings used by chemist. - In trial for possession of cocaine with the intent to distribute, pursuant to Sup. Ct. R. 3A:11, appellant was entitled to subpoena all writings used by chemist to conclude that the substance examined and tested by him was cocaine. Ellis v. Commonwealth, 14 Va. App. 18, 414 S.E.2d 615 (1992).

Specific statute governs over general one. - When one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, the two should be harmonized, if possible, and where they conflict, the latter prevails, and because § 18.2-268 (now repealed) is more specific than this code section statute and directly applies to blood alcohol test results, § 18.2-268 (now repealed) is applicable to the facts of this case. Hilberath v. Commonwealth, No. 0351-92-4 (Ct. of Appeals Mar. 8, 1994).

Transfer does not eliminate benefit of prima facie proof. - Because the Commonwealth presented a duly attested certificate of analysis, it established its prima facie evidence of chain of custody. The Commonwealth did not lose the benefit of its prima facie proof when the cocaine was transferred between regional laboratories within the Division of Forensic Science [now the Department of Forensic Science]. While the relevant statutory sections are construed strictly against the Commonwealth, no language in this section compels the conclusion that the General Assembly intended to eliminate the presumed, valid chain of custody when items are transferred between Division laboratories. Dunn v. Commonwealth, 20 Va. App. 217, 456 S.E.2d 135 (1995).

Receipt by authorized agent. - Because Commonwealth established that evidence submitted was the same as that tested and that it had not been altered, substituted or contaminated prior to testing, any lack of proof regarding identity of the "authorized agent" at testing laboratory who received the evidence was harmless. Harris v. Commonwealth, No. 0909-99-1 (Ct. of Appeals Mar. 7, 2000).

The record sufficiently established an unbroken chain in the custody of the subject cocaine where the informant gave the police officer the substance obtained from defendant within minutes of the transaction, and he subsequently sealed and mailed it to the forensic laboratory for analysis, together with a request for analysis which fully and correctly identified the instant offense and related evidence. Crews v. Commonwealth, 18 Va. App. 115, 442 S.E.2d 407 (1994).

Valid chain of custody established. - Appellate court rejected defendant's claim that the Commonwealth failed to establish a valid chain of custody for drugs that were admitted into evidence at trial, in part because defendant failed to challenge the fact that a state trooper who testified did not identify the drugs as the drugs he purchased from defendant when the Commonwealth offered the drugs as evidence. Smith v. Commonwealth, No. 2268-02-2, 2004 Va. App. LEXIS 66 (Ct. of Appeals Feb. 10, 2004).

Where the Commonwealth proved with reasonable certainty that there had been no substitution, contamination, or alteration of cigar butts and green plant material seized from defendant's car, the trial court properly found that the Commonwealth established the chain of custody and properly permitted the introduction of the certificate of analysis into evidence in defendant's prosecution for possession of marijuana. Tyler v. Commonwealth, No. 0096-04-2, 2005 Va. App. LEXIS 112 (Ct. of Appeals Mar. 22, 2005).

Circuit court did not abuse its discretion in admitting the certificate of analysis into evidence when the circuit court, which observed the evidence, made a factual finding that the discrepancies between the descriptions on the request for examination form and certificate of analysis were not contradictory, and the Commonwealth presented sufficient evidence to establish with reasonable certainty that there had been no alteration or substitution of the evidence. Herndon v. Commonwealth, 280 Va. 138 , 694 S.E.2d 618, 2010 Va. LEXIS 70 (2010).

Trial court did not abuse its discretion in defendant's trial for aggravated sexual battery by admitting evidence prepared by Virginia Department of Forensic Science personnel, including certificates of analysis for DNA tests, blood stain cards, and fabric swatch. Although there were gaps in the chain of custody as to the blood stain cards and swatch of underwear fabric, defendant cited no evidence suggesting that the evidence was contaminated or tampered with when it was in police custody so that any doubt went to the weight of the evidence. Kumar v. Commonwealth, No. 1636-15-4, 2017 Va. App. LEXIS 232 (Sept. 5, 2017).

Contamination possibility properly rejected. - Results of the drug and DNA analyses were properly admitted as the possibility of contamination could be rejected where: (1) officer one testified that defendant had not been seated where he placed the drugs; (2) the forensic scientist testified that contamination was unlikely for a clothed individual and that passive contamination would not account for the amount of DNA he detected; (3) although the forensic scientist raised a possibility of DNA transfer from visible liquid stains on the seat, both officers testified that defendant was not sweating and that neither defendant nor the seat were visibly wet; and (4) defendant did not explain how the lab director's failure to follow the analysts' procedures could have contaminated the sample. Jones v. Commonwealth, No. 0448-12-1, 2013 Va. App. LEXIS 352 (Dec. 3, 2013).

Commonwealth established a proper chain of custody with regard to the plastic bags found in a car in which defendant was riding as a passenger where: (1) all of the witnesses agreed that there were 16 individually wrapped baggies containing suspected, and later confirmed, cocaine; (2) the testimony of the investigator, the laboratory director and a forensic scientist explained why the laboratory director and the investigator counted the bags differently; (3) a fact finder could conclude that there was no reasonable likelihood of substitution or tampering; and (4) the investigator and the laboratory director testified to the safeguards put into place in the police department and within the lab to protect the evidence and to ensure its integrity. Jones v. Commonwealth, No. 0448-12-1, 2013 Va. App. LEXIS 352 (Dec. 3, 2013).

Certificates of analysis properly admitted. - Trial court properly admitted into evidence two certificates of analysis as evidence of the chain of custody of the drugs seized during the drug sales under § 19.2-187.01 where: (1) the initials on the postal receipts matched those on the Request for Laboratory Examination; (2) a police officer mailed the narcotics to the Virginia Division of Forensic Science [now the Department of Forensic Science], which verified its receipt by executing the Request for Laboratory Examination; (3) the receipt alone established prima facie evidence of the chain of custody; and (4) that the initials on the postal receipts were not consistent with the signatures on the two Requests for Laboratory Examination did not undermine the statutory inference under § 19.2-187.01 . Martin v. Commonwealth, No. 1221-02-2, 2003 Va. App. LEXIS 341 (Ct. of Appeals June 17, 2003).

Trial court was authorized to admit authenticated certificates of analysis that permitted a prima facie inference that the Commonwealth's forensic science department maintained a proper chain of custody at all times while the relevant testing samples in defendant's case were in the laboratory; too, since the certificates were not testimonial in nature, the inference did not violate the Confrontation Clause and the chain-of-custody proof was sufficient to support defendant's convictions. Anderson v. Commonwealth, 48 Va. App. 704, 634 S.E.2d 372, 2006 Va. App. LEXIS 414 (2006), aff'd, 274 Va. 469 , 650 S.E.2d 702, 2007 Va. LEXIS 115 (Va. 2007).

Court affirmed defendant's drug conviction under § 18.2-248 because defendant's objection to the chain of custody of evidence could not be sustained as the Commonwealth had established prima facie evidence that the Division of Forensic Science (DFS) properly had custody of the evidence under § 19.2-187.01 ; section 19.2-187.01 authorized the trial court to receive a certificate of analysis as evidence of the chain of custody of the material tested. When the Commonwealth presented a duly attested certificate of analysis, it established "prima facie evidence" that DFS had custody of the material described therein from the time such material was received by an authorized agent of such laboratory until such material was released. Mitchell v. Commonwealth,, 2006 Va. App. LEXIS 499 (Nov. 7, 2006).

Admission of the certificate of analysis relating to defendant's DNA sample did not violate the Confrontation Clause because the author of the certificate of analysis appeared at trial, testified as to its contents, and defendant had an opportunity to cross-examine the author. In addition, defendant suffered no Confrontation Clause violation regarding the presumption contained in § 19.2-187.01 , because it was not testimonial in nature. Anderson v. Commonwealth, 274 Va. 469 , 650 S.E.2d 702, 2007 Va. LEXIS 115 (2007), cert. denied, Anderson v. Virginia, 553 U.S. 1054, 128 S. Ct. 2473, 2008 U.S. LEXIS 4189 (U.S. 2008).

Applied in Alvarez v. Commonwealth, 24 Va. App. 768, 485 S.E.2d 646 (1997); Johnson v. Commonwealth, 259 Va. 654 , 529 S.E.2d 769, 2000 Va. LEXIS 60; Wimbish v. Commonwealth, 51 Va. App. 474, 658 S.E.2d 715, 2008 Va. App. LEXIS 168 (2008); Hargrove v. Commonwealth, 53 Va. App. 545, 673 S.E.2d 896, 2009 Va. App. LEXIS 123 (2009).

CIRCUIT COURT OPINIONS

Medical record admissible as business record. - Commonwealth of Virginia was permitted to introduce into evidence, at defendant's trial, the deceased, alleged victim's medical records from a hospital because the tests performed by the staff of the hospital were classified as business records and admissible as the tests were of the nature generally administered in the context of an emergency. Defendant was entitled to introduce affirmative evidence that the chain of custody was unreliable. Commonwealth v. Vatter, 99 Va. Cir. 1, 2017 Va. Cir. LEXIS 629 (Augusta County Aug. 4, 2017).

§ 19.2-187.02. Admissibility of written reports or records of blood alcohol tests conducted in the regular course of providing emergency medical treatment.

  1. Notwithstanding any other provision of law, the written reports or records of blood alcohol tests conducted upon persons receiving medical treatment in a hospital or emergency room are admissible in evidence as a business records exception to the hearsay rule in prosecutions for any violation of § 18.2-266 (driving while intoxicated) or a substantially similar local ordinance, § 18.2-36.1 (involuntary manslaughter resulting from driving while intoxicated), § 18.2-36.2 (involuntary manslaughter resulting from boating while intoxicated), § 18.2-51.4 (maiming resulting from driving while intoxicated), § 18.2-51.5 (maiming resulting from boating while intoxicated), § 29.1-738 (boating while intoxicated), or § 46.2-341.24 (driving a commercial vehicle while intoxicated).
  2. The provisions of law pertaining to confidentiality of medical records and medical treatment shall not be applicable to reports or records of blood alcohol tests sought or admitted as evidence under the provisions of this section in prosecutions as specified in subsection A. Owners or custodians of such reports or records may disclose them, in accordance with regulations concerning patient privacy promulgated by the U.S. Department of Health and Human Services, without obtaining consent or authorization for such disclosure. No person who is involved in taking blood or conducting blood alcohol tests shall be liable for civil damages for breach of confidentiality or unauthorized release of medical records because of the evidentiary use of blood alcohol test results under this section, or as a result of that person's testimony given pursuant to this section.

    (2002, c. 749; 2005, c. 801; 2007, cc. 379, 679.)

The 2005 amendments. - The 2005 amendment by c. 801, in subsection A, substituted "reports or records" for "results," and inserted "or" preceding "emergency room"; in subsection B, substituted "sought or admitted as evidence" for "performed" and inserted the second sentence.

The 2007 amendments. - The 2007 amendments by cc. 379 and 679 are nearly identical, and inserted " § 18.2-36.2 (involuntary manslaughter resulting from boating while intoxicated)" and " § 18.2-51.5 (maiming resulting from boating while intoxicated), § 29.1-738 (boating while intoxicated)" in subsection A.

Law review. - For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, "Civil Practice and Procedure," see 40 U. Rich. L. Rev. 95 (2005).

Michie's Jurisprudence. - For related discussion, see 2B Automobiles, § 118.

CASE NOTES

Admission of hospital toxicology report held proper. - Where blood tests were performed by medical personnel in a hospital emergency room, and the toxicology report was shown to be a business record, recorded in the regular course of hospital business, contemporaneously made, and authenticated by its authorized custodian, such acted as sufficient foundation for the admissibility of the hospital blood test as a business record; further, blood tests performed by medical personnel in a hospital emergency room are not subject to the requirements of § 18.2-268.5 . Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642, 2004 Va. App. LEXIS 496 (2004).

Blood tests performed by medical personnel in a hospital emergency room are not subject to the requirements of § 18.2-268.5 ; further, that statute applies only to blood drawn under the implied consent law. Stevens v. Commonwealth, 46 Va. App. 234, 616 S.E.2d 754, 2005 Va. App. LEXIS 407 (2005), aff'd, 272 Va. 481 , 634 S.E.2d 305 (2006).

Blood alcohol tests properly admitted as business record. - In a prosecution for aggravated involuntary manslaughter, the trial court did not commit reversible error in allowing into evidence the results of a blood alcohol content test performed on a blood sample taken from a defendant in violation of his Fourth, Fifth, and Fourteenth Amendment rights, as: (1) a test conducted by hospital personnel had been independently performed and the written report thereof was admissible under subsection A of § 19.2-187.02 ; (2) defendant consented to a second blood test administered by a deputy sheriff under the implied consent law; (3) evidence of defendant's intoxication was overwhelming despite testing over three times the legal limit; and (4) it was unreasonable to believe that the jury would have rejected the hospital-administered test and accepted, instead, the implied consent law test. Stevens v. Commonwealth, 272 Va. 481 , 634 S.E.2d 305, 2006 Va. LEXIS 87 (2006), cert. denied, 549 U.S. 1350, 127 S. Ct. 2053, 167 L. Ed. 2d 784, 2007 U.S. LEXIS 4119 (U.S. 2007).

OPINIONS OF THE ATTORNEY GENERAL

Because this section is procedural in nature, the Commonwealth may introduce into evidence the written results of a blood alcohol test, even though the accident giving rise to the charge of involuntary manslaughter as a result of driving while intoxicated occurred before the effective date of the statute. See opinion of Attorney General to The Honorable Michael J. Bush, Commonwealth's Attorney for Russell County, 02-128 (12/18/02).

§ 19.2-187.1. Procedures for notifying accused of certificate of analysis; waiver; continuances.

  1. In any trial and in any hearing other than a preliminary hearing, in which the attorney for the Commonwealth intends to offer a certificate of analysis into evidence in lieu of testimony pursuant to § 19.2-187 , the attorney for the Commonwealth shall:
    1. Provide by mail, delivery, or otherwise, a copy of the certificate to counsel of record for the accused, or to the accused if he is proceeding pro se, at no charge, no later than 28 days prior to the hearing or trial;
    2. Provide simultaneously with the copy of the certificate so provided under subdivision 1 a notice to the accused of his right to object to having the certificate admitted without the person who performed the analysis or examination being present and testifying; 2a. When the attorney for the Commonwealth intends to present such testimony through two-way video conferencing, attach to the copy of the certificate provided under subdivision 1 a notice on a page separate from the notice in subdivision 2 specifying that the person who performed the analysis or examination may testify by two-way video conferencing and that the accused has a right to object to such two-way video testimony; and
    3. File a copy of the certificate and notice with the clerk of the court hearing the matter (i) on the day that the certificate and notice are provided to the accused or (ii) in the case of a breath test certificate for a violation of any offense listed in subsection E of § 18.2-270 , no later than three business days following the day that the certificate and notice are provided to the accused.
  2. The accused may object in writing to admission of the certificate of analysis, in lieu of testimony, as evidence of the facts stated therein and of the results of the analysis or examination. Such objection shall be filed with the court hearing the matter, with a copy to the attorney for the Commonwealth, no more than 14 days after the certificate and notice were filed with the clerk by the attorney for the Commonwealth or the objection shall be deemed waived. If timely objection is made, the certificate shall not be admissible into evidence unless (i) the testimony of the person who performed the analysis or examination is admitted into evidence describing the facts and results of the analysis or examination during the Commonwealth's case-in-chief at the hearing or trial and that person is present and subject to cross-examination by the accused, (ii) the objection is waived by the accused or his counsel in writing or before the court, or (iii) the parties stipulate before the court to the admissibility of the certificate. If the accused demands, at hearing or trial, the presence of the person who performed the analysis or examination and he is thereafter found guilty of the charge or charges for which he demanded the presence of such witness, $50 for expenses related to the witness's appearance at hearing or trial shall be charged to the accused as court costs. B1. Except as provided in subsection D of § 19.2-187 , when the attorney for the Commonwealth gives notice to the accused of intent to present testimony by two-way video conferencing, the accused may object in writing to the admission of such testimony and may file an objection as provided in subsection B. The provisions of subsection B shall apply to such objection mutatis mutandis. B2. The two-way video testimony permitted by this section shall comply with the provisions of subsection B of § 19.2-3.1 . In addition, unless otherwise agreed by the parties and the court, (i) all orders pertaining to witnesses apply to witnesses testifying by video conferencing; (ii) upon request, all materials read or used by the witness during his testimony shall be identified on the video; and (iii) any witness testifying by video conferencing shall certify at the conclusion of his testimony, under penalty of perjury, that he did not engage in any off-camera communications with any person during his testimony.
  3. Where the person who performed the analysis and examination is not available for hearing or trial and the attorney for the Commonwealth has used due diligence to secure the presence of the person, the court shall order a continuance. Any continuances ordered pursuant to this subsection shall total not more than 90 days if the accused has been held continuously in custody and not more than 180 days if the accused has not been held continuously in custody.
  4. Any objection by counsel for the accused, or the accused if he is proceeding pro se, to timeliness of the receipt of notice required by subsection A shall be made before hearing or trial upon his receipt of actual notice unless the accused did not receive actual notice prior to hearing or trial. A showing by the Commonwealth that the notice was mailed, delivered, or otherwise provided in compliance with the time requirements of this section shall constitute prima facie evidence that the notice was timely received by the accused. If the court finds upon the accused's objection made pursuant to this subsection, that he did not receive timely notice pursuant to subsection A, the accused's objection shall not be deemed waived and if the objection is made prior to hearing or trial, a continuance shall be ordered if requested by either party. Any continuance ordered pursuant to this subsection shall be subject to the time limitations set forth in subsection C.
  5. Nothing in this section shall prohibit the admissibility of a certificate of analysis when the person who performed the analysis and examination testifies at trial or the hearing concerning the facts stated therein and of the results of the analysis or examination.
  6. The accused in any hearing or trial in which a certificate of analysis is offered into evidence shall have the right to call the person performing such analysis or examination or involved in the chain of custody as a witness therein, and examine him in the same manner as if he had been called as an adverse witness. Such witness shall be summoned and appear at the cost of the Commonwealth; however, if the accused calls the person performing such analysis or examination as a witness and is found guilty of the charge or charges for which such witness is summoned, $50 for expenses related to that witness's appearance at hearing or trial shall be charged to the accused as court costs.
  7. Nothing in this section shall be construed as requiring a locality to purchase a two-way electronic video and audio communication system. Any decision to purchase such a system is at the discretion of the locality.

    (1976, c. 245; 1979, c. 364; 2009, Sp. Sess. I, cc. 1, 4; 2010, cc. 555, 656, 800; 2011, c. 32; 2017, c. 669.)

The 2009 amendments. - The 2009 amendments by Sp. Sess. I, c. 1, effective August 21, 2009, and Sp. Sess. I, c. 4, effective September 15, 2009, are identical, and rewrote the section.

The 2010 amendments. - The 2010 amendment by c. 555 inserted the last sentence in subsection B; inserted subsection E; redesignated former subsection E as subsection F; and inserted "however, if the accused calls the person performing such analysis or examination as a witness and is found guilty of the charge or charges for which such witness is summoned, $50 for expenses related to that witness's appearance at hearing or trial shall be charged to the accused as court costs" at the end of subsection F.

The 2010 amendment by c. 656 inserted "in lieu of testimony" in the introductory language of subsection A; and substituted "Provide simultaneously with" for "Attach to" in subdivision A 2.

The 2010 amendment by c. 800 added subdivision A 2a and subsections B1 and B2.

The 2011 amendments. - The 2011 amendment by c. 32 added the subdivision A 3 (i) designation and subdivision A 3 (ii).

The 2017 amendments. - The 2017 amendment by c. 669 substituted "Except as provided in subsection D of § 19.2-187 , when" for "When" in subsection B1; and added subsection F.

Law review. - For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

For Essay, "The Confrontation Clause and the High Stakes of the Court's Consideration of Briscoe v. Virginia," see 95 Va. L. Rev. In Brief 97 (2010).

Research References. - Virginia Forms (Matthew Bender). No. 9-1608 Objection to Admissions of Certificate of Analysis/Video Testimony, et seq.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 56.

CASE NOTES

Virginia's statutory scheme provides a mechanism for governmental and judicial economy by obviating the need for the prosecution to call the preparer and chain of custody witness. The statutes provide a defendant with adequate notice that the prosecution intends to rely on the certificate and affords a defendant the absolute right to call the preparer or chain of custody witness as an adverse witness should he so desire. Wingfield v. Commonwealth, No. 3000-95-2 (Ct. of Appeals Apr. 1, 1997).

Filing Requirement. - Because appellant, who was convicted of possession with intent to sell marijuana, did not comply with the filing requirement under § 19.2-187 , and § 19.2-187.1 is not applicable when the defendant seeks to admit a certificate of analysis, the circuit court did not err in excluding the certificate at trial. Samson v. Commonwealth, No. 0528-16-4, 2017 Va. App. LEXIS 121 (May 2, 2017).

Certificate properly filed. - Circuit court properly admitted a doctor's testimony that the substance seized by police was marijuana because defendant did not assert that the certificate was not filed seven days in advance of the preliminary hearing; ample other evidence showed that the substance confiscated was marijuana, including defendant's testimony that it was "high quality" marijuana, and the jury could have taken defendant at his own word in the absence of the doctor's testimony. Amonett v. Commonwealth, 70 Va. App. 1, 823 S.E.2d 504, 2019 Va. App. LEXIS 41 (2019).

Failure to offer proof of who had possession at given time. - Where defendant's argument was that he rebutted the prima facie proof of the chain of custody when he proved that analyst could not account for the substance while it was in the possession of other persons at the forensic lab and he could not verify that those persons or someone else did not alter, contaminate, or substitute the substance during the time that analyst could not account for it, a defendant does not rebut the presumption of an unbroken chain of custody by failing to offer proof of who had possession of the substance at a given time or by failing to account for how the person handled the substance at that time. A defendant cannot rebut the presumption by offering evidence that tends to prove only a single link in the chain and by then claiming that the evidence failed to prove or account for other links. Waller v. Commonwealth, No. 1873-95-2 (Ct. of Appeals Aug. 12, 1997).

Varying descriptions of substances. - Where defendant argued that the description of the substance that was analyzed at the laboratory and returned to the court so differed from the description of the substance that was delivered to the lab that there could be no "reasonable assurance" that they were the same substance, and therefore, he argued that the varying descriptions between the two substances rebutted the prima facie case established by the attested certificate and that the trial court erred by admitting the substance and certificate of analysis into evidence, the argument failed because the descriptions were not so dissimilar that they proved that the substance analyzed was different from that submitted. Moreover, the identifying numbers and initials of those persons who delivered and analyzed the substance and their testimony that the substance appeared to be that which they delivered and analyzed was sufficient to prove with "reasonable assurance" that they were the same. Waller v. Commonwealth, No. 1873-95-2 (Ct. of Appeals Aug. 12, 1997).

Access to materials used in preparation of paper. - The truth-finding process may not require that work papers or memoranda that assisted in the preparation of scientific paper be revealed, but it does require that if the scientist used information contained in other authorities to reach his conclusion, the accused is entitled to know what they are so that the challenge anticipated by this section effectively can be made; Supreme Court Rule 3A:11 provides the vehicle to enable the accused to make an intelligent challenge. Ellis v. Commonwealth, 14 Va. App. 18, 414 S.E.2d 615 (1992).

Appellant entitled to subpoena writings used by chemist. - In trial for possession of cocaine with the intent to distribute, pursuant to Supreme Court Rule 3A:11, appellant was entitled to subpoena all writings used by chemist to conclude that the substance examined and tested by him was cocaine. Ellis v. Commonwealth, 14 Va. App. 18, 414 S.E.2d 615 (1992).

Admission of certificate violated Confrontation Clause. - Trial court erred in admitting into evidence a certificate of blood alcohol analysis because the attestation clause included in the certificate was testimonial in nature, and its admission, over the objection of defendant, constituted a violation of the Confrontation Clause when the facts establishing the validity and admissibility of the breath-test result had to be proved by live, in-court testimony; while there is no constitutional requirement that the factual predicates in § 18.2-268.9 be established prior to the admission of the results of the test, once the General Assembly conditions the validity and admissibility of the breath-test results on the proof of those facts, the Commonwealth must prove those facts through live, in-court testimony and not by affidavit. Grant v. Commonwealth, 54 Va. App. 714, 682 S.E.2d 84, 2009 Va. App. LEXIS 390 (2009).

In defendants' prosecutions for drug-related offenses, the admission of analysts' certificates of analysis, without the analysts' live testimony, pursuant to §§ 19.2-187 and 19.2-187.1 , violated defendants' rights to confrontation because the statutory procedure allowing defendants to call the analysts as adverse witnesses impermissibly relieved the prosecution of the duty to present witnesses and required defendants to call those witnesses, as defendants were not given a period of time, after notice, in which to object to the admission of the certificates absent the analysts' testimony. Cypress v. Commonwealth, 280 Va. 305 , 699 S.E.2d 206, 2010 Va. LEXIS 225 (2010).

In defendants' prosecutions for drug-related offenses, the admission of analysts' certificates of analysis, without the analysts' live testimony, pursuant to §§ 19.2-187 and 19.2-187.1 , violated defendants' rights to confrontation because neither defendant waived this objection by not using § 19.2-187.1 's procedure for calling the analysts to testify, as this procedure impermissibly burdened and did not adequately protect defendants' confrontation rights. Cypress v. Commonwealth, 280 Va. 305 , 699 S.E.2d 206, 2010 Va. LEXIS 225 (2010).

In defendants' prosecutions for drug-related offenses, the admissions of analysts' certificates of analysis, without the analysts' live testimony, pursuant to §§ 19.2-187 and 19.2-187.1 , violated defendants' rights to confrontation because the certificates were testimonial as: (1) each attested that an analyst performed an analysis and that the certificate accurately reflected the results of the analysis; and (2) each showed the substance analyzed was cocaine and the amount of cocaine, so the certificates were functionally identical to live testimony. Cypress v. Commonwealth, 280 Va. 305 , 699 S.E.2d 206, 2010 Va. LEXIS 225 (2010).

No violation of defendant's right of confrontation occurred, where defendant had the express statutory right pursuant to this section to subpoena the chemist performing the analysis on the seized cocaine or the person involved in the chain of custody to testify at trial and be available for his examination. Defendant's choice not to avail himself of that process does not constitute a denial of his confrontation right. Wingfield v. Commonwealth, No. 3000-95-2 (Ct. of Appeals Apr. 1, 1997).

Defendant waived her Sixth Amendment rights to confrontation by failing to avail herself of her statutory right under § 19.2-187 .1 to subpoena the operator of a breath test in her driving under the influence trial under § 18.2-266 . Thus, it was proper to admit the certificate of the blood alcohol analysis without live testimony of the operator pursuant to §§ 18.2-268.9 and 19.2-187 . McKeel v. Commonwealth,, 2006 Va. App. LEXIS 575 (Dec. 19, 2006).

Defendant's failure to timely notify the Commonwealth of his desire to confront forensic analyst at trial on drug charges constituted a waiver of his right to confrontation in that the procedure of §§ 19.2-187 and 19.2-187.1 adequately protected defendant's Confrontation Clause rights. Brooks v. Commonwealth, 49 Va. App. 155, 638 S.E.2d 131, 2006 Va. App. LEXIS 574 (2006).

No violation of Confrontation Clause. - Because defendant did not timely notify the Commonwealth of defendant's desire to confront a forensic analyst at trial, the procedure in §§ 19.2-187 and 19.2-187.1 adequately protected defendant's Sixth Amendment Confrontation Clause rights; therefore, the trial court did not err in admitting a certificate of analysis when the forensic scientist did not testify. Morton v. Commonwealth,, 2007 Va. App. LEXIS 39 (Feb. 6, 2007).

Defendant waived the constitutional right to confront the person who performed a certificate of analysis on the substance found under the car seat in which he was sitting because defendant did not follow the procedures provided by §§ 19.2-187 and 19.2-187.1 ; defendant never notified the Commonwealth or the trial court of his desire to confront the witness until the middle of trial. Cypress v. Commonwealth,, 2007 Va. App. LEXIS 497 (Jan. 3, 2007).

Defendant waived the constitutional right to confront the person who prepared the certificates of analysis that were performed on the substances found in defendant's apartment and on his person because defendant did not follow the procedures provided by §§ 19.2-187 and 19.2-187.1 ; defendant did not notify the Commonwealth or the trial court of his desire to confront the witness until the middle of trial. Briscoe v. Commonwealth,, 2007 Va. App. LEXIS 498 (Jan. 18, 2007).

Because defendant, charged with possession of cocaine with intent to distribute, in violation of § 18.2-248 , neglected to inform the Commonwealth of his desire to have the scientist who prepared the certificate of analysis present until the day of trial, defendant waived his Confrontation Clause rights. Thus, no error resulted in admitting the certificate of analysis without the scientist's testimony. McCray v. Commonwealth,, 2008 Va. App. LEXIS 36 (Jan. 22, 2008).

Defendant was properly convicted of driving while intoxicated because the trial court did not violate defendant's constitutional right to confrontation when it admitted his blood alcohol breath analysis into evidence in accordance with the terms of § 19.2-187 ; because defendant did not subpoena the booking tech who administered the blood alcohol breath analysis, he waived his opportunity to cross-examine potential witnesses. Ki-Ho Min v. Commonwealth,, 2008 Va. App. LEXIS 144 (Mar. 25, 2008).

Admission of a ballistics certificate did not violate defendant's Confrontation Clause rights because, although the ballistics certificate contained testimonial hearsay, defendant waived his right to confront the preparer of the certificate by failing to call the analyst as permitted by subsection E of § 19.2-187.1 . Miller v. Commonwealth,, 2009 Va. App. LEXIS 421 (Sept. 22, 2009).

There was no abuse of the circuit court's discretion in admitting the certificate of analysis in evidence because neither the sheriff's captain nor the postal workers were "vital links" in the chain of custody; no contention was made at trial that the captain ever had any contact with the evidence and he was not shown to be a link in the chain. Branham v. Commonwealth, 283 Va. 273 , 720 S.E.2d 74, 2012 Va. LEXIS 18 (2012).

Commonwealth may introduce certificate. - Disjunctive "or" as used in the statute provides the Commonwealth with the opportunity of filing the certificate seven days prior to a preliminary hearing or satisfying the subsection A of § 19.2-187.1 requirements; read together, §§ 19.2-187 and 19.2-188 clearly indicate that at a preliminary hearing the Commonwealth may introduce the certificate itself. Amonett v. Commonwealth, 70 Va. App. 1, 823 S.E.2d 504, 2019 Va. App. LEXIS 41 (2019).

Admission of certificate harmless error. - Any error by a trial court in admitting a certificate of analysis into evidence was harmless because the evidence without the certificate was sufficient to prove that defendant was driving under the influence of drugs. Hicks v. Commonwealth, No. 1093-16-3, 2017 Va. App. LEXIS 221 (Aug. 29, 2017).

Admission of certificate not harmless error. - Trial court's error in admitting into evidence a certificate of blood alcohol analysis was not harmless beyond a reasonable doubt because in order to convict defendant of a per se violation under clause (i) of § 18.2-266 or invoke the presumption of intoxication afforded by subdivision A 3 of § 18.2-269 the trial court had to rely on the facts recited in the attestation clause in order to conclude that the test was conducted in accordance with the relevant statutes; the only evidence that the breath test was administered either as provided by Title 18.2, Chapter Seven, Article Two of the Virginia Code or in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 , as required by § 18.2-269 , was in the attestation clause on the certificate of analysis, and because the use of the attestation clause in the case violated the Confrontation Clause, it could not be used to prove that the breath test was administered in accordance with the relevant statutes. Grant v. Commonwealth, 54 Va. App. 714, 682 S.E.2d 84, 2009 Va. App. LEXIS 390 (2009).

Reopening case to allow analyst to testify. - Where certificates of analysis pertaining to drugs and a firearm had been admissible at the time defendant was initially found guilty in a bench trial, since he had not availed himself of his right under § 19.2-187.1 to call the scientists who prepared the certificates as witnesses, the trial court did not err in reopening the case to allow the scientists to testify and defendant to cross-examine them, because Confrontation Clause law had changed in the interim, and this procedure protected defendant's constitutional rights to confrontation and a fair trial. Morgan v. Commonwealth, 61 Va. App. 58, 733 S.E.2d 151, 2012 Va. App. LEXIS 336 (2012).

No Brady violation found. - In a case where the Commonwealth provided defendant with notice that it intended to offer each of the certificates of analysis into evidence specifying that the narcotics recovered in the three controlled purchases were cocaine, no Brady violation occurred based on the termination for cause of the forensic scientist that signed each certificate as the date of her termination letter was two months post trial, and the Commonwealth, could not have provided defendant the information prior to or during trial; her performance as a scientist or technician in other cases did not establish that defendant was innocent; and no reasonable doubt existed that the three certificates of analysis returned in defendant's case were accurate. Mercer v. Commonwealth, 66 Va. App. 139, 783 S.E.2d 56 (2016).

Objection waived. - Defendant's failure to object to Commonwealth's notice of intent to introduce the certificate of analysis in the absence of the person who performed the analysis waived any objection to its admission Whitehurst v. Commonwealth, 63 Va. App. 132, 754 S.E.2d 910, 2014 Va. App. LEXIS 71 (2014).

Applied in Dunn v. Commonwealth, 20 Va. App. 217, 456 S.E.2d 135 (1995).

CIRCUIT COURT OPINIONS

Right to examine forensic scientist. - Trial court overruled defendant's objection to the admission of a laboratory certificate of analysis stating that the substance defendant possessed was cocaine, as statutory law allowed for the admission of such evidence, and gave the accused the right to summon the person performing the chemical analysis and examine him as an adverse witness; as a result, admission of that evidence was recognized as an exception to the hearsay rule and defendant's confrontation clause rights were not violated since the statute gave him a right to confront the person who authored the certificate. Commonwealth v. Williams, 69 Va. Cir. 277, 2005 Va. Cir. LEXIS 322 (Charlottesville 2005).

§ 19.2-187.2. Procedure for subpoena duces tecum of analysis evidence.

No subpoena duces tecum shall issue for the production of writings or documents used to reach the conclusion contained in a certificate of analysis prepared pursuant to § 19.2-187 except upon affidavit that the requested writings or documents are material. Upon a showing by the Commonwealth that the production of such writings and documents would place an undue burden on the Department of Forensic Science, the court may order that the subpoena duces tecum be satisfied by making the writings and documents available for inspection by the requesting party at the laboratory site where the analysis was performed or at the laboratory operated by the Department of Forensic Science which is closest to the court in which the case is pending.

(1993, c. 629; 2005, cc. 868, 881.)

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and in the last sentence, substituted "Department" for "Division" two times.

Research References. - Virginia Forms (Matthew Bender). No. 9-1414 Motion to Quash Subpoena Duces Tecum, et seq.

CIRCUIT COURT OPINIONS

Expert's documents material to defense. - Defendant was entitled to obtain the writing and notes that the Commonwealth's handwriting expert used to prepare his certificate of analysis regarding whether the writings on the business checks that defendant allegedly used to embezzle were in fact written entirely in her own hand, as without those documents, defense counsel could not effectively exercise the right to cross-examine the Commonwealth's handwriting expert; accordingly, the materials sought were material to the defense of defendant and the Commonwealth was required to provide them to defendant. Commonwealth v. Hayslett, 62 Va. Cir. 31, 2003 Va. Cir. LEXIS 70 (Roanoke 2003).

§ 19.2-188. Reports by Chief Medical Examiner received as evidence.

  1. Reports of investigations made by the Chief Medical Examiner, his assistants or medical examiners, and the records and certified reports of autopsies made under the authority of Title 32.1, shall be received as evidence in any court or other proceeding, and copies of photographs, laboratory findings and reports in the office of the Chief Medical Examiner or any medical examiner, when duly attested by the Chief Medical Examiner or one of his Assistant Chief Medical Examiners, shall be received as evidence in any court or other proceeding for any purpose for which the original could be received without proof of the official character or the person whose name is signed thereto.
  2. Any statement of fact or of opinion in such reports and records concerning the physical or medical cause of death and not alleging any conduct by the accused shall be admissible as competent evidence of the cause of death in any preliminary hearing.

    (Code 1950, § 19.1-45; 1960, c. 366; 1975, c. 495; 2003, c. 459; 2009, c. 640.)

The 2003 amendments. - The 2003 amendment by c. 459 deleted "or" following the first occurrence of "Examiner," deleted "by" preceding the first occurrence of "medical," inserted "certified" preceding "reports," deleted "records" preceding "photographs," substituted "reports" for "records" following "findings and," and deleted "or the medical examiner in whose office the same are" preceding "shall be."

The 2009 amendments. - The 2009 amendment by c. 640 inserted the A designation at the beginning of the first paragraph and added subsection B.

Law review. - For survey of Virginia law on evidence for the year 1969-1970, see 56 Va. L. Rev. 1325 (1970). For comment on the admissibility of documentary evidence and the right to confrontation, see 12 Wm. & Mary L. Rev. 440 (1970). For survey of Virginia law on evidence for the year 1971-1972, see 58 Va. L. Rev. 1268 (1972). For survey of Virginia law on evidence for the year 1973-1974, see 60 Va. L. Rev. 1543 (1974).

Michie's Jurisprudence. - For related discussion, see 5C M.J. Dead Bodies, § 5; 7B M.J. Evidence, §§ 84, 221; 9B M.J. Homicide, §§ 59, 76.

CASE NOTES

Constitutionality. - The constitutional right of confrontation is not violated when the report of a state chemist is admitted into evidence. Robertson v. Cox, 320 F. Supp. 900 (W.D. Va. 1970).

The admission of a laboratory report in evidence under this section violates no constitutional right of a defendant. The right to be confronted with one's accusers and witnesses does not operate to exclude proper documentary evidence. Robertson v. Commonwealth, 211 Va. 62 , 175 S.E.2d 260 (1970).

Right to confront witness not denied. - Admission in a rape prosecution of reports of the Chief Medical Examiner's office indicating presence of seminal fluid in vaginal swabs does not violate the accused's right to confrontation of the witnesses against him. Robertson v. Cox, 320 F. Supp. 900 (W.D. Va. 1970).

The purpose of this section is primarily to obviate the necessity of summoning as witnesses those physicians or technicians who, in their official capacity, are required to make pathological, bacteriological and toxicological investigations, as well as postmortem examinations. Such a provision is not only expedient and convenient - it prevents the delay that would result if the limited number of physicians, chemists and technicians were forced to testify whenever a report made by them was offered in evidence. Robertson v. Commonwealth, 211 Va. 62 , 175 S.E.2d 260 (1970).

The effect of this section is to make reports of investigations of the Chief Medical Examiner admissible as prima facie evidence of the facts stated therein, thus obviating the necessity of summoning as witnesses those persons performing the particular tests involved. Bass v. Commonwealth, 212 Va. 699 , 187 S.E.2d 188 (1972).

Effect of statement in death certificate signed by attending physician concerning cause of death. - Although signed by the decedent's attending physician, a statement in a death certificate concerning the cause of death was but the expression of an opinion and was not, therefore, competent to show the cause of the decedent's death. Ward v. Commonwealth, 216 Va. 177 , 217 S.E.2d 810 (1975).

This section merely constitutes a statutory exception to the hearsay rule and does not eliminate the necessity of identifying the substance tested with the person from whom obtained. Bass v. Commonwealth, 212 Va. 699 , 187 S.E.2d 188 (1972).

This section provides a statutory exception to the hearsay rule by permitting investigation reports and autopsy reports of the Chief Medical Examiner or his assistants to be received in evidence without requiring the investigating official to testify. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982).

Only facts contained in certificate are accorded dignity of prima facie evidence. - Reports of investigations made by the Chief Medical Examiner or his assistants or by medical examiners, as well as the records and reports of autopsies, shall be prima facie evidence of the facts stated therein in any court or other proceeding; and copies of such reports of investigations, and copies of the records and reports of autopsies, duly attested, shall be received in evidence for any purpose for which the original could be received, without any proof of the official character of the person whose name is signed thereto. The language of this section means that only facts contained in the certificate are accorded the dignity of prima facie evidence. Robertson v. Commonwealth, 211 Va. 62 , 175 S.E.2d 260 (1970).

Prima facie evidence of facts stated. - Reports of the medical examiner introduced pursuant to this section are prima facie evidence of the facts stated therein. Quintana v. Commonwealth, 224 Va. 127 , 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L. Ed. 2d 501 (1983).

Opinion in medical examiner's report. - Opinion in a medical examiner's report is not competent evidence. Quintana v. Commonwealth, 224 Va. 127 , 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L. Ed. 2d 501 (1983).

Where, in a prosecution for murder, the crucial issue was whether death was brought about by criminal agency, the ultimate question was whether the decedent jumped intentionally, fell accidentally, or was thrown to her death, and the facts and circumstances shown by the testimony of lay witnesses were sufficient to enable a jury to decide that question, the deputy chief medical examiner's opinion as to whether death was brought about by criminal agency, which opinion was based largely, if not entirely, upon the same facts and circumstances, was inadmissible. Bond v. Commonwealth, 226 Va. 534 , 311 S.E.2d 769 (1984).

Autopsy report was properly admitted without redaction of the chief medical examiner's opinion as to the cause of a newborn baby's death where the opinion evidence was cumulative of other evidence as to the cause of death, which was admitted without objection. Corrales v. Commonwealth, No. 2797-01-2, 2002 Va. App. LEXIS 687 (Ct. of Appeals Nov. 19, 2002).

Expressions of opinion in medical examiner's report. - Expressions of opinion are not admissible merely because they are included in a medical examiner's report; only statements of fact are admissible under this statutory exception to the rule excluding hearsay evidence. Hopkins v. Commonwealth, 230 Va. 280 , 337 S.E.2d 264 (1985), cert. denied, 475 U.S. 1098, 106 S. Ct. 1498, 89 L. Ed. 2d 898 (1986).

Statute does not provide an exception authorizing admission of expressions of opinion in a report that are derived from evidence that the jury is just as well-equipped as the medical examiner to consider and draw its own conclusions; however, if the evidence was such that the jurors were not capable of comprehending and forming an intelligent opinion about it, and drawing their own conclusions, the opinion testimony of an expert would be admissible, assuming it met all evidentiary requirements. Lucas v. Riverhill Poultry, Inc.,, 2021 Va. LEXIS 74 (July 1, 2021).

Introduction of report where investigating official testifies. - There is no preclusive language in this section barring introduction of the reports if the investigating official testifies; this section does not require an election by the Commonwealth to introduce the relevant evidence either by a qualified witness or by the written reports. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469 (1983).

Admission of report harmless error. - Because of defendant's confession as to the cause of death of defendant's wife, as adduced at trial, any error in the admission of an autopsy report prepared by a then deceased medical examiner and the testimony of a later medical examiner based on the report was harmless beyond a reasonable doubt. Abney v. Commonwealth, 51 Va. App. 337, 657 S.E.2d 796, 2008 Va. App. LEXIS 103 (2008).

Admission of autopsy report not error although pathologist testified at trial. - Fact that the pathologist who performed the autopsy on the victim testified at trial did not render the admission of the autopsy report error. Gray v. Commonwealth, 233 Va. 313 , 356 S.E.2d 157, cert. denied, 484 U.S. 873, 108 S. Ct. 207, 98 L. Ed. 2d 158 (1987).

Applied in Rife v. Blankenship, 721 F.2d 983 (4th Cir. 1983).

§ 19.2-188.1. Testimony regarding identification of controlled substances.

  1. In any preliminary hearing on a violation of Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1, Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2, or subdivision 6 of § 53.1-203 , any law-enforcement officer shall be permitted to testify as to the results of field tests that have been approved by the Department of Forensic Science pursuant to regulations adopted in accordance with the Administrative Process Act (§ 2.2-4000 et seq.), regarding whether or not any substance the identity of which is at issue in such hearing is a controlled substance, imitation controlled substance, or marijuana, as defined in § 18.2-247 .
  2. In any trial for a violation of § 4.1-1105.1 , any law-enforcement officer shall be permitted to testify as to the results of any marijuana field test approved as accurate and reliable by the Department of Forensic Science pursuant to regulations adopted in accordance with the Administrative Process Act (§ 2.2-4000 et seq.), regarding whether or not any plant material, the identity of which is at issue, is marijuana provided the defendant has been given written notice of his right to request a full chemical analysis. Such notice shall be on a form approved by the Supreme Court and shall be provided to the defendant prior to trial. In any case in which the person accused of a violation of § 4.1-1105.1 , or the attorney of record for the accused, desires a full chemical analysis of the alleged plant material, he may, by motion prior to trial before the court in which the charge is pending, request such a chemical analysis. Upon such motion, the court shall order that the analysis be performed by the Department of Forensic Science in accordance with the provisions of § 18.2-247 and shall prescribe in its order the method of custody, transfer, and return of evidence submitted for chemical analysis. (1991, c. 477; 1993, c. 33; 2005, cc. 868, 881; 2006, c. 447; 2013, c. 60; 2020, c. 831; 2021 Sp. Sess. I, cc. 550, 551.)

Cross references. - As to the powers and duties of the Department of Criminal Justice Services and the Criminal Justice Services Board, see § 9.1-102 .

Editor's note. - Acts 2006, c. 447, cl. 2, provides: "That the Board of Forensic Science shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment in accordance with § 2.2-4011 A [see now § 2.2-4011 B] of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101 .1, 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8 provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101 .1, 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "Department" for "Division."

The 2006 amendments. - The 2006 amendment by c. 447 inserted the A designation at the beginning of the first paragraph and added subsection B.

The 2013 amendments. - The 2013 amendment by c. 60, in subsection A, inserted "or a violation of subdivision 6 of § 53.1-203 " near the beginning of the first sentence, and made a minor stylistic change.

The 2020 amendments. - The 2020 amendment by c. 831, effective April 7, 2020, inserted "in accordance with the provisions of § 18.2-247 " in subsection B in the last paragraph in the last sentence.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 2, effective July 1, 2021, are identical, and in subsection A, inserted "Chapter 11 ( § 4.1-1100 et seq.) of Title 4.1" and deleted "a violation of" preceding "subdivision 6"; and substituted " § 4.1-1105.1 " for " § 18.2-250.1 " twice in subsection B.

Research References. - Virginia Forms (Matthew Bender). No. 9-1611. Motion for Analysis of Plant Material.

Law review. - For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

CASE NOTES

Construction. - Pursuant to subsection B of § 19.2-188.1 , a trial court may admit testimony as to the results of a marijuana field test only if the court determines that the accused had been given written notice of his right to request a full chemical analysis prior to trial. Morrow v. Commonwealth, No. 1933-18-4, 2019 Va. App. LEXIS 304 (Dec. 27, 2019).

This section permits any law-enforcement officer to testify at a preliminary hearing as to the results of field tests which have been approved by the Division of Forensic Science [now the Department of Forensic Science] pursuant to regulations adopted in accordance with the Administrative Process Act (former § 9-6.14:1 et seq. - see now § 2.2-4000 et seq.). Galbraith v. Commonwealth, 18 Va. App. 734, 446 S.E.2d 633 (1994).

Error found in admitting test results. - Where the record before the appellate court contained no evidence that the field test used by detective had been approved by the division, the appellate court could not determine the reliability of the field test kit used to support detective's testimony that the substance tested positive as cocaine, therefore, the trial court erred when it permitted the detective to testify to the result produced by the test. Galbraith v. Commonwealth, 18 Va. App. 734, 446 S.E.2d 633 (1994).

Trial court erred in admitting the evidence of the marijuana field test, because the record does not support the reliability or accuracy of the specific field test used or a finding that the Department of Forensic Science approved the particular field test used. Williams v. Commonwealth, 71 Va. App. 462, 837 S.E.2d 91, 2020 Va. App. LEXIS 14 (2020).

No error found in admitting test results. - Trial court did not err in relying upon the Commonwealth's proffer that the written notice required by subsection B of § 19.2-188.1 was provided to appellant where the Commonwealth's attorney made a proffer to the trial court that the marijuana was not tested until booking due to appellant's behavior at the scene and that appellant was given the written notice when his property was returned to him after booking, and appellant failed to object to the proffer or claim that any part of it was factually inaccurate. Morrow v. Commonwealth, No. 1933-18-4, 2019 Va. App. LEXIS 304 (Dec. 27, 2019).

§ 19.2-188.2. Certificate of surgeon as evidence.

  1. In any criminal proceeding, the certificate of a duly qualified surgeon stating that he has removed organs or other body parts from a decedent for transplant in accordance with Chapter 8 (§ 32.1-277 et seq.) of Title 32.1, shall be admissible in evidence as evidence of the facts stated therein. The certificate shall be competent evidence to show that such organs or body parts were functional at the time of recovery and not affected by any injury or illness that caused the decedent's death.
  2. A copy of the certificate shall be filed with the attorney for the Commonwealth in the jurisdiction in which the decedent's fatal injury occurred. The certificate shall not be admitted into evidence unless the attorney for the Commonwealth has provided a copy of the certificate to counsel for the defendant at least fourteen days prior to the proceeding in which it is to be offered into evidence.
  3. Any such certificate, when properly notarized, purporting to be signed by the surgeon who removed the organs or other body parts shall be admissible in evidence without proof of seal or signature of the person whose name is signed to it. In any hearing or trial the accused shall have the right to call the person signing the certificate and the provisions of § 19.2-187.1 shall apply, mutatis mutandis. (1997, c. 557.)

§ 19.2-188.3. Admissibility of affidavits by government officials regarding a search of government records (Subdivision (10)(b) of Supreme Court Rule 2:803 derived from this section).

In any hearing or trial, an affidavit signed by a government official who is competent to testify, deemed to have custody of an official record, or signed by his designee, stating that after a diligent search, no record or entry of such record is found to exist among the records in his custody, is admissible as evidence that his office has no such record or entry, provided that, if the hearing or trial is a proceeding other than a preliminary hearing, the procedures set forth in subsection G of § 18.2-472.1 for admission of an affidavit have been satisfied, mutatis mutandis, and the accused has not objected to the admission of the affidavit pursuant to the procedures set forth in subsection H of § 18.2-472.1 , mutatis mutandis. Nothing in this section shall be construed to affect the admissibility of affidavits in civil cases under § 8.01-390 .

(2010, c. 464; 2011, c. 285.)

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

The 2011 amendments. - The 2011 amendment by c. 285 inserted "if the hearing or trial is a proceeding other than a preliminary hearing" following "provided that."

Research References. - Virginia Forms (Matthew Bender). No. 9-2419. Objection to Admission of Affidavit.

§ 19.2-189. Commitment of accused for further examination.

If the accused be committed, it shall be by an order of the judge stating that he is committed for further examination on a day specified in the order. And on that day he may be brought before such judge by his verbal order to the officer by whom he was committed, or by a written order to a different person.

(Code 1950, § 19.1-107; 1960, c. 366; 1968, c. 639; 1975, c. 495.)

CASE NOTES

A warrant of commitment before indictment must describe the offense plainly and fully. Young v. Commonwealth, 40 Va. (1 Rob.) 744 (1842).

§ 19.2-190. To whom, and when, examination and recognizance to be certified.

Every examination and recognizance for a felony taken under this chapter, shall, by the person taking it, be certified to the clerk of the circuit court of the county or city in which the party charged is to be tried, or the witness is to appear, on or before the first day of its next term. If he fails he may be compelled to do so by attachment as for a contempt.

(Code 1950, § 19.1-108; 1960, c. 366; 1975, c. 495.)

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 22 Enforcement of Judgments. § 22.11 Attachments. Friend.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 22.

§ 19.2-190.1. Certification of ancillary misdemeanor offenses.

Upon certification of any felony offense pursuant to this chapter, the court shall also certify any ancillary misdemeanor offense to the clerk of the circuit court provided that the attorney for the Commonwealth and the accused consent to such certification. Any misdemeanor offense certified pursuant to this section shall proceed in the same manner as a misdemeanor appealed to circuit court pursuant to § 16.1-136.

(2015, c. 548.)

§ 19.2-190.2. Withdrawal of privately retained counsel.

A privately retained counsel in any criminal case may, pursuant to the terms of a written agreement between the attorney and the client, withdraw from representation of a client without leave of court after certification of a charge by a district court by providing written notice of the withdrawal to the client, the attorney for the Commonwealth, and the circuit court within 10 days of the certification of the charge.

(2017, c. 774.)

Editor's note. - Acts 2017, c. 774, cl. 2 provides: "That the Judicial Council shall review (i) the current process by which privately retained counsel may withdraw from a civil case with leave of court and (ii) the possible impact on the courts, litigants, and attorneys of amending such process to allow withdrawal of counsel without leave of court. The Judicial Council shall submit its report by November 1, 2017, to the Chairmen of the House and Senate Committees for Courts of Justice."

Chapter 13. Grand Juries.

In General.

Regular Grand Juries.

Special Grand Juries.

Multi-Jurisdiction Grand Juries.

Article 1. In General.

Michie's Jurisprudence. - For related discussion, see 9A M.J. Grand Jury, §§ 2, 20, 21, 48.

§ 19.2-191. Functions of a grand jury.

The functions of a grand jury are twofold:

  1. To consider bills of indictment prepared by the attorney for the Commonwealth and to determine whether as to each such bill there is sufficient probable cause to return such indictment "a true bill."
  2. To investigate and report on any condition that involves or tends to promote criminal activity, either in the community or by any governmental authority, agency or official thereof. These functions may be exercised by either a special grand jury or a regular grand jury as hereinafter provided.

    (1975, c. 495; 1980, c. 517; 2001, c. 4.)

The 2001 amendments. - The 2001 amendment by c. 4 deleted the last sentence in subdivision (1), which read: "This function shall be performed solely by a regular grand jury"; and in subdivision (2), substituted "report on any condition that" for "make report thereon concerning any condition which," and substituted "These functions" for "This function."

Law review. - For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975).

CASE NOTES

Civil rights actions. - Where an officer went to a suspect's parents' residence to execute an arrest warrant for the suspect, the father's false arrest and malicious prosecution claims failed because a reasonable officer could believe that probable cause existed for the father's arrest for assault since, the father's palms hit the officer's shoulder area; the argument that the indictment could not support a finding of probable cause because the father was not permitted to present evidence before the grand jury was rejected. Fialdini v. Cote, 594 Fed. Appx. 113, 2014 U.S. App. LEXIS 22938 (4th Cir. Dec. 5, 2014), cert. denied, 136 S. Ct. 116, 2015 U.S. LEXIS 5653, 193 L. Ed. 2d 39 (2015).

Applied in Powell v. Commonwealth, 261 Va. 512 , 552 S.E.2d 344, 2001 Va. LEXIS 86 (2001).

§ 19.2-192. Secrecy in grand jury proceedings.

Except as otherwise provided in this chapter, every attorney for the Commonwealth, special counsel, sworn investigator, and member of a regular, special, or multi-jurisdiction grand jury shall keep secret all proceedings which occurred during sessions of the grand jury; provided, however, in a prosecution for perjury of a witness examined before a regular grand jury, a regular grand juror may be required by the court to testify as to the testimony given by such witness before the regular grand jury.

(1975, c. 495; 2014, c. 389.)

The 2014 amendments. - The 2014 amendment by c. 389 inserted "attorney for the Commonwealth, special counsel, sworn investigator, and" and "or multi-jurisdiction," and made a minor stylistic change.

Law review. - For note, "Disclosure of Grand Jury Materials to Foreign Authorities Under Federal Rule of Criminal Procedure 6(e)," see 70 Va. L. Rev. 1623 (1984).

CASE NOTES

Considerations in disclosure. - Plaintiff's request to depose a state court grand juror about statements he made as to grand jury deliberations of the charges lodged against plaintiff was denied, because it was clear that any such testimony ran afoul of the prohibition against disclosing grand jury proceedings, and plaintiff had offered no authority supporting the proposition that one may depose grand jurors at all, let alone that justice so required in his case. Plaster v. Brown,, 2006 U.S. Dist. LEXIS 213 (W.D. Va. Jan. 4, 2006).

Plaintiff's request to depose a state court grand juror about statements he made as to grand jury deliberations of the charges lodged against plaintiff was denied because, given the cloak of secrecy that the law imposed on grand jury deliberations, it was difficult to see how deposition testimony concerning statements made by a grand juror regarding the grand jury's deliberations could reasonably be calculated to lead to the discovery of admissible evidence; as such, the testimony was outside the permissible scope of discovery. Plaster v. Brown,, 2006 U.S. Dist. LEXIS 213 (W.D. Va. Jan. 4, 2006).

§ 19.2-192.1. Sealing of indictment.

Upon ex parte motion by the Commonwealth and for good cause shown, the circuit court may seal an indictment until such time as the defendant is arrested.

(2002, c. 130.)

Editor's note. - Acts 2002, c. 130, cl. 2, provides: "That the provisions of this act are declaratory of existing law."

Article 2. Regular Grand Juries.

Research References. - Virginia Forms (Matthew Bender). No. 9-603. Venire Facias--Grand Jury.

Michie's Jurisprudence. - For related discussion, see 9A M.J. Grand Jury, §§ 3, 4, 9-17, 20, 24, 30, 32, 39, 47, 48.

§ 19.2-193. Number of regular grand juries.

There shall be a regular grand jury at each term of the circuit court of each county and city, unless the court, on the motion of the attorney for the Commonwealth or with his concurrence, finds that it is unnecessary or impractical to impanel a grand jury for the particular term and enters an order to that effect.

Whenever the number of cases to be considered by the grand jury at a given term is so great as to hamper the intelligent consideration thereof by a single grand jury, the court may order two or more regular grand juries to be impanelled to sit separately at the same or a different time during the term.

Whenever a regular grand jury has been discharged, the court, during the term, may impanel another regular grand jury.

(Code 1950, § 19.1-147; 1960, c. 366; 1975, c. 495.)

Law review. - For comment on grand juries, see 22 Wash. & Lee L. Rev. 325 (1965).

CASE NOTES

Time of impaneling special grand juries. - Under the provisions of this section and § 19.2-206 , special grand juries may be summoned and impaneled at any regular or special term of the court when so ordered by the judge. Wright v. Commonwealth, 114 Va. 872 , 77 S.E. 503 (1913).

§ 19.2-194. When and how grand jurors to be selected and summoned; lists to be delivered to clerk.

The judge or judges regularly presiding in the circuit court of each county and city shall annually, in the month of June, July, or August, select from citizens of the county or city at least 60 persons and not more than 120 persons 18 years of age or over, of honesty, intelligence, impartiality, and good demeanor and suitable in all respects to serve as grand jurors, who, except as hereinafter provided, shall be the grand jurors for the county or city from which they are selected for the next 12 months. The judge or judges making the selection shall at once furnish to the clerk of the circuit court a list of those selected for that county or city.

The clerk, not more than 20 days before the commencement of each term of his court at which a regular grand jury is required, shall issue a venire facias to the sheriff of his county or city, commanding him to summon not less than five nor more than nine of the persons selected as aforesaid (the number to be designated by the judge of the court by an order entered of record) to be named in the writ to appear on the first day of the court to serve as grand jurors. Those persons who are to be summoned shall be randomly selected but no such person shall be required to appear more than once until all the others have been summoned once, nor more than twice until the others have been twice summoned, and so on. The Circuit Court of James City County, or the judge thereof in vacation, shall select the grand jurors for each court from such county and the City of Williamsburg in such proportion from each as he may think proper.

Any person who has legal custody of and is responsible for a child 16 years of age or younger or a person having a mental or physical impairment requiring continuous care during normal court hours shall be excused from jury service upon his request.

(Code 1950, § 19.1-148; 1960, c. 366; 1971, Ex. Sess., c. 262; 1973, cc. 401, 439; 1974, c. 618; 1975, c. 495; 1991, c. 226; 2003, c. 825; 2004, c. 306; 2008, c. 644.)

The 2003 amendments. - The 2003 amendment by c. 825 substituted "18" for "eighteen" and "12" for "twelve" in the first sentence and substituted "20" for "twenty" and "nine" for "seven" in the third sentence of the first paragraph; and substituted "16" for "sixteen" in the second paragraph.

The 2004 amendments. - The 2004 amendment by c. 306, in the first paragraph, substituted "judge or judges regularly presiding in the circuit court of each county and city" for "judges of such courts" and "citizens of the county or city" for "citizens of each city and county of their respective circuits" in the first sentence, and inserted "or judges" following "judge" and substituted "of the circuit court" for "of his court in each county and city of his circuit" in the second sentence.

The 2008 amendments. - The 2008 amendments by c. 644, in the first paragraph, inserted "impartiality"; and inserted "Those persons who are to be summoned shall be randomly selected but" at the beginning of the second sentence in the second paragraph.

Law review. - For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

CASE NOTES

There can be no arbitrary and systematic exclusion of persons from juries whether those excluded be of a particular race or of a particular class, or whether the exclusion results from legislative action or from arbitrary and capricious action of those charged with providing grand jury lists. Scales v. Commonwealth, 214 Va. 728 , 204 S.E.2d 273 (1974), cert. denied, 419 U.S. 1123, 95 S. Ct. 808, 42 L. Ed. 2d 823 (1975).

The list mentioned in this section is for the regular grand jury. McDaniel v. Commonwealth, 165 Va. 709 , 181 S.E. 534 (1935).

Objections to the mode of summoning a grand jury must be made a preliminary stage of the case before a plea to the merits, otherwise they are to be considered as waived. Early v. Commonwealth, 86 Va. 921 , 11 S.E. 795 (1890); Curtis v. Commonwealth, 87 Va. 580 , 13 S.E. 73 (1891); Taylor v. Commonwealth, 90 Va. 109 , 17 S.E. 812 (1893); Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368, cert. denied, 344 U.S. 886, 73 S. Ct. 186, 97 L. Ed. 686 (1952).

Unless the proceeding be void ab initio. - Curtis v. Commonwealth, 87 Va. 589 , 13 S.E. 73 (1891); Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368, cert. denied, 344 U.S. 886, 73 S. Ct. 186, 97 L. Ed. 686 (1952).

And cannot be raised for the first time on appeal. - Objection that the grand jury was not selected as required by law cannot be raised for the first time in the appellate court. Taylor v. Commonwealth, 90 Va. 109 , 17 S.E. 812 (1893).

Length of service. - Trial court properly interpreted its own order to state that the grand jury members were discharged for the day, not for the term because the clerk was statutorily required to randomly choose five to nine people to serve as grand jurors for the term, not the day. Waters v. Commonwealth, No. 1092-17-3, 2018 Va. App. LEXIS 175 (July 3, 2018).

Applied in Muhammad v. Commonwealth, 269 Va. 451 , 619 S.E.2d 16 (2005).

§ 19.2-195. Number and qualifications of grand jurors.

A regular grand jury shall consist of not less than five nor more than seven persons. Each grand juror shall be a citizen of this Commonwealth, eighteen years of age or over, and shall have been a resident of this Commonwealth one year and of the county or corporation in which the court is to be held six months, and in other respects a qualified juror, and, when the grand juror is for a circuit court of a county, not an inhabitant of a city, except in those cases in which the circuit court of the county has jurisdiction in the city.

(Code 1950, § 19.1-150; 1960, c. 366; 1973, c. 439; 1974, c. 617; 1975, c. 495; 1991, c. 226.)

CASE NOTES

Constitutionality. - This section is not repugnant to Amendments Five and Fourteen of the United States Constitution. Hausenfluck v. Commonwealth, 85 Va. 702 , 8 S.E. 683 (1889).

There is a constitutional right to a jury drawn from a group which represents a cross section of the community. - And a cross section of the community includes persons with varying degrees of training and intelligence and with varying economic and social positions. Under the United States Constitution, the jury is not to be made the representative of the most intelligent, the most wealthy, or the most successful, nor of the least intelligent, the least wealthy, or the least successful. It is a democratic institution, representative of all qualified classes of people. Witcher v. Peyton, 405 F.2d 725 (4th Cir. 1969).

A grand jury should be composed of persons qualified to serve in that capacity under the law, such qualifications being regulated by statute in Virginia. Commonwealth v. Burton, 31 Va. (4 Leigh) 645 (1832); Commonwealth v. St. Clair, 42 Va. (1 Gratt.) 556 (1844); Shinn v. Commonwealth, 73 Va. (32 Gratt.) 899 (1879).

The phrase, "in other respects a qualified juror," must be interpreted according to the common law, and statutory requirements of jurors. Booth v. Commonwealth, 57 Va. (16 Gratt.) 519 (1861); Waller v. Commonwealth, 178 Va. 294 , 16 S.E.2d 808 (1941).

Residence in the county. - The court has heretofore decided that residence, within the county, is a necessary qualification of grand jurors. The peculiar functions and duties of grand juries, as well as the structure of the clause of the act under consideration, would warrant, if necessary, the reading of it with the words "of the county," at the end of each disqualification. Commonwealth v. Towles, 32 Va. (5 Leigh) 743 (1835); Moran v. Commonwealth, 36 Va. (9 Leigh) 651 (1839). See also Commonwealth v. Cherry, 4 Va. (2 Va. Cas.) 20 (1815); McCue v. Commonwealth, 103 Va. 870 , 49 S.E. 623 (1905).

Residence in the State. - A naturalized citizen of the United States or a native citizen of any other state of the union, domiciled in Virginia, being entitled to all the privileges of a citizen of this State, is a citizen and qualified as such to serve on grand juries. Commonwealth v. Cherry, 4 Va. (2 Va. Cas.) 20 (1815); Commonwealth v. Towles, 32 Va. (5 Leigh) 743 (1835).

Common-law exceptions. - Therefore, it is a good exception at common law to one returned on a grand jury, that he is an alien, or villain, or minor, or that he is outlawed for a crime, or that he was not returned by the proper officer, or that he was returned at the instance of the prosecutor. Booth v. Commonwealth, 57 Va. (16 Gratt.) 519 (1861); Waller v. Commonwealth, 178 Va. 294 , 16 S.E.2d 808 (1941).

Being a prohibition officer did not constitute any disqualification to serve as a grand juror. As a matter of public policy it may have been true that, when there were a large number of indictments for violation of the former Prohibition Act under consideration, the courts should have excluded persons who were then actually engaged in enforcing this statute from serving on the grand jury. This, however, was left to the sound discretion of the trial courts. Webb v. Commonwealth, 137 Va. 833 , 120 S.E. 155 (1923).

Effect of former service as juror. - A plea in abatement will not lie to an indictment because two or more of the grand jurors which found the indictment had served on another grand jury at the same term. Richardson v. Commonwealth, 76 Va. 1007 (1882).

Selection of jurors must always accord with the fact that the proper functioning of the jury system, and indeed, of democracy itself, requires that the jury be a body truly representative of the community, and not the organ of any special group or class. If that requirement is observed, the officials charged with choosing federal jurors may exercise some discretion to the end that competent jurors may be called. But they must not allow the desire for competent jurors to lead them into selections which do not comport with the concept of the jury as a cross section of the community. Tendencies, no matter how slight, toward the selection of jurors by any method other than a process which will insure a trial by a representative group are undermining processes weakening the institution of jury trial, and should be sturdily resisted. That the motives influencing such tendencies may be of the best must not blind courts to the dangers of allowing any encroachment whatsoever on this essential right. Steps innocently taken may one by one lead to the irretrievable impairment of substantial liberties. Witcher v. Peyton, 405 F.2d 725 (4th Cir. 1969).

In the selection of juries recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury. Witcher v. Peyton, 405 F.2d 725 (4th Cir. 1969).

Attacking jury selection procedure. - It is not necessary to a successful attack upon a jury selection procedure that petitioner obtain an admission from the judge and jury commissioners that they have discriminated. Witcher v. Peyton, 405 F.2d 725 (4th Cir. 1969).

Want of qualifications or other objections to a grand jury are to be made effective by a plea in abatement. Commonwealth v. Cherry, 4 Va. (2 Va. Cas.) 20 (1815); Commonwealth v. Long, 4 Va. (2 Va. Cas.) 318 (1822); Moore v. Commonwealth, 36 Va. (9 Leigh) 639 (1838). See also Lawrence v. Commonwealth, 86 Va. 573 , 10 S.E. 840 (1890).

Motion to quash. - The incompetency of one grand juror is sufficient to render an indictment defective, when found by a grand jury of which he is a member. For such defect the indictment will be quashed. Commonwealth v. Burton, 31 Va. (4 Leigh) 645 (1832); Shinn v. Commonwealth, 73 Va. (32 Gratt.) 899 (1879).

When made. - In the case of a grand jury, a party indicted is not bound to object to a grand juror for any disqualification before he is sworn, for he is no party to the selection and constitution of the grand inquest of the county. But when he is indicted he becomes a party, and it is competent for him to avail himself of the disqualification. Commonwealth v. Cherry, 4 Va. (2 Va. Cas.) 20 (1815); Commonwealth v. Carter, 4 Va. (2 Va. Cas.) 319 (1822); Hunter v. Matthews, 39 Va. (12 Leigh) 228 (1841).

After indictment found. - Objection to the qualification of an individual grand juror can be taken after indictment found. Commonwealth v. Long, 4 Va. (2 Va. Cas.) 318 (1822); Commonwealth v. St. Clair, 42 Va. (1 Gratt.) 556 (1844); Day v. Commonwealth, 43 Va. (2 Gratt.) 562 (1845).

Must be before plea to merits. - Objections to the competency or qualifications of a particular grand juror must be made at a preliminary stage of the case, before a plea to the merits; otherwise, they are considered waived. Early v. Commonwealth, 86 Va. 921 , 11 S.E. 795 (1890); Taylor v. Commonwealth, 90 Va. 109 , 17 S.E. 812 (1893); Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368, cert. denied, 344 U.S. 886, 73 S. Ct. 186, 97 L. Ed. 686 (1952).

Unless the proceedings are void from the beginning. Curtis v. Commonwealth, 87 Va. 589 , 13 S.E. 73 (1891); Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368, cert. denied, 344 U.S. 886, 73 S. Ct. 186, 97 L. Ed. 686 (1952).

Objections waived by pleading general issue. - A plea in abatement raising objections to the manner of organizing the jury, or to the qualification of grand jurors, is waived by pleading the general issue alone. Early v. Commonwealth, 86 Va. 921 , 11 S.E. 795 (1890); Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368, cert. denied, 344 U.S. 886, 73 S. Ct. 186, 97 L. Ed. 686 (1952).

If a defendant may legally waive an indictment and be tried for a felony without any indictment at all, it seems clear that his constitutional rights are not violated by requiring that if he questions the validity of an indictment that is made he shall do so before he goes to trial on a plea of not guilty and is convicted. Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368, cert. denied, 344 U.S. 886, 73 S. Ct. 186, 97 L. Ed. 686 (1952).

By pleading the general issue alone, a defendant has always been understood to waive the right to interpose afterwards a plea in abatement. The settled doctrine, however, is that the judge may permit a pleading to be withdrawn, and another one to be substituted, whenever by so doing he does not violate any positive rule of law or of established practice. But such a discretion will rarely, if ever, be exercised in aid of an attempt to rely upon a merely dilatory or formal defense. Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368, cert. denied, 344 U.S. 886, 73 S. Ct. 186, 97 L. Ed. 686 (1952).

Cannot be raised for first time in appellate court. - Objection that the grand jury was not constituted, and foreman not selected and sworn as required by law, cannot be raised for the first time in the appellate court, but must be by plea in abatement. Taylor v. Commonwealth, 90 Va. 109 , 17 S.E. 812 (1893).

§ 19.2-196. How deficiency of jurors supplied.

If a sufficient number of grand jurors do not appear, the court may order the deficiency to be supplied from the bystanders or from a list furnished by the judge to the sheriff or sergeant.

(Code 1950, § 19.1-151; 1960, c. 366; 1975, c. 495.)

Cross references. - As to when new foreman or juror may be sworn in, see § 19.2-197 .

CASE NOTES

Replacement procedure. - If one of the grand jurors summoned lacks the necessary legal qualifications, the court must discharge him and order another to be sworn in his place. Commonwealth v. Burton, 31 Va. (4 Leigh) 645 (1832); Richardson v. Commonwealth, 76 Va. 1007 (1882).

§ 19.2-197. Foreman of grand jury; oaths of jurors and witnesses.

From among the persons summoned who attend the court shall select a foreman who shall be sworn as follows: "You shall diligently inquire, and true presentment make, of all such matters as may be given you in charge, or come to your knowledge, touching the present service. You shall present no person through prejudice or ill-will, nor leave any unpresented through fear or favor, but in all your presentments you shall present the truth, the whole truth, and nothing but the truth. So help you God." The other grand jurors shall afterwards be sworn as follows: "The same oath that your foreman has taken on his part, you and each of you shall observe and keep on your part. So help you God." Any witness testifying before the grand jury may be sworn by the foreman.

(Code 1950, § 19.1-152; 1960, c. 366; 1975, c. 495.)

Cross references. - As to effect of omission from indictment of statement concerning oaths, see § 19.2-226 .

CASE NOTES

The fact that the oath was administered to the grand jury by a clerk de facto is not sufficient to avoid a prosecution for gaming. Hord v. Commonwealth, 31 Va. (4 Leigh) 674 (1833).

§ 19.2-198. When new foreman or juror may be sworn in.

If the foreman or any grand juror, at any time after being sworn, fail or be unable to attend another may be sworn in his stead.

(Code 1950, § 19.1-153; 1960, c. 366; 1975, c. 495.)

Cross references. - As to how deficiency of jurors may be supplied, see § 19.2-196 .

§ 19.2-199. Judge to charge grand jury.

The grand jury, after being sworn, shall be charged by the judge of the court and shall then be sent to their room. In the charge given by the court to a regular grand jury, the court shall instruct it to advise the court after their considerations of the bills of indictment whether it desires to be impanelled as a special grand jury to consider any matters provided for in subdivision (2) of § 19.2-191 .

(Code 1950, § 19.1-154; 1960, cc. 366, 467; 1975, c. 495.)

Law review. - For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975).

CASE NOTES

Section directory. - Failure to charge the grand jury, as provided by former § 3982, did not vitiate an indictment found by them. The provision was directory only. Porterfield v. Commonwealth, 91 Va. 801 , 22 S.E. 352 (1895).

Charge not improper. - The court's statement in its charge that the attorney for the Commonwealth sends only enough witnesses before the grand jury to show probable cause was not improper or prejudicial to defendant. Britt v. Commonwealth, 202 Va. 906 , 121 S.E.2d 495 (1961).

§ 19.2-200. Duties of grand jury.

The grand jury shall inquire of and present all felonies, misdemeanors and violations of penal laws committed within the jurisdiction of the respective courts wherein it is sworn; except that no presentment shall be made of a matter for which there is no corporal punishment, but only a fine, where the fine is limited to an amount not exceeding five dollars. After a regular grand jury has concluded its deliberation on bills of indictment and made its return thereon, the court shall inquire of it whether it recommends that a special grand jury be impanelled to perform any of the functions provided for in subdivision (2) of § 19.2-191 . If a majority of the grand jurors responds in the affirmative, the court shall impanel so many of that jury as answer in the affirmative and are also willing to serve thereon, plus any additional members as may be necessary to complete the panel, as a special grand jury and if a minority of the grand jurors responds in the affirmative, the court may impanel a special grand jury in the same manner.

(Code 1950, § 19.1-155; 1960, c. 366; 1975, c. 495; 1978, c. 741; 1980, c. 134.)

Law review. - For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975).

Michie's Jurisprudence. - For related discussion, see 9A M.J. Grand Jury, § 20.

§ 19.2-201. Officers to give information of violation of penal laws to attorney for Commonwealth.

  1. As used in this section, "chief law-enforcement officer" means the Superintendent of State Police; any chief of police or sheriff responsible for law enforcement in the jurisdiction served by him; the head of any private police department that has been designated as a criminal justice agency by the Department of Criminal Justice Services as defined by § 9.1-101 ; the chief of any campus police department established pursuant to §§ 23.1-809 and 23.1-810 ; the chief of the Lynchburg Regional Airport police department established pursuant to § 15.2-1123.1 ; or director or chief executive of any agency or department employing law-enforcement officers as defined in § 9.1-101 .
  2. Every commissioner of the revenue, sheriff, constable or other officer shall promptly give information of the violation of any penal law to the attorney for the Commonwealth, who shall forthwith institute and prosecute all necessary and proper proceedings in such case, whether in the name of the Commonwealth or of a county or corporation, and may in such case issue or cause to be issued a summons for any witnesses he may deem material to give evidence before the court or grand jury. Except as otherwise provided in this chapter, no attorney for the Commonwealth shall go before any grand jury except when duly sworn to testify as a witness, but he may advise the foreman of a regular grand jury or any member or members thereof in relation to the discharge of their duties.
  3. Every chief law-enforcement officer shall provide to the attorney for the Commonwealth access to all records, including police reports, disciplinary records, and internal affairs investigations, relating to wrongful arrest or use of force complaints, or other complaints that a person has been deprived of the rights, privileges, or immunities secured or protected by the laws of the United States and the Commonwealth made against a law-enforcement officer who is employed by the chief law-enforcement officer's agency. Access shall be granted to the attorney for the Commonwealth to such records whenever a law-enforcement officer is a potential witness in a pending criminal matter or criminal investigation related to the performance of his duties as a law enforcement officer.

    The chief law-enforcement officer may redact any statements made by a law-enforcement officer employed by his agency or department during an internal affairs investigation that may incriminate such law-enforcement officer or be otherwise used to prosecute such law-enforcement officer. Any redactions made by the chief law-enforcement officer may be challenged by the attorney for the Commonwealth in an ex parte hearing before a circuit court judge.

    Any information protected by the federal Health Insurance Portability and Accountability Act shall not be disclosed pursuant to this subsection.

    (Code 1950, § 19.1-156; 1960, c. 366; 1975, c. 495; 2020, Sp. Sess. I, c. 37.)

Editor's note. - Acts 2020 Sp. Sess. I, c. 37, cl. 2 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2020 Sp. Sess. I amendments. - The 2020 amendment by Sp. Sess. I, c. 37, effective March 1, 2021, inserted subsection A, designated the existing provisions as subsection B and added subsection C.

Law review. - For note, "Grand Jury Reform: A Proposal for Change in Virginia," see 23 U. Rich. L. Rev. 279 (1989).

CASE NOTES

It is the purpose of this section to give the grand jury the benefit of the advice of the attorney for the Commonwealth relative to the discharge of their duties, without permitting him, by his presence, or otherwise, to influence them in reaching a conclusion during their deliberations. Hall v. Commonwealth, 143 Va. 554 , 130 S.E. 416 (1925).

Duty of sheriff. - This section makes it the duty of the sheriff to give information of the violation of any penal law to the attorney for the Commonwealth, whose duty it is to institute a prosecution in such case. This duty imposed upon the sheriff necessarily carries with it the implied power to investigate, inquire into, and ascertain if an offense has been or is being committed. Carico v. Wilmore, 51 F. 196 (W.D. Va. 1892).

Permissible communications with grand jury. - A Commonwealth's attorney may advise the grand jury on a legal issue and the law in regard to the various indictments that they are considering, but he may not specifically refer to the indictment against the accused. Pease v. Commonwealth, 24 Va. App. 397, 482 S.E.2d 851 (1997).

A Commonwealth's attorney is not permitted by his presence or otherwise to influence a grand jury in reaching a conclusion during their deliberations. Pease v. Commonwealth, 24 Va. App. 397, 482 S.E.2d 851 (1997).

Consultation by the regular grand jury with the attorney for the Commonwealth during deliberations to obtain advice on a legal issue was not error, as such action is explicitly provided for in this section, and his advice to them was properly limited to this matter. Vihko v. Commonwealth, 10 Va. App. 498, 393 S.E.2d 413 (1990).

Appearance of attorney for the Commonwealth. - An indictment will not be quashed because the attorney for the Commonwealth appeared before the grand jury during their deliberation when not sworn as a witness, where it appears from the evidence that he did not advise them to find the indictment, did not know of their finding until the presentment was made, and was not in the room when they had under consideration or deliberation the indictment or the presentment upon which the indictment was found. Mullins v. Commonwealth, 115 Va. 945 , 79 S.E. 324 (1913).

Presence does not invalidate indictment unless accused prejudiced. - Notwithstanding this section forbidding an attorney for the Commonwealth to go before a grand jury during their deliberations, the mere presence of the attorney for the Commonwealth in the grand jury room does not invalidate an indictment found at the time, if it satisfactorily appears that the accused was not prejudiced thereby. Draper v. Commonwealth, 132 Va. 648 , 111 S.E. 471 (1922), overruled on other grounds, as stated in Cooper v. Commonwealth, 277 Va. 377 , 673 S.E.2d 185 (2009).

Prejudicial conduct before grand jury found. - Where prosecutor initiated contact with grand jury regarding defendant's witness, about whom he told them that her testimony would not be truthful, and actually examined this witness for the grand jury, such conduct substantially influenced their decision to return murder indictment, to the prejudice of the defendant. Therefore, the indictment was quashed. Pease v. Commonwealth, 24 Va. App. 397, 482 S.E.2d 851 (1997).

CIRCUIT COURT OPINIONS

No private right of action. - Police officer, who claimed that other police officers conspired to conceal events surrounding the death of a suspect and compelled him to testify falsely about those events, did not have a private right of action against a city or its employees to recover damages he sustained when he was terminated from the city's police department. Young v. City of Norfolk, 62 Va. Cir. 307, 2003 Va. Cir. LEXIS 296 (Norfolk 2003).

Termination from employment. - To the extent that an employee alleged that the employee's termination resulted from complying with the employee's obligations under subsection C of § 63.2-526 , and §§ 19.2-201 and 19.2-208 , to report welfare fraud and to testify before a grand jury, the employee made out a claim under the Type 1 exception to the "employment-at-will" doctrine. McClosky v. Warren Co. Dep't of Soc. Servs., 81 Va. Cir. 35, 2010 Va. Cir. LEXIS 102 (Warren County July 15, 2010).

Deputies had a Bowman claim for complying with a duty to report sheriff's misconduct. - Sheriff's deputies had no right to bring a claim under Bowman v. State Bank of Keysville , 229 Va. 534 , 331 S.E.2d 797 (1985), for wrongful termination against the sheriff based on either § 15.2-1722 or the Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq.; however, they did state a Bowman claim based on their duty under § 19.2-201 to report wrongful conduct. Bowman v. Hunt,, 2011 Va. Cir. LEXIS 116 (Franklin County Aug. 16, 2011).

§ 19.2-202. How indictments found and presentment made.

At least four of a regular grand jury must concur in finding or making an indictment or presentment. It may make a presentment or find an indictment upon the information of two or more of its own body, or on the testimony of witnesses called on by the grand jury, or sent to it by the court. If only one of their number can testify as to an offense, he shall be sworn as any other witness. When a presentment or indictment is so made or found, the names of the grand jurors giving the information, or of the witnesses, shall be written at the foot of the presentment or indictment.

(Code 1950, § 19.1-157; 1960, c. 366; 1975, c. 495.)

Cross references. - As to indorsement of complaining witness' name, see § 19.2-228 .

CASE NOTES

Provision as to indorsement of names merely directory. - The requirement of this section that the names of witnesses shall be written at the foot of the indictment is merely directory, and noncompliance therewith does not invalidate the indictment. Shelton v. Commonwealth, 89 Va. 450 , 16 S.E. 355 (1892); Porterfield v. Commonwealth, 91 Va. 801 , 22 S.E. 352 (1895); Clopton v. Commonwealth, 109 Va. 813 , 63 S.E. 1022 (1909). See also Hall v. Commonwealth, 143 Va. 554 , 130 S.E. 416 (1925).

Although this section provides for the endorsement of names of witnesses who testify before a regular grand jury, the requirement is directory and an omission is not grounds to quash the indictment. Vihko v. Commonwealth, 10 Va. App. 498, 393 S.E.2d 413 (1990).

Omission does not exclude witnesses. - The omission of the names of witnesses in the indorsement of an indictment will not operate to exclude such witnesses from testifying at the trial. Lawrence v. Commonwealth, 71 Va. (30 Gratt.) 845 (1878), overruled on another point Jones v. Commonwealth, 87 Va. 63 , 12 S.E. 226 (1890).

The failure of the foreman of the grand jury to write the word "foreman" after his name is a matter of no moment. The entry on the order book showing the finding of the grand jury is sufficient evidence of that fact, and makes it immaterial whether the words "a true bill" were in fact indorsed on the indictment or not. Hall v. Commonwealth, 143 Va. 554 , 130 S.E. 416 (1925).

§ 19.2-203. Indictments ignored may be sent to another grand jury; what irregularities not to vitiate indictment, etc.

Although a bill of indictment be returned not a true bill the same or another bill of indictment against the same person for the same offense may be sent to, and acted on, by the same or another grand jury. No irregularity in the time or manner of selecting the jurors, or in the writ of venire facias, or in the manner of executing the same, shall vitiate any presentment, indictment or finding of a grand jury.

(Code 1950, § 19.1-158; 1960, c. 366; 1975, c. 495.)

Law review. - For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 21; 9A M.J. Grand Jury, § 19; 9B M.J. Indictments, Informations and Presentments, § 31.

CASE NOTES

Due process. - Imposition of a sentence against defendant after he violated the terms of an agreement that allowed him to withdraw a guilty plea to a felony in a circuit court did not violate the final disposition rule, speedy trial, or double jeopardy. Urbina v. Commonwealth, No. 2467-02-4, 2003 Va. App. LEXIS 551 (Ct. of Appeals Nov. 4, 2003).

Effect of section. - This section allows the prosecutor, once having failed to establish probable cause, to seek, perhaps armed with more or newly discovered evidence, another indictment on the same charge. Moore v. Commonwealth, 218 Va. 388 , 237 S.E.2d 187 (1977).

Bringing indictment after finding of no probable cause by district court. - Failure of the General Assembly to bar forever the bringing of an indictment after a finding of no probable cause by a district court was intentional. Such a provision would have been totally inconsistent with the provisions of former § 19.1-158 (now this section). Moore v. Commonwealth, 218 Va. 388 , 237 S.E.2d 187 (1977).

§ 19.2-204. Penalties on officers and jurors for failure of duty.

A court whose officer fails without good cause, when it is his duty, to summon a grand jury and return a list of its names shall fine him twenty dollars. A person summoned and failing to attend a court as a grand juror shall be fined by the court not less than five dollars nor more than twenty dollars, unless, after being summoned to show cause against the fine, he gives a reasonable excuse for his failure.

(Code 1950, § 19.1-159; 1960, c. 366; 1975, c. 495.)

§ 19.2-205. Pay and mileage of grand jurors.

Every person who serves upon a grand jury, regular or special, shall receive the same compensation and mileage allowed jurors in civil cases by § 17.1-618 and the same shall be paid out of the county or corporation levy.

(Code 1950, § 19.1-160; 1960, c. 366; 1974, c. 207; 1975, c. 495.)

Article 3. Special Grand Juries.

Michie's Jurisprudence. - For related discussion, see 9A M.J. Grand Jury, §§ 13, 21, 24, 31, 39, 41, 42, 44.

§ 19.2-206. When impanelled.

  1. Special grand juries may be impanelled by a circuit court (i) at any time upon its own motion, (ii) upon recommendation of a minority of the members of a regular grand jury that a special grand jury be impanelled, to perform the functions provided for in subdivision (2) of § 19.2-191 , or (iii) upon request of the attorney for the Commonwealth to investigate and report on any condition that involves or tends to promote criminal activity and consider bills of indictment to determine whether there is sufficient probable cause to return each such indictment as a "true bill."
  2. A special grand jury shall be impanelled by a circuit court upon the recommendation of a majority of the members of a regular grand jury if the court finds probable cause to believe that a crime has been committed which should be investigated by a special grand jury impanelled to perform the functions provided for in subdivision (2) of § 19.2-191 . (Code 1950, § 19.1-149; 1960, c. 366; 1975, c. 495; 1978, c. 741; 1980, c. 134; 1987, c. 136; 2001, c. 4.)

The 2001 amendments. - The 2001 amendment by c. 4, in subsection A, deleted "or" from the end of clause (i), added "or" at the end of clause (ii) and added clause (iii).

Law review. - For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

CASE NOTES

Under this section a special grand jury may be summoned without a writ of venire facias. Robinson v. Commonwealth, 88 Va. 900 , 14 S.E. 627 (1892). See also Combs v. Commonwealth, 90 Va. 88 , 17 S.E. 881 (1893).

The statute does not require the order of the judge to be entered of record. Mesmer v. Commonwealth, 67 Va. (26 Gratt.) 976 (1875).

When court may summon a special grand jury. - Under the provisions of this section and § 19.2-193 , special grand juries may be summoned and impaneled at any regular term of the court when so ordered by the judge. Wright v. Commonwealth, 114 Va. 872 , 77 S.E. 503 (1913).

Where one of the grand jury finding an indictment was incompetent, and for that reason the grand jury is dismissed and the indictment quashed the court may direct a special grand jury to be summoned and impaneled at the same term. An indictment found by this grand jury is valid. Shinn v. Commonwealth, 73 Va. (32 Gratt.) 899 (1879).

Powers of special grand jury. - A special grand jury is qualified to perform any business that may properly come before it, and generally has the same powers as a regular grand jury. Lyles v. Commonwealth, 88 Va. 396 , 13 S.E. 802 (1891). As to how indictments are found and presentments made, see § 19.2-202 .

CIRCUIT COURT OPINIONS

Powers of special grand jury. - Indictments were not fatally defective because the Commonwealth of Virginia did not misapply statutory procedures or fail to comply with the requirements of the law as to the authority of a special grand jury to issue indictments when that body had been empanelled upon request of the Attorney for the Commonwealth of Virginia. Commonwealth v. Morrissey, 89 Va. Cir. 191, 2014 Va. Cir. LEXIS 57 (Henrico County Sept. 3, 2014).

§ 19.2-207. Composition of a special grand jury.

Special grand juries shall consist of not less than seven and not more than 11 members, and shall be summoned from a list prepared by the court. Members of a special grand jury shall possess the same qualifications as those prescribed for members of a regular grand jury, including indifferent in the cause to be conducted by the special grand jury. In order to determine a potential juror's qualifications, the presiding judge shall examine each juror individually and under oath. He shall then certify in writing and not under seal that he has examined the members of the special grand jury and has found that they are qualified and are impartial and disinterested in the subject matter and outcome of the investigation. The examination shall be recorded by a court reporter and conducted pursuant to the requirements of secrecy provided for in this chapter. The court shall appoint one of the members as foreman.

(1975, c. 495; 2008, c. 644.)

The 2008 amendments. - The 2008 amendment by c. 644 substituted "11 members" for "eleven members" in the first sentence, inserted "including indifferent in the cause to be conducted by the special grand jury" in the second sentence, and inserted the third, fourth, and fifth sentences.

§ 19.2-208. Subpoena power of special grand jury.

The special grand jury may subpoena persons to appear before it to testify and to produce specified records, papers, and documents or other tangible things, but before any witness testifies, he shall be warned by the foreman that he need not answer any questions or produce any evidence that would tend to incriminate him, and that the witness may have counsel of his own procurement present when he appears to testify, and at the same time the foreman also shall warn each witness that he may later be called upon to testify in any case that might grow out of the investigation and report of the special grand jury.

A witness who has been called to testify or produce specified records, papers and documents or other tangible things before a grand jury requested by the attorney for the Commonwealth, and who refuses to testify or produce specified records, papers and documents or other tangible things by expressly invoking his right not to incriminate himself, may be compelled to testify or produce specified records, papers and documents or other tangible things by the presiding judge. Such witness who refuses to testify or produce specified records, papers and documents or other tangible things after being ordered to do so by the presiding judge may be held in contempt and may be incarcerated until the contempt is purged by compliance with the order or the grand jury is discharged. When a witness is compelled to testify or produce specified records, papers and documents or other tangible things after expressly invoking his right not to incriminate himself, and the presiding judge has determined that the assertion of the right is bona fide, the compelled testimony, or any information directly or indirectly derived from such testimony or other information, shall not be used against the witness in any criminal proceeding except a prosecution for perjury.

Notwithstanding the provisions of this section, all provisions of this Code relative to immunity granted to witnesses who testify before a grand jury shall remain applicable.

The foreman shall administer the oath prescribed by law for witnesses, and any member of the special grand jury may examine a witness.

(1975, c. 495; 2001, c. 4; 2003, c. 565.)

The 2001 amendments. - The 2001 amendment by c. 4 deleted the last sentence of the first paragraph, which read: "Notwithstanding the provisions of this section, all provisions of this Code relative to immunity granted to witnesses who testify before a grand jury shall remain applicable," and added the present second paragraph.

The 2003 amendments. - The 2003 amendment by c. 565 six times inserted "or other tangible things."

Law review. - For 1991 survey on criminal law and procedure, see 25 U. Rich. L. Rev. 731 (1991).

For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

For comment, see "Commonwealth and Constitution," 48 U. Rich. L. Rev. 415 (2013).

CASE NOTES

A defendant found guilty of contempt for failing to produce documents subpoenaed by a special grand jury was denied due process of law where the notice to the defendant of the hearing at which he was convicted of indirect contempt was insufficient to show that there would be a hearing before the court to determine whether he should be adjudged in contempt. The trial court abused its discretion in not granting a continuance. Davis v. Commonwealth, 219 Va. 395 , 247 S.E.2d 681 (1978).

CIRCUIT COURT OPINIONS

Termination from employment. - To the extent that an employee alleged that the employee's termination resulted from complying with the employee's obligations under subsection C of § 63.2-526 , and §§ 19.2-201 and 19.2-208 , to report welfare fraud and to testify before a grand jury, the employee made out a claim under the Type 1 exception to the "employment-at-will" doctrine. McClosky v. Warren Co. Dep't of Soc. Servs., 81 Va. Cir. 35, 2010 Va. Cir. LEXIS 102 (Warren County July 15, 2010).

OPINIONS OF THE ATTORNEY GENERAL

Immunity of witness. - A witness who testifies or produces evidence pursuant to a special grand jury subpoena is afforded use immunity and derivative use immunity; such a witness, however, is not granted transactional immunity, as he is not absolutely immune from future prosecution based on the mere fact of his prior testimony. See opinion of Attorney General to The Honorable David M. Hicks, Commonwealth's Attorney for the City of Richmond, 04-34 (7/6/04).

§ 19.2-209. Presence of counsel for a witness.

Any witness appearing before a special grand jury shall have the right to have counsel of his own procurement present when he testifies. Such counsel shall have the right to consult with and advise the witness during his examination, but shall not have the right to conduct an examination of his own of the witness.

(1975, c. 495.)

§ 19.2-210. Presence of attorney for the Commonwealth.

The attorney for the Commonwealth shall not be present at any time while the special grand jury is in session except that during the investigatory stage of its proceedings he may be present. When the special grand jury is impanelled upon motion of the court or recommendation of a regular grand jury, he may be present during the investigatory stage only when his presence is requested by the special grand jury and may interrogate witnesses provided the special grand jury requests or consents to such interrogation. When the special grand jury was impanelled upon his request, he may examine any witness called to testify or produce evidence, but his examination of a witness shall in no way affect the right of any grand juror to examine the witness.

The attorney for the Commonwealth shall not be present during or after the investigative stage of the proceedings at any time while the special grand jury is discussing, evaluating or considering the testimony of a witness or is deliberating in order to reach decisions or prepare its report, except that he may be present when his legal advice is requested by the special grand jury.

(1975, c. 495; 2001, c. 4.)

The 2001 amendments. - The 2001 amendment by c. 4, in the first paragraph, inserted the language beginning "When the special" and ending "investigatory stage only," deleted "or when the special grand jury was empanelled upon his motion. When present before the special grand jury he" and inserted "and" thereafter, preceding "may interrogate," and added the last sentence.

Law review. - For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

CASE NOTES

The role of special personnel is not limited to educating the grand jurors in the areas of expertise in order that they may successfully conduct their own investigation and examination, or simply to providing documentary evidence and reports. They may, and most often do, conduct the investigation. The limitation which the statute places on the appointed personnel is that they may not participate in the grand jury's deliberations. Vihko v. Commonwealth, 10 Va. App. 498, 393 S.E.2d 413 (1990).

Grand jury may direct special counsel to draft report. - So long as the grand jury arrived at its conclusions through untrammeled deliberations, it may then direct special counsel to draft its report. Vihko v. Commonwealth, 10 Va. App. 498, 393 S.E.2d 413 (1990).

§ 19.2-211. Provision for special counsel and other personnel.

At the request of the special grand jury, the court may designate special counsel to assist it in its work, and may also provide it with appropriate specialized personnel for investigative purposes.

(1975, c. 495.)

CASE NOTES

The role of special personnel is not limited to educating the grand jurors in the areas of expertise in order that they may successfully conduct their own investigation and examination, or simply to providing documentary evidence and reports. They may, and most often do, conduct the investigation. The limitation which the statute places on the appointed personnel is that they may not participate in the grand jury's deliberations. Vihko v. Commonwealth, 10 Va. App. 498, 393 S.E.2d 413 (1990).

§ 19.2-212. Provision for court reporter; use and disposition of notes, tapes and transcriptions.

  1. A court reporter shall be provided for a special grand jury to record, manually or electronically, and transcribe all oral testimony taken before a special grand jury, but such reporter shall not be present during any stage of its deliberations. The notes, tapes and transcriptions of the reporter are for the sole use of the special grand jury, and the contents thereof shall not be divulged by anyone except as hereinafter provided. After the special grand jury has completed its use of the notes, tapes and transcriptions, the foreman shall cause them to be sealed, the container dated, and delivered to the court.

    The court shall cause the sealed container to be kept safely. If any witness testifying before the special grand jury is prosecuted subsequently for perjury, the court, on motion of either the attorney for the Commonwealth or the defendant, shall permit them both to have access to the testimony given by the defendant when a witness before the special grand jury, and the testimony shall be admissible in the perjury case.

    If no prosecution for perjury is instituted within three years from the date of the report of the special grand jury, the court shall cause the sealed container to be destroyed; however, on motion of the attorney for the Commonwealth, the court may extend the time period for destruction if the grand jury was impanelled at the request of the attorney for the Commonwealth.

  2. Upon motion to the presiding judge, the attorney for the Commonwealth shall be permitted to review any evidence that was presented to the special grand jury, and shall be permitted to make notes and to duplicate portions of the evidence as he deems necessary for use in a criminal investigation or proceeding. The attorney for the Commonwealth shall maintain the secrecy of all information obtained from a review or duplication of the evidence presented to the special grand jury. Upon motion to the presiding judge by a person indicted after a special grand jury investigation, similar permission to review, note or duplicate evidence shall be extended if it appears that the permission is consistent with the ends of justice and is necessary to reasonably inform such person of the nature of the evidence to be presented against him, or to adequately prepare his defense.

    (1975, c. 495; 2001, c. 4; 2003, c. 96; 2008, c. 644.)

The 2001 amendments. - The 2001 amendment by c. 4 added the subsection A designator and added subsection B.

The 2003 amendments. - The 2003 amendment by c. 96, in subsection A, deleted "said" preceding "notes" in the last sentence of the first paragraph, deleted "said" preceding "testimony" in the last sentence of the second paragraph, and inserted "however, on motion of the attorney for the Commonwealth, the court may extend the time period for destruction if the grand jury was impanelled at the request of the attorney for the Commonwealth" at the end of the last paragraph.

The 2008 amendments. - The 2008 amendment by c. 644 substituted "after a special grand jury investigation" for "by a special grand jury" in the last sentence of subsection B.

CASE NOTES

Secrecy is to protect proceedings from public exposure. - The characteristic secrecy associated with grand jury proceedings is intended to protect proceedings from public exposure. Vihko v. Commonwealth, 10 Va. App. 498, 393 S.E.2d 413 (1990).

The rationale for nondisclosure of grand jury proceedings to the public is twofold: (1) to protect the reputation of suspected individuals from the stigma which investigation alone can bring; and (2) to promote public cooperation in investigations by providing some anonymity and reducing the risk of recrimination. Vihko v. Commonwealth, 10 Va. App. 498, 393 S.E.2d 413 (1990).

Primary function of recording proceedings. - While the better practice is to record all proceedings before the grand jury, other than their deliberations, the primary function of recording the proceedings is to maintain a record and transcript for the use, benefit, and convenience of the grand juries. The record is not maintained to provide those under investigation with a record to assure that all formalities attendant to the proceedings have been followed. Vihko v. Commonwealth, 10 Va. App. 498, 393 S.E.2d 413 (1990).

Trial judge only authorized official to monitor scope of disclosure. - The trial judge is the only official authorized by statute to allow access to and to monitor the scope of disclosure of the grand jury's notes, tapes, transcriptions, and report after sealing and filing with the court. Vihko v. Commonwealth, 10 Va. App. 498, 393 S.E.2d 413 (1990) (decided prior to 2001 amendments).

Evidence viewed by grand jury no bar to use at trial. - The fact that a grand jury previously viewed or considered evidence, standing alone, is no bar to its subsequent use at trial. Vihko v. Commonwealth, 10 Va. App. 498, 393 S.E.2d 413 (1990).

§ 19.2-213. Report by special grand jury; return of true bill.

At the conclusion of its investigation and deliberation, a special grand jury impanelled by the court on its own motion or on recommendation of a regular grand jury shall file a report of its findings with the court, including therein any recommendations that it may deem appropriate, after which it shall be discharged. Such report shall be sealed and not open to public inspection, other than by order of the court.

A majority, but not less than five, of the members of a special grand jury convened upon request of the attorney for the Commonwealth must concur in order to return a "true bill" of indictment. A "true bill" may be returned upon the testimony of, or evidence produced by, any witness who was called by the grand jury, upon evidence presented or sent to it.

(1975, c. 495; 1978, c. 638; 2001, c. 4.)

The 2001 amendments. - The 2001 amendment by c. 4 substituted "a special grand jury impanelled by the court on its own motion or on recommendation of a regular grand jury" for "the special grand jury" in the first paragraph and added the second paragraph.

Law review. - For survey of Virginia criminal procedure for the year 1977-1978, see 64 Va. L. Rev. 1419 (1978).

CASE NOTES

Trial judge only authorized official to monitor scope of disclosure. - The trial judge is the only official authorized by statute to allow access to and to monitor the scope of disclosure of the grand jury's notes, tapes, transcriptions, and report after sealing and filing with the court. Vihko v. Commonwealth, 10 Va. App. 498, 393 S.E.2d 413 (1990).

Report not required. - Trial court did not err in refusing to quash the indictments based on the special grand jury's failure to file a report as § 19.2-213 did not contain a requirement to prepare a report in addition to returning a true bill of indictment. Whitaker v. Commonwealth, No. 1686-18-1, 2019 Va. App. LEXIS 289 (Dec. 10, 2019).

CIRCUIT COURT OPINIONS

Need for grand jury materials. - As the circuit court presiding over a special grand jury could not determine from the record to what extent, if at all, a town had a particularized need for grand jury materials to defend against a suit, it sent the report of the special grand jury to the federal district court in which the suit was pending for that court's ruling on the issue. In re Special Grand Jury Report, 54 Va. Cir. 482, 2001 Va. Cir. LEXIS 208 (Roanoke County 2001).

§ 19.2-213.1. Discharge of special grand jury.

If a special grand jury has not filed a report pursuant to § 19.2-213 within six months of its impanelling, the circuit court appointing it shall discharge it; provided, however, if such court, in its discretion, determines that the special grand jury is making progress in its investigation, the court may direct that special grand jury to continue its investigation pursuant to this article.

(1978, c. 638.)

Law review. - For survey of Virginia criminal procedure for the year 1977-1978, see 64 Va. L. Rev. 1419 (1978).

§ 19.2-214. Prosecutions resulting from report.

Any bill of indictment for alleged criminal offenses, which may follow as a result of the report of the special grand jury, shall be prepared by the attorney for the Commonwealth for presentation to a regular grand jury.

(1975, c. 495.)

CIRCUIT COURT OPINIONS

Indictment procedure. - Indictments were not fatally defective because the Commonwealth of Virginia did not misapply statutory procedures or fail to comply with the requirements of the law as to the authority of a special grand jury to issue indictments when that body had been empanelled upon request of the Attorney for the Commonwealth of Virginia. Commonwealth v. Morrissey, 89 Va. Cir. 191, 2014 Va. Cir. LEXIS 57 (Henrico County Sept. 3, 2014).

§ 19.2-215. Costs of special grand jury.

All costs incurred for services provided by the court for a special grand jury shall be paid by the Commonwealth.

(1975, c. 495.)

Article 4. Multi-Jurisdiction Grand Juries.

Michie's Jurisprudence. - For related discussion, see 9A M.J. Grand Jury, §§ 46-50.

§ 19.2-215.1. Functions of a multi-jurisdiction grand jury.

The functions of a multi-jurisdiction grand jury are:

  1. To investigate any condition that involves or tends to promote criminal violations of:
    1. Title 10.1 for which punishment as a felony is authorized;
    2. § 13.1-520 ;
    3. §§ 18.2-47 and 18.2-48 ;
    4. §§ 18.2-111 and 18.2-112 ;
    5. Article 6 (§ 18.2-59 et seq.) of Chapter 4 of Title 18.2;
    6. Article 7.1 (§ 18.2-152.1 et seq.) of Chapter 5 of Title 18.2;
    7. Article 1 (§ 18.2-247 et seq.) and Article 1.1 (§ 18.2-265.1 et seq.) of Chapter 7 of Title 18.2;
    8. Article 1 (§ 18.2-325 et seq.) and Article 1.1:1 (§ 18.2-340.15 et seq.) of Chapter 8 of Title 18.2, Chapter 29 (§ 59.1-364 et seq.) of Title 59.1 or any other provision prohibiting, limiting, regulating, or otherwise affecting gaming or gambling activity;
    9. § 18.2-434 , when violations occur before a multi-jurisdiction grand jury;
    10. Article 2 (§ 18.2-438 et seq.) and Article 3 (§ 18.2-446 et seq.) of Chapter 10 of Title 18.2;
    11. § 18.2-460 for which punishment as a felony is authorized;
    12. Article 1.1 (§ 18.2-498.1 et seq.) of Chapter 12 of Title 18.2;
    13. Article 1 (§ 32.1-310 et seq.) of Chapter 9 of Title 32.1;
    14. Chapter 4.2 (§ 59.1-68.6 et seq.) of Title 59.1;
    15. Article 9 (§ 3.2-6570 et seq.) of Chapter 65 of Title 3.2;
    16. Article 1 (§ 18.2-30 et seq.) of Chapter 4 of Title 18.2;
    17. Article 2.1 (§ 18.2-46.1 et seq.) and Article 2.2 (§ 18.2-46.4 et seq.) of Chapter 4 of Title 18.2;
    18. Article 5 (§ 18.2-186 et seq.) and Article 6 (§ 18.2-191 et seq.) of Chapter 6 of Title 18.2;
    19. Chapter 6.1 (§ 59.1-92.1 et seq.) of Title 59.1;
    20. § 18.2-178 where the violation involves insurance fraud;
    21. § 18.2-346.01 , 18.2-348 , or 18.2-349 for which punishment as a felony is authorized or § 18.2-355 , 18.2-356 , 18.2-357 , or 18.2-357.1 ;
    22. Article 9 (§ 18.2-246.1 et seq.) of Chapter 6 of Title 18.2;
    23. Article 2 (§ 18.2-38 et seq.) of Chapter 4 of Title 18.2;
    24. Malicious felonious assault and malicious bodily wounding under Article 4 (§ 18.2-51 et seq.) of Chapter 4 of Title 18.2;
    25. Article 5 (§ 18.2-58 et seq.) of Chapter 4 of Title 18.2;
    26. Felonious sexual assault under Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2; aa. Arson in violation of § 18.2-77 when the structure burned was occupied or a Class 3 felony violation of § 18.2-79 ; ab. Chapter 13 (§ 18.2-512 et seq.) of Title 18.2; ac. § 18.2-246.14 and Chapter 10 (§ 58.1-1000 et seq.) of Title 58.1; ad. Subsection A or B of § 18.2-57 where the victim was selected because of his race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin; ae. § 18.2-121 for which punishment as a felony is authorized; af. Article 5 (§ 18.2-420 et seq.) of Chapter 9 of Title 18.2; and ag. Any other provision of law when such condition is discovered in the course of an investigation that a multi-jurisdiction grand jury is otherwise authorized to undertake and to investigate any condition that involves or tends to promote any attempt, solicitation, or conspiracy to violate the laws enumerated in this section.
  2. To report evidence of any criminal offense enumerated in subdivision 1 and for which a court reporter has recorded all oral testimony as provided by § 19.2-215.9 to the attorney for the Commonwealth or United States attorney of any jurisdiction where such offense could be prosecuted or investigated, or to the chief law-enforcement officer of any jurisdiction where such offense could be prosecuted or investigated, or to a sworn investigator designated pursuant to § 19.2-215.6 , or, when appropriate, to the Attorney General.
  3. To consider bills of indictment prepared by a special counsel to determine whether there is sufficient probable cause to return each such indictment as a "true bill." Only bills of indictment which allege an offense enumerated in subdivision 1 may be submitted to a multi-jurisdiction grand jury.
  4. The provisions of this section shall not abrogate the authority of an attorney for the Commonwealth in a particular jurisdiction to determine the course of a prosecution in that jurisdiction.

    (1983, c. 543; 1991, c. 616; 1995, c. 552; 2000, c. 359; 2002, cc. 588, 623; 2004, cc. 396, 435; 2008, c. 704; 2009, c. 491; 2011, c. 504; 2013, cc. 83, 314, 459; 2014, cc. 389, 422, 534; 2015, cc. 690, 691; 2019, c. 617; 2020, c. 747; 2021, Sp. Sess. I, c. 188.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2004, cc. 396 and 435, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2015, cc. 690 and 691, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 2 of the Acts of Assembly of 2014, Special Session I, requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2019, c. 617, cl. 2 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 2 of the Acts of Assembly of 2018, Special Session I, requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2000 amendments. - The 2000 amendment by c. 359 added present subdivisions 1 o and 1 p, redesignated former subdivision 1 o as present subdivision 1 q, and added subdivision 4.

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and substituted "that" for "which" in the introductory language of subdivision 1 and twice in subdivision 1 r; inserted present subdivision 1 q and made related changes; and redesignated former subdivision 1 q as present subdivision 1 r.

The 2004 amendments. - The 2004 amendments by cc. 396 and 435 are identical, and added "Article 2.1 ( § 18.2-46.1 et seq.) and" at the beginning of subdivision 1 q.

The 2008 amendments. - The 2008 amendment by c. 704 deleted "and" at the end of subdivision 1 q; redesignated former subdivision 1 r as subdivision 1 s; and inserted subdivision 1 r.

The 2009 amendments. - The 2009 amendment by c. 491 inserted subdivision 1 s and redesignated former subdivision 1 s as subdivision 1 t; and made a related change.

The 2011 amendments. - The 2011 amendment by c. 504 added subdivision 1 t and made a related change; and redesignated former subdivision 1 t as subdivision 1 u.

The 2013 amendments. - The 2013 amendment by c. 83 added subdivision 1 u and redesignated accordingly, and made a related change.

The 2013 amendment by c. 314 added subdivision 1 u, and made a related change. Subdivision 1 u as added by c. 314, was redesignated as 1 v at the direction of the Virginia Code Commission.

The 2013 amendment by c. 459 added subdivisions 1 u through 1 z and redesignated former subdivision 1 u as present 1 aa and made related changes; and inserted "and for which a court reporter has recorded all oral testimony as provided by § 19.2-215.9 " in subdivision 2. Subdivisions 1 u through 1 z, as added by c. 459, were redesignated as 1 w through 1 bb at the direction of the Virginia Code Commission.

The 2014 amendments. - The 2014 amendment by c. 389 in subdivision 2 substituted "or to the chief law-enforcement officer of any jurisdiction where such offense could be prosecuted or investigated, or to a sworn investigator designated pursuant to § 19.2-215.6 , or" for "and."

The 2014 amendment by cc. 422 and 534 are identical, and added subdivision 1 cc, redesignated former 1 cc as present 1 dd, and made related changes.

The 2015 amendments. - The 2015 amendments by cc. 690 and 691 are identical, and substituted "18.2-346 for which punishment as a felony is authorized or § 18.2-355 , 18.2-356 , 18.2-357 , or 18.2-357 .1" for "18.2-356" in subdivision 1 u.

The 2019 amendments. - The 2019 amendment by c. 617, in subdivision 1 u, inserted "18.2-348, or 18.2-349 "; and made stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 748 added subdivisions 1 ad, 1 ae, 1 af, and redesignated former 1 ad as 1 ag.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, substituted " § 18.2-346.01 " for " § 18.2-346 " in subdivision 1 u.

Law review. - For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

CASE NOTES

Construction with § 18.2-262 . - In order to give full force and effect both to this section, addressing the narrow, specific exemption for multi-jurisdictional grand juries, and to § 18.2-262 , addressing grand juries generally, the later enacted statutory scheme ( § 19.2-215.1 et seq.) is construed to control testimony before multi-jurisdiction grand juries. Tharpe v. Commonwealth, 18 Va. App. 37, 441 S.E.2d 228 (1994).

§ 19.2-215.2. Application for such grand jury.

Provided the Attorney General has approved the application in writing prior to submission, application for a multi-jurisdiction grand jury may be made to the Supreme Court of Virginia by two or more attorneys for the Commonwealth from jurisdictions which would be within the original scope of the investigation. The application shall be in writing and shall state (i) which jurisdictions will be involved in the original scope of the investigation, (ii) in which jurisdiction it is requested that the multi-jurisdiction grand jury be convened, (iii) the name or names of the attorneys for the Commonwealth or their assistants who will serve as special counsel to the grand jury, (iv) the name of the attorney who shall direct the grand jury proceedings. The presiding judge may extend or limit the jurisdictional territory of the investigation, for good cause shown, upon the motion of a grand jury already convened. Notice of every such application shall be given to the attorneys for the Commonwealth in the jurisdictions named in the application and, if the original scope of the investigation is extended into other jurisdictions, notice of such extension shall be given to the attorneys for the Commonwealth in the jurisdictions into which the investigation is extended.

(1983, c. 543.)

§ 19.2-215.3. When impaneled; impaneling order.

Upon application by two or more attorneys for the Commonwealth, the Chief Justice of the Supreme Court, or any justice designated by the Chief Justice, may within twenty days thereafter order the impaneling of a multi-jurisdiction grand jury for a term of twelve months. The term of such a grand jury may be extended for successive periods of not more than six months by the Chief Justice, or by any justice designated by the Chief Justice, upon the petition of a majority of the members of the grand jury.

The impaneling order shall designate the jurisdiction requested on the application as the jurisdiction where the multi-jurisdiction grand jury shall be convened and shall, unless all judges of that circuit have recused themselves, appoint a judge of the circuit court of that jurisdiction as the presiding judge. The impaneling order shall also designate special counsel and each special counsel who will assist the multi-jurisdiction grand jury as listed in the application. The presiding judge shall substitute or appoint additional special counsel upon motion of special counsel.

(1983, c. 543; 2010, c. 438.)

The 2010 amendments. - The 2010 amendment by c. 438, in the second paragraph, deleted "shall appoint a judge of a circuit court from one of the jurisdictions named on the application as the presiding judge and" following "impaneling order," and inserted "the jurisdiction requested on the application as the jurisdiction" and "and shall, unless all judges of that circuit have recused themselves, appoint a judge of the circuit court of that jurisdiction as the presiding judge."

§ 19.2-215.4. Number and qualifications of jurors; grand jury list; when convened; compensation of jurors.

  1. A multi-jurisdiction grand jury shall consist of not less than seven nor more than 11 members. Each member of a multi-jurisdiction grand jury shall be a citizen of this Commonwealth, 18 years of age or older, and a resident of this Commonwealth for one year and of one of the jurisdictions named in the application for six months.
  2. The presiding judge shall determine the number of grand jurors to be drawn and shall draw them so that, to the extent practicable, each of the jurisdictions named in the application is represented by at least one juror residing in that jurisdiction, but in no event shall said panel have more than 11 members. The grand jurors shall be summoned from a list prepared by the presiding judge. In the preparation of this list, the presiding judge shall select only persons who have been selected as regular grand jurors pursuant to the provisions of § 19.2-194 in the jurisdiction named in the application. Members of a multi-jurisdiction grand jury shall possess the same qualifications as those prescribed for members of a regular grand jury, including indifference in the cause.
  3. The provisions of § 19.2-192 dealing with secrecy in grand jury proceedings are incorporated herein by reference.
  4. The presiding judge shall determine the time, date and place within the designated jurisdiction where the multi-jurisdiction grand jury is to be convened. The presiding judge shall also appoint one of the grand jurors to serve as foreman. Members of the multi-jurisdiction grand jury shall be compensated according to the provisions of § 19.2-205 . The expense of a multi-jurisdiction grand jury shall be borne by the Commonwealth. (1983, c. 543; 2008, c. 644.)

The 2008 amendments. - The 2008 amendment by c. 644, in subsection A, substituted "11" for "eleven" and "18" for "eighteen"; in subsection B, substituted "11" for "eleven" and added the last sentence.

§ 19.2-215.5. Subpoena power; counsel for witness; oath.

A multi-jurisdiction grand jury has statewide subpoena power and, through special counsel, may subpoena persons to appear before it to testify and may subpoena the production of evidence, with or without the custodian of records at the election of special counsel, in the form of specified records, papers, documents, or other tangible things. Such subpoenas shall be returnable for a specific meeting of the multi-jurisdiction grand jury. Mileage and such other reasonable expenses as are approved by the presiding judge shall be paid such persons from funds appropriated for such purpose.

A witness before a multi-jurisdiction grand jury shall be entitled to the presence of counsel in the grand jury room, but he may not participate in the proceedings.

The foreman shall administer the oath required by law for witnesses.

(1983, c. 543; 2014, c. 389.)

The 2014 amendments. - The 2014 amendment by c. 389 in the first paragraph substituted "and may subpoena the production of" for "or to produce," inserted "through special counsel" and "with or without the custodian of records at the election of special counsel," added the second sentence, and made minor stylistic changes.

§ 19.2-215.6. Role and presence of special counsel; examination of witnesses; sworn investigators.

Special counsel may be present during the investigatory stage of a multi-jurisdiction grand jury proceeding and may examine any witness who is called to testify or produce evidence. The examination of a witness by special counsel shall in no way affect the right of any grand juror to examine the witness.

At the request of special counsel, the presiding judge shall designate specialized personnel for investigative purposes. Such personnel shall be designated as a sworn investigator and shall be administered an oath to maintain the secrecy of all proceedings of the multi-jurisdiction grand jury. A sworn investigator is permitted to discuss multi-jurisdiction grand jury proceedings with any other sworn investigator or special counsel and may participate in multi-jurisdiction grand jury proceedings at the request of special counsel or the grand jury. Any specialized personnel who have been administered an oath to maintain the secrecy of all proceedings of the multi-jurisdiction grand jury before July 1, 2014, and who continue to serve in that position are deemed to be sworn investigators under this section.

Special counsel and sworn investigators, however, may not be present at any time during the deliberations of a multi-jurisdiction grand jury except when the grand jury requests the legal advice of special counsel as to specific questions of law.

(1983, c. 543; 2014, c. 389.)

The 2014 amendments. - The 2014 amendment by c. 389 added the second paragraph; and in the third paragraph inserted "and sworn investigators."

§ 19.2-215.7. Warnings given to witnesses; when witness in contempt; use of testimony compelled after witness invokes right against self-incrimination.

  1. Every witness testifying before a multi-jurisdiction grand jury shall be warned by special counsel or by the foreman of the grand jury that he need not answer any question that would tend to incriminate him, and that he may later be called upon to testify in any case that may result from the grand jury proceedings.
  2. A witness who has been called to testify or produce evidence before a multi-jurisdiction grand jury, and who refuses to testify or produce evidence by expressly invoking his right not to incriminate himself, may be compelled to testify or produce evidence by the presiding judge. A witness who refuses to testify or produce evidence after being ordered to do so by the presiding judge may be held in contempt and may be incarcerated until the contempt is purged by compliance with the order.
  3. When a witness is compelled to testify or produce evidence after expressly invoking his right not to incriminate himself, and the presiding judge has determined that the assertion of the right is bona fide, the compelled testimony, or any information directly or indirectly derived from such testimony or other information, shall not be used against the witness in any criminal proceeding except a prosecution for perjury.

    (1983, c. 543.)

Law review. - For comment, see "Commonwealth and Constitution," 48 U. Rich. L. Rev. 415 (2013).

CASE NOTES

Appellant never invoked her constitutional privilege against self-incrimination before a multi-jurisdiction grand jury where the record indicated that appellant was advised that she need not answer any incriminating questions but that if she refused to answer, she could be compelled to do so, and appellant indicated in writing that she understood this warning, but she testified about the drug crimes without affirmatively invoking her privilege. Tharpe v. Commonwealth, 18 Va. App. 37, 441 S.E.2d 228 (1994).

§ 19.2-215.8. Returning a "true bill" of indictment; jurisdiction to be set out.

In order to return a "true bill" of indictment, a majority, but in no instance less than five, of the multi-jurisdiction grand jurors must concur in that finding. A multi-jurisdiction grand jury may return a "true bill" of indictment upon the testimony of, or evidence produced by, any witness who was called by the grand jury, upon evidence presented to it by special counsel, or upon evidence sent to it by the presiding judge.

Every "true bill" of indictment returned by a multi-jurisdiction grand jury shall state in which jurisdiction or jurisdictions the offense is alleged to have occurred. Thereafter, when venue is proper in more than one jurisdiction, the presiding judge who directed the grand jury proceeding shall elect in which one of the jurisdictions named in the indictment the indictment is to be prosecuted.

(1983, c. 543.)

§ 19.2-215.9. Court reporter provided; safekeeping of transcripts, notes, etc.; when disclosure permitted; access to record of testimony and evidence.

  1. A court reporter shall be provided for a multi-jurisdiction grand jury to record, manually or electronically, and transcribe all oral testimony taken before a multi-jurisdiction grand jury, but such a reporter shall not be present during any stage of its deliberations. Such transcription shall include the original or copies of all documents, reports, or other evidence presented to the multi-jurisdiction grand jury. The notes, tapes, and transcriptions of the reporter are for the use of the multi-jurisdiction grand jury, and the contents thereof shall not be used or divulged by anyone except as provided in this article. After the multi-jurisdiction grand jury has completed its use of the notes, tapes, and transcriptions, the foreman shall cause them to be delivered to the clerk of the circuit court in whose jurisdiction the multi-jurisdiction grand jury sits, with copies provided to special counsel. Upon motion of special counsel, the presiding judge may order that such notes, tapes, and transcriptions be destroyed at the direction of special counsel by any means the presiding judge deems sufficient, provided that at least seven years have passed from the date of the multi-jurisdiction grand jury proceeding where such notes, tapes, and transcriptions were made.
  2. The clerk shall cause the notes, tapes, and transcriptions or other evidence to be kept safely. Upon motion to the presiding judge, special counsel or the attorney for the Commonwealth or United States attorney of any jurisdiction where the offense could be prosecuted or investigated shall be permitted to review any of the evidence which was presented to the multi-jurisdiction grand jury and shall be permitted to make notes and to duplicate portions of the evidence as he deems necessary for use in a criminal investigation or proceeding. Special counsel, the attorney for the Commonwealth, or the United States attorney shall maintain the secrecy of all information obtained from a review or duplication of the evidence presented to the multi-jurisdiction grand jury, except that this information may be disclosed pursuant to the provisions of subdivision 2 of § 19.2-215.1 . A United States attorney satisfies his duty to maintain secrecy of information obtained from a review or duplication of evidence presented to the multi-jurisdiction grand jury if such information is maintained in accordance with the Federal Rules of Criminal Procedure. After a person has been indicted by a grand jury, the attorney for the Commonwealth shall notify such person that the multi-jurisdiction grand jury was used to obtain evidence for a prosecution. Upon motion to the presiding judge by a person indicted by a multi-jurisdiction grand jury or by a person being prosecuted with evidence presented to a multi-jurisdiction grand jury, similar permission to review, note, or duplicate evidence shall be extended. Any person granted permission to make notes and to duplicate portions of the evidence given before the multi-jurisdiction grand jury shall maintain the secrecy of all information obtained from a review or duplication of the evidence presented to the multi-jurisdiction grand jury, except for disclosure as he deems necessary for use in a criminal investigation or proceeding. The timing of the access to such evidence shall be determined by the presiding judge after a hearing on the matter, if the parties do not otherwise agree. Any person granted permission herein is precluded from making additional copies of these materials, except as he deems necessary for use in a criminal investigation or proceeding, without permission of the presiding judge and is to notify the presiding judge and the attorney for the Commonwealth immediately if these materials are lost or their secrecy has not been maintained.
  3. If any witness who testified or produced evidence before the multi-jurisdiction grand jury is prosecuted on the basis of his testimony or the evidence he produced, or if any witness is prosecuted for perjury on the basis of his testimony or the evidence he produced before the multi-jurisdiction grand jury, the presiding judge, on motion of either special counsel or the defendant, shall permit the defendant access to the testimony of or evidence produced by the defendant before the multi-jurisdiction grand jury. The testimony and the evidence produced by the defendant before the multi-jurisdiction grand jury shall then be admissible in the trial of the criminal offense with which the defendant is charged (i) to establish a charge of perjury in the Commonwealth's case-in-chief on the basis of his testimony before the multi-jurisdiction grand jury and (ii) for the purpose of impeaching the defendant in the trial of any other criminal matter, provided the testimony or evidence being used for impeachment was produced by the defendant voluntarily before the multi-jurisdiction grand jury.

    (1983, c. 543; 2014, c. 389; 2016, c. 262; 2019, c. 522.)

The 2014 amendments. - The 2014 amendment by c. 389 in subsection A substituted the language beginning "clerk of the circuit court" and the last sentence for "presiding judge"; in subsection B substituted "clerk" for "presiding judge"; and in subsection C substituted "special counsel" for "the Commonwealth," inserted "(i) to establish a charge of perjury in the Commonwealth's case-in-chief on the basis of his testimony before the multi-jurisdiction grand jury and (ii)" and "in the trial of any other criminal matter, provided the testimony or evidence being used for impeachment was produced by the defendant voluntarily before the multi-jurisdiction grand jury" at the end, and deleted "voluntarily" twice following "witness who" and "defendant," "who was compelled to testify or to produce evidence" following "any witness," and "both the Commonwealth and" following "shall permit," and made a minor stylistic change.

The 2016 amendments. - The 2016 amendments by c. 262, in subsection B, inserted "or the attorney for the Commonwealth or United States attorney of any jurisdiction where the offense could be prosecuted or investigated" in the second sentence, inserted "the attorney for the Commonwealth, or the United States attorney" in the third sentence, added the fourth sentence, and inserted "or by a person being prosecuted with evidence presented to a multi-jurisdiction grand jury" and deleted "if it appears that the permission is consistent with the ends of justice and is necessary to reasonably inform such person of the nature of the evidence to be presented against him, or to adequately prepare his defense" from the end of the last sentence.

The 2019 amendment. - The 2019 amendment by c. 522, in subsection B, inserted the fifth sentence in the first paragraph, and added the second paragraph.

CASE NOTES

Failure to record multi-jurisdictional grand jury proceeding. - Failure to record the multi-jurisdictional grand jury proceeding alone is not a per se basis for reversing the trial court's judgment. Robinson v. Commonwealth, 63 Va. App. 715, 762 S.E.2d 806, 2014 Va. App. LEXIS 309 (Sept. 16, 2014).

Defendant was not prejudiced by the failure to record the multi-jurisdictional grand jury proceeding, as he had the right to confront the prosecution's witnesses and the right to present his own witnesses to establish a defense. Robinson v. Commonwealth, 63 Va. App. 715, 762 S.E.2d 806, 2014 Va. App. LEXIS 309 (Sept. 16, 2014).

§ 19.2-215.10. Participation by Office of Attorney General; assistance of special counsel permitted in certain prosecutions.

Upon request by the applicants or upon motion to the presiding judge by special counsel, the Office of Attorney General may participate as special counsel in the multi-jurisdiction grand jury proceedings and any prosecutions arising therefrom. In any prosecution arising out of the multi-jurisdiction grand jury, the attorney for the Commonwealth may also obtain the assistance of the special counsel to the grand jury as a special assistant attorney for the Commonwealth.

(1983, c. 543.)

§ 19.2-215.11. Discharge of grand jury.

At any time during the original or extended term of a multi-jurisdiction grand jury, the presiding judge may discharge the grand jury if, in the opinion of the presiding judge, the existence of the multi-jurisdiction grand jury is no longer necessary.

(1983, c. 543.)

Chapter 14. Presentments, Indictments and Informations.

Necessity for Indictment, etc.

Form and Requisites.

Amendments.

Process.

Research References. - Virginia Forms (Matthew Bender). No. 9-501. Indictment (Felony--General Form), et seq. No. 9-1601. Motion for Bill of Particulars, et seq. No. 9-1802. Motion to Dismiss--Denial of Preliminary Hearing, et seq.

Article 1. Necessity for Indictment, etc.

§ 19.2-216. Definition of indictment, presentment and information.

An indictment is a written accusation of crime, prepared by the attorney for the Commonwealth and returned "a true bill" upon the oath or affirmation of a legally impanelled grand jury.

A presentment is a written accusation of crime prepared and returned by a grand jury from their own knowledge or observation, without any bill of indictment laid before them.

An information is a written accusation of crime or a complaint for forfeiture of property or money or for imposition of a penalty, prepared and presented by a competent public official upon his oath of office.

(1975, c. 495.)

Applied in Epps v. Commonwealth, 293 Va. 403 , 799 S.E.2d 516 (2017).

§ 19.2-217. When information filed; prosecution for felony to be by indictment or presentment; waiver; process to compel appearance of accused.

An information may be filed by the attorney for the Commonwealth based upon a complaint in writing verified by the oath of a competent witness; but no person shall be put upon trial for any felony, unless an indictment or presentment shall have first been found or made by a grand jury in a court of competent jurisdiction or unless such person, by writing signed by such person before the court having jurisdiction to try such felony or before the judge of such court shall have waived such indictment or presentment, in which event he may be tried on a warrant or information. If the accused be in custody, or has been recognized or summoned to answer such information, presentment or indictment, no other process shall be necessary; but the court may, in its discretion, issue process to compel the appearance of the accused.

(Code 1950, § 19.1-162; 1960, c. 366; 1975, c. 495.)

Law review. - For article, "Is the Grand Jury Necessary?," see 45 Va. L. Rev. 461 (1959). For comment on arraignment, pretrial motions, and pleas, see 22 Wash. & Lee L. Rev. 336 (1965). For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 12, 20, 21; 8B M.J. Forgery, § 12; 9A M.J. Grand Jury, § 31; 9B M.J. Indictments, Informations and Presentments, §§ 7, 50.

CASE NOTES

This section is a criminal statute and applies only to a criminal proceeding. Lawrence v. Commonwealth, 206 Va. 51 , 141 S.E.2d 735 (1965).

It is not applicable to a proceeding under former § 53-296, the recidivist statute. Lawrence v. Commonwealth, 206 Va. 51 , 141 S.E.2d 735 (1965).

There is no constitutional requirement that prosecutions for felony be by indictment. The requirement is merely statutory and may be waived. Livingston v. Commonwealth, 184 Va. 830 , 36 S.E.2d 561 (1946); Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368, cert. denied, 344 U.S. 886, 73 S. Ct. 186, 97 L. Ed. 686 (1952); Council v. Smyth, 201 Va. 135 , 109 S.E.2d 116 (1959); Cunningham v. Hayes, 204 Va. 851 , 134 S.E.2d 271, cert. denied, 376 U.S. 973, 84 S. Ct. 1140, 12 L. Ed. 2d 86 (1964); Henson v. Commonwealth, 208 Va. 120 , 155 S.E.2d 346 (1967).

While this section prevents the trial of a person on a felony charge except upon a presentment or indictment found by a grand jury, this is purely a statutory requirement and is not predicated upon any constitutional guarantee. Benson v. Commonwealth, 190 Va. 744 , 58 S.E.2d 312 (1950); Scales v. Commonwealth, 214 Va. 728 , 204 S.E.2d 273 (1974), cert. denied, 419 U.S. 1123, 95 S. Ct. 808, 42 L. Ed. 2d 823 (1975).

Although defendant asserted that the delayed entry of the order recording the presentation of the indictment in open court invalidated his conviction, because there was no constitutional requirement that prosecutions for a felony had to be by indictment, as that requirement was merely statutory and could be waived, the trial court did not lack subject matter jurisdiction; thus, because the trial court properly had jurisdiction, and defendant failed to raise the argument below, defendant's argument on appeal was barred. Davis v. Commonwealth, No. 0215-15-3, 2016 Va. App. LEXIS 148 (Ct. of Appeals May 3, 2016).

Sixth Amendment fair-cross-section challenge. - Defendant was not entitled to five years of grand jury selection information because (1) there was no supporting constitutional or statutory authority, (2) the request implicated juror privacy concerns, (3) defendant made no attempt to limit the request, and (4) defendant's ultimate conviction made any grand jury error harmless. Brown v. Commonwealth, 68 Va. App. 746, 813 S.E.2d 557, 2018 Va. App. LEXIS 140 (2018).

Options open to Commonwealth. - When the Commonwealth seeks to prosecute an adult for a felony, it has several options how to proceed, including direct indictment, information, presentment, or arrest warrant followed by a preliminary hearing. Burfoot v. Commonwealth, 23 Va. App. 38, 473 S.E.2d 724 (1996).

Indictment for felony not jurisdictional. - This section is a clear expression of the legislative policy that the requirement of an indictment in the prosecution for a felony may be waived, and hence is not jurisdictional. Hanson v. Smyth, 183 Va. 384 , 32 S.E.2d 142 (1944); Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368, cert. denied, 344 U.S. 886, 73 S. Ct. 186, 97 L. Ed. 686 (1952); Council v. Smyth, 201 Va. 135 , 109 S.E.2d 116 (1959).

The requirement for indictment is not jurisdictional and constitutionally imposed but is only statutory and procedural. Triplett v. Commonwealth, 212 Va. 649 , 186 S.E.2d 16 (1972).

Nor is preliminary hearing. - The requirement of a preliminary hearing (assuming no waiver) of one arrested on a charge of a felony is not jurisdictional and its denial does not violate the "due process" and "equal protection" of the laws clause of the Fourteenth Amendment of the Constitution of the United States. Dunnivan v. Peyton, 292 F. Supp. 173 (W.D. Va. 1968).

But denial may be reversible error. - Where the defendant insists upon his statutory rights to a preliminary hearing and indictment, the failure of the trial court to adhere to those procedural requirements is reversible error. Triplett v. Commonwealth, 212 Va. 649 , 186 S.E.2d 16 (1972).

Defects in form. - Failure of the grand jury foreman to sign the indictments was a defect in form only and accordingly, when the indictments were returned by the grand jury in open court, that defect in form was cured and the indictments became valid instruments under which to try defendant. Although the written charges did not contain the signature of the grand jury foreman, they had been "returned in open court" by the grand jury as true bills and, thus, became valid indictments. Reed v. Commonwealth, 281 Va. 471 , 706 S.E.2d 854, 2011 Va. LEXIS 50 (2011).

The term "indictment" in this section means and includes an indictment which has been properly amended by the court. Farewell v. Commonwealth, 167 Va. 475 , 189 S.E. 321 (1937).

Bringing indictment after finding of no probable cause by district court. - Failure of the General Assembly to bar forever the bringing of an indictment after a finding of no probable cause by a district court was intentional. Such a provision would have been totally inconsistent with the provisions of former § 19.1-158 (now § 19.2-203 ). Moore v. Commonwealth, 218 Va. 388 , 237 S.E.2d 187 (1977), decided under former §§ 19.1-162 and 19.1-163.1

Plea cannot be entered at preliminary hearing. - The procedure prescribed for waiving an indictment does not permit a plea to be entered at a preliminary hearing on a felony charge. Timmons v. Peyton, 240 F. Supp. 749 (E.D. Va. 1965), rev'd on other grounds, 360 F.2d 327 (4th Cir.), cert. denied, 385 U.S. 960, 87 S. Ct. 396, 17 L. Ed. 2d 305 (1966).

Virginia does not permit a plea to be entered at a preliminary hearing on a felony charge. Dunnivan v. Peyton, 292 F. Supp. 173 (W.D. Va. 1968).

Delayed entry of presentment order. - Delayed entry of the presentment order was not a substantive violation that invalidated defendant's indictment or deprived the trial court of jurisdiction where defendant did not assert that the indictment's contents were deficient in any manner or that the indictment was not returned in open court. Epps v. Commonwealth, 66 Va. App. 393, 785 S.E.2d 792 (2016), aff'd, 293 Va. 403 , 799 S.E.2d 516, 2017 Va. LEXIS 77 (2017).

Failure of record to show indictment returned will not vitiate conviction. - Where the requirement for an indictment is not jurisdictional, the failure of the record to show affirmatively that the indictment was returned into court by the grand jury is not such a defect as will render null and void the judgment of conviction based thereon. Hanson v. Smyth, 183 Va. 384 , 32 S.E.2d 142 (1944).

Motion to quash information not available when defects not shown on record or by bill of exception. - A motion to quash an information on the ground that it is not founded upon a complaint in writing verified by the oath of a competent witness, as required by this section, is not available where the defect is not apparent upon the face of the information, and not incorporated in the record by proper bill of exceptions. Quillin v. Commonwealth, 105 Va. 874 , 54 S.E. 333 (1906).

The question of the sufficiency of an indictment cannot be raised more than four years after a conviction in a collateral proceeding by habeas corpus. Council v. Smyth, 201 Va. 135 , 109 S.E.2d 116 (1944).

A misdemeanor may be tried on a presentment or information as well as on indictment. Jones v. Commonwealth, 60 Va. (19 Gratt.) 478 (1868).

Conviction of robbery where indictment charged only attempted robbery. - See Henson v. Commonwealth, 208 Va. 120 , 155 S.E.2d 346 (1967).

Inapplicable to juvenile conviction. - Defendant's sentence to a mandatory five-year term under § 18.2-308.2 for possession of a firearm by a convicted felon, was affirmed as he had been convicted of possessing a firearm after conviction of a felony in violation of § 18.2-308.2 when he was 14, which would have been classified as a violent felony under subsections B and C of § 17.1-805 , if he had been tried as an adult; defendant's argument that his juvenile conviction could not serve as the necessary predicate act for § 18.2-308.2 because he was not convicted under an indictment was rejected, and § 19.2-217 , relied upon by defendant, was inapplicable. Parks v. Commonwealth, No. 2780-02-1, 2003 Va. App. LEXIS 385 (Ct. of Appeals July 8, 2003).

Applied in Wilson v. Commonwealth, 31 Va. App. 495, 525 S.E.2d 1 (2000); Grier v. Commonwealth, 35 Va. App. 560, 546 S.E.2d 743, 2001 Va. App. LEXIS 297 (2001); Edwards v. Commonwealth, 41 Va. App. 752, 589 S.E.2d 444, 2003 Va. App. LEXIS 637 (2003); Epps v. Commonwealth, 293 Va. 403 , 799 S.E.2d 516 (2017).

§ 19.2-217.1. Central file of aggravated murder indictments.

Upon the return by a grand jury of an indictment for 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.

(1993, c. 319; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "aggravated murder" for "capital murder" in the first sentence.

§ 19.2-218. Preliminary hearing required for person arrested on charge of felony; waiver.

No person who is arrested on a charge of felony shall be denied a preliminary hearing upon the question of whether there is reasonable ground to believe that he committed the offense and no indictment shall be returned in a court of record against any such person prior to such hearing unless such hearing is waived in writing by the accused.

(Code 1950, § 19.1-163.1; 1960, c. 389; 1975, c. 495.)

Law review. - For survey of Virginia law on criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 17, 21; 9B M.J. Infants, § 13; 12B M.J. Mayhem, § 5.

CASE NOTES

Purpose of section. - It may reasonably be assumed from the language used in this section that it was enacted to change the effect of previous court decisions and to grant an accused the right to a preliminary hearing when he has been arrested on a warrant charging a felony before an indictment has been returned by a grand jury. Webb v. Commonwealth, 204 Va. 24 , 129 S.E.2d 22 (1963).

This section does not require a preliminary hearing after indictment. Braxton v. Peyton, 365 F.2d 563 (4th Cir.), cert. denied, 385 U.S. 939, 87 S. Ct. 306, 17 L. Ed. 2d 218 (1966); May v. Peyton, 268 F. Supp. 928 (W.D. Va. 1967), rev'd on other grounds, 398 F.2d 476 (4th Cir. 1968), cert. denied, 402 U.S. 948, 91 S. Ct. 1602, 29 L. Ed. 2d 117 (1971).

This section does not require a preliminary hearing after indictment. The federal courts have upheld the constitutionality of this interpretation of this section and have not required the state to provide a preliminary hearing when the accused has been previously indicted by a grand jury. Couser v. Cox, 324 F. Supp. 1140 (W.D. Va. 1971).

Requirement not jurisdictional. - The requirement of this section is procedural only, and not jurisdictional, and any defect in connection with the required hearing must be raised before trial, or forever lost as a ground of objection. Snyder v. Commonwealth, 202 Va. 1009 , 121 S.E.2d 452 (1961); Gibson v. Peyton, 262 F. Supp. 574 (W.D. Va. 1966).

The preliminary hearing granted by this section is not jurisdictional. Ashby v. Cox, 344 F. Supp. 759 (W.D. Va. 1972).

In Virginia, a preliminary hearing in an adult criminal case is merely a procedural requirement, not jurisdictionally significant. Nottingham v. Zahradnick, 573 F.2d 193 (4th Cir.), cert. denied, 439 U.S. 970, 99 S. Ct. 464, 58 L. Ed. 2d 430 (1978).

Since a preliminary hearing in an adult case is a procedural and not a jurisdictional requirement, where an adult defendant whose victim was a juvenile was given a preliminary hearing in the criminal division of a general district court the declaration of a mistrial by the circuit court judge on the ground that the defendant had been denied a hearing in the juvenile court under subsection I of § 16.1-241 was not required under the doctrine of "manifest necessity," jeopardy attached, and the defendant could not be retried. Nottingham v. Zahradnick, 573 F.2d 193 (4th Cir.), cert. denied, 439 U.S. 970, 99 S. Ct. 464, 58 L. Ed. 2d 430 (1978).

Nor constitutionally mandated. - An accused has a statutory right in Virginia to a preliminary hearing before his indictment but he still does not have a constitutional right to a preliminary hearing. McCormick v. Peyton, 274 F. Supp. 797 (W.D. Va. 1967).

There is no constitutional right to a preliminary hearing. Ashby v. Cox, 344 F. Supp. 759 (W.D. Va. 1972).

The requirement of a preliminary hearing of one arrested on a charge of a felony is not jurisdictional, and its denial does not violate the "due process" and "equal protection" of the law clauses of § 1 of the Fourteenth Amendment to the Constitution of the United States and Va. Const., Art. I, § 8. Webb v. Commonwealth, 204 Va. 24 , 129 S.E.2d 22 (1963).

The requirement for a preliminary hearing under this section is not jurisdictional and constitutionally imposed but is only statutory and procedural. Triplett v. Commonwealth, 212 Va. 649 , 186 S.E.2d 16 (1972).

Defendant's conviction for assaulting a police officer in violation of subsection C of § 18.2-57 had to stand, as defendant was not denied the right to a preliminary hearing on that charge after the district court terminated the charge by entering a nolle prosequi officer and the Commonwealth then obtained a direct indictment for the same offense and proved its case in the trial court. Since the case had been terminated in the district court once the nolle prosequi order was entered, defendant was not under actual arrest for that charge as required by the preliminary hearing statute, § 19.2-218 , and not holding the preliminary hearing was a statutory, not constitutional, matter, which meant that defendant's due process rights under Va. Const., Art. I, § 11 were not violated because a preliminary hearing was not held. Wright v. Commonwealth, 52 Va. App. 690, 667 S.E.2d 787, 2008 Va. App. LEXIS 509 (2008).

Options open to Commonwealth. - When the Commonwealth seeks to prosecute an adult for a felony, it has several options how to proceed, including direct indictment, information, presentment, or arrest warrant followed by a preliminary hearing. Burfoot v. Commonwealth, 23 Va. App. 38, 473 S.E.2d 724 (1996).

The preliminary hearing and proceedings attendant thereto are of a procedural nature in Virginia. Bird v. Peyton, 287 F. Supp. 860 (W.D. Va. 1968).

There is no guarantee provided for a preliminary hearing in either the Virginia or the United States Constitutions. Bird v. Peyton, 287 F. Supp. 860 (W.D. Va. 1968).

The right to a preliminary hearing is given only by statute. Bird v. Peyton, 287 F. Supp. 860 (W.D. Va. 1968).

In the absence of a statute providing otherwise a preliminary hearing is not a prerequisite or an indispensable step in the prosecution of a person accused of crime. Couser v. Cox, 324 F. Supp. 1140 (W.D. Va. 1971).

Insistence on right to preliminary hearing and indictment. - Where the defendant insists upon his statutory rights to a preliminary hearing and indictment, the failure of the trial court to adhere to those procedural requirements is reversible error. Triplett v. Commonwealth, 212 Va. 649 , 186 S.E.2d 16 (1972).

Waiver valid despite defendant's mistaken belief he would be admitted into drug court program. - Although defendant waived the right to a preliminary hearing based on the expectation that he would be admitted into the drug court program, the later determination that he was not eligible for the program did not render his otherwise voluntary waiver invalid. Angelina v. Commonwealth,, 2005 Va. App. LEXIS 233 (June 14, 2005).

The Virginia preliminary hearing is a "critical stage" of the criminal process. Noe v. Cox, 320 F. Supp. 849 (W.D. Va. 1970).

And an indigent accused is entitled to have counsel appointed. The purpose of this rule is to protect the indigent accused against an erroneous or improper prosecution. This rule should apply only to those preliminary hearings held after June 22, 1970. Noe v. Cox, 320 F. Supp. 849 (W.D. Va. 1970).

The purposes and procedures of the preliminary hearing in Virginia are so similar to those in North Carolina that, in Virginia, as in North Carolina, the safeguards provided by the preliminary hearing may not be fully utilized unless the accused is assisted by counsel. Noe v. Cox, 320 F. Supp. 849 (W.D. Va. 1970).

The procedure in a state court in its preliminary hearing is a matter for state direction so long as the proceedings do not amount to such a gross unfairness as to violate the defendant's right to due process as guaranteed by the Fourteenth Amendment. Bird v. Peyton, 287 F. Supp. 860 (W.D. Va. 1968).

Failure to appoint a reporter for petitioner in the preliminary hearing does not violate any constitutional rights of petitioner. Bird v. Peyton, 287 F. Supp. 860 (W.D. Va. 1968).

Action of grand jury preempting right to preliminary hearing. - Where a grand jury finds that there is reasonable cause to believe that defendant has committed a felony before defendant is arrested, its action preempts defendant's right to a preliminary hearing. Webb v. Commonwealth, 204 Va. 24 , 129 S.E.2d 22 (1963).

A suspect is not entitled to a preliminary hearing if he has not been arrested or charged with any offense prior to indictment by a grand jury. Land v. Commonwealth, 211 Va. 223 , 176 S.E.2d 586 (1970).

Determination by a grand jury of probable cause to indict preempts an adult defendant's right to a preliminary hearing. Nottingham v. Zahradnick, 573 F.2d 193 (4th Cir.), cert. denied, 439 U.S. 970, 99 S. Ct. 464, 58 L. Ed. 2d 430 (1978).

Section deals only with person who is "arrested." - Former § 19.1-163.1 (now this section) dealt by its very language only with a person who was "arrested," meaning, within this context, a person who was detained in custody by authority of law or one who was under a legal restraint. Moore v. Commonwealth, 218 Va. 388 , 237 S.E.2d 187 (1977).

Defendant was properly indicted without a preliminary hearing where the Commonwealth took a nolle prosequi of the offenses charged in the original warrants because the nolle prosequi terminated the charges as if they had never existed and the defendant was not under arrest as required by this statute. Armel v. Commonwealth, 28 Va. App. 407, 505 S.E.2d 378 (1998).

Direct indictment by grand jury following arrest and hearing on different charge. - Where the defendant was originally detained on a noncapital charge of first-degree murder, was granted a preliminary hearing on that charge, and was certified to the grand jury, and where the attorney for the Commonwealth then obtained indictments for both capital murder and first-degree murder and proceeded to trial on the capital but not the noncapital offense, the procedure employed in obtaining the indictment was not manipulative, and it did not work a denial of any statutory right to which the defendant was entitled, since defendant was not arrested on the charge of capital murder, but was indicted on that charge directly by the grand jury. Waye v. Commonwealth, 219 Va. 683 , 251 S.E.2d 202, cert. denied, 442 U.S. 924, 99 S. Ct. 2850, 61 L. Ed. 2d 292 (1979).

Defendant was not denied his right to a preliminary hearing because once the initial arrest warrants were nolle prosequied, those charges ceased to exist, and defendant was eventually tried and convicted on charges brought by direct indictment; no indictment was returned that charged the same crime as was charged in the initial arrest warrants. Bland v. Commonwealth, No. 0937-16-1, 2017 Va. App. LEXIS 284 (Nov. 14, 2017).

A person who had been dismissed after a probable cause hearing, and whose freedom of movement and liberty was not subject to any legal restriction, was not a person who "is arrested on a charge of felony" within the meaning of former § 19.1-163.1 (now this section). Moore v. Commonwealth, 218 Va. 388 , 237 S.E.2d 187 (1977).

Bringing indictment after finding of no probable cause by district court. - Failure of the General Assembly to bar forever the bringing of an indictment after a finding of no probable cause by a district court was intentional. Such a provision would have been totally inconsistent with the provisions of former § 19.1-158 (now § 19.2-203 ). Moore v. Commonwealth, 218 Va. 388 , 237 S.E.2d 187 (1977) (decided under former §§ 19.1-162 and 19.1-163.1)

CIRCUIT COURT OPINIONS

Waiver based on plea agreement. - Because defendant specifically waived the right to a preliminary hearing under § 19.2-218 in reliance on a plea agreement, and because defendant complied with defendant's modified obligation to provide a "very specific" description of the driver of a stolen vehicle, defendant was entitled to have the agreement enforced. Commonwealth v. Brown, 79 Va. Cir. 659, 2007 Va. Cir. LEXIS 334 (Alexandria Nov. 2, 2007).

Commonwealth not required to prove all elements of crime at preliminary hearing. - Assuming that the Commonwealth failed to prove the requisite valuation at the preliminary hearing, that did not constitute a basis to dismiss the larceny with the intent to sell or distribute charge because the Commonwealth was not required to prove all elements of the alleged crime at the preliminary hearing. Commonwealth v. Poe, 90 Va. Cir. 435, 2015 Va. Cir. LEXIS 112 (Norfolk Aug. 17, 2015).

Commonwealth is not required to prove all elements of the alleged crime at the preliminary hearing; the Commonwealth bears the burden of proving all elements of the alleged crime - including valuation - beyond a reasonable doubt at trial Commonwealth v. Poe, 90 Va. Cir. 435, 2015 Va. Cir. LEXIS 112 (Norfolk Aug. 17, 2015).

Defendant's motion to suppress photographs because the Commonwealth was not required to prove all elements of the alleged crime at the preliminary hearing. Commonwealth v. Poe, 90 Va. Cir. 435, 2015 Va. Cir. LEXIS 112 (Norfolk Aug. 17, 2015).

Nolle prossing case and obtaining straight indictment was not prohibited. - Prosecutor's action in nolle prossing a case and then obtaining a straight indictment was not manipulative and did not deprive defendant of his statutory right to have a preliminary hearing under § 19.2-218 ; defendant was not entitled to a dismissal of the case against him. Commonwealth v. Muth, 72 Va. Cir. 261, 2006 Va. Cir. LEXIS 222 (Fairfax County 2006).

Motion to suppress denied. - Defendant's motion to suppress the indictment on the ground that the Commonwealth presented insufficient evidence at the preliminary hearing to support a conviction for statutory burglary was denied because the Commonwealth was not required to prove all elements of the alleged crime at the preliminary hearing. Commonwealth v. Poe, 90 Va. Cir. 435, 2015 Va. Cir. LEXIS 112 (Norfolk Aug. 17, 2015).

§ 19.2-218.1. Preliminary hearings involving certain sexual crimes against spouses.

  1. In any preliminary hearing of a charge for a violation under § 18.2-61 , 18.2-67.1 , or 18.2-67.2 where the complaining witness is the spouse of the accused, upon a finding of probable cause the court may request that its court services unit, in consultation with any appropriate social services organization, local community services board, or other community mental health services organization, prepare a report analyzing the feasibility of providing counseling or other forms of therapy for the accused and the probability such treatment will be successful. Based upon this report and any other relevant evidence, the court may, with the consent of the accused, the complaining witness and the attorney for the Commonwealth in any case involving a violation of § 18.2-61 , 18.2-67.1 , or 18.2-67.2 , authorize the accused to submit to and complete a designated course of counseling or therapy. In such case, the hearing shall be adjourned until such time as counseling or therapy is completed or terminated. Upon the completion of counseling or therapy by the accused and after consideration of a final evaluation to be furnished to the court by the person responsible for conducting such counseling or therapy and such further report of the court services unit as the court may require, and after consideration of the views of the complaining witness, the court, in its discretion, may discharge the accused if the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
  2. No statement or disclosure by the accused concerning the alleged offense made during counseling or any other form of therapy ordered pursuant to this section or § 18.2-61 , 18.2-67.1 , 18.2-67.2 , or 19.2-218.2 may be used against the accused in any trial as evidence, nor shall any evidence against the accused be admitted which was discovered through such statement or disclosure. (1986, c. 516; 2005, c. 631; 2012, cc. 476, 507.)

Editor's note. - Acts 2005, c. 631, cl. 3, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $43,177 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2005 amendments. - The 2005 amendment by c. 631, in subsection A, deleted "against a person" preceding "for a violation," "subsection B of" preceding "18.2-61" two times, "18.2-67.1" two times, "18.2-67.2" two times, "or § 18.2-67.2 :1" following "18.2-67.2," "(i)" preceding "with the consent," "or (ii) with the consent of the accused and after consideration of the views of the complaining witness in any case involving a violation of § 18.2-67.2 :1" preceding "authorize the accused," and inserted "where the complaining witness is the spouse of the accused" preceding "upon a finding of probable cause"; deleted "18.2-67.2:1" preceding "or 19.2-218.2 " in subsection B; and made minor stylistic changes.

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and substituted "local community services board" for "local board of mental health and mental retardation" in the first sentence of subsection A.

Michie's Jurisprudence. - For related discussion, see 15 M.J. Rape, § 3.

CASE NOTES

Not applicable where defendant fails to request report at preliminary hearing. - After defendant had a preliminary hearing in juvenile and domestic relations court, and a grand jury indicted defendant on charges of forcible sodomy and animate object sexual penetration against his wife, violations of §§ 18.2-67.1 and 18.2-67.2 , defendant was not entitled under § 19.2-218.2 to return the case to the juvenile and domestic relations court for a hearing to authorize the preparation of a report to address the feasibility of counseling or therapy pursuant to § 19.2-218.1 where defendant failed to make the request for such a report at the preliminary hearing. Wilson v. Commonwealth, 58 Va. App. 513, 711 S.E.2d 251, 2011 Va. App. LEXIS 230 (2011).

§ 19.2-218.2. Hearing before juvenile and domestic relations district court required for persons accused of certain violations against their spouses.

  1. In any case involving a violation of § 18.2-61 , 18.2-67.1 , or 18.2-67.2 where the complaining witness is the spouse of the accused, where a preliminary hearing pursuant to § 19.2-218.1 has not been held prior to indictment or trial, the court shall refer the case to the appropriate juvenile and domestic relations district court for a hearing to determine whether counseling or therapy is appropriate prior to further disposition unless the hearing is waived in writing by the accused. The court conducting this hearing may order counseling or therapy for the accused in compliance with the guidelines set forth in § 19.2-218.1 .
  2. After such hearing pursuant to which the accused has completed counseling or therapy and upon the recommendation of the juvenile and domestic relations district court judge conducting the hearing, the judge of the circuit court may dismiss the charge with the consent of the attorney for the Commonwealth and if the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.

    (1986, c. 516; 2005, c. 631.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 2005, c. 631, cl. 3, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $43,177 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2005 amendments. - The 2005 amendment by c. 631, in subsection A, deleted "subsection B of" preceding "18.2-61," "18.2-67.1," and "18.2-67.2," "or § 18.2-67.2 :1" following "18.2-67.2," inserted "where the complaining witness is the spouse of the accused" preceding "where a preliminary hearing"; made minor stylistic changes.

Michie's Jurisprudence. - For related discussion, see 15 M.J. Rape, § 3.

CASE NOTES

Not applicable where defendant fails to request report at preliminary hearing. - After defendant had a preliminary hearing in juvenile and domestic relations court, and a grand jury indicted defendant on charges of forcible sodomy and animate object sexual penetration against his wife, violations of §§ 18.2-67.1 and 18.2-67.2 , defendant was not entitled under § 19.2-218.2 to return the case to the juvenile and domestic relations court for a hearing to authorize the preparation of a report to address the feasibility of counseling or therapy pursuant to § 19.2-218.1 where defendant failed to make the request for such a report at the preliminary hearing. Wilson v. Commonwealth, 58 Va. App. 513, 711 S.E.2d 251, 2011 Va. App. LEXIS 230 (2011).

§ 19.2-219. When capias need not be issued; summons; judgment.

No capias need be issued on a presentment or indictment of an offense for which there is no punishment but a fine or forfeiture, limited to an amount not exceeding twenty dollars; but a summons to answer such presentment or indictment may be issued against the accused; and if it be served ten days before the return day thereof, and he does not appear, judgment may be rendered against him for the penalty. If he appear, the court may, unless he demand a jury, hear and determine the matter and give judgment thereon.

(Code 1950, § 19.1-164; 1960, c. 366; 1975, c. 495.)

Article 2. Form and Requisites.

§ 19.2-220. Contents of indictment in general.

The indictment or information shall be a plain, concise and definite written statement, (1) naming the accused, (2) describing the offense charged, (3) identifying the county, city or town in which the accused committed the offense, and (4) reciting that the accused committed the offense on or about a certain date. In describing the offense, the indictment or information may use the name given to the offense by the common law, or the indictment or information may state so much of the common law or statutory definition of the offense as is sufficient to advise what offense is charged.

(1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 78; 9B M.J. Indictments, Informations and Presentments, § 19; 12A M.J. Larceny, §§ 12, 19; 19 M.J. Venue, § 15.

CASE NOTES

I. IN GENERAL.

Purpose of an indictment is to give the accused notice of the nature and character of the offense charged. The requirements of an indictment are prescribed by this section, which provides that an indictment shall be a "plain, concise, and definite written statement . . . describing the offense charged." Cantwell v. Commonwealth, 2 Va. App. 606, 347 S.E.2d 523 (1986).

The function of an indictment is to give an accused notice of the nature and character of the accusations against him or her in order that the accused can adequately prepare to defend against his or her accuser. Sims v. Commonwealth, 28 Va. App. 611, 507 S.E.2d 648 (1998).

The indictment fulfilled the purpose of informing defendant of the charge against him and was not deficient for failing to state that defendant had a prior conviction on a violent felony that could net defendant a five-year mandatory minimum sentence as the indictment sufficiently alleged the underlying offense and its elements, and the statute the Commonwealth incorporated by reference sufficiently informed defendant that he could receive a mandatory minimum sentence if the Commonwealth showed a prior conviction for a "violent felony." Thomas v. Commonwealth, 37 Va. App. 748, 561 S.E.2d 56, 2002 Va. App. LEXIS 176 (2002).

An indictment must give the accused notice of the nature and character of the offense charged so he can make his defense, although in charging a statutory offense it is not necessary to follow the identical words of the statute. Wilder v. Commonwealth, 217 Va. 145 , 225 S.E.2d 411 (1976).

A criminal defendant enjoys the right to be advised of the cause and nature of the accusation lodged against him and this right is fully honored by this section and § 19.2-221 . Simpson v. Commonwealth, 221 Va. 109 , 267 S.E.2d 134 (1980).

The indictment should "cite the statute or ordinance that defines the offense or, if there is no defining statute or ordinance, prescribes the punishment for the offense." "Both the United States and Virginia Constitutions recognize that a criminal defendant enjoys the right to be advised of the cause and nature of the accusation lodged against him. The important concerns evident in these provisions are fully honored by this section and § 19.2-221 ." Rush v. Commonwealth, No. 2058-94-2 (Ct. of Appeals Mar. 26, 1996).

An indictment, in order to be sufficient, must give an accused notice of the nature and character of the offense charged so he can make his defense. Commonwealth v. Dalton, 259 Va. 249 , 524 S.E.2d 860 (2000).

It is not necessary to include in the indictment an allegation of every fact in the chain of circumstances comprising the offense charged. Howard v. Commonwealth, 221 Va. 904 , 275 S.E.2d 602 (1981).

Ordinarily, an indictment sufficiently charges a statutory offense if it follows the language of the statute but this rule does not apply when the statutory language does not in itself fully and clearly set forth all the material elements of the offense. Sims v. Commonwealth, 28 Va. App. 611, 507 S.E.2d 648 (1998).

References at the foot of the charge to particular criminal statutes fail to save an indictment otherwise defective. Such references support, but do not replace, the "definite written statement," required in the body of an indictment. Wilder v. Commonwealth, 217 Va. 145 , 225 S.E.2d 411 (1976).

A defendant cannot be charged in one count with two or more independent offenses. The reason for the rule is to prevent confusion, multiplication of issues, and prejudice to the defendant. Walker v. Commonwealth, 12 Va. App. 438, 404 S.E.2d 394 (1991).

The indorsement is not a substantive part of an indictment and is not determinative of the legal sufficiency of the accusation to charge the crime for which it is sought to hold the accused to answer; it neither strengthens nor weakens the legal force of the averments in the charging portion of the indictment. Wilder v. Commonwealth, 217 Va. 145 , 225 S.E.2d 411 (1976).

Indictment must contain an averment of facts essential to the punishment to be inflicted. McKinley v. Commonwealth, 217 Va. 1 , 225 S.E.2d 352 (1976).

But punishment need not be affirmatively set forth. - Although it is fundamental that when a statute contains more than one grade of offense carrying different punishments, the indictment must contain an assertion of the facts essential to the punishment sought to be imposed, this section does not require an indictment to affirmatively set forth the punishment for the offense. Sloan v. Commonwealth, 35 Va. App. 240, 544 S.E.2d 375, 2001 Va. App. LEXIS 180 (2001).

Where an offense is punishable with a higher penalty because it is a second or subsequent offense of the same kind, the more severe punishment cannot be inflicted unless the indictment charges that it is a second or subsequent offense. McKinley v. Commonwealth, 217 Va. 1 , 225 S.E.2d 352 (1976).

An indictment need not be drafted in the exact words of the applicable statute so long as the accused is given notice of the nature and character of the offense charged. Black v. Commonwealth, 223 Va. 277 , 288 S.E.2d 449 (1982).

Indictment cannot be collaterally attacked unless defect jurisdictional. - As long as the indictment is not so defective as to deprive the court of jurisdiction to render the judgment of conviction, a petitioner may not collaterally attack the sufficiency of the indictment by a petition for a writ of habeas corpus. Abney v. Warden, Mecklenburg Correctional Center, 1 Va. App. 26, 332 S.E.2d 802 (1985).

Indictment not invalidated by surplusage. - Additional unnecessary language included in indictment which is surplusage does not invalidate the indictment. Black v. Commonwealth, 223 Va. 277 , 288 S.E.2d 449 (1982).

When an allegation of variance is based on unnecessary words in an indictment, the unnecessary word or words in the indictment must be descriptive of that which is "legally essential" to the charge. Stated another way, the unnecessary language must have a material effect on the offense charged and on the proof required to convict under that charge. Hairston v. Commonwealth, 2 Va. App. 211, 343 S.E.2d 355 (1986).

If the unnecessary word or words inserted in the indictment describe, limit or qualify the words which it was necessary to insert therein, then they are descriptive of the offense charged in the indictment and cannot be rejected as surplusage. The offense as charged must be proved. Hairston v. Commonwealth, 2 Va. App. 211, 343 S.E.2d 355 (1986).

Signature of grand jury foreman on indictments. - Failure of the grand jury foreman to sign the indictments was a defect in form only and accordingly, when the indictments were returned by the grand jury in open court, that defect in form was cured and the indictments became valid instruments under which to try defendant. Although the written charges did not contain the signature of the grand jury foreman, they had been "returned in open court" by the grand jury as true bills and, thus, became valid indictments. Reed v. Commonwealth, 281 Va. 471 , 706 S.E.2d 854, 2011 Va. LEXIS 50 (2011).

Applied in Dowdy v. Commonwealth, 220 Va. 114 , 255 S.E.2d 506 (1979); Wall Distribs., Inc. v. City of Newport News, 228 Va. 358 , 323 S.E.2d 75 (1984); KMA, Inc. v. City of Newport News, 228 Va. 365 , 323 S.E.2d 78 (1984); Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990); Terry v. Cross, 112 F. Supp. 2d 543, 2000 U.S. Dist. LEXIS 13315 (E.D. Va. 2000); Powell v. Commonwealth, 261 Va. 512 , 552 S.E.2d 344, 2001 Va. LEXIS 86 (2001); Herrington v. Commonwealth, 291 Va. 181 , 781 S.E.2d 561, 2016 Va. LEXIS 10 (2016).

II. ILLUSTRATIVE CASES.

Use of term "on or about" in the indictment was consistent with the provisions of this section, where defendant requested no bill of particulars regarding the date or time of the crime charged, counsel for the accused during cross examination made a concerted effort to fix the date of February 17 with certainty before presenting an alibi defense, and the complaining witnesses were two young children, ages 9 and 10. Marlowe v. Commonwealth, 2 Va. App. 619, 347 S.E.2d 167 (1986).

Time was not an element of sexual offenses alleged, and both indictments and Commonwealth's response to bill of particulars sufficiently informed defendant of relevant offense dates. Booker v. Commonwealth, No. 1603-98-1 (Ct. of Appeals Aug. 3, 1999).

Evidence was not deficient in defendant's case where he was charged with and convicted of aggravated sexual battery; where the indictment stated that the charged events occurred "on or about" a certain date through a certain other date, the trial court had a basis for ruling that the dates contained in the indictment were sufficiently narrow to apprise defendant of the charges against him and allow him to prepare a defense. Clifford v. Commonwealth, 48 Va. App. 499, 633 S.E.2d 178, 2006 Va. App. LEXIS 364 (2006), rev'd, on other grounds, 274 Va. 23 , 645 S.E.2d 295 (2007).

Time frames supplied by victim were sufficient to identify a particular event. - Defendant's double jeopardy rights were not violated by being punished multiple times for what might have been the same offense since: (1) despite the overlap of some of the evidence, each indictment alleged an indecent liberties crime had occurred within a specific, different time period; (2) the victim described distinct acts that occurred during the specific periods of time alleged in each indictment; (3) although the victim was unable to recall specific dates of each offense, the time frames supplied by the victim were sufficient to identify a particular event with each indictment; and (4) specific dates were not required. Farhoumand v. Commonwealth, No. 2087-12-4, 2013 Va. App. LEXIS 353 (Dec. 3, 2013).

By citation of subdivision 2 of § 53.1-203 in the indictment, defendant was informed of essential elements of the case against him. He suffered no prejudice by the omission in the body of the indictment of the words "for the purpose of," and failure to use that phrase did not invalidate the indictment. Reed v. Commonwealth, 3 Va. App. 665, 353 S.E.2d 166 (1987).

Incorporation by reference to section under which defendant charged. - The inference to be drawn from the provisions of this section and Rule 3A:6 (a) is clearly that incorporation by reference to the section under which defendant is charged is contemplated by the rule. Reed v. Commonwealth, 3 Va. App. 665, 353 S.E.2d 166 (1987).

Incorporation by reference. - Pursuant to § 19.2-220 and Va. Sup. Ct. R. 3A:6(a), the citation to § 18.2-51.2 in the indictment incorporated by reference the complete definition of aggravated malicious wounding and supplemented the charging language of the indictment; therefore, the statutory citation, coupled with the facts alleged, was sufficient to set forth all relevant elements of the aggravated malicious wounding offense. Robinson v. Commonwealth, No. 1623-02-2, 2003 Va. App. LEXIS 327 (Ct. of Appeals June 3, 2003).

Indictment which cited the statute under which defendant was charged provided adequate notice to defendant of the charges against him. Walshaw v. Commonwealth, 44 Va. App. 103, 603 S.E.2d 633, 2004 Va. App. LEXIS 483 (2004).

Evidence was sufficient to convict defendant of breaking and entering under § 18.2-91 and there was not a fatal variance between the evidence offered at trial and the indictment, which charged defendant with breaking and entering with the intent to commit larceny, as: (1) § 18.2-91 was cited in the indictment in accordance with § 19.2-220 and Va. Sup. Ct. R. 3A:6(a); (2) the citation in the indictment to § 18.2-91 incorporated by reference the complete definition of the offense set forth in the statute and supplemented the charging language of the indictment; (3) as the statute's title reflected, the offense could be committed with the "intent to commit larceny, assault and battery or other felony"; (4) although the body of the charge omitted reference to the intent to commit assault and battery, that specific intent was alleged in the indictment; (5) in reciting an abbreviated title of the charged offense, the indictment specifically referenced the "intent to commit A and B," or assault and battery; and (6) the arrest warrant underlying the felony charge specifically accused defendant of breaking and entering in the nighttime the dwelling house of the victim with the intent to commit assault and battery. Barth v. Commonwealth,, 2007 Va. App. LEXIS 56 (Feb. 20, 2007).

Proof of commission of crime on date other than that alleged. - To require that a child or any witness be able to recall the exact date an event occurred in his or her life in order to obtain a conviction would too often preclude prosecutions in this type of case where the victims are children and the crimes are not discovered until some time after their commission. The Commonwealth's case would too often fail because it could not specify the exact date of the offense against the child. It is this same reasoning which permits the Commonwealth to prove the commission of the crime charged on a date different than that alleged in the indictment. Marlowe v. Commonwealth, 2 Va. App. 619, 347 S.E.2d 167 (1986).

Need not prove ultimate ownership of property taken in robbery prosecution. - Because robbery is a crime against the person, the prosecution need not prove the ultimate ownership of the property taken but need only prove that the possessory rights of the victim were superior to those of the thief. As such, it is not "legally essential" to allege or identify the ultimate owner of the property taken. Hairston v. Commonwealth, 2 Va. App. 211, 343 S.E.2d 355 (1986).

Although the woman named in the indictment as the owner of the automobile did not have legal title to the property, conviction for destruction of property was sufficiently supported by the evidence. The evidence proved that the woman had possession of the automobile and that she was to receive title to it under an agreement with her former husband, who did have legal title to the property. Proof that the person alleged in the indictment to be the owner of such property has actual or constructive possession of the property is sufficient in a prosecution for this offense. Tammaro v. Commonwealth, No. 0504-94-1 (Ct. of Appeals March 21, 1995).

No requirement of prior notice to defendant. - Even though the Commonwealth failed to inform defendant that he was being charged as a second offender, defendant was validly convicted of use of firearm as a second offense; Ansell v. Commonwealth, 219 Va. 759 , 250 S.E.2d 760 (1979), makes clear that § 18.2-53.1 has no requirement of prior notice to the defendant. Stubblefield v. Commonwealth, 10 Va. App. 343, 392 S.E.2d 197 (1990).

Defendant implicitly acknowledged fair notice that indictment charged him with capital murder at the pre-trial hearings when he moved to quash the indictment, assigning only challenges to the facial constitutionality of the capital statutes. Boggs v. Commonwealth, 229 Va. 501 , 331 S.E.2d 407 (1985), cert. denied, 475 U.S. 1031, 106 S. Ct. 1240, 89 L. Ed. 2d 347 (1986).

Indictment described the crime with sufficient specificity to provide notice. - Where a defendant fired a weapon from inside a building at a fleeing victim, the indictment charging him with shooting at or against an occupied building or dwelling house, putting the lives of the occupants in peril, in violation of § 18.2-279 , sufficiently placed him on notice of the nature and character of the offense charged, and the proof at trial did not fatally vary from the allegations of the indictment, as defendant fired "at" a portion of the building, and the portion of the statute referenced in the indictment did not specify where the shooter had to be located in reference to the building. King v. Commonwealth, 40 Va. App. 193, 578 S.E.2d 803, 2003 Va. App. LEXIS 61 (2003).

Indictment was not void when it was amended because the original indictment did describe a crime under subsection A of § 18.2-67.1 with sufficient specificity to provide notice to defendant as it alleged that defendant "caused" the victim to commit sodomy in violation of § 18.2-67.1 and the indictment mentioned only two people, defendant and the victim; as the language of the indictment did not exclude the possibility that defendant was the person with whom the victim was "caused" to commit sodomy, the use of "caused," as opposed to "engaged in," in that context was not a fatal variance. Nelson v. Commonwealth, 41 Va. App. 716, 589 S.E.2d 23, 2003 Va. App. LEXIS 615 (2003), aff'd, 268 Va. 665 , 604 S.E.2d 76 (2004).

Trial court did not err in ruling that there was no fatal variance between the indictment and the proof at trial because defendant was informed of the nature and cause of accusation brought against her, obtaining property by false pretenses; the indictment did not describe, limit, or qualify the factual allegation to the exclusion of "money" from its scope because it utilized the word "property" in setting forth the nature and character of the offense charged. Polk v. Commonwealth, No. 1091-12-1, 2013 Va. App. LEXIS 200 (Ct. of Appeals July 16, 2013).

In a false pretenses and embezzlement case, a trial court did not err by failing to grant defendant's motion for a bill of particulars because the allegations in the indictment were sufficient to give notice of the nature and character of the charges. Tomlin v. Commonwealth, No. 1946-15-2, 2017 Va. App. LEXIS 79 (Mar. 14, 2017).

Time as an element of the offense of credit card theft. - Defendant's convictions for credit card theft were proper because she provided no case law or authority to support her contention that time was an element of the offense of credit card theft. As time was not an element of the offense, the Commonwealth was not required to prove the exact date of the offenses, as long as the evidence established beyond a reasonable doubt that the crimes occurred and that defendant committed the crimes; there was sufficient evidence to show that defendant obtained the credit cards and received the credit cards and, therefore, the trial court did not err in finding the evidence sufficient to prove the offenses. Trang Chau v. Commonwealth,, 2011 Va. App. LEXIS 30 (Feb. 1, 2011).

Necessity for bill of particulars at discretion of court. - Whether the Commonwealth is required to file a bill of particulars rests with the discretion of the trial court. A bill of particulars is not required where the indictments provide the defendant adequate notice of the nature and the character of the offense charged so he can make his defense. Curmak v. Commonwealth, No. 0037-94-2 (Ct. of Appeals March 14, 1995).

Defendant's argument that the Commonwealth was required to allege every fact that supported the charge against him was without merit. If appellant desired more information about which facts the Commonwealth intended to rely on, he had the right to ask for a bill of particulars, and the trial court did not err in failing to order a bill of particulars. Rush v. Commonwealth, No. 2060-94-2 (Ct. of Appeals April 2, 1996).

Although the child sexual assault victim could not recall the specific dates of the incidents, the trial court did not err when it denied defendant's motion for a bill of particulars as to the precise day, date, and time of each alleged offense; the indictments were sufficient to apprise defendant of the nature of the crimes with which he was charged. Christopher v. Commonwealth,, 2006 Va. App. LEXIS 590 (Dec. 28, 2006).

Fatal variance. - Trial court erred in convicting defendant on a charge of attempted breaking and entering, as the variance between the shop or business identified as the place that defendant attempted to break into and the evidence at trial which showed that he tried to break into a shop by another name was a fatal variance between the charge and the proof; the evidence did not prove the crime charged, and, thus, the judgment of conviction had to be reversed and the indictment had to be dismissed. Dotson v. Commonwealth, No. 1410-02-2, 2003 Va. App. LEXIS 531 (Ct. of Appeals Oct. 21, 2003).

Character of offense not changed by an amendment. - Trial court did not err in allowing an amendment to a statutory burglary indictment, as the addition of an assault and battery mens rea to the original indictment changed one of its specific elements, but not its general nature or character. Hicks v. Commonwealth, No. 1421-03-3, 2004 Va. App. LEXIS 172 (Ct. of Appeals Apr. 13, 2004).

Lesser included offenses. - Trial court erred in reducing the robbery charge in the indictment against defendant to grand larceny because grand larceny was not a lesser included offense of robbery, as all the elements of grand larceny were not included in robbery. However, petit larceny was a lesser-included offense of robbery because all of the elements of petit larceny were contained in robbery. Dufresne v. Commonwealth, No. 0281-15-2, 2016 Va. App. LEXIS 38 (Feb. 9, 2016).

CIRCUIT COURT OPINIONS

Indictment found to be sufficient. - In a case in which defendant was convicted of violating former § 3.1-796.124 [now § 3.2-6571] and he filed a motion to set aside based on alleged deficiencies in the indictment, since he did not raise the issue of the validity of the indictment until 16 months after trial, defendant had waived his right to be more fully advised of the cause and nature of his accusation. Additionally, it was obvious that defendant, the Commonwealth, and the court all were fully aware of the cause and nature of the offense for which he was being tried and of which he was convicted. Commonwealth v. Taylor, 77 Va. Cir. 102, 2008 Va. Cir. LEXIS 228 (Chesapeake 2008).

Request for a bill of particulars was denied; each of the indictments against both defendants cited the statute, offense date and venue allegations consistent with the requirements of § 19.2-220 , plus the motion for a bill of particulars also asked for specific evidence the Commonwealth planned to introduce in the case, which was inconsistent with the purpose of a bill of particulars. In re Snow, 99 Va. Cir. 484, 2018 Va. Cir. LEXIS 142 (Orange County Aug. 28, 2018).

Motion to dismiss on the ground that dollar value was not met was denied where the Commonwealth introduced evidence of the cost of repairing, which was more than $1,000. Commonwealth v. Foreman,, 2020 Va. Cir. LEXIS 510 (Roanoke Jan. 13, 2020).

Motion to dismiss was denied as the indictment stated that defendant had unlawfully and feloniously destroyed, defaced, damaged or removed a city monument, and although that language was different than subsection B of § 18.2-137 , the indictment clearly included the pertinent statute, language related to the monument, and the cost threshold required for a felony charge. Thus, defendant was on notice of the charges. Commonwealth v. Foreman,, 2020 Va. Cir. LEXIS 510 (Roanoke Jan. 13, 2020).

Indictment found to be insufficient. - As the indictment alleged obstruction of witnesses related to charges under § 18.2-248 , but did not allege that the obstruction was done by threat of bodily harm or force, but was instead allegedly done by improper access to a Division of Motor Vehicles computer system, the indictment did not allege a violation of subsection C of § 18.2-460 and the court quashed the indictments in those cases, subject to amendment first if the Commonwealth so chose. In re Snow, 99 Va. Cir. 484, 2018 Va. Cir. LEXIS 142 (Orange County Aug. 28, 2018).

§ 19.2-221. Form of prosecutions generally; murder and manslaughter.

The prosecutions for offenses against the Commonwealth, unless otherwise provided, shall be by presentment, indictment or information. While any form of presentment, indictment or information which informs the accused of the nature and cause of the accusation against him shall be good the following shall be deemed sufficient for murder and manslaughter: Commonwealth of Virginia .................... county (or city) to-wit: The grand jurors of the Commonwealth of Virginia, in and for the body of the county (or city) of .........., upon their oaths present that A .......... B .........., on the .......... day of .........., 20 .........., in the county (or city) of .................... feloniously did kill and murder one C .......... D .......... against the peace and dignity of the Commonwealth.

A grand jury may, in case of homicide, which in their opinion amounts to manslaughter only, and not to murder, find an indictment against the accused for manslaughter and in such case the indictment shall be sufficient if it be in form or effect as follows:

Commonwealth of Virginia .................... county (or city) to-wit: The grand jurors of the Commonwealth of Virginia, in and for the body of the county (or city) of .........., upon their oaths present that A .......... B .........., on the .......... day of .........., 20 .........., in the county (or city) of .................... feloniously and unlawfully did kill and slay one C .......... D .........., against the peace and dignity of the Commonwealth.

(Code 1950, § 19.1-166; 1960, c. 366; 1975, c. 495.)

Law review. - For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Homicide, §§ 51, 54; 9B M.J. Indictments, Informations and Presentments, § 23; 12A M.J. Larceny, § 12; 19 M.J. Venue, § 15.

CASE NOTES

A criminal defendant enjoys the right to be advised of the cause and nature of the accusation lodged against him and this right is fully honored by § 19.2-220 and this section. Simpson v. Commonwealth, 221 Va. 109 , 267 S.E.2d 134 (1980).

The indictment should also "cite the statute or ordinance that defines the offense or, if there is no defining statute or ordinance, prescribes the punishment for the offense." "Both the United States and Virginia Constitutions recognize that a criminal defendant enjoys the right to be advised of the cause and nature of the accusation lodged against him. The important concerns evident in these provisions are fully honored by § 19.2-220 and this section." Rush v. Commonwealth, No. 2058-94-2 (Ct. of Appeals Mar. 26, 1996).

This section merely prescribes short form indictments for murder and manslaughter. Warlitner v. Commonwealth, 217 Va. 348 , 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957, 97 S. Ct. 1604, 51 L. Ed. 2d 807 (1977).

It does not mention, much less establish, any presumptions or burdens. Warlitner v. Commonwealth, 217 Va. 348 , 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957, 97 S. Ct. 1604, 51 L. Ed. 2d 807 (1977).

And nothing in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) casts any shadow upon the constitutionality of this section. Warlitner v. Commonwealth, 217 Va. 348 , 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957, 97 S. Ct. 1604, 51 L. Ed. 2d 807 (1977).

The statutory short form of indictment for murder includes the charge of murder of the first degree. Kibert v. Commonwealth, 216 Va. 660 , 222 S.E.2d 790 (1976).

When the accused pleads guilty to an indictment for murder, he confesses "to the highest degree of the offense which the indictment charges and of which he can be convicted under its averments." Kibert v. Commonwealth, 216 Va. 660 , 222 S.E.2d 790 (1976).

The object of the forms of indictment for murder and manslaughter set out in this section was to eliminate the excessive verbiage used in the old common-law forms and to substitute therefor a short, simple statement of the offense charged. Hurd v. Commonwealth, 159 Va. 880 , 165 S.E. 536 (1932).

Short form approved by state and federal courts. - The short form allowed by this section as a form for indictment has been approved by both the federal and the State courts. Davis v. Slayton, 353 F. Supp. 571 (W.D. Va. 1973).

Sufficiency of indictment challenged in federal habeas corpus proceedings. - If an accused is aware of the actual charge against him, and the indictment provides sufficient information upon which to prepare a defense, there has been no violation of any constitutional right cognizable in a federal habeas corpus proceeding. Claytor v. Slayton, 342 F. Supp. 767 (W.D. Va. 1972).

Inmate was denied habeas corpus relief on his claim that his counsel was ineffective for failing to object to the amendment of the murder indictment on the day of trial to add the words "willfully, deliberately, and with premeditation," because Virginia law permitted the use of short-form indictments in charging defendants with murder, and therefore the original indictment would have been sufficient to charge the inmate with first-degree murder; this charge implicitly included the "willful, deliberate, and premeditated" language of the amended indictment. Coleman v. Johnson,, 2005 U.S. Dist. LEXIS 33709 (E.D. Va. Sept. 6, 2005).

The omission of the words "unlawful act" and "with malice aforethought" in an indictment for murder does not constitute a fatal defect. Coleman v. Smyth, 166 F. Supp. 934 (E.D. Va.), appeal dismissed, 260 F.2d 518 (4th Cir. 1958), cert. denied, 359 U.S. 946, 79 S. Ct. 726, 3 L. Ed. 2d 679 (1959).

Indictment for murder in first degree need not charge specially facts showing the offense. - Even before this section was enacted it had been held in Commonwealth v. Miller, 3 Va. (1 Va. Cas.) 310 (1812), that it was unnecessary for an indictment for murder in the first degree to charge specially facts that would show the offense to have been murder in the first degree, and there have been a number of subsequent cases to the same effect. McGrady v. Cunningham, 296 F.2d 600 (4th Cir. 1961), cert. denied, 369 U.S. 855, 82 S. Ct. 944, 8 L. Ed. 2d 14 (1962).

An indictment for murder in the first degree under this section need not charge specifically the facts showing the offense. Ward v. Commonwealth, 205 Va. 564 , 138 S.E.2d 293 (1964); Simpson v. Commonwealth, 221 Va. 109 , 267 S.E.2d 134 (1980).

An indictment need not designate the degree of the offense charged nor allege facts which would describe that degree. This "short form" indictment, therefore, is sufficient to charge murder either in the first or second degree. Hale v. Cox, 336 F. Supp. 1364 (W.D. Va. 1972).

It is not necessary that the indictment should charge murder in the first degree or use that description which, according to the statute, constitutes that degree of offense. Ward v. Commonwealth, 205 Va. 564 , 138 S.E.2d 293 (1964); Simpson v. Commonwealth, 221 Va. 109 , 267 S.E.2d 134 (1980).

An indictment which charged that the defendant "feloniously and unlawfully did kill and murder" one named person did not void a conviction of second-degree murder. Claytor v. Slayton, 342 F. Supp. 767 (W.D. Va. 1972).

Manner of killing. - Under an indictment for murder in the form prescribed either by this section or Rule 3A:7, Form 5 of the Supreme Court, the Commonwealth may prove a killing in any manner or in different manners. Thus, the Commonwealth was not required to elect whether it was proceeding against the defendant on the theory that the killing was willful, deliberate and premeditated or under the felony-murder doctrine that the killing occurred in the commission of abduction. Akers v. Commonwealth, 216 Va. 40 , 216 S.E.2d 28 (1975).

Forms held sufficient. - In a prosecution for homicide, it was contended that the short form of indictment, drawn according to this section, did not give sufficient notice of the cause and nature of the accusation. It was held that there was no merit in this contention. Hurd v. Commonwealth, 159 Va. 880 , 165 S.E. 536 (1932); Bausell v. Commonwealth, 165 Va. 669 , 181 S.E. 453 (1935); Maxwell v. Commonwealth, 167 Va. 490 , 187 S.E. 506 (1936).

The short form of indictment prescribed by this section is sufficient to support a conviction of murder in the first degree. Hobson v. Youell, 177 Va. 906 , 15 S.E.2d 76 (1941).

An indictment which substantially follows the statutory short form as prescribed for homicide is sufficient. Coleman v. Smyth, 166 F. Supp. 934 (E.D. Va.), appeal dismissed, 260 F.2d 518 (4th Cir. 1958), cert. denied, 359 U.S. 946, 79 S. Ct. 726, 3 L. Ed. 2d 679 (1959).

Accused contended that a demurrer to the indictment should have been sustained because it was not alleged that he did some act towards the commission of the offense charged. It was held that under this section, the indictment was sufficient and the demurrer was properly overruled. Pamplin v. Commonwealth, 167 Va. 470 , 188 S.E. 147 (1936).

The proposition that the short statutory form of indictment for murder includes the charge of murder in the first degree is now the established law in this Commonwealth. Barber v. Commonwealth, 206 Va. 241 , 142 S.E.2d 484 (1965).

Under a short form murder indictment, defendant could be convicted of first or second-degree murder. Burton v. Cox, 312 F. Supp. 264 (W.D. Va. 1970).

The short form of indictment is by this section sufficient to convict on first as well as second-degree murder. Davis v. Slayton, 353 F. Supp. 571 (W.D. Va. 1973).

Defendant's first-degree murder conviction was affirmed, despite his allegation that the short-form indictment that was filed against him did not specifically state all the elements of first-degree murder and that the trial court erred in refusing to amend the charge, as Virginia law required proof of both malice or premeditation as elements of the offense for conviction, and such did not have to be stated in the indictment. Scott v. Commonwealth, No. 0831-04-1, 2005 Va. App. LEXIS 131 (Ct. of Appeals Mar. 29, 2005).

There is no requirement in Virginia that a warrant have the same particularity of an indictment. Ward v. Peyton, 349 F.2d 359 (4th Cir. 1965), cert. denied, 382 U.S. 995, 86 S. Ct. 578, 15 L. Ed. 2d 481 (1966).

Hence, no constitutional right of petitioner was denied by the difference between the language of the warrant upon which the preliminary hearing was held and the language of the indictment upon which he was convicted. Ward v. Peyton, 349 F.2d 359 (4th Cir. 1965), cert. denied, 382 U.S. 995, 86 S. Ct. 578, 15 L. Ed. 2d 481 (1966).

A plea of guilty to an indictment is a plea of guilty to the highest degree of the offense charged in the indictment. Hale v. Cox, 336 F. Supp. 1364 (W.D. Va. 1972).

When an individual pleads guilty, he pleads guilty to the highest offense charged in the indictment. Davis v. Slayton, 353 F. Supp. 571 (W.D. Va. 1973).

And plea valid despite lack of knowledge as to presumption. - Where it is clear that a petitioner knew and understood the offense charged in the indictment, and that the indictment provided him with sufficient information upon which to prepare a defense, even if the petitioner did not also understand the presumption of a charge of second-degree murder arising from an indictment for murder under this section, there nevertheless has been no violation of any constitutional right where the petitioner pleads guilty to first-degree murder. Hale v. Cox, 336 F. Supp. 1364 (W.D. Va. 1972).

Defendant pled guilty to first-degree murder. - Since the indictment was sufficient to convict on first as well as second-degree murder, the defendant's plea of guilty was a plea of guilty to first-degree murder. Davis v. Slayton, 353 F. Supp. 571 (W.D. Va. 1973).

Every unlawful homicide is presumed to be murder in the second degree. Hale v. Cox, 336 F. Supp. 1364 (W.D. Va. 1972).

With the burden on the Commonwealth to elevate the offense to murder in the first degree. - See Hale v. Cox, 336 F. Supp. 1364 (W.D. Va. 1972).

Where defendant was tried on an indictment charging manslaughter but was convicted of murder, it was held that the conviction was not void but only voidable, since all the parties and the court had considered the indictment to be one for murder and defendant had pleaded guilty under that assumption. Frye v. Cunningham, 205 Va. 671 , 139 S.E.2d 107 (1964); Hayes v. Peyton, 364 F.2d 303 (4th Cir.), cert. denied, 385 U.S. 981, 87 S. Ct. 530, 17 L. Ed. 2d 442 (1966).

Applied in Spain v. Commonwealth, 7 Va. App. 385, 373 S.E.2d 728 (1988); Herrington v. Commonwealth, 291 Va. 181 , 781 S.E.2d 561, 2016 Va. LEXIS 10 (2016).

CIRCUIT COURT OPINIONS

Bill of particulars. - Where defendant was charged with second degree murder, as the indictment did not have to allege he acted with malice, he was not entitled to a bill of particulars under § 19.2-230 concerning evidence on the issue of whether he acted with malice. Commonwealth v. Kuhne, 80 Va. Cir. 299, 2010 Va. Cir. LEXIS 49 (Fairfax County Apr. 22, 2010).

§ 19.2-222.

Repealed by Acts 1996, c. 676.

§ 19.2-223. Charging several acts of embezzlement; description of money.

In a prosecution against a person accused of embezzling or fraudulently converting to his own use bullion, money, bank notes or other security for money or items of personal property subject to larceny it shall be lawful in the same indictment or accusation to charge and thereon to proceed against the accused for any number of distinct acts of such embezzlements or fraudulent conversions which may have been committed by him within six months from the first to the last of the acts charged in the indictment; and it shall be sufficient to allege the embezzlement or fraudulent conversion to be of money without specifying any particular money, gold, silver, note or security. Such allegation, so far as it regards the description of the property, shall be sustained if the accused be proved to have embezzled any bullion, money, bank note or other security for money or items of personal property subject to larceny although the particular species be not proved.

And in a prosecution for the larceny of United States currency or for obtaining United States currency by a false pretense or token, or for receiving United States currency knowing the same to have been stolen, it shall be sufficient if the accused be proved guilty of the larceny of national bank notes or United States treasury notes, certificates for either gold or silver coin, fractional coin, currency, or any other form of money issued by the United States government, or of obtaining the same by false pretense or token, or of receiving the same knowing it to have been stolen although the particular species be not proved.

(Code 1950, § 19.1-168; 1960, c. 366; 1975, c. 495; 1989, c. 370.)

Cross references. - As to what is deemed embezzlement, see §§ 18.2-111 and 18.2-112 .

Michie's Jurisprudence. - For related discussion, see 2C M.J. Autrefois, Acquit and Convict, § 6; 6B M.J. Embezzlement, § 7; 9B M.J. Indictments, Informations and Presentments, § 23; 12A M.J. Larceny, § 15; 15 M.J. Receiving Stolen Goods, § 3.

CASE NOTES

Charge of larceny of United States currency sufficient. - Prior to the passage of this section in 1870, it had been decided that in an indictment for larceny, a description of the subject as "United States currency," was not sufficient. In consequence of that decision, this section was passed, by which, among other things, it was enacted that "in a prosecution for the larceny of United States currency," it shall be sufficient if the accused be proved guilty of the larceny of national bank notes, or "United States treasury notes." An indictment now charging the offense as a larceny of "United States currency," does charge an indictable offense under the section. Dull v. Commonwealth, 66 Va. (25 Gratt.) 965 (1875). See Holly v. Commonwealth, 113 Va. 769 , 75 S.E. 88 (1912).

Possession and larceny need not be charged. - It is sufficient for an indictment under this section, for embezzlement, to conform to the language of the statute in its description of the offense. Possession need not be alleged, nor need larceny be charged. "Embezzle" has as fixed a meaning as "steal," and to charge that defendants "did feloniously . . . embezzle and convert to their use," etc., is a sufficient allegation. Commonwealth v. Davis, 17 Va. L. Reg. 516 (1911).

No objection can be urged to an indictment for embezzlement because of the number of transactions contained in the indictment, as the statute allows this to be done. Commonwealth v. Davis, 17 Va. L. Reg. 516 (1911).

Distinct acts of embezzlement for six-month period may be joined. - This section allows the prosecutor to proceed against an accused for "any number of distinct acts of such embezzlements" as may have been committed within a six-month period. The thrust of this section, therefore, is to allow joinder under one charge of separate crimes committed within the specified period where said joinder, absent statutory authority, possibly might run afoul of the rule of duplicity of charges. Mechling v. Slayton, 361 F. Supp. 770 (E.D. Va. 1973).

Although the rule of duplicity prohibits the simultaneous charging of several unrelated crimes in one indictment, pursuant to this section, distinct acts of embezzlement for a six-month period are "related" such that they may be grouped together under one charge. Mechling v. Slayton, 361 F. Supp. 770 (E.D. Va. 1973).

Separate impulses to steal. - Evidence was sufficient to convict defendant of three counts of felony embezzlement because he embezzled money as a result of a series of individual impulses to steal rather than according to a single general impulse; he embezzled 20 times at sporadic intervals from six different cash registers over a 25-day period; and the Commonwealth was not required to prove that defendant acted with a distinct impulse to steal for each count of embezzlement charged, rather, the focus was on whether defendant had a separate impulse to steal each time he took money, and the evidence established that he embezzled according to a series of individual impulses. Kanu v. Commonwealth, No. 1729-19-4, 2020 Va. App. LEXIS 287 (Nov. 24, 2020).

Charge of continuous plan, etc., and single offense sufficient. - An indictment did not contravene this section because it charged "a continuous plan or scheme and a single offense of embezzlement." Challenor v. Commonwealth, 209 Va. 789 , 167 S.E.2d 116 (1969).

Evidence relating to earlier embezzlement held inadmissible. - Where it was manifest from the evidence that the two crimes of embezzlement charged in the indictment were not part of a continuous scheme and occurred at times separated by several years the court erred in refusing to strike the evidence relating to the earlier embezzlement. Webb v. Commonwealth, 204 Va. 24 , 129 S.E.2d 22 (1963).

§ 19.2-224. In prosecution for forgery, unnecessary to set forth copy of forged instrument.

In a prosecution for forging or altering any instrument or other thing, or attempting to employ as true any forged instrument or other thing, or for any of the offenses mentioned in Article 1 (§ 18.2-168 et seq.) of Chapter 6 of Title 18.2, it shall not be necessary to set forth any copy or facsimile of such instrument or other thing; but it shall be sufficient to describe the same in such manner as would sustain an indictment for stealing such instrument or other thing, supposing it to be the subject of larceny.

(Code 1950, § 19.1-169; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 5A M.J. Counterfeiting, § 4; 8B M.J. Forgery, § 14.

CASE NOTES

Description as would sustain larceny indictment sufficient. - In a prosecution for forging, or attempting to employ as true any forged instrument, it is sufficient to describe the same in the indictment in such manner as would sustain an indictment for the larceny of such instrument. Coleman v. Commonwealth, 66 Va. (25 Gratt.) 865 (1874).

No necessity for setting out endorsement. - On the trial when the note was offered in evidence, it was objected to on the ground of variance. It was not necessary to set out in the indictment the endorsements upon the note, or any other matter written upon the same paper, constituting no part of the note itself, and not entering into the essential description of the instrument. Perkins v. Commonwealth, 48 Va. (7 Gratt.) 650 (1850).

The description of the writing in the indictment, as the endorsement of a person whose name is forged, will not vitiate the indictment, though the simulated liability might not be that of a technical endorser, but of a different character. Powell v. Commonwealth, 52 Va. (11 Gratt.) 822 (1854).

Nor maker and place of payment. - An indictment charged the forgery of an endorsement on a negotiable note, which was described as to the amount, date to whom payable and when due but did not state who was the maker of the note or where it was payable. It was a good indictment. Cocke v. Commonwealth, 54 Va. (13 Gratt.) 750 (1855).

Variance in indictment and forged order. - The difference between "account" as set out in the indictment and "acct" as written in a forged order, is not a material variance, which will exclude the order as evidence. Burress v. Commonwealth, 68 Va. (27 Gratt.) 934 (1876), overruled on other grounds Keister's Ex'rs v. Philips' Ex'r, 124 Va. 591 , 98 S.E. 676 (1919).

§ 19.2-225. Allegation of intent.

Where an intent to injure, defraud or cheat is required to constitute an offense, it shall be sufficient, in an indictment or accusation therefor, to allege generally an intent to injure, defraud or cheat without naming the person intended to be injured, defrauded or cheated; and it shall be sufficient, and not be deemed a variance, if there appear to be an intent to injure, defraud or cheat the United States, or any state, or any county, corporation, officer or person.

(Code 1950, § 19.1-170; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 5A M.J. Counterfeiting, § 4; 8B M.J. Forgery, § 12; 12A M.J. Larceny, § 16.

CASE NOTES

This section applies to an indictment for an attempt to poison. The word "injure" is more apposite to the offense of poisoning or attempting to poison than to forgery, cheating, and like offenses. Davis v. Commonwealth, 99 Va. 838 , 38 S.E. 191 (1901).

§ 19.2-226. What defects in indictments not to vitiate them.

No indictment or other accusation shall be quashed or deemed invalid:

  1. For omitting to set forth that it is upon the oaths of the jurors or upon their oaths and affirmations;
  2. For the insertion of the words "upon their oath," instead of "upon their oaths";
  3. For not in terms alleging that the offense was committed "within the jurisdiction of the court" when the averments show that the case is one of which the court has jurisdiction;
  4. For the omission or misstatement of the title, occupation, estate, or degree of the accused or of the name or place of his residence;
  5. For omitting the words "with force and arms" or the statement of any particular kind of force and arms;
  6. For omitting to state, or stating imperfectly, the time at which the offense was committed when time is not the essence of the offense;
  7. For failing to allege the kind or value of an instrument which caused death or to allege that it was of no value;
  8. For omitting to charge the offense to be "against the form of the statute or statutes";
  9. For the omission or insertion of any other words of mere form or surplusage; or
  10. For omitting or stating incorrectly the Virginia crime code references for the particular offense or offenses covered.

    Nor shall it be abated for any misnomer of the accused; but the court may, in case of a misnomer appearing before or in the course of a trial, forthwith cause the indictment or accusation to be amended according to the fact.

    (Code 1950, § 19.1-172; 1960, c. 366; 1975, c. 495; 2003, c. 148.)

Cross references. - For section prescribing oath of grand jury, see § 19.2-197 .

As to amendments of indictments generally, see § 19.2-231 .

Editor's note. - Acts 2003, c. 148, cl. 2, provides: "That this act shall become effective on October 1, 2004."

Acts 2003, c. 148, cl. 3, effective October 1, 2004, provides: "That the charging and dispositional documents incorporating Virginia crime codes developed pursuant to this act shall indicate clearly that the crime codes are to be entered in a portion of such documents labeled 'for administrative use only' or words to that effect."

The 2003 amendments. - The 2003 amendment by c. 148, effective October 1, 2004, added subdivision (10).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Burglary and Housebreaking, § 9; 9B M.J. Indictments, Informations and Presentments, §§ 23, 31, 32, 34, 37; 14B M.J. Perjury, § 11; 15 M.J. Rape, § 13; 19 M.J. Venue, § 15.

CASE NOTES

I. GENERAL CONSIDERATION.

For history and general consideration of statute, see Commonwealth v. Peas, 43 Va. (2 Gratt.) 629 (1834).

Constitutionality. - The constitutional guarantee that the accused in all criminal prosecutions has the right to be confronted with the witnesses against him, etc., is not violated by this section. Shiflett v. Commonwealth, 90 Va. 386 , 18 S.E. 838 (1894).

Extends to most defects in form. - The provisions of this act dispense with the necessity of formal allegations in an indictment, and declare that "no indictment shall be quashed, or deemed invalid," for any of certain enumerated causes. So far as these provisions extend they secure an indictment against objections, however raised. They seem to extend to most if not all defects of form. Lazier v. Commonwealth, 51 Va. (10 Gratt.) 708 (1853).

Absence of the foreman's signature from an indictment, although not specified in § 19.2-226 as an insubstantial defect in form, is nonetheless a defect in form only and does not render the indictment so defective as to be in violation of the constitution under § 19.2-227 . Reed v. Commonwealth, 281 Va. 471 , 706 S.E.2d 854, 2011 Va. LEXIS 50 (2011).

Failure of grand jury foreman to sign indictments is defect in form only. - Failure of the grand jury foreman to sign the indictments was a defect in form only and accordingly, when the indictments were returned by the grand jury in open court, that defect in form was cured and the indictments became valid instruments under which to try defendant. The absence of the foreman's signature from an indictment, although not specified in § 19.2-226 as an insubstantial defect in form, was nonetheless a defect in form only and did not render the indictment so defective as to be in violation of the constitution under Va. Code Ann. § 19.2-227 . Reed v. Commonwealth, 281 Va. 471 , 706 S.E.2d 854, 2011 Va. LEXIS 50 (2011).

Power of trial courts to make amendments. - It clearly seems to be the legislative intent to empower the trial courts to make amendments to defective indictments when the defects are much greater, and might be more fatal than those listed as inconsequential and without need of amendment in this section. Farewell v. Commonwealth, 167 Va. 475 , 189 S.E. 321 (1937).

Alteration of printed form not alteration of indictment. - Where indictment was drawn on paper containing a printed form originally designed for use as an information, and this form was merely altered to conform to a proper form of an indictment and the blanks filled in with typewritten matter which conclusively demonstrated the charge against the accused, a motion to quash, on the ground that the indictment was altered, was properly overruled. McCann v. Commonwealth, 174 Va. 429 , 4 S.E.2d 768 (1939).

Need not prove ultimate ownership of property taken in robbery prosecution. - Because robbery is a crime against the person, the prosecution need not prove the ultimate ownership of the property taken but need only prove that the possessory rights of the victim were superior to those of the thief. As such, it is not "legally essential" to allege or identify the ultimate owner of the property taken. Hairston v. Commonwealth, 2 Va. App. 211, 343 S.E.2d 355 (1986).

II. JURISDICTION AND VENUE.

Jurisdiction must appear. - Notwithstanding this section, dispensing with the necessity for merely formal allegations in an information or indictment, it is still necessary that it be shown in terms or by proper averments that the case is one of which the court had jurisdiction. Commonwealth v. Guigon, 1 Va. Dec. 597 (1886). See Lazier v. Commonwealth, 51 Va. (10 Gratt.) 708 (1853); Anderson v. Commonwealth, 100 Va. 860 , 42 S.E. 865 (1902), overruled on another point Kelley v. Commonwealth, 140 Va. 522 , 125 S.E. 437 (1924).

The naming of the county in the margin is not indispensable, if it be found in the body of the indictment. Tefft v. Commonwealth, 35 Va. (8 Leigh) 721 (1837).

Venue in caption applies to whole indictment and each count thereof. - An indictment contained two counts. The caption was "Virginia - Roanoke County, to wit." The petitioner demurred to the entire indictment alleging as to the second count that it had no caption and no venue was laid. The caption applies to the whole indictment and to each count in it. Wright v. Commonwealth, 82 Va. 183 (1886).

Averment as to precise place not necessary. - In a prosecution for stabbing with intent to kill, where the indictment which was made by the grand jury of the Hustings Court of the City of Richmond charged the assault to have been made at the said city and within the jurisdiction of the said Hustings Court of the City of Richmond, this was sufficient. It was not necessary to state the place in the city where the assault was made. Baccigalupo v. Commonwealth, 74 Va. (33 Gratt.) 807 (1880).

Except in case of local offense. - Where an offense is local in its nature, place is of its essence, and it is essential that the place should be set forth in the indictment, and the proof must correspond. Morgan v. Commonwealth, 90 Va. 80 , 21 S.E. 826 (1893). See Farewell v. Commonwealth, 167 Va. 475 , 189 S.E. 321 (1937).

Uncertainty as to where offense committed objectionable. - Where the indictment in the caption names one county and in the body of it speaks of the defendant as of another county, the charging the offense to have been committed in the county aforesaid, is error, it not being alleged with sufficient certainty that the offense was committed in the county in which the indictment was found. Bell v. Commonwealth, 49 Va. (8 Gratt.) 600 (1851).

Presentment for playing cards, "at or near" a place, is objectionable for uncertainty. Bishop v. Commonwealth, 54 Va. (13 Gratt.) 785 (1856).

Sufficient averment. - An indictment charging that the prisoner, "at the county and within the jurisdiction of the court, feloniously and maliciously did stab one P.T. with intention to maim, etc., and kill him," will not be quashed upon objection that it does not allege that P.T. was within the county or jurisdiction. Commonwealth v. Woodson, 36 Va. (9 Leigh) 669 (1839).

Insufficient averment. - An indictment which charges that an offense was committed "within the jurisdiction of the court," but does not state where the offense was committed, is bad on demurrer. Early v. Commonwealth, 93 Va. 765 , 24 S.E. 936 (1896).

III. DESIGNATION OF TIME.

Omission to state, or imperfect statement of time does not hurt indictment. Sledd v. Commonwealth, 60 Va. (19 Gratt.) 813 (1870); Rhodes v. Commonwealth, 78 Va. 692 (1884).

The Commonwealth may prove the commission of the crime charged on a date different from that alleged, and sustain a conviction thereof. Parish v. Commonwealth, 206 Va. 627 , 145 S.E.2d 192 (1965), cert. denied, 384 U.S. 942, 86 S. Ct. 1463, 16 L. Ed. 2d 540 (1966); Pasanello v. Commonwealth, 206 Va. 640 , 145 S.E.2d 200 (1965).

And it need not be alleged when not of the essence. Savage v. Commonwealth, 84 Va. 582 , 5 S.E. 563 (1888); Arrington v. Commonwealth, 87 Va. 96 , 12 S.E. 224 (1890).

Defendant to be given as precise a date as possible. - While time may not be of the essence in a particular case, it is, nonetheless, preferable and required that the defendant be given as precise a date of the alleged offense as possible. Clinebell v. Commonwealth, 3 Va. App. 362, 349 S.E.2d 676 (1986), aff'd in part, rev'd in part, 235 Va. 319 , 368 S.E.2d 263 (1988).

In a felony case when time is not the essence of the offense, the Commonwealth may prove the commission of a crime charged on a date different from that alleged in the indictment. Harris v. Commonwealth, 185 Va. 26 , 37 S.E.2d 868 (1946).

It becomes necessary, therefore, to inquire whether time is of the essence of the offense. Cool v. Commonwealth, 94 Va. 799 , 26 S.E. 411 (1896).

For instance, when statute applicable depends on date of offense. - When there are two statutes, either of which may apply to the offense charged, and the one of subsequent date changes the nature of the offense or the punishment of the same, the indictment must by proper averment as to time refer to the statute under which it was found so that the court may see the exact character of the offense, and the nature and measure of the punishment to be imposed. Time is of the essence of the offense. Cool v. Commonwealth, 94 Va. 799 , 26 S.E. 411 (1896).

When any time stated in an indictment is to be proved by a matter of record, a variance will be fatal, and in an indictment for perjury the day on which the perjury was committed must be truly laid. Rhodes v. Commonwealth, 78 Va. 692 (1884).

Reasonable doubt as to date permissible where time not element of offense. - When time is not an element of the crime charged, the jury verdict will stand if the evidence is sufficient to prove beyond a reasonable doubt that a crime occurred and that the defendant committed the crime, even though the evidence is such that there may be a reasonable doubt as to the day on which the offense occurred. Such a result does not constitute a denial of due process of law. Marlowe v. Commonwealth, 2 Va. App. 619, 347 S.E.2d 167 (1986).

Statutory rape. - In a statutory rape case, where the age of the victim is not in dispute, time is not of the essence of the offense charged. Clinebell v. Commonwealth, 3 Va. App. 362, 349 S.E.2d 676 (1986), aff'd in part, rev'd in part, 235 Va. 319 , 368 S.E.2d 263 (1988).

Sexual offenses. - Time was not an element of sexual offenses alleged, and both indictments and Commonwealth's response to bill of particulars sufficiently informed defendant of relevant offense dates. Booker v. Commonwealth, No. 1603-98-1 (Ct. of Appeals Aug. 3, 1999).

Time is not an element of offense of rape, and Commonwealth is not required to prove exact date of an offense against a child as long as evidence establishes beyond a reasonable doubt that a crime occurred and that defendant committed the crime. Felder v. Commonwealth, No. 1617-98-2 (Ct. of Appeals Aug. 3, 1999).

Evidence was not deficient in defendant's case where he was charged with and convicted of aggravated sexual battery; where the indictment stated that the charged events occurred "on or about" a certain date through a certain other date, the trial court had a basis for ruling that the dates contained in the indictment were sufficiently narrow to apprise defendant of the charges against him and allow him to prepare a defense. Clifford v. Commonwealth, 48 Va. App. 499, 633 S.E.2d 178, 2006 Va. App. LEXIS 364 (2006), rev'd, on other grounds, 274 Va. 23 , 645 S.E.2d 295 (2007).

Although the child sexual assault victim could not recall the specific dates of the incidents, the trial court did not err when it denied defendant's motion for a bill of particulars as to the precise day, date, and time of each alleged offense; the indictments were sufficient to apprise defendant of the nature of the crimes with which he was charged. Christopher v. Commonwealth,, 2006 Va. App. LEXIS 590 (Dec. 28, 2006).

Defendant's double jeopardy rights were not violated by being punished multiple times for what might have been the same offense since: (1) despite the overlap of some of the evidence, each indictment alleged an indecent liberties crime had occurred within a specific, different time period; (2) the victim described distinct acts that occurred during the specific periods of time alleged in each indictment; (3) although the victim was unable to recall specific dates of each offense, the time frames supplied by the victim were sufficient to identify a particular event with each indictment; and (4) specific dates were not required. Farhoumand v. Commonwealth, No. 2087-12-4, 2013 Va. App. LEXIS 353 (Dec. 3, 2013).

Evidence sufficiently showed defendant possessed child pornography on or about the date alleged in an indictment because the Commonwealth did not have to prove the exact date defendant possessed the images, as time was not a statutory element of the crime, so the Commonwealth only had to prove a crime occurred and defendant committed it, which the Commonwealth did. Christy v. Commonwealth, No. 0169-17-3, 2018 Va. App. LEXIS 95 (Apr. 10, 2018).

Credit card theft. - Defendant's convictions for credit card theft were proper under subdivision 6 of § 19.2-226 because she provided no case law or authority to support her contention that time was an element of the offense of credit card theft. As time was not an element of the offense of credit card theft, the Commonwealth was not required to prove the exact date of the offenses, as long as the evidence established beyond a reasonable doubt that the crimes occurred and that defendant committed the crimes; there was sufficient evidence to show that defendant obtained the credit cards and received the credit cards and, therefore, the trial court did not err in finding the evidence sufficient to prove the offenses. Trang Chau v. Commonwealth,, 2011 Va. App. LEXIS 30 (Feb. 1, 2011).

Unnecessary to aver precise time of sale of intoxicating liquor. - It is unnecessary to allege in an indictment for the unlawful sale of intoxicating liquors the precise time when the sale was made. Clopton v. Commonwealth, 109 Va. 813 , 63 S.E. 1022 (1909). See also Savage v. Commonwealth, 84 Va. 582 , 5 S.E. 563 (1888); Arrington v. Commonwealth, 87 Va. 96 , 12 S.E. 224 (1890).

But it must be shown that offense not barred. - While it is unnecessary in a prosecution for the unlawful sale of ardent spirits for the indictment to state the precise time of the sale, it is necessary that such facts should be stated in the indictment as will show that the offense charged was committed within the period of limitation fixed by the statute. Shiflett v. Commonwealth, 114 Va. 876 , 77 S.E. 606 (1913).

Using figures instead of words in setting out the dates of an indictment is not a fatal defect under this section. Lazier v. Commonwealth, 51 Va. (10 Gratt.) 708 (1853); Cady v. Commonwealth, 51 Va. (10 Gratt.) 776 (1854).

IV. INSTRUMENT CAUSING DEATH.

It is unnecessary to state the weapon with which the assault was made in an indictment for malicious assault with intent to kill. Jackson v. Commonwealth, 96 Va. 107 , 30 S.E. 452 (1898).

An indictment sufficiently charges the means by which life was extinguished, when in one count it charges that the prisoner did strike, kick and beat deceased upon the belly, stomach and back, and, in another count, that he did strike, push or knock the deceased down upon the floor, and that while lying there, he, upon the stomach, belly, back, legs and hands of her did then and there strike, beat and kick, giving several mortal wounds, or one mortal wound. Johnson v. Commonwealth, 111 Va. 877 , 69 S.E. 1104 (1911).

Averment that killing was done with loaded shotgun would have been quite sufficient, without specifying the kind of missiles employed. Green v. Commonwealth, 122 Va. 862 , 94 S.E. 940 (1918).

V. SURPLUSAGE.

Unnecessary and irrelevant matter in an indictment may generally be treated as surplusage if, when stricken out, enough remains to sufficiently charge the offense. Commonwealth v. Moseley, 4 Va. (2 Va. Cas.) 154 (1819); Commonwealth v. Bennet, 4 Va. (2 Va. Cas.) 235 (1820); Pomeroy v. Commonwealth, 4 Va. (2 Va. Cas.) 342 (1823); Lazier v. Commonwealth, 51 Va. (10 Gratt.) 708 (1853); Thompson v. Commonwealth, 61 Va. (20 Gratt.) 724 (1870).

When an allegation of variance is based on unnecessary words in an indictment, the unnecessary word or words in the indictment must be descriptive of that which is "legally essential" to the charge. Stated another way, the unnecessary language must have a material effect on the offense charged and on the proof required to convict under that charge. Hairston v. Commonwealth, 2 Va. App. 211, 343 S.E.2d 355 (1986).

If the unnecessary word or words inserted in the indictment describe, limit or qualify the words which it was necessary to insert therein, then they are descriptive of the offense charged in the indictment and cannot be rejected as surplusage. The offense as charged must be proved. Hairston v. Commonwealth, 2 Va. App. 211, 343 S.E.2d 355 (1986).

When commencement or caption states name of court and term at which indictment was found, it is surplusage, and a mistake does not invalidate it. Bell v. Commonwealth, 49 Va. (8 Gratt.) 600 (1851).

Conclusions of law, summing up the offense unnecessarily, may be regarded as surplusage, as where an indictment for taking a voluntary false oath, not amounting to perjury, concludes, "And so the said A.B. did commit perjury, etc." Hawley v. Commonwealth, 75 Va. 847 (1880).

Anything more than proper endorsement is surplusage. - The only proper endorsement on an indictment is a "true bill" or, "not a true bill" with the name of the foreman. Anything more is not a part of the finding of the grand jury, but mere surplusage. Thompson v. Commonwealth, 61 Va. (20 Gratt.) 724 (1870).

Inclusion and omission of "feloniously." - The law in this State has been declared to be that the omission of the word "feloniously" in an indictment charging a statutory felony is not error if the acts constituting the crime are sufficiently set forth. It logically follows that the converse of the proposition is equally true, i.e., that the inclusion of the word "feloniously" in an indictment charging a statutory misdemeanor does not make the charge a felony; and this section provides that no indictment shall be quashed or deemed invalid for the omission or the insertion of any words of mere form or surplusage. Young v. Commonwealth, 155 Va. 1152 , 156 S.E. 565 (1931).

Inconsistent averments as surplusage. - An indictment for murder which describes the wound in one place as above the nipple of the left breast, and subsequently, as below the nipple of the left breast, is not void for repugnancy and inconsistency, as the latter recitation is surplusage, and covered by this section. Robertson v. Commonwealth, 1 Va. Dec. 851, 20 S.E. 362 (1894).

The objection made to the first count of an indictment that it is insensible, or contradictory and repugnant, in speaking of the "aforesaid 14th day of December" when no other day than the 9th of December is before mentioned is not a fatal defect under this section. The word "aforesaid" before "the 14th of December" is mere surplusage. Lazier v. Commonwealth, 51 Va. (10 Gratt.) 708 (1853).

And allegation as to previous conviction. - An indictment for murder is not bad on demurrer because it contains a count charging that the accused had been twice before sentenced in the United States to confinement in the penitentiary. The count charging the previous convictions must be rejected as surplusage. But if the prisoner objects to the introduction of evidence of such former convictions, his objection should be sustained, as such evidence tends to unduly prejudice the prisoner before the jury. Wright v. Commonwealth, 109 Va. 847 , 65 S.E. 19 (1909).

Also, alleging time in continuando. - A count of an indictment alleging an offense as committed upon a certain day, and going on to charge it in the continuando, is not defective. The continuando is mere surplusage. Burner v. Commonwealth, 54 Va. (13 Gratt.) 778 (1856).

"Jr." mere surplusage. - "Jr." is not part of a person's name, but is mere descriptio persona and may be rejected as surplusage for purposes of this section. Bassett v. Commonwealth, 222 Va. 844 , 284 S.E.2d 844 (1981), cert. denied, 456 U.S. 938, 102 S. Ct. 1996, 72 L. Ed. 2d 458 (1982), cert. denied, 499 U.S. 983, 111 S. Ct. 1639, 113 L. Ed. 2d 734 (1991).

"Inc." mere surplusage. - Evidence that defendant's employer owned a truck and tools that were supplied to defendant but not returned by him was sufficient to sustain defendant's conviction for grand larceny, in violation of § 18.2-95 , even though the indictment charged defendant with stealing the truck and tools from a corporation and the Commonwealth did not prove that defendant's employer was a corporation. Commonwealth v. Nuckles, 266 Va. 519 , 587 S.E.2d 695, 2003 Va. LEXIS 107 (2003).

Reference to city code was mere surplusage. - Because a warrant provided defendant with notice of the nature and character of the offense with which defendant was charged, and because §§ 16.1-137 and 19.2-226 authorized the trial court to amend the warrant to delete reference to a city code, which was mere surplusage, the trial court properly denied defendant's motion to dismiss, and found defendant guilty of a second offense of driving under the influence under § 18.2-266 . Dennis v. Commonwealth,, 2008 Va. App. LEXIS 530 (Dec. 9, 2008).

VI. MISNOMER.

Misnomer not fatal if identity clear. - Misnomer of a victim will not render an indictment fatally defective when the victim's identity is made clear at trial. Bassett v. Commonwealth, 222 Va. 844 , 284 S.E.2d 844 (1981), cert. denied, 456 U.S. 938, 102 S. Ct. 1996, 72 L. Ed. 2d 458 (1982), cert. denied, 499 U.S. 983, 111 S. Ct. 1639, 113 L. Ed. 2d 734 (1991).

When the identity of the accused was never at any time questioned or doubted, the action of the trial court in permitting the attorney for the Commonwealth to change the name in the indictment from R.A. Kitchen to Ira Kitchen, is fully authorized by this section and § 19.2-231 . Kitchen v. Commonwealth, 132 Va. 700 , 111 S.E. 111 (1922).

But when entire name wrong, correction not allowed. - By mistake a wrong name was inserted in an indictment for a misdemeanor, though the record of the court and the indorsement on the indictment shows the correct name. Under the statute allowing the correction of a "misnomer," then just passed, the indictment cannot be amended by striking out the wrong name and inserting the name of the person intended. Commonwealth v. Buzzard, 46 Va. (5 Gratt.) 694 (1848).

Section authorizes amendment. - Pursuant to this section, where defendants indicted jointly for a misdemeanor have been duly summoned, but failed to appear, the court may, in their absence, amend the indictment against "S.C.," and make it read "S.S. alias S.C." Shiflett v. Commonwealth, 90 Va. 386 , 18 S.E. 838 (1894).

§ 19.2-227. When judgment not to be arrested or reversed.

Judgment in any criminal case shall not be arrested or reversed upon any exception or objection made after a verdict to the indictment or other accusation, unless it be so defective as to be in violation of the Constitution.

(Code 1950, § 19.1-165; 1960, c. 366; 1975, c. 495.)

Law review. - For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adultery, Fornication and Lewdness, § 4; 1B M.J. Appeal and Error, § 285; 5A M.J. Counterfeiting, § 6; 5B M.J. Criminal Procedure, § 69; 9B M.J. Indictments, Informations and Presentments, § 56; 11A M.J. Judgments and Decrees, § 136; 12B M.J. Mayhem, § 5; 14B M.J. Pleading, § 21.

CASE NOTES

The intent of the act is, that where a real felony or offense is charged in an indictment or information, though defectively charged, after plea and verdict such want of form shall not be availed of by the defendant. Commonwealth v. Richards, 3 Va. (1 Va. Cas.) 1 (1810); Taylor v. Commonwealth, 4 Va. (2 Va. Cas.) 94 (1817); Commonwealth v. Ervin, 4 Va. (2 Va. Cas.) 337 (1823); Burgess v. Commonwealth, 4 Va. (2 Va. Cas.) 483 (1825); Stephen v. Commonwealth, 29 Va. (2 Leigh) 759 (1830).

Legislative prerogative. - This section was intended to meet cases, and to require persons charged with crime to assert their rights and to make their defenses before verdict, and thereafter to cut off all defenses not made before verdict unless prohibited by the Constitution. The Constitution gives to the accused the right to demand the cause and nature of his accusation, and this right cannot be taken away from him, but there is no inhibition on the legislature to fix a stage of the procedure beyond which he cannot go in the assertion of his constitutional right. Flanary v. Commonwealth, 133 Va. 665 , 112 S.E. 604 (1922).

Collateral attack barred unless defects in indictment jurisdictional. - As long as the indictments on which a defendant was convicted were not so defective so as to deprive the court of jurisdiction to render the judgments of conviction, a petitioner may not collaterally attack the sufficiency of the indictments. Kahaliqi v. Commonwealth, No. 1611-00-4, 2001 Va. App. LEXIS 185 (Ct. of Appeals Apr. 10, 2001).

If an alleged defect be matter of form or surplusage only it is cured by the criminal statute of jeofails. Lithgow v. Commonwealth, 4 Va. (2 Va. Cas.) 297 (1822).

Certainty in charge required. - The statute of jeofails was not intended to introduce a carelessness or laxity in pleading, but merely to cure those defects which the over nicety of the courts had introduced into the common law, and which did not put the rights of the Commonwealth or the accused into jeopardy. According to the very terms of the statute, the offense must be charged with sufficient certainty in the indictment or other accusation, for judgment to be given thereon according to the very right of the case. There must still be some certainty in the charge. Commonwealth v. Peas, 43 Va. (2 Gratt.) 629 (1834); Commonwealth v. Ailstock, 44 Va. (3 Gratt.) 650 (1846); Old v. Commonwealth, 59 Va. (18 Gratt.) 915 (1867).

Omission to state court where grand jury impanelled is cured. - The omission to state in what court of the county the grand jury was impanelled (the county itself being mentioned), if an error, is cured. Trimble v. Commonwealth, 4 Va. (2 Va. Cas.) 143 (1818).

And omission to state offense was "unlawfully" committed. - The omission to state in an indictment that the offense was committed unlawfully, is cured by the statute of jeofails. Commonwealth v. Bennett, 4 Va. (2 Va. Cas.) 235 (1820).

Defective spelling of date. - An indictment for grand larceny, charged the goods to have been stolen on the "21st of December, one thousand eight hundred and twenty-thee," leaving out the "r" in the last word. This is cured by the statute of jeofails. Aldridge v. Commonwealth, 4 Va. (2 Va. Cas.) 447 (1824).

A mistake in the name of the month in which the deceased died, where it is clear from the rest of the indictment that it was a mistake, and it is clear what month was intended, is one of form cured by the statute of jeofails. Commonwealth v. Ailstock, 44 Va. (3 Gratt.) 650 (1846).

Omission of time of offense. - An indictment for unlawfully transporting ardent spirits accurately charged accused with the offense in every particular except as to the date of the commission of the offense. There was no demurrer or other objection to the indictment until after a verdict of conviction, which was abundantly supported by the testimony. If objection had been raised because of the omission of the date of the offense, it could have been corrected at the bar by the prosecuting attorney on mere motion under § 19.2-231 . It was held that under this section, accused could not raise the objection on appeal that the indictment was defective for failure to state the time of the commission of the offense. Flanary v. Commonwealth, 133 Va. 665 , 112 S.E. 604 (1922). See also Honaker v. Commonwealth, 136 Va. 752 , 118 S.E. 85 (1923).

Absence of the foreman's signature from an indictment, although not specified in § 19.2-226 as an insubstantial defect in form, is nonetheless a defect in form only and does not render the indictment so defective as to be in violation of the constitution under § 19.2-227 . Reed v. Commonwealth, 281 Va. 471 , 706 S.E.2d 854, 2011 Va. LEXIS 50 (2011).

Signature of grand jury foreman. - Failure of the grand jury foreman to sign the indictments was a defect in form only and accordingly, when the indictments were returned by the grand jury in open court, that defect in form was cured and the indictments became valid instruments under which to try defendant. The absence of the foreman's signature from an indictment, although not specified in § 19.2-226 as an insubstantial defect in form, was nonetheless a defect in form only and did not render the indictment so defective as to be in violation of the constitution under § 19.2-227 . Reed v. Commonwealth, 281 Va. 471 , 706 S.E.2d 854, 2011 Va. LEXIS 50 (2011).

Failure to allege incorporation of the owner of property stolen. - See Lithgow v. Commonwealth, 4 Va. (2 Va. Cas.) 297 (1822).

Former conviction alleged by recital only sustained. - A conviction for a second offense in violating the former prohibition law was sustained, notwithstanding the fact that a former conviction was alleged by way of recital only, where no objection to the indictment was made by demurrer or otherwise. Cooper v. Commonwealth, 134 Va. 545 , 113 S.E. 863 (1922).

But omission to charge intent not cured. - In a prosecution for unlawful and malicious cutting, accused contended on appeal that the indictment was not in compliance with § 18.2-51 , in that it failed to charge that the cutting was done with the intent to maim, disable, or kill, as required by the statute. It was held that where no felony is alleged in an indictment, it would be violative of constitutional rights to find one guilty of that grade of offense, and, therefore, this section did not cure the defect in the indictment. Tompkins v. Commonwealth, 177 Va. 858 , 13 S.E.2d 409 (1941).

Waiver. - Defendant waived any objection to the indictment by failing to raise the existence of a fatal variance between the indictment for criminal street gang recruitment and the evidence at trial prior to the court's verdict as required by this section. Gomez v. Commonwealth, 72 Va. App. 173, 843 S.E.2d 379, 2020 Va. App. LEXIS 167 (2020).

Applied in Evans v. Commonwealth, 226 Va. 292 , 308 S.E.2d 126 (1983); Stamper v. Commonwealth, 228 Va. 707 , 324 S.E.2d 682 (1985); Waters v. Commonwealth, 29 Va. App. 133, 510 S.E.2d 262 (1999).

CIRCUIT COURT OPINIONS

Indictment found to be sufficient. - In a case in which defendant was convicted of violating former § 3.1-796.124 [now § 3.2-6571] and he filed a motion to set aside based on alleged deficiencies in the indictment, since he did not raise the issue of the validity of the indictment until 16 months after trial, defendant had waived his right to be more fully advised of the cause and nature of his accusation. Additionally, it was obvious that defendant, the Commonwealth, and the court all were fully aware of the cause and nature of the offense for which he was being tried and of which he was convicted. Commonwealth v. Taylor, 77 Va. Cir. 102, 2008 Va. Cir. LEXIS 228 (Chesapeake 2008).

Waiver. - Because defendant did not object to any defect in the indicting process before the verdict or on direct appeal of the judgments, defendant could not attack the judgment, as any objection was waived. Commonwealth v. Ostrander, 93 Va. Cir. 384, 2016 Va. Cir. LEXIS 69 (Chesapeake May 17, 2016).

§ 19.2-228. Name and address of complaining witness to be written on indictment, etc., for misdemeanor.

In a prosecution for a misdemeanor the name and address of the complaining witness, if there be one, shall be written at the foot of the presentment, indictment or information when it is made, found or filed. In case the grand jury that brings in such presentment or indictment or the attorney for the Commonwealth who files such information fail to write the name of a complaining witness at the foot of the presentment, indictment or information, then the name of a complaining witness may be entered of record as such by the court on the motion of the defendant or the attorney for the Commonwealth at any time before the judgment.

(Code 1950, § 19.1-173; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 100.

CASE NOTES

This is not a penal statute, and there is no reason why it should be construed strictly and not carry into effect the obvious intention of the legislature. Wortham v. Commonwealth, 26 Va. (5 Rand.) 669 (1827).

Requirement merely directory. - The requirement of the statutes is merely directory, not mandatory, and a failure to observe it will not invalidate an indictment. Porterfield v. Commonwealth, 91 Va. 801 , 22 S.E. 352 (1895). See also Commonwealth v. Dever, 37 Va. (10 Leigh) 685 (1840); Commonwealth v. Williams, 40 Va. (5 Gratt.) 702 (1848); Shelton v. Commonwealth, 89 Va. 450 , 16 S.E. 355 (1892).

It applies only to misdemeanors. - This section does not require name of prosecutor to be written at foot of an indictment for a felony, but only for a misdemeanor. Thompson v. Commonwealth, 88 Va. 45 , 13 S.E. 304 (1891).

And then only to volunteer prosecutors. - A volunteer informer ought to be made a prosecutor, and liable for costs in case of failure. But one who is compelled to be an informer, cannot be considered a prosecutor. Wortham v. Commonwealth, 26 Va. (5 Rand.) 669 (1827).

A private person may be prosecutor, and liable to pay the costs of the defendant, notwithstanding he was not named at the foot of the information it appearing sufficiently by the presentment, and other proceedings in the cause, that he was the person who instituted the prosecution. After verdict rendered it was too late for the prosecutor to show, by parol testimony, that he was called on by the grand jury, and did not voluntarily go before them to give them information. Commonwealth v. Dove, 4 Va. (2 Va. Cas.) 29 (1815).

Costs to prosecutor when indictment quashed because of incapacity of juror. - When in a prosecution for a misdemeanor at the instance of a voluntary prosecutor, the defendant filed a plea in abatement, that one of the grand jurors who found the indictment was not a freeholder, and the issue made upon that plea was found for the defendant, and the indictment quashed, the court gave judgment for the costs against the prosecutor. Commonwealth v. St. Clair, 42 Va. (1 Gratt.) 556 (1844).

An indictment will not be dismissed, though the prosecutor be insolvent, if the court would ex officio have directed a prosecution to be instituted. Commonwealth v. Hill, 36 Va. (9 Leigh) 601 (1838).

Prosecutor a competent witness in support of indictment. - On an indictment for an assault and battery on the voluntary information of the person assaulted, the informer and prosecutor, being the only witness for the prosecution, is a competent witness, though liable for costs in case defendant is acquitted. Baker v. Commonwealth, 4 Va. (2 Va. Cas.) 353 (1823); Gilliam v. Commonwealth, 31 Va. (4 Leigh) 688 (1834).

§ 19.2-229. When complaining witness required to give security for costs.

For good cause the court may require a complaining witness to give security for the costs and if he fails to do so dismiss the prosecution at his costs.

(Code 1950, § 19.1-174; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 101; 9B M.J. Indictments, Informations and Presentments, § 17.

§ 19.2-230. Bill of particulars.

A court of record may direct the filing of a bill of particulars at any time before trial. A motion for a bill of particulars shall be made before a plea is entered and at least seven days before the day fixed for trial and the bill of particulars shall be filed within such time as is fixed by the court.

(1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 3A M.J. Bill of Particulars, §§ 2, 3, 7, 9; 5B M.J. Criminal Procedure, § 31.

CASE NOTES

A defendant is not entitled to a bill of particulars as a matter of right; whether the Commonwealth is required to file a bill of particulars rests within the discretion of the trial court. Quesinberry v. Commonwealth, 241 Va. 364 , 402 S.E.2d 218, cert. denied, 502 U.S. 834, 112 S. Ct. 113, 116 L. Ed. 2d 82 (1991), and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Limitations on use. - As long as an indictment sufficiently recites the elements of the offense, the commonwealth is not required to include all evidence upon which it plans to rely to prove a particular offense, and an accused should not be permitted to use a bill of particulars to expand the scope of discovery in a criminal case. Sims v. Commonwealth, 28 Va. App. 611, 507 S.E.2d 648 (1998).

Purpose of bill of particulars is to state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried; he is entitled to no more. Swisher v. Commonwealth, 256 Va. 471 , 506 S.E.2d 763 (1998), cert. denied, 528 U.S. 812, 120 S. Ct. 46, 145 L. Ed. 2d 41 (1999).

Omission of judge's name from bill of particulars as testifying witness not error. - Despite defendant's arguments on appeal that: (1) by requesting a list of witnesses in his bill of particulars, the Commonwealth was required to provide him with the names of the witnesses it intended to call and that failure to do so should have prevented the non-disclosed witness from testifying; and (2) the Commonwealth deliberately misled him in its response to his bill of particulars and that such prosecutorial misconduct was also a basis for vacating his conviction, because defendant cited no authority in his opening brief to support either argument, and no discovery order requiring the production of witnesses had been entered, no error affecting the outcome of the trial resulted. Bennett v. Commonwealth, No. 3047-05-2, 2007 Va. App. LEXIS 155 (Apr. 17, 2007).

Bill of particulars and arrest warrant were sufficient. - Both the arrest warrant and the Commonwealth's response to a bill of particulars sufficiently informed defendant as to the general nature and character of the conduct for which he was to be tried, and Virginia jurisprudence required no more; the bill of particulars was relief available to an accused, at the discretion of the court, to supplement a charging instrument that failed to fully and clearly set forth all the material elements of the offense, but not to expand the scope of discovery in a criminal case. Raja v. Commonwealth, 40 Va. App. 710, 581 S.E.2d 237, 2003 Va. App. LEXIS 318 (2003).

Bill of particulars not required. - To be sufficient, an indictment must give the accused "notice of the nature and character of the offense charged so he can make his defense"; when an indictment meets that standard, a bill of particulars is not required. Strickler v. Commonwealth, 241 Va. 482 , 404 S.E.2d 227, cert. denied, 502 U.S. 944, 112 S. Ct. 386, 116 L. Ed. 2d 337 (1991).

Whether the Commonwealth is required to file a bill of particulars rests with the discretion of the trial court. A bill of particulars is not required where the indictments provide the defendant adequate notice of the nature and the character of the offense charged so he can make his defense. Curmak v. Commonwealth, No. 0037-94-2 (Ct. of Appeals March 14, 1995).

A defendant is not entitled to a bill of particulars as a matter of right, but is provided in the discretion of the court. Roach v. Commonwealth, 251 Va. 324 , 468 S.E.2d 98, cert. denied, 519 U.S. 951, 117 S. Ct. 365, 136 L. Ed. 2d 256 (1996), overruled in part on other grounds by Morrisette v. Warden of the Sussex I State Prison, 270 Va. 188 , 613 S.E.2d 551 (2005).

A defendant is not entitled to a bill of particulars as a matter of right. Goins v. Commonwealth, 251 Va. 442 , 470 S.E.2d 114, cert. denied, 519 U.S. 887, 117 S. Ct. 222, 136 L. Ed. 2d 154 (1996).

Whether to require the Commonwealth to file a bill of particulars is a matter that rests within the sound discretion of the trial court. Mickens v. Commonwealth, 252 Va. 315 , 478 S.E.2d 302 (1996), cert. denied, 520 U.S. 1269, 117 S. Ct. 2442, 138 L. Ed. 2d 202 (1997).

Trial court did not abuse its discretion in denying defendant's motion for a bill of particulars because the indictments at issue sufficiently described each of the alleged offenses and specifically tracked the statutory language of the offenses, and defendant did not identify any legally required matter that was left out of the indictments that deprived him of a substantial right and subjected him to the danger of being tried upon a charge for which he was not indicted. Paduano v. Commonwealth, 64 Va. App. 173, 766 S.E.2d 745, 2014 Va. App. LEXIS 419 (2014).

In a capital murder case, defendant failed to establish that the trial court erred by denying his request for a bill of particulars and by convicting him of capital murder based upon the theory that he drowned or suffocated the child victim because the record showed that defendant had notice of the existence of an alternate theory of the case that the victim died from suffocation rather than drowning in time to satisfy any due process right to notice of the precise manner in which he was alleged to have caused the victim's death; and he established no constitutional entitlement to notice of the precise manner in which the Commonwealth alleged that he caused the victim's death. Rams v. Commonwealth, 70 Va. App. 12, 823 S.E.2d 510, 2019 Va. App. LEXIS 45 (2019).

Denial of bill of particulars harmless error. - The trial court acted within its discretion in denying a defendant's motion for a bill of particulars specifying what time the alleged burglary occurred, what crime the defendant intended to commit when he gained entry and what force the defendant allegedly used to seize the victim for purposes of a charge of abduction where the defendant was on notice from the preliminary hearing of the time the alleged burglary occurred, the indictments indicated the predicate offenses the commonwealth intended to prove and the commonwealth was not required to describe the nature of the force used when abducting the victim; to the extent the indictment for burglary may have been insufficient to apprise the defendant of the nature and character of the offense, the trial court's error in refusing to order a bill of particulars was harmless beyond a reasonable doubt where the defendant was aware of the predicate offenses the commonwealth intended to prove and was not surprised by or unprepared for the proof adduced at trial. Sims v. Commonwealth, 28 Va. App. 611, 507 S.E.2d 648 (1998).

Failure to order bill of particulars when Commonwealth amended indictment. - Trial judge did not abuse his discretion by failing to order a bill of particulars when the Commonwealth amended one of the three rape indictments to allege a new offense date. The indictment was sufficient to apprise the appellant of the nature and character of the offense, as he had already entered his plea prior to his bill of particulars request. In a statutory rape case, when the age of the victim is not in dispute, time is not of the essence of such an offense, and the Commonwealth is not required to specify the exact date. Yeager v. Commonwealth, 16 Va. App. 761, 433 S.E.2d 248 (1993).

Applied in Lewis v. Commonwealth, 295 Va. 454 , 813 S.E.2d 732, 2018 Va. LEXIS 64 (2018).

CIRCUIT COURT OPINIONS

Reciprocal discovery. - Defendant, who filed a motion for a bill of particulars, was entitled to discover the place and time of the crime charged, and this provided reciprocal discovery sufficient to render the pre-trial alibi notice requirement of Supreme Court Rule 3A:11(c)(2) consistent with defendant's due process rights. Commonwealth v. Thasoonthorn, 55 Va. Cir. 28, 2001 Va. Cir. LEXIS 45 (Fairfax County 2001).

Bill of particulars not required. - Defendants who were charged with violations of § 18.2-152.3:1 were not entitled to a bill of particulars when the indictment sufficiently set forth where and when the offenses were allegedly committed. Routing information, names of electronic mail service providers and their subscribers, and the identity of the recepients did not need to be provided when the act of transmission was the act that was circumscribed by the statute. Commonwealth v. Jaynes, 64 Va. Cir. 443, 2004 Va. Cir. LEXIS 155 (Loudoun County 2004).

Where the Commonwealth intended to prove "vileness" as an aggravating factor in support of the death penalty, it was not required to identify the components of the vileness factor on which it intended to offer evidence because the indictment, the discovery responses, and defendant's opportunity to hear the evidence presented at the preliminary hearing adequately informed him of the charged offense. Commonwealth v. Waddler, 65 Va. Cir. 418, 2004 Va. Cir. LEXIS 296 (Portsmouth 2004).

Where defendant was charged with second degree murder, as the indictment did not have to allege he acted with malice, he was not entitled to a bill of particulars under § 19.2-230 concerning evidence on the issue of whether he acted with malice. Commonwealth v. Kuhne, 80 Va. Cir. 299, 2010 Va. Cir. LEXIS 49 (Fairfax County Apr. 22, 2010).

Article 3. Amendments.

§ 19.2-231. Amendment of indictment, presentment or information.

If there be any defect in form in any indictment, presentment or information, or if there shall appear to be any variance between the allegations therein and the evidence offered in proof thereof, the court may permit amendment of such indictment, presentment or information, at any time before the jury returns a verdict or the court finds the accused guilty or not guilty, provided the amendment does not change the nature or character of the offense charged. After any such amendment the accused shall be arraigned on the indictment, presentment or information as amended, and shall be allowed to plead anew thereto, if he so desires, and the trial shall proceed as if no amendment had been made; but if the court finds that such amendment operates as a surprise to the accused, he shall be entitled, upon request, to a continuance of the case for a reasonable time.

(Code 1950, §§ 19.1-175 through 19.1-177; 1960, c. 366; 1975, c. 495.)

Cross references. - As to amendment in case of misnomer, see § 19.2-226 .

Law review. - For an article, "Criminal Law and Procedure," see 31 U. Rich. L. Rev. 1015 (1997).

Michie's Jurisprudence. - For related discussion, see 4A M.J. Continuances, §§ 3, 17, 47; 9B M.J. Indictments, Informations and Presentments, §§ 36, 50; 12A M.J. Lotteries, § 5; 14B M.J. Perjury, § 5; 16 M.J. Seduction, § 12; 16 M.J. Sodomy, § 4; 19 M.J. Warrants, § 6.

CASE NOTES

I. IN GENERAL.

Policy. - The judicial and legislative policy is to have both civil and criminal cases tried on their merits and as far as possible to ignore mere formal defects. Collins v. City of Radford, 134 Va. 518 , 113 S.E. 735 (1922); Jolly v. Commonwealth, 136 Va. 756 , 118 S.E. 109 (1923). See also Guynn v. Commonwealth, 163 Va. 1042 , 177 S.E. 227 (1934).

The policy of the legislature is to try criminal cases on their merits as far as possible, and to ignore mere formal defects. This is demonstrated by the liberal provisions for amendment provided by the statute. Martin v. Warden, Va. State Penitentiary, 2 Va. App. 6, 341 S.E.2d 202 (1986).

Purpose. - The purpose of this section is to permit the court to amend defective indictments, including such indictments as would be fatally defective if objected to at the proper time and an amendment not made. Farewell v. Commonwealth, 167 Va. 475 , 189 S.E. 321 (1937).

The manifest purpose of this section is to allow amendments which avoid unnecessary delays and further the ends of justice, without prejudice to the substantial right of the accused to be informed of the accusation, and to one fair trial on the merits. Sullivan v. Commonwealth, 157 Va. 867 , 161 S.E. 297 (1931); Farewell v. Commonwealth, 167 Va. 475 , 189 S.E. 321 (1937).

This section permits the trial court to amend an indictment at any time before the verdict is returned or a finding of guilt is made, provided the amendment does not change the nature or character of the offense charged. Trusty v. Commonwealth, No. 0278-93-1 (Ct. of Appeals Dec. 20, 1994); Crawford v. Commonwealth, No. 1844-99-3, 2000 Va. App. LEXIS 367 (Ct. of Appeals May 16, 2000).

Liberally construed. - This section is remedial, and in accordance with the accepted rule should be construed liberally to correct the evil at which it is directed, and to promote the remedy thereby provided. The legislative intent is to simplify criminal procedure. A narrow construction of this section would defeat its wise purpose. Sullivan v. Commonwealth, 157 Va. 867 , 161 S.E. 297 (1931); Livingston v. Commonwealth, 184 Va. 830 , 36 S.E.2d 561 (1946).

This section is remedial in nature and is to be liberally construed in order to achieve the laudable purpose of avoiding further unnecessary delay in the criminal justice process by allowing amendment, rather than requiring reindictment by a grand jury. Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990).

This section is to be construed liberally. Cantwell v. Commonwealth, 2 Va. App. 606, 347 S.E.2d 523 (1986).

Even indictments which are fatally defective may be amended under this provision if such amendment is made at the proper time. Martin v. Warden, Va. State Penitentiary, 2 Va. App. 6, 341 S.E.2d 202 (1986).

Although the evidence at trial showed that defendant attempted to break and enter at a shop or business different than the shop or business named in the indictment, the Commonwealth did not attempt to amend the indictment to correct the defect, especially since amendments to change the location of an offense were liberally allowed and such an amendment would not have changed the nature or character of the offense; since the Commonwealth did not amend the defect, the evidence did not prove the charge alleged in the indictment and, thus, defendant's conviction had to be reversed and the indictment had to be dismissed. Dotson v. Commonwealth, No. 1410-02-2, 2003 Va. App. LEXIS 531 (Ct. of Appeals Oct. 21, 2003).

Amendment satisfies constitutional provision. - An amendment under this section, setting out more definitely and specifically, either the cause and nature of the charge, or the date, or the place of the offense, satisfies the constitutional provision, giving to the accused in a criminal prosecution "the right to demand the cause and nature of his accusation." The amendment is but a stage in the procedure taking place before trial. Puckett v. Commonwealth, 134 Va. 574 , 113 S.E. 853 (1922); Farewell v. Commonwealth, 167 Va. 475 , 189 S.E. 321 (1937). See Woods v. Commonwealth, 140 Va. 491 , 124 S.E. 458 (1924).

This section authorizes, before the general issue is pleaded, any amendment of the indictment which does not change the nature of the offense charged. Thus, the accused is given timely and ample opportunity to avail himself of his constitutional right to be informed of the nature and cause of the accusation against him. That satisfies such constitutional requirement. Forester v. Commonwealth, 210 Va. 764 , 173 S.E.2d 851 (1970).

Substantial rights of accused protected. - An amendment, when allowed under this section, must provide that the substantial rights of the accused are protected by informing him of the nature and character of the accusations. Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990).

Indictment merely defective and indictment fatally invalid distinguished. - There is a marked difference between an indictment which is merely defective so that it may be amended or the defendant may be given further information by a bill of particulars, and an indictment so fatally invalid that a prosecution cannot be based upon it. Snead v. Smyth, 273 F.2d 838 (4th Cir. 1959).

No amendment where indictment invalid. - Because the indictment found by the grand jury stated no offense and was invalid, it necessarily follows the trial court had no power to amend the indictment. Wilder v. Commonwealth, 217 Va. 145 , 225 S.E.2d 411 (1976).

This section authorizes a trial court "to amend an indictment at any time before the verdict is returned or a finding of guilt is made, provided that the amendment does not change the nature or character of the offense charged." Davis v. Commonwealth, No. 2626-95-2 (Ct. of Appeals Apr. 1, 1997).

Amendment on day of trial. - The amendment of an indictment for robbery on the day of the trial has been declared proper. Owsley v. Cunningham, 190 F. Supp. 608 (E.D. Va. 1961).

Objection that indictment failed to negative exceptions waived. - Accused was indicted for the possession of a still and stilling material. To the indictment accused demurred on the ground that it did not negative the exceptions contained in the prohibition act. The demurrer was not interposed until after the jury had been impaneled and duly sworn to try the issue of fact. It was held that the point was waived by failure to interpose the demurrer in time. If there had been merit in the point, the indictment could and doubtless would have been amended under this section which authorizes amendments of indictments for misdemeanors which do not change the nature of the offense charged, at any time before judgment is entered. Gilreath v. Commonwealth, 136 Va. 709 , 118 S.E. 100 (1923).

Opportunity to plead anew. - Court of Appeals would not consider defendant's argument that he was entitled to "plead anew" after Commonwealth's amendment of indictments, since defendant at trial never requested opportunity to plead anew to amended indictments. Majette v. Commonwealth, No. 2307-98-2 (Ct. of Appeals Jan. 27, 2000).

Objection because of variance between allegation and proof cannot be raised for the first time on appeal. - The reason for such holding is that if the attention of the trial court had been called to the alleged variance, it could have been cured by an amendment to the indictment under this section. Booth v. Commonwealth, 165 Va. 794 , 183 S.E. 257 (1936).

If there shall appear to be any variance between the allegations therein and the evidence offered in proof thereof, the court may permit amendment of such indictment at any time before the jury returns a verdict or the court finds the accused guilty or not guilty, provided the amendment does not change the nature or character of the offense charged; any objection to deficiencies in arraignment on the amended indictment was not presented to the trial court and, therefore, is not before this court on appeal. Barnett v. Commonwealth, No. 2622-95-1 (Ct. of Appeals Sept. 24, 1996).

Where indictment was sufficient to sustain a conviction of abduction "with the intent to deprive such other person of his personal liberty," and Commonwealth introduced evidence to show that the abduction was with intent to defile and offered an instruction setting forth the punishment for that offense, failure of defendant to object to variance at time of offer of evidence and fact that only assignment of error was to the action of the trial court in failing to quash the indictment would preclude the Supreme Court from considering the question of variance on appeal. McKinley v. Commonwealth, 217 Va. 1 , 225 S.E.2d 352 (1976) (decided under former §§ 18.1-36, 18.1-37 and 18.1-38).

Objection to indictment. - Defendant waived any objection to the indictment by failing to raise the existence of a fatal variance between the indictment for criminal street gang recruitment and the evidence at trial prior to the court's verdict as required by this section. Gomez v. Commonwealth, 72 Va. App. 173, 843 S.E.2d 379, 2020 Va. App. LEXIS 167 (2020).

Surprise at trial is prejudice. - By directly linking the finding of "surprise" to an entitlement to a continuance, the Legislature declared that a surprise caused by amending an indictment at trial per se prejudices the accused. To alleviate that prejudice, a trial judge must grant the accused a continuance for a reasonable period of time. Crawford v. Commonwealth, 23 Va. App. 661, 479 S.E.2d 84 (1996).

Trial court did not err in refusing to grant continuance. - Although this section mandates that when an amendment operates as a surprise to the accused he shall be entitled, upon request, to a continuance of the case for a reasonable time, where attorney for the Commonwealth made clear to the defense as early as two months before trial, and at a pretrial conference, the nature and character of the charges and the theory upon which the commonwealth was proceeding, the court did not err in refusing to grant the motion for a continuance. Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990).

Trial court did not err in denying defendant a continuance after the Commonwealth was permitted to amend the indictment to cover an additional period of time, because defendant failed to prove that the amendment operated as a surprise or that defendant was prejudiced by the denial of the motion; defendant was aware of the evidence against defendant and made no showing of a specific need for time for additional investigation to prepare a defense. Ortiz v. Commonwealth, 276 Va. 705 , 667 S.E.2d 751, 2008 Va. LEXIS 122 (2008).

Trial court did not err in denying defendant's motion for a continuance after the Commonwealth amended an indictment to change name of owner of dwelling defendant burglarized; the amendment did not change defendant's theory of defense, he knew the company named in amendment bought the dwelling in a foreclosure sale a month before the burglary so there was no surprise, and as defendant failed to present evidence of a need for further investigation after the amendment, he failed to establish any prejudice caused by the amendment. Basim Dauwd Jami v. Commonwealth,, 2009 Va. App. LEXIS 102 (Mar. 10, 2009).

Trial court did not err in denying defendant's motion for a continuance because defendant failed to show that the amendment to the indictment operated as a surprise or that the denial of a continuance caused prejudice; all of the crimes charged, attempted rape, abduction with intent to defile, and misdemeanor assault and battery, took place at the same time and place, and involved related, sexual conduct against the victim, and the evidence defendant needed to defend against the charges would not have changed because of the amendment to the abduction charge. Gay v. Commonwealth,, 2011 Va. App. LEXIS 134 (Apr. 19, 2011).

Technical correction permitted after jury returns verdict. - There was no defect in form in the conspiracy indictments on which a defendant was tried nor was there any variance between the allegations listed and the evidence offered at trial where the indictments mistakenly classified the conspiracy charges as Class 6 felonies, rather than Class 5 felonies, and the fact that the indictments contained surplus language and were subject to a technical correction after the jury had returned its verdict did not render them defective and in need of a substantive amendment under this section to sustain their validity. Sloan v. Commonwealth, 35 Va. App. 240, 544 S.E.2d 375, 2001 Va. App. LEXIS 180 (2001).

"Under indictment." - Defendant intentionally and willfully provided false information on a firearm purchase form by checking a box indicating that she was not under indictment because she had been indicted for felony child abuse, entered a guilty plea, there was no formal adjudication of guilt, and she was on probation. She was neither convicted nor acquitted of child neglect when she filled out the firearm purchase form; therefore, she remained under indictment. Maldonado-Mejia v. Commonwealth, 287 Va. 49 , 752 S.E.2d 833, 2014 Va. LEXIS 6 (2014).

Applied in Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978); Chiang v. Commonwealth, 6 Va. App. 13, 365 S.E.2d 778 (1988); Thomas v. Commonwealth, 256 Va. 38 , 501 S.E.2d 391 (1998); Powell v. Commonwealth, 261 Va. 512 , 552 S.E.2d 344, 2001 Va. LEXIS 86 (2001); Herrington v. Commonwealth, 291 Va. 181 , 781 S.E.2d 561, 2016 Va. LEXIS 10 (2016).

II. CHARACTER OR NATURE OF OFFENSE.

Amendment changing nature of charge prohibited. - Under this section, an amendment to an original summons charging failure to yield the right-of-way, so as to charge reckless driving, was not possible since it would have changed the nature of the offense charged. Miles v. Commonwealth, 205 Va. 462 , 138 S.E.2d 22 (1964).

While, under this section, defective indictments may be amended, the trial court does not have the power to change by amendment the character of an offense as found by the grand jury. Puckett v. Commonwealth, 134 Va. 574 , 113 S.E. 853 (1922); Evans v. Commonwealth, 183 Va. 775 , 33 S.E. 636 (1945).

An indictment under former § 18.2-68 for seduction could not be amended by inserting the word "unmarried" before the word "female" as such would change the charge from misdemeanor to felony. Evans v. Commonwealth, 183 Va. 775 , 33 S.E. 636 (1945).

Amendment to include alternative theory of capital murder not permitted. - The pre-trial amendment of an indictment charging one theory of capital murder to include an alternative and additional theory of capital murder does not constitute an amendment contemplated by the provisions of this section to correct a variance between the allegation of the original indictment and the proof the Commonwealth expects to adduce at the subsequent trial; despite the liberal construction afforded to promote the remedial purpose of this section, because such an amended indictment materially changes the nature of the offense originally charged, it should not be permitted. Powell v. Commonwealth, 261 Va. 512 , 552 S.E.2d 344, 2001 Va. LEXIS 86 (2001).

Character of offense not changed. - Where an indictment erroneously charged that the accused was previously convicted for a violation of a certain section of the prohibition law, when, as a matter of fact, he was convicted for the violation of a different section, an amendment correcting the error does not change the character of the offense even though the effect of the amendment was to charge the accused with a second violation, the punishment for which was a felony. Kelley v. Commonwealth, 140 Va. 522 , 125 S.E. 437 (1924).

Where an indictment charged that accused "did unlawfully and feloniously store for sale ardent spirits," and also charged that the accused had previously been convicted of a violation of the same law, the allowance of an amendment striking out the words "and feloniously" did not change the character of the offense within the meaning of this section. Kelley v. Commonwealth, 140 Va. 522 , 125 S.E. 437 (1924).

Where accused was indicted for breaking and entering a motor sales company with intent to steal, etc., and the indictment was amended to charge breaking and entering the garage building belonging to the motor sales company, etc., the amendment did not change the offense charged but enlarged on the description and made the charge clearer. Robinson v. Commonwealth, 190 Va. 134 , 56 S.E.2d 367 (1949).

Trial counsel's failure to object to any defect in the indictment resulted in no prejudice to petitioner, where the defective language, if any, was subject to a curative amendment under this section and such amendment would not have changed the nature or character of the offense. Martin v. Warden, Va. State Penitentiary, 2 Va. App. 6, 341 S.E.2d 202 (1986).

Where the time period charged in the indictment was narrowed, the word "feloniously" was struck from the indictment, and the amount in question was amended, the amendments did not change the nature of the offense; they merely had the effect of reducing the charge from a felony to a misdemeanor. Hall v. Commonwealth, 2 Va. App. 159, 342 S.E.2d 640 (1986).

The amendment to defendant's burglary indictment, which added the aggravated circumstance of committing the felony while armed with a deadly weapon, did not change the nature or character of the offense. Hawkins v. Commonwealth, No. 0188-87-1 (Ct. of Appeals Jan. 3, 1989).

Where both an arrest warrant and a summons charged defendant with violating a city ordinance and § 18.2-266 , each of which is a misdemeanor, and the defendant was convicted on the summons and appealed, and on appeal, the circuit court granted the Commonwealth's motion to amend the summons to delete the reference to the city ordinance, this action was proper, as the amendment did not change the nature or character of the offense charged. Hill v. Commonwealth, No. 1240-91-4 (Ct. of Appeals Feb. 2, 1993).

In this case, defendant was charged with felony embezzlement both prior to and after the trial court amended the indictment by adding the phrase "such automobile having a value of $200.00 or more." Although the Commonwealth's amendment more clearly described the automobile allegedly embezzled by appellant, it did not change the nature or character of the offense charged. Davis v. Commonwealth, No. 2626-95-2 (Ct. of Appeals Apr. 1, 1997).

Where defendant could originally have been convicted of violating the statute in any of three ways, trial court's amendment which struck second clause of indictment as unconstitutional, did not change the nature or character of the offense. Wilson v. Commonwealth, 31 Va. App. 495, 525 S.E.2d 1 (2000).

Presentments issued by grand jury charging defendant with causing or creating a public nuisance and of permitting the continuation of a public nuisance were not fatally defective after the trial court amended the presentments to cover a one-year time period, which was the allotted time-period for prosecution of a misdemeanor, instead of the two-year time period that had been set forth; the trial court's amendment merely narrowed the time alleged in the presentments and did not change the nature of the offenses charged against defendant. Niazi v. Commonwealth, No. 2283-02-2, 2004 Va. App. LEXIS 102 (Ct. of Appeals Mar. 9, 2004).

Trial court did not err in allowing an amendment to a statutory burglary indictment, as the addition of an assault and battery mens rea to the original indictment changed one of its specific elements, but not its general nature or character. Hicks v. Commonwealth, No. 1421-03-3, 2004 Va. App. LEXIS 172 (Ct. of Appeals Apr. 13, 2004).

Indictments were properly amended to change the dates of the incidents under § 19.2-231 as the amendment did not change the nature or character of the offense charged; assuming that the amendments to an indictment were a surprise to defendant for purposes of Va. Const., Art. I, § 8, defendant was entitled to a continuance, which defendant refused. Haley v. Commonwealth, No. 0877-06-2, 2007 Va. App. LEXIS 402 (Ct. of Appeals Nov. 6, 2007).

Original indictment did not charge a non-offense where: (1) by its reference to § 18.2-308.2 , the indictment provided defendant with notice of the nature and character of the offense with which he was charged; (2) the amended indictment tracked the language of § 18.2-308.2 to charge that defendant carried in a concealed manner a dirk, bowie knife, switchblade knife, ballistic knife, machete, or razor or any weapon of like kind; (3) the nature of the charged offense was not changed; and (4) defendant did not claim surprise regarding the charged offense or request a continuance of the trial date. Thompson v. Commonwealth, 51 Va. App. 205, 656 S.E.2d 409, 2008 Va. App. LEXIS 59 (2008), rev'd, 277 Va. 280 , 673 S.E.2d 469 (2009) (as to whether butterfly knife was weapon of like kind).

Trial court did not err in allowing the amendment of indictment under § 19.2-231 , prior to arraignment, from charging indecent liberties with a child, to aggravated sexual battery, because the underlying conduct of both charges was essentially the same, and the purpose and subject matter of each charge were similar. Pulliam v. Commonwealth, 55 Va. App. 710, 688 S.E.2d 910, 2010 Va. App. LEXIS 73 (2010).

Amendment to an indictment was proper where the offense with which defendant was charged was plainly described in the body of the indictment as possession of cocaine while a prisoner and where the amendment of the statutory provision cited at the foot of the indictment did not change that description and, thus, did not affect the nature or character of the offense charged. Mosby v. Commonwealth, No. 2990-08-3, 2010 Va. App. LEXIS 120 (Ct. of Appeals Mar. 30, 2010).

Pursuant to § 19.2-231 , the trial court properly allowed the prosecution, after trial began, to amend a charge of rape ( § 18.2-61 ) to object sexual penetration ( § 18.2-67.2 ), because the amendment did not change the nature or character of the underlying conduct, penetrating victim's vagina against her will by force, only the object used to accomplish the penetration. Jackson v. Commonwealth,, 2012 Va. App. LEXIS 224 (July 10, 2012).

Amendment of indictment was appropriate because the amended indictment alleging petit larceny third offense merely altered the punishment as compared to a petit larceny first offense and precisely the same conduct on the part of the accused was charged in the amended as in the original indictment. Moreover, defendant had effectively a five-month continuance, and did not request a continuance, after the amendment. Charles v. Commonwealth, 63 Va. App. 289, 756 S.E.2d 917, 2014 Va. App. LEXIS 151 (2014).

Trial court did not err when it granted the Commonwealth's motion to amend four indictments from obtaining signatures by false pretenses to obtaining money by false pretenses because those amendments did not actually change the nature or character of the offenses. Under either theory of prosecution, the overt acts alleged were defendant's repeated false representations to her employer regarding her patient shopping activities. Tomlin v. Commonwealth, No. 1946-15-2, 2017 Va. App. LEXIS 79 (Mar. 14, 2017).

Because the custodial indecent liberties statute had a similarity of purpose and subject matter as the carnal knowledge statute, both indictments charged defendant with sexually abusing a minor victim, the evidence necessary to prove criminal conduct under both statutes was identical, and the evidence revealed that, on more than one occasion, defendant put the victim's penis in his mouth, the amendment to the indictment did not change the nature or character of the offense charged, and the trial court properly permitted the Commonwealth to amend the indictment of carnal knowledge to custodial indecent liberties. Jones v. Commonwealth, No. 1151-19-2, 2020 Va. App. LEXIS 164 (June 2, 2020).

No error in amendment which substituted § 18.2-257 for § 18.2-26 . - Where prior to trial, the trial court granted the Commonwealth's motion to amend second count of indictment, and where the nature of the amendment changed the attempt statute on which the Commonwealth was relying from § 18.2-26 , the general attempt statute, to § 18.2-257 , which covers attempts to violate the Drug Control Act, the trial court did not err in granting the Commonwealth's motion to amend the indictment against defendant. The amendment did not change the nature or character of the offense charged; it merely substituted reference to § 18.2-257, the specific provision covering attempts to commit drug offenses, for § 18.2-26, the general provision covering attempts to commit general, non-capital felonies. Robinson v. Commonwealth, No. 1840-90-1 (Ct. of Appeals July 21, 1992).

Amendment providing for greater punishment. - That an amendment to an indictment allowed under this section authorizes a greater punishment than that authorized for the offense charged in the original indictment does not of itself change the character of the offense charged. Sullivan v. Commonwealth, 157 Va. 867 , 161 S.E. 297 (1931).

Amendment to an indictment, charging defendant with being the principal, or a principal administrator, organizer, or leader of a continuing criminal enterprise engaged, during a one-year period, in the distribution of at least five kilograms of a mixture containing cocaine base, which served only to change punishment by increasing amount of cocaine base possessed by defendant, and did not add a new charge or otherwise change the nature or character of the offense charged was permissible under § 19.2-231 . Dunaway v. Commonwealth, 52 Va. App. 281, 663 S.E.2d 117, 2008 Va. App. LEXIS 326 (2008).

Section authorizes amendment of date of crime. - An indictment originally alleged that the perjury was committed on September 20th, while the proof tended to show that it was committed on September 19th. It was held that an amendment was clearly authorized by this section. Robinson v. Commonwealth, 165 Va. 876 , 183 S.E. 254 (1936).

Date alleged in indictment. - Defendant made no showing that some grave injustice or the denial of essential rights occurred to justify application of the "good cause" and "ends of justice" exceptions to Va. Sup. Ct. R. 5A:18 where, had defendant challenged the sufficiency of the evidence of his possession of burglary tools on the date they were found, the Commonwealth could have sought an amendment of the indictment. Jarvis v. Commonwealth,, 2005 Va. App. LEXIS 415 (Oct. 18, 2005).

How omission of date of offense corrected. - There was no demurrer or other objection to the indictment until after a verdict of conviction, which was abundantly supported by the testimony. If objection had been raised because of the omission of the date of the offense, it could have been corrected at the bar by the prosecuting attorney on mere motion under this section, but such motion is barred after verdict by § 19.2-227 . Flanary v. Commonwealth, 133 Va. 665 , 112 S.E. 604 (1922). See Salyer v. Commonwealth, 165 Va. 744 , 181 S.E. 435 (1935).

Failure to allege time of offense no ground for setting aside verdict. - Failure to allege in an indictment the time of the offense, even in a case in which time was essential, was not, in view of this section, a ground for setting aside the verdict where no objection was timely made to the indictment. Puckett v. Commonwealth, 134 Va. 574 , 113 S.E. 853 (1922).

The accused waived his right to object to murder indictment for failure to allege any date on which the offense charged was committed, by not objecting before pleading, though such would not have been the case prior to this section providing for amendment of indictment before defendant pleads. Puckett v. Commonwealth, 134 Va. 574 , 113 S.E. 853 (1922).

Nor is failure to allege that act was committed feloniously. - An indictment for receiving stolen goods omitted to allege that the accused "feloniously" committed the act. The demurrer to the indictment did not specify the grounds upon which it was based. If it had done so, and had pointed out this objection, the trial court could, and would, have directed an amendment of the indictment pursuant to the provisions of this section. Jolly v. Commonwealth, 136 Va. 756 , 118 S.E. 109 (1923).

How indictment for felony and misdemeanor amended when only misdemeanor proved. - When under an indictment charging both a misdemeanor and a felony, it was clear that the proof only supported a charge of misdemeanor, aggravated by the fact of a prior conviction, the court should have amended that part of the indictment alleging prior conviction to conform to the proof, pursuant to this section, and proceeded with the trial upon the amended indictment as if it had charged a misdemeanor only in the beginning. Keeney v. Commonwealth, 147 Va. 678 , 137 S.E. 478 (1927).

Amendment of indictment which includes various intents improperly drafted in the disjunctive is permitted under this section. Wilson v. Commonwealth, 31 Va. App. 495, 525 S.E.2d 1 (2000).

Therefore, the fact that the grand jury may have indicted the accused for having acted with one intent did not preclude his conviction for violating the statute with a different intent, also included in the indictment. Wilson v. Commonwealth, 31 Va. App. 495, 525 S.E.2d 1 (2000).

Amending the indictment to change the intent. - Trial court did not err by amending the indictment, which charged breaking and entering with the intent to commit destruction of property, by adding the phrase "or indecent exposure" where: (1) the amendment permitted the Commonwealth to satisfy its burden of proof with either of two specific alternatives; (2) the modification of the original indictment did not change the general nature or character of the crime charged; (3) only the intent changed, and as amended the indictment still charged a misdemeanor of the same general nature or class; (4) the amendment did not surprise defendant because the original indictment included a count that charged indecent exposure; (5) the amendment did not prejudice defendant because the trial court continued the case after making the amendment; and (6) the trial court convicted defendant of the charge as originally stated. Esquibele v. Commonwealth, No. 2500-03-4, 2004 Va. App. LEXIS 586 (Ct. of Appeals Nov. 30, 2004).

Amendment charging second offense not error. - Where the accused was indicted for transporting and having for sale ardent spirits, and the indictment charged that "the transportation" was the second offense, it was not error to allow an amendment by substituting the word "acts" for the word "transportation" and by inserting after the words "a second offense," the words "under this statute." The stricken words might be treated as surplusage. Staples v. Commonwealth, 140 Va. 583 , 125 S.E. 319 (1924).

Variance of name between allegation and proof not reversible error. - Where there was a variance between the given name of the person killed in the indictment and the proof, but the case proceeded upon the idea that they were one and the same person under this section, the point is purely technical and not ground for reversal. Brown v. Commonwealth, 138 Va. 807 , 122 S.E. 421 (1924).

Amendment of victim's name. - Change in the name of victim did not create a new offense nor did it change the nature or character of the offense for which appellant was indicted, therefore, trial court did not err when it permitted indictment to be amended to indicate the name of a victim who was present at the same time and place as the person originally named as the victim in the indictment. Phan v. Commonwealth, 18 Va. App. 360, 444 S.E.2d 9 (1994).

No error in permitting sexual offense amendment. - Amendment of the indictment, which occurred nearly three months before trial, did not change the nature or character of the offense with which appellant was charged. The amendment affected only the manner in which the aggravated sexual battery was committed - from defendant touching the child to forcing the child to touch him - and appellant remained charged with the same crime committed against the same victim during the same period of time. He had ample opportunity to prepare a defense to the amended charge. Thus, the trial judge did not err in permitting the amendment, and in denying appellant's motion to dismiss the indictment. Atorick v. Commonwealth, No. 2934-95-4 (Ct. of Appeals July 8, 1997).

Amendment of indictment proper. - Circuit court did not err by allowing the Commonwealth to amend an indictment that charged defendant with the forgery of a public record to an indictment charging him with obtaining property by false pretenses because the amendment did not change the nature and character of the offense charged; the charges under both the original and amended indictment were based on the same conduct, defendant's misrepresentation on a building permit application. Cummings v. Commonwealth, No. 1891-14-1, 2015 Va. App. LEXIS 325 (Nov. 10, 2015).

CIRCUIT COURT OPINIONS

Enforcement of guilty plea after amendment of indictment. - Defendant's motion to enforce an oral plea agreement was denied because he subsequently voluntarily agreed to amend the indictment, from distribution of imitation cocaine to distribution of cocaine, thus creating a new charge and thus invalidating and waiving the original plea agreement to distribution of imitation cocaine. Commonwealth v. Carter, 64 Va. Cir. 224, 2004 Va. Cir. LEXIS 183 (Norfolk 2004).

Article 4. Process.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 12, 45; 19 M.J. Warrants, § 2.

§ 19.2-232. What process to be awarded against accused on indictment, etc.

When an indictment or presentment is found or made, or information filed, the court, or the judge thereof, shall award process against the accused to answer the same, if he be not in custody. Such process, if the prosecution be for a felony, shall be a capias; if it be for a misdemeanor, for which imprisonment may be imposed, it may be a capias or summons, in the discretion of the court or judge; in all other cases, it shall be, in the first instance a summons, but if a summons be returned executed and the defendant does not appear, or be returned not found, the court or judge may award a capias. The officer serving the summons or capias shall also serve a copy of the indictment, presentment, or information therewith.

If the accused is in custody when an indictment or presentment is found or made, or information is filed, and no process is awarded, the attorney for the Commonwealth shall so notify the court of such at the time of first appearance for each indictment, presentment, or information for which a report is required upon arrest pursuant to subsection A of § 19.2-390 , and the court shall order that the fingerprints and photograph of the accused be taken for each offense by a law-enforcement officer or by the agency that has custody of the accused at the time of first appearance. The law-enforcement officer or agency taking the fingerprints and photograph shall submit a report to the Central Criminal Records Exchange for each offense pursuant to subsection A of § 19.2-390 .

(Code 1950, § 19.1-178; 1960, c. 366; 1975, c. 495; 1980, c. 349; 2019, cc. 782, 783.)

Cross references. - As to when capias need not be filed, but a summons issued, see § 19.2-219 .

As to where process of arrest issued during term may be executed, see § 19.2-236 .

As to process on indictment or presentment for misdemeanor, see § 19.2-237 .

The 2019 amendments. - The 2019 amendments by cc. 782 and 783 are identical, and added the second paragraph; and made stylistic changes.

Law review. - For comment, "Immunity from Service of Nonresident Criminal Defendants," see 20 Wash. & Lee L. Rev. 375 (1963).

CASE NOTES

For history of this section, see Jones v. Commonwealth, 86 Va. 661 , 10 S.E. 1005 (1890).

Every state may control the remedies furnished in her courts, and may at any time change the forms of procedure therein, and the laws in force in that respect at time of trial must prevail. Jones v. Commonwealth, 86 Va. 661 , 10 S.E. 1005 (1890); Wilson v. Commonwealth, 86 Va. 666 , 10 S.E. 1007 (1890).

Preliminary examination not required. - By this section an examination by a justice of the peace is not required, and the accused need not have such preliminary examination. Jones v. Commonwealth, 86 Va. 661 , 10 S.E. 1005 (1890).

A warrant of arrest is unnecessary when the accused is in custody when the indictment is found. Waller v. Commonwealth, 84 Va. 492 , 5 S.E. 364 (1888).

§ 19.2-233. How awarded, directed, returnable and executed.

Sections 8.01-292 and 8.01-295 shall apply to process in criminal, as well as in civil cases; and the court may, in the same case against the same person, award at the same time, or different times, several writs of summons or capias directed to officers of different counties or cities. An officer having a capias under which the accused is let to bail shall give a certificate of the fact, which shall protect him against any other capias which may have been issued for the same offense. A summons shall be served by delivering a copy thereof to the party in person and the clerk issuing such summons shall deliver or transmit therewith as many copies thereof as there are persons named therein on whom it is to be served.

(Code 1950, § 19.1-179; 1960, c. 366; 1975, c. 495.)

§ 19.2-234. Procedure when person arrested under capias.

An officer who, under a capias from any court, arrests a person accused of an offense shall proceed in accordance with § 19.2-80 and Article 1 (§ 19.2-119 et seq.) of Chapter 9 of Title 19.2 regarding bail.

(Code 1950, § 19.1-183; 1960, c. 366; 1975, c. 495; 1986, c. 327.)

§ 19.2-235. Clerks to mail process to officers in other counties, etc.

The clerk of every court shall forward, by mail, all process issued for the Commonwealth, directed to the officer of any county or city other than his own.

(Code 1950, § 19.1-181; 1960, c. 366; 1975, c. 495.)

Cross references. - As to effect on proceedings when corporation fails to appear in answer to process, see § 19.2-238 .

CASE NOTES

Section is constitutional. - The constitutional guarantee that the accused in all criminal prosecutions has the right to be confronted with the witnesses against him, etc., is not violated by this section. Shiflett v. Commonwealth, 90 Va. 386 , 18 S.E. 838 (1894).

It displaces the rule of the common law that judgment for corporal punishment can be pronounced against a man only when he is personally present. Shiflett v. Commonwealth, 90 Va. 386 , 18 S.E. 838 (1894).

Defendant has duty to appear in person. - Authority, conferred by this section, to try a misdemeanor charge in the absence of the accused is not a right given him; it is a privilege accorded only to the court. It does not relax the defendant's obligation to appear in obedience to the mandate of the summons. Nor does this section abridge the power of the court to require his submission in person to its jurisdiction - perhaps to answer its judgment. Souther v. Reid, 101 F. Supp. 806 (E.D. Va. 1951).

§ 19.2-236. Where process of arrest may be executed.

When process of arrest in a criminal prosecution is issued from a court, either against a party accused or a witness, the officer to whom it is directed or delivered may execute it in any part of the Commonwealth.

(Code 1950, § 19.1-182; 1960, c. 366; 1975, c. 495.)

§ 19.2-237. Process on indictment or presentment for misdemeanor.

On any indictment or presentment for a misdemeanor process shall be issued immediately. If the accused appear and plead to the charge, the trial shall proceed without delay, unless good cause for continuance be shown. If, in any misdemeanor case the accused fails to appear and plead, when required the court may either award a capias or proceed to trial in the same manner as if the accused had appeared, plead not guilty and waived trial by jury, provided, that the court shall not in any such case enforce a jail sentence.

(Code 1950, §§ 19.1-180, 19.1-184; 1960, c. 366; 1975, c. 495; 1979, c. 468.)

Cross references. - As to right of court to award at same time several writs of summons or capias directed to officers of different counties, see § 19.2-233 .

As to when felony cases shall be tried, see §§ 19.2-241 , 19.2-243 .

Law review. - For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 25, 29, 30, 34, 39, 45; 12A M.J. Lotteries, § 6; 19 M.J. Warrants, § 2.

CASE NOTES

Section is constitutional. - The constitutional guarantee that the accused in all criminal prosecutions has the right to be confronted with the witnesses against him, etc., is not violated by this section. Shiflett v. Commonwealth, 90 Va. 386 , 18 S.E. 838 (1894).

The requirements of this section are met where an accused has voluntarily waived his right to be present at trial but was present at the hearing where sentence was imposed. Hohman v. Commonwealth, No. 0815-95-4 (Ct. of Appeals Dec. 31, 1996).

Under this section, no arraignment or plea of the accused is necessary in a misdemeanor case. Bare v. Commonwealth, 122 Va. 783 , 94 S.E. 168 (1917); Foy v. Commonwealth, 132 Va. 671 , 111 S.E. 269 (1922).

If the accused in a prosecution for a misdemeanor, is absent, no arraignment can be made because of his absence, but nevertheless the court may proceed to trial just as if he had appeared and pleaded not guilty. If he is present when his case is called, he should plead, if he desires to make defense, and if he goes to trial without pleading, he thereby waives his right to do so. Bare v. Commonwealth, 122 Va. 783 , 94 S.E. 168 (1917).

No plea is necessary in a misdemeanor case. However, in such a case an accused may plead as he has been advised, demur or move to quash, he may plead to the jurisdiction or he may plead guilty. He may plead former jeopardy and not guilty, or he may stand mute. If, upon his trial for a misdemeanor, he be present when his case is called, he should plead such defenses as he deems proper, and if he goes to trial without a specific plea, he thereby waives his right to make that plea thereafter, and cannot thereafter take advantage of his failure. Royals v. City of Hampton, 201 Va. 552 , 111 S.E.2d 795 (1960).

Presence of accused not necessary. - A prisoner indicted under § 18.2-415 for a disturbance of religious worship, who was duly summoned but failed to appear, may be tried in his absence without the award of a capias for his arrest. Shiflett v. Commonwealth, 90 Va. 386 , 18 S.E. 838 (1894).

Continuance. - Upon indictment for carrying on a lottery business, when accused "appears and pleads to the charge" and moves for a continuance, it is not error to deny the motion. Lawrence v. Commonwealth, 86 Va. 573 , 10 S.E. 840 (1890).

Forfeiture of rights found. - Appellant, by his conduct of knowingly and voluntarily failing to appear for his trial, forfeited both his constitutional rights of confrontation and due process and his statutory rights under this section. Hohman v. Commonwealth, No. 0815-95-4 (Ct. of Appeals Dec. 31, 1996).

The proper method of raising the question of former jeopardy is by special plea of former acquittal or conviction. Royals v. City of Hampton, 201 Va. 552 , 111 S.E.2d 795 (1960).

Admissibility of warrants. - Certified criminal warrants reflecting defendant's misdemeanor convictions for assault of a family member were properly admitted at defendant's trial for felony assault of a family member, despite any failure of the warrants to reflect whether defendant was present at the time of the prior convictions because (1) nothing showed defendant was not present, and (2) it was presumed defendant was not sentenced in absentia, contrary to § 19.2-237 . Farmer v. Commonwealth, 62 Va. App. 285, 746 S.E.2d 504, 2013 Va. App. LEXIS 229 (2013).

Applied in Head v. Commonwealth, 3 Va. App. 163, 348 S.E.2d 423 (1986).

§ 19.2-238. Summons against corporation; proceedings; expense of publication.

A summons against a corporation to answer an indictment, presentment or information may be served as provided in §§ 8.01-299 through 8.01-301 ; and if the defendant after being so served fail to appear, the court may proceed to trial and judgment, without further process, as if the defendant had appeared, plead not guilty and waived trial by jury. And when, in any such case, publication of a copy of the process is required according to such sections, the expense of such publication may be certified by the court to the Comptroller, and shall be paid out of the state treasury; but the same shall be taxed with other costs and collected from the defendant, if judgment be for the Commonwealth, and be paid into the state treasury by the officer collecting the same.

(Code 1950, § 19.1-186; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Indictments, Informations and Presentments, § 5.

Chapter 15. Trial and Its Incidents.

Jurisdiction.

Venue.

Arraignment; Pleas; Trial Without Jury.

Trial by Jury.

Trial of Capital Cases.

Discovery.

Miscellaneous Provisions.

Article 1. Jurisdiction.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1. Courts. § 1.04 Circuit Courts, et seq. Friend.

§ 19.2-239. Jurisdiction in criminal cases.

The circuit courts, except where otherwise provided, shall have exclusive original jurisdiction for the trial of all presentments, indictments and informations for offenses committed within their respective circuits.

(Code 1950, § 19.1-187; 1960, c. 366; 1975, c. 495.)

Law review. - For note, "Jettisoning 'Jurisdictional': Asserting the Substantive Nature of Supremacy Clause Immunity," see 103 Va. L. Rev. 107 (2017).

Michie's Jurisprudence. - For related discussion, see 4A M.J. Continuances, § 19; 5A M.J. Courts, § 39.

CASE NOTES

Generally, charges may be tried only in the circuit courts having territorial jurisdiction over the locations where the crimes occurred and in which venue is laid. Foster-Zahid v. Commonwealth, 23 Va. App. 430, 477 S.E.2d 759 (1996).

Claim involved territorial jurisdiction rather than venue. - Where defendant claimed that the circuit court lacked jurisdiction to try defendant because the Commonwealth failed to prove that defendant's offense occurred within the territorial jurisdiction of the circuit court where defendant was tried, defendant's claim pertained to territorial jurisdiction, rather than venue. Gordon v. Commonwealth, 38 Va. App. 818, 568 S.E.2d 452, 2002 Va. App. LEXIS 521 (2002).

Claim of lack of territorial jurisdiction was waived. - Where defendant did not dispute that defendant's alleged drug offense occurred in Virginia, but merely claimed that the Commonwealth failed to prove that the offense occurred in the specific territorial jurisdiction where defendant had been tried and convicted, defendant's claim, like that based on improper venue, was waived because defendant's objection to the circuit court's territorial jurisdiction was untimely. Gordon v. Commonwealth, 38 Va. App. 818, 568 S.E.2d 452, 2002 Va. App. LEXIS 521 (2002).

Territorial jurisdiction distinguished from subject matter jurisdiction. - Unlike the subject matter jurisdiction described in § 17.1-513 , which may not be waived, the jurisdiction described in § 19.2-239 refers to a circuit court's authority over persons, things, or occurrences located in a defined geographic area, which is properly categorized as "territorial jurisdiction" and may be waived by failing to timely raise the issue. Gordon v. Commonwealth, 38 Va. App. 818, 568 S.E.2d 452, 2002 Va. App. LEXIS 521 (2002).

Transfers between circuit courts implicated territorial jurisdiction but not subject matter jurisdiction. - Transfer of defendant's criminal trial from Norfolk (Virginia) (the place of the offense), to Arlington (Virginia) and the subsequent transfer back to Norfolk after the jury verdicts did not implicate subject matter jurisdiction since both the Arlington and Norfolk circuit courts had subject matter jurisdiction over defendant's charges under § 17.1-513 . The only question was whether a violation of § 19.2-239 occurred when the Arlington circuit court conducted the trial; this issue went solely to the circuit court's lack of authority to exercise territorial jurisdiction and was waived by defendant's failure to timely object. Porter v. Commonwealth, 276 Va. 203 , 661 S.E.2d 415, 2008 Va. LEXIS 78 (2008), cert. denied, 129 S. Ct. 1999, 173 L. Ed. 2d 1097, 2009 U.S. LEXIS 3047 (U.S. 2009).

Jurisdiction may exist where the immediate harm occurs, even if the criminal act does not physically occur there. Foster-Zahid v. Commonwealth, 23 Va. App. 430, 477 S.E.2d 759 (1996).

Nolo contendere plea. - By pleading nolo contendere, defendant, in essence, admitted as true each factual allegation set forth in the indictment, including the fact that the offense occurred in the Commonwealth. Jones v. Commonwealth, 42 Va. App. 142, 590 S.E.2d 572, 2004 Va. App. LEXIS 2 (2004).

Effect of plea agreement. - Acceptance of defendant's plea agreement, which provided that the trial court would impose sentence on two counts of aggravated sexual battery and would withhold decision on the other two counts, did not divest the trial court of its jurisdiction to adjudicate the charges. Holden v. Commonwealth, 26 Va. App. 403, 494 S.E.2d 892 (1998).

The trial court had jurisdiction over a prosecution for embezzlement where the defendant took a guitar amplifier belonging to the victim with him when he moved from Virginia to West Virginia and then used it as collateral for a loan he secured from a pawn shop in West Virginia, as the crime commenced when the defendant appropriated the amplifier to his own use and removed it, without authorization, to West Virginia. Bescher v. Commonwealth, No. 1489-97-4 (Ct. of Appeals April 14, 1998).

Jurisdiction proven. - In a murder case, the trial court had territorial jurisdiction under §§ 19.2-239 and 17.1-513 because the facts and circumstances proved that the killing occurred in Richmond, Virginia. The undisputed evidence showed that the stabbing occurred at a rooming house in Richmond, Virginia; diagrams of the residence indicated that it was in Richmond; Richmond police and a Richmond prosecutor investigated the case; physical evidence was analyzed in Richmond; and defendant's arrest warrant had a Richmond address. Dixon v. Commonwealth,, 2006 Va. App. LEXIS 165 (May 2, 2006).

Trial court did not err in convicting defendant of attempted murder because the trial court was not deprived of subject matter jurisdiction when it failed to arraign defendant on the charge when defendant was fully aware of the attempted murder charge and was in no way prejudiced by the omission of a formal arraignment; defendant's continued silence in the face of repeated references to the attempted murder charge was tantamount to a waiver of his right to be arraigned and to enter a not guilty plea, and having failed to raise any objection, defendant waived any defect. Simmons v. Commonwealth, 54 Va. App. 594, 681 S.E.2d 56, 2009 Va. App. LEXIS 367 (2009).

Because defendant admitted that the events in question occurred at the apartment of the victim's grandmother, and because the grandmother and defendant's girlfriend testified that the apartment was in a locality in Virginia, the evidence was sufficient to establish the trial court's subject matter jurisdiction under §§ 19.2-239 and 17.1-513 . Torres v. Commonwealth,, 2010 Va. App. LEXIS 420 (Nov. 2, 2010).

Trial court properly tried defendant's trial for the alleged rape of defendant's mentally disabled daughter because the court reasonably concluded that the crime occurred in the private confines of the family home in the county of the trial court where defendant spent several hours alone with defendant's daughters on at least three evenings each week during the month when the pregnancy of the daughter occurred. Romero v. Commonwealth,, 2014 Va. App. LEXIS 114 (Mar. 25, 2014).

Applied in Owusu v. Commonwealth, 11 Va. App. 671, 401 S.E.2d 431 (1991); Curtis v. Commonwealth, 13 Va. App. 622, 414 S.E.2d 421 (1992); Penn v. Commonwealth, 32 Va. App. 422, 528 S.E.2d 179, 2000 Va. App. LEXIS 329 (2000); Thomas v. Commonwealth, 36 Va. App. 326, 549 S.E.2d 648, 2001 Va. App. LEXIS 448 (2001); Morris v. Commonwealth, 51 Va. App. 459, 658 S.E.2d 708, 2008 Va. App. LEXIS 170 (2008).

§ 19.2-240. Clerks shall make out criminal docket; transportation orders.

Before every term of any court in which criminal cases are to be tried the clerk of the court shall make out a separate docket of criminal cases then pending, in the following order, numbering the same:

  1. Felony cases;
  2. Misdemeanor cases.

    He shall docket all felony cases in the order in which the indictments are found and all misdemeanor cases in the order in which the presentments or indictments are found or informations are filed or appeals are allowed by magistrates and as soon as any presentments or indictments are made at a term of court he shall forthwith docket the same in the order required above. Upon request of, and receipt of all necessary information from, the attorney for the Commonwealth or counsel for the defendant, the court shall issue all necessary transportation orders for the transport of any defendant incarcerated in a state or local correctional facility to the court. If authorized by the court and upon receipt of all necessary information from the attorney for the Commonwealth or counsel for the defendant, the clerk or deputy clerk may issue these orders on behalf of the court.

    Traffic infractions shall be docketed with misdemeanor cases.

    Cases appealed from the juvenile and domestic relations district court shall not be placed on the criminal docket except for cases involving criminal offenses committed by adults as provided in § 16.1-302. Cases transferred to a circuit court from a juvenile and domestic relations district court pursuant to Article 7 (§ 16.1-269.1 et seq.) of Chapter 11 of Title 16.1 shall be docketed as provided in this section upon return of a true bill of indictment by the grand jury.

    (Code 1950, § 19.1-189; 1960, c. 366; 1975, c. 495; 1977, c. 585; 1990, c. 258; 1994, cc. 859, 949; 2017, c. 479.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2017 amendments. - The 2017 amendment by c. 479 added the last two sentences in the second full paragraph.

Michie's Jurisprudence. - For related discussion, see 5A M.J. Courts, § 10; 5B M.J. Criminal Procedure, §§ 25, 39.

§ 19.2-241. Time within which court to set criminal cases for trial.

The judge of each circuit court shall fix a day of his court when the trial of criminal cases will commence, and may make such general or special order in reference thereto, and to the summoning of witnesses, as may seem proper, but all criminal cases shall be disposed of before civil cases, unless the court shall direct otherwise.

When an indictment is found against a person for felony or when an appeal has been perfected from the conviction of a misdemeanor or traffic infraction, the accused, if in custody, or if he appear according to his recognizance, may be tried at the same term and shall be tried within the time limits fixed in § 19.2-243 ; provided that no trial shall be held on the first day of the term unless it be with consent of the attorney for the Commonwealth and the accused and his attorney.

(Code 1950, §§ 19.1-188 through 19.1-190; 1960, c. 366; 1972, c. 705; 1975, c. 495; 1977, c. 585; 1978, c. 410.)

Cross references. - As to continuance when indictment or presentment is amended, see § 19.2-231 .

As to time of trial for misdemeanors, see § 19.2-237 .

As to continuance when warrant for misdemeanor is amended or new warrant is issued, see § 16.1-137.

As to continuance where member or officer of General Assembly in session is involved, see § 30-5.

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

Michie's Jurisprudence. - For related discussion, see 4A M.J. Continuances, § 19; 4C M.J. Constitutional Law, § 86; 5B M.J. Criminal Procedure, §§ 25, 39.

CASE NOTES

The purpose of this section is to secure to the accused the speedy trial guaranteed by the Constitution, and to further the policy of the law to expedite the trial of criminal cases. Either the Commonwealth or the accused, moving for a continuance, must show good cause. Benton v. Commonwealth, 90 Va. 328 , 18 S.E. 282 (1893); Thompson v. Commonwealth, 131 Va. 847 , 109 S.E. 447 (1921).

While in the orderly administration of justice some delay is unavoidable and some is essential to due process, courts must inquire into the reasons for the delay. Stephens v. Commonwealth, 225 Va. 224 , 301 S.E.2d 22 (1983).

The burden is on the prosecution to prove excusable delay. Stephens v. Commonwealth, 225 Va. 224 , 301 S.E.2d 22 (1983).

The protections granted under this section and § 19.2-243 are not self-operative and may be claimed or waived. Stephens v. Commonwealth, 225 Va. 224 , 301 S.E.2d 22 (1983).

This section is directory merely, it being not otherwise intended for the benefit of the accused than as a means of insuring a speedy trial. Wash v. Commonwealth, 57 Va. (16 Gratt.) 530 (1861); Hall v. Commonwealth, 89 Va. 171 , 15 S.E. 517 (1893); Benton v. Commonwealth, 90 Va. 328 , 18 S.E. 282 (1893).

Order in which cases tried is in discretion of court. - The order in which cases on the docket shall be tried rests in the sound discretion of the court, and this section specifically authorizes the court to make such special orders in reference thereto as may seem proper. Jones v. Commonwealth, 135 Va. 545 , 115 S.E. 572 (1923).

And setting of trial date is under supervision of court. - This provision contemplates an orderly procedure for setting criminal cases and expressly places the control of that process under the supervision of the trial court, not a party litigant. Williams v. Commonwealth, 2 Va. App. 566, 347 S.E.2d 146 (1986).

What is "good cause" is in discretion of trial court. - Under this section, whether good cause is shown upon a motion for a continuance is a question which rests largely in the discretion of the trial court, and, while the exercise of such discretion is reviewable, the judgment of the trial court in that respect will not be reversed unless plainly erroneous. Lufty v. Commonwealth, 126 Va. 707 , 100 S.E. 829 (1919).

But such discretion may not be arbitrarily exercised to grant the Commonwealth a continuance, without good cause, when the prisoner demands trial. Benton v. Commonwealth, 90 Va. 328 , 18 S.E. 282 (1893).

Prejudice against accused is not good cause for continuance. - Affidavits of the prevalence of bitter and general prejudice against the accused do not of themselves constitute good ground for a continuance. Joyce v. Commonwealth, 78 Va. 287 (1884).

Where there was adequate inquiry into the possible prejudicial effect news coverage may have had on the jury at a defendant's trial, and where, in the second trial of the defendant, after he had been convicted in his previous trial, the jurors were examined thoroughly on voir dire to guard against the possibility of unfair publicity affecting their verdict, and where such safeguards were diligently undertaken, it cannot be said that the trial judge committed constitutional error or even abused his discretion in disallowing the defendant's motion for a continuance and proceeding with the trial as provided for in this section. A contrary rule would endanger the defendant's right to a speedy trial and such delays in criminal proceedings are not to be invoked lightly. Couser v. Cox, 324 F. Supp. 1140 (W.D. Va. 1971).

Nor is want of time for counsel to consult authorities. - Under this section, the indictment and trial of a prisoner for rape forty-eight hours after the alleged commission of the crime is left to the sound discretion of the trial judge. Want of time for counsel for the defendant to consult authorities on the law of the case is not sufficient ground to support a motion for a continuance. Wright v. Commonwealth, 114 Va. 872 , 77 S.E. 503 (1913).

Nor is temporary incompetency of witness for Commonwealth. - See Benton v. Commonwealth, 90 Va. 328 , 18 S.E. 282 (1893).

Motion for continuance may be made before arraignment. - It is competent for the prisoner to move for a continuance before his formal arraignment. Joyce v. Commonwealth, 78 Va. 287 (1884).

On indictment for capital felony it was held error not to entertain a motion for continuance before arraignment. Anderson v. Commonwealth, 84 Va. 77 , 3 S.E. 803 (1887).

Commonwealth did not act in bad faith. - Defendant's right to a speedy trial was not violated because even though the Commonwealth's discovery failures necessitated a court-ordered continuance, since the trial court ruled it did not act in bad faith, the continuance could not be imputed to the Commonwealth; the trial court expressly ruled that the Commonwealth did not act in bad faith, because that determination had not been contested, it was the law of the case. Young v. Commonwealth, No. 0265-17-4, 2018 Va. App. LEXIS 73 (Mar. 20, 2018), aff'd Young v. Commonwealth, 297 Va. 443 , 829 S.E.2d 548, 2019 Va. LEXIS 78 (2019).

It is not error to pass over a term in granting a continuance, on the prisoner's motion. Bolanz v. Commonwealth, 65 Va. (24 Gratt.) 31 (1873).

Tolling of speedy trial period. - Statutory speedy trial period was tolled beginning February 8, 2008, under the exception in § 19.2-243 that provides for tolling in the event of a continuance requested by defendant, by joint motion, or by the Commonwealth without objection by defendant. Since defendant did not object to the continuances imposed, the continuances tolled the statutory speedy trial period, and this tolling lasted until July 10, 2009, the date on which the circuit court found defendant competent to stand trial, which was three days before trial. Brown v. Commonwealth, 57 Va. App. 381, 702 S.E.2d 582, 2010 Va. App. LEXIS 490 (2010).

Defendant's speedy trial rights were not violated because defendant failed to make an affirmative objection to the trial court's continuation of the case; because defendant failed to lodge an affirmative objection to the continuance, the supreme court would not consider his request to overturn, modify, or reverse the court of appeals decision that absent a showing of bad faith by the Commonwealth, continuances requested by a defendant would not be charged to the Commonwealth. Young v. Commonwealth, 297 Va. 443 , 829 S.E.2d 548, 2019 Va. LEXIS 78 (July 3, 2019).

Applied in Wolkind v. Selph, 473 F. Supp. 675 (E.D. Va. 1979); Powell v. Commonwealth, 29 Va. App. 745, 514 S.E.2d 785 (1999); Howard v. Commonwealth, 281 Va. 455 , 706 S.E.2d 885, 2011 Va. LEXIS 47 (2011).

CIRCUIT COURT OPINIONS

Second grand jury indictment following incompetency finding permitted. - When the defendant first indicted by a grand jury for capital murder and robbery was found to be mentally incompetent and confined to a state hospital, the indictment against the defendant was dismissed; however, the trial court found that a later indictment for the same crimes obtained upon the defendant's release from the hospital could not be dismissed on the ground of the passage of time as the defendant alleged. Commonwealth v. Sink, 61 Va. Cir. 279, 2003 Va. Cir. LEXIS 18 (Portsmouth 2003).

Delay in commencement of trial due to pandemic. - Continuance of defendant's criminal trial was necessitated and the time period during which the court was not conducting criminal jury or bench trials due to the COVID-19 emergency was excludable because the coronavirus pandemic constituted a natural disaster, as it was a communicable disease of public health threat, and the court found that it could not protect the health and safety of the trial participants if it conducted a jury trial in the midst of the judicial emergency and pandemic. Commonwealth v. Vila, 104 Va. Cir. 389, 2020 Va. Cir. LEXIS 39 (Fairfax County Mar. 30, 2020).

§ 19.2-242. Accused discharged from jail if not indicted in time.

A person in jail on a criminal charge that has been certified or otherwise transferred from a district court to a circuit court shall be discharged from imprisonment if a presentment, indictment or information be not found or filed against him before the end of the second term of the court at which he is held to answer, unless it appear to the court that material witnesses for the Commonwealth have been enticed or kept away or are prevented from attendance by sickness or inevitable accident, and except, also, in the cases provided in §§ 19.2-168.1 and 19.2-169.1 . A discharge under the provisions of this section shall not, however, prevent a reincarceration after a presentment or indictment has been found.

(Code 1950, § 19.1-163; 1960, c. 366; 1975, c. 495; 2018, c. 551.)

Cross references. - As to within what time an indictment for felony must be tried, see § 19.2-243 .

The 2018 amendments. - The 2018 amendment by c. 551 inserted "that has been certified or otherwise transferred from a district court to a circuit court" in the first sentence.

Law review. - For comment, "The Defendant's Dilemma: Valid Charge or Speedy Trial," see 27 Wash. & Lee L. Rev. 175 (1970). For comment, "Jury Trials for Juvenile Delinquents in Virginia," see 28 Wash. & Lee L. Rev. 135 (1971).

CASE NOTES

The simple requirement of the statute is that some indictment shall be found before the end of the second term, or else the accused shall be discharged from imprisonment, although liable to be again arrested and tried upon any indictment that may be subsequently found against him. Waller v. Commonwealth, 84 Va. 492 , 5 S.E. 364 (1888).

The word "term," as used in this statute, ought to be construed to mean, not the stated time when a court should be held, but the actual session of the court. Ex parte Santee, 4 Va. (2 Va. Cas.) 363 (1823); Commonwealth v. Cawood, 4 Va. (2 Va. Cas.) 527 (1826); Commonwealth v. Adcock, 49 Va. (8 Gratt.) 661 (1851); Brown v. Hume, 57 Va. (16 Gratt.) 456 (1864).

Second term must be grand jury term. - The second term of the court, spoken of in the statute, is the second term at which a grand jury is directed to be summoned. Jones v. Commonwealth, 60 Va. (19 Gratt.) 478 (1868).

Term at which accused is sent on not counted. - Where during a term of the court accused is sent on for indictment, that term is not considered one of the two terms at which he must be indicted under this section. Bell's Case, 48 Va. (7 Gratt.) 646 (1850); Jones v. Commonwealth, 60 Va. (19 Gratt.) 478 (1868); Glover v. Commonwealth, 86 Va. 382 , 10 S.E. 420 (1889).

Special session not counted. - A special session of court held for the trial of offenses is not the third (now second) term within the meaning of the statute, but is a substitute for it, and therefore, where there was a failure to hold two regular terms, and then a special session was held, at which the prisoner was not tried, but being indicted at the regular term succeeding the special session, he ought not to be discharged from the crime, but may be tried. Commonwealth v. Lovett, 4 Va. (2 Va. Cas.) 74 (1817).

Indictment must be recorded. - Although a prisoner has in fact been arraigned on, and has pleaded to, an indictment not appearing by the record to have been found by the grand jury, and if a third actual term has passed without such record of the findings, he is entitled under this section to be discharged from the crime. Commonwealth v. Cawood, 4 Va. (2 Va. Cas.) 527 (1826); Commonwealth v. Adcock, 49 Va. (8 Gratt.) 661 (1851).

Indictment for different offenses sufficient. - A prisoner was arrested for housebreaking with intent to kill and rob. Subsequently he was indicted for burglary and grand larceny, and was held under this indictment until the grand jury, the third which had met since his arrest, indicted him for a felonious assault. Upon the last indictment he was tried and convicted. The prisoner contended that he was entitled to his discharge because the indictment on which he was tried was not found until the third term at which a grand jury was impaneled after his arrest. It was held, that the simple requirement of the statute is that some indictment shall be found before the end of the second term, or else the accused shall be discharged from imprisonment. Manifestly the present case does not come within the statute, for here the accused was indicted by the first grand jury that met after his arrest, and the Commonwealth has only done what she has a right to do, exercise her election as to the indictment upon which the prisoner should be tried. Waller v. Commonwealth, 84 Va. 492 , 5 S.E. 364 (1888).

But information for felony insufficient. - The filing of the information being unauthorized in the case of a felony, is of no avail, and an indictment must be found within the time prescribed by the statute. Jones v. Commonwealth, 60 Va. (19 Gratt.) 478 (1868).

A misdemeanor may be tried on a presentment or information, as well as on an indictment, while a felony can be tried on an indictment only, and the kind of accusation must be made within the period limited by the statute, which the nature of the offense requires. The offense in this case being a felony, it was necessary that an indictment should be found against the prisoner "before the end of the second term of the court, in which he is held to answer, unless, etc." Jones v. Commonwealth, 60 Va. (19 Gratt.) 478 (1868).

A second indictment proper when verdict set aside. - Where a second indictment was for the same act of embezzling as the first, under which the prisoner had been indicted, tried and convicted in time and the verdict set aside for variance, the second indictment was proper and in time. The prisoner was not entitled to be discharged. Commonwealth v. Adcock, 49 Va. (8 Gratt.) 661 (1851).

Question must be raised in trial court. - After the indictment is found, the question whether two terms have elapsed since the prisoner has been held to answer, without any indictment against him, should be raised by plea or otherwise. If this is not done, the question cannot be brought before the appellate court. Glover v. Commonwealth, 86 Va. 382 , 10 S.E. 420 (1889).

Writ of error only extends to matters after indictment. - This motion was made before any indictment was found. The point was not raised by plea or otherwise after the indictment was found, and consequently is not brought up for review by writ of error. The writ extends only to such matters as occurred after the indictment was found. Glover v. Commonwealth, 86 Va. 382 , 10 S.E. 420 (1889).

Remedy by habeas corpus before indictment found. - Where before indictment found, there was a motion made and properly overruled to discharge prisoner on the ground that two terms had elapsed since he had been held to answer without any indictment against him, the remedy was not by writ of error, but by habeas corpus, which is too late after final judgment. Bell v. Commonwealth, 49 Va. (8 Gratt.) 600 (1851); Glover v. Commonwealth, 86 Va. 382 , 10 S.E. 420 (1889).

§ 19.2-243. Limitation on prosecution of felony due to lapse of time after finding of probable cause; misdemeanors; exceptions.

Where a district court has found that there is probable cause to believe that an adult has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date such probable cause was found by the district court; and if the accused is not held in custody but has been recognized for his appearance in the circuit court to answer for such offense, he shall be forever discharged from prosecution therefor if no trial is commenced in the circuit court within nine months from the date such probable cause was found.

If there was no preliminary hearing in the district court, or if such preliminary hearing was waived by the accused, the commencement of the running of the five and nine months periods, respectively, set forth in this section, shall be from the date an indictment or presentment is found against the accused.

If an indictment or presentment is found against the accused but he has not been arrested for the offense charged therein, the five and nine months periods, respectively, shall commence to run from the date of his arrest thereon.

Where a case is before a circuit court on appeal from a conviction of a misdemeanor or traffic infraction in a district court, the accused shall be forever discharged from prosecution for such offense if the trial de novo in the circuit court is not commenced (i) within five months from the date of the conviction if the accused has been held continuously in custody or (ii) within nine months of the date of the conviction if the accused has been recognized for his appearance in the circuit court to answer for such offense.

The provisions of this section shall not apply to such period of time as the failure to try the accused was caused:

  1. By his insanity or by reason of his confinement in a hospital for care and observation;
  2. By the witnesses for the Commonwealth being enticed or kept away, or prevented from attending by sickness or accident;
  3. By the granting of a separate trial at the request of a person indicted jointly with others for a felony;
  4. By continuance granted on the motion of the accused or his counsel, or by concurrence of the accused or his counsel in such a motion by the attorney for the Commonwealth, or by the failure of the accused or his counsel to make a timely objection to such a motion by the attorney for the Commonwealth, or by reason of his escaping from jail or failing to appear according to his recognizance;
  5. By continuance ordered pursuant to subsection I or J of § 18.2-472.1 or subsection C or D of § 19.2-187.1 ;
  6. By the inability of the jury to agree in their verdict; or
  7. By a natural disaster, civil disorder, or act of God.

    But the time during the pendency of any appeal in any appellate court shall not be included as applying to the provisions of this section.

    For the purposes of this section, an arrest on an indictment or warrant or information or presentment is deemed to have occurred only when such indictment, warrant, information, or presentment or the summons or capias to answer such process is served or executed upon the accused and a trial is deemed commenced at the point when jeopardy would attach or when a plea of guilty or nolo contendere is tendered by the defendant. The lodging of a detainer or its equivalent shall not constitute an arrest under this section.

    (Code 1950, § 19.1-191; 1960, c. 366; 1974, c. 391; 1975, c. 495; 1984, c. 618; 1988, c. 33; 1993, c. 425; 1995, cc. 37, 352; 2002, c. 743; 2005, c. 650; 2007, c. 944; 2009, Sp. Sess. I, cc. 1, 4.)

Cross references. - As to time for trial of criminal cases generally, see §§ 19.2-237 and 19.2-241 .

As to discharge of accused when not indicted before end of second term, etc., see § 19.2-242 .

As to the right to speedy trial, see Va. Const., Art. I, § 8.

The 2002 amendments. - The 2002 amendment by c. 743 added the last paragraph.

The 2005 amendments. - The 2005 amendment by c. 650 added "to answer for such offense" at the end of fourth paragraph; inserted subdivision 6; rewrote the last paragraph; and made minor stylistic changes.

The 2007 amendments. - The 2007 amendment by c. 944, in the first paragraph, deleted "general" preceding "district court" and substituted "an adult" for "the accused" in the first sentence.

The 2009 amendments. - The 2009 amendments by Sp. Sess. I, c. 1, effective August 21, 2009, and Sp. Sess. I, c. 4, effective September 15, 2009, are identical, and added subdivision 5 and redesignated the following subdivisions accordingly.

Law review. - For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971). For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973). For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

For an article, "Criminal Law and Procedure," see 31 U. Rich. L. Rev. 1015 (1997).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

For annual survey essay, "A Vanishing Virginia Constitution?," see 46 U. Rich. L. Rev. 347 (2011).

For comment, see "Commonwealth and Constitution," 48 U. Rich. L. Rev. 415 (2013).

Research References. - Virginia Forms (Matthew Bender). No. 9-1801. Motion to Dismiss--Denial of Speedy Trial. No. 9-2302. Agreement on Defendant Cooperation. No. 9-2317. Waiver of Speedy Trial.

Michie's Jurisprudence. - For related discussion, see 2C M.J. Autrefois, Acquit and Convict, §§ 2, 22, 26; 4C M.J. Constitutional Law, § 86-88, 90; 4A M.J. Continuances, §§ 3, 26; 5B M.J. Criminal Procedure, §§ 25, 39; 10A M.J. Injunctions, § 28; 12A M.J. Limitation of Actions, § 21.

CASE NOTES

I. GENERAL CONSIDERATION.

This section is not itself unconstitutional. Nail v. Slayton, 353 F. Supp. 1013 (W.D. Va. 1972).

But its procedural application may result in the deprivation of an individual's Sixth Amendment rights. Nail v. Slayton, 353 F. Supp. 1013 (W.D. Va. 1972).

This section is subordinate to constitutional right to speedy trial guaranteed by both the federal and state Constitutions. Holliday v. Commonwealth, 3 Va. App. 612, 352 S.E.2d 362 (1987).

This section is the statutory embodiment of the constitutional right to a speedy trial. Sheard v. Commonwealth, 12 Va. App. 227, 403 S.E.2d 178 (1991).

Section requires trial of incarcerated defendant commence within five months after probable cause found. This statutory requirement, however, does not apply to delays caused by continuances granted on the incarcerated defendant's motion. O'Dell v. Commonwealth, 234 Va. 672 , 364 S.E.2d 491, cert. denied, 488 U.S. 871, 109 S. Ct. 186, 102 L. Ed. 2d 154 (1988).

Section does not require defendant to waive Sixth Amendment rights. - Court of Appeals of Virginia does not read either the text of § 19.2-243 or the holding of the Supreme Court of Virginia to require criminal defendants to effectively waive their Sixth Amendment right to effective counsel and to step into the shoes of their attorney to make tactical decisions with legal consequences or otherwise assume the responsibility for conducting their own defense when their attorney is not present to do so. Commonwealth v. Craighead, No. 0131-18-3, 2018 Va. App. LEXIS 158 (June 12, 2018).

Five-month requirement translates to 152 and fraction days. - The five-month requirement of this section translates to 152 and a fraction days. The Commonwealth is required to commence trial within that time. Ballance v. Commonwealth, 21 Va. App. 1, 461 S.E.2d 401 (1995); Robinson v. Commonwealth, 28 Va. App. 148, 502 S.E.2d 704 (1998).

When five-month period commences. - Under § 1-13.3 [see now § 1-210 ], when a statute or rule of court requires a notice to be given or any other act to be done within a certain time after any event or judgment, that time shall be in addition to the day on which the event or judgment took place; thus here, the five month speedy trial time allowance under this section did not begin to run until the day after defendant's probable cause hearing. Randolph v. Commonwealth, 22 Va. App. 334, 470 S.E.2d 132 (1996).

The five-month period begins to run on the day after the preliminary hearing at which probable cause is found. Robinson v. Commonwealth, 28 Va. App. 148, 502 S.E.2d 704 (1998).

Circuit court did not err in denying defendant's motion to dismiss the indictment, based upon an alleged speedy trial violation, because the trial commenced within five months from the date from when defendant was indicted by the grand jury. Defendant's continued incarceration, therefore, was based on the indictment by the grand jury for possession with intent to sell or distribute, rather than the charge of simple possession certified by the district court. Herrington v. Commonwealth, 291 Va. 181 , 781 S.E.2d 561, 2016 Va. LEXIS 10 (2016), cert. denied, 137 S. Ct. 509, 2016 U.S. LEXIS 7144, 196 L. Ed. 2d 417 (U.S. 2016).

Because the speedy trial clock began running on the use of the firearm charge after the finding of probable cause that led to the initial murder indictment, it was beyond dispute that the trial on the use of the firearm charge was commenced timely. Barksdale v. Commonwealth, No. 0736-20-3, 2021 Va. App. LEXIS 126 (July 20, 2021).

A trial starts with arraignment when applying the rights defined in the statute, regardless of whether an evidentiary proceeding followed the arraignment. Hutchins, Jr. v. Commonwealth, No. 1439-97-3 (Ct. of Appeals Jan. 19, 1999).

The time elapsing from the finding of probable cause to the initial trial date, even though the accused concurs in the trial date, is not a continuance within the contemplation of subdivision 4 of the statute, but counts against the Commonwealth in a calculation of compliance. Ballance v. Commonwealth, 21 Va. App. 1, 461 S.E.2d 401 (1995).

This section addresses the commencement of trial, not the conclusion of proceedings. The enumerated exceptions to the statute's applicability address this requirement. The final paragraph of the statute serves the same purpose. It relates to appeals addressing matters necessary to be resolved prior to the commencement of trial. Morgan v. Commonwealth, 19 Va. App. 637, 453 S.E.2d 914 (1995).

This section uses the word "commenced" repeatedly and purposefully to define compliance with the time periods prescribed as the statutory measure of the right of an accused to a speedy trial; nowhere does the statute, including the last unnumbered paragraph, require that the trial, once timely commenced, be concluded before the termination of the time period. Johnson v. Commonwealth, 252 Va. 425 , 478 S.E.2d 539 (1996).

Trial commences for jury trial when first juror is sworn for voir dire, not when the jury is sworn to try the case, which is when jeopardy attaches. Hutchins v. Commonwealth, 30 Va. App. 574, 518 S.E.2d 838 (1999), rev'd on other grounds, 260 Va. 293 , 533 S.E.2d 622, 2000 Va. LEXIS 122 (2000).

The sole object of this section is to secure a speedy trial to the accused, and to guard against a protracted imprisonment or harassment by a criminal prosecution. Commonwealth v. Adcock, 49 Va. (8 Gratt.) 661 (1851); Wadley v. Commonwealth, 98 Va. 803 , 35 S.E. 452 (1900); Mealy v. Commonwealth, 193 Va. 216 , 68 S.E.2d 507 (1952).

This section was designed to implement the constitutional guarantee of a speedy trial under the provisions of Va. Const., Art. I, § 8. Brooks v. Peyton, 210 Va. 318 , 171 S.E.2d 243 (1969).

This section is intended to assure the defendant's right to a speedy trial and society's interest in swift and certain justice. Clark v. Commonwealth, 4 Va. App. 3, 353 S.E.2d 790 (1987).

Purpose. - The legislative purpose of this limitations statute was to clarify when the right to a speedy trial is infringed and to simplify the courts' application of it. Holliday v. Commonwealth, 3 Va. App. 612, 352 S.E.2d 362 (1987).

The speedy trial statute was enacted to clarify and augment the constitutional guarantees of the Sixth Amendment to the United States Constitution and Va. Const., Art. I, § 8. Bunton v. Commonwealth, 6 Va. App. 557, 370 S.E.2d 470 (1988).

This section is conceptually and functionally related to the constitutional guarantee of a speedy trial. Fowlkes v. Commonwealth, 218 Va. 763 , 240 S.E.2d 662 (1978).

This section is the interpretation by the legislature of what constitutes a "speedy trial," as that term is used in the Bills of Rights. Flanary v. Commonwealth, 184 Va. 204 , 35 S.E.2d 135 (1945); Delph v. Slayton, 343 F. Supp. 449 (W.D. Va. 1972), aff'd in part, vacated in part, 471 F.2d 648 (4th Cir. 1973).

This section is merely a codification of what the legislature deems to be a speedy trial under Va. Const., Art. I, § 8. Delph v. Slayton, 343 F. Supp. 449 (W.D. Va. 1972), aff'd in part, vacated in part, 471 F.2d 648 (4th Cir. 1973).

This section is the statutory embodiment of the constitutional right to a speedy trial. Clark v. Commonwealth, 4 Va. App. 3, 353 S.E.2d 790 (1987).

At the very least this section is indicative of the legislative efforts to preclude any undue delay giving rise to a deprivation of one's right to a speedy trial. Clark v. Oliver, 346 F. Supp. 1345 (E.D. Va. 1972).

Construction of section. - This section must be construed so as to assure both a defendant's constitutional right to a speedy trial and society's interest in swift and certain justice. Clark v. Commonwealth, 4 Va. App. 3, 353 S.E.2d 790 (1987).

Imposition of a sentence against defendant after he violated the terms of an agreement that allowed him to withdraw a guilty plea to a felony in a circuit court did not violate speedy trial. Urbina v. Commonwealth, No. 2467-02-4, 2003 Va. App. LEXIS 551 (Ct. of Appeals Nov. 4, 2003).

Trial court did not err in denying defendant's motions to dismiss the indictments issued against him, as the Commonwealth did not violate his statutory speedy trial rights; defendant's trial was commenced within five months from the date that probable cause was found by the district court, which is all that the speedy trial statute required, despite the fact that the trial in which he was actually convicted, held because two previous juries caused a mistrial because they were unable to reach a verdict, was commenced more than five months after the probable cause finding. Thomas v. Commonwealth, No. 0155-03-1, 2004 Va. App. LEXIS 271 (Ct. of Appeals June 8, 2004).

Literal language, reason, and spirit of section considered. - In applying the provisions of this section the court will look at its literal language and also to its reason and spirit. Clark v. Commonwealth, 4 Va. App. 3, 353 S.E.2d 790 (1987).

Time for retrial. - When the trial of an accused has been commenced within the applicable time period prescribed by statute and, on appeal, a conviction is reversed and the case remanded for retrial, the time for retrial rests within the discretion of the trial court, a discretion measured and controlled by the constitutional standards of reasonableness and fairness; upon retrial following reversal on appeal, the right of the accused to a speedy trial is governed exclusively by the constitutional mandate. Johnson v. Commonwealth, 252 Va. 425 , 478 S.E.2d 539 (1996).

This section is not applicable to recidivist proceedings because they are not criminal prosecutions. Tyson v. Hening, 205 Va. 389 , 136 S.E.2d 832, cert. denied, 379 U.S. 867, 85 S. Ct. 139, 13 L. Ed. 2d 71 (1964).

Delay prior to preliminary hearing and indictment. - Where the delay of which the defendant complains occurred prior to the preliminary hearing and the issuance of the indictment, the limitation periods of this section are not applicable. His claim, therefore, must be based on the constitutional guarantees of a speedy trial. Holliday v. Commonwealth, 3 Va. App. 612, 352 S.E.2d 362 (1987).

The protection granted an accused under this section is not self-operative. It may be claimed or it may be waived. Brooks v. Peyton, 210 Va. 318 , 171 S.E.2d 243 (1969); Stephens v. Commonwealth, 225 Va. 224 , 301 S.E.2d 22 (1983); Laidler v. Commonwealth, No. 0161-99-4, 2000 Va. App. LEXIS 227 (Ct. of Appeals Mar. 28, 2000).

Accused is not required to take any action to avail himself of his statutory right to speedy trial. The affirmative duty to act in bringing about a speedy trial rests with the Commonwealth, and the accused may stand mute without waiving his right so long as his actions do not constitute a concurrence in or necessitate the delay. Cantwell v. Commonwealth, 2 Va. App. 606, 347 S.E.2d 523 (1986).

An accused may remain silent, making no demands, without forfeiting the right to have the charges against him or her timely heard. Bunton v. Commonwealth, 6 Va. App. 557, 370 S.E.2d 470 (1988).

"The failure ... of ... [appellant] to insist at the docket call on [February 22, 1994], to set the trial within the prescribed period did not extend the period within which [appellant] must be brought to trial." Stinnie v. Commonwealth, 21 Va. App. 610, 466 S.E.2d 752 (1996).

"[A] defendant does not waive his right to a speedy trial merely because he remains silent or does not demand that a trial date be set within the prescribed period." Stinnie v. Commonwealth, 21 Va. App. 610, 466 S.E.2d 752 (1996).

This section is inapplicable to retrial following reversal on appeal. Morgan v. Commonwealth, 19 Va. App. 637, 453 S.E.2d 914 (1995).

Scope of review. - Proper assessment and determination of the merits of a claim pursuant to this section involve a review of the whole record and a consideration of the trial court orders in the context of the record that comes before the Court of Appeals. Baity v. Commonwealth, 16 Va. App. 497, 431 S.E.2d 891 (1993).

Waiver. - Failure to invoke the provisions of this section until after final judgment is a waiver of the protection afforded thereunder. Brooks v. Peyton, 210 Va. 318 , 171 S.E.2d 243 (1969).

Although counsel and trial judge informally discussed speedy trial requirements, record failed to show that defendant alleged a speedy trial violation or moved to dismiss indictments based on § 19.2-243 , and therefore Rule 5A:18 barred consideration of speedy trial issue on appeal. Laidler v. Commonwealth, No. 0161-99-4 (Ct. of Appeals Mar. 28, 2000).

The protection granted an accused under this section is not self-operative; it may be claimed or it may be waived. Laidler v. Commonwealth, No. 0161-99-4 (Ct. of Appeals Mar. 28, 2000).

Waiver by guilty plea. - A guilty plea waives any contention that the speedy trial provisions of this section were violated. Williams v. Commonwealth, 33 Va. App. 725, 536 S.E.2d 916, 2000 Va. App. LEXIS 734 (2000).

It is the duty of officers to obtain trial. - It is the duty of officers charged with the responsibility of enforcing the criminal laws of the Commonwealth to prepare for and obtain a trial of an accused within the three regular terms of court specified in this section. Flanary v. Commonwealth, 184 Va. 204 , 35 S.E.2d 135 (1945).

Affirmative duty rests on Commonwealth to bring about speedy trial, and accused may stand mute without waiving his rights so long as his actions do not constitute concurrency in or necessitate delay of trial. Moten v. Commonwealth, 7 Va. App. 438, 374 S.E.2d 704 (1988).

The burden rests with the prosecuting authority to ensure that an accused is accorded his or her constitutional and statutory right. Bunton v. Commonwealth, 6 Va. App. 557, 370 S.E.2d 470 (1988).

Burden to explain delay. - If the accused is not tried within the time specified in this section, the burden is on the Commonwealth to explain the delay. Powell v. Commonwealth, 29 Va. App. 745, 514 S.E.2d 785 (1999).

When an accused asserts that he has been denied a speedy trial, the burden is on the Commonwealth to explain and excuse the delay. Heath v. Commonwealth, 32 Va. App. 176, 526 S.E.2d 798, 2000 Va. App. LEXIS 278 (2000), aff'd, 261 Va. 389 , 541 S.E.2d 906 (2001).

It is the prosecution which has the responsibility of vindicating society's interests in swift and certain justice, and the burden of demonstrating that a delay in commencing trial is excused under this section lies upon the Commonwealth. Heath v. Commonwealth, 32 Va. App. 176, 526 S.E.2d 798, 2000 Va. App. LEXIS 278 (2000), aff'd, 261 Va. 389 , 541 S.E.2d 906 (2001).

The section was enacted for the prisoner's protection. - The constitutional guarantee of a speedy trial carried into this section is for the prisoner's protection, and as against him is no warrant for undue haste. Smith v. Commonwealth, 155 Va. 1111 , 156 S.E. 577 (1931).

Trial need not be complete. - Under this section the trial need not be a complete trial in which final judgment is entered not later than during the third term; if the accused is actually brought to trial within the time required, this section has been sufficiently complied with. Butts v. Commonwealth, 145 Va. 800 , 133 S.E. 764 (1926).

This code section requires the timely commencement of trial, not that trial be concluded within the specified five month period. Riddick v. Commonwealth, 22 Va. App. 136, 468 S.E.2d 135 (1996).

Final judgment need not be entered during third term. - Where an accused is actually brought to trial within the time required by this section, but from some adventitious cause, without fault on the part of the Commonwealth, final judgment cannot be entered during such term, or where a further delay for a reasonable time is necessary to consider some motion or application of the accused, this section has been sufficiently complied with. Howell v. Commonwealth, 186 Va. 894 , 45 S.E.2d 165 (1947).

Plea is analogous to autrefois acquit or convict. - Defendants were entitled to no more under their motion that they be forever discharged from prosecution for the offense charged in a second indictment, than under their plea of former discharge under the first indictment, and both are analogous to the plea of autrefois acquit or convict. Commonwealth v. Davis, 17 Va. L. Reg. 509 (1911).

Applicability of five month limitation. - In the instant case, the five month limitation would have applied only if defendant had been "continuously in custody," and he had not been in continuous custody, since his second arrest began a separate confinement. Robbs v. Commonwealth, 252 Va. 433 , 478 S.E.2d 699 (1996).

Larceny and embezzlement are not the same offense for determining time limits under this section. Cera v. Commonwealth, No. 0432-94-4 (Ct. of Appeals May 2, 1995).

What law governs. - The question of a prisoner's right to be discharged because of failure to try him, arising after this section went into operation, must be governed by this section. Commonwealth v. Adcock, 49 Va. (8 Gratt.) 661 (1851).

Scope of review by federal court. - Unless this section is itself a violation of the Sixth Amendment because of its very terms, so that the requisite federal question under 28 U.S.C. § 2254 (a) is present, the federal courts cannot review the manner in which the state courts choose to apply or even misapply their own statutes as long as such application or misapplication does not violate an individual's federal rights. Delph v. Slayton, 343 F. Supp. 449 (W.D. Va. 1972), aff'd in part, vacated in part on other grounds, 471 F.2d 648 (4th Cir. 1973).

The federal court is not bound by the state's interpretation of what constitutes a speedy trial. If this section is itself a violation of the Sixth Amendment or if the time involved in a case in face deprives petitioner of a speedy trial, the federal court may invalidate the state statute or the state procedure. Nail v. Slayton, 353 F. Supp. 1013 (W.D. Va. 1972).

Habeas corpus. - Since the right to a discharge under a statute, which provides that if a person is not tried within a specified time he shall be discharged, is not absolute in the sense that a mere lapse of time ousts the court of jurisdiction, a judgment of conviction is not void so as to subject it to collateral attack by writ of habeas corpus. Brooks v. Peyton, 210 Va. 318 , 171 S.E.2d 243 (1969).

Defendant not held continuously. - Because bond was never offered, the nine-month deadline was not triggered, and thus, defendant ultimately did not invite error and then attempt to take advantage of the situation created by his own wrong. Young v. Commonwealth, No. 0265-17-4, 2018 Va. App. LEXIS 73 (Mar. 20, 2018), aff'd Young v. Commonwealth, 297 Va. 443 , 829 S.E.2d 548, 2019 Va. LEXIS 78 (2019).

Defendant deprived of right to speedy trial. - Where the continuance of the proceeding to the next term of court was not on the motion of either the accused or the Commonwealth, and the continuance was not the cause of failure to try the accused, the delay caused by the continuance could not be excluded from the provisions of this section. Nelms v. Commonwealth, 11 Va. App. 639, 400 S.E.2d 799 (1991).

Where the Commonwealth, without any hindrance or delay from the defendant, could have fixed the trial date at its convenience within the five-month period and instead voluntarily chose to set the trial date after the five-month period had expired, this section barred the prosecution of the defendant. Taylor v. Commonwealth, 12 Va. App. 425, 404 S.E.2d 86 (1991).

Defendant's right to speedy trial was violated where the defendant was held continuously in custody from September 8, 1988, the date probable cause was found by the district court, until his trial began on October 2, 1989; during such period the case was not continued as a result of continuances requested or concurred in by the defendant. May v. Commonwealth, No. 1090-92-3 (Ct. of Appeals July 27, 1993).

The Commonwealth has the burden of showing that defendant's suppression motion and the time taken by the trial court to rule thereon caused a delay which was attributable to him; where nothing in the record showed that the filing of the motion necessitated a slow-down of the judicial process, his subsequent trial was held in violation of the nine month limitation provision. Robbs v. Commonwealth, 252 Va. 433 , 478 S.E.2d 699 (1996).

When the district court certified and transferred defendant for trial as an adult in the circuit court, the district court necessarily found the requisite probable cause contemplated by the speedy trial statute. Because the transfer order directed that defendant be "remanded to jail," the prescribed five month limitation of this section commenced on October 4, 1995. It was immaterial that such custody coincided with detention of defendant incidental to an unrelated commitment. Irrespective of the trial court's order to quash, the initial indictments of defendant were a nullity, obtained without the benefit of the enabling order required by subsection B of § 16.1-269.6, and the court simply remedied of record an error or oversight in the proceedings, without disturbing the legal efficacy of the pending transfer order or effecting a nolle prosequi. Accordingly, defendant was held continuously in custody from the finding of probable cause in the district court on October 4, 1995, until trial on July 11, 1996, in violation of this section, and the court had to reverse and dismiss the convictions. Price v. Commonwealth, 25 Va. App. 655, 492 S.E.2d 447 (1997), aff'd, 256 Va. 373 , 506 S.E.2d 317 (1998).

Where not only was no order entered setting an initial trial date for defendant's jury trial, but no order was entered setting a continued trial date, the Commonwealth had not borne its burden by proving a delay countenanced by this section; therefore, defendant's convictions for second degree murder and use of a firearm in the commission of murder were reversed. Powell v. Commonwealth, 29 Va. App. 745, 514 S.E.2d 785 (1999).

The defendant was not prosecuted in a timely manner where, after the conclusion of appellate proceedings in a civil matter ancillary to the criminal proceeding, 12 months elapsed to the date of her trial and the record reflected no justifiable basis for the delay. Battle v. Commonwealth, No. 1757-97-1 (Ct. of Appeals Dec. 8, 1998).

Defendant's right to speedy trial was not violated because, although he objected to a continuance being counted against him, he agreed to the trial date, which fell outside of the speedy trial time frame in the § 19.2-243 . Accordingly, the trial court did not err in finding that defendant was tried within the statutory speedy trial period. Hall v. Commonwealth,, 2009 Va. App. LEXIS 467 (Oct. 20, 2009).

Trial court did not err in holding that defendant's statutory right to a speedy trial had been violated because at the very minimum, 186 days of delay was attributed to the Commonwealth, and that surpassed the 152 and a fraction days of delay allowable; the Commonwealth provided a record that was completely devoid of any statement of facts detailing the "incidents" that caused the delay, and its failure to set the case for trial after the trial judge returned to the bench was not explained. Commonwealth v. Keen,, 2015 Va. App. LEXIS 69 (Mar. 2, 2015).

Trial court did not err when it dismissed the charges against defendant, because after taking into account defendant's limited waivers of the right to a speedy trial, the total time on the speedy trial clock for all periods was 196 days, far more than the 152 and a fraction allowed under this section. Commonwealth v. White, No. 0831-16-2, 2016 Va. App. LEXIS 287 (Ct. of Appeals Nov. 1, 2016).

Defendant was entitled to reversal of his conviction for felony assault and battery of a family member, because the Commonwealth failed to bring defendant to trial within the 201 days allotted, the Commonwealth's request for a continuance was made after the speedy trial period had run and was objected to be defendant, and defendant's motion in limine did not toll the period, as it could have been ruled upon at the time of trial. Turner v. Commonwealth, 68 Va. App. 72, 802 S.E.2d 814, 2017 Va. App. LEXIS 193 (2017).

Defendant not deprived of right to speedy trial. - See Nail v. Slayton, 353 F. Supp. 1013 (W.D. Va. 1972).

Because the speedy trial time period began to run anew with the filing of the new indictment and only 117 days elapsed which were not attributable to defendant, defendant's trial occurred within the time required by this section. Herrington v. Commonwealth, No. 1083-13-4, 2014 Va. App. LEXIS 371 (Ct. of Appeals Nov. 12, 2014), aff'd, 291 Va. 181 , 781 S.E.2d 561 (2016).

Where an indictment was presented at the November term of the grand jury and was returned "not a true bill" on November 19, 1984, this action by the grand jury operated to discharge appellant on the charge. Presumably the grand jury determined that there was not sufficient cause to hold him. Had appellant not been incarcerated on an unrelated criminal conviction, he would have been entitled to be discharged from custody once the grand jury failed to return an indictment against him. Therefore, as of November 19, 1984, this section ceased to apply. A second grand jury returned a true bill of indictment on February 19, 1985, for the same offense, and appellant was brought to trial within two months of that indictment. There was no denial of a speedy trial within the contemplation of this section. Presley v. Commonwealth, 2 Va. App. 348, 344 S.E.2d 195 (1986); Rogers v. Commonwealth, 5 Va. App. 337, 362 S.E.2d 752 (1987).

The failure to try the defendant in accordance with this section resulted from his motion for time to prepare for trial pro se after dismissing counsel; unlike a continuance granted to an individual accused of a felony to initially obtain counsel, a continuance of a trial, previously set, requested by the accused to prepare for trial, benefits only him. Stinnie v. Commonwealth, 22 Va. App. 726, 473 S.E.2d 83 (1996).

Because the defendant never announced that he was ready for trial until the Commonwealth tried to set a trial date, and did in fact not even stand ready for trial on the first date set, and because the Commonwealth was ready to proceed well within the remaining time under this section, the defendant's statutory speedy trial rights were not violated. Jefferson v. Commonwealth, 23 Va. App. 652, 479 S.E.2d 80 (1996).

Defendant's right to speedy trial was not violated where the continuances that delayed his trial beyond the five-month period provided by this section were attributable to, or acquiesced in, by the defense. Watkins v. Commonwealth, 26 Va. App. 335, 494 S.E.2d 859 (1998).

A defendant was not denied his right to a speedy trial when the Commonwealth commenced trial 183 days after the general district court made its finding of probable cause and 92 of those days were chargeable to the defendant; the defendant was chargeable with the periods that elapsed due to his own motions for continuances and also with the period that elapsed when the defendant failed to object to a motion for continuance made by the Commonwealth. Robinson v. Commonwealth, 28 Va. App. 148, 502 S.E.2d 704 (1998).

Speedy trial requirement was not violated where defendant's trial was timely commenced but was disrupted by mistrial when prosecution unintentionally failed to comply with discovery order; retrial was merely an extension of the earlier proceeding and did not implicate a new speedy trial timeframe. Fisher v. Commonwealth, 26 Va. App. 788, 497 S.E.2d 162 (1988).

A defendant was not denied the right to a speedy trial although there was a 16-month interval between the preliminary hearing and the trial, where the defendant either requested or agreed to every continuance granted by the circuit court under the original indictments and where, when the time attributable to those continuances was subtracted from the total time the case was pending in the circuit court before trial, the record showed that the defendant was tried within the time restrictions imposed by this section. Johnson v. Commonwealth, 259 Va. 654 , 529 S.E.2d 769, 2000 Va. LEXIS 60, cert. denied, 531 U.S. 981, 121 S. Ct. 432, 148 L. Ed. 2d 439 (2000).

Where defendant agreed, within the five-month period fixed by § 19.2-243 , to an original trial date beyond the five-month period, because defendant's agreement to the trial date was confirmed by the trial court before he was indicted, defendant was not charged with the time pending before his indictment, but the time between his indictment and his trial was removed from the five-month period; when that time was subtracted from the total time defendant was held continuously in custody from the date of his preliminary hearing, defendant was tried well within the five-month limitation period of § 19.2-243 , and there was no speedy trial violation. Hudson v. Commonwealth, 267 Va. 36 , 591 S.E.2d 679, 2004 Va. LEXIS 14 (2004).

Because a delay for counsel's motion to withdraw and two later continuances were properly attributed to defendant, he was held in custody for 120 days from the finding of probable cause until his release to pre-trial services; consequently, defendant's right to a speedy trial under § 19.2-243 was not violated. Booker v. Commonwealth,, 2006 Va. App. LEXIS 591 (Dec. 28, 2006).

Process which resulted in a trial on the merits within the statutorily described time did not support a presumption of prejudice. Jones v. Commonwealth,, 2008 Va. App. LEXIS 84 (Feb. 19, 2008).

Because defendant did not object to the continuance from January 26th to February 8th, the speedy trial statute by its own terms did not apply to that period. It necessarily followed that defendant could not preserve a right he never had by simply refusing to waive it. Sigsby v. Commonwealth,, 2008 Va. App. LEXIS 137 (Mar. 18, 2008).

Delays that occurred when defendant or defense counsel requested or acquiesced to continuances were attributable to defendant, and a medical emergency in the prosecutor's family was not attributable to the Commonwealth. Wallace v. Commonwealth, 65 Va. App. 80, 774 S.E.2d 482, 2015 Va. App. LEXIS 230 (2015).

Pursuant to Virginia's speedy trial statute, defendant's trial was commenced within the time required because the nine-month period applied as defendant was released on bond and was not thereafter held in custody until he was again arrested on the capias following his failure to appear for the March 21, 2013, hearing; and, after accounting for those periods of delay defendant argued were attributable to the Commonwealth, defendant was brought to trial within nine months of his initial arrest. Weberg v. Commonwealth, No. 1327-14-4, 2015 Va. App. LEXIS 382 (Dec. 15, 2015).

While defendant's trial did not begin until 496 days after his arrest, there was no violation of his statutory right to a speedy trial, because 41 days were chargeable to defendant as a result of his request for a jury trial, made after the original trial date was set, and 202 days were the result of his motion to continue and thus, were also chargeable to defendant. Stinnie v. Commonwealth, No. 1719-16-1, 2017 Va. App. LEXIS 246 (Oct. 3, 2017).

There was no violation of defendant's statutory right to a speedy trial because the trial had commenced within the applicable time period; defendant's trial ended in a mistrial, and the ensuing time until the retrial was not considered. Bland v. Commonwealth, No. 0937-16-1, 2017 Va. App. LEXIS 284 (Nov. 14, 2017).

Trial court did not err in denying defendant's motion to dismiss the indictment for a speedy trial violation because the Commonwealth was not charged for the delay in bringing the matter to trial; when the trial court denied defendant's motion to suppress his counsel and the assistant Commonwealth's attorney obtained a trial date, and there was no record of defendant's objecting at the time the matter was continued, but rather, he signed an order requesting the continuance. Nichols v. Commonwealth, No. 0304-17-1, 2018 Va. App. LEXIS 75 (Mar. 20, 2018).

Circuit court did not violate defendant's statutory and constitutional speedy trial rights because he did not timely object to continuing the trial and agreed to setting the trial date before he voiced his objection to the continuance, his stated objection to the continuance, made at the bond hearing, was not timely, much of the delay was attributable to defendant, and he did not claim that his defense was impaired by the delay. Lewis v. Commonwealth, Nos. 0632-17-2, 1173-17-2, 2018 Va. App. LEXIS 257 (Oct. 2, 2018).

Delay based on conduct of defendant. - Trial court properly denied defendant's motion to dismiss the two criminal charges filed against him on the allegation that his speedy trial rights under § 19.2-243 had been violated as defendant only could have been considered to have been held in continuous custody beyond the five-month time period allowed in the statute by virtue of his own conduct in refusing to sign a personal recognizance bond since he had been physically released before the speedy trail deadline date. White v. Commonwealth, 37 Va. App. 658, 561 S.E.2d 12, 2002 Va. App. LEXIS 162 (2002).

Detention as fugitive out-of-state. - Detention in North Carolina on accusation of being a fugitive is not the same as "arrest thereon" as used in this section with respect to Virginia indictment against defendant. His detention in North Carolina gave Virginia no rights with respect to him; thus, this section first came into play with defendant's arrest upon his delivery to Virginia authorities, not 11 months earlier when he was detained in North Carolina on the fugitive warrant. Williamson v. Commonwealth, 13 Va. App. 655, 414 S.E.2d 609 (1992).

Review confined to record in determining responsibility for delay. - In determining responsibility for the delay of a criminal trial, the court must confine its review to the record before it. Because of the fragility of memories, representations of counsel or even of the trial judge, if not supported by the record, are insufficient. Williams v. Commonwealth, 2 Va. App. 566, 347 S.E.2d 146 (1986).

Inadequate record. - Because the transcript that was provided did not include the hearing during which the issue of whether a witness was "kept away" under subdivision 2 of § 19.2-243 , the transcript was insufficient to permit resolution of appellate issues under Va. Sup. Ct. R. 5A:8(b)(4)(ii). Gardner v. Commonwealth, No. 2367-09-1, 2010 Va. App. LEXIS 482 (Ct. of Appeals Dec. 14, 2010).

Delay held too great and without good cause. - Where a federal prisoner had been prejudiced by the delay in state prosecution of over a year, in spite of his repeated efforts to bring the case to trial, the delay was too great and without good cause. Taylor v. Virginia, 353 F. Supp. 1323 (W.D. Va. 1973).

A 55-day delay which occurred as a result of a continuance granted on motion of the Commonwealth was not chargeable against the Commonwealth since when the motion was made, the defendant was present in court with his attorney and the defense attorney did not simply remain passive, but expressly affirmed the attorney for the Commonwealth's assertion to the court that the motion was "by agreement," and twice affirmatively stated, "we have no objection." Corey v. Commonwealth, 8 Va. App. 281, 381 S.E.2d 19 (1989).

Defendant held for trial within meaning of section. - Since at all times subsequent to his indictment for an escape felony defendant was held by the Commonwealth in its penal institutions and was available for trial in the court in which the case was pending, he was being held for trial within the meaning of this section and was entitled to claim its protection. Knott v. Commonwealth, 215 Va. 531 , 211 S.E.2d 86 (1975).

Applied in Foster v. Commonwealth, 8 Va. App. 167, 380 S.E.2d 12 (1989); Arnold v. Commonwealth, 18 Va. App. 218, 443 S.E.2d 183 (1994); Yiaadey v. Commonwealth, 29 Va. App. 535, 513 S.E.2d 446 (1999); Harris v. Commonwealth, 258 Va. 576 , 520 S.E.2d 825 (1999); Bonds v. Beale, 145 F. Supp. 2d 708, 2001 U.S. Dist. LEXIS 5572 (E.D. Va. 2001); Ragsdale v. Commonwealth, 38 Va. App. 421, 565 S.E.2d 331, 2002 Va. App. LEXIS 366 (2002); Bailey v. Commonwealth, 38 Va. App. 794, 568 S.E.2d 440, 2002 Va. App. LEXIS 527 (2002).

II. TERMS OF COURT.

This section contemplates terms actually held, not terms merely provided for by law. Ex parte Santee, 4 Va. (2 Va. Cas.) 363 (1823); Commonwealth v. Cawood, 4 Va. (2 Va. Cas.) 527 (1826); Brown v. Hume, 57 Va. (16 Gratt.) 456 (1864).

The word "term" in this section ought to be construed to mean, not the stated time when a court should be held, but the actual session of the court, and this construction must be given to the word in all three of the clauses of this section. Therefore, where a prisoner was remanded for trial by the examining court in July, 1822, and at the October term the court did not sit, and at the May term, 1823, the cause was continued for the Commonwealth, and at the third term, in October, 1823, there was no court, the prisoner was not entitled to be forever discharged of the crime. Ex parte Santee, 4 Va. (2 Va. Cas.) 363 (1823).

And not partial ones. - This section contemplates complete terms, not partial ones. Bell v. Commonwealth, 49 Va. (8 Gratt.) 600 (1851); Sands v. Commonwealth, 61 Va. (20 Gratt.) 800 (1871).

All terms of court, criminal and civil, must be considered regular terms for purposes of the time limitation imposed by this section. Woodard v. Commonwealth, 214 Va. 495 , 201 S.E.2d 785 (1974).

Special sessions are not included. - A special session was not one of the terms contemplated by this section. Commonwealth v. Lovett, 4 Va. (2 Va. Cas.) 74 (1817).

Term of indictment is not to be counted. - The term at which a prisoner is indicted for a felony is not to be counted as one of the terms contemplated by this section. The terms are those after the prisoner has been indicted and held for trial. Kibler v. Commonwealth, 94 Va. 804 , 26 S.E. 858 (1897); Flanary v. Commonwealth, 184 Va. 204 , 35 S.E.2d 135 (1945); Butts v. Commonwealth, 145 Va. 800 , 133 S.E. 764 (1926).

Defendant was indicted and held for trial at the July term, which is therefore excluded from computation of three regular terms within the meaning of this section. Woodard v. Commonwealth, 214 Va. 495 , 201 S.E.2d 785 (1974).

Nor term at which case is continued by agreement of counsel. Kibler v. Commonwealth, 94 Va. 804 , 26 S.E. 858 (1897).

Nor is term at which prisoner is first held for trial. - The three terms spoken of in this section are three terms after that at which the prisoner is first held for trial. And though a prisoner has been arrested and committed to jail, or gives bail to appear and does appear, or is brought into court, on the first day of a term of a court, that term is not to be counted as one of the three terms aforesaid. Bell's Case, 48 Va. (7 Gratt.) 646 (1850); Bell v. Commonwealth, 49 Va. (8 Gratt.) 600 (1851); Sands v. Commonwealth, 61 Va. (20 Gratt.) 800 (1871).

When case continued without being set for trial, time period which follows is not tolled. - When an accused appears before a trial court for the appointment of counsel and the case is continued to the next docket call without being set for trial, the period of time which follows is not tolled under this section. Nelms v. Commonwealth, 11 Va. App. 639, 400 S.E.2d 799 (1991).

Original indictment supplanted by second indictment. - When an original indictment is supplanted by a second indictment, the terms contemplated by the statute are to be counted from the time of the second indictment. Brooks v. Peyton, 210 Va. 318 , 171 S.E.2d 243 (1969); Miller v. Commonwealth, 217 Va. 929 , 234 S.E.2d 269 (1977), cert. denied, 434 U.S. 1016, 98 S. Ct. 735, 54 L. Ed. 2d 762 (1978).

III. EXCEPTIONS AND EXCUSES FOR FAILURE TO TRY.

Failure to commence trial was caused by court. - Where failure to commence trial of accused within the statutorily mandated time limitations was caused solely by the trial court's failure, well within the statutory time limitation, to fix a timely trial date, the accused has been denied his statutory right to a speedy trial; thus the initial 15 days granted to the accused to obtain his own counsel was not a delay contemplated and accommodated by the time limitation of this section and could not toll the applicable nine month limitation. Baity v. Commonwealth, 16 Va. App. 497, 431 S.E.2d 891 (1993).

Enumeration does not exclude other excuses in pari ratione. - The exceptions or excuses for failure to try the prisoner enumerated in this section are not intended to exclude others of a similar nature, or in pari ratione. The prisoner is entitled to his discharge only if the Commonwealth has been in default for three terms without any of the excuses for the failure enumerated in this section, or any like excuses fairly implied by the courts from the reason and spirit of the law. Commonwealth v. Adcock, 49 Va. (8 Gratt.) 661 (1851).

The General Assembly has enumerated circumstances which excuse "the failure to try." This enumeration was not intended to exclude other circumstances in pari ratione. Knott v. Commonwealth, 215 Va. 531 , 211 S.E.2d 86 (1975).

The granting of separate trials at the request of a defendant, when he has been indicted on different charges, is not in pari ratione with the statutory listed excuse. The case of a defendant indicted for two completely different felonies is in no way analogous to that of a defendant jointly indicted with others for the commission of a felony. The statute speaks to a situation where only one crime is involved, the witnesses against all defendants are most likely the same witnesses, and the exhibits are the same. For these and other reasons, the granting of separate trials to persons jointly indicted would necessarily bring about delay which should be charged to a defendant who seeks a severance. Walker v. Commonwealth, 225 Va. 5 , 301 S.E.2d 28 (1983).

This section sets forth five circumstances that excuse the failure to try an accused within the prescribed time period, including those instances where the delay was caused by continuance granted on the motion of the accused, or by his concurrence in a motion by the Commonwealth. The enumerated exceptions are not all-inclusive; others of a similar nature may be implied. The exceptions, both express and implied, often look to the defendant's actions which tend to delay the trial. Cantwell v. Commonwealth, 2 Va. App. 606, 347 S.E.2d 523 (1986).

The Commonwealth must be at fault, to entitle prisoner to his discharge under this section. Ex parte Santee, 4 Va. (2 Va. Cas.) 363 (1823).

Burden is on the Commonwealth to prove that the delay in trying appellant was excusable, based either on one of the reasons enumerated in the statute or on appellant's waiver of his right to be tried within the designated period. Shavin v. Commonwealth, 17 Va. App. 256, 437 S.E.2d 411 (1993).

Federal injunction against trial obtained by prisoner is an excuse. - A prisoner was not entitled to be discharged from prosecution on the ground that four regular terms of court elapsed after the indictment was found without a trial, where the trial was prevented by an injunction from a federal court obtained at the instance of the prisoner. Wadley v. Commonwealth, 98 Va. 803 , 35 S.E. 452 (1900).

While an injunction from a federal court is not among the exceptions enumerated in this section, it is within its spirit and reason. The object of this section is to insure speedy trials, and, in enumerating certain exceptions, it was not intended to exclude others of like nature. Wadley v. Commonwealth, 98 Va. 803 , 35 S.E. 452 (1900).

As is reversal of prior conviction. - Where a prisoner pleaded that he had been held for trial more than four terms after indictment, a replication that during that period the prisoner had been convicted and the conviction reversed, and that he had been held until reversal for punishment, not for trial, was held sufficient. Smith v. Commonwealth, 85 Va. 924 , 9 S.E. 148 (1889). See also Commonwealth v. Adcock, 49 Va. (8 Gratt.) 661 (1851).

If a prisoner has been tried and convicted of a crime, and a new trial awarded to him, although he should not be tried again until after the third term, subsequent to his examination, he is not entitled to a discharge. Vance v. Commonwealth, 4 Va. (2 Va. Cas.) 162 (1819).

New prosecution after case nolle prossed started speedy trial clock anew. - By reconsidering its decision in a prior proceeding to grant the Commonwealth's nolle prosequi motion and not running the speedy trial deadline anew in the second proceeding, the trial court erred in concluding that the Virginia Speedy Trial Act, § 19.2-243 , barred defendant's prosecution under a second set of indictments. Commonwealth v. Smith,, 2012 Va. App. LEXIS 372 (Nov. 20, 2012).

Right to speedy trial exists even if defendant was detained in a different jurisdiction. - Defendant's right to a speedy trial under this section required that he be tried within five months after he was detained in Virginia following indictment even though he was detained in a different jurisdiction from that in which his charge was pending. Funk v. Commonwealth, 16 Va. App. 694, 432 S.E.2d 193 (1993).

The right to speedy trial or discharge may be waived. - Failure to invoke the constitutional provision until after verdict and final judgment is a waiver, and right to discharge may not be asserted for the first time in the Supreme Court on a record involving the merits of the case. Butts v. Commonwealth, 145 Va. 800 , 133 S.E. 764 (1926); Rose v. Commonwealth, 189 Va. 771 , 55 S.E.2d 33 (1949).

The right to a speedy trial may be waived if the defendant is aware of his right. Delph v. Slayton, 343 F. Supp. 449 (W.D. Va. 1972), aff'd in part, vacated in part, 471 F.2d 648 (4th Cir. 1973).

A defendant may agree to a general waiver of his or her statutory speedy trial rights, in which instance the accused foregoes his or her rights granted by this section. Additionally, an accused may make a limited waiver of that right, in which instance the accused foregoes the statutory protection for a specified period of time. Mitchell v. Commonwealth, 30 Va. App. 520, 518 S.E.2d 330 (1999).

Where a defendant affirmatively agreed to a trial date beyond the statutory time period, he waived his right to be tried within the time periods set by statute. Hudson v. Commonwealth, 39 Va. App. 240, 572 S.E.2d 486, 2002 Va. App. LEXIS 697 (2002), aff'd, 267 Va. 36 , 591 S.E.2d 679 (2004).

And consent by the prisoner to a continuance which would prevent the operation of this section is such a waiver, and may be given either in person or by counsel, at all events before arraignment. Kibler v. Commonwealth, 94 Va. 804 , 26 S.E. 858 (1897); Butts v. Commonwealth, 145 Va. 800 , 133 S.E. 764 (1926); Flanary v. Commonwealth, 184 Va. 204 , 35 S.E.2d 135 (1945). On the question of the necessity for the presence of the accused when his counsel moves for a continuance after arraignment, see the cases above cited and Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895).

Subdivision (4) of this section amounts to a provision for a waiver of the right to a speedy trial when defendant requests a continuance. Delph v. Slayton, 343 F. Supp. 449 (W.D. Va. 1972), aff'd in part, vacated in part on other grounds, 471 F.2d 648 (4th Cir. 1973).

Where a defendant moves for, or concurs in the continuance of a trial date, such action tolls the running of the speedy trial bar and that time is specifically excepted under subdivision 4. Mitchell v. Commonwealth, 30 Va. App. 520, 518 S.E.2d 330 (1999).

Defendant's actions in acquiescing with and agreeing to the order, signed by the defendant and his counsel, which was entered well within the five-month period, constituted a continuance of the trial date within the intendment of subdivision (4) of this section. The defendant made no objection to this continuance, and, in fact, affirmatively agreed to the trial date. Commonwealth v. Hutchins, 260 Va. 293 , 533 S.E.2d 622, 2000 Va. LEXIS 122 (2000).

However, continuance moved for or concurred in by defendant, while not included in the timeframe within which the Commonwealth must commence trial, does not waive or bar a defendant's right to assert a speedy trial claim. Mitchell v. Commonwealth, 30 Va. App. 520, 518 S.E.2d 330 (1999).

Continuance requested by defendant. - When the defendant requests and is granted a continuance for an indefinite period of time, the speedy trial period will not recommence until the defendant announces to the Commonwealth that he stands ready for trial; where the accused affirmatively acts and invites the delay in the commencement of trial by such motion, there is no violation of his speedy trial right. Heath v. Commonwealth, 32 Va. App. 176, 526 S.E.2d 798, 2000 Va. App. LEXIS 278 (2000), aff'd, 261 Va. 389 , 541 S.E.2d 906 (2001).

Defendant's § 19.2-243 right to a speedy trial was not violated because, after defendant's arrest, his counsel requested a continuance of slightly over two months, and, at a later docket call date, new defense counsel requested another continuance and agreed to set the trial on a date that was well outside the 152-day deadline; subdivision 4 of this section tolls the statutory speedy trial clock based on actions taken by the accused or his counsel. Although defendant argued that he did not consent to new defense counsel's representation, the transcript made clear that counsel appeared on defendant's behalf to serve as his advocate, and defendant introduced no evidence to nullify this attorney/client relationship. Wyant v. Commonwealth,, 2008 Va. App. LEXIS 574 (Dec. 30, 2008).

Trial court properly denied defendant's motion to dismiss on speedy trial grounds after counsel, who had met with defendant several times and believed defendant wished him to serve as counsel, requested a continuance to prepare for trial, thereby tolling the five-month statutory limit. Farewell v. Commonwealth, 62 Va. App. 428, 749 S.E.2d 197, 2013 Va. App. LEXIS 292 (Oct. 22, 2013).

Trial commenced within the speedy trial time period because the order setting the trial date expressly reflected that continuing the matter was done as a result of a joint motion of defendant and the Commonwealth and that defendant agreed to waive her speedy trial rights. Barksdale v. Commonwealth, No. 0736-20-3, 2021 Va. App. LEXIS 126 (July 20, 2021).

Continuance not objected to by defendant. - Where defendant, who was charged with issuing bad checks, did not object to a continuance to allow for the completion of an expert handwriting analysis based in part upon a handwriting exemplar provided by defendant, any delay in prosecuting defendant did not count toward the nine-month statutory period for prosecuting defendant under the speedy trial statute. Hunt v. Commonwealth,, 2006 Va. App. LEXIS 22 (Jan. 24, 2006).

There was no violation of § 19.2-243 , because defendant could not complain of continuances agreed to by defense counsel or a continuance due to the unavailability of a material witness for the Commonwealth for medical reasons. Withee v. Commonwealth,, 2008 Va. App. LEXIS 488 (Nov. 4, 2008).

No violation of defendant's statutory speedy trial rights occurred because defendant's trial occurred within the five-month period specified by § 19.2-243 ; the five-month speedy trial period was tolled because defendant failed to object to the continuance effected on the trial court's motion. Howard v. Commonwealth, 55 Va. App. 417, 686 S.E.2d 537, 2009 Va. App. LEXIS 569 (2009), aff'd, 281 Va. 455 , 706 S.E.2d 885, 2011 Va. LEXIS 47 (2011).

Trial court properly denied defendant's motion to dismiss on statutory speedy trial grounds where the speedy trial statute was tolled during a joint continuance period and, therefore, defendant's trial occurred 126 days after the finding of probable cause, well within the statutory limit. The trial court's entry of the joint continuance order, endorsed by defendant's counsel, combined with a transcript of defendant's statements from that date, and defendant's admission in a subsequent hearing that he did not say anything about the continuance, supported the trial court's determination. Wimbush v. Commonwealth,, 2010 Va. App. LEXIS 185 (May 11, 2010).

Tolling provisions of § 19.2-243 , the speedy trial statute, applied to a trial court order entered sua sponte continuing defendant's trial date where defendant did not object to the continuance. Howard v. Commonwealth, 281 Va. 455 , 706 S.E.2d 885, 2011 Va. LEXIS 47 (2011).

Defendant's statutory right to a speedy trial was not violated because defendant's counsel acquiesced in a court initiated continuance of the jury trial to a particular date, when counsel failed to clearly object to the continuance, which resulted in tolling a period of time for speedy trial purposes. Simmons v. Commonwealth, No. 1078-15-2, 2016 Va. App. LEXIS 341 (Ct. of Appeals Dec. 13, 2016).

Circuit court erred in concluding that the 93 days resulting from the failure of defendant's counsel to appear did not extend the speedy trial deadline as provided in § 19.2-243 where there was no clear evidence of bad faith by the Commonwealth, defendant's counsel's absence resulted in his failure to object to the sua sponte continuances by the circuit court, and counsel's absence was due to his unforeseen hospitalization, which was of a similar nature and rationale as other tolling provisions of § 19.2-243 . Commonwealth v. Craighead, No. 0131-18-3, 2018 Va. App. LEXIS 158 (June 12, 2018).

Defendant's speedy trial rights were not violated because defendant failed to make an affirmative objection to the trial court's continuation of the case; because defendant failed to lodge an affirmative objection to the continuance, the supreme court would not consider his request to overturn, modify, or reverse the court of appeals decision that absent a showing of bad faith by the Commonwealth, continuances requested by a defendant would not be charged to the Commonwealth. Young v. Commonwealth, 297 Va. 443 , 829 S.E.2d 548, 2019 Va. LEXIS 78 (July 3, 2019).

Because defendant's trial was set for a date after the sixty-day mandate period following an interlocutory appeal expired, defendant, therefore, was required to object to continuing the trial date. Accordingly, dismissal based on a violation of the speedy trial statute was inappropriate because defendant's failure to object amounted to acquiescence that the delay in commencing trial would be charged against defendant. Commonwealth v. Amir Fareed Suluki, No. 0540-19-2, 2019 Va. App. LEXIS 194 (Aug. 27, 2019).

Expressing a desire for separate trials does not thereby instigate a proceeding which should have caused any undue delay. Walker v. Commonwealth, 225 Va. 5 , 301 S.E.2d 28 (1983).

Defendant may request or concur in continuance and simultaneously waive, etc. his statutory speedy trial rights. However, the two are separate and distinct. Mitchell v. Commonwealth, 30 Va. App. 520, 518 S.E.2d 330 (1999).

A continuance has the effect of excluding the time for the delay from the period attributable to the Commonwealth. A waiver, however, foregoes the accused's right to assert the speedy trial statute as a bar to prosecution notwithstanding the effect of the statute. Mitchell v. Commonwealth, 30 Va. App. 520, 518 S.E.2d 330 (1999).

Defendant's right to a speedy trial was not violated because both defendant and the Commonwealth of Virginia agreed at a hearing to continue the case until the final trial date that was entered so that speedy trial was tolled from the hearing date until the trial date. Thorsted v. Commonwealth, No. 1039-15-2, 2016 Va. App. LEXIS 195 (Ct. of Appeals July 12, 2016).

But silence or failure to demand trial is not a waiver. - Proof that the accused remained silent or that he did not demand a trial is not sufficient to overcome the prima facie case made by accused when he has established the fact that three regular terms of the circuit court have been held without trial of an indictment for a felony pending therein. Flanary v. Commonwealth, 184 Va. 204 , 35 S.E.2d 135 (1945).

The mere silence of the accused or his failure to demand that his case be submitted to a jury within the time prescribed by this section does not estop him from claiming its benefits. Howell v. Commonwealth, 186 Va. 894 , 45 S.E.2d 165 (1947).

The silence of the defendant except to request separate trials is not sufficient to preclude defendant from availing himself of the protections of this section or the constitutional guarantee of a speedy trial. Walker v. Commonwealth, 225 Va. 5 , 301 S.E.2d 28 (1983).

A defendant does not waive his right to a speedy trial merely because he remains silent or does not demand that a trial date be set within the prescribed period. Godfrey v. Commonwealth, 227 Va. 460 , 317 S.E.2d 781 (1984).

The defendant's attorney's failure to insist on a trial date within the statutory limit does not dispense with the requirements of this section. Nelms v. Commonwealth, 11 Va. App. 639, 400 S.E.2d 799 (1991).

Defendant's conviction was reversed where he was held continuously in custody and not tried within five months of preliminary hearing; no continuances were requested by or chargeable to him and his filing of motion for psychiatric examination did not necessitate a slow-down of the judicial process. Heath v. Commonwealth, No. 0203-98-2 (Ct. of Appeals July 6, 1999).

Nor is failure to object to continuance requested by Commonwealth. - See Flanary v. Commonwealth, 184 Va. 204 , 35 S.E.2d 135 (1945).

The accused does not waive his right to a speedy trial simply by failing to oppose a motion for a continuance made by the Commonwealth. When the accused and his attorney do not object to a continuance, it is not the same as the accused being a proponent of the continuance. Pittman v. Commonwealth, 10 Va. App. 693, 395 S.E.2d 473 (1990).

Although silence itself does not constitute a waiver of rights pursuant to the speedy trial statute, silence in response to court's interpretation of a pre-existing written waiver may estop an accused from challenging the tolling of the statute until he or she registers an objection or revokes the waiver. Shavin v. Commonwealth, 17 Va. App. 256, 437 S.E.2d 411 (1993).

Defendant did not waive speedy trial right. - Where defense counsel made it clear in both words and by his specific objection to the order of continuance that he intended to rely upon the defendant's speedy trial right, even though he stated that his objection was "technical," and where defense counsel, both verbally and by written objection noted on the order, advised the trial court that the defense was not waiving its speedy trial rights, defendant did not waive his speedy trial right. Pittman v. Commonwealth, 10 Va. App. 693, 395 S.E.2d 473 (1990).

Waiver found. - By signing order which contained language that the defendant's motion for a continuance also constituted a waiver of his statutory speedy trial rights, defendant waived his right to a statutory speedy trial claim for delays preceding the waiver and until such time as the waiver ceased to be effective. Without such language, defendant's motion would have merely been a continuance and would have only tolled the clock prospectively. Mitchell v. Commonwealth, 30 Va. App. 520, 518 S.E.2d 330 (1999).

When defendant, who was charged with two sets of charges, was questioned by the trial court as to waiving his right to speedy trial, without distinguishing between the two sets of charges, and, with benefit of counsel, waived his speedy trial right, and did not object when trial dates on each set of charges were set beyond the speedy trial limit, he effectively waived his right to speedy trial as to both sets of charges. Commonwealth v. Gregory, 263 Va. 134 , 557 S.E.2d 715, 2002 Va. LEXIS 5 (2002), cert. denied, 537 U.S. 838, 123 S. Ct. 156, 154 L. Ed. 2d 59 (2002).

Where the trial record unambiguously established that a continuance of defendant's trial date was ordered upon his motion, and by agreeing or requesting the same without objection, defendant waived his statutory right to a trial within five months of the date the indictment against him was filed. Tate v. Commonwealth, No. 2230-03-1, 2004 Va. App. LEXIS 484 (Ct. of Appeals Oct. 12, 2004).

Because defendant's failure to raise an objection to the trial date constituted an acquiescence to a continuance, defendant's statutory speedy trial rights under § 19.2-243 were not violated. Newsome v. Commonwealth,, 2009 Va. App. LEXIS 59 (Feb. 10, 2009).

Circuit court erred in granting defendant's motion to dismiss the indictments due to the Commonwealth's failure to provide defendant with a speedy trial because defendant waived his statutory speedy trial rights; defendant failed to object to the trial date following the docket call, and his counsel received pleadings and e-mail communications from the Commonwealth, which included the trial date, but counsel failed to note any objection. Commonwealth v. Vinson, No. 0104-19-2, 2019 Va. App. LEXIS 127 (May 28, 2019).

Waiver not found. - Defendant did not waive right to a speedy trial when his counsel, after objecting to a continuance granted on the Commonwealth's motion, provided an available trial date that he knew to be beyond the statutory five month speedy trial period. Baker v. Commonwealth, 25 Va. App. 19, 486 S.E.2d 111 (1997).

Appellant's request for seven separate jury trials did not constitute a waiver of his speedy trial rights under this section, thus, Commonwealth's failure to try appellant on the charges at issue within five months of his preliminary hearing resulted in a violation of this section. Norton v. Commonwealth, 19 Va. App. 97, 448 S.E.2d 892 (1994).

Filing of motions by a defendant will not in every case justify a delay beyond the time required by this section to bring him to trial. When the legislature prescribed the time period in which a defendant should be brought to trial, it necessarily envisioned that discovery and other pretrial motions would be made and decided within that time frame. The burden is always upon the Commonwealth to show that any delay was justified under one of the exceptions, express or implied, to this section. Cantwell v. Commonwealth, 2 Va. App. 606, 347 S.E.2d 523 (1986).

Where the delay from the date of the indictment to the trial was about six and one-half months, but excluding the time allowed for the continuance attributable to the defendant, the trial was held within the five-month period prescribed by this section, there was no violation of the defendant's statutory right to a speedy trial. Stewart v. Commonwealth, No. 0198-86-2 (Ct. of Appeals Sept. 16, 1987).

Time before appointment of counsel not chargeable to defendant. - The passage of time prior to the date counsel is appointed to represent a defendant is not chargeable to him. Jefferson v. Commonwealth, 33 Va. App. 230, 532 S.E.2d 899, 2000 Va. App. LEXIS 606 (2000).

Docketing hearing was not continuance chargeable to defendant. - When defendant first appeared on July 9, 2007, before the trial court, which after asking for the name of defendant's attorney set a trial date of October 31, 2007, within the five-month period prescribed by § 19.2-243 , the July 9 proceeding was not a continuance, but a docketing hearing to set the initial trial date. Thus, the period between July 9 and October 31 was not chargeable to defendant. Plather v. Commonwealth,, 2009 Va. App. LEXIS 144 (Mar. 24, 2009).

Delay chargeable to defendant. - Where delay of trial was from statutory limit of 152 days to 279 days due to time between filing of defendant's first motion for psychological evaluation and second psychological report delay was properly chargeable to defendant since need for second evaluation and consequent transfer order was defendant's frustration of initial evaluation. Moten v. Commonwealth, 7 Va. App. 438, 374 S.E.2d 704 (1988).

Absent satisfactory explanation by the Commonwealth for delay extending beyond the statutory period, the prosecution will be dismissed. However, delay which is attributable to the defendant "will not be counted in determining whether the Commonwealth complied" with the statutory mandate. Thomas v. Commonwealth, 16 Va. App. 851, 434 S.E.2d 319 (1993).

Where transcript from the hearing indicated that both defendant and the Commonwealth agreed to a specified court date to determine the status of defendant's competency evaluation, the number of days between the court's receipt of psychological evaluation of defendant's competency and the hearing to determine defendant's competency status were chargeable to defendant under this section. Blair v. Commonwealth, No. 2550-98-1, 2000 Va. App. LEXIS 405 (Ct. of Appeals May 30, 2000).

Commonwealth did not fail to bring defendant to trial within the time period required by § 19.2-243 where 55 days were excludable based on defendant's request for different court-appointed counsel. Angelina v. Commonwealth,, 2005 Va. App. LEXIS 233 (June 14, 2005).

Speedy trial right had not been violated, even though his trial did not take place until more than five months from a probable cause finding had passed; Two delays, one caused by a motion for substitution of counsel and one caused by a continuance requested by defendant's counsel, were attributable to defendant and once those delays were subtracted, defendant's right to a speedy trial was not violated because it was commenced within the statutory time period. Wallace v. Commonwealth,, 2005 Va. App. LEXIS 413 (Oct. 18, 2005).

Delay for "good cause." - Although 237 days elapsed between indictment and trial, there was no violation of defendant's statutory speedy trial rights under this section, because only 157 days were chargeable to the Commonwealth where the continuance requested by the Commonwealth due to a death in the family of the prosecuting attorney was for "good cause" and thus, was not chargeable to the Commonwealth. Price v. Commonwealth, No. 0384-17-1, 2018 Va. App. LEXIS 148 (June 5, 2018).

Continuance for want of time to try case is no excuse. - Where a prisoner charged with felony was indicted at the first term of the circuit court after his examination, and the case was continued at that term for want of time to try it, and at the second term, the case was continued on the motion of the prisoner, upon the ground of the absence of a material witness for him, and at each of the three succeeding terms the case was again continued for want of time to try it, upon the expiration of the last of the five terms, the prisoner became entitled, under this section, to be forever discharged of the crime imputed to him. Green v. Commonwealth, 40 Va. (1 Rob.) 731 (1842).

Absence of accused when continuance requested. - No problem is presented because the accused was not present when the request for a continuance was made and granted under this section. Delph v. Slayton, 343 F. Supp. 449 (W.D. Va. 1972), aff'd in part, vacated in part on other grounds, 471 F.2d 648 (4th Cir. 1973).

Unexpected circumstances that may warrant a delay. - Time limitations for the commencement of criminal trials specified in this section contemplate that circumstances beyond the control of the trial judge and the parties, such as the sickness of a witness, or those caused, requested or concurred in by the accused, may warrant a delay in the trial to ensure a fair trial to both the accused and the Commonwealth. Baity v. Commonwealth, 16 Va. App. 497, 431 S.E.2d 891 (1993).

Commonwealth has the duty to explain the delay after the defendant raises the issue. Without anything in a court order or elsewhere in the record to show that a defendant agreed to or concurred in the delay of his trial, or instigated a proceeding which of necessity brought about a delay of his trial, the delay must be attributed to the Commonwealth. Bunton v. Commonwealth, 6 Va. App. 557, 370 S.E.2d 470 (1988).

Opportunity to explain reason for delay does not expire with statutory time period. - While most reasons for delay will be documented in records or orders of proceedings prior to the speedy trial hearing, other documentation and the explanation for the delay may become a part of the record for the first time at the speedy trial hearing. The opportunity to prove or document the reason for the delay does not expire with the running of the statutory time period during which the trial must be had. Bunton v. Commonwealth, 6 Va. App. 557, 370 S.E.2d 470 (1988).

Responsibility of trial judge. - Although in setting its docket the trial judge should consider counsel's available dates and whether the date selected is convenient for counsel, absent defendant's request for a continuance or concurrence in the Commonwealth's request or waiver of the right to a speedy trial, the trial judge has the responsibility to commence the trial within the statutorily specified time regardless of whether the date is convenient for counsel. Baker v. Commonwealth, 25 Va. App. 19, 486 S.E.2d 111 (1997).

The failure of the judge who had agreed to try defendant to appear on the trial date is not an excuse similar to those set out specifically in this section, since it would permit a judge, through inadvertence or dereliction, to circumvent the legislative determination of the requirements of a speedy trial. Woodard v. Commonwealth, 214 Va. 495 , 201 S.E.2d 785 (1974).

Ideally, the court's order should specify the reasons for continuances or failure to try within the statutory time limit and state the positions of the parties' with regard to that order. Without anything in a court order or elsewhere in the record to show that a defendant agreed to or concurred in the delay of his trial, or instigated a proceeding which of necessity brought about a delay of his trial, the delay must be attributed to the Commonwealth. Cantwell v. Commonwealth, 2 Va. App. 606, 347 S.E.2d 523 (1986).

An order granting a continuance speaks for itself, and the record must reflect the reason for any delay of defendant's trial. Godfrey v. Commonwealth, 227 Va. 460 , 317 S.E.2d 781 (1984).

Defendant's failure to object to Commonwealth's motion for continuance. - Under the 1995 amendment to this section, a defendant is charged with any delay resulting from the Commonwealth's motion for a continuance if the defendant fails to make a timely objection to such motion. Robinson v. Commonwealth, 28 Va. App. 148, 502 S.E.2d 704 (1998).

The defendant's failure to make a timely objection to a continuance caused the delay resulting from this continuance to be charged to the defendant. Mitchell v. Commonwealth, No. 1738-00-2, 2001 Va. App. LEXIS 328 (Ct. of Appeals June 12, 2001).

Trial court did not err in denying defendant's motion to dismiss the charges against him based on an alleged speedy trial violation, as defendant did not object to the Commonwealth's motion for continuance of his trial; indeed, defendant suggested the new date, which was beyond the nine-month period for trying a case following a finding of probable cause, and defendant acquiesced in the selection of that date. Keene v. Commonwealth, No. 2200-02-2, 2003 Va. App. LEXIS 526 (Ct. of Appeals Oct. 21, 2003).

Statutory speedy trial period was tolled beginning February 8, 2008, under the exception in § 19.2-243 that provides for tolling in the event of a continuance requested by defendant, by joint motion, or by the Commonwealth without objection by defendant. Since defendant did not object to the continuances imposed, the continuances tolled the statutory speedy trial period, and this tolling lasted until July 10, 2009, the date on which the circuit court found defendant competent to stand trial, which was three days before trial. Brown v. Commonwealth, 57 Va. App. 381, 702 S.E.2d 582, 2010 Va. App. LEXIS 490 (2010).

Continuance extended period although trial date not set previously. - Continuance granted on motion of defendant extended the speedy trial period, despite defendant's argument that since no trial date had been set previously, no continuance cognizable under this section occurred. Townes v. Commonwealth, 234 Va. 307 , 362 S.E.2d 650 (1987), cert. denied, 485 U.S. 971, 108 S. Ct. 1249, 99 L. Ed. 2d 447 (1988).

Tolling of statute of limitations. - Delays in the commencement of trial will toll the running of the time limitations; however, that delay which is inherent in the process of fixing a timely trial date and which is accommodated by the statutory time limitations is not a delay that extends these time limitations. Baity v. Commonwealth, 16 Va. App. 497, 431 S.E.2d 891 (1993).

Where a defendant was directly indicted, without prior arrest on the charges, the time prescribed by this section did not begin to run until the date of his arrest; and since he was not held in continuous custody from that time, but was released on bail, the nine month statutory period applied. Harris v. Commonwealth, 21 Va. App. 347, 464 S.E.2d 516 (1995).

Denial of defendant's motion to dismiss the case for an alleged violation of the statutory right to a speedy trial under § 19.2-243 was affirmed because counsel for defendant had agreed to a trial date that was outside of the limitations period and such agreement tolled the limitations period. Thompson v. Commonwealth,, 2006 Va. App. LEXIS 242 (May 30, 2006).

Defendant's convictions for possession of cocaine and forging a public document were reversed because the Commonwealth failed to bring defendant to trial within the five-month speedy trial provision; while defendant's non-availability pursuant to a federal writ ad prosequendum tolled the running of the statute, once the terms of the writ were fulfilled, defendant's unavailability ended and the statutory clock resumed. The Commonwealth presented no evidence that defendant was in custody for more than one day. Jiron-Garcia v. Commonwealth, 48 Va. App. 638, 633 S.E.2d 744, 2006 Va. App. LEXIS 401 (2006).

Defendant's right to a speedy trial was not violated because excusable delay occurred, and defendant acquiesced in the setting of the trial date outside the parameters of § 19.2-243 ; because the trial court granted the Commonwealth's motion to continue the case with no objection from defendant's counsel, and the case was continued on joint motion two other times, the statutory time limit was tolled. Smith v. Commonwealth,, 2009 Va. App. LEXIS 269 (June 16, 2009).

Defendant failed to preserve for appeal his claim of a violation of his constitutional speedy trial rights because defendant's brief reference to the constitutional issue in his written motion to dismiss due to a violation of § 19.2-243 was insufficient to preserve the claim for appeal; the ends-of-justice exception to Va. Sup. Ct. R. 5A:18 did not apply because defendant's trial did not violate the speedy trial statute since it was tolled for 42 days, and defendant made no allegation that he was prejudiced by the fact that assuming no tolling of § 19.2-243 , his trial occurred twelve days beyond the five-month statutory limit. Howard v. Commonwealth, 55 Va. App. 417, 686 S.E.2d 537, 2009 Va. App. LEXIS 569 (2009), aff'd, 281 Va. 455 , 706 S.E.2d 885, 2011 Va. LEXIS 47 (2011).

While defendant argued that the tolling of the statutory speedy trial period ended when the doctor who evaluated him issued her report opining that defendant was competent to stand trial, the court rejected this, concluding that pursuant to subsection E of § 19.2-169.1 , only the court, not the evaluator, could determine whether a criminal defendant was competent to stand trial. Although the trial court did not make a competency determination until eight months after the doctor issued her report, this did not violate the statutory mandate to promptly determine whether defendant was competent to stand trial as subsection E of § 19.2-169.1 required the trial court to promptly determine a defendant's competency only after receiving the evaluator's report concerning a defendant's competency, and the trial court made a competency decision two months after receiving the report, which had been sent to the wrong court initially. Brown v. Commonwealth, 57 Va. App. 381, 702 S.E.2d 582, 2010 Va. App. LEXIS 490 (2010).

Effect of correction of inadvertent omission on tolling of section. - Where the record clearly established that trial was continued from August 11, 1997, upon defendant's motion, and the disputed nunc pro tunc order simply corrected the inadvertent omission of a contemporaneous order memorializing the event, as otherwise reflected in the record, then this section was tolled on August 11, 1997. Michael v. Commonwealth, No. 2451-98-1, 2000 Va. App. LEXIS 421 (Ct. of Appeals June 6, 2000).

Continuances requested by defendant when Commonwealth discovered that evidence was lost or missing and when the Commonwealth advised defendant of information which he wanted to investigate would be attributed to defendant, absent a showing of bad faith on the part of the Commonwealth. Taylor v. Commonwealth, 4 Va. App. 45, 354 S.E.2d 74 (1987).

Initial appearance without counsel. - When an accused first appears before a trial court in a felony case without counsel and the matter is continued to permit the accused to obtain private counsel, that delay does not toll the time limitations contained in this section for the commencement of the accused's trial; rather, that delay is inherent in the orderly process of fixing a trial date and is necessarily included within or factored into the time limitations of this section. Baity v. Commonwealth, 16 Va. App. 497, 431 S.E.2d 891 (1993).

Failure of counsel to appear chargeable to defendant. - Failure of defense counsel to appear at a docket call is not a delay inherent in the process of preparing the matter for trial, and such failure to appear requires a continuance as effectively as though defense counsel had moved for a continuance. Accordingly, any delay resulting from counsel's failure to appeal is chargeable to the defendant. Jefferson v. Commonwealth, 33 Va. App. 230, 532 S.E.2d 899, 2000 Va. App. LEXIS 606 (2000).

Defendant joined Commonwealth in request for continuance but later rescinded. - Where defendant joined with the Commonwealth in a request for a continuance of the case from April 18 to May 19, 1989, a period of 30 days, even though defendant rescinded his concurrence the following day by moving to dismiss the indictment, this period of time was excepted from application of the statute under subdivision (4). Braxton v. Commonwealth, No. 0800-89-3 (Ct. of Appeals July 24, 1990).

Defendant's responsibility to provide adequate record. - While the Commonwealth must prove that a given delay was excusable, the defendant has the responsibility of providing the court with an adequate record when he or she seeks to avoid being charged with the delay attributed to his or her own motion for continuance on the grounds that such motion was necessitated by prosecutorial efforts to hinder or impede the defendant's timely preparation for trial. Robinson v. Commonwealth, 28 Va. App. 148, 502 S.E.2d 704 (1998).

Nunc pro tunc order stating continuance granted was invalid. - Where neither defendant nor Commonwealth requested a continuance, and trial judge did not grant a continuance, rather the parties and trial judge agreed upon a date on which they would convene in order to schedule the case for trial, the trial judge's entry of an order nunc pro tunc stating that the appellant moved for and was granted a continuance did not establish that a continuance was granted. The trial court attempted, after the fact, to establish that it had granted a continuance, when, in fact, the parties and the court merely agreed to a date on which they would schedule trial. Thus, the trial court's order nunc pro tunc was invalid, and the Commonwealth failed to bring the appellant to trial within the period prescribed by this section. Blackburn v. Commonwealth, No. 2166-96-3 (Ct. of Appeals Oct. 14, 1997).

Where case had been continued by agreement but no court entry upon the record reflected such a continuance, because trial court never considered a motion for a continuance and never ordered a continuance, there was no defect or omission in the record. Therefore, the trial court lacked authority to issue an order nunc pro tunc reciting that a continuance had been granted when in fact the court had not granted a motion for a continuance on the motion of or with the concurrence of the defendant. The nunc pro tunc order was thus invalid and could not bar appellant's speedy trial claim. Blevins v. Commonwealth, No. 1264-96-3 (Ct. of Appeals Sept. 30, 1997).

Court's continuance order did not cause "failure to try." - Court's order continuing the case to the next term of court did not cause a "failure to try the accused." Where the accused had simply been brought before the court for the appointment of counsel, no trial date had been set and no attempt was made to set one, the effect of appointing counsel was to prepare the matter for trial, and did not cause a failure to try the defendant. Nelms v. Commonwealth, 11 Va. App. 639, 400 S.E.2d 799 (1991).

When a trial court conclusively finds that the Commonwealth did not act in bad faith even if the Commonwealth may have been party to creating a Hobson's choice for appellant, no violation of the statutory speedy trial requirements is implicated, thereby justifying a dismissal of the charges. Young v. Commonwealth, No. 0265-17-4, 2018 Va. App. LEXIS 73 (Mar. 20, 2018), aff'd Young v. Commonwealth, 297 Va. 443 , 829 S.E.2d 548, 2019 Va. LEXIS 78 (2019).

When Commonwalth does not act in bad faith. - When a trial court conclusively finds that the Commonwealth did not act in bad faith even if the Commonwealth may have been party to creating a Hobson's choice for appellant, no violation of the statutory speedy trial requirements is implicated, thereby justifying a dismissal of the charges. Young v. Commonwealth, No. 0265-17-4, 2018 Va. App. LEXIS 73 (Mar. 20, 2018), aff'd Young v. Commonwealth, 297 Va. 443 , 829 S.E.2d 548, 2019 Va. LEXIS 78 (2019).

Defendant's right to a speedy trial was not violated because even though the Commonwealth's discovery failures necessitated a court-ordered continuance, since the trial court ruled it did not act in bad faith, the continuance could not be imputed to the Commonwealth; the trial court expressly ruled that the Commonwealth did not act in bad faith, because that determination had not been contested, it was the law of the case. Young v. Commonwealth, No. 0265-17-4, 2018 Va. App. LEXIS 73 (Mar. 20, 2018), aff'd Young v. Commonwealth, 297 Va. 443 , 829 S.E.2d 548, 2019 Va. LEXIS 78 (2019).

The burden is on the Commonwealth to prove excuse for the failure to try defendant before three regular terms had passed. Woodard v. Commonwealth, 214 Va. 495 , 201 S.E.2d 785 (1974); Robinson v. Commonwealth, 28 Va. App. 148, 502 S.E.2d 704 (1998).

The burden is on the prosecution to prove excusable delay. Stephens v. Commonwealth, 225 Va. 224 , 301 S.E.2d 22 (1983).

While in the orderly administration of justice some delay is unavoidable and some is essential to due process, courts must inquire into the reasons for the delay. Stephens v. Commonwealth, 225 Va. 224 , 301 S.E.2d 22 (1983).

If a defendant is not tried within the time specified in this section, the burden is on the Commonwealth to explain the delay. Godfrey v. Commonwealth, 227 Va. 460 , 317 S.E.2d 781 (1984).

In Virginia, when a defendant asserts that he has been denied a speedy trial, the burden is on the Commonwealth to explain the delay. Cantwell v. Commonwealth, 2 Va. App. 606, 347 S.E.2d 523 (1986); Moten v. Commonwealth, 7 Va. App. 438, 374 S.E.2d 704 (1988).

Argument that continuance was for defendant's benefit held untenable. - See Woodard v. Commonwealth, 214 Va. 495 , 201 S.E.2d 785 (1974).

Delay attributed to defendant's actions. - Delay in bringing defendant to trial beyond the statutorily prescribed time was attributed to his actions, where defense counsel's request to withdraw was necessitated by defendant's uncooperative attitude and two subsequent continuances were attributable to him even though he was not informed and did not consent to either continuance. Shearer v. Commonwealth, 9 Va. App. 394, 388 S.E.2d 828 (1990).

Where record clearly indicated that the substantial delay of trial was occasioned by defendant's motion for an evaluation pursuant to § 19.2-169.1 and his conduct in relation to the evaluation; i.e., waiting almost five months to supply information necessary for the examination to commence, no denial of speedy trial occurred. Jones v. Commonwealth, 13 Va. App. 566, 414 S.E.2d 193 (1992).

Where the accused affirmatively acts and invites a delay in the commencement of trial by a motion for continuance, there is no violation of his speedy trial rights. Stinnie v. Commonwealth, 22 Va. App. 726, 473 S.E.2d 83 (1996).

Request for psychiatric evaluation. - Where the court had granted the defendant's motion requesting a psychiatric evaluation to determine his competency to stand trial, the period following the granting of such motion was for the defendant's benefit and, notwithstanding the absence of a formal motion to continue the matter to permit the examination to be conducted, the de facto continuance which resulted was caused by his action and was to be subtracted from time limit set by this section. Heath v. Commonwealth, 32 Va. App. 176, 526 S.E.2d 798, 2000 Va. App. LEXIS 278 (2000), aff'd, 261 Va. 389 , 541 S.E.2d 906 (2001).

Exception for confinement in hospital. - A trial court's order continuing a defendant's case because the defendant was receiving medical treatment at a diagnostic center stated a reason for the continuance sufficiently similar to the medical treatment provision enumerated in the speedy trial statute to bring that continuance within the spirit of the statute and to toll the running of the speedy trial period until the end of the defendant's confinement for medical care. Mitchell v. Commonwealth, No. 1738-00-2, 2001 Va. App. LEXIS 328 (Ct. of Appeals June 12, 2001).

Hospitalization exception inapplicable. - Confinement exception is not applicable where the defendant was hospitalized and released before any trial dates were set. No delay in the trial was caused by the defendant's emergency hospitalization for treatment. Therefore, it could not be charged to the defendant. Taylor v. Commonwealth, 12 Va. App. 425, 404 S.E.2d 86 (1991).

Illness of witness for Commonwealth. - Delay from February 5 to May 14 was not chargeable to the Commonwealth in light of unavailability of Commonwealth's witness due to prostate surgery and relocation to North Carolina, notwithstanding fact that witness was able to return to work "in early March." Wiggins v. Commonwealth, No. 0187-99-1 (Ct. of Appeals Dec. 28, 1999).

Defendant not held continuously. - Where, less than five months after his arrest, defendant was released on bond, failed to appear for trial, and was re-arrested on a capias and incarcerated, he had not been held "continuously in custody" on the drug charges; therefore, when he was released on bond, the five-month limit of § 19.2-243 ceased to apply, and the nine-month limitation came into play. McCray v. Commonwealth, 44 Va. App. 334, 605 S.E.2d 291, 2004 Va. App. LEXIS 579 (2004).

Presumption of accuracy of order. - Where a defendant does not object to the accuracy of an order within 21 days after its entry, an appellate court may presume that the order, as the final pronouncement on the subject, rather than a transcript that may be flawed by omissions, accurately reflects what transpired. Thomas v. Commonwealth, 16 Va. App. 851, 434 S.E.2d 319 (1993).

Court must confine review to record. - In assessing responsibility for delay in trying a defendant, the court must confine its review to the record. Representations of counsel, or even of the trial judge, if not supported by the record, are insufficient. Thus, continuances must be documented to enable the court to review and evaluate them when they are challenged. Thomas v. Commonwealth, 16 Va. App. 851, 434 S.E.2d 319 (1993).

Appellate review of responsibility for delay. - In assessing responsibility for delay in trying a defendant, the Supreme Court will confine the review to the record that comes before it. Representations of counsel, or even of the trial judge, if not supported by the record, are insufficient. Godfrey v. Commonwealth, 227 Va. 460 , 317 S.E.2d 781 (1984).

CIRCUIT COURT OPINIONS

Construction. - The speedy trial statute should be construed to assure both a defendant's constitutional right to a speedy trial and society's interest in swift and certain justice. Commonwealth v. Jordan, 54 Va. Cir. 312, 2000 Va. Cir. LEXIS 603 (Suffolk 2000).

Although the Commonwealth bears a significant responsibility to assure a trial in compliance with the statutory speedy trial requirements, this does not mean that defense counsel can refuse to set a case within a reasonable time so as to create a speedy trial issue. Commonwealth v. Feimster, 95 Va. Cir. 306, 2017 Va. Cir. LEXIS 44 (Norfolk Mar. 19, 2017).

Tolled speedy trial clock resumes running once a defendant is subsequently taken into custody and incarcerated in Virginia, regardless the reason for the detention. Commonwealth v. Gregg,, 2019 Va. Cir. LEXIS 32 (Fairfax County Feb. 22, 2019).

Section is inapplicable. - Parking violations were not traffic infractions required to be tried in General District Court within nine months as provided in § 19.2-243 . In re Scott, 80 Va. Cir. 558, 2010 Va. Cir. LEXIS 89 (Norfolk July 13, 2010).

Defendant not deprived of right to speedy trial. - Defendant's motion to dismiss an indictment charging him with murder on the ground that his right to a speedy trial under § 19.2-243 had been violated was denied because the speedy trial clock could not have resumed running based solely upon the issuance of a competency report, and until the circuit court determined the issue of defendant's competency, no trial could take place; it is the court, not the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services, which determines a defendant's competency to stand trial. Commonwealth v. Brown,, 2009 Va. Cir. LEXIS 56 (Fairfax Aug. 10, 2009).

Defendant was not denied the right to a speedy trial, as all of the delay was attributable to defendant, who insisted that he would be prejudiced unless given time to present and argue the issues addressed in prior court hearings. Commonwealth v. Williams,, 2014 Va. Cir. LEXIS 172 (Richmond County June 18, 2014).

Defendant's statutory right to a speedy trial was not violated as to the third indictment because even if the third indictment was an extension of the first indictment, when the nolle prosequi of the second indictment was granted defendant was not released from custody because of the first indictment; the speedy-trial clock would run from the day after probable cause was found at defendant's preliminary hearing to the date when a joint continuance request was granted. Commonwealth v. Feimster, 95 Va. Cir. 306, 2017 Va. Cir. LEXIS 44 (Norfolk Mar. 19, 2017).

Dismissal of defendant's case on the ground of a speedy trial violation was not appropriate because the circuit court found that the trial commenced at arraignment for speedy trial purposes, calculated the number of elapsed days in the relevant time period, and determined that the speedy trial statute was not violated based upon continuances requested by defendant and the Commonwealth of Virginia's nolle prosequi and return of a new indictment. Commonwealth v. Parrish, 101 Va. Cir. 270, 2019 Va. Cir. LEXIS 38 (Greene County Mar. 10, 2019).

Defendant's speedy trial rights were not violated because the Commonwealth of Virginia's reason for a delay was excusable and not to be attributed to the Commonwealth as personal service was obtained upon a material witness who did not appear. Commonwealth v. Leftwich, 150 Va. Cir. 66, 2020 Va. Cir. LEXIS 51 (Roanoke County Apr. 14, 2020).

Supreme Court of Virginia orders declaring and extending a judicial emergency due to a pandemic provided a basis for tolling the speedy trial provisions because the pandemic was a natural disaster that required a continuance of a limited duration; defendant asserted defendant's rights and noted defendant's objection to any delay; while defendant was prejudiced by continued incarceration, no evidence was adduced regarding prejudice; and the safety of defendant, witnesses, attorneys, and court personnel would have been placed at risk. Commonwealth v. Leftwich, 150 Va. Cir. 66, 2020 Va. Cir. LEXIS 51 (Roanoke County Apr. 14, 2020).

No statutory violation of right required for constitutional violation of right. - Court did not err in denying the Commonwealth's motions to reconsider as the court found no affirmative act by defendant relinquishing his constitutional right to a speedy trial; defendant's acquiescence in the continuance, if any, was mere acknowledgement of the fact that the court was, at that time, prohibited from conducting jury trials due to the ongoing Covid-19 Pandemic, and defense counsel's endorsement of the order was not the same as defendant being a proponent of the motion to continue; and the Commonwealth's argument that defendant's right to a constitutional speedy trial could not be violated if his right to a statutory speedy trial was not also violated had no basis in the law. Commonwealth v. Murphy,, 2021 Va. Cir. LEXIS 45 (Chesterfield County Mar. 19, 2021).

Running of time period. - If an indictment or presentment is found against an accused but he has not been arrested for the offense charged therein, the five-month period within which he must be brought to trial runs from the date of his arrest, and, in the absence of a preliminary hearing, the five-month period runs from the date of indictment or the date of arrest, whichever comes later. Commonwealth v. Jordan, 54 Va. Cir. 312, 2000 Va. Cir. LEXIS 603 (Suffolk 2000).

Assuming arguendo, that the trial did not commence at arraignment, the declaration of a judicial emergency combined with the declarations of emergency by the United States President and the Governor invoked Va. Code Ann. § 19.2-243 (7 to toll speedy trial given the distance required between jurors due to the Coronavirus. Commonwealth v. Mills, 104 Va. Cir. 350, 2020 Va. Cir. LEXIS 33 (Madison County Mar. 19, 2020).

For purposes of a speedy trial analysis, defendant's trial commenced at arraignment because it was a critical stage of the trial that required his presence. Commonwealth v. Mills, 104 Va. Cir. 350, 2020 Va. Cir. LEXIS 33 (Madison County Mar. 19, 2020).

Provisions of subdivision 7 of § 19.2-243 are applicable during the state, national and judicial declarations of emergency and speedy trial is tolled during those times; COVID-19 pandemic rises to the level of a natural disaster and thus tolls the speedy trial statute. Commonwealth v. Delgado,, 2020 Va. Cir. LEXIS 78 (Orange County May 30, 2020).

Coronavirus tolls speedy trial. - Because of the Coronavirus pandemic, the court continued the jury trial set for April 2, 2020, over defendant's presumed objection. The Coronavirus was something that was beyond the control of the court, attorneys and the parties involved in the case. Commonwealth v. Hensley,, 2020 Va. Cir. LEXIS 37 (Orange County Mar. 30, 2020).

Assuming arguendo, that the trial had not commenced at arraignment, the two declarations of a judicial emergency by the Virginia Supreme Court combined with the declarations of emergency by President Trump and Governor Northam invoked the provisions of subdivision 7 of § 19.2-243 to toll speedy trial during the natural disaster caused by the Coronavius. Commonwealth v. Christiancy, 150 Va. Cir. 16, 2020 Va. Cir. LEXIS 40 (Orange County Apr. 3, 2020).

For speedy trial purposes under § 19.2-243 , defendant's trial had already commenced where he had appeared and entered a plea of not guilty. Commonwealth v. Christiancy, 150 Va. Cir. 16, 2020 Va. Cir. LEXIS 40 (Orange County Apr. 3, 2020).

Even if trial did not commence at defendant's arraignment, three declarations of a judicial emergency by the Virginia Supreme Court combined with the declarations of emergency by the President of the United States and the Virginia Governor invoked the provisions of this section to toll the speedy trial during the natural disaster caused by the Covid-19 Coronavirus pandemic. Commonwealth v. Hudson,, 2020 Va. Cir. LEXIS 59 (April 27, 2020).

Four declarations of a judicial emergency by the Virginia Supreme Court and orders suspending jury trials, combined with declarations of emergency by President Trump and Governor Northam, invoked the statute to toll defendant's speedy trial during the natural disaster caused by the coronavirus; it rises to the level of a natural disaster as a communicable disease of a public health threat and the court could not appropriately protect the health and safety of trial participants if it conducted a jury trial during this judicial emergency and pandemic. Commonwealth v. Delgado,, 2020 Va. Cir. LEXIS 78 (Orange County May 30, 2020).

When defendant must speak. - Arrest which begins the running of the time within which a defendant must be brought to trial involves the arrest for the offense described in the indictment for which defendant is tried. Commonwealth v. Jordan, 54 Va. Cir. 312, 2000 Va. Cir. LEXIS 603 (Suffolk 2000).

Under paragraph 4., an accused may stand mute when the court sets a trial date, without waiving his rights to speedy trial, but he must speak or risk waiving his speedy trial rights when the court continues the trial to a subsequent date. Commonwealth v. Jordan, 54 Va. Cir. 312, 2000 Va. Cir. LEXIS 603 (Suffolk 2000).

Natural disasters. - Court sua sponte continued defendant's scheduled jury trial because the COVID-19 pandemic was a natural disaster that tolled the speedy trial statute where the pandemic was beyond the control of the court, attorneys, and the parties involved in the case, a jury trial could not be conducted without explicitly endangering the health, welfare, and safety of all parties, including, without limitation, potential jurors, actual jurors, actual alternate jurors, prosecutors, defense counsel, the defendant, deputy sheriffs, clerks, court reporters, news media, victim service personnel, the numerous witnesses summonsed to appear in the case, and all the persons with whom the parties interacted with daily. Commonwealth v. Humphries,, 2020 Va. Cir. LEXIS 45 (Orange County Apr. 12, 2020).

Defendant's failure to object to nolle prosequi of first indictment. - Defendant's right to a speedy trial was not violated by the issuance of a second indictment for use of a firearm in the commission of a felony after the first indictment was nolle prosequi because when the first indictment was nolle prosequi, without objection by defendant, the warrants were laid to rest and the speedy clock trial stopped runing. Commonwealth v. Waddler, 66 Va. Cir. 257, 2004 Va. Cir. LEXIS 330 (Portsmouth Dec. 3, 2004).

Delay based on defendant's conduct. - First indictment did not violate defendant's statutory right to a speedy trial because the circuit court's prior order clearly stated the case was continued "on motion of defendant," and the circuit court declined to re-litigate matters on which it already had ruled. Commonwealth v. Feimster, 95 Va. Cir. 306, 2017 Va. Cir. LEXIS 44 (Norfolk Mar. 19, 2017).

No part of the delay in setting the matter for trial was attributable to defendant where his motion to suppress and motion for disclosure of exculpatory and impeachment evidence were normal and customary, and his acquiescence to a continuance from one docket call did not constitute tolling under case law. Commonwealth v. Morrison, 98 Va. Cir. 79, 2018 Va. Cir. LEXIS 36 (Richmond Jan. 17, 2018).

Delay based on Covid-19 coronavirus pandemic. - Even if trial did not commence at defendant's arraignment, three declarations of a judicial emergency by the Virginia Supreme Court combined with the declarations of emergency by the President of the United States and the Virginia Governor invoked the provisions of this section to toll the speedy trial during the natural disaster caused by the Covid-19 Coronavirus pandemic. Commonwealth v. Clark,, 2020 Va. Cir. LEXIS 58 (Orange County Apr. 27, 2020).

Continuance of defendant's criminal trial was necessitated and the time period during which the court was not conducting criminal jury or bench trials due to the COVID-19 emergency was excludable because the coronavirus pandemic constituted a natural disaster, as it was a communicable disease of public health threat, and the court found that it could not protect the health and safety of the trial participants if it conducted a jury trial in the midst of the judicial emergency and pandemic. Commonwealth v. Vila, 104 Va. Cir. 389, 2020 Va. Cir. LEXIS 39 (Fairfax County Mar. 30, 2020).

Exception for confinement in hospital. - When the defendant first indicted by a grand jury for capital murder and robbery was found mentally incompetent and confined to a state hospital the indictment against the defendant was dismissed; however, the trial court found that a later indictment against the defendant for the same crimes obtained upon the defendant's release from the hospital could not be dismissed on the ground of the passage of time as the defendant alleged. Commonwealth v. Sink, 61 Va. Cir. 279, 2003 Va. Cir. LEXIS 18 (Portsmouth 2003).

Exception for surgery on key witness. - Commonwealth was entitled to a finding that the continuance of the trial due to a key witness being unavailable as a result of surgery was excusable delay based only on the proffer of the Commonwealth's attorney. Commonwealth v. Francois, 102 Va. Cir. 48, 2019 Va. Cir. LEXIS 72 (Norfolk Apr. 5, 2019).

Right to speedy trial violated. - Commonwealth violated defendant's statutory right to a speedy trial pursuant to § 19.2-243 . Once the Department of Corrections took custody of defendant, the speedy trial clock continued to tick while she was incarcerated, even during the period when there was an outstanding bench warrant for her failure to appear. Commonwealth v. Gregg,, 2019 Va. Cir. LEXIS 32 (Fairfax County Feb. 22, 2019).

Waiver. - Defendant's motion to dismiss an indictment charging him with murder on the ground that his right to a speedy trial under § 19.2-243 had been violated was denied because defendant failed to advise the circuit court of any objection to prolonging the effect of an indefinite continuance, and that period of time had to be excluded from the computation of the five-month speedy trial period; because a failure to object to a continuance is the functional equivalent of presenting a motion for a continuance or acquiescing in the granting of such a motion, a defendant can no longer stand mute, yet claim that the speedy trial clock had not been tolled. Commonwealth v. Brown,, 2009 Va. Cir. LEXIS 56 (Fairfax Aug. 10, 2009).

Because only 123 days had elapsed for speedy trial purposes, defendant having requested or agreed to other continuances, there was no violation of the five-month period set forth in this section. Commonwealth v. Jones, 94 Va. Cir. 540, 2016 Va. Cir. LEXIS 200 (Chesapeake Dec. 12, 2016).

Defense counsel's failures to request a transportation order and to inform the Commonwealth's Attorney's Office of defendant's return to the custody of the Department of Corrections did not constitute waivers of defendant's statutory right to a speedy trial. While the Commonwealth attributed the delay to defendant, the Commonwealth failed to justify the delay. Commonwealth v. Gregg,, 2019 Va. Cir. LEXIS 32 (Fairfax County Feb. 22, 2019).

Article 2. Venue.

Michie's Jurisprudence. - For related discussion, see 4A M.J. Conspiracy, § 9; 19 M.J. Venue, §§ 14, 15.

§ 19.2-244. Venue in general.

  1. Except as otherwise provided by law, the prosecution of a criminal case shall be had in the county or city in which the offense was committed. Except as to motions for a change of venue, all other questions of venue must be raised before verdict in cases tried by a jury and before the finding of guilty in cases tried by the court without a jury.
  2. If an offense has been committed within the Commonwealth and it cannot readily be determined within which county or city the offense was committed, venue for the prosecution of the offense may be had in the county or city (i) in which the defendant resides; (ii) if the defendant is not a resident of the Commonwealth, in which the defendant is apprehended; or (iii) if the defendant is not a resident of the Commonwealth and is not apprehended in the Commonwealth, in which any related offense was committed.
  3. The courts of a locality shall have concurrent jurisdiction with the courts of any other locality adjoining such locality over criminal offenses committed in or upon the premises, buildings, rooms, or offices owned or occupied by such locality or any officer, agency, or department thereof that are located in the adjoining locality.

    (1975, c. 495; 2015, cc. 632, 637; 2018, c. 164.)

Cross references. - For prosecution of offenses relating to credit cards in any county or city in which any act of the crime was committed or any issuer sustained financial loss, see § 18.2-198.1 .

The 2015 amendments. - The 2015 amendments by cc. 632 and 637 are nearly identical, and added the subsection designation and added subsection B. Acts 2015, c. 637 also added clause (iii) in subsection B.

The 2018 amendments. - The 2018 amendment by c. 164 added subsection C.

CASE NOTES

Venue. - At the time of defendant's uttering offense, the "special venue" statute, granting concurrent territorial jurisdiction to the City of Salem and Roanoke County for the prosecution of certain crimes remained in effect as part of the Acts of Assembly. Accordingly, the court did not err by ruling that Roanoke County was an appropriate venue for the trial on an offense that occurred in Salem. Dillon v. Commonwealth, No. 1375-16-3, 2017 Va. App. LEXIS 252 (Oct. 10, 2017); (decided under former § 17.1-515.2 )

Defendant made a false report regarding the commission of a crime to law-enforcement officials in Loudoun County. Pursuant to § 19.2-244 , Loudoun County was a proper venue in which to prosecute the offense. McGuire v. Commonwealth, 68 Va. App. 736, 813 S.E.2d 552, 2018 Va. App. LEXIS 137 (2018).

Venue not substantive element of crime and similar to jurisdiction. - Even though venue is an element which the prosecution must prove, it is not a substantive element of the crime and is similar in nature to jurisdiction. Venue is usually determined by the court as a matter of law where the facts established it or not in dispute and where it is established by a preponderance of the evidence. Harris v. Commonwealth, No. 0849-88-2 (Ct. of Appeals Aug. 21, 1990) (decided under prior law).

The Commonwealth may prove venue by either direct or circumstantial evidence. Davis v. Commonwealth, 14 Va. App. 709, 419 S.E.2d 285 (1992).

Judicial notice of venue. - Reversal of conviction for possession with intent to distribute cocaine and remand for a new trial was appropriate because the record did not clearly reflect that the trial court took judicial notice that the situs of the alleged offense was within the corporate limits of the city where the trial took place, and absent such judicial notice, the evidence was insufficient to prove venue. Williams v. Commonwealth, 289 Va. 326 , 771 S.E.2d 675, 2015 Va. LEXIS 44 (2015).

Burden of proof. - The burden in a criminal case is upon the Commonwealth to prove venue by evidence which is either direct or circumstantial. Pollard v. Commonwealth, 220 Va. 723 , 261 S.E.2d 328 (1980).

Allegations of venue contained solely in an indictment cannot supply proof, since the mere fact that police of a certain jurisdiction investigate a crime cannot support an inference that the crime occurred within their jurisdiction. Sutherland v. Commonwealth, 6 Va. App. 378, 368 S.E.2d 295 (1988).

Standard of proof. - To prove venue, the Commonwealth must produce evidence sufficient to give rise to a strong presumption that the offense was committed within the jurisdiction of the court, and this may be accomplished either by direct or circumstantial evidence. Foster-Zahid v. Commonwealth, 23 Va. App. 430, 477 S.E.2d 759 (1996).

Motion to strike to challenge venue. - The Virginia Supreme Court has impliedly upheld the use of the motion to strike to challenge venue. Sutherland v. Commonwealth, 6 Va. App. 378, 368 S.E.2d 295 (1988).

When objection must be made. - An objection to venue must be raised before verdict. Day v. Commonwealth, 12 Va. App. 1078, 407 S.E.2d 52 (1991).

Right to challenge venue waived. - Defendant's motion to dismiss for want of jurisdiction on grounds the Commonwealth did not prove where the crimes took place was properly denied because (1) he waived his right to contest venue by not doing so before pleading guilty; and (2) as he pled guilty to aggravated sexual battery, he conceded that the trial court had jurisdiction. Bryant v. Commonwealth, No. 1462-12-4, 2013 Va. App. LEXIS 214 (Ct. of Appeals July 23, 2013).

Evidence offered to prove venue must furnish the foundation for a "strong presumption" that the offense was committed within the jurisdiction of the court. Pollard v. Commonwealth, 220 Va. 723 , 261 S.E.2d 328 (1980).

Ordinarily, a criminal case must be prosecuted in the county or city in which the offense was committed. To prove venue, the Commonwealth must produce evidence sufficient to give rise to a "strong presumption" that the offense was committed within the jurisdiction of the court, and this may be accomplished by either direct or circumstantial evidence. Cheng v. Commonwealth, 240 Va. 26 , 393 S.E.2d 599 (1990).

The evidence to establish venue in a criminal case must be sufficient to present a "strong presumption" that the offense was committed within the jurisdiction of the court. Davis v. Commonwealth, 14 Va. App. 709, 419 S.E.2d 285 (1992).

Motion sufficient to put court on notice that venue in question. - At the close of the Commonwealth's evidence, defendant moved to strike the evidence for failure of the Commonwealth to prove that he did take, steal, and carry away automobile from Chesterfield County. In other words, the Commonwealth failed to establish that the crime occurred in Chesterfield County. While defendant could have stated his venue objection more clearly, the court finds that his objection was sufficient to put the trial court on notice that venue was in question. Sutherland v. Commonwealth, 6 Va. App. 378, 368 S.E.2d 295 (1988).

Issue of venue submitted to jury. - The exact physical location of a murdered body within the river constituted a factual question which the jury could appropriately decide. However, the exact location of the boundary between Virginia and Maryland involves an interpretation of § 7.1-7 [now § 1-308 ] and represents a legal question outside the jury's province. If it were impossible for the jurors to interpret the evidence concerning the body's exact placement so as to conclude under § 7.1-7 [now § 1-308 ] that the body lay in Virginia, then the trial court should not have submitted the issue of venue to the jury. Traverso v. Commonwealth, 6 Va. App. 172, 366 S.E.2d 719 (1988).

Evidence held sufficient to prove venue. - Evidence was sufficient to prove venue in Augusta County where investigating officer testified that offending firearms were found on property in Craigsville, and trial court, without objection, took judicial notice that Craigsville was located in Augusta County, expressly rejecting testimony of both defendant and his estranged wife to the contrary. Lawhorn v. Commonwealth, No. 2100-98-3 (Ct. of Appeals Oct. 26, 1999).

Ordinarily, a criminal case had to be prosecuted in the county or city in which the offense was committed, under this section; despite special venue provision of former subsection A of § 18.2-60.3 , there was no error in the refusal to grant defendant's motion to strike a stalking charge based upon an allegation of improper venue, as the evidence gave rise to a strong presumption that at least one of the stalking events occurred within the jurisdiction of the court where defendant was tried. Raja v. Commonwealth, 40 Va. App. 710, 581 S.E.2d 237, 2003 Va. App. LEXIS 318 (2003).

Defendant's two grand larceny and two uttering a forged check convictions were reversed on appeal, as the trial court erred in finding the evidence insufficient to establish venue, no evidence was presented by the Commonwealth as to the location of the alleged crimes, and the Commonwealth failed to ask the court to take judicial notice of that location. Harris v. Commonwealth,, 2006 Va. App. LEXIS 493 (Oct. 31, 2006).

It was clearly established that the charged larceny was committed in Henrico County under circumstances in which the Commonwealth presented evidence from an employee of the Henrico County store from which inkjet cartridges were allegedly stolen, who verified that inkjet cartridges found among those in a box found in defendant's car were those missing from his store; moreover, witnesses identified defendant as the individual shown leaving the store carrying a box similar to the one found in his car on the store's security videotape. Based on these facts, the Commonwealth presented sufficient evidence to support the trial court's venue findings. Brown v. Commonwealth,, 2007 Va. App. LEXIS 223 (May 29, 2007).

Venue was established in the proper county in defendant's trial for possession of heroin and possession of cocaine because the evidence raised a strong presumption that the offense occurred in the county when defendant possessed cocaine and heroin there; knowing and intentional possession of a controlled substance is an ongoing and continuing offense, and self-induced intoxication or unconsciousness will not be considered a defense to possession of drugs. Morris v. Commonwealth, 51 Va. App. 459, 658 S.E.2d 708, 2008 Va. App. LEXIS 170 (2008).

After defendant's wallet containing cocaine was discovered in an airport, the evidence was sufficient to establish a strong presumption that defendant's crime occurred in Loudoun County, and venue for defendant's trial was proper. All portions of the airport in which a person would lose a wallet were in Loudoun County, and the only portions of the airport in Fairfax County were parts of a few runways, the green open areas surrounding those runways, and parts of a few access roads. Hockensmith v. Commonwealth,, 2008 Va. App. LEXIS 500 (Nov. 12, 2008).

Conviction of assault in violation of Virginia Beach, Va., City Code § 23-11 was affirmed because, although defendant claimed that the alleged assault did not occur within the city boundaries, the trial court found that the assault and battery occurred forty yards from the shoreline within the territorial limits of the city. Bostic v. City of Virginia Beach,, 2011 Va. App. LEXIS 35 (Feb. 8, 2011).

Venue was proper in Mecklenburg County, Virginia, for defendant's trial for forgery because the fact that the victim filed a civil lawsuit in Mecklenburg, while not dispositive, was competent circumstantial evidence to establish venue when taken together with the totality of the evidence in the record; defendant pointed to no authority that prohibited a subsequent trial court from looking to that civil judgment in addition to other evidence in the record to establish venue in a related criminal case, and the evidence only had to establish a strong presumption of venue. Duckworth v. Commonwealth,, 2011 Va. App. LEXIS 60 (Feb. 22, 2011).

Trial court did not err in convicting defendant of forgery in violation of § 18.2-172 because venue was proper in Mecklenburg County, Virginia since the evidence established a strong presumption that defendant deposited or placed the forged instrument with another person or firm in Mecklenburg County pursuant to § 19.2-245.1 , and the record did not suggest the involvement of an alternate jurisdiction from which defendant could reasonably have perpetrated the forgery; the victim's attorney sent an unsigned note to defendant's residence in Mecklenburg County, and although the record was silent as to who received the note, the only logical inference flowing from the evidence was that defendant passed the instrument back to either the victim, who resided in Mecklenburg, or the attorney, whose principal place of business was also in Mecklenburg. Duckworth v. Commonwealth,, 2011 Va. App. LEXIS 60 (Feb. 22, 2011).

Venue over charges for three counts of causing a juvenile to assist in the distribution of marijuana to a third party, in violation of clause (ii) of subsection A of § 18.2-255 , was proper in Hanover County where the nature of the crime was not that of a continuing crime, but one in which different elements of a single crime occur in different jurisdictions, and the record clearly showed that the juvenile distributed the marijuana he received from defendant to a third party in Hanover County. Kelso v. Commonwealth, 282 Va. 134 , 710 S.E.2d 470, 2011 Va. LEXIS 128 (2011).

Trial court did not err in denying defendant's challenge to venue because pursuant to §§ 18.2-374.3 and 19.2-244 , venue was proper in Louisa County since a detective, who was posing as 13-year-old girl, received defendant's personal electronic contacts there; defendant chose to communicate online with the undercover officer, and the victim actually received his communications, which was a critical portion of the offense proscribed by subsection A of § 18.2-374.3 , while in Louisa County. Spiker v. Commonwealth, 58 Va. App. 466, 711 S.E.2d 228, 2011 Va. App. LEXIS 221 (2011).

Trial court did not err when it found that it had venue over the offense because the required strong presumption that the offense occurred in the city had been established; the trial court implicitly took judicial notice of the location of the street as being in the city as the Commonwealth had requested it to do in response to defendant's motion claiming that the city was not the proper venue. Williams v. Commonwealth, 63 Va. App. 458, 758 S.E.2d 553, 2014 Va. App. LEXIS 232 (2014).

In a case involving the unlawful dissemination of nude images, there was no error in determining that a particular county was the proper venue to try the case under this statute where defendant did not dispute that his ex-wife received images he maliciously disseminated in the county at issue. The Commonwealth carried its burden of proof in demonstrating a strong presumption that this county was an appropriate venue to try the case. Morehead v. Commonwealth, 66 Va. App. 241, 784 S.E.2d 301 (2016).

Because the General Assembly's broad grant of joint jurisdiction in the city's charter encompassed the authority exercised by the trial court in trying defendant for perjury, the Albemarle County Circuit Court was a proper venue for defendant's perjury trial. Gerald v. Commonwealth, No. 1967-15-2, 2016 Va. App. LEXIS 370 (Ct. of Appeals Dec. 27, 2016).

The Albemarle County Circuit Court was a proper venue for defendant's perjury trial because the Virginia General Assembly's broad grant of joint jurisdiction in the charter to the City of Charlottesville, Virginia, and Albemarle County, Virginia, encompassed the authority exercised by the trial court in trying defendant for perjury committed inside the Albemarle County Courthouse. Gerald v. Commonwealth, No. 1931-15-2, 2016 Va. App. LEXIS 367 (Ct. of Appeals Dec. 27, 2016), aff'd, 295 Va. 469 , 813 S.E.2d 722 (2018).

Trial court did not err in finding that venue was proper in Franklin County, Virginia because the evidence was more than sufficient to meet the lesser standard required to establish venue in Franklin County since defendant, the heroin she purchased, and her car in which the heroin was stored were all in the County the day of her arrest; because defendant knew the heroin was in her car, the evidence was more than sufficient to prove she constructively possessed heroin in Franklin County. Buck v. Commonwealth, No. 1347-18-3, 2019 Va. App. LEXIS 153 (July 2, 2019).

Trial court did not err by concluding that the evidence proved that venue was proper in the county because the attempted arson occurred in the county, as defendant interfered with a witness whose testimony was relevant for the trial of the arson charge pending in a court in that jurisdiction. Tanner v. Commonwealth, 72 Va. App. 86, 841 S.E.2d 377, 2020 Va. App. LEXIS 131 (2020).

Evidence held insufficient to prove venue in prosecution for grand larceny resulting in conviction for receiving stolen property. Pollard v. Commonwealth, 220 Va. 723 , 261 S.E.2d 328 (1980).

Where the body of a murder victim was found six to seven and one-half feet from the Virginia shoreline, and the only evidence introduced concerning the low water mark showed that on the day the body was found, the river level was at the actual low water mark, therefore, unless a line could be drawn between two headlands in order to form a new low water mark, the body's placement would have been six to seven and one-half feet beyond the Virginia border. Since victim's body lay six to seven and one-half feet from the Commonwealth of Virginia, venue did not lie in Loudoun County and the appellant's conviction was reversed. Traverso v. Commonwealth, 6 Va. App. 172, 366 S.E.2d 719 (1988).

A forgery prosecution may take place "in any county or city where the writing was forged, or where the same was used or passed, or attempted to be used or passed, or deposited or placed with another person, firm, association, or corporation either for collection or credit;" "the burden is upon the Commonwealth to prove venue by evidence which is either direct or circumstantial. Such evidence must furnish the foundation for a "strong presumption" that the offense was committed within the jurisdiction of the court," which the court did not adequately establish. Long v. Commonwealth, No. 2031-95-4 (Ct. of Appeals Mar. 25, 1997).

Appellant was not indicted for stealing blank checks from doctor or for forgery. Rather, she was charged with larceny of U.S. currency from a bank. The record was devoid of any reference to the location of the bank -- the alleged situs of the crime. While sufficient evidence established that the appellant removed the bank checks in the county, the court of appeals could not infer upon that finding alone that a subsequent, separate and distinct offense of larceny of money from the bank likewise occurred in the county. Lacking such proof, the Commonwealth failed to prove that the larceny occurred within the trial court's jurisdiction. Turner v. Commonwealth, No. 2804-96-2 (Ct. of Appeals Oct. 14, 1997).

Offense of felony eluding a law-enforcement officer resulting in serious injury to another occurred in second county, not first county, and thus the trial court erred in denying defendant's challenge to venue in first county as the evidence showed that even though defendant was speeding in his vehicle and driving it recklessly in order to elude a police chase in the first county, the element of causing serious injury to another person only occurred in the second county. Thomas v. Commonwealth, 38 Va. App. 319, 563 S.E.2d 406, 2002 Va. App. LEXIS 303 (2002).

Where a Portsmouth officer activated his lights just after crossing into Chesapeake, but there was no evidence that he was within proximity of defendant at the time or that defendant was aware he was being followed by police, the trial court erred in determining that the Circuit Court of Portsmouth had venue to try defendant for eluding police. Ross v. Commonwealth, No. 0246-04-1, 2005 Va. App. LEXIS 61 (Ct. of Appeals Feb. 15, 2005).

Venue was improper for defendant's trial for unauthorized use of an automobile in violation of § 19.2-244 because although the trial court found that defendant unlawfully used the car, the only evidence of that use was in jurisdictions other than the city where defendant was tried, and even though defendant was charged with the larceny of the car in the city, the trial court specifically acquitted him of that offense; the Commonwealth may not rely on a greater offense to prove venue where the evidence fails to prove the defendant committed the greater offense and the lesser-included offense could not be properly charged in the jurisdiction. Taylor v. Commonwealth, 58 Va. App. 185, 708 S.E.2d 241, 2011 Va. App. LEXIS 140 (2011).

Defendant's conviction of altering the serial number of a firearm in violation of § 18.2-311.1 was reversed; as there was no evidence he removed the serial number in Brunswick County, the Commonwealth failed to meet its burden under § 19.2-244 to show that venue was proper in that county. Bonner v. Commonwealth, 61 Va. App. 247, 734 S.E.2d 692, 2012 Va. App. LEXIS 399 (2012).

Trial court erred in denying defendant's motion to strike for improper venue, under § 19.2-244 , because the court erred in holding that the Commonwealth of Virginia proved venue in Pittsylvania County, Virginia, in that the evidence as to venue in the case was overall vague and uncertain. Collins v. Commonwealth,, 2014 Va. App. LEXIS 219 (June 3, 2014).

Venue for transportation of controlled substance. - Venue properly exists in each jurisdiction through which the statutory minimum quantity of a controlled substance was transported, but not in those jurisdictions where less than the required amount was transported; venue was, accordingly, not appropriate in the city in which a package containing one gram of cocaine was delivered to the defendant, where the package in question had contained a much larger quantity when it had been transported to another city but all but one gram had been removed prior to the controlled delivery to the defendant. Green v. Commonwealth, 32 Va. App. 438, 528 S.E.2d 187, 2000 Va. App. LEXIS 335 (2000).

Venue for conduct during high-speed chase. - Venue was proper in Greene County where the evidence was sufficient to raise a strong presumption that defendant's conduct in Greene County during a high-speed chase in several counties endangered the operation of a police vehicle and other persons as: (1) defendant was driving in excess of 90 miles per hour when the radar registered his speed in Greene County; (2) his speed increased beyond 100 miles per hour after the officer activated his lights and siren and joined the pursuit; (3) defendant was not fully in control of his vehicle and was passing other cars without signaling; (4) he also drove at the excessive speed through an intersection of two highways in Greene County that was controlled by a traffic signal; and (5) both the length of time during which the activity occurred in Greene County and the span of distance over which it took place supported venue in Greene County. Paytes v. Commonwealth, No. 2681-02-2, 2004 Va. App. LEXIS 80 (Ct. of Appeals Feb. 17, 2004).

Venue for causing a juvenile to assist in distributing marijuana. - Because causing a juvenile to assist in the distribution of marijuana in violation of subsection A of § 18.2-255 was a continuing offense, venue was proper in the county where the juvenile sold the marijuana pursuant to § 19.2-244 . Kelso v. Commonwealth, 57 Va. App. 30, 698 S.E.2d 263, 2010 Va. App. LEXIS 350 (2010), aff'd, 282 Va. 134 , 710 S.E.2d 470, 2011 Va. LEXIS 128 (2011).

Child abduction. - Where the evidence established that the father was a resident of Fairfax County at the time of the abduction by out-of-state mother and that the child was to be returned to Fairfax County pursuant to a valid and enforceable custody order, the harm contemplated by this section was clearly established as occurring in this locus for venue purposes. Foster-Zahid v. Commonwealth, 23 Va. App. 430, 477 S.E.2d 759 (1996).

Defendant's failure to relinquish custody of her minor child to the father in Virginia Beach constituted an offense committed within that circuit under § 19.2-244 . Accordingly, venue was proper in that jurisdiction as that was the jurisdiction to which the defendant was ordered to relinquish temporary custody and from which the defendant withheld custody of their child from the father. Dunn v. Commonwealth, No. 1689-02-1, 2003 Va. App. LEXIS 219 (Ct. of Appeals Apr. 15, 2003).

Venue of crime of conspiracy. - Under this section, the crime of conspiracy is deemed to have been committed in any city or county in which an act in furtherance of the conspiracy took place, as well as in the place where the conspiracy was entered into. The fact that the agreement forming the basis of the conspiracy may have been entered into in Chesapeake, the place where defendant was incarcerated, does not restrict venue to Chesapeake only. Henry v. Commonwealth, 2 Va. App. 194, 342 S.E.2d 655 (1986).

Evidence supported the determination that venue in a prosecution for conspiracy to distribute marijuana lay in Hanover County, where a co-conspirator resided in Hanover County, an undercover officer telephoned the co-conspirator at her house there on several occasions, and where he spoke with both the defendant and the co-conspirator, who were then in Hanover County, concerning the purchase of marijuana. Williams v. Commonwealth, No. 2203-97-2 (Ct. of Appeals July 7, 1998).

Venue in obstruction of justice case. - In an obstruction of justice case, it was uncontested that defendant accomplished all of the elements of the crime in Virginia Beach, where defendant's estranged wife resided. Although the wife was subpoenaed to testify specifically in the trial court in Norfolk, the Norfolk trial court lacked venue pursuant to this section because the entire offense was committed in Virginia Beach. Williams v. Commonwealth,, 2016 Va. App. LEXIS 28 (Feb. 2, 2016).

Crimes committed on Roanoke County property located in City of Salem. - When former § 17-126.2 and this section are considered together, it is plain that the General Assembly intended that a crime committed on Roanoke County property located in the City of Salem not only should be treated for all intents and purposes as if it happened in Roanoke County, but also that Roanoke County should have full concurrent criminal jurisdiction over the area in question including search and seizure for criminal law enforcement. Garza v. Commonwealth, 228 Va. 559 , 323 S.E.2d 127 (1984).

Venue of county court. - To grant the county the power to exercise authority over county property located within the city, but deny county courts authority to decide cases arising from the county's power over that property is to render the contemplated grant of joint jurisdiction a nullity. The city's charter provision need not specifically mention its effect on venue for criminal prosecutions because that effect is a corollary of the grant of joint jurisdiction: for a county court to exercise its granted jurisdiction over actions arising on the county's property, that court must also be a proper venue for such actions. Gerald v. Commonwealth, No. 1967-15-2, 2016 Va. App. LEXIS 370 (Ct. of Appeals Dec. 27, 2016).

Venue for prosecution of perjury committed by defendant and codefendant in the General District Court of Albemarle County was proper in the Circuit Court of Albemarle County; it follows from the charter's grant of territorial jurisdiction to the county and city courts that crimes committed in the Albemarle County Courthouse are treated as having been committed "within" either the jurisdiction of the county or the city and are subject to the "joint jurisdiction" of the county and city courts. Gerald v. Commonwealth, 295 Va. 469 , 813 S.E.2d 722, 2018 Va. LEXIS 66 (2018), cert. denied, 139 S. Ct. 846, 202 L. Ed. 2d 613, 2019 U.S. LEXIS 387 (2019).

By including the language "except as otherwise provided by law," the statute expressly recognizes that there are exceptions to the general rule that criminal charges be prosecuted where they are committed; the General Assembly created such an exception by granting "joint jurisdiction" to the City of Charlottesville, Virginia, and Albemarle County, Virginia, over county property located within the City of Charlottesville. Gerald v. Commonwealth, 295 Va. 469 , 813 S.E.2d 722, 2018 Va. LEXIS 66 (2018), cert. denied, 139 S. Ct. 846, 202 L. Ed. 2d 613, 2019 U.S. LEXIS 387 (2019).

Venue for altering serial number of firearm. - As the offense of altering or removing a serial number of a firearm, § 18.2-311.1 , constitutes a discrete act rather than a continuing offense, under § 19.2-244 , venue is proper where the alteration or removal was done. Bonner v. Commonwealth, 61 Va. App. 247, 734 S.E.2d 692, 2012 Va. App. LEXIS 399 (2012).

Altering the serial number of a firearm is a discrete act so that venue for a prosecution under § 18.2-311.1 lies in the county where the alteration occurred. Thus a trial court erred in finding that the Commonwealth established a strong presumption that the alteration of the serial number in defendant's possession occurred in Brunswick County as there was no testimony or other evidence that defendant was the one who filed down the serial number, let alone where that discrete act occurred. Bonner v. Commonwealth, 62 Va. App. 206, 745 S.E.2d 162, 2013 Va. App. LEXIS 216 (2013).

Merit of exception based upon failure to prove venue. - It seldom happens that there is any real merit in an exception based upon a failure to prove venue, unless the question has been developed and made the subject of serious inquiry before verdict. Sutherland v. Commonwealth, 6 Va. App. 378, 368 S.E.2d 295 (1988).

Applied in Spitzer v. Commonwealth, 233 Va. 7 , 353 S.E.2d 711 (1987); Thomas v. Commonwealth, 36 Va. App. 326, 549 S.E.2d 648, 2001 Va. App. LEXIS 448 (2001); Hedrick v. Warden of the Sussex I State Prison, 264 Va. 486 , 570 S.E.2d 840, 2002 Va. LEXIS 161 (2002).

§ 19.2-245. Offenses committed without and made punishable within Commonwealth; embezzlement or larceny committed within Commonwealth; where prosecuted.

Prosecution for offenses committed wholly or in part without and made punishable within this Commonwealth may be in any county or city in which the offender is found or to which he is sent by any judge or court; and if any person shall commit larceny or embezzlement beyond the jurisdiction of this Commonwealth and bring the stolen property into the same he shall be liable to prosecution and punishment for larceny or embezzlement in any county or city into which he shall have taken the property as if the same had been wholly committed therein; and if any person shall commit larceny or embezzlement within this Commonwealth and take the stolen property into any county or city other than the county or city within which the same was committed he shall be liable to prosecution and punishment for such larceny or embezzlement in any such county or city into which he shall have taken the property as if the same had been wholly committed therein; provided, that if any person shall commit embezzlement within this Commonwealth he shall be liable as aforesaid or to prosecution and punishment for his offense in the county or city in which he was legally obligated to deliver the embezzled funds or property.

(Code 1950, § 19.1-220; 1960, c. 366; 1975, c. 495; 1977, c. 216.)

Cross references. - For rule of court requiring that questions of venue in criminal cases be raised in the trial court, see Rule 3A:2.1.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 1, 10; 6B M.J. Embezzlement, § 6; 12A M.J. Larceny, § 11.

CASE NOTES

History of section. - See Howell v. Commonwealth, 187 Va. 34 , 46 S.E.2d 37 (1948).

The legislature has power to fix the venue of criminal prosecutions in a place other than that in which the crime was committed in the absence of a constitutional limitation. Lovelace v. Commonwealth, 205 Va. 541 , 138 S.E.2d 253 (1964).

The constitutionality of this section, so far as it declares the crime of larceny, is clear. It makes statutory the principle that every act of removal or change of possession of stolen property is a new violation of the owner's right. Howell v. Commonwealth, 187 Va. 34 , 46 S.E.2d 37 (1948).

The constitutionality of this section insofar as it describes the crime of larceny is clear. Lovelace v. Commonwealth, 205 Va. 541 , 138 S.E.2d 253 (1964).

No double jeopardy violation. - There was no double jeopardy violation in prosecuting defendant for embezzlement from her employer's clinic in Tazewell County after she pled guilty to embezzlement from a different clinic in Russell County owned by the same employer, because, although § 19.2-245 allowed a prosecution wholly in Russell County for the embezzlement occurring in both Tazewell County and Russell County, defendant failed to prove that the Russell County conviction encompassed same embezzlement for which she was indicted in Tazewell County. Hatfield v. Commonwealth, No. 1972-07-3, 2008 Va. App. LEXIS 486 (Ct. of Appeals Nov. 4, 2008).

Its true meaning is that venue is given in any county in which the defendant may be found to have committed the offense by bringing in the stolen goods, to the same extent as if the crime "had been wholly committed" in that county. Howell v. Commonwealth, 187 Va. 34 , 46 S.E.2d 37 (1948); Lovelace v. Commonwealth, 205 Va. 541 , 138 S.E.2d 253 (1964).

In a prosecution for bringing into Virginia property stolen in another state, an accused who, when arrested, was in jail in the county in which he had sold the property, having been brought there from out of the state on a different charge, was "found" in that county in the sense intended by this section as a prerequisite to the court's jurisdiction. Howell v. Commonwealth, 187 Va. 34 , 46 S.E.2d 37 (1948).

To be applicable, this section requires proof that the accused participated in taking the stolen property into the county where the prosecution is brought. Nelson v. Commonwealth, 12 Va. App. 268, 403 S.E.2d 384 (1991).

This section clearly has in view more than one place of venue. Howell v. Commonwealth, 187 Va. 34 , 46 S.E.2d 37 (1948); Lovelace v. Commonwealth, 205 Va. 541 , 138 S.E.2d 253 (1964).

It is not an attempt to enforce the criminal laws of another state, but defines and punishes an offense committed in this state. Howell v. Commonwealth, 187 Va. 34 , 46 S.E.2d 37 (1948); Lovelace v. Commonwealth, 205 Va. 541 , 138 S.E.2d 253 (1964).

The crime continues and accompanies the defendant into every county into which he goes with stolen property. Lovelace v. Commonwealth, 205 Va. 541 , 138 S.E.2d 253 (1964).

Fact that part of crime committed in another state does not affect venue. - In a prosecution for subornation of perjury the fact that the suborner and the perjurer discussed some details of the crime in another state does not affect the venue under this section. Mundy v. Commonwealth, 161 Va. 1049 , 171 S.E. 691 (1933).

This section gives Virginia jurisdiction over embezzlement offenses, even though most or all of the illegal acts took place in another state. Keselica v. Commonwealth, 24 Va. App. 115, 480 S.E.2d 756 (1997).

Embezzlement of computer. - The fact that the consignment contract was silent as to where the computer was to be returned did not mean that there was no venue in which the appellant could be prosecuted for embezzlement. Jackson v. Commonwealth, No. 1552-95-2 (Ct. of Appeals Dec. 31, 1996).

Where appellant was legally obligated to return the computer to victim in Powhatan County, the fact that he would have been legally obligated to return the computer to her wherever she was does not defeat Powhatan County as a proper venue. Furthermore, the consignment contract was executed in Powhatan County. The contract was for a period of sixty days. At the end of sixty days, the appellant had the legal duty to either return the computer to her or pay Williams $850. Accordingly, Powhatan County was a proper venue in which to prosecute the charge. Jackson v. Commonwealth, No. 1552-95-2 (Ct. of Appeals Dec. 31, 1996).

Embezzlement of rented car. - A rental agreement provided that a car was to be returned to the owner in the City of Lynchburg at a specified time. The Corporation Court of the City of Lynchburg had venue to try defendant on a charge of embezzling the car. Stegall v. Commonwealth, 208 Va. 719 , 160 S.E.2d 566 (1968).

§ 19.2-245.01. Offenses involving reports or statements concerning cigarette sales or stamping.

Any criminal violation of Chapter 42 (§ 3.2-4200 et seq.) of Title 3.2, Article 10 (§ 18.2-246.6 et seq.) of Chapter 6 of Title 18.2, or § 18.2-514 involving reports or statements concerning cigarette sales or stamping may be prosecuted in the City of Richmond.

(2009, c. 847; 2013, c. 625.)

The 2013 amendments. - The 2013 amendment by c. 625 substituted "Article 10 ( § 18.2-246.6 et seq.) of Chapter 6 of Title 18.2, or § 18.2-514 " for "or of § 18.2-246.13 or 18.2-514 ."

§ 19.2-245.1. Forgery; where prosecuted.

If any person commits forgery, that forgery may be prosecuted in any county or city (i) where the writing was forged, or where the same was used or passed, or attempted to be used or passed, or deposited or placed with another person, firm, association, or corporation either for collection or credit for the account of any person, firm, association, or corporation; (ii) where the writing is found in the possession of the defendant; or (iii) where an issuer, acquirer, or account holder sustained a financial loss as a result of the offense.

(1979, c. 30; 2000, c. 327; 2019, cc. 46, 621.)

The 2000 amendments. - The 2000 amendment by c. 327 substituted "commits" for "shall commit," inserted the (i) designation, and added "or (ii) where the writing is found in the possession of the defendant."

The 2019 amendments. - The 2019 amendments by cc. 46 and 621 are identical, and added "or (iii) where an issuer, acquirer, or account holder sustained a financial loss as a result of the offense" to the end, and made related changes.

CASE NOTES

A forgery prosecution may take place "in any county or city where the writing was forged, or where the same was used or passed, or attempted to be used or passed, or deposited or placed with another person, firm, association, or corporation either for collection or credit;" "the burden is upon the Commonwealth to prove venue by evidence which is either direct or circumstantial. Such evidence must furnish the foundation for a "strong presumption" that the offense was committed within the jurisdiction of the court," which the court did not adequately establish.(decided prior to the 2000 amendment, providing for prosecution where the writing is found) Long v. Commonwealth, No. 2031-95-4 (Ct. of Appeals Mar. 25, 1997).

Venue found improper. - Prosecution failed to establish requisite venue in Henrico County, where record established only that defendant possessed a forged check in Henrico County after having attempted to pass it at an unspecified store. Copeland v. Commonwealth, No. 1851-98-2 (Ct. of Appeals June 29, 1999).

Venue was proper in Mecklenburg County, Virginia, for defendant's trial for forgery because the fact that the victim filed a civil lawsuit in Mecklenburg, while not dispositive, was competent circumstantial evidence to establish venue when taken together with the totality of the evidence in the record; defendant pointed to no authority that prohibited a subsequent trial court from looking to that civil judgment in addition to other evidence in the record to establish venue in a related criminal case, and the evidence only had to establish a strong presumption of venue. Duckworth v. Commonwealth,, 2011 Va. App. LEXIS 60 (Feb. 22, 2011).

Venue proper. - Trial court did not err in convicting defendant of forgery in violation of § 18.2-172 because venue was proper in Mecklenburg County, Virginia since the evidence established a strong presumption that defendant deposited or placed the forged instrument with another person or firm in Mecklenburg County pursuant to § 19.2-245.1 , and the record did not suggest the involvement of an alternate jurisdiction from which defendant could reasonably have perpetrated the forgery; the victim's attorney sent an unsigned note to defendant's residence in Mecklenburg County, and although the record was silent as to who received the note, the only logical inference flowing from the evidence was that defendant passed the instrument back to either the victim, who resided in Mecklenburg, or the attorney, whose principal place of business was also in Mecklenburg. Duckworth v. Commonwealth,, 2011 Va. App. LEXIS 60 (Feb. 22, 2011).

§ 19.2-245.2. Tax offenses; where prosecuted.

If an offense involving tax, as defined in Title 58.1, is committed, that offense may be prosecuted in either any county or city where a false or fraudulent tax return, document, or statement was filed, or the county or city where the offender resides. However, venue shall not be in the City of Richmond solely because a false or fraudulent tax return, document or statement was filed directly with the Department of Taxation.

(1990, c. 631.)

§ 19.2-246. Injury inflicted by person within Commonwealth upon one outside Commonwealth.

If a mortal wound or other violence or injury be inflicted by a person within this Commonwealth upon one outside of the same, or upon one in this Commonwealth who afterwards dies from the effect thereof out of the Commonwealth, the offender shall be amenable to prosecution and punishment for the offense in the courts of the county or city in which he was at the time of the commission thereof as if the same had been committed in such county or city.

(Code 1950, § 19.1-221; 1960, c. 366; 1975, c. 495.)

CASE NOTES

For the history of this section and related statutes, see Covington v. Commonwealth, 136 Va. 665 , 116 S.E. 462 (1923).

The effect of this section and § 18.2-27 is merely to give the courts of the counties or corporations, in which the accused and the deceased may have been, respectively, at the time of the commission of the offense, concurrent jurisdiction, so that the offender may be prosecuted and punished in either county, where the offense is not wholly committed within one county. Covington v. Commonwealth, 136 Va. 665 , 116 S.E. 462 (1923).

There is nothing incongruous or objectionable in the like result being accomplished by two separate statutes, as by this section and § 18.2-27 , which is attained in the cases of §§ 19.2-248 and 19.2-249 by single statutes. Covington v. Commonwealth, 136 Va. 665 , 116 S.E. 462 (1923).

§ 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 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.

(Code 1950, § 19.1-221.1; 1973, c. 308; 1975, c. 495; 1996, c. 959; 2002, c. 503; 2015, cc. 632, 637; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 1996, c. 959, cl. 2 provides: "[t]hat the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation for this bill as originally introduced was $ 0."

At the direction of the Virginia Code Commission, "subdivision A 8 of § 18.2-31 " was substituted for "subdivision 8 of § 18.2-31 " to conform to changes by Acts 2019, cc. 717 and 835.

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendment by ch. 503 inserted "or, if the victim was removed . . . treatment prior to death" in the first sentence.

The 2015 amendments. - The 2015 amendments by cc. 632 and 637 are identical, and, in the first sentence, substituted "homicide and any related offenses" for "offense," inserted "or any part thereof" and made minor stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "for capital murder" following "prosecution" in the last sentence.

CASE NOTES

Prosecution did not violate the double jeopardy clause of the United States Constitution by indicting defendant on rape charge in Portsmouth, in addition to the murder charge tried in Norfolk for no evidence was presented that the rape occurred in Norfolk or that the victim was transported to Norfolk by the defendant prior to the commission of such offense, and the Norfolk court did not have jurisdiction to try appellant for rape. Vanegas v. Commonwealth, 17 Va. App. 451, 438 S.E.2d 289 (1993).

Court correctly refused to instruct jury on venue issue. - Trial court correctly refused to instruct the jury on the issue of venue, where the uncertainty of whether the fatal wound was inflicted in Richmond or Chesterfield County was determinative of venue as a matter of law. Harris v. Commonwealth, No. 0849-88-2 (Ct. of Appeals Aug. 21, 1990).

Appropriate venue when it is unknown where murder occurred. - Where it was unknown where the murder occurred, but the victim's body was found in the City of Richmond within one mile of the Chesterfield County border, because the jurisdiction of the authorities of Chesterfield County extended one mile beyond the limits of that county into the City of Richmond, Chesterfield County was an appropriate venue in which to prosecute defendant for the murder. Kirby v. Commonwealth, 63 Va. App. 665, 762 S.E.2d 414, 2014 Va. App. LEXIS 295 (Sept. 2, 2014).

Applied in Hedrick v. Warden of the Sussex I State Prison, 264 Va. 486 , 570 S.E.2d 840, 2002 Va. LEXIS 161 (2002).

§ 19.2-248. Venue when mortal wound, etc., inflicted in one county and death ensues in another.

If a mortal wound, or other violence or injury, be inflicted, or poison administered in one county or city, and death ensues therefrom in another county or city, the offense may be prosecuted in either.

(Code 1950, § 19.1-223; 1960, c. 366; 1975, c. 495.)

Cross references. - As to offenses committed without and made punishable within the state, see § 19.2-245 .

As to how and where homicide is prosecuted and punished if death occurs outside the state, see § 18.2-37 .

Michie's Jurisprudence. - For related discussion, see 9B M.J. Homicide, § 50; 19 M.J. Venue, § 14.

§ 19.2-249. Offenses committed on boundary of two counties, two cities, or county and city, etc.; where prosecuted.

An offense committed on the boundary of two counties, or on the boundary of two cities, or on the boundary of a county and city, or within 300 yards thereof, may be alleged to have been committed, and may be prosecuted and punished, in either county, in either city, or the county or city, and any sheriff, deputy sheriff, or other police officer shall have jurisdiction to make arrests and preserve the peace for a like distance on either side of the boundary line between such counties, such cities, or such county and city.

(Code 1950, § 19.1-222; 1960, c. 366; 1975, c. 495; 1978, c. 354; 2003, c. 116.)

The 2003 amendments. - The 2003 amendment by c. 116 inserted "or on the boundary of two cities," inserted "in either city," and inserted "such cities."

Law review. - For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).

CASE NOTES

Place of arrest. - Where a York County deputy made traffic stop in the City of Williamsburg, defendant was arrested for the DUI charge in Williamsburg, while the record did not reflect where defendant was arrested on the habitual offender charge, it was clear that she was not arrested for that offense at the stop. Johnson v. Commonwealth, No. 1005-04-1, 2005 Va. App. LEXIS 105 (Ct. of Appeals Mar. 15, 2005).

Because a campus police officer's concurrent jurisdiction under §§ 19.2-249 , 19.2-250 , and 23-234 extended up to one mile beyond the city's corporate limits, the officer was well within the statutorily prescribed jurisdiction when the officer stopped and arrested defendant for drunk driving 200 yards into the adjoining county. Boatwright v. Commonwealth, 50 Va. App. 169, 647 S.E.2d 515, 2007 Va. App. LEXIS 281 (2007).

This section was held applicable to information proceedings for the forfeiture of an automobile while being used in the illegal transportation of intoxicating liquors. Commercial Credit Co. v. Commonwealth, 155 Va. 1033 , 155 S.E. 689 (1930).

Suppression of evidence. - Assuming that an investigator's actions violated §§ 18.2-146 and 19.2-249 , that violation did not entitle defendant to suppression of the evidence because the statutes did not provide for the remedy of exclusion. Hill v. Commonwealth, No. 1828-11-3, 2012 Va. App. LEXIS 318 (Ct. of Appeals Oct. 9, 2012).

Venue proper. - Circuit court had venue to try defendant's drunk driving cases because, while the offense did not occur within 300 yards of a city or county boundaries, venue was clearly allowed in the city where it was undisputed that the offense occurred within one mile of the city boundary, and venue for a trial for a refusal to submit charge was in the court in which the driving under the influence charge was tried. Bista v. Commonwealth, No. 0432-15-1, 2015 Va. App. LEXIS 380 (Dec. 15, 2015).

CIRCUIT COURT OPINIONS

Search and seizure. - Though officer who detained the defendant and his companions exceeded his statutory authority under § 19.2-249 , he did not violate the Fourth Amendment, therefore the defendant was not entitled to have evidence seized pursuant to the arrest excluded. Commonwealth v. Dawson, 61 Va. Cir. 309, 2003 Va. Cir. LEXIS 35 (Roanoke 2003).

§ 19.2-249.1. Offenses committed within towns situated in two or more counties; where prosecuted.

An offense or traffic infraction committed within a town situated in two or more counties within the Commonwealth may be alleged to have been committed, and may be prosecuted and punished, in any one of such counties.

(1984, c. 278.)

CASE NOTES

Venue proper. - Circuit court had venue to try defendant's drunk driving cases because, while the offense did not occur within 300 yards of a city or county boundaries, venue was clearly allowed in the city where it was undisputed that the offense occurred within one mile of the city boundary, and venue for a trial for a refusal to submit charge was in the court in which the driving under the influence charge was tried. Bista v. Commonwealth, No. 0432-15-1, 2015 Va. App. LEXIS 380 (Dec. 15, 2015).

§ 19.2-249.2. Venue for prosecution of computer and other crimes.

For the purpose of venue, any violation of the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.) or § 18.2-386.1 shall be considered to have been committed in any county or city:

  1. In which any act was performed in furtherance of any course of conduct that violated any provision listed above;
  2. In which the owner has his principal place of business in the Commonwealth;
  3. In which any offender had control or possession of any proceeds of the violation or of any books, records, documents, property, financial instrument, computer software, computer program, computer data, or other material or objects that were used in furtherance of the violation;
  4. From which, to which, or through which any access to a computer or computer network was made whether by wires, electromagnetic waves, microwaves, optics or any other means of communication;
  5. In which the offender resides; or
  6. In which any computer that is an object or an instrument of the violation is located at the time of the alleged offense.

    (2005, cc. 746, 761, 827; 2015, c. 423.)

Editor's note. - Acts 2005, c. 746, cl. 3, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2005, cc. 761 and 827, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2015 amendments. - The 2015 amendment by c. 423 substituted "any violation of the Virginia Computer Crimes Act ( § 18.2-152.1 et seq.) or § 18.2-386.1 " for "under the Virginia Computer Crimes Act ( § 18.2-152.1 et seq.) any violation of the article" in the introductory paragraph; substituted "any provision listed above" for "this article" in subdivision 1; and made minor stylistic changes.

CASE NOTES

Establishing venue. - Commonwealth established venue in Virginia Beach under subdivisions 4 and 6 of § 19.2-249.2 during defendant's trial for harassment by computer in violation of § 18.2-152.7:1 because the evidence was sufficient to prove a strong presumption that the victim received the e-mails defendant sent her while she resided in Virginia Beach, on a computer located within Virginia Beach; the victim lived in Virginia Beach, and she testified that all the offensive e-mails were sent to her e-mail account in the City of Virginia Beach. Barson v. Commonwealth,, 2010 Va. App. LEXIS 427 (Nov. 2, 2010).

§ 19.2-250. How far jurisdiction of corporate authorities extends.

  1. Notwithstanding any other provision of this article and except as provided in subsection B hereof, the jurisdiction of the corporate authorities of each town or city, in criminal cases involving offenses against the Commonwealth, shall extend within the Commonwealth one mile beyond the corporate limits of such town or city; except that such jurisdiction of the corporate authorities of towns situated in counties having a density of population in excess of 300 inhabitants per square mile, or in counties adjacent to cities having a population of 170,000 or more, shall extend for 300 yards beyond the corporate limits of such town or, in the case of the criminal jurisdiction of an adjacent county, for 300 yards within such town.
  2. Notwithstanding any other provision of this article, the jurisdiction of the authorities of Chesterfield County and Henrico County, in criminal cases involving offenses against the Commonwealth, shall extend one mile beyond the limits of such county into the City of Richmond.

    (Code 1950, § 15.1-141; 1962, c. 623; 1975, c. 495; 1978, c. 379; 1998, c. 428; 2007, c. 813.)

Editor's note. - Acts 2007, c. 813, cl. 2, provides: "That the provisions of this act shall not affect the powers of any locality with respect to any ordinance, resolution or bylaw validly adopted and not repealed or rescinded prior to July 1, 2007."

The 2007 amendments. - The 2007 amendment by c. 813 substituted "Chesterfield County and Henrico County" for "a county adjoining the City of Richmond and having a population between 209,200 and 209,500 or a county adjoining the City of Richmond and having a population between 217,800 and 217,900, according to the 1990 census" in subsection B.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 7; 5A M.J. Courts, § 43; 12A M.J. Licenses, § 10; 13B M.J. Municipal Corporations, § 25.

CASE NOTES

Purpose of section. - This section does not purport to extend the effect of municipal ordinances beyond the corporate limits of a city. It is a statute of enforcement of the effective law within the area specified. Its purpose is plain, that is, to prevent the territory contiguous to a city from becoming a refuge for criminals, and to confer on the corporation courts of cities power to enforce the police regulations and law of the area involved. Murray v. City of Roanoke, 192 Va. 321 , 64 S.E.2d 804 (1951); Kelley v. County of Brunswick, 200 Va. 45 , 104 S.E.2d 7 (1958).

This section does not extend the effect of city ordinances beyond city limits; rather, it confers on city police officers the authority to enforce the statutes of the Commonwealth or law of the jurisdiction involved. Hoambrecker v. City of Lynchburg, 13 Va. App. 511, 412 S.E.2d 729 (1992).

"Jurisdiction" defined. - The word "jurisdiction" as used in this section broadly means the power, right, or authority in the courts to hear, determine, and enforce the law in cases, causes or controversies. It is the power to try and declare the law. It is the authority by which judicial officers take cognizance of, and apply and enforce, the law, as distinguished from the power to enact law. Murray v. City of Roanoke, 192 Va. 321 , 64 S.E.2d 804 (1951).

Section 19.2-54 and this section must be read together and harmonized. Robertson v. Rogers, 2 Va. App. 503, 346 S.E.2d 41 (1986), aff'd, 360 S.E.2d 715 (1987).

Exclusionary rule did not apply. - Where appellant asserted that LSD was seized from him in a search pursuant to an unlawful arrest because investigator exceeded his jurisdictional authority under this section, that claim of illegality as to the arrest did not involve a claim that federal constitutional protections were violated which would implicate the exclusionary rule. Even if investigator violated this section or exceeded the common-law authority of a private citizen in arresting appellant for a misdemeanor, he nonetheless constitutionally detained appellant. The exclusionary rule did not apply. Accordingly, the trial court properly denied the appellant's motion to suppress the evidence. Wright v. Commonwealth, No 2528-96-3 (Ct. of Appeals Dec. 9, 1997).

Filing of affidavits required by § 19.2-54 in the City of Danville, rather than defendant's residence of Pittsylvania County, was appropriate where the Circuit Court of the City of Danville, pursuant to this section, had jurisdiction over the crime and the area where the search was made. Robertson v. Rogers, 2 Va. App. 503, 346 S.E.2d 41 (1986), aff'd, 360 S.E.2d 715 (1987).

Venue proper. - Circuit court had venue to try defendant's drunk driving cases because, while the offense did not occur within 300 yards of a city or county boundaries, venue was clearly allowed in the city where it was undisputed that the offense occurred within one mile of the city boundary, and venue for a trial for a refusal to submit charge was in the court in which the driving under the influence charge was tried. Bista v. Commonwealth, No. 0432-15-1, 2015 Va. App. LEXIS 380 (Dec. 15, 2015).

Trial court did not err in finding that venue was proper in Franklin County, Virginia because the evidence was more than sufficient to meet the lesser standard required to establish venue in Franklin County since defendant, the heroin she purchased, and her car in which the heroin was stored were all in the County the day of her arrest; because defendant knew the heroin was in her car, the evidence was more than sufficient to prove she constructively possessed heroin in Franklin County. Buck v. Commonwealth, No. 1347-18-3, 2019 Va. App. LEXIS 153 (July 2, 2019).

Taxation beyond city limits. - This section is unconstitutional insofar as it authorizes the levy by a city of a license tax upon a circus exhibition beyond its corporate limits for the sole purpose of raising revenue to defray the general expenses of the city government. Robinson v. City of Norfolk, 108 Va. 14 , 60 S.E. 762 (1908); City of Charlottesville v. Marks' Shows, Inc., 179 Va. 321 , 18 S.E.2d 890 (1942).

Gambling ordinance purporting to be effective outside city limits invalid. - The City of Roanoke had no power under this section to enact a gambling ordinance effective outside the city limits. Murray v. City of Roanoke, 192 Va. 321 , 64 S.E.2d 804 (1951).

A town ordinance prohibiting drunken driving had no effect beyond the corporate limits. Kelley v. County of Brunswick, 200 Va. 45 , 104 S.E.2d 7 (1958).

Where offense occurred, not where officer was located, is determinative. - A police officer located outside the one-mile jurisdictional limit of a town had the authority to arrest a speeding driver where the officer employed radar to observe a violation within that limit. Where the arresting officer was located when he observed the speeding violation was irrelevant; the relevant question was whether the offense occurred within the town's jurisdiction as defined by this section. Breitbach v. Commonwealth, 35 Va. App. 604, 546 S.E.2d 764, 2001 Va. App. LEXIS 300 (2001).

City police officer had the authority to stop and arrest appellant within one mile of city limits as long as it was for an offense against the Commonwealth or the county in which the arrest was made. Hoambrecker v. City of Lynchburg, 13 Va. App. 511, 412 S.E.2d 729 (1992).

Although route defendant actually traveled extended more than one mile beyond city, officer had authority to arrest him where location was still physically within one mile of city limits. Hamm v. City of Norton, No. 1607-98-3 (Ct. of Appeals Sept. 28, 1999).

Status of policeman acting outside one-mile area. - If a policeman acts outside the one-mile area from the city limits, his status is that of any other private citizen. Moore v. Oliver, 347 F. Supp. 1313 (W.D. Va. 1972).

Although uniformed police officer was outside of jurisdictional boundary limits set out in subsection A of § 19.2-250 , the officer had the same authority to arrest as did a private citizen and could make an extraterritorial arrest under those circumstances in which a private citizen would be authorized to make an arrest, including when a breach of the peace was committed in the officer's or citizen's presence; defendant's dangerous conduct, on a public highway, in and of itself was a breach of the peace under any definition of that concept, and the officer properly detained defendant after observing the dangerous conduct, and defendant's conviction for refusing to submit to a breath test, in violation of § 18.2-268.3 , was affirmed. Hudson v. Commonwealth, 266 Va. 371 , 585 S.E.2d 583, 2003 Va. LEXIS 84 (2003).

Defendant was properly convicted of assault and battery on a police officer under subsection C of § 18.2-57 because while defendant claimed that the officer's public duties were limited to one mile outside the geographic borders of Virginia Beach under § 19.2-250 , a law-enforcement mutual aid agreement permitted by § 15.2-1726 gave the officer authority to perform his public duties in Chesapeake based on the immediate threat to public safety presented by defendant's erratic driving. Rowe v. Commonwealth,, 2008 Va. App. LEXIS 242 (May 20, 2008), aff'd, 277 Va. 495 , 675 S.E.2d 161, 2009 Va. LEXIS 59 (2009).

Appropriate venue when it is unknown where murder occurred. - Where it was unknown where the murder occurred, but the victim's body was found in the City of Richmond within one mile of the Chesterfield County border, because the jurisdiction of the authorities of Chesterfield County extended one mile beyond the limits of that county into the City of Richmond, Chesterfield County was an appropriate venue in which to prosecute defendant for the murder. Kirby v. Commonwealth, 63 Va. App. 665, 762 S.E.2d 414, 2014 Va. App. LEXIS 295 (Sept. 2, 2014).

Arrest held valid. - Assuming arguendo that a detective arrested defendant for his criminal activity in the county where the arrest occurred - not for his activity in the officer's own county - the arrest, though it violated subsection A of § 19.2-250 , was constitutional, because the officer had reasonable suspicion to arrest defendant for possessing cocaine in the county of the arrest, and defendant's subsequent confession furnished probable cause to arrest for possession in the officer's county. Commonwealth v. Coleman, No. 1672-03-2, 2004 Va. App. LEXIS 6 (Ct. of Appeals Jan. 6, 2004).

Because a campus police officer's concurrent jurisdiction under §§ 19.2-249 , 19.2-250 , and 23-234 extended up to one mile beyond the city's corporate limits, the officer was well within the statutorily prescribed jurisdiction when the officer stopped and arrested defendant for drunk driving 200 yards into the adjoining county. Boatwright v. Commonwealth, 50 Va. App. 169, 647 S.E.2d 515, 2007 Va. App. LEXIS 281 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Town police department could not patrol and enforce laws one mile beyond corporate limits of town. - A town police department could not patrol and enforce the laws of the Commonwealth one mile beyond the corporate limits of the town where the density of population in the county within one mile of the town was less than 300 inhabitants per square mile, although the county density, particularly in the east end, exceeded 300 inhabitants per square mile. See opinion of Attorney General to The Honorable Joe T. May, Member, House of Delegates, 01-045 (6/19/01).

Jurisdiction of a town police department in cases involving offenses against the Commonwealth extends one mile beyond the corporate limits of the town, where the population density of the county in which the town is located, is 25.5 inhabitants per square mile, under the threshold of 300 inhabitants per square mile prescribed in subsection A of this section. See opinion of Attorney General to The Honorable E. Carter Nettles, Jr., Commonwealth's Attorney for Sussex County, 03-097 (12/2/03).

Jurisdiction of a town police department does not include the authority to enforce town ordinances outside the corporate limits of the town; therefore, the town is not entitled to any fines collected for violations of state law occurring outside its corporate limits. See opinion of Attorney General to The Honorable E. Carter Nettles, Jr., Commonwealth's Attorney for Sussex County, 03-097 (12/2/03).

Limit on law-enforcement authority. - This section does not confer law-enforcement authority to local police departments outside of the corporate limits of the localities that they serve. See opinion of Attorney General to The Honorable Thomas D. Jones, Sheriff, Charlotte County, 08-028 (7/28/08).

Police officer jurisdiction. - Local municipal police officers have authority to take certain actions outside of their territorial jurisdiction, including consensual interviews, meeting with law enforcement, obtaining and presenting warrants to the relevant court and magistrate's office located outside the locality, reviewing evidence, but not including arrest or detention of suspects. See opinion of Attorney General to C.H. "Chuck” Slemp III, Commonwealth's Attorney, County of Wise & City of Norton; and Timothy W. McAfee, Town Attorney, Town of Pound, 20-025, 2020 Va. AG LEXIS ____ (12/18/20).

§ 19.2-251. When and how venue may be changed.

A circuit court may, on motion of the accused or of the Commonwealth, for good cause, order the venue for the trial of a criminal case in such court to be changed to some other circuit court. Such motion when made by the accused may be made in his absence upon a petition signed and sworn to by him.

Whenever the mayor of any city, or the sheriff of any county, shall call on the Governor for military force to protect the accused from violence, the judge of the circuit court of the city or county having jurisdiction of the offense shall, upon a petition signed and sworn to by the accused, whether he be present or not, at once order the venue to be changed to the circuit court of a city or county sufficiently remote from the place where the offense was committed to insure the safe and impartial trial of the accused.

(Code 1950, § 19.1-224; 1960, c. 366; 1975, c. 495.)

Cross references. - As to custody of defendant when venue changed, see § 19.2-252 .

As to procedure upon and after change of venue, see § 19.2-253 .

As to constitutional provision prohibiting local, special or private laws for change of venue in civil and criminal cases, see Va. Const., Art. IV, § 14 (2).

Law review. - For comment on change of venue in criminal cases, see 26 Wash. & Lee L. Rev. 89 (1969).

Research References. - Virginia Forms (Matthew Bender). No. 9-2219. Motion for Change of Venue. No. 9-2220. Order Changing Venue.

Michie's Jurisprudence. - For related discussion, see 11B M.J. Jury, § 4; 19 M.J. Venue, §§ 14, 17, 17.1, 20.

CASE NOTES

I. RIGHT AND POWER TO CHANGE.

This section is not in conflict with Va. Const., Art. I, § 8. Newberry v. Commonwealth, 192 Va. 819 , 66 S.E.2d 841 (1951).

The purpose of a change of venue is to accord litigants, both the Commonwealth and the defendant, a fair and impartial trial. Newcomer v. Commonwealth, 220 Va. 64 , 255 S.E.2d 485 (1979).

Under this section, the courts have power whenever necessary to allow a change of venue. Wormeley v. Commonwealth, 51 Va. (10 Gratt.) 658 (1853); Muscoe v. Commonwealth, 87 Va. 460 , 12 S.E. 790 (1891); Bowles v. Commonwealth, 103 Va. 816 , 48 S.E. 527 (1904), overruled on other grounds Graham v. Commonwealth, 127 Va. 808 , 103 S.E. 565 (1920).

Question of change of venue is within sound judicial discretion of the trial judge. Evans v. Commonwealth, 161 Va. 992 , 170 S.E. 756 (1933); Poindexter v. Commonwealth, 218 Va. 314 , 237 S.E.2d 139 (1977); Newcomer v. Commonwealth, 220 Va. 64 , 255 S.E.2d 485 (1979); Watkins v. Commonwealth, 229 Va. 469 , 331 S.E.2d 422 (1985), cert. denied, 475 U.S. 1099, 106 S. Ct. 1503, 89 L. Ed. 2d 903 (1986).

It is only where the record affirmatively shows an abuse of discretion that the trial court's ruling on a motion for a change of venue will be reversed. Poindexter v. Commonwealth, 218 Va. 314 , 237 S.E.2d 139 (1977); Newcomer v. Commonwealth, 220 Va. 64 , 255 S.E.2d 485 (1979); Watkins v. Commonwealth, 229 Va. 469 , 331 S.E.2d 422 (1985), cert. denied, 475 U.S. 1099, 106 S. Ct. 1503, 89 L. Ed. 2d 903 (1986).

An application for a change of venue in a criminal case on the ground of local prejudice rendering impossible an impartial trial is a matter addressed to the sound discretion of the trial court and its ruling on this question will not be reversed on appeal unless the record clearly shows abuse of that discretion. Farrow v. Commonwealth, 197 Va. 353 , 89 S.E.2d 312 (1955).

Change of venue is within the sound discretion of the trial court, and refusal to grant it will not constitute reversible error unless the record affirmatively shows an abuse of discretion. Stockton v. Commonwealth, 227 Va. 124 , 314 S.E.2d 371, cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984).

The trial court must be allowed a wide discretion in deciding motions for change of venue. Looney v. Commonwealth, 115 Va. 921 , 78 S.E. 625 (1913); Taylor v. Commonwealth, 122 Va. 886 , 94 S.E. 795 (1918); Thompson v. Commonwealth, 131 Va. 847 , 109 S.E. 447 (1921). See Wormeley v. Commonwealth, 51 Va. (10 Gratt.) 658 (1953); Poindexter v. Commonwealth, 218 Va. 314 , 237 S.E.2d 139 (1977); Newcomer v. Commonwealth, 220 Va. 64 , 255 S.E.2d 485 (1979).

Liberal construction. - Statutes conferring the right to a change of venue are enacted with the view of according litigants a fair and impartial trial, and being in furtherance of justice should be liberally construed so as not to defeat the right. Ramsay v. Harrison, 119 Va. 682 , 89 S.E. 977 (1916).

Questions of venue not raised at the trial stage are waived. Loomis v. Peyton, 323 F. Supp. 246 (W.D. Va. 1971).

There is a presumption that a defendant can receive a fair trial from the citizens of the county or city in which the offense occurred. To overcome this presumption, the accused has the burden of clearly showing that there is such a widespread feeling of prejudice on the part of the citizenry as will be reasonably certain to prevent a fair and impartial trial. Stockton v. Commonwealth, 227 Va. 124 , 314 S.E.2d 371, cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984).

Trial court's discretion in ruling upon a motion for change of venue will not be disturbed in the absence of a clear showing of abuse. LeVasseur v. Commonwealth, 225 Va. 564 , 304 S.E.2d 644 (1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 744, 79 L. Ed. 2d 202 (1984).

Applied in Taylor v. Commonwealth, 58 Va. App. 185, 708 S.E.2d 241, 2011 Va. App. LEXIS 140 (2011).

II. GROUNDS FOR CHANGE.

Grounds must exist at time of trial. - Conditions which obtain when the trial was had and not those which existed at the time of the homicide are looked to under this section. Thompson v. Commonwealth, 131 Va. 847 , 109 S.E. 447 (1921); Evans v. Commonwealth, 161 Va. 992 , 170 S.E. 756 (1933).

On a change of venue motion courts must look to the conditions at the time of the trial, not to the conditions at the time of the crime. Newcomer v. Commonwealth, 220 Va. 64 , 255 S.E.2d 485 (1979).

Mere belief or fears of defendant not sufficient. - The venue will not be changed for the mere belief of the party or his witnesses that he cannot have a fair trial in the county. Facts and circumstances must appear satisfying to the court. Wormeley v. Commonwealth, 51 Va. (10 Gratt.) 658 (1853); Muscoe v. Commonwealth, 87 Va. 460 , 12 S.E. 790 (1891); Bowles v. Commonwealth, 103 Va. 816 , 48 S.E. 527 (1904); Wright v. Commonwealth, 114 Va. 872 , 77 S.E. 503 (1913).

Sheer volume of publicity is not alone sufficient to justify a change of venue. LeVasseur v. Commonwealth, 225 Va. 564 , 304 S.E.2d 644 (1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 744, 79 L. Ed. 2d 202 (1984).

Showing of either extensive publicity or widespread knowledge of the crime or the accused is insufficient by itself to justify a change of venue. Stockton v. Commonwealth, 227 Va. 124 , 314 S.E.2d 371, cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984).

Fair trial. - Under this section a change of venue should be ordered when necessary to secure a fair trial. Evans v. Commonwealth, 161 Va. 992 , 170 S.E. 756 (1933).

Miscarriage of justice. - A criminal case ought not to be sent elsewhere for trial, unless it is made to appear to the court in which the case is pending that a trial in the vicinage is likely to result in a miscarriage of justice. Muscoe v. Commonwealth, 87 Va. 460 , 12 S.E. 790 (1891).

Local prejudice of such a character as to prevent a fair and impartial trial in the county or district where the action is brought is a well recognized ground for a change of venue. Uzzle v. Commonwealth, 107 Va. 919 , 60 S.E. 52 (1908); Burton v. Commonwealth, 107 Va. 931 , 60 S.E. 55 (1908); Jones v. Commonwealth, 111 Va. 862 , 69 S.E. 953 (1911); Ramsay v. Harrison, 119 Va. 682 , 89 S.E. 977 (1916).

Race prejudice. - It was good cause for change of venue under this section that it appeared that the white people of the county were so greatly aroused against the accused, who was a black man, that it was probable that he might not obtain a fair trial. Uzzle v. Commonwealth, 107 Va. 919 , 60 S.E. 52 (1908); Burton v. Commonwealth, 107 Va. 931 , 60 S.E. 55 (1908).

Prejudice not shown by brevity of jury's deliberations. - Defendant's contention that prejudice on the part of the jury was proved by the fact they deliberated only a relatively short time was without merit. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128, rehearing denied, 373 U.S. 947, 83 S. Ct. 1533, 10 L. Ed. 2d 702 (1963).

Pretrial publicity did not result in prejudice. - Pretrial publicity involving a single newspaper article, which was not read by any member of defendant's jury, was not enough to overcome the presumption that defendant would receive a fair trial in the jurisdiction where the offense occurred and, therefore, the trial court did not err in denying defendant's motion for a change of venue. Pritchett v. Commonwealth, No. 3132-06-3, 2008 Va. App. LEXIS 594 (Oct. 14, 2008).

Raising of fund to prosecute prisoner is not ground for a change of venue. Wormeley v. Commonwealth, 51 Va. (10 Gratt.) 658 (1853).

III. PROCEEDINGS.

When motion for jury from another county should precede. - Where an application for a change of venue is based simply on the ground of difficulty in obtaining jurors in the county free from exceptions, it must be preceded by an application to summon jurors from beyond such county. But this rule has no application where the motion for a change of venue is based upon the ground that there exists such prejudice and excitement against the accused as to endanger the fairness and impartiality of a trial conducted in the county. Wright v. Commonwealth, 74 Va. (33 Gratt.) 880 (1880); Joyce v. Commonwealth, 78 Va. 287 (1884); Waller v. Commonwealth, 84 Va. 492 , 5 S.E. 364 (1888); Uzzle v. Commonwealth, 107 Va. 919 , 60 S.E. 52 (1908); Burton v. Commonwealth, 107 Va. 931 , 60 S.E. 55 (1908); Jones v. Commonwealth, 111 Va. 862 , 69 S.E. 953 (1911); Looney v. Commonwealth, 115 Va. 921 , 78 S.E. 625 (1913).

Renewal of motion for change. - Although a motion for a change of venue may have been properly overruled at one term of the court, it is renewable at a subsequent time whenever the exigencies of the situation may call it into requisition. Looney v. Commonwealth, 115 Va. 921 , 78 S.E. 625 (1913).

The burden of proof is on the prisoner to show to the satisfaction of the trial court good cause to have the trial of the case removed to a county other than that in which the crime is committed. Slayton v. Commonwealth, 185 Va. 371 , 38 S.E.2d 485 (1946); Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128, rehearing denied, 373 U.S. 947, 83 S. Ct. 1533, 10 L. Ed. 2d 702 (1963).

The burden is upon the one requesting a change of venue to show clearly that there is such a widespread feeling of prejudice on the part of the citizens of the county as will be reasonably certain to prevent a fair and impartial trial. Farrow v. Commonwealth, 197 Va. 353 , 89 S.E.2d 312 (1955).

Affidavits as to prejudice by disinterested persons required. - An application by defendant for a change of venue, on the ground of general prejudice existing against him in the town or county where the cause is to be tried, should be supported by the affidavits of disinterested individuals. Boswell v. Flockheart, 35 Va. (8 Leigh) 364 (1837); Wormeley v. Commonwealth, 51 Va. (10 Gratt.) 658 (1853); Muscoe v. Commonwealth, 87 Va. 460 , 12 S.E. 790 (1891).

Statements of facts and circumstances in affidavits. - The affidavits in support of the motion for a change of venue, especially where opposed by counter affidavits of disinterested persons, should state the facts and circumstances tending to show that a fair and impartial trial cannot be had where the case is pending. King v. Commonwealth, 4 Va. (2 Va. Cas.) 78 (1817); Ramsay v. Harrison, 119 Va. 682 , 89 S.E. 977 (1916).

Where the affidavits introduced by the Commonwealth stand unchallenged by counter affidavits or other evidence, the affidavits should be taken to prove what is within them. Poindexter v. Commonwealth, 218 Va. 314 , 237 S.E.2d 139 (1977).

Effect of evidence opposing change. - A prisoner was indicted for murder. Several witnesses testified that not greater than the usual prejudice existed, and in their opinion a fair trial could be had. It was held, that a change of venue was properly denied. Muscoe v. Commonwealth, 87 Va. 460 , 12 S.E. 790 (1891).

Facts considered as established. - Upon an application for a change of venue in a criminal case, facts stated in the petition for removal which the Commonwealth does not attempt to controvert and which the accused is not permitted to sustain by proof, must be considered as established. Uzzle v. Commonwealth, 107 Va. 919 , 60 S.E. 52 (1908); Burton v. Commonwealth, 107 Va. 931 , 60 S.E. 55 (1908).

Evidence insufficient. - Defendant was not entitled to a change of venue of venire where there was no evidence of inflammatory newspaper or radio coverage of the case, no evidence of mass prejudice, hostility or threat of mob action, either before the jury was sworn or during the course of the trial, nor unusual difficulty in securing an impartial jury. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128, rehearing denied, 373 U.S. 947, 83 S. Ct. 1533, 10 L. Ed. 2d 702 (1963).

When jury subsequently secured after refusal of motion there is a presumption that motion unfounded. - Wright v. Commonwealth, 74 Va. (33 Gratt.) 880 (1880); Looney v. Commonwealth, 115 Va. 921 , 78 S.E. 625 (1913); Taylor v. Commonwealth, 122 Va. 886 , 94 S.E. 795 (1918). See also Joyce v. Commonwealth, 78 Va. 287 (1884); Waller v. Commonwealth, 84 Va. 492 , 5 S.E. 364 (1888); Bowles v. Commonwealth, 103 Va. 816 , 48 S.E. 527 (1904), overruled on another point Graham v. Commonwealth, 127 Va. 808 , 103 S.E. 565 (1920).

CIRCUIT COURT OPINIONS

Media coverage. - Defendant was not entitled to a change of venue pursuant to § 19.2-251 , based on alleged heavy reporting by multiple news outlets, as defendant only alleged potential prejudice as a result of the sheer volume of media coverage, defendant did not allege or show that any media reports were inaccurate or intemperate. Commonwealth v. Boughton, 74 Va. Cir. 538, 2006 Va. Cir. LEXIS 323 (Chesapeake 2006).

§ 19.2-252. Court ordering change of venue may admit accused to bail and recognize witnesses; remand of accused not admitted to bail.

When the venue is so changed, the court making the order may admit the accused to bail and shall recognize the witnesses and the accused if admitted to bail and the bail be given, to appear on some certain day before the court to which the case is removed; if the accused be not admitted to bail or the bail required be not given, the court shall remand him to its own jail and order its officer to remove him thence to the jail of the court to which the case is removed, so that he shall be there before the day for the appearance of the witnesses.

(Code 1950, § 19.1-225; 1960, c. 366; 1975, c. 495.)

Research References. - Virginia Forms (Matthew Bender). No. 9-2219. Motion for Change of Venue. No. 9-2220. Order Changing Venue.

Michie's Jurisprudence. - For related discussion, see 19 M.J. Venue, §§ 23, 25.

§ 19.2-253. Procedure upon and after change of venue.

The clerk of the court which orders a change of venue shall certify copies of the recognizances aforesaid and of the record of the case to the clerk of the court to which the case is removed, who shall thereupon issue a venire facias, directed to the officer of such court; and such court shall proceed with the case as if the prosecution had been originally therein; and for that purpose the certified copies aforesaid shall be sufficient.

(Code 1950, § 19.1-226; 1960, c. 366; 1975, c. 495.)

Research References. - Virginia Forms (Matthew Bender). No. 9-2220. Order Changing Venue. No. 9-2221. Order Appointing Special Prosecutors--Venue Change.

Michie's Jurisprudence. - For related discussion, see 19 M.J. Venue, § 25.

Article 3. Arraignment; Pleas; Trial Without Jury.

Research References. - Virginia Forms (Matthew Bender). No. 9-2316. Waiver of Trial by Jury and Plea. No. 9-2318. Statement by Defendant Regarding Plea of Guilty to Felony. No. 9-2319. Statement by Defendant Regarding Alford Plea. No. 9-2320. Conditional Plea of Guilty. No. 9-2321. Arraignment Order on Plea of Not Guilty. No. 9-2322. Arraignment Order on Plea of Guilty. No. 9-2403. Order Setting Arraignment.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, § 27; 4A M.J. Continuances, §§ 26, 48; 5B M.J. Criminal Procedure, §§ 29-34, 38, 42, 43, 45, 49, 70, 78, 95; 9B M.J. Indictments, Informations and Presentments, § 52; 11B M.J. Jury, §§ 14, 63.

§ 19.2-254. Arraignment; pleas; when court may refuse to accept plea; rejection of plea agreement; recusal.

Arraignment shall be conducted in open court. It shall consist of reading to the accused the charge on which he will be tried and calling on him to plead thereto. In a felony case, arraignment is not necessary when waived by the accused. In a misdemeanor case, arraignment is not necessary when waived by the accused or his counsel, or when the accused fails to appear.

An accused may plead not guilty, guilty or nolo contendere. The court may refuse to accept a plea of guilty to any lesser offense included in the charge upon which the accused is arraigned; but, in misdemeanor and felony cases the court shall not refuse to accept a plea of nolo contendere.

With the approval of the court and the consent of the Commonwealth, a defendant may enter a conditional plea of guilty in a misdemeanor or felony case in circuit court, reserving the right, on appeal from the judgment, to a review of the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

Upon rejecting a plea agreement in any criminal matter, a judge shall immediately recuse himself from any further proceedings on the same matter unless the parties agree otherwise.

(1975, c. 495; 1987, c. 357; 2014, cc. 52, 165.)

The 2014 amendments. - The 2014 amendment by c. 52 inserted "misdemeanor or" and "in circuit court" in the third paragraph.

The 2014 amendment by c. 165 added the last paragraph.

Law review. - For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For article, "Prosecutorial Power: A Transnational Symposium: The Worldwide Accountability Deficit for Prosecutors," see 67 Wash & Lee L. Rev. 1587 (2010).

For article, "A Comparative Look At Plea Bargaining In Australia, Canada, England, New Zealand, and the United States," see 57 Wm. & Mary L. Rev. 1147 (2016).

CASE NOTES

Rejection of guilty plea. - Under the Virginia Constitution, the statutes and the Rules of the Supreme Court of Virginia, a trial court may reject a guilty plea to the whole of an indictment tendered without a plea agreement only when it determines that the plea is constitutionally invalid; further, this determination extends only to ensuring that a guilty plea is made voluntarily, intelligently and knowingly. Graham v. Commonwealth, 11 Va. App. 133, 397 S.E.2d 270 (1990).

Plea of nolo contendere. - See Jefferson v. Commonwealth, 27 Va. App. 477, 500 S.E.2d 219 (1998).

When an accused enters a voluntary and intelligent plea of nolo contendere to an offense, he waives all defenses except those jurisdictional. Therefore, by entering a plea of nolo contendere to a conspiracy charge, appellant foreclosed the opportunity to appeal the trial court's denial of his pretrial motion to dismiss. Clauson v. Commonwealth, 29 Va. App. 282, 511 S.E.2d 449 (1999).

By pleading nolo contendere, defendant, in essence, admitted as true each factual allegation set forth in the indictment, including the fact that the offense occurred in the Commonwealth. Jones v. Commonwealth, 42 Va. App. 142, 590 S.E.2d 572, 2004 Va. App. LEXIS 2 (2004).

Arraignment waived. - Trial court did not err in convicting defendant of attempted murder because defendant was fully aware of the attempted murder charge and was in no way prejudiced by the omission of a formal arraignment, defendant's continued silence in the face of repeated references to the attempted murder charge was tantamount to a waiver of his right to be arraigned and to enter a not guilty plea, and having failed to raise any objection, defendant waived any defect; neither § 19.2-254 nor § 19.2-259 expressly provides that formal arraignment and entry of a plea are jurisdictional requirements, but, to the contrary, § 19.2-254 expressly provides that a defendant can waive arraignment. Simmons v. Commonwealth, 54 Va. App. 594, 681 S.E.2d 56, 2009 Va. App. LEXIS 367 (2009).

Issues on appeal limited to those specifically reserved. - Defendant waived his right to challenge on appeal the legality of a traffic checkpoint where he entered into a conditional plea agreement that specifically preserved only the pretrial motions and argument made on a certain date, and where defendant raised no issue of the validity of the checkpoint in those motions or on that date. Wilkins v. Commonwealth, No. 2758-99-2, 2001 Va. App. LEXIS 211 (Ct. of Appeals Apr. 17, 2001).

Because defendant's only contention during the pre-trial motion to suppress was that the police officer impermissibly stopped him, this statute limits an appeal from a conditional guilty plea to only those issues arising out of the trial court's denial of defendant's motion to suppress, and defendant conceded that he never raised the issue of the delayed entry of the order recording the presentation of the indictment in open court at his pre-trial suppression hearing, this statute precluded review of the issue on appeal unless the issue was jurisdictional, which it was not. Davis v. Commonwealth, No. 0215-15-3, 2016 Va. App. LEXIS 148 (Ct. of Appeals May 3, 2016).

Because defendant failed in his plea agreement to reserve the right to appeal the issue, the appellate court had no statutory authority to review defendant's assignment of error regarding whether the circuit court erred in declining to appoint him a fifth attorney. Brown v. Commonwealth, 68 Va. App. 58, 802 S.E.2d 197, 2017 Va. App. LEXIS 184 (Aug. 1, 2017).

Withdrawal permitted after prevail on appeal. - On appeal, the holding that defendant had not been in custody was reversed and therefore he had been entitled to Miranda warnings before police asked him about a weapon. Even if the Commonwealth was correct about the inevitable discovery of the weapon or the application of the public safety exception, defendant entered a conditional guilty plea pursuant to § 19.2-254 that allowed him to withdraw his plea if he prevailed on appeal. Hasan v. Commonwealth, 276 Va. 674 , 667 S.E.2d 568, 2008 Va. LEXIS 120 (2008).

Because defendant entered a conditional guilty plea pursuant to § 19.2-254 and prevailed on appeal regarding the suppression of the evidence at issue, § 19.2-254 mandated that the case be remanded to permit the possible withdrawal of the plea. Baker v. Commonwealth, 57 Va. App. 181, 700 S.E.2d 160, 2010 Va. App. LEXIS 404 (2010).

Although the circumstances might have provided the officer with a hunch that defendant might have been carrying a concealed weapon, they alone did not establish the reasonable suspicion necessary to justify a seizure in order to conduct a pat-down search; defendant's nervous behavior, distracted responses, and disregard for the officer's instructions, without additional factors, did not support a reasonable suspicion that defendant possessed a weapon, the seizure and pat down violated defendant's Fourth Amendment rights, and in light of his conditional guilty plea, the case was remanded to give him a chance to withdraw his plea. Minter v. Commonwealth,, 2014 Va. App. LEXIS 391 (Dec. 2, 2014).

Waiver by entering Alford plea. - Defendant by knowingly, intelligently, and voluntarily entering Alford pleas waived his right to appeal the denial of his motion to suppress a statement he made to police before he was Mirandized. Zimmer v. Commonwealth, No. 2623-00-2, 2001 Va. App. LEXIS 695 (Ct. of Appeals Dec. 27, 2001).

Alford plea. - Trial court did not err in finding that defendant violated his probation by refusing to admit that he committed the charged crime during court-ordered sex offender treatment because his Alford plea did not contain an implicit promise that he would never be required to admit his guilt; a defendant who enters an Alford plea is not an innocent person for the purposes of criminal sentencing and probation, and to mitigate the possibility that an innocent person would so plead, a factual basis is required supporting the finding of guilt before an Alford plea could be accepted. Carroll v. Commonwealth, 54 Va. App. 730, 682 S.E.2d 92, 2009 Va. App. LEXIS 392 (2009), aff'd, 280 Va. 641 , 701 S.E.2d 414, 2010 Va. LEXIS 277 (2010).

Entry of a knowing and voluntary, but non-conditional plea waived appeal from denial of motion to suppress. - Because defendant did not enter a conditional guilty plea to a charge of possession of Oxycodone, in violation of § 18.2-250 , but he entered said plea voluntarily and intelligently, he waived his right to appeal from the judgment denying his motion to suppress the evidence seized against him. Hill v. Commonwealth, 47 Va. App. 667, 626 S.E.2d 459, 2006 Va. App. LEXIS 63 (2006).

Lack of consent by Commonwealth. - Defendant's appeal based on his conditional guilty plea to a drug charge that reserved a challenge to the denial of his motion to suppress was properly dismissed because the mandatory language of § 19.2-254 required the Commonwealth's consent to a conditional plea, which it did not give. Witcher v. Commonwealth, 47 Va. App. 273, 623 S.E.2d 432, 2005 Va. App. LEXIS 526 (2005).

Conditional plea to misdemeanor vacated. - Although § 19.2-254 did not permit defendant to enter a conditional plea to a misdemeanor, defendant's guilty plea for obstruction of justice was vacated because it was not entered knowingly and intelligently; defendant informed the court that defendant wished to preserve right to appeal the denial of the motion to suppress and entered a guilty plea on understanding that an appeal was allowed. Cross v. Commonwealth, 49 Va. App. 484, 642 S.E.2d 763, 2007 Va. App. LEXIS 137 (2007).

Conditional plea to misdemeanor not allowed. - Misdemeanor conviction could not have been appealed because the statute allowing for conditional guilty pleas for felonies did not extend to misdemeanor convictions. Richardson v. Commonwealth,, 2014 Va. App. LEXIS 98 (Mar. 18, 2014).

Conditional plea to misdemeanor and invited error. - Although conditional guilty pleas were not allowed for misdemeanors, an appeal based on such was not properly before the appellate court because defense counsel invited the error. Defense counsel informed the trial court that defendant wished to enter a conditional guilty plea on two felony charges and two misdemeanor charges. Gunnell v. Commonwealth,, 2014 Va. App. LEXIS 97 (Mar. 18, 2014).

Review on appeal not waived. - An accused, with the approval of the court and the consent of the Commonwealth, may enter a conditional plea of guilty in a felony case, reserving the right, on appeal from the judgment, to a review of the adverse determination of any specified pretrial motion; defendant did not waive his right to have the trial court's denial of his double jeopardy motion reviewed by entry of guilty plea. Johnson v. Commonwealth, 38 Va. App. 137, 562 S.E.2d 341, 2002 Va. App. LEXIS 228 (2002), overruled by Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (2020).

Attempt by defendant to have unwritten plea agreement accepted. - Trial court did not err by making a factual determination that the parties had not yet entered into a plea agreement with regard to defense counsel trying to stop a trial for defendant based on a purported oral plea agreement with the Commonwealth, which the Commonwealth confirmed was made because, although the parties may have reached an agreement, the agreement was not binding on the trial court because it had not been presented to the court in writing for the court to have either accepted or rejected it. Forcing the trial court to halt the trial in order to consider an orally proffered agreement undermined the clear purpose of Va. Sup. Ct. R. 3A:8(c), which was to ensure that plea agreements were fully disclosed to both the trial court and the defendant, and, considering the multiple continuances in the case, the trial court did not abuse its discretion when it refused to stop the trial for the purpose of entertaining defendant's last-minute motion for consideration of an unwritten plea agreement. Wilson v. Commonwealth, 46 Va. App. 408, 617 S.E.2d 431, 2005 Va. App. LEXIS 324 (2005), rev'd, remanded as to issue of recusal, 630 S.E.2d 326, 2006 Va. LEXIS 60 (2006).

Applied in Smith v. Commonwealth, 27 Va. App. 357, 499 S.E.2d 11 (1998); Jones v. Commonwealth, 28 Va. App. 444, 506 S.E.2d 27 (1998); White v. Commonwealth, 46 Va. App. 123, 616 S.E.2d 49, 2005 Va. App. LEXIS 325 (2005).

CIRCUIT COURT OPINIONS

Enforcement of plea. - Because defendant specifically waived the right to a preliminary hearing under § 19.2-218 in reliance on a plea agreement, and because defendant complied with defendant's modified obligation to provide a "very specific" description of the driver of a stolen vehicle, defendant was entitled to have the agreement enforced. Commonwealth v. Brown, 79 Va. Cir. 659, 2007 Va. Cir. LEXIS 334 (Alexandria Nov. 2, 2007).

Suppression ruling. - Because defendant prevailed on the merits of his appeal regarding the trial court's suppression ruling after entering a conditional guilty plea below, defendant was to be given the opportunity to withdraw his conditional guilty plea on remand. Gonzales v. Commonwealth, No. 0950-15-1, 2016 Va. App. LEXIS 105 (Ct. of Appeals Apr. 5, 2016).

§ 19.2-254.1. Procedure in traffic infraction cases.

In a traffic infraction case, as defined in § 46.2-100 , involving an offense included in the uniform fine schedule established pursuant to § 16.1-69.40:1, a defendant may elect to enter a written appearance and waive court hearing, except in instances in which property damage or personal injury resulted. Arraignment is not necessary when waived by the accused or his counsel, when the accused fails to appear, or when such written appearance has been elected.

An accused may plead not guilty, guilty, or nolo contendere; and the court shall not refuse to accept a plea of nolo contendere. A plea of guilty may be entered in writing without court appearance.

When an accused tenders payment without executing a written waiver of court hearing and entry of guilty plea, such tender of payment shall itself be deemed a waiver of court hearing and entry of guilty plea.

In districts with traffic violations bureaus on July 1, 1977, the chief judge of the district may designate the traffic violations bureau for the receipt of a written appearance, waiver of court hearing and guilty plea.

(1977, c. 585; 1978, c. 605; 1992, c. 54.)

§ 19.2-254.2. Procedure in nontraffic offenses for which prepayment is authorized.

In any prepayable nontraffic offense case as defined in § 16.1-69.40:2 a defendant may elect to enter a written appearance and waive court hearing. Arraignment is not necessary when waived by the accused or his counsel, when the accused fails to appear, or when such written appearance has been elected.

An accused may plead not guilty, guilty, or nolo contendere; and the court shall not refuse to accept a plea of nolo contendere. A plea of guilty may be entered in writing without court appearance.

When an accused tenders payment without executing a written waiver of court hearing and entry of guilty plea, such tender of payment shall itself be deemed a waiver of court hearing and entry of guilty plea. Likewise when a person charged with a prepayable nontraffic offense fails to enter a written or court appearance, he shall be deemed to have waived court hearing and the case may be heard in his absence. In all other respects prepayable traffic offenses shall be treated as all other misdemeanors.

(1978, c. 605; 1992, c. 54.)

Cross references. - As to doubling of otherwise applicable fines set forth in Rule 3B:2 in the case of a waiver of appearance and plea of guilty under § 16.1-69.40:1 or § 19.2-254.2 for a violation of Chapter 8 ( § 46.2-800 et seq.) of Title 46.2 in a designated highway safety corridor, see § 46.2-947.

§ 19.2-255. Defendant allowed to plead several matters of law or fact.

The defendant in any criminal prosecution may plead as many several matters, whether of law or fact, as he shall think necessary, and he may file pleas in bar at the same time with pleas in abatement, or within a reasonable time thereafter; but the issues on the pleas in abatement shall be first tried.

(Code 1950, § 19.1-242; 1960, c. 366; 1975, c. 495.)

§ 19.2-256. Approvers.

Approvers shall not be admitted in any case.

(Code 1950, § 19.1-244; 1960, c. 366; 1975, c. 495.)

CASE NOTES

The doctrine of "approvement" was never the law of this state. Oliver v. Commonwealth, 77 Va. 590 (1883).

An approver is one who being indicted for treason, or felony, and arraigned, confesses the fact before he pleads, and accuses others, his accomplices, in order to obtain his pardon. His approvement is equivalent to an indictment, and if he supports it in all respects, and the person accused by him is found guilty, the approver is entitled to his pardon, but if he is acquitted, the approver receives judgment to be hanged, upon his own confession of the indictment. Byrd v. Commonwealth, 4 Va. (2 Va. Cas.) 490 (1826).

The admissibility of an accomplice does not depend on the ancient, and exploded doctrine of approvement. Byrd v. Commonwealth, 4 Va. (2 Va. Cas.) 490 (1826).

§ 19.2-257. Trial without jury in felony cases.

Upon a plea of guilty in a felony case, tendered in person by the accused after being advised by counsel, the court shall hear and determine the case without the intervention of a jury; or if the accused plead not guilty, with his consent after being advised by counsel and the concurrence of the attorney for the Commonwealth and of the court entered of record, the court shall hear and determine the case without the intervention of a jury. In such cases the court shall have and exercise all the powers, privileges and duties given to juries by any statute relating to crimes and punishments.

(Code 1950, § 19.1-192; 1960, c. 366; 1975, c. 495.)

Cross references. - As to right of defendant in criminal prosecution to plead several matters of law or fact, see § 19.2-255 .

For constitutional provision as to trial without jury in felony cases, see Va. Const., Art. I, § 8.

Law review. - For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

CASE NOTES

The language of this section is both expansive and mandatory. Knight v. Johnson, 529 F. Supp. 1309 (E.D. Va. 1982), rev'd on other grounds, 699 F.2d 162 (4th Cir.), cert. denied, 464 U.S. 832, 104 S. Ct. 112, 78 L. Ed. 2d 113 (1983).

Consent required before defendant can waive right to jury trial not unconstitutional. - There is no violation of any constitutional right of a defendant in requiring consent of the prosecution and the court in order for the defendant to waive his right to a jury trial. Vines v. Muncy, 553 F.2d 342 (4th Cir.), cert. denied, 434 U.S. 851, 98 S. Ct. 163, 54 L. Ed. 2d 120 (1977).

A jury may be waived only with the consent of the defendant, the Commonwealth, and the court. The statutory requirement of consent by the Commonwealth and by the court does not violate any constitutional right of the defendant. Pope v. Commonwealth, 234 Va. 114 , 360 S.E.2d 352 (1987), cert. denied, 485 U.S. 1015, 108 S. Ct. 1489, 99 L. Ed. 2d 716 (1988).

The Virginia Constitution and statutes are silent as to whether an accused will be permitted to withdraw a waiver of a trial by jury once that waiver has been exercised; and, if so, when such withdrawal of the waiver must be exercised. Thomas v. Commonwealth, 218 Va. 553 , 238 S.E.2d 834 (1977).

A defendant has no right to a jury trial if he pleads guilty in person, voluntarily, and after having been advised by counsel. Hancock v. Slayton, 341 F. Supp. 436 (W.D. Va. 1972).

Necessity for renewal of waiver motion. - The defendant argued on appeal that since the case had to be recessed that the trial judge should have reconsidered the motion to withdraw the waiver of a jury trial because the reasons for denying the motion no longer existed. However, the defendant did not renew his motion to withdraw the waiver of a jury trial and did not request the trial judge to reconsider his ruling in any manner. Therefore, the trial judge had no opportunity to rule upon the question the defendant presented on appeal. Weis v. Commonwealth, No. 1986-95-2 (Ct. of Appeals Jan. 7, 1997).

Where guilty plea to whole of an indictment, error to submit issues to jury. - Where a guilty plea to the whole of an indictment has been tendered, it is reversible error for a trial court to submit the degree of guilt or the question of punishment to the jury. Graham v. Commonwealth, 11 Va. App. 133, 397 S.E.2d 270 (1990).

The requirement that a plea of guilty be entered in person is statutory. Gross v. Smyth, 182 Va. 724 , 30 S.E.2d 570 (1944).

And may be waived. - The requirement that a plea of guilty be made in person, being only statutory, may be waived. Cottrell v. Commonwealth, 187 Va. 351 , 46 S.E.2d 413 (1948).

Denial of right to withdraw waiver held abuse of discretion. - A motion to withdraw a waiver of a jury trial made 11 days before the defendant's cases were set for trial was seasonably made, and the trial judge abused his discretion in denying the defendant the right to withdraw his waiver where the motion was not for the purpose of delay and granting the motion would not have resulted in an unreasonable delay of the trial thereby impeding the cause of justice. Thomas v. Commonwealth, 218 Va. 553 , 238 S.E.2d 834 (1977).

Jury trial cannot be waived unless the accused is represented by counsel. Mitchell v. Youell, 130 F.2d 880 (4th Cir. 1942).

But this requirement is likewise statutory. - The requirement of advice of counsel prior to waiver of a jury creates only a statutory right involving trial procedure, a violation of which would be subject only to direct attack and not by a collateral attack in a habeas corpus proceeding. Thornhill v. Smyth, 185 Va. 986 , 41 S.E.2d 11 (1947).

Guilty plea tendered in mid-trial irrelevant to right to enter plea. - The fact that a plea is tendered mid-trial is irrelevant to the analysis regarding a defendant's right to enter a plea of guilty; no limitations either under the Virginia Constitution, statutes or Rules of Court exist which provide a time by which a defendant must enter his plea of guilty. Graham v. Commonwealth, 11 Va. App. 133, 397 S.E.2d 270 (1990).

Valid plea of guilty which is accepted by the trial court is equivalent to a conviction of the offense to which it is directed. The effect is to authorize imposition of the sentence prescribed by law for that offense. Knight v. Johnson, 529 F. Supp. 1309 (E.D. Va. 1982), rev'd on other grounds, 699 F.2d 162 (4th Cir.), cert. denied, 464 U.S. 832, 104 S. Ct. 112, 78 L. Ed. 2d 113 (1983).

Effect of plea. - A plea of guilty waives all but jurisdictional objections and the objection that no offense is charged. Hancock v. Slayton, 341 F. Supp. 436 (W.D. Va. 1972).

If a plea of guilty is made, the prosecution is entirely relieved of the burden of proving any facts. Hancock v. Slayton, 341 F. Supp. 436 (W.D. Va. 1972).

A guilty plea constitutes a waiver of all nonjurisdictional defenses. Knight v. Johnson, 529 F. Supp. 1309 (E.D. Va. 1982), rev'd on other grounds, 699 F.2d 162 (4th Cir.), cert. denied, 464 U.S. 832, 104 S. Ct. 112, 78 L. Ed. 2d 113 (1983).

Judge may hear evidence in accepting guilty plea. - In accepting a plea of guilty, any trial judge is free to hear the evidence he deems necessary to an understanding of the case and to the fixing of an appropriate sentence. Kibert v. Commonwealth, 216 Va. 660 , 222 S.E.2d 790 (1976).

This does not mean that evidence must be heard upon a plea of guilty. Kibert v. Commonwealth, 216 Va. 660 , 222 S.E.2d 790 (1976).

Not only is proof unnecessary to fix the degree of the crime upon a plea of guilty in a murder case, but the introduction of evidence to sustain a conviction upon a guilty plea is equally unnecessary in any criminal case. Kibert v. Commonwealth, 216 Va. 660 , 222 S.E.2d 790 (1976).

Appeal. - Since a plea of guilty is itself a conviction by the defendant's own hand, it would seem senseless for a defendant to also want to claim the right to appeal his conviction, unless perhaps the guilty plea was coerced. Hancock v. Slayton, 341 F. Supp. 436 (W.D. Va. 1972).

A plea of guilty affords a defendant the right to appeal jurisdictional defects or questions concerning the length of his sentence only. Hancock v. Slayton, 341 F. Supp. 436 (W.D. Va. 1972).

Trial order recited that both the Commonwealth's attorney and the trial court concurred in defendant's jury trial waiver and a bench trial; this recitation satisfied the requirements of Va. Const., Art. 1, § 8, and of § 19.2-257 regarding waiver of a jury trial. Defendant made no objection to the trial court that the trial order did not accurately reflect the proceedings at his trial; thus, defendant's assertion that the order was inaccurate was waived and would not be considered on appeal. Lindsey v. Commonwealth, No. 0767-05-1, 2006 Va. App. LEXIS 433 (Oct. 3, 2006).

Upon a plea of guilty in a felony case the court is required to try the case. Sentence cannot be imposed upon the plea alone. McGrady v. Cunningham, 296 F.2d 600 (4th Cir. 1961), cert. denied, 369 U.S. 855, 82 S. Ct. 944, 8 L. Ed. 2d 14 (1962).

Voluntary guilty plea stands unless induced by threats, misrepresentation or improper promises. - A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g., bribes). Brown v. Peyton, 435 F.2d 1352 (4th Cir. 1970), cert. denied, 406 U.S. 931, 92 S. Ct. 1785, 32 L. Ed. 2d 133 (1972).

Review of promises which might have induced guilty plea. - The United States Supreme Court's decision in Brady v. United States , 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970), provides the standard by which reviewing courts may now measure any promises which might have induced the defendant's guilty plea. Simply because the promise made by the judge induced the defendant to plead guilty does not make that plea involuntary. The promise must be of the prohibited type to affect the voluntariness of the defendant's plea. Brown v. Peyton, 435 F.2d 1352 (4th Cir. 1970), cert. denied, 406 U.S. 931, 92 S. Ct. 1785, 32 L. Ed. 2d 133 (1972).

The judge's participation in the plea discussion did not in itself render the plea involuntary. Brown v. Peyton, 435 F.2d 1352 (4th Cir. 1970), cert. denied, 406 U.S. 931, 92 S. Ct. 1785, 32 L. Ed. 2d 133 (1972).

This section vests the trial court with almost unfettered authority as to a post-guilty plea hearing. Knight v. Johnson, 529 F. Supp. 1309 (E.D. Va. 1982), rev'd on other grounds, 699 F.2d 162 (4th Cir.), cert. denied, 464 U.S. 832, 104 S. Ct. 112, 78 L. Ed. 2d 113 (1983).

The right to have the jury both try the issue of guilt and fix the penalty is a part of the right of trial by jury. Huggins v. Commonwealth, 213 Va. 327 , 191 S.E.2d 734 (1972).

The established practice is one trial on guilt and punishment. Snider v. Cox, 212 Va. 13 , 181 S.E.2d 617 (1971).

And change of that general practice is left to the legislature. Snider v. Cox, 212 Va. 13 , 181 S.E.2d 617 (1971).

A trial to determine punishment alone is permitted where, under newly announced constitutional principles, a felon's sentence has been set aside, not because the jury that tried him could not constitutionally find him guilty, but because the jury as then constituted could not constitutionally impose the death sentence. Snider v. Cox, 212 Va. 13 , 181 S.E.2d 617 (1971).

Although a felon's sentence was set aside because the jury as then constituted could not constitutionally impose the death sentence, the exclusion of jurors opposed to capital punishment did not result in an unrepresentative jury on the issue of guilt or substantially increase the risk of conviction, and there was no error in the action of the state courts in granting a new trial on the issue of punishment only. Snider v. Winstead, 339 F. Supp. 897 (W.D. Va. 1972).

No clearly established federal right to have death sentence decided by jury. - Because a federal habeas petitioner had pled guilty to two counts of capital murder for hire in the deaths of her husband and stepson, the inmate had no clearly established right under federal law to have her sentence decided by a jury. Thus, counsel's failure to question the constitutionality of § 19.2-257 did not amount to ineffectiveness. Lewis v. Wheeler, 609 F.3d 291, 2010 U.S. App. LEXIS 11377 (4th Cir. 2010), cert. denied, 131 S. Ct. 60, 177 L. Ed. 2d 1148, 2010 U.S. LEXIS 5735 (U.S. 2010).

Effect of former law. - Former Va. Const., 1902, § 8, former § 19-166 (now this section) and former § 19-223 did no more than authorize and require a trial court, when a plea of guilty was entered in a criminal case, to dispose of the case without the intervention of the jury. The alternate provisions relating to a plea of guilty were intended only to make clear that the requirement of consent and concurrence entered of record did not apply when a guilty plea was entered and that it was mandatory for the court to dispose of the case without the intervention of a jury. Kibert v. Commonwealth, 216 Va. 660 , 222 S.E.2d 790 (1976).

Guilty plea held not voluntary. - Where the defendant's guilty plea to a short form indictment of murder was based upon the advice of counsel who mistakenly understood that the Commonwealth would have the burden of raising the degree of the offense to first-degree murder through a showing of evidence of premeditation, when in fact the Virginia Supreme Court has determined that a guilty plea is always to the highest degree of the offense charged in the indictment and that the statutory short form of indictment for murder includes murder in the first degree, the plea could not be viewed as voluntary, intelligent or made with an awareness of the likely consequences. Harlow v. Murray, 443 F. Supp. 1327 (W.D. Va.), aff'd, 588 F.2d 1348 (4th Cir. 1978).

If the jury cannot agree on a punishment and if the defendant, the attorney for the Commonwealth, and the court agree, in the manner provided in this section, then the court shall fix punishment. Carcamo v. Commonwealth, No. 1554-95-4 (Ct. of Appeals Sept. 17, 1996).

Applied in Knight v. Johnson, 699 F.2d 162 (4th Cir. 1983); Smallwood v. Commonwealth, 14 Va. App. 527, 418 S.E.2d 567 (1992); Miller v. Commonwealth, 16 Va. App. 977, 434 S.E.2d 897 (1993).

§ 19.2-258. Trial of misdemeanors by court without jury; failure to appear deemed waiver of jury.

In all cases of a misdemeanor upon a plea of guilty, tendered in person by the accused or his counsel, the court shall hear and determine the case without the intervention of a jury. If the accused plead not guilty, in person or by his counsel, the court, in its discretion, with the concurrence of the accused and the attorney for the Commonwealth, may hear and determine the case without the intervention of a jury. In each instance the court shall have and exercise all the powers and duties vested in juries by any statute relating to crimes and punishments.

When a person charged with a misdemeanor has been admitted to bail or released upon his own recognizance for his appearance before a court of record having jurisdiction of the case, for a hearing thereon and fails to appear in accordance with the condition of his bail or recognizance, he shall be deemed to have waived trial by a jury and the case may be heard in his absence as upon a plea of not guilty.

(Code 1950, § 19.1-193; 1960, c. 366; 1975, c. 495.)

Cross references. - For constitutional provisions as to trial by jury, see Va. Const., Art. I, § 8.

CASE NOTES

Failure to appear. - Defendant's failure to appear for trial in circuit court constituted a waiver of his right to trial by jury. Prezechowski v. Commonwealth, No. 0945-98-3 (Ct. of Appeals June 1, 1999).

The failure to include in the record the defendant's consent to waive his right to be tried by a jury or the concurrence by the attorney for the Commonwealth and the court required that the conviction be set aside. Wright v. Commonwealth, 4 Va. App. 303, 357 S.E.2d 547 (1987).

Word "waiver" need not be used. - Continuance order stated that upon motion, the matter was to be heard by the court, and it could be discerned that defendant, the attorney for the Commonwealth, and the trial court waived a jury trial; the waiver does not need to appear in conviction or sentencing orders, and there is nothing that mandates that the word waiver must be intoned, as long as the elements of waiver are met, and while the order did not expressly state waiver, it was a waiver that occurred with the concurrence of the Commonwealth Attorney and the court, and the trial court had subject matter jurisdiction. Karika v. Commonwealth, No. 1512-15-1, 2016 Va. App. LEXIS 288 (Ct. of Appeals Nov. 1, 2016).

The Virginia Constitution and statutes are silent as to whether an accused will be permitted to withdraw a waiver of a trial by jury once that waiver has been exercised; and if so, when such withdrawal of the waiver must be exercised. Thomas v. Commonwealth, 218 Va. 553 , 238 S.E.2d 834 (1977).

Necessity for renewal of waiver motion. - The defendant argued on appeal that since the case had to be recessed that the trial judge should have reconsidered the motion to withdraw the waiver of a jury trial because the reasons for denying the motion no longer existed. However, the defendant did not renew his motion to withdraw the waiver of a jury trial and did not request the trial judge to reconsider his ruling in any manner. Therefore, the trial judge had no opportunity to rule upon the question the defendant presented on appeal. Weis v. Commonwealth, No. 1986-95-2 (Ct. of Appeals Jan. 7, 1997).

Denial of right to withdraw waiver held abuse of discretion. - A motion to withdraw a waiver of a jury trial made 11 days before the defendant's case was set for trial was seasonably made, and the trial judge abused his discretion in denying the defendant the right to withdraw his waiver where the motion was not for the purpose of delay and granting the motion would not have resulted in an unreasonable delay of the trial thereby impeding the cause of justice. Thomas v. Commonwealth, 218 Va. 553 , 238 S.E.2d 834 (1977).

Applied in Head v. Commonwealth, 3 Va. App. 163, 348 S.E.2d 423 (1986); Sisk v. Commonwealth, 3 Va. App. 459, 350 S.E.2d 676 (1986).

§ 19.2-258.1. Trial of traffic infractions; measure of proof; failure to appear.

For any traffic infraction cases tried in a district court, the court shall hear and determine the case without the intervention of a jury. For any traffic infraction case appealed to a circuit court, the defendant shall have the right to trial by jury. The defendant shall be presumed innocent until proven guilty beyond a reasonable doubt.

When a person charged with a traffic infraction fails to enter a written or court appearance, he shall be deemed to have waived court hearing and the case may be heard in his absence, after which he shall be notified of the court's finding; however, the court shall not issue a warrant for his failure to appear pursuant to § 46.2-938 .

(1977, c. 585; 1978, c. 605; 1989, c. 705; 2001, c. 414; 2020, cc. 964, 965.)

Editor's note. - In 2020, identical cc. 1227 and 1246 purported to amend this section, effective January 1, 2021, by substituting "driving privileges" for "driver's license" in the last sentence of the last paragraph. However, the earlier amendments by cc. 964 and 965 rendered that language obsolete.

The 2001 amendments. - The 2001 amendment by c. 414 deleted "within ten days of the date of the notice" following "fails to comply" in the second paragraph.

The 2020 amendments. - The 2020 amendments by cc. 964 and 965 are identical, and substituted "finding; however, the court" for "finding. He shall be advised that if he fails to comply with any order of the court therein, the court may order suspension of his driver's license as provided in § 46.2-395 but the court" in the last paragraph.

Law review. - For article, "Appeal De Novo in Virginia: An Examination of Its Present Utility," see 42 Wash. & Lee L. Rev. 1149 (1985).

§ 19.2-259. On trial for felony, accused to be present; when court may enter plea for him, and trial go on.

A person tried for felony shall be personally present during the trial. If when arraigned he will not plead or answer and does not confess his guilt the court shall have the plea of not guilty entered and the trial shall proceed as if the accused had put in that plea. But for the purposes of this section a motion for a continuance, whether made before or after arraignment, shall not be deemed to be part of the trial.

(Code 1950, § 19.1-240; 1960, c. 366; 1975, c. 495.)

Cross references. - As to presence of accused in prosecution of a misdemeanor, see § 19.2-237 .

As to trial without jury, see §§ 19.2-257 and 19.2-258 .

Law review. - For survey of Virginia law on criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

CASE NOTES

I. PRESENCE OF ACCUSED.
A. IN GENERAL.

Source of right. - A defendant's right to be present at trial arises from two sources, the Sixth Amendment and this section. Hunter v. Commonwealth, 13 Va. App. 187, 409 S.E.2d 483 (1991).

An accused's right to be present at trial arises from both the sixth amendment and this section. Cruz v. Commonwealth, 24 Va. App. 454, 482 S.E.2d 880 (1997).

Presence required when interests of prisoner affected. - It has been uniformly held that, in a trial for felony, it is absolutely necessary to a valid conviction that the prisoner shall be present in court whenever anything is done in his case in any way affecting his interest. Thus, it is the well-established practice that a prisoner accused of felony must be arraigned in person, and must plead in person; and, in all the subsequent proceedings, he must appear in person, not by attorney; and such appearance in person must be shown by the record. Boswell v. Commonwealth, 61 Va. (20 Gratt.) 860 (1871); Lawrence v. Commonwealth, 71 Va. (30 Gratt.) 845 (1878), overruled on another point Jones v. Commonwealth, 87 Va. 63 , 12 S.E. 226 (1890); Longley v. Commonwealth, 99 Va. 807 , 37 S.E. 339 (1900); Gilligan v. Commonwealth, 99 Va. 816 , 37 S.E. 962 (1901); O'Boyle v. Commonwealth, 100 Va. 785 , 40 S.E. 121 (1901); Bowles v. Commonwealth, 103 Va. 816 , 48 S.E. 527 (1904), overruled on another point Graham v. Commonwealth, 127 Va. 808 , 103 S.E. 565 (1920).

The rule is that the accused must be present on his arraignment when any evidence is given or excluded, when the jury is charged, when the trial court wishes to communicate with the jury in answering questions by them, and when the jury receives further instructions. Lewis v. Commonwealth, 212 Va. 411 , 184 S.E.2d 818 (1971).

Where the court without consulting or notifying either the Commonwealth or the defendant, responded to jury questions apparently through the bailiff, and the jury subsequently reached a guilty verdict without pursuing either request further, the trial court clearly erred in communicating with the jury in the defendant's absence and his conviction was reversed. Swilling v. Commonwealth, No. 1214-86-1 (Ct. of Appeals June 7, 1988).

The right of one charged with felony to be personally present throughout his trial was a basic principle of the common law, and the first sentence of this section is but a legislative declaration of that principle. Williams v. Commonwealth, 188 Va. 583 , 50 S.E.2d 407 (1948).

This section is merely declaratory of the common-law principle. Near v. Cunningham, 313 F.2d 929 (4th Cir. 1963), commented on in 21 Wash. & Lee L. Rev. 346 (1964).

The common-law doctrine relating to the right of a person indicted for a felony to be present during his trial has been enacted into this section. Root v. Cunningham, 344 F.2d 1 (4th Cir.), cert. denied, 382 U.S. 866, 86 S. Ct. 135, 15 L. Ed. 2d 104 (1965). But see, United States v. Rhodes, 32 F.3d 867 (4th Cir. 1994), cert. denied, 513 U.S. 1164, 115 S. Ct. 1130, 130 L. Ed. 2d 1092 (1995).

This section requiring the presence of the accused at every stage of his trial is merely declaratory of a common-law right, and his absence at any critical stage is a violation of his constitutional right. Timmons v. Peyton, 360 F.2d 327 (4th Cir.), cert. denied, 385 U.S. 960, 87 S. Ct. 396, 17 L. Ed. 2d 305 (1966).

The provision that "a person tried for felony shall be personally present during the trial" is declaratory of a principle of the common law, and is an essential part of the process of law provided for the trial of persons charged with a felony. Conformity to the rule is essential to jurisdiction and the accused cannot waive it. Lewis v. Commonwealth, 212 Va. 411 , 184 S.E.2d 818 (1971).

This provision is merely declaratory of a principle of the common law; it is an essential part of the process of law without which the courts have no jurisdiction to pronounce judgment; and it is a right which the accused cannot waive. Bilokur v. Commonwealth, 221 Va. 467 , 270 S.E.2d 747 (1980).

The accused has an inalienable right to be present throughout his trial. Root v. Cunningham, 344 F.2d 1 (4th Cir.), cert. denied, 382 U.S. 866, 86 S. Ct. 135, 15 L. Ed. 2d 104 (1965). But see, United States v. Rhodes, 32 F.3d 867 (4th Cir. 1994), cert. denied, 513 U.S. 1164, 115 S. Ct. 1130, 130 L. Ed. 2d 1092 (1995).

And such right is to be carefully guarded. Root v. Cunningham, 344 F.2d 1 (4th Cir.), cert. denied, 382 U.S. 866, 86 S. Ct. 135, 15 L. Ed. 2d 104 (1965). But see, United States v. Rhodes, 32 F.3d 867 (4th Cir. 1994), cert. denied, 513 U.S. 1164, 115 S. Ct. 1130, 130 L. Ed. 2d 1092 (1995).

But it must not be so enlarged as to exceed its true scope and purpose. Root v. Cunningham, 344 F.2d 1 (4th Cir.), cert. denied, 382 U.S. 866, 86 S. Ct. 135, 15 L. Ed. 2d 104 (1965). But see, United States v. Rhodes, 32 F.3d 867 (4th Cir. 1994), cert. denied, 513 U.S. 1164, 115 S. Ct. 1130, 130 L. Ed. 2d 1092 (1995).

The statutory phrase "during the trial" has been defined as every stage of the trial from the accused's arraignment to his sentence, when anything is to be done which can affect his interest. Bilokur v. Commonwealth, 221 Va. 467 , 270 S.E.2d 747 (1980); Jones v. Commonwealth, 227 Va. 425 , 317 S.E.2d 482 (1984).

A person tried for a felony has the right to be personally present during the trial. This right has been read very broadly. The Supreme Court has defined the phrase "during the trial" to mean "every stage of the trial from [the accused's] arraignment to his sentence, when anything is to be done which can affect his interest." Brittingham v. Commonwealth, 10 Va. App. 530, 394 S.E.2d 336 (1990).

The in camera hearing was a stage of the trial where something could be done to affect the defendant's interests, therefore, the defendant was entitled to have a court reporter present. The in camera hearing was not merely to determine a legal question. Testimony was heard to determine whether appellant was promised immunity from prosecution. Defense counsel was given the right to cross-examine the witness. The witness was taken to the judge's chambers for the purpose of asking him substantive evidentiary questions. Brittingham v. Commonwealth, 10 Va. App. 530, 394 S.E.2d 336 (1990).

The rule is well established that a person on trial for a felony cannot appear by attorney. Lawrence v. Commonwealth, 71 Va. (30 Gratt.) 845 (1878), overruled on another point Jones v. Commonwealth, 87 Va. 63 , 12 S.E. 226 (1890); Bond v. Commonwealth, 83 Va. 581 , 3 S.E. 149 (1887); Shelton v. Commonwealth, 89 Va. 450 , 16 S.E. 355 (1892); Snodgrass v. Commonwealth, 89 Va. 679 , 17 S.E. 238 (1893); Coleman v. Commonwealth, 90 Va. 635 , 19 S.E. 161 (1894).

The test for determining whether this section has been violated is whether or not the interest of the defendant has been affected by the action of the judge in defendant's absence. Rogers v. Commonwealth, 183 Va. 190 , 31 S.E.2d 576 (1944); Thomas v. Commonwealth, 183 Va. 501 , 32 S.E.2d 711 (1945); Carpenter v. Commonwealth, 193 Va. 851 , 71 S.E.2d 377 (1952).

No violation found. - Where the trial court took the issue of its power to vacate a previously suspended sentence under advisement and, after ruling by letter opinion, held a further hearing where the decision was announced and final judgment was pronounced in defendant's presence, the trial court did not sentence defendant in his absence. Murphy v. Commonwealth, No. 0552-01-1, 2002 Va. App. LEXIS 216 (Ct. of Appeals Apr. 9, 2002).

Insufficient evidence of prejudice caused by continuance. - Where defendant fails to appear at trial and defense counsel requests a continuance, the Commonwealth cannot establish prejudice which the continuance causes only by showing that witnesses may be lost or not available for a second trial. Cruz v. Commonwealth, 23 Va. App. 113, 474 S.E.2d 835 (1996), aff'd on reh'g en banc, 24 Va. App. 454, 482 S.E.2d 880 (1997).

How irregularity cured. - If, in the absence of the accused, a motion for new trial is made and overruled, and afterwards during same term, in his presence, the overruling is rescinded, and he is invited to renew the motion, but refuses, the irregularity is thereby cured. Boswell v. Commonwealth, 61 Va. (20 Gratt.) 860 (1871); Bond v. Commonwealth, 83 Va. 581 , 3 S.E. 149 (1887). See also Thomas v. Commonwealth, 183 Va. 501 , 32 S.E.2d 711 (1945).

Due process. - Even if petitioner was entitled to be present at the time of presentation and argument of certain motions, and even if a ruling on the motions by the state court when petitioner was not present affected his interest, this does not bring into focus the due process clause of the Fourteenth Amendment of the United States Constitution. Owsley v. Cunningham, 190 F. Supp. 608 (E.D. Va. 1961).

Forfeiture of right. - While the accused cannot waive his right to be present during trial, the Supreme Court has never held that an accused cannot forfeit the right accorded by this section. Quintana v. Commonwealth, 224 Va. 127 , 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L. Ed. 2d 501 (1983).

An accused may forfeit both the constitutional right and statutory right to be present at trial. Cruz v. Commonwealth, 24 Va. App. 454, 482 S.E.2d 880 (1997).

Record supported the trial court's judgment that defendant was warned he could be tried in absentia if he did not appear for trial, and the trial court did not abuse its discretion when it allowed the Commonwealth to try defendant in absentia on a charge of conspiracy to commit grand larceny. Sullivan v. Commonwealth, No. 2300-02-4, 2004 Va. App. LEXIS 67 (Ct. of Appeals Feb. 10, 2004).

Applied in Grafmuller v. Commonwealth, 290 Va. 525 , 778 S.E.2d 114, 2015 Va. LEXIS 153 (2015).

B. WAIVER.

Defendant may waive his right to be present at beginning of his trial after presence at arraignment just as he may waive his right to be present at any later stage. Head v. Commonwealth, 3 Va. App. 163, 348 S.E.2d 423 (1986), overruled on other grounds, Cruz v. Commonwealth, 24 Va. App. 454, 482 S.E.2d 880 (1997).

An accused can waive the right to be present for the entire trial. Cruz v. Commonwealth, 24 Va. App. 454, 482 S.E.2d 880 (1997).

Requirements. - The waiver of the right to be present at a jury viewing of the crime scene must be given knowingly and intelligently and with sufficient awareness of its likely consequences. Hunter v. Commonwealth, 23 Va. App. 306, 477 S.E.2d 1 (1996).

No express statutory waiver of right to be present upon failure to appear. - There is no express statutory authorization for holding that a person not appearing at his felony trial will be deemed to have waived his right to be present. Sisk v. Commonwealth, 3 Va. App. 459, 350 S.E.2d 676 (1986).

Judge should inform defendant of possible waiver of right to be present. - It is recommended that the trial judge inform the defendant, upon accepting his plea, that failure to appear after arraignment may be deemed a waiver or forfeiture of his right to be present during the trial and that the trial will commence in his absence. The arraignment is a significant stage of the proceedings because it is generally considered the point at which a criminal trial begins. Sisk v. Commonwealth, 3 Va. App. 459, 350 S.E.2d 676 (1986).

Even without a prior warning that he could be tried in his absence if he failed to appear, the trial court properly found that the defendant voluntarily waived his right to be present at trial where, at the conclusion of the Commonwealth's evidence, the trial judge instructed the parties to coordinate a date to complete the trial, and the defendant failed to appear at the next three scheduled trial dates. Sykes v. Commonwealth, No. 2125-97-1 (Ct. of Appeals July 7, 1998).

Voluntary waiver found. - Defendant waived his right to be present at trial, where he and his attorney signed document entitled "Agreement Setting Case For Trial," which included both scheduled trial date and warning that failure to appear for trial could result in defendant being tried and convicted in his absence. Hutchings v. Commonwealth, No. 2935-98-2 (Ct. of Appeals Feb. 8, 2000).

Trial court did not err in convicting defendant of attempted murder because defendant was fully aware of the attempted murder charge and was in no way prejudiced by the omission of a formal arraignment, defendant's continued silence in the face of repeated references to the attempted murder charge was tantamount to a waiver of his right to be arraigned and to enter a not guilty plea, and having failed to raise any objection, defendant waived any defect; neither § 19.2-254 nor § 19.2-259 expressly provides that formal arraignment and entry of a plea are jurisdictional requirements, but, to the contrary, § 19.2-254 expressly provides that a defendant can waive arraignment. Simmons v. Commonwealth, 54 Va. App. 594, 681 S.E.2d 56, 2009 Va. App. LEXIS 367 (2009).

Defendant one's challenge to the court's act of entertaining and answering the jury's questions when neither he nor his counsel were present could be considered on appeal under the contemporaneous objection exception as he did not contest the content of the court's answers to the jury's questions; defendant one and his counsel did not have the opportunity to be present and challenge the court's decision to address questions from the jury in their absence. Maxwell v. Commonwealth, 287 Va. 258 , 754 S.E.2d 516, 2014 Va. LEXIS 31 (2014).

Voluntary absence at trial, standing alone, does not constitute a knowing and intelligent waiver. Hunter v. Commonwealth, 13 Va. App. 187, 409 S.E.2d 483 (1991).

Defendant's voluntary absence alone does not constitute a knowing and intelligent waiver of his right to be present at trial; the "voluntariness" of such waiver is a fact specific question. Cruz v. Commonwealth, 24 Va. App. 454, 482 S.E.2d 880 (1997).

Bond warning that failure to appear could result in trial and conviction of defendant in his absence was not a sufficient basis upon which to find a knowing and intelligent waiver where the bond may have been too casually considered for the defendant to have known the consequences of his act, and there was no other evidence that the defendant knew or should have known or understood the consequences of his action. Sisk v. Commonwealth, 3 Va. App. 459, 350 S.E.2d 676 (1986).

As to waiver by defendant of right to be present at a view by the jury, overruling Noell v. Commonwealth, 135 Va. 600 , 115 S.E. 679 (1932), to the extent that it elevated to jurisdictional stature the right of an accused to be present at a view and made the right not subject to waiver, see Jones v. Commonwealth, 227 Va. 425 , 317 S.E.2d 482 (1984).

For cases holding that defendant cannot waive right to be present at all stages of his trial, see Jackson v. Commonwealth, 60 Va. (19 Gratt.) 656 (1870); Bond v. Commonwealth, 83 Va. 581 , 3 S.E. 149 (1887); Jones v. Commonwealth, 87 Va. 63 , 12 S.E. 226 (1890); Shelton v. Commonwealth, 89 Va. 450 , 16 S.E. 355 (1892); Noell v. Commonwealth, 135 Va. 600 , 115 S.E. 679 (1923); Near v. Cunningham, 313 F.2d 929 (4th Cir. 1963), commented on in 21 Wash. & Lee L. Rev. 346 (1964). But see Hagood v. Commonwealth, 157 Va. 918 , 162 S.E. 10 (1932).

C. WHEN ESSENTIAL.

Imposition of sentence in defendant's absence held error. - None of the factors that underlie the decision to proceed with the trial of a defendant in absentia is present after the fact finder has determined guilt. Factors such as the loss or disappearance of witnesses, the difficulty of rescheduling the case, the burden of multiple trials where there are multiple defendants, denying an absent defendant the opportunity to obstruct the course of justice, and other prejudices to the Commonwealth cease to be compelling reasons for proceeding with the imposition of sentence. For these reasons, the trial court erred in imposing sentence on the defendant in absentia. Head v. Commonwealth, 3 Va. App. 163, 348 S.E.2d 423 (1986), overruled on other grounds, Cruz v. Commonwealth, 24 Va. App. 454, 482 S.E.2d 880 (1997).

Evidence read to jury. - Upon a trial for felony it is the right of the prisoner to be present from the arraignment to the verdict. And if the evidence of a witness on the trial, which has been reduced to writing, or any part of it, is read to the jury in the absence of the prisoner, it is error, for which the verdict will be set aside. Jackson v. Commonwealth, 60 Va. (19 Gratt.) 656 (1870).

Viewing of crime scene by jury. - An accused on trial for a felony has the right to be present in person during the trial; this includes every stage of the trial from arraignment to sentencing, when anything is to be done which can affect his interest. This definition encompasses a viewing of the crime scene by the jury. Hunter v. Commonwealth, 23 Va. App. 306, 477 S.E.2d 1 (1996).

Harmless error. - Although defendant's presence at a review hearing was required by statute, a trial court's decision to pronounce sentence without him being present was harmless beyond a reasonable doubt because he was present during the guilt phase, he failed to comply with the terms of his deferred disposition, and a lenient sentence was imposed. Nunez v. Commonwealth, 66 Va. App. 152, 783 S.E.2d 62 (2016).

D. WHEN NOT ESSENTIAL.

Inquiry into and consideration of purely legal matters by trial judge. - The prisoner's right of personal presence in a felony case from arraignment to sentence must not be so enlarged as to exceed its true scope and thereby made to include all inquiry into and consideration of purely legal matters by the trial judge which are in fact and reality merely careful and prudent preparations for the resumption and conduct of the trial. Williams v. Commonwealth, 188 Va. 583 , 50 S.E.2d 407 (1948); Carpenter v. Commonwealth, 193 Va. 851 , 71 S.E.2d 377 (1952).

Pretrial conference on sanity of defendant. - A conference called pursuant to former § 19.2-169 (see now § 19.2-169.1 ) held in chambers on defendant's motion five days before the date set for trial, was not a "stage of the trial proper" within the intendment of this section. Quintana v. Commonwealth, 224 Va. 127 , 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L. Ed. 2d 501 (1983).

Pre-arraignment hearing concerning restraining of defendant. - A decision following a pretrial hearing, at which the defendant was not present, that the defendant should be shackled during subsequent proceedings was not a ruling that so affected the defendant's interests that his presence was mandated where the hearing was held six months before the trial finally commenced and nothing bearing on the merits of the case was discussed, considered or decided. Graham v. Commonwealth, 31 Va. App. 662, 525 S.E.2d 567 (2000).

The consideration of instruction in chambers in the absence of accused is unobjectionable. When the instructions are given or rejected by the court he must be present. Hagood v. Commonwealth, 157 Va. 918 , 162 S.E. 10 (1932); Carpenter v. Commonwealth, 193 Va. 851 , 71 S.E.2d 377 (1952).

The consideration of instructions by the trial court in chambers out of the presence of the defendant and the jury violates no right guaranteed by either the state or federal Constitutions. Root v. Cunningham, 344 F.2d 1 (4th Cir.), cert. denied, 382 U.S. 866, 86 S. Ct. 135, 15 L. Ed. 2d 104 (1965). But see, United States v. Rhodes, 32 F.3d 867 (4th Cir. 1994), cert. denied, 513 U.S. 1164, 115 S. Ct. 1130, 130 L. Ed. 2d 1092 (1995).

And consideration of sentence in chambers is unobjectionable. - Appellate court refused to review defendant's claim that the trial court violated his rights under the Sixth Amendment to the U.S. Constitution and § 19.2-259 when it did not permit him to attend a meeting it held in chambers to consider defendant's objections to the sentence the court imposed because the court considered all issues defendant raised during a hearing it held six weeks later, which defendant did attend. Baldwin v. Commonwealth, 43 Va. App. 415, 598 S.E.2d 754, 2004 Va. App. LEXIS 309 (2004).

As is statement to jury concerning securing sleeping clothes. - In prosecution for homicide, the jury was told by the judge in the absence of accused, that if any of them wanted pajamas, nightclothes or anything like that they should get the sergeant to telephone for them but they should not telephone themselves. It was held that this action of the judge was not a violation of this section, since it was inconceivable that his remarks could have affected in the slightest degree the interests of accused. Rogers v. Commonwealth, 183 Va. 190 , 31 S.E.2d 576 (1944).

Direction as to delivery of transcript of evidence. - Where the presiding judge who heard the evidence and argument of counsel died, the direction by a temporarily presiding judge that a transcript of the evidence be taken to the appointed judge was no part of the trial and this section was inapplicable. Johnson v. Commonwealth, 184 Va. 466 , 35 S.E.2d 770 (1945).

Precautionary remarks to jurors. - On the first day of a trial for murder, when only 14 of the necessary 20 prospective jurors had been selected, it was necessary to recess until the panel could be completed. The court, in the absence of accused, but in the presence of his counsel, instructed the prospective jurors not to discuss the case with anyone. When the court's attention was called to the fact that accused was absent from the courtroom, accused was brought in and the proceeding was repeated in his presence. It was held that it was inconceivable that the precautionary remarks of the judge could have affected in the slightest degree the interests of accused. Thomas v. Commonwealth, 183 Va. 501 , 32 S.E.2d 711 (1945).

Suspensions of trial. - One of the defendants on trial for homicide was taken ill in jail, so that upon the advice of physicians the trial was suspended from time to time during two days because of his absence from the courthouse. This section provides that a person tried for a felony shall be personally present during the trial, but it also provides that a motion for a continuance, whether made before or after the arraignment, shall not be deemed a part of the trial. These suspensions were not part of the trial, and were not grounds for a reversal of the conviction of accused. The right of accused to be present was not thereby denied, but, on the contrary, accorded. Seymour v. Commonwealth, 133 Va. 775 , 112 S.E. 806 (1922).

Abscondment during trial. - The general disruption to the proper administration of the criminal justice system is such that the Commonwealth should not have to prove any special prejudice when the defendant absconds after the trial has commenced. Barfield v. Commonwealth, 20 Va. App. 447, 457 S.E.2d 786 (1995).

When the trial court determines that a defendant has voluntarily and knowingly absconded from the jurisdiction after his trial has commenced, public policy dictates that a trial court, exercising its sound discretion, may proceed with the trial in the defendant's absence. Barfield v. Commonwealth, 20 Va. App. 447, 457 S.E.2d 786 (1995).

Denial of second motion to strike evidence made in judge's chambers. - In rape prosecution where first motion to strike evidence was made in defendant's presence, denial of second motion made in judge's chambers in defendant's absence while instructions were being discussed, was not prejudicial denial of accused's right to be present during trial. Carpenter v. Commonwealth, 193 Va. 851 , 71 S.E.2d 377 (1952).

It is not necessary that a prisoner be present in a felony case when bills of exceptions are presented to and signed by the judge. Thurman v. Commonwealth, 107 Va. 912 , 60 S.E. 99 (1908).

Accused has right to be present at view. - A view of the crime scene is part of the trial of a felony case at which an accused has a right to be present. Jones v. Commonwealth, 227 Va. 425 , 317 S.E.2d 482 (1984).

This right may be waived. - The defendant in a felony case may waive his right to be present at a view of the scene of the crime. Jones v. Commonwealth, 227 Va. 425 , 317 S.E.2d 482 (1984).

But view conducted in his absence must not prejudice right to fair trial. - Even though an accused may waive his right to attend a view, the event must be conducted in a manner free from any prejudice to his right to a fair trial. In his absence, no evidence should be taken and no tests conducted. Neither should there be permitted any irregularity or misconduct which might tend to influence the trier of fact. Jones v. Commonwealth, 227 Va. 425 , 317 S.E.2d 482 (1984).

Trial judge's conference with a juror whom the judge had observed dropping his head and closing his eyes during testimony of the State Chemist did not constitute a part of the defendant's trial, within the meaning of this section. Rather, the judge's action was merely administrative in nature and, accordingly, he was not obligated to notify the defendant and his counsel in advance of the conference or to advise them afterward what took place in chambers. This duty of notification and advice arises only when an ex parte communication relates to some aspect of the trial. Furthermore, the trial judge's remarks were innocuous. The trial judge merely sought to impress upon the juror the necessity to hear and consider every word of testimony before deciding whether to convict the defendant. And, in telling the juror that the case was a serious one carrying a heavy penalty, the judge only stated what was fact. Ellis v. Commonwealth, 227 Va. 419 , 317 S.E.2d 479 (1984).

Appointment of new counsel. - This section does not require defendant's presence at the performance of the ministerial acts prior to trial of relieving previously-appointed counsel and appointing new counsel. Although defendant has the right to counsel, he is not guaranteed the services of a particular lawyer. For the purposes of this section, this means he does not have the right to insist that the court appoint his choice of counsel. Doxie v. Commonwealth, No. 0063-85 (Ct. of Appeals Aug. 26, 1986).

When trial may proceed in defendant's absence. - If the defendant is found to have voluntarily waived his right to be present, and it is further found that the burden of a continuance would be prejudicial to the Commonwealth's case, then the trial may, in the sound discretion of the court, properly proceed in the defendant's absence. Head v. Commonwealth, 3 Va. App. 163, 348 S.E.2d 423 (1986), overruled on other grounds, Cruz v. Commonwealth, 24 Va. App. 454, 482 S.E.2d 880 (1997).

Where the record in this case was totally devoid of any assurance, or even hint, that the defendant would be available in the future, and as far as the trial court was aware, the defendant could have fled the jurisdiction or the country for parts unknown, never to be heard from again, under such circumstances, there was no abuse of discretion in proceeding with the trial in the defendant's absence. Cruz v. Commonwealth, 23 Va. App. 113, 474 S.E.2d 835 (1996), aff'd on reh'g en banc, 24 Va. App. 454, 482 S.E.2d 880 (1997).

Where the record was devoid of any indication that defendant would be available for trial in the future and could have even fled the jurisdiction, trial court did not abuse its discretion to proceed to trial in the defendant's absence. Cruz v. Commonwealth, 24 Va. App. 454, 482 S.E.2d 880 (1997).

Voluntary absence found. - Where defendant's explanation that he missed trial because he drank too much and overslept clearly supported the trial court's finding that his absence was, indeed, voluntary, and where the "Appearance at Trial" form provided defendant both notice of his trial date and a warning that this failure to appear could result in a trial in his absence, the trial court properly found that defendant was voluntarily absent from trial and that he had notice both of the trial date and the possibility he would be tried in his absence if he failed to appear. Cruz v. Commonwealth, 23 Va. App. 113, 474 S.E.2d 835 (1996), aff'd on reh'g en banc, 24 Va. App. 454, 482 S.E.2d 880 (1997).

Factors considered in deciding to proceed with trial in defendant's absence. - It is not appropriate for every case to proceed to trial in the defendant's absence. In each instance, the decision must rest in the sound discretion of the trial judge who should consider, inter alia, the likelihood that the trial could soon take place with the defendant present, the difficulty of rescheduling, the burden on the Commonwealth in securing the attendance of witnesses on another date, and any other factors given to explain the defendant's absence. Head v. Commonwealth, 3 Va. App. 163, 348 S.E.2d 423 (1986), overruled on other grounds, Cruz v. Commonwealth, 24 Va. App. 454, 482 S.E.2d 880 (1997).

Jury deliberations. - Defendant does not have a right to be present in the courtroom while the jury is deliberating in another room. Remington v. Commonwealth, 262 Va. 333 , 551 S.E.2d 620, 2001 Va. LEXIS 107 (2001), cert. denied, 535 U.S. 1062, 122 S. Ct. 1928, 152 L. Ed. 2d 834 (2002).

E. MUST BE SHOWN BY RECORD.

The record must show that a person indicted for felony was personally present during the trial therefor. It must show that he was arraigned in person, pleaded in person and was personally present whenever anything was done in his case in any way affecting his interests. The record can alone be looked to for the evidence to prove such presence at every stage of the trial. Jackson v. Commonwealth, 60 Va. (19 Gratt.) 656 (1870); Boswell v. Commonwealth, 61 Va. (20 Gratt.) 860 (1871); Cluverius v. Commonwealth, 81 Va. 787 (1886); Snodgrass v. Commonwealth, 89 Va. 679 , 17 S.E. 238 (1893); Coleman v. Commonwealth, 90 Va. 635 , 19 S.E. 161 (1894); Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895); Gilligan v. Commonwealth, 99 Va. 816 , 37 S.E. 962 (1901); Bowles v. Commonwealth, 103 Va. 816 , 48 S.E. 527 (1904), overruled on another point Graham v. Commonwealth, 127 Va. 808 , 103 S.E. 565 (1920).

His presence must be shown by the record when motion for new trial is made and overruled. Bond v. Commonwealth, 83 Va. 581 , 3 S.E. 149 (1887).

Presence inferred from record. - The whole record is to be looked to, and if anything appears in the record from which this presence must be necessarily inferred, it is all that the law requires. Lawrence v. Commonwealth, 71 Va. (30 Gratt.) 845 (1878), overruled on another point Jones v. Commonwealth, 87 Va. 63 , 12 S.E. 226 (1890); Cluverius v. Commonwealth, 81 Va. 787 (1886); Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895).

Where at the end of the record of the proceedings of the court on the day of the conviction, it is stated, "And thereupon the accused was remanded to jail," this is conclusive that he had been personally present during all the proceedings had that day. Cluverius v. Commonwealth, 81 Va. 787 (1886).

The fact that a person charged with felony appears by attorney, does not show that he was not then personally present in court, and if it otherwise appears from the record that he was then personally present it will be sufficient. Lawrence v. Commonwealth, 71 Va. (30 Gratt.) 845 (1878), overruled on another point Jones v. Commonwealth, 87 Va. 63 , 12 S.E. 226 (1890); Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895).

II. PLEADING.

The defendant must plead or the court plead for him before the trial may proceed. Crutchfield v. Commonwealth, 187 Va. 291 , 46 S.E.2d 340 (1948).

Without a plea entered in person by the accused, or by the court, there can be no trial of a felony charge. Cassidy v. Peyton, 210 Va. 80 , 168 S.E.2d 125 (1969).

A plea of nolo contendere is not such a confession of guilt under this section as is sufficient to sustain a conviction of felony. Cassidy v. Peyton, 210 Va. 80 , 168 S.E.2d 125 (1969).

While a plea of nolo contendere is permissible in a misdemeanor case, such a plea cannot be accepted in a felony case. Cassidy v. Peyton, 210 Va. 80 , 168 S.E.2d 125 (1969).

Effect when no plea properly made. - A plea of not guilty was withdrawn, a plea of guilty was rejected by the court, and the plea of nolo contendere was improperly received. Therefore, it follows that the case was tried without a joinder of issue upon any valid plea. Without a plea entered in person by the accused, or by the court, there can be no trial of a felony charge. This section concludes this question. Roach v. Commonwealth, 157 Va. 954 , 162 S.E. 50 (1932).

CIRCUIT COURT OPINIONS

Defendant's presence at sentencing required. - Court denied defendant's request to be absent from his own sentencing hearing in a capital murder case because, inter alia, in the same memorandum in which defendant sought to waive his presence, he also asked the court to impose less than the maximum sentence provided by law; the Commonwealth would be offering victim impact testimony at sentencing, and the presence of defendant was statutorily required as the victim, upon a motion of the attorney for the Commonwealth, was permitted to testify in the presence of the accused regarding the impact of the offense upon the victim; and allocution was a fundamental right, and a denial of defendant's right to allocution constituted error and undermined a sentence. Commonwealth v. Rams, 96 Va. Cir. 215, 2017 Va. Cir. LEXIS 121 (Prince William County July 31, 2017).

Article 4. Trial by Jury.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 18 Juries and Jurors. § 18.01 Trial by Jury. Friend. Virginia Forms (Matthew Bender). No. 9-2216. Motion to Sever Defendants; No. 9-2222. Motion for Individual Voir Dire of Prospective Jurors and for a Jury Questionnaire.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 267; 5B M.J. Criminal Procedure, §§ 23, 26, 43, 48; 11B M.J. Jury, §§ 3, 14, 20, 21, 47, 54, 55; 13B M.J. New Trials, § 11.

§ 19.2-260. Provisions of Title 8.01 apply except as provided in this article.

Except as otherwise provided in this article, trial by jury in criminal cases shall be regulated as provided for in Chapter 11 (§ 8.01-336 et seq.) of Title 8.01.

(1975, c. 495; 1977, c. 624.)

CASE NOTES

Prejudice not shown by mere fact that defendant was black and victim and jurors were white. - The allegation that defendant's sentence of death was racially motivated because he was black but the victim and all the jurors were white was insufficient to establish systematic exclusion of blacks from membership on juries, where he did not challenge the racial composition of the jury at trial, and nothing in the record suggests that his sentence resulted from racial prejudice. Watkins v. Commonwealth, 229 Va. 469 , 331 S.E.2d 422 (1985), cert. denied, 475 U.S. 1099, 106 S. Ct. 1503, 89 L. Ed. 2d 903 (1986).

Denial of motion to withdraw waiver of jury trial was improper. - Denial of defendant's motion to withdraw his waiver of his right to a jury trial was improper because the record failed to show that the motion was made solely for the purpose of delay or whether defendant's request for a jury trial could have been accommodated at the time it was made. The record also failed to disclose the number of witnesses that would have been inconvenienced by the continuance, or the difficulty that rescheduling the trial would present to those witnesses. Cokes v. Commonwealth, 280 Va. 92 , 694 S.E.2d 582, 2010 Va. LEXIS 60 (2010).

Voir dire permitted regarding gangs. - Defendant's convictions for second-degree murder, use of a firearm during the commission of a felony, and possession of a firearm by a convicted felon were proper because at least some of defendant's proffered gang evidence was erroneously excluded and that evidence was to be admissible on retrial. The evidence of the victim's friend and the victim's gang membership was going to be squarely before the jury and on remand, defendant was entitled to voir dire the venire panel regarding that issue. Cousins v. Commonwealth, 56 Va. App. 257, 693 S.E.2d 283, 2010 Va. App. LEXIS 214 (2010).

Applied in Brown v. Commonwealth, 29 Va. App. 199, 510 S.E.2d 751 (1999).

§ 19.2-261. Charging grand jury in presence of person selected as juror.

The court shall not charge the grand jury in the presence of any person selected as a juror to try any person indicted by the said grand jury. A violation of this provision shall constitute reversible error in any criminal case tried by a jury composed of one or more such veniremen.

(Code 1950, § 8-208.20; 1973, c. 439; 1975, c. 495.)

§ 19.2-262. Waiver of jury trial; numbers of jurors in criminal cases; how jurors selected from panel.

  1. In any criminal case in which trial by jury is dispensed with as provided by law, the whole matter of law and fact shall be heard and judgment given by the court. In appeals from juvenile and domestic relations district courts, the infant, through his guardian ad litem or counsel, may waive a jury.
  2. Twelve persons from a panel of not less than 20 shall constitute a jury in a felony case. Seven persons from a panel of not less than 13 shall constitute a jury in a misdemeanor case.
  3. The parties or their counsel, beginning with the attorney for the Commonwealth, shall alternately strike off one name from the panel until the number remaining shall be reduced to the number required for a jury.
  4. In any case in which persons indicted for felony are tried jointly, if counsel or the accused are unable to agree on the full number to be stricken, or, if for any other reason counsel or the accused fail or refuse to strike off the full number of jurors allowed such party, the clerk shall place in a box ballots bearing the names of the jurors whose names have not been stricken and shall cause to be drawn from the box such number of ballots as may be necessary to complete the number of strikes allowed the party or parties failing or refusing to strike. Thereafter, if the opposing side is entitled to further strikes, they shall be made in the usual manner.

    (Code 1950, § 8-208.21; 1973, c. 439; 1974, c. 611; 1975, cc. 495, 578; 1979, c. 230; 1997, cc. 516, 518; 2005, c. 356.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2005 amendments. - The 2005 amendment by c. 356, in subsection B, substituted "not less than 20" for "twenty" in the first sentence and "not less than 13" for "thirteen" in the last sentence.

Law review. - For article, "Trial by Jury and Speedy Justice," see 28 Wash. & Lee L. Rev. 309 (1971). For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973). For survey of Virginia criminal procedure for the year 1977-1978, see 64 Va. L. Rev. 1419 (1978).

CASE NOTES

Waiver not ground for seating partial panel. - Under appropriate circumstances, a waiver of peremptory strikes by one or both parties is helpful and useful to the alleviation of an overcrowded docket. However, where a defendant has alerted the court to the existence of a potential problem and elects to stand on the statutory mandate of a panel of 20 jurors, he is entitled to a full panel of impartial jurors and may not be required to accept a lesser number simply because the Commonwealth agrees to waive one or more of its peremptory strikes. Fuller v. Commonwealth, 14 Va. App. 277, 416 S.E.2d 44 (1992).

Defendant may not be forced to use peremptory strikes to exclude certain veniremen. - It is prejudicial error for the trial court to force a defendant to use the peremptory strikes afforded him by this section to exclude a venireman who is not free from exception. Breeden v. Commonwealth, 217 Va. 297 , 227 S.E.2d 734 (1976).

Refusal to remove partial juror not harmless error even if peremptory strike used. - A trial court's refusal to remove a juror who is not impartial does not constitute harmless error even if counsel uses a peremptory strike to exclude the juror. David v. Commonwealth, 26 Va. App. 77, 493 S.E.2d 379 (1997).

Effect of leading questions. - Answers to leading questions by the trial court or the attorney for the Commonwealth do not per se remove the taint resulting from expressed impression of guilt or bias. Proof that a prospective juror is impartial and fair should come from the juror and not be based on his or her mere assent to persuasive suggestions. Williams v. Commonwealth, 14 Va. App. 208, 415 S.E.2d 856 (1992).

Sufficient race-neutral explanation found. - Commonwealth's concerns with jurors who were not paying attention, one of whom was seen smiling at appellant, provided sufficient race-neutral explanations for the use of two of its peremptory strikes. Allred v. Commonwealth, No. 0223-94-2 (Ct. of Appeals March 14, 1995).

Peremptory strikes in capital murder trial. - There is no basis in Virginia law for additional peremptory strikes in a capital murder trial. Buchanan v. Commonwealth, 238 Va. 389 , 384 S.E.2d 757 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

Because peremptory challenges are a creature of statute and are not required by the Constitution, it is for the state to determine the number of peremptory challenges allowed; a defendant is only denied a "right" to peremptory challenges in a state capital proceeding when he does not receive that which state law provides. Goins v. Angelone, 52 F. Supp. 2d 638 (E.D. Va. 1999), appeal dismissed, 226 F.3d 312 (4th Cir. 2000).

Peremptory strikes may not be combined by co-defendants. - Defendant argued that he and the codefendant were each entitled to exercise four peremptory strikes pursuant to this section. However, the codefendants together were statutorily assured no more than four peremptory strikes. Because the trial court permitted a total of six peremptory challenges, there was no error. Banks v. Commonwealth, No. 2990-95-3 (Ct. of Appeals Feb. 4, 1997).

Number of peremptory strikes in case of joinder. - Defendants jointly tried are together entitled only to the four peremptory challenges provided by this section. Allowing each defendant three challenges, rather than four as requested, was within the discretion of the trial court. Adkins v. Commonwealth, 24 Va. App. 159, 480 S.E.2d 777 (1997).

Failure to select jury free from prejudice. - Where jurors in question were closely associated with either the accused or the victim and their respective families and the information to which they were exposed and/or conclusions they had formed, coupled with their associations, raised reasonable doubt that they could stand indifferent in the cause, the trial court failed in its duty to procure a jury free from prejudice when it declined to select other jurors. Williams v. Commonwealth, 14 Va. App. 208, 415 S.E.2d 856 (1992).

Refusal to strike for cause held proper. - Trial court's decision to deny defendant's motion to strike a prospective juror for cause was not manifestly erroneous and would not be reversed, as the trial court reasonably concluded that the prospective juror's apparent equivocation over whether she could be impartial was due to her nervousness about reaching a decision and wondering later whether it was the correct decision rather than any problem with being impartial. Weeks v. Commonwealth, No. 1939-02-3, 2003 Va. App. LEXIS 364 (Ct. of Appeals June 24, 2003).

Trial court did not abuse its discretion in not striking three jurors for cause because the court properly concluded that the jurors were fair and impartial and would be able to render a verdict based solely on the law and the evidence, as none of the jurors indicated they would convict simply because defendant drank alcohol. All of the jurors simply stated that one should not drink and drive, but indicated that they would follow the instructions given by the court. Simmons v. Commonwealth, 63 Va. App. 69, 754 S.E.2d 545, 2014 Va. App. LEXIS 52 (2014).

The trial court erred in refusing to strike potential juror for cause, where although she stated that she would attempt not to base her judgment on information she had gained through the news media, she could not assure the court that she would render her verdict based solely on the evidence adduced at trial. Her answers raised a reasonable doubt as to her qualification to serve as a juror, a doubt that should have been resolved by granting defendant's motion to strike her for cause. DeHart v. Commonwealth, 19 Va. App. 139, 449 S.E.2d 59 (1994).

Restoration of juror removed for cause was reversible error. - A trial court's restoration to a jury panel of a venire member previously removed for cause, in order to have a full 20-member panel, was prejudicial, reversible error notwithstanding the fact that the Commonwealth had agreed to use its first peremptory strike to remove that member. Winston v. Commonwealth, 32 Va. App. 864, 531 S.E.2d 59, 2000 Va. App. LEXIS 529 (2000).

Decision of court to use procedure in subsection (4) (now subsection D) not reversible error. - Where Commonwealth refused to exercise right to strike three of four prospective jurors, decision of trial court to use procedure specified in subsection (4) (now subsection D) of this section was not reversible error. Reid v. Commonwealth, No. 0894-94-1 (Ct. of Appeals Oct. 10, 1995).

Too few jurors; mistrial mandatory. - Despite the accused's willingness to proceed with a jury of less than 12 members following the illness of a juror, where the Commonwealth insisted upon its co-equal right to a jury of 12 members, the trial court properly declared that a mistrial was mandatory; and a second trial for the same offenses did not violate double jeopardy principles. King v. Commonwealth, 40 Va. App. 364, 579 S.E.2d 634, 2003 Va. App. LEXIS 255 (2003).

Section not violated. - The trial court did not violate defendant's rights to strike a member of the jury pool chosen to sit on the jury, as provided by § 19.2-262 , after another chosen juror was excused, as: (1) defendant was not forced to choose between two jurors that he had previously struck; (2) his prejudice argument based on his belief that the previous jury was a better jury for him than the jury that heard the case lacked merit; and (3) both sides knew which jurors the opposing party had struck the first time, and this foresight did not prejudice either party, as the reasons for those strikes were not disclosed by either party and none of the jurors knew who originally struck the excused juror. Moreover, the trial court was not faced with replacing a juror after the jury had been sworn, as provided by § 8.01-361 , nor was the trial court faced with seating additional, alternate jurors, as provided by § 8.01-360 . Waddler v. Commonwealth, 50 Va. App. 113, 646 S.E.2d 896, 2007 Va. App. LEXIS 248 (2007).

Argument not preserved. - Defendant's objection to seating a juror and the argument related thereto took place at sidebar and no transcript of the sidebar discussion was made part of the record. Therefore, defendant's argument was only preserved to the extent that the trial court later recited defendant's reasons for the motion to strike the juror on the record. Smith v. Commonwealth, No. 1235-12-3, 2013 Va. App. LEXIS 278 (Ct. of Appeals Oct. 8, 2013).

Applied in Strickler v. Commonwealth, 241 Va. 482 , 404 S.E.2d 227 (1991); Atkins v. Commonwealth, 257 Va. 160 , 510 S.E.2d 445 (1999).

§ 19.2-262.01. Voir dire examination of persons called as jurors.

In any criminal case, the court and counsel for either party shall have the right to examine under oath any person who is called as a juror therein and shall have the right to ask such person or juror directly any relevant question to ascertain whether the juror can sit impartially in either the guilt or sentencing phase of the case. Such questions may include whether the person or juror is related to either party, has any interest in the cause, has expressed or formed any opinion, or is sensible of any bias or prejudice therein. The court and counsel for either party may inform any such person or juror as to the potential range of punishment to ascertain if the person or juror can sit impartially in the sentencing phase of the case. The party objecting to any juror may introduce competent evidence in support of the objection, and if it appears to the court that the juror does not stand indifferent in the cause, another shall be drawn or called and placed in his stead for the trial of that case.

A juror, knowing anything relative to the fact in issue, shall disclose the same in open court.

(2020, cc. 157, 588.)

§ 19.2-262.1. Joinder of defendants.

On motion of the Commonwealth, for good cause shown, the court shall order persons charged with participating in contemporaneous and related acts or occurrences or in a series of acts or occurrences constituting an offense or offenses, to be tried jointly unless such joint trial would constitute prejudice to a defendant. If the court finds that a joint trial would constitute prejudice to a defendant, the court shall order severance as to that defendant or provide such other relief justice requires.

(1993, cc. 462, 489; 1997, c. 518.)

Law review. - For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

CASE NOTES

Discretion of trial court limited. - This section limits the discretion of the trial court as to joinder of defendants and requires a court to provide separate trials for individual defendants unless good cause exists for joinder and no prejudice would result from a joint trial; in determining whether a joint trial would prejudice a defendant, the court should require the party moving for severance to establish that actual prejudice would result from a joint trial. Goodson v. Commonwealth, 22 Va. App. 61, 467 S.E.2d 848 (1996).

Balancing tests. - In determining the propriety of ordering a joint trial of multiple defendants, the degree of prejudice may be balanced against the effectiveness of using other measures to cure any such risk, such as limiting instructions. Barnes v. Commonwealth, 22 Va. App. 406, 470 S.E.2d 579 (Va. App. 1996).

Actual prejudice must be demonstrated. - On appeal, a defendant must demonstrate that actual prejudice would result from a joint trial, and actual prejudice results only when there is a serious risk that a joint trial would compromise a specific trial right of the defendant or prevent the jury from making a reliable judgment about guilt or innocence. Strope v. Commonwealth, No. 1549-98-4, 2000 Va. App. LEXIS 310 (Ct. of Appeals Apr. 18, 2000).

Antagonistic defenses insufficient. - Actual prejudice does not exist merely because codefendants may have positions that are hostile to one another. Strope v. Commonwealth, No. 1549-98-4, 2000 Va. App. LEXIS 310 (Ct. of Appeals Apr. 18, 2000).

Good cause. - The need for numerous witnesses who would otherwise have had to appear at two separate trials constituted good cause for the joinder of the defendants' trials. Dearing v. Commonwealth, 259 Va. 117 , 524 S.E.2d 121 (2000).

Prejudice does not exist merely because a co-defendant has a better chance of acquittal if tried separately. Barnes v. Commonwealth, 22 Va. App. 406, 470 S.E.2d 579 (Va. App. 1996).

Defendant was not prejudiced by a joint trial because he could not have compelled his codefendant to testify even if they had been tried separately. Dearing v. Commonwealth, 259 Va. 117 , 524 S.E.2d 121 (2000).

Failure to show prejudice. - Despite the varying degrees of culpability that the defendant claimed, the defendant failed to show that the defendant suffered actual prejudice during the course of the trial as the record failed to show that the defendant's trial rights were affected or that the jury process was compromised. Accordingly, the trial court did not err by denying the defendant's motion to sever the trial. Turner v. Commonwealth, No. 1641-01-3, 2002 Va. App. LEXIS 707 (Ct. of Appeals Nov. 26, 2002).

Because defendant could point to no trial right that was compromised or any basis for concluding that the jury was prevented from making a reliable judgment about defendant's guilt or innocence, the trial court did not abuse its discretion by refusing defendant's request for a separate trial under § 19.2-262.1 and Va. Sup. Ct. R. 3A:10(a). Allen v. Commonwealth, 58 Va. App. 618, 712 S.E.2d 748, 2011 Va. App. LEXIS 258 (2011).

Right to confront witnesses was not violated by joint trial. - Where defendant in a joint criminal trial left the courtroom when a codefendant testified, and declined an offer to cross-examine the codefendant, defendant did not show actual prejudice from the joint trial, and was not deprived of any trial right, as defendant chose not to exercise his right to cross-examine, in favor of a different strategy. Duenas v. Commonwealth, No. 1429-01-3, 2002 Va. App. LEXIS 582 (Ct. of Appeals Oct. 1, 2002).

A defendant has no right to exclude relevant and competent evidence, etc. such as the testimony of a former co-defendant. Barnes v. Commonwealth, 22 Va. App. 406, 470 S.E.2d 579 (Va. App. 1996).

Defendant's motion to sever his trial from co-defendant's was properly denied as defendant's alibi defense made codefendant's location at the time and date of the home invasion relevant and admissible because, on the night of the home invasion, defendant explained that he and codefendant were together at a house party when they were shot; codefendant's cell phone records, the projectiles recovered from his gunshot wounds, and the blood evidence in the recovered car tended to prove that codefendant was at the victims' home and to disprove that he was at the party; and codefendant's location would have been relevant even in a separate trial as defendant tied his location on the evening of the offenses to codefendant. Chantz v. Commonwealth, No. 0113-16-3, 2017 Va. App. LEXIS 44 (Ct. of Appeals Feb. 21, 2017).

Prejudice from admission of evidence. - Prejudice may result when evidence inadmissible against a defendant, if tried alone, is admitted against a codefendant in a joint trial. Strope v. Commonwealth, No. 1549-98-4, 2000 Va. App. LEXIS 310 (Ct. of Appeals Apr. 18, 2000).

Failure to show prejudice. - Defendant complained of prejudice in joinder with codefendant which would allow evidence admissible against codefendant but inadmissible against him, but failed to point out any trial right, as opposed to trial tactics, which was compromised or any basis for concluding that the jury was prejudiced by the joinder. Adkins v. Commonwealth, 24 Va. App. 159, 480 S.E.2d 777 (1997).

There was nothing in the record that suggested that joinder prejudiced defendant's defense by rendering him unable to call his codefendant as a witness. Even had the two men been tried separately, the codefendant, if called to testify, could have asserted his Fifth Amendment right against self-incrimination. Dickerson v. Commonwealth, 29 Va. App. 252, 511 S.E.2d 434 (1999).

Court did not err ordering defendant to be tried jointly with his codefendant where good cause for joinder was shown based on the number of witnesses, and defendant did not suffer prejudice from being unable to call his codefendant as a witness; even if the trial court granted the codefendant immunity, however, it could not compel him to testify if he decided to assert his Fifth Amendment privilege. Byrd v. Commonwealth, No. 2550-02-1, 2003 Va. App. LEXIS 708 (Ct. of Appeals Dec. 30, 2003).

Applied in Davis v. Commonwealth, 36 Va. App. 291, 549 S.E.2d 631, 2001 Va. App. LEXIS 445 (2001).

CIRCUIT COURT OPINIONS

Antagonistic defenses insufficient. - Defendants' criminal cases, arising from an incident where they allegedly used violence to commit a robbery, were subject to joinder under § 19.2-262.1 because the Commonwealth showed good cause on the basis of judicial economy and defendants would not be prejudiced merely because they intended to implicate each other. Commonwealth v. Moeller, 72 Va. Cir. 402, 2007 Va. Cir. LEXIS 20 (Fairfax County 2007).

Failure to show prejudice. - Joinder of three defendants' trials on home invasion charges was proper under § 19.2-262.1 and Va. Sup. Ct. R. 3A:10 because all defendants were charged with the same offenses, which allegedly arose out of the same events. Moreover, the joinder of defendants' trials would promote efficiency and judicial economy, and defendants' argument that they would be prejudiced because they would be unable to compel each other to testify under U.S. Const., Amend. V, was without merit. Commonwealth v. Rice, 81 Va. Cir. 215, 2010 Va. Cir. LEXIS 301 (Hanover County Sept. 23, 2010).

§ 19.2-263.

Repealed by Acts 1993, cc. 462 and 489.

Cross references. - As to present provisions relating to severance of a joint trial, see § 19.2-262.1 .

§ 19.2-263.1. Contact between judge and juror prohibited.

No judge shall communicate in any way with a juror in a criminal proceeding concerning the juror's conduct or any aspect of the case during the course of the trial outside the presence of the parties or their counsel.

(1985, c. 176.)

Law review. - For 1985 survey of Virginia criminal procedure, see 19 U. Rich. L. Rev. 697 (1985).

CASE NOTES

Communication with jury. - Defendant's contention that the trial court erred in entering the jury room to answer a written question the jury posed about sentencing was waived and would not be considered the "ends-of-justice" exception to the requirement that objections to be reviewed on appeal had to be raised at trial; defendant and defense counsel's silence when the trial court asked whether the response should be phrased in open court with the jury or whether the trial court could step into the jury room and respond meant defendant on appeal was trying to take advantage of an error for which he was responsible since his failure to object at trial and his subsequent objection on appeal was inviting error and then trying to benefit from it, which the appellate court would not allow. Pope v. Commonwealth,, 2006 Va. App. LEXIS 500 (Nov. 7, 2006).

Defendant one's challenge to the court's act of entertaining and answering the jury's questions when neither he nor his counsel were present could be considered on appeal under the contemporaneous objection exception as he did not contest the content of the court's answers to the jury's questions; defendant one and his counsel did not have the opportunity to be present and challenge the court's decision to address questions from the jury in their absence. Maxwell v. Commonwealth, 287 Va. 258 , 754 S.E.2d 516, 2014 Va. LEXIS 31 (2014).

§ 19.2-263.2. Jury instructions.

A proposed jury instruction submitted by a party, which constitutes an accurate statement of the law applicable to the case, shall not be withheld from the jury solely for its nonconformance with model jury instructions.

(1992, c. 522.)

Editor's note. - Acts 1992, c. 522, which enacted this section, in cl. 2 provides that the provisions of the 1992 act are declaratory of existing law.

Law review. - For a case note, "The Extension of the Bruton Rule at the Expense of Judicial Efficiency in Gray v. Maryland," see 33 U. Rich. L. Rev. 227 (1999).

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

CASE NOTES

Trial court's issued instructions were not basis for reversal. - Because defendant's unwillingness to submit to a breath test without access to counsel amounted to an unreasonable refusal under subsection A of § 18.2-268.3 , the trial court properly instructed the jury on said issue. Thus, defendant's conviction of unreasonably refusing to submit to a breath test, after having been convicted of two predicate offenses within ten years, in violation of § 18.2-268.3 , was upheld on appeal. Brothers v. Commonwealth, 50 Va. App. 468, 650 S.E.2d 874, 2007 Va. App. LEXIS 370 (2007).

Instruction was not improper for not being a model jury instruction because, statutorily, this was not a ground for withholding a jury instruction that accurately stated the law. Howsare v. Commonwealth, 293 Va. 439 , 799 S.E.2d 512 (2017), corrected, 294 Va. 195 , 804 S.E.2d 647 (2017).

No abuse of discretion. - Trial court did not abuse its discretion by granting the geriatric parole instruction because geriatric release was a possibility based on defendant's age and sentence; and the amended jury instruction was properly denied as defendant's proposed instruction was not an accurate statement of the law. Bustos v. Commonwealth, No. 1880-18-4, 2019 Va. App. LEXIS 307 (Dec. 27, 2019).

Refusal of instruction held error. - Trial court's refusal of a proffered instruction on the sole ground that it was not the model instruction was reversible error, as it violated the statutory dictate of this section, and because, had the trial court given defendant's proffered instruction, the jury would have been clearly informed that a manslaughter conviction was legally insufficient to sustain the charge of use of a firearm during the commission of a murder. Gaines v. Commonwealth, 38 Va. App. 326, 563 S.E.2d 410, 2002 Va. App. LEXIS 304 (2002), aff'd, 39 Va. App. 562, 574 S.E.2d 775 (2003).

Refusal of instruction held proper. - Defendant's proffered instruction was properly refused, as such was likely to be obvious to any rational juror applying his or her common sense, and was covered by other, more general jury instructions, which allowed defense counsel to argue these principles forcefully to the jury in closing argument. Hales v. Commonwealth, No. 2989-03-2, 2005 Va. App. LEXIS 109 (Ct. of Appeals Mar. 22, 2005).

§ 19.2-263.3. Juror information confidential.

  1. The court may, upon motion of either party or its own motion, and for good cause shown, issue an order regulating the disclosure of the name and home address of a juror who has been impaneled in a criminal trial to any person, other than to counsel for either party or a pro se defendant. For the purposes of this subsection, good cause shown includes, but is not limited to, a determination by the court that there is a likelihood of bribery, tampering, or physical injury to or harassment of a juror if his personal information is disclosed. An order regulating the disclosure of information may be modified, and the names and home addresses of the jurors in a criminal case may be disseminated to a person having a legitimate interest or need for the information, with restrictions upon its use and further dissemination as may be deemed appropriate by the court.
  2. Additional personal information of a juror who has been impaneled in a criminal case shall be released only to the counsel for the defendant, a pro se defendant, and the attorney for the Commonwealth. The court may, upon motion of either party or its own motion, and for good cause shown, issue an order authorizing the disclosure of any additional personal information of a juror to any other person. Such order may be modified and may place restrictions on the use and further dissemination of such disclosed information.
  3. In addition to the provisions of this section, the Supreme Court shall prescribe and publish rules that provide for the protection of the name, home address, and additional personal information of a juror in a criminal trial.
  4. For purposes of this section, "additional personal information" means any information other than name and home address collected by the court, clerk, or jury commissioner at any time about a person who is selected to sit on a criminal jury and includes, but is not limited to, a juror's age, occupation, business address, telephone numbers, email addresses, and any other identifying information that would assist another in locating or contacting the juror.

    (2008, c. 538; 2017, c. 753.)

The 2017 amendments. - The 2017 amendment by c. 753 rewrote the section.

§ 19.2-264. When jury need not be kept together in felony case; sufficient compliance with requirement that jury be kept together.

In any case of a felony the jury shall not be kept together unless the court otherwise directs. Whenever a jury is required to be kept together, it shall be deemed sufficient compliance although the court for good cause permits one or more of such jurors to be separated from the others; provided all such jurors, whether separated or not, be kept in charge of officers provided therefor.

(Code 1950, §§ 8-208.31, 8-208.32; 1973, c. 439; 1975, c. 495.)

Research References. - Virginia Forms (Matthew Bender). No. 9-1603. Motion for Bill of Particulars in Capital Cases.

CASE NOTES

Whether to allow jury to separate is matter within trial judge's discretion. McFalls v. Peyton, 270 F. Supp. 577 (W.D. Va. 1967), aff'd, 401 F.2d 890 (4th Cir. 1968), cert. denied, 394 U.S. 951, 89 S. Ct. 1292, 22 L. Ed. 2d 486 (1969).

As to the exercise of the judge's discretion as to whether the jury should separate, it is to be remembered that the statutes or decisions of many states expressly allow the separation of the jury even in capital cases. Other states have provided the contrary. The practice has varied, with perhaps a slight present tendency in the more conservative direction. If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day. Rich v. United States, 330 F. Supp. 949 (E.D. Va. 1967), appeal dismissed, 447 F.2d 990 (4th Cir. 1968), cert. denied, 394 U.S. 993, 89 S. Ct. 1473, 22 L. Ed. 2d 769, reh'g denied, 395 U.S. 931, 89 S. Ct. 1777, 23 L. Ed. 2d 252 (1969).

Exercise of trial judge's discretion in absence of accused. - While it is true that whether to allow the jury to separate is a matter within the trial judge's discretion, it is not to be presumed that the discretion is to be exercised in a vacuum; in other words, in the absence of the accused in contravention of § 19.2-259 . Near v. Cunningham, 313 F.2d 929 (4th Cir. 1963), commented on in 21 Wash. & Lee L. Rev. 346 (1964).

Abuse of discretion. - In capital cases, where objection is interposed to the jury being permitted to separate after deliberations have been commenced, this may be an abuse of discretion, especially where no admonitions were given or where the inconvenience to the jurors is likely to touch upon their ability to give proper consideration to the case when they resume their deliberations. Rich v. United States, 330 F. Supp. 949 (E.D. Va. 1967), appeal dismissed, 447 F.2d 990 (4th Cir. 1968), cert. denied, 394 U.S. 993, 89 S. Ct. 1473, 22 L. Ed. 2d 769, reh'g denied, 395 U.S. 931, 89 S. Ct. 1777, 23 L. Ed. 2d 252 (1969).

Separation with consent of accused and Commonwealth. - Where the jury has been permitted to separate by the court upon the consent of the accused and the Commonwealth, prejudice will not be presumed in favor of the accused, and the burden will be upon him to show that the jury, during such separation, were guilty of misconduct to his prejudice. Powell v. Commonwealth, 182 Va. 327 , 28 S.E.2d 687 (1944); Near v. Commonwealth, 202 Va. 20 , 116 S.E.2d 85 (1960), cert. denied, 365 U.S. 873, 81 S. Ct. 907, 5 L. Ed. 2d 862 (1961), 369 U.S. 862, 82 S. Ct. 951, 8 L. Ed. 2d 19 (1962).

Refusal to sequester not error where jurors warned and questioned. - There was no error in denial of defendant's motion to sequester the jury during the three-day trial, where the trial judge, when he dismissed the jurors for the day, warned them to avoid news accounts of the trial and to refrain from discussing the case among themselves or with others, and when they reassembled, he questioned them on the subject and all replied that they had complied with his instructions. Boggs v. Commonwealth, 229 Va. 501 , 331 S.E.2d 407 (1985), cert. denied, 475 U.S. 1031, 106 S. Ct. 1240, 89 L. Ed. 2d 347 (1986), 495 U.S. 940, 110 S. Ct. 2193, 109 L. Ed. 2d 521 (1990).

Media coverage does not mandate sequestration. - Sequestration is not mandated by the mere fact that the offense has received coverage in the news media. Pope v. Commonwealth, 234 Va. 114 , 360 S.E.2d 352 (1987), cert. denied, 485 U.S. 1015, 108 S. Ct. 1489, 99 L. Ed. 2d 716 (1988).

If prejudice is shown, it is grounds for a new trial in any case where the jury is permitted to separate and the jurors have been subjected to outside influence. This is equally true both for a criminal case and with respect to a civil case involving a de minimis amount. Rich v. United States, 330 F. Supp. 949 (E.D. Va. 1967), appeal dismissed, 447 F.2d 990 (4th Cir. 1968), cert. denied, 394 U.S. 993, 89 S. Ct. 1473, 22 L. Ed. 2d 769, reh'g denied, 395 U.S. 931, 89 S. Ct. 1777, 23 L. Ed. 2d 2521 (1969).

Separation of jury as grounds for habeas corpus. - In a petition for habeas corpus, accused was entitled to a hearing where it was alleged that, in the absence of the accused, the trial judge had exercised his discretion to allow the jury to separate during the trial and that thereafter the jurors mingled with the spectators and heard prejudicial remarks. Near v. Cunningham, 313 F.2d 929 (4th Cir. 1963)commented on in 21 Wash. & Lee L Rev. 346 (1964).

Applied in George v. Angelone, 901 F. Supp. 1070 (E.D. Va. 1995).

§ 19.2-264.1. Views by juries.

The jury in any criminal case may, at the request of either the attorney for the Commonwealth or any defendant, be taken to view the premises or place in question, or any property, matter or thing relating to the case, when it shall appear to the court that such view is necessary to a just decision.

(Code 1950, § 8-216; 1977, c. 624.)

Research References. - Virginia Forms (Matthew Bender). No. 9-2223. Motion for Jury View.

CASE NOTES

Jury view of scene not abuse of discretion. - Trial court's decision to allow the jury to view the crime scene was not an abuse of discretion because it helped the jury understand the layout of the apartment complex, the location of the window and the parking lot, and how these factors related to the crimes. Smith v. Commonwealth, 48 Va. App. 521, 633 S.E.2d 188, 2006 Va. App. LEXIS 366 (2006).

View of prison facility. - With regard to defendant's convictions on two capital murder counts and the imposition of two death sentences against him, the trial court did not abuse its discretion in denying defendant's motion for a view of the prison facility since evidence on the general nature of prison life in a maximum-security facility was not even relevant to the determination of his future dangerousness. Prieto v. Commonwealth, 283 Va. 149 , 721 S.E.2d 484, 2012 Va. LEXIS 20 (2012), cert. denied, 133 S. Ct. 244, 2012 U.S. LEXIS 6641, 184 L. Ed. 2d 129 (U.S. 2012).

Applied in Tross v. Commonwealth, 21 Va. App. 362, 464 S.E.2d 523 (1995).

CIRCUIT COURT OPINIONS

View of intersection. - While a jury view of the intersection where a collision occurred might have been helpful to some degree to the jury in visualizing the intersection, it did not appear, based on the evidence before the court, that a view of the intersection was necessary to a just decision. A view of the intersection appeared to be of little probative value. Commonwealth v. Miller, 96 Va. Cir. 130, 2017 Va. Cir. LEXIS 116 (Loudoun County July 19, 2017).

Article 4.1. Trial of Capital Cases.

§§ 19.2-264.2 through 19.2-264.5.

Repealed by Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 2, effective July 1, 2021.

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Former § 19.2-264.2 , pertaining to the conditions to be found for imposition of death sentence, derived from 1977, c. 492, 19.2-264.1 .

Former § 19.2-264.3, pertaining to procedure for trial by jury, derived from 1977, c. 492; 1983, c. 519; 1994, cc. 828, 860, 862, 881; 2020, Sp. Sess. I, c. 43.

Former § 19.2-264.3:1, pertaining to expert assistance when defendant's mental condition relevant to capital sentencing, derived from 1986, c. 535; 1987, c. 439; 1996, cc. 937, 980; 2003, cc. 1031, 1040; 2009, cc. 813, 840; 2010, c. 559.

Former § 19.2-264.3:1.1, pertaining to capital cases; determination of intellectual disability, derived from 2003, cc. 1031, 1040; 2009, cc. 813, 840; 2015, c. 360; 2017, cc. 86, 212.

Former § 19.2-264.3:1.2, pertaining to expert assistance when issue of defendant's intellectual disability relevant to capital sentencing, derived from 2003, cc. 1031, 1040; 2009, cc. 813, 840; 2017, cc. 86, 212.

Former § 19.2-264.3:1.3, pertaining to expert assistance for indigent defendants in capital cases, derived from Acts 2010, c. 789 and previously repealed by Acts 2020, c. 1124, cl. 2.

Former § 19.2-264.3:2, pertaining to notice to the defendant of intention to present evidence of unadjudicated criminal conduct, derived from 1993, c. 377.

Former § 19.2-264.3:3, pertaining to limitations on use of statements or disclosure by defendant during evaluations, derived from 2003, cc. 1031, 1040; 2017, cc. 86, 212.

Former § 19.2-264.4, pertaining to sentence proceeding, derived from 1977, c. 492; 1980, c. 160; 1990, cc. 316, 754; 1998, c. 485; 2000, c. 838; 2003, cc. 1031, 1040; 2010, c. 658.

Former § 19.2-264.5, pertaining topost-sentence reports, derived from 1977, c. 492; 1993, c. 978; 2004, c. 298.

Article 4.2. Discovery.

§§ 19.2-264.6 through 19.2-264.14.

Not effective pursuant to Acts 2020, c. 1167, cl. 3.

Editor's note. - The enactment of these sections by Acts 2020, c. 1167, cl. 2, never took effect pursuant to Acts 2020, c. 1167, c. 3, which provided that: "That the provisions of this act shall become effective in due course, unless the amendments to Rule 3A:11 and 3A:12 of the Rules of Virginia Supreme Court adopted on September 5, 2018, become effective on July 1, 2020." The amendments to Rules 3A:11 and 3A:12 of the Supreme Court of Virginia took effect July 1, 2020, preventing this act from taking effect.

Article 5. Miscellaneous Provisions.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 19 Trial Procedure. § 19.02 Order of Procedure at Trial. Friend.

§ 19.2-265. Opening statement of counsel.

On the trial of any case of felony or misdemeanor and before any evidence is submitted on either side, the attorney for the Commonwealth and counsel for the accused, respectively, shall have the right to make an opening statement of their case.

(Code 1950, § 19.1-245; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 65; 19 M.J. Trial, § 11.

CASE NOTES

This section confers the right to make an opening statement, but does not make it obligatory on either party. Johnson v. Commonwealth, 111 Va. 877 , 69 S.E. 1104 (1911).

Counsel cannot put his client's character into evidence through his opening statement, particularly when the jury has already been instructed that counsels' statements are not to be viewed as evidence. Fields v. Commonwealth, 2 Va. App. 300, 343 S.E.2d 379 (1986).

Counsel cannot argue during opening statement. - The trial court did not abuse its discretion in ruling that defendant's counsel could not use the opening statement for argument. Spencer v. Commonwealth, 238 Va. 295 , 384 S.E.2d 785 (1989), cert. denied, 493 U.S. 1093, 110 S. Ct. 1171, 107 L. Ed. 2d 1073 (1990).

§ 19.2-265.01. Victims, certain members of the family and support persons not to be excluded.

During the trial of every criminal case and in all court proceedings attendant to trial, whether before, during or after trial, including any proceedings occurring after an appeal by the defendant or the Commonwealth, at which attendance by the defendant is permitted, whether in a circuit or district court, any victim as defined in § 19.2-11.01 may remain in the courtroom and shall not be excluded unless the court determines, in its discretion, the presence of the victim would impair the conduct of a fair trial. In any case involving a minor victim, the court may permit an adult chosen by the minor to be present in the courtroom during any proceedings in addition to or in lieu of the minor's parent or guardian.

The attorney for the Commonwealth shall give prior notice when practicable of such trial and attendant proceedings and changes in the scheduling thereof to any known victim and to any known adult chosen in accordance with this section by a minor victim, at the address or telephone number, or both, provided in writing by such person.

(1993, cc. 447, 452; 1994, cc. 361, 598; 1995, c. 687; 1996, c. 546; 1999, c. 844; 2000, c. 339.)

Editor's note. - At the direction of the Code Commission, Acts 1994, c. 361, which amended this section, was not given effect due to a conflict. The amendment would have added the second sentence dealing with the same subject matter but using different language.

The 1999 amendment inserted "and shall not be excluded unless the court determines, in its discretion, the presence of the victim would substantially impair the conduct of a fair trial" in the first paragraph, and deleted the former second paragraph which read: "However, if either the attorney for the Commonwealth or any defendant represents to the court that he intends to call as a material witness any victim as defined in § 19.2-11.01 , the court shall exclude that person from the trial or proceedings."

The 2000 amendments. - The 2000 amendment by c. 339 deleted "substantially" preceding "impair" near the end of the first sentence in the first paragraph.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 38; 20 M.J. Witnesses, § 35.

CASE NOTES

No abuse of discretion in allowing victim witness to stay in courtroom. - Circuit court did not abuse its discretion under § 19.2-265.01 by allowing a murder victim's son, who was a victim within the meaning of subsection B of § 19.2-11.01 , to remain in the courtroom after he testified during the guilt phase of the trial because the circuit court correctly concluded that the victim's son did not learn anything while he was present in the court that would have changed or affected his victim impact testimony during the penalty phase, and, thus, defendant was not prejudiced by the fact that the son testified during the penalty phase after having heard much of the testimony during the guilt phase. Jackson v. Commonwealth, 267 Va. 178 , 590 S.E.2d 520, 2004 Va. LEXIS 8 (2004), cert. denied, 543 U.S. 891, 125 S. Ct. 168, 160 L. Ed. 2d 155 (2004).

Because defendant provided no specific reason for finding that a victim witness's presence in the courtroom during the testimony of other witnesses would impair the fairness of the trial, the trial court did not abuse its discretion by allowing the victim witness to remain in the courtroom. Hernandez-Guerrero v. Commonwealth, 46 Va. App. 366, 617 S.E.2d 410, 2005 Va. App. LEXIS 311 (2005).

Circuit court properly found a probationer in violation of his probation, as testimony from a victim-witness in a city prosecution, which was underlying basis for the issuance of a capias in the revocation matter, was relevant; further, that witness was exempt from sequestration, as she could not have shaped her testimony to correspond to the contents of the probationer's letter to the judge or the testimony of the probation officer. Osborne v. Commonwealth, No. 2358-04-3, 2005 Va. App. LEXIS 376 (Oct. 4, 2005).

No exception exists to allow defendant's family to remain in court at guilt phase and also testify at penalty phase. - Defendant was not denied the effective assistance of counsel where his counsel did not object to the exclusion of defendant's family from the courtroom during the guilt phase of his trial because those family members were expected to testify during the penalty phase; the court rejected defendant's argument that counsel's failure to object sent a false message that his family did not care enough to be with him during his trial. Defendant could not show that an objection would be successful; so he failed to establish the performance prong of the Strickland test; there was no exception under § 19.2-265.01 that would allow defendant's family to remain in the courtroom during trial and still be able to testify at the penalty phase. Jackson v. Warden of the Sussex I State Prison, 271 Va. 434 , 627 S.E.2d 776, 2006 Va. LEXIS 32 (2006).

CIRCUIT COURT OPINIONS

Victim's right of advance notification. - Dismissal of case based on non-appearance of victim, after the Attorney for the Commonwealth of Virginia determined not to participate in the prosecution, was inappropriate when the victim was never notified of the trial date by the Commonwealth's Attorney because the victim was not required to specifically request advance notification of judicial proceedings and the Commonwealth's Attorney was required to provide the victim advance notification as the victim provided the victim's name, address, and phone number to the police department. Defendant's Motion to Dismiss v. Chastain,, 2021 Va. Cir. LEXIS 16 (Fairfax County Jan. 29, 2021).

§ 19.2-265.1. Exclusion of witnesses (Subsection (a) of Supreme Court Rule 2:615 derived in part from this section and subsection (c) of Supreme Court Rule 2:615 derived from this section).

In the trial of every criminal case, the court, whether a court of record or a court not of record, may upon its own motion and shall upon the motion of either the attorney for the Commonwealth or any defendant, require the exclusion of every witness to be called, including, but not limited to, police officers or other investigators; however, each defendant who is an individual and one officer or agent of each defendant which is a corporation or association shall be exempt from the rule of this section as a matter of right. Additionally, any victim as defined in § 19.2-11.01 who is to be called as a witness shall be exempt from the rule of this section as a matter of law unless, in accordance with the provisions of § 19.2-265.01 , his exclusion is otherwise required.

(Code 1950, § 8-211.1; 1966, c. 268; 1975, c. 652; 1977, c. 624; 1990, c. 572; 2004, c. 311.)

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

The 2004 amendments. - The 2004 amendment by c. 311 added the last sentence.

Law review. - For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

Research References. - Virginia Forms (Matthew Bender). No. 9-2225. Motion to Sequester"'Gag" Witnesses (General District Court).

Michie's Jurisprudence. - For related discussion, see 20 M.J. Witnesses, § 35.

CASE NOTES

Statute held mandatory. - Former § 8-211.1 permitted of no rational construction but that "upon the motion of any party" a trial court "shall" exclude "every witness" during the trial of "every case . . .." Johnson v. Commonwealth, 217 Va. 682 , 232 S.E.2d 741 (1977).

Absolute right to exclude witnesses. - A defendant's right to exclusion of witnesses at trial is absolute. Cuozzo v. Commonwealth, No. 1843-98-2, 2000 Va. App. LEXIS 603 (Ct. of Appeals Aug. 15, 2000).

Testimony of witness violating order directing his exclusion. - The presence of a witness in the courtroom, in disobedience of the order of exclusion, does not disqualify such witness from testifying. On the contrary, it is generally held that it is within the sound discretion of the trial court to permit the testimony of a witness who has violated an order directing his exclusion from the courtroom. Brickhouse v. Commonwealth, 208 Va. 533 , 159 S.E.2d 611 (1968), decided under former § 8-211.1

Where information was communicated to a witness in violation of an exclusion order pertaining only to documentary evidence regarding her marital status, and the witness did not in any way change her testimony upon learning of its existence, the trial court did not abuse its discretion in allowing this witness to testify later at trial. Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200 (1989).

The trial court erred in refusing to admit into evidence the testimony of a defense witness who had remained in the courtroom in violation of an order excluding witnesses where the excluded testimony addressed the credibility of the only witness against the defendant and the weight to be given to his testimony, and where violation of the exclusion order was unintentional, both on his part and on the part of defense counsel, and there was no showing that his presence in the courtroom influenced his testimony. Jury v. Commonwealth, 10 Va. App. 718, 395 S.E.2d 213 (1990).

Trial court has discretion whether witness prevented from testifying. - A trial court has discretion to decide whether a witness who violates an exclusion order should be prevented from testifying. Jury v. Commonwealth, 10 Va. App. 718, 395 S.E.2d 213 (1990).

Factors considered in determining whether witness should be prevented from testifying. - Factors to be considered in determining whether a witness who violates an exclusion order should be prevented from testifying include whether prejudice will result to the defendant and whether the violation of the rule resulted from intentional impropriety. Jury v. Commonwealth, 10 Va. App. 718, 395 S.E.2d 213 (1990).

Mistrial was not mandated by the trial court's decision not to exclude the testimony of a witness who discussed court proceedings with another potential witness, where there was no showing that either participant in the conversation was aware of the order excluding them from the courtroom or that defendant was prejudiced by their conversation. Wolfe v. Commonwealth, 265 Va. 193 , 576 S.E.2d 471, 2003 Va. LEXIS 32, cert. denied, 540 U.S. 1019, 124 S. Ct. 566, 157 L. Ed. 2d 434 (2003).

Circuit court properly found a probationer in violation of his probation, as testimony from a victim-witness in a city prosecution, which was underlying basis for the issuance of a capias in the revocation matter, was relevant; and further, that witness was exempt from sequestration, as she could not have shaped her testimony to correspond to the contents of the probationer's letter to the judge or the testimony of the probation officer. Osborne v. Commonwealth, No. 2358-04-3, 2005 Va. App. LEXIS 376 (Oct. 4, 2005).

Circuit court properly allowed a witness to testify after an assistant attorney general caused two witnesses to confer about potential evidence after the trial court separated the witnesses because they were not advised not to discuss the case, neither witness had testified at the time they were directed to discuss the evidence, there was no evidence that their conversation shaped or had an adulterating effect on the second witness's testimony or prejudiced defendant, and neither the Virginia Code nor the Rules of Evidence mandated that they not speak about their testimony. Young v. Commonwealth, No. 1744-17-1, 2018 Va. App. LEXIS 296 (Oct. 30, 2018).

Where record demonstrates defendant requested witnesses be excluded from courtroom, and the Commonwealth assured the trial court that it was not going to call investigator for State Corporation Commission as a witness but needed him present as a consultant during trial, defendant then told trial court that he was going to call investigator for two matters. The trial court did not force defendant to call investigator as his own witness. Rather, defendant, after requesting that the witnesses be excluded, determined that he might want to call investigator as his own witness. Pursuant to this section, the trial court then was required to exclude investigator, as well as all other potential witnesses, from the courtroom during the trial. Chiang v. Commonwealth, 6 Va. App. 13, 365 S.E.2d 778 (1988).

Constitutionality of former statute. - So much of former § 8-211.1 as required the exclusion of each witness "whose presence is not necessary to the proceedings" was void for indefiniteness. Jefferson v. Commonwealth, 212 Va. 255 , 183 S.E.2d 734 (1971).

Applied in Church v. Commonwealth, 230 Va. 208 , 335 S.E.2d 823 (1985); Wolfe v. Commonwealth, 265 Va. 193 , 576 S.E.2d 471, 2003 Va. LEXIS 32.

§ 19.2-265.2. Judicial notice of laws (Supreme Court Rule 2:202 derived in part from this section).

  1. Whenever, in any criminal case it becomes necessary to ascertain what the law, statutory or otherwise, of this Commonwealth, of another state, of the United States, of another country, or of any political subdivision or agency of the same is, or was, at any time, the court shall take judicial notice thereof whether specially pleaded or not.
  2. The court, in taking such notice, shall consult any book, record, register, journal, or other official document or publication purporting to contain, state, or explain such law, and may consider any evidence or other information or argument that is offered on the subject.

    (1978, c. 328.)

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

Law review. - For survey of Virginia law on evidence for year 1977-1978, see 64 Va. L. Rev. 1451 (1978).

Research References. - Virginia Forms (Matthew Bender). No. 9-1506. Discovery Order--Agreed.

CASE NOTES

Effect where notice not shown in record on appeal. - Where the record on appeal for a case in which the defendant was convicted under § 18.2-270 for a second and subsequent offense of driving under the influence of intoxicants did not show that the trial court took judicial notice of North Carolina's laws and, further, even assuming the court took judicial notice of those laws, it failed to enter of record the provisions of the laws it noticed, the Commonwealth was not relieved from proving the provisions of those laws and their similarity to Virginia's. Rufty v. Commonwealth, 221 Va. 836 , 275 S.E.2d 584 (1981).

Trial court is not required to formally admit ordinances of jurisdiction where it sits, because it is required to take judicial notice of those laws. Oulds v. Commonwealth, No. 2062-98-3 (Ct. of Appeals Sept. 28, 1999).

Judicial notice of city ordinances. - This statute eliminates the requirement of introducing an authenticated copy of a city ordinance into evidence and that the ordinance be "specially pleaded" in those cases where proof of the terms of such an ordinance is necessary to establish the elements of the offense. Oulds v. Commonwealth, 260 Va. 210 , 532 S.E.2d 33 (2000).

Prosecutor was not required to introduce a city ordinance that defendant violated into evidence before the trial court, pursuant to § 19.2-265.2 , could take judicial notice of the city ordinance. Cubitt v. Commonwealth, No. 3462-01-1, 2002 Va. App. LEXIS 747 (Ct. of Appeals Dec. 17, 2002).

Notice of prior conviction as evidence of ordinance. - In convicting defendant of driving under the influence (DUI), the trial court did not err in admitting evidence of prior DUI conviction, as the arrest warrant constituted an official document, and the trial court properly consulted the warrant as evidence of the ordinance under which defendant was previously convicted in taking judicial notice of its provisions. Webb v. Commonwealth, No. 2749-01-2, 2003 Va. App. LEXIS 138 (Ct. of Appeals Mar. 18, 2003).

CIRCUIT COURT OPINIONS

Compact incorporated into Virginia Code. - Circuit court need not take judicial notice of the Washington Metropolitan Area Transit Authority Compact, because the Compact was, itself, the law of the Commonwealth of Virginia as the Compact was entered into by the Commonwealth of Virginia, and was incorporated in the Code of Virginia at §§ 56-529 and 56-530 [now §§ 33.2-3000 and 33.2-3100 ]. Commonwealth v. Fox, 78 Va. Cir. 40, 2008 Va. Cir. LEXIS 177 (Fairfax County 2008).

§ 19.2-265.3. Nolle prosequi; discretion of court upon good cause shown.

Nolle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown.

(1979, c. 641.)

Law review. - For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

Research References. - Virginia Forms (Matthew Bender). No. 9-1806. Objection to "Nolle Prosequi"/Demand for Dismissal or Trial. No. 9-2304. Immunity Agreement, et seq.

Michie's Jurisprudence. - For related discussion, see 4A M.J. Commonwealth's and State's Attorney, §§ 4, 7; 5B M.J. Criminal Procedure, § 27; 6A M.J. Dismissal, Discontinuance and Nonsuit, §§ 38, 39.

CASE NOTES

"Good cause" for a nolle prosequi was demonstrated where: (1) the Commonwealth had not obtained documents indispensable to prosecution of defendant on the scheduled trial date; (2) the Commonwealth's dilemma was fully disclosed to the court in support of a related continuance motion; (3) when the motion was denied, the Commonwealth quickly sought to nolle prosequi the charges, clearly prompted by those evidentiary concerns presented to the court moments earlier; and (4) acting in this context, the court granted the motion, implicitly finding that the circumstances constituted sufficient "good cause" to justify the requested relief. Harris v. Commonwealth, No. 2087-97-4 (Ct. of Appeals Oct. 20, 1998).

Retrial precluded after swearing of witness and dismissal on refusal of Commonwealth to proceed. - Where the trial court ruled against prosecuting defendant on a felony charge, but found probable cause supporting a misdemeanor charge and accordingly swore in a witness, but the attorney for the Commonwealth refused to question the witness, stating that he wished to secure a grand jury for a felony charge, upon which the judge properly dismissed the case, the attorney for the Commonwealth could not prosecute the case anew on a felony charge, as double jeopardy attached. The Commonwealth had the opportunity to question the sworn witness, defendant had risked a determination of guilt, and absent manifest necessity defendant could not be retried for the same offense. Goolsby v. Hutto, 529 F. Supp. 92 (E.D. Va. 1981), aff'd, 691 F.2d 199 (4th Cir. 1982).

Jeopardy attaches upon denial of motion and swearing of first witness. - When the general district court denied the motion for nolle prosequi, set the case for trial, and called and swore the first witness, the defendant was then subjected either to conviction or acquittal. The fact that the witness gave no evidence because the attorney for the Commonwealth refused to examine him, required the acquittal of the defendant by the general district court, just as his conviction would have been required had the witness given evidence sufficient to sustain his guilt. Goolsby v. Hutto, 691 F.2d 199 (4th Cir. 1982).

Entry of nolle prosequi prior to jury being empaneled or sworn. - Jeopardy had not yet attached in a prosecution for murder because the jury had not been empaneled or sworn, and thus, the entry of a nolle prosequi did not bar reindictment and reprosecution. Cantrell v. Commonwealth, 7 Va. App. 269, 373 S.E.2d 328 (1988), cert. denied, 496 U.S. 911, 110 S. Ct. 2600, 110 L. Ed. 2d 280 (1990).

Where the jury had not been empaneled and sworn in defendant's case, and no mistrial was declared, the attorney for the Commonwealth was not required to prove "manifest necessity" in support of his motion to nolle prosequi; rather, the attorney for the Commonwealth was merely required to show good cause, and the trial court, in its discretion, could grant the motion. Cantrell v. Commonwealth, 7 Va. App. 269, 373 S.E.2d 328 (1988), cert. denied, 496 U.S. 911, 110 S. Ct. 2600, 110 L. Ed. 2d 280 (1990).

Dismissal of charges against defendant did not constitute nolle prosequi. - Trial court erred in denying defendant's motion to dismiss criminal charges, as the prosecution's dismissal of an earlier indictment for the same charges did not act as a nolle prosequi under § 19.2-265.3 , as the trial court denied the prosecution's motion for a continuance because the prosecution failed to work with federal authorities to obtain defendant's presence at trial, and was not prepared to proceed without defendant's presence, so the dismissal was with prejudice. Roe v. Commonwealth, 271 Va. 453 , 628 S.E.2d 526, 2006 Va. LEXIS 46 (2006).

Defendant not prejudiced by nolle prosequi on first degree murder count in capital trial. - Defendant was not prejudiced by the granting of a motion to enter a nolle prosequi on the first-degree murder count, despite his claim that the jury was not cognizant of its option to consider the evidence within the framework of a first-degree murder alternative, since the "framework" in which the evidence was adduced was constructed at the time the robbery and capital murder counts of the indictment were read to the jury and the defendant entered his pleas of not guilty. The framework in which the evidence was considered by the jury was that fashioned by the instructions. Those instructions defined first-degree and second-degree murder as well as capital murder. Boggs v. Commonwealth, 229 Va. 501 , 331 S.E.2d 407 (1985), cert. denied, 475 U.S. 1031, 106 S. Ct. 1240, 89 L. Ed. 2d 347 (1986), 495 U.S. 940, 110 S. Ct. 2193, 109 L. Ed. 2d 521 (1990).

No constructive nolle prosequi by withholding finding on guilty pleas. - The trial court could not constructively enter a nolle prosequi on the three first-degree murder indictments by withholding a finding on the guilty pleas. Rea v. Commonwealth, 14 Va. App. 940, 421 S.E.2d 464 (1992).

Subsequent indictments of enhanced offenses. - Trial judge erred in refusing to dismiss indictments of enhanced offenses that were obtained after the trial judge granted the Commonwealth's motion to nolle prosequi, as the bringing of more serious charges under the facts of this case represented prosecutorial vindictiveness. Battle v. Commonwealth, 12 Va. App. 624, 406 S.E.2d 195 (1991).

Nolle prosequi was properly granted based on the unexpected absence of a witness for the Commonwealth. Rogers v. Commonwealth, No. 1086-97-1 (Ct. of Appeals April 14, 1998).

Trial court did not err by granting the Commonwealth's motion to nolle prosequi the issuing multiple worthless checks indictment and prosecute defendant under three separate indictments of § 18.2-181 , because the prosecutor was exercising the Commonwealth's right to elect which two statutes to proceed under. Moore v. Commonwealth, 59 Va. App. 795, 722 S.E.2d 668, 2012 Va. App. LEXIS 81 (2012).

Trial court did not err in refusing to dismiss the indictments or in granting the motion to nolle prosequi the initial murder indictment because the premise of defendant's challenge, that the Commonwealth obtained the nolle prosequi to avoid its speedy trial obligations, was not merited since the trial was timely regardless. Barksdale v. Commonwealth, No. 0736-20-3, 2021 Va. App. LEXIS 126 (July 20, 2021).

Circuit court had to exercise its discretion. - Dismissal of petitions for writs of mandamus was appropriate because a circuit court had no clear and unequivocal duty to grant a motion by an attorney for the Commonwealth of Virginia to enter an order of dismissal on charges for misdemeanor possession of marijuana as the court had to exercise its discretion when asked to grant either a motion to dismiss a charge without prejudice or a nolle prosequi, and, thus, could not be compelled to do so. The attorney also had to establish good cause before the court could have granted a nolle prosequi. In re Underwood, No. 190498, 2019 Va. LEXIS 168 (May 2, 2019).

Court declined to speculate whether good cause existed. - Defendant's conviction for petit larceny was proper because, in view of defendant's tactical decision to withdraw her appeal, the appellate court declined to speculate whether good cause existed to support the nolle prosequi entry or whether the Commonwealth moved to enter the nolle prosequi in violation of defendant's due process rights. Gordon v. Commonwealth,, 2011 Va. App. LEXIS 330 (Nov. 1, 2011).

Defendant not entitled to dismissal in later proceeding. - Defendant was not entitled to dismissal based on the prosecutor's nolle prosequi of prior charges, which were identical to charges in the later proceeding, because under § 19.2-265.3 , absent vindictive intent resulting in oppressive and unfair trial tactics, or other prosecutorial misconduct, courts deferred to the prosecutor in these circumstances; the presence or absence of good cause in the prior proceeding could not have been collaterally reviewed by the trial court in the later proceeding. It changed nothing that, in the earlier proceeding, an unsuccessful continuance motion preceded the motion for nolle prosequi. Duggins v. Commonwealth, 59 Va. App. 785, 722 S.E.2d 663, 2012 Va. App. LEXIS 80 (2012).

CIRCUIT COURT OPINIONS

Court would not enter order inconsistent with Virginia Constitution. - Decision by the executive branch to effectively nullify a statute passed by members of the Virginia General Assembly, who were duly elected by the citizens, fails to constitute good cause to nolle prosequi a criminal charge. Commonwealth v. Kelly, 105 Va. Cir. 306, 2020 Va. Cir. LEXIS 118 (Arlington County July 10, 2020).

Circuit court rejected the Commonwealth's arguments in support of its motion for nolle prosequi because it would not enter an order that was inconsistent with the provisions of the Virginia Constitution; the Commonwealth argued public policy as the reason to disregard a criminal statute that was fully considered, voted on, and passed by both chambers of the Virginia General Assembly. Commonwealth v. Kelly, 105 Va. Cir. 306, 2020 Va. Cir. LEXIS 118 (Arlington County July 10, 2020).

Partisan influence should be avoided. - Intentionally adopting a partisan position, especially when that position directly conflicts with the law, would undermine fundamental principles; therefore, in order to conform to current ethical and legal standards of judicial conduct, the court should avoid partisan influence and should not be swayed by any prosecutor's opinion of the ineffectiveness of a criminal statute as a basis to dismiss an indicted crime pending before the court. Commonwealth v. Kelly, 105 Va. Cir. 306, 2020 Va. Cir. LEXIS 118 (Arlington County July 10, 2020).

"Good cause" for a nolle prosequi was demonstrated. - Pursuant to the court's discretion, the Commonwealth was entitled to nolle prosequi defendant's case pursuant to § 19.2-265.3 because its failure to subpoena a doctor as a necessary witness for trial amounted to a mere oversight, or a lack of adequate foresight and preparation. It did not constitute bad faith or prosecutorial misconduct. Commonwealth v. Van Luu, 79 Va. Cir. 43, 2009 Va. Cir. LEXIS 69 (Fairfax Apr. 14, 2009).

Circuit court found that the granting the Commonwealth of Virginia's motion for a nolle prosequi of the felony charges against defendant was appropriate because the Commonwealth wished to discontinue the prosecution as it believed that the case needed to be set for trial within ten and would require the presence of numerous witnesses from the Virginia Division of Forensic Science. Commonwealth v. Parrish, 100 Va. Cir. 194, 2018 Va. Cir. LEXIS 430 (Greene County Oct. 15, 2018).

Circuit court accepted the Commonwealth's representation of insufficiency of the evidence because the Commonwealth only had a field test result, which would be insufficient for a conviction at trial; since defendant had not moved for a dismissal with prejudice upon the Commonwealth's acknowledgment of insufficiency of the evidence, the circuit court found good cause to grant the motion for nolle prosequi. Commonwealth v. Kelly, 105 Va. Cir. 306, 2020 Va. Cir. LEXIS 118 (Arlington County July 10, 2020).

Defendant's right to a speedy trial was not violated. - Defendant's statutory right to a speedy trial was not violated as to the third indictment because even if the third indictment was an extension of the first indictment, when the nolle prosequi of the second indictment was granted defendant was not released from custody because of the first indictment; the speedy-trial clock would run from the day after probable cause was found at defendant's preliminary hearing to the date when a joint continuance request was granted. Commonwealth v. Feimster, 95 Va. Cir. 306, 2017 Va. Cir. LEXIS 44 (Norfolk Mar. 19, 2017).

Nolle prosequi granted where defendant failed to show existence of cooperation agreement. - Commonwealth's motion for nolle prosequi was granted where defendant failed to show that the government made a firm promise of commitment supporting the existence of cooperation agreement and, even if there had been agreement as to the terms asserted by defendant or the Commonwealth, such terms simply did not contain the terms essential to such an agreement since the agreement suggested by both sides contained no discussion of what level of cooperation would be required of defendant in order for her to satisfy the purported cooperation agreement nor who would determine whether defendant had fulfilled her part of the cooperation agreement. In addition, defendant's own evidence was that she failed to comply with the cooperation requirement. Commonwealth v. Stewart, 66 Va. Cir. 135, 2004 Va. Cir. LEXIS 325 (Portsmouth Oct. 22, 2004).

Nolle prosequi may be granted. - Although Virginia case law has required strict compliance with § 19.2-187 , which requires the Commonwealth to file a certificate of analysis at least one week prior to trial in a DUI case, where § 19.2-187 is not implicated, denial of a continuance does not preclude the granting of a nolle prosequi under § 19.2-265.3 , even where both motions are predicated on the same assertions. Commonwealth v. Van Luu, 79 Va. Cir. 43, 2009 Va. Cir. LEXIS 69 (Fairfax Apr. 14, 2009).

No authority to vacate judgment of nolle prosequi. - District court lacked the authority to vacate its judgment of nolle prosequi under the mantle of correcting error either inherently or pursuant to the authority conferred by the statute because its action was not the mere correction of a fact but a change in judgment, which was not contemplated to be within the ambit of the authority conferred by the statute. Commonwealth v. Darab, 99 Va. Cir. 138, 2018 Va. Cir. LEXIS 68 (Fairfax County May 2, 2018).

Entry of nolle prosequi final order. - Entry of the written nolle prosequi was a final order because the order contained the formalities of a final written judgment, and the testimonial evidence supported the conclusion the district court pronounced its judgment and ended the case, at least temporarily, by entry of the nolle prosequi. Commonwealth v. Darab, 99 Va. Cir. 138, 2018 Va. Cir. LEXIS 68 (Fairfax County May 2, 2018).

OPINIONS OF THE ATTORNEY GENERAL

Commonwealth's attorney has no authority to dismiss any misdemeanor or felony charge that led to the lawful arrest of an accused, without a showing of good cause to the court. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).

§ 19.2-265.4. Failure to provide discovery.

  1. In any criminal prosecution for a felony in a circuit court or for a misdemeanor brought on direct indictment, the attorney for the Commonwealth shall have a duty to adequately and fully provide discovery as provided under Rule 3A:11 of the Rules of the Supreme Court. Rule 3A:11 shall be construed to apply to such felony and misdemeanor prosecutions. This duty to disclose shall be continuing and shall apply to any additional evidence or material discovered by the Commonwealth prior to or during trial which is subject to discovery or inspection and has been previously requested by the accused. In any criminal prosecution for a misdemeanor by trial de novo in circuit court, the attorney for the Commonwealth shall have a duty to adequately and fully provide discovery as provided under Rule 7C:5 of the Rules of the Supreme Court.
  2. If at any time during the course of the proceedings it is brought to the attention of the court that the attorney for the Commonwealth has failed to comply with this section, the court may order the Commonwealth to permit the discovery or inspection, grant a continuance, or prohibit the Commonwealth from introducing evidence not disclosed, or the court may enter such other order as it deems just under the circumstances.

    (1985, c. 538; 1995, c. 504; 2004, c. 348.)

Editor's note. - The repeal of this section Acts 2020, c. 1167, cl. 2, never took effect pursuant to Acts 2020, c. 1167, cl. 3, which provided: "That the provisions of this act shall become effective in due course, unless the amendments to Rule 3A:11 and 3A:12 of the Rules of Virginia Supreme Court adopted on September 5, 2018, become effective on July 1, 2020." The amendments to Rules 3A:11 and 3A:12 of the Supreme Court of Virginia took effect July 1, 2020, preventing this act from taking effect.

The 2004 amendments. - The 2004 amendment by c. 348 added the last sentence in subsection A.

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

Research References. - Virginia Forms (Matthew Bender). No. 9-1504. Motion for Discovery--Circuit Court, et seq.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 23; 6A M.J. Discovery, § 8.

CASE NOTES

Duty of court to impose sanctions upon deliberate attempt to use improper evidence. - When it appears to a trial court that a party has deliberately attempted to introduce evidence which it knows is improper or inadmissible, either because it was not disclosed during discovery or because it otherwise is inadmissible under rules of evidence, it is the duty and responsibility of the court to deter such inappropriate tactics by taking such action, imposing such sanctions, or granting such relief as it deems appropriate. Stotler v. Commonwealth, 2 Va. App. 481, 346 S.E.2d 39 (1986).

No duty to impose sanctions unless failure to comply intentional. - There is no duty upon the court to impose sanctions or grant other relief unless the failure to comply was intentional and the party violating the discovery order deliberately attempted to introduce improper evidence. Synder v. Commonwealth, 10 Va. App. 67, 389 S.E.2d 727 (1990).

Sanctions where Commonwealth deliberately fails to comply with discovery order. - When it is brought to the attention of a court that the Commonwealth has failed to comply with a discovery order, the court may prohibit the Commonwealth from introducing the evidence or enter such other order as it deems just under the circumstances. Certain circumstances may dictate a citation for contempt and/or require referral of the matter to the appropriate ethics committee of the bar. Stotler v. Commonwealth, 2 Va. App. 481, 346 S.E.2d 39 (1986).

Prejudice required to show grounds for reversal or other remedy. - When an accused alleging a discovery violation shows no prejudice, he can claim no reversible error; thus, a defendant who alleges the remedy fashioned for any discovery violation is insufficient also must show prejudice in order to claim entitlement to relief. Miles v. Commonwealth, No. 0692-00-4, 2001 Va. App. LEXIS 183 (Ct. of Appeals Apr. 10, 2001).

Where the Commonwealth failed to provide an inculpatory recorded telephone conversation between defendant and his mother prior to seeking its admission at trial, as required by a discovery order, admission of the evidence was upheld because defendant failed to show prejudice by demonstrating how timely disclosure would have changed his trial strategy or affected the outcome of the trial. Romero-Diaz v. Commonwealth, No. 0489-09-4, 2010 Va. App. LEXIS 180 (Ct. of Appeals May 4, 2010).

Failure to comply with discovery not reversible absent prejudice. - A trial court's admission of relevant and material evidence at trial which was not disclosed as required by a discovery order is not reversible error in the absence of a showing of prejudice. Stotler v. Commonwealth, 2 Va. App. 481, 346 S.E.2d 39 (1986).

Defendant's convictions for carjacking, robbery, abduction, and use of a firearm in the commission of those felonies were proper because, as a sanction for non-disclosure, the trial court did not allow the introduction of a photo spread, nor did it consider the derivative identification as substantive evidence of the identity of the perpetrator. The trial court did not abuse its discretion in formulating the relief granted. Thompson v. Commonwealth, No. 2427-09-2, 2010 Va. App. LEXIS 415 (Ct. of Appeals Oct. 26, 2010).

No abuse of discretion where court refused to exclude challenged evidence. - In the absence of evidence that late disclosure prejudiced the defense, or absent an objection and a trial court finding that the prosecutor deliberately violated his discovery duties, it is not an abuse of discretion for the trial court to refuse to exclude the challenged evidence. Moreno v. Commonwealth, 10 Va. App. 408, 392 S.E.2d 836 (1990).

Court did not err in failing to review statements where no motion made. - Where appellant contended that trial court erred in failing to review the alibi witness statements in camera, appellant did not move the trial court to review the witness statements, nor did he move that the documents be placed under seal for the record on appeal. The court of appeals did not need to rule upon the non-exercise of a judicial power that was not invoked. While the trial court could have reviewed the statements in camera sua sponte, it was not required to do so. Allen v. Commonwealth, No. 2737-96-2 (Ct. of Appeals Feb. 10, 1998).

The remedial relief to be granted by the trial court following a discovery violation or upon the late disclosure of evidence is within the trial court's discretion and will not be disturbed on appeal unless plainly wrong. Where no prejudice has been shown by permitting the witness to testify after the late disclosure of the discoverable evidence, the trial court does not err by admitting the evidence after granting a continuance. Moreno v. Commonwealth, 10 Va. App. 408, 392 S.E.2d 836 (1990).

There was no violation of discovery order where the Commonwealth disclosed information as soon as it was received, and no prejudice where the information was disclosed in time to be put to use. Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200 (1989).

No violation of discovery where disclosure was timely. - There was no error when a trial court found that the prosecution had timely provided defendant with certain discovery materials, even though the prosecution did not give the materials, including the prior inconsistent statement and the criminal record of his co-conspirator, to defendant before trial; defendant received the materials in enough time, because the trial court granted defendant a 10-minute recess to prepare to cross-examine the co-conspirator. Additionally, there was no evidence that defendant was prejudiced by the alleged Brady violation, and absent such proof of prejudice, any violation did not take on constitutional proportions or deprive defendant of his due process right to a fair trial. Wilson v. Commonwealth, No. 1097-05-1, 2006 Va. App. LEXIS 243 (May 30, 2006).

Applied in Smith v. Commonwealth, 239 Va. 243 , 389 S.E.2d 871 (1990); Conway v. Commonwealth, 11 Va. App. 103, 397 S.E.2d 263 (1990); Conway v. Commonwealth, 12 Va. App. 711, 407 S.E.2d 310 (1991).

CIRCUIT COURT OPINIONS

Disclosure of confidential informant required. - Commonwealth was required to disclose identity of confidential informant who arranged a drug purchase at which defendant was arrested since the informant was with officers when the purchase was set up and since the informant could possibly testify on issues of entrapment or accommodation, which was information that could be essential to preparation of the defense. Commonwealth v. Cashwell, 66 Va. Cir. 63, 2004 Va. Cir. LEXIS 262 (Nelson County 2004).

General claim not sufficient. - Defendant made only a general claim that the Commonwealth's Attorney withheld exculpatory evidence in the form of written letters seized from a search of defendant's cell and not returned to him and made no proffer of what was exculpatory and thus, such was not a sufficient ground for dismissal of the charges. Commonwealth v. Williams,, 2014 Va. Cir. LEXIS 172 (Richmond County June 18, 2014).

Brady violation not found. - Discovery of a weapon over a month after the shooting for which defendant was convicted of murder, miles away from the scene of the shooting, and determined not to be the murder weapon, was not exculpatory or material evidence; therefore, no Brady violation occurred. Bonhom v. Angelone, 58 Va. Cir. 358, 2002 Va. Cir. LEXIS 44 (Fairfax County 2002).

Motion to dismiss denied. - Defendant's motion to dismiss based on the Commonwealth's alleged discovery violation was denied. He had the opportunity to inspect evidence pursuant to the court's discovery order; he elicited testimony about certain evidence at issue; certain evidence discovered post-trial was inculpatory and not exculpatory, and the late discovery of inculpatory evidence neither changed the defense strategy nor denied him a fair trial. Commonwealth v. Javier-Paz,, 2012 Va. Cir. LEXIS 19 (Fairfax County Feb. 9, 2012).

§ 19.2-265.5. Prosecuting misdemeanor cases without attorney.

Notwithstanding any of the provisions of § 19.2-265.1 , whenever in a misdemeanor case neither an attorney for the Commonwealth nor any other attorney for the prosecution is present, the complaining witness may be allowed to remain in court throughout the entire trial if necessary for the orderly presentation of witnesses for the prosecution.

(1987, c. 659.)

§ 19.2-265.6. Dismissal of criminal charges on Commonwealth's motion; effect of dismissal of criminal charges.

  1. Upon motion of the Commonwealth to dismiss a charge, whether with or without prejudice, and with the consent of the defendant, a court shall grant the motion unless the court finds by clear and convincing evidence that the motion was made as the result of (i) bribery or (ii) bias or prejudice toward a victim as defined in § 19.2-11.01 because of the race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin of the victim.
  2. No dismissal of any criminal charge by a court shall bar subsequent prosecution of the charge unless jeopardy attached at the earlier proceeding or unless the dismissal order explicitly states that the dismissal is with prejudice.

    (2007, c. 419; 2020, Sp. Sess. I, cc. 20, 21.)

The 2020 Sp. Sess. I amendments. - The 2020 amendments by Sp. Sess. I, cc. 20 and 21, effective March 1, 2021, are identical, and inserted subsection A and designated the existing paragraph as subsection B.

Law review. - For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

§ 19.2-266. Exclusion of persons from trial; photographs and broadcasting permitted under designated guidelines; exceptions.

In the trial of all criminal cases, whether the same be felony or misdemeanor cases, the court may, in its discretion, exclude from the trial any persons whose presence would impair the conduct of a fair trial, provided that the right of the accused to a public trial shall not be violated.

A court may solely in its discretion permit the taking of photographs in the courtroom during the progress of judicial proceedings and the broadcasting of judicial proceedings by radio or television and the use of electronic or photographic means for the perpetuation of the record or parts thereof in criminal and in civil cases, but only in accordance with the rules set forth hereunder. In addition to such rules, the Supreme Court and the Court of Appeals shall have the authority to promulgate any other rules they deem necessary to govern electronic media and still photography coverage in their respective courts. The following rules shall serve as guidelines, and a violation of these rules may be punishable as contempt:

Coverage Allowed.

  1. The presiding judge shall at all times have authority to prohibit, interrupt or terminate electronic media and still photography coverage of public judicial proceedings. The presiding judge shall advise the parties of such coverage in advance of the proceedings and shall allow the parties to object thereto. For good cause shown, the presiding judge may prohibit coverage in any case and may restrict coverage as he deems appropriate to meet the ends of justice.
  2. Coverage of the following types of judicial proceedings shall be prohibited: adoption proceedings, juvenile proceedings, child custody proceedings, divorce proceedings, temporary and permanent spousal support proceedings, proceedings concerning sexual offenses, proceedings for the hearing of motions to suppress evidence, proceedings involving trade secrets, and in camera proceedings.
  3. Coverage of the following categories of witnesses shall be prohibited: police informants, minors, undercover agents and victims and families of victims of sexual offenses.
  4. Coverage of jurors shall be prohibited expressly at any stage of a judicial proceeding, including that portion of a proceeding during which a jury is selected. The judge shall inform all potential jurors at the beginning of the jury selection process of this prohibition.
  5. To protect the attorney-client privilege and the right to counsel, there shall be no recording or broadcast of sound from such conferences which occur in a court facility between attorneys and their clients, between co-counsel of a client, between adverse counsel, or between counsel and the presiding judge held at the bench or in chambers.

    1. The location of recording and camera equipment shall be strictly regulated so as not to be intrusive.

    2. Media personnel shall not enter or leave the courtroom once the proceedings are in session except during a court recess or adjournment.

    3. Electronic media equipment and still photography equipment shall not be taken into the courtroom or removed from the designated media area except at the following times:

    1. Prior to the convening of proceedings;
    2. During any luncheon recess;
    3. During any court recess with the permission of the trial judge; and
    4. After adjournment for the day of the proceedings.

      The Virginia Association of Broadcasters and the Virginia Press Association may designate one person to represent the television media, one person to represent the radio broadcasters, and one person to represent still photographers in each jurisdiction in which electronic media and still photographic coverage is desired. The names of the persons so designated shall be forwarded to the chief judge of the court in the county or city in which coverage is desired so that arrangements can be made for the "pooling" of equipment and personnel. Such persons shall also be the only persons authorized to speak for the media to the presiding judge concerning the coverage of any judicial proceedings.

      1. No distracting lights or sounds shall be permitted.

      2. Not more than two television cameras shall be permitted in any proceeding.

      3. Not more than one still photographer, utilizing not more than two still cameras with not more than two lenses for each camera and related equipment for print purposes, shall be permitted in any proceeding.

      4. Not more than one audio system for broadcast purposes shall be permitted in any proceeding.

      Audio pickup for all media purposes shall be accomplished with existing audio systems present in the court facility. If no technically suitable audio system exists in the court facility, microphones and related wiring essential for media purposes may be installed and maintained at media expense. The microphones and wiring must be unobtrusive and shall be located in places designated in advance of any proceeding by the chief judge of the court in which coverage is desired.

      5. Any "pooling" arrangements among the media required by these limitations on equipment and personnel shall be the sole responsibility of the media without calling upon the presiding judge to mediate any dispute as to the appropriate media representative or equipment authorized to cover a particular proceeding. In the absence of advance media agreement on disputed equipment or personnel issues, the presiding judge may exclude all contesting media personnel from a proceeding.

  6. In no event shall the number of personnel in the designated area exceed the number necessary to operate the designated equipment.
  7. Only television photographic and audio equipment which does not produce distracting sound or light shall be employed to cover judicial proceedings. No artificial lighting device of any kind shall be employed in connection with the television camera.
  8. Only still camera equipment which does not produce distracting sound or light shall be employed to cover judicial proceedings. No artificial lighting device of any kind shall be employed in connection with a still camera.
  9. With the concurrence of the chief judge of the court in which coverage is desired, modifications and additions may be made in light sources existing in the facility, provided such modifications or additions are installed and maintained without public expense.

    None of the film, video tape, still photographs or audio reproductions developed during or by virtue of coverage of a judicial proceeding shall be admissible as evidence (i) in the proceeding out of which it arose, (ii) in any proceeding subsequent and collateral thereto, or (iii) upon any retrial or appeal of such proceedings.

    All electronic media and still photography coverage of public judicial proceedings authorized by this section, with the exception of electronic or photographic means authorized for the perpetuation of the record or parts thereof shall be conducted at no cost to the Commonwealth.

    (Code 1950, § 19.1-246; 1960, c. 366; 1971, Ex. Sess., c. 28; 1975, c. 495; 1978, c. 477; 1987, c. 580; 1989, c. 582; 1990, c. 243; 1992, c. 557.)

Location of Equipment and Personnel.

Official Representatives of the Media.

Equipment and Personnel.

Impermissible Use of Media Material.

Cross references. - As to exclusion of witnesses in civil cases, see § 8.01-375 .

Law review. - For survey of Virginia statutory changes in substantive criminal law for the year 1970-1971, see 57 Va. L. Rev. 1467 (1971). For survey of Virginia law on criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For comment on the fair trial-free press controversy, see 11 U. Rich. L. Rev. 177 (1976). For survey of Virginia law on evidence for the year 1977-1978, see 64 Va. L. Rev. 1451 (1978). For note on public access to criminal trials, see 15 U. Rich. L. Rev. 741 (1981). For comment on the prejudicial effects of cameras in the courtroom, see 16 U. Rich. L. Rev. 867 (1982). For 1987 survey of Virginia criminal procedure, see 21 U. Rich. L. Rev. 727 (1987).

For article, "Cameras in Virginia Courtrooms," see 26 U. Rich. L. Rev. 921 (1992).

For article, "Dancing in the Courthouse": The First Amendment Right of Access Opens a New Round, see 29 U. Rich. L. Rev. 237 (1995).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 38; 19 M.J. Trial, §§ 1, 3; 20 M.J. Witnesses, § 35.

CASE NOTES

Constitutionality. - This section, permitting the closure by the court of a criminal trial to the public and press, upon the unobjected-to request of the defendant, without requiring the court to make specific findings as to whether alternative solutions would have met the need to ensure fairness and without the specific finding of an overriding interest, violates the right of the public and press to attend criminal trials implicit in the guarantees of the First Amendment. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980).

This section, if properly applied in the context of a pretrial suppression hearing, is constitutional. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Neither this section nor Rule 1:14 violates the equal protection clause of the Constitution of the United States. Diehl v. Commonwealth, 9 Va. App. 191, 385 S.E.2d 228 (1989).

This section merely restates certain inherent powers of a trial court. A court must have the power and authority to remove persons from the courtroom who are causing a disturbance or are otherwise disrupting the orderly conduct of a trial, and a judge is vested with such discretion absent the provisions of this section. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Section applies primarily to spectators. - Although the word "persons" may include witnesses, the court has read this section to apply primarily to spectators. Johnson v. Commonwealth, 217 Va. 682 , 232 S.E.2d 741 (1977), decided under this section and former § 8-211.1 before the enactment of Title 8.01. See § 8.01-375 and the note thereto.

A "public trial" is a trial which is not limited or restricted to any particular class of the community, but is open to the observation of all. Cumbee v. Commonwealth, 219 Va. 1132 , 254 S.E.2d 112 (1979).

Classes of excludable persons not particularized. - The Supreme Court has not particularized those classes of persons who may properly be excluded without impairing the nature of a public trial either from a constitutional standpoint or under this section. Cumbee v. Commonwealth, 219 Va. 1132 , 254 S.E.2d 112 (1979).

Much must be left to the discretion of the court in excluding from the courtroom extraneous influences on the trial of a criminal case. Doyle v. Commonwealth, 100 Va. 808 , 40 S.E. 925 (1902).

Limits of judge's discretion. - In exercising his discretion under this section, the trial judge must not act arbitrarily nor violate or abridge guaranteed constitutional rights. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

The separation of witnesses in the trial of a case is not grantable as a matter of right. It is a matter which lies within the sound discretion of the court, subject to review and reversal upon a showing of abuse of discretion or prejudice resulting therefrom. The particular facts in each case must be considered in determining whether the court abused its authority in that case. Huffman v. Commonwealth, 185 Va. 524 , 39 S.E.2d 291 (1946); Near v. Commonwealth, 202 Va. 20 , 116 S.E.2d 85 (1960), cert. denied, 365 U.S. 873, 81 S. Ct. 907, 5 L. Ed. 2d 862 (1961), , 369 U.S. 862, 82 S. Ct. 951, 8 L. Ed. 2d 19 (1962).

Neither the accused nor the Commonwealth, as a matter of right, is entitled to have the witnesses separated, as this is a matter within the sound discretion of the court, subject to review and reversal upon a showing of abuse of discretion or prejudice resulting therefrom. Yorke v. Commonwealth, 212 Va. 776 , 188 S.E.2d 77 (1972).

The better practice is to grant a motion for exclusion when it is seasonably made in good faith in the absence of some showing of a good reason for its denial. Yorke v. Commonwealth, 212 Va. 776 , 188 S.E.2d 77 (1972).

No reversal unless record discloses abuse of discretion. - As both the common law and this section give the trial court discretion in the matter, the Supreme Court will not reverse its ruling unless the record discloses an abuse of that discretion. Burford v. Commonwealth, 179 Va. 752 , 20 S.E.2d 509 (1942); Hampton v. Commonwealth, 190 Va. 531 , 58 S.E.2d 288, cert. denied, 339 U.S. 989, 70 S. Ct. 1013, 94 L. Ed. 1390 (1950), , 340 U.S. 914, 71 S. Ct. 286, 95 L. Ed. 660 (1951); Campbell v. Commonwealth, 194 Va. 825 , 75 S.E.2d 468 (1953).

No reversal where record failed to show actual prejudice. - Defendant's four capital murder convictions, and conviction for use of a firearm in the commission of murder, were not reversed, despite his contention that he was deprived of a fair trial when the trial court allowed spectators in the courtroom to wear badges displaying photographs of the victims, where the court took active steps to ensure that the jurors were not negatively influenced by the spectators, including segregating the jurors from persons in the hallways and elevators, and by excluding the victim's family members, many of whom were wearing the badges, from the front row of the gallery, and there were always some people seated in the front row between the spectators wearing the badges and the jury. Cooper v. Commonwealth, No. 0819-03-4, 2004 Va. App. LEXIS 403 (Ct. of Appeals Aug. 24, 2004).

Failure to exclude certain witnesses held not error. - Failure of the court upon motion by defendant to exclude the sheriff and one of his deputies as well as another witness was not error where the Commonwealth's case would have been complete even if the sheriff and deputy had not testified, and where the testimony of the other witness was harmless. Near v. Commonwealth, 202 Va. 20 , 116 S.E.2d 85 (1960), cert. denied, 365 U.S. 873, 81 S. Ct. 907, 5 L. Ed. 2d 862 (1961), , 369 U.S. 862, 82 S. Ct. 951, 8 L. Ed. 2d 19 (1962).

Pretrial suppression hearings should be open absent overriding interest. - Absent an overriding interest articulated in findings, pretrial suppression hearings should be open to the public. This holding is mandated by Va. Const., Art. I, § 12. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Closure of hearing justified when fair trial jeopardized. - An "overriding interest" exists to justify closure of a pretrial suppression hearing when a fair trial for the defendant is likely to be jeopardized by an open pretrial hearing. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Alternatives must be considered before closure employed. - Before closing a pretrial suppression hearing to the public, the trial court should consider whether there are alternatives available which would eliminate the likelihood of prejudice to the accused. While there are fewer alternatives available at pretrial than at trial, they should be explored before closure is employed. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Only part of hearing should be closed where possible. - When it is not possible to hold the entire pretrial suppression hearing in public, only that portion that would be prejudicial should be closed. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Right of public to be heard on closure issue. - Before a pretrial suppression hearing is closed, interested members of the public should have the right to be heard, with the assistance of counsel if desired. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Notice to public of closure motion. - For intervention to take place, the public must have notice of the closure motion. For this reason, motions to close a pretrial suppression hearing should be made in writing and filed with the court before the day of the hearing involved, and the public must be given reasonable notice that a closure hearing will be conducted. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Receipt of information in camera at closure hearing. - There is the danger that the information sought be kept from the public will be disclosed in the hearing on closure, thereby negating the purpose of closure. To protect against this, the trial court may hear or observe this information in camera in order to establish to what extent its release would be prejudicial to the defendant. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Closure of sentencing hearing. - Trial court did not abuse its discretion in denying a broadcaster's request to have a camera in the courtroom during defendant's sentencing hearing because coverage was not permitted during the trial, the "coverage allowed" guidelines were never implicated, the trial court properly considered the impact media coverage could have on a pending civil suit and the opposition of the Commonwealth and defendant, and the broadcaster conceded that there was no constitutional right to have cameras in a courtroom. Va. Broad. Corp. v. Commonwealth, 286 Va. 239 , 749 S.E.2d 313, 2013 Va. LEXIS 133 (2013).

Burden at closure hearing. - At the hearing on closure of a pretrial suppression hearing, the burden will be on the moving party to show that an open hearing would jeopardize the defendant's right to a fair trial. The intervenors, however, shall have the burden of showing that reasonable alternatives to closure are available. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Cameras were allowed in the courtroom since the record failed to demonstrate good cause; the only evidence presented by defendant was the testimony of one experienced trial attorney who opined that permitting cameras in court to document the proceedings may have an adverse effect upon the interest of a defendant, and he offered no proof to support his opinion. Diehl v. Commonwealth, 9 Va. App. 191, 385 S.E.2d 228 (1989).

Defendant's constitutional right to a public trial was abridged where at the beginning of his incest case and before the first witness, the prosecutor moved to remove spectators at least while the victim was testifying, and in granting the motion, the trial court stated that the courtroom was to be cleared in view of the type of case, and thereafter and for the remainder of the trial, all persons except the actual participants in the proceedings were barred from the courtroom. Cumbee v. Commonwealth, 219 Va. 1132 , 254 S.E.2d 112 (1979).

For a case involving former D.R. 7-107, Trial Publicity (see now Rule 3.6 of the Rules of Professional Conduct), see Hirschkop v. Virginia State Bar, 421 F. Supp. 1137 (E.D. Va. 1976), aff'd in part and rev'd in part, 594 F.2d 356 (4th Cir. 1979).

Applied in Brown v. City of Danville, 44 Va. App. 586, 606 S.E.2d 523, 2004 Va. App. LEXIS 627 (2004).

§ 19.2-266.1. Conviction of lesser offense on indictment for homicide.

In any trial upon an indictment charging homicide, the jury or the court may find the accused not guilty of the specific offense charged in the indictment, but guilty of any degree of homicide supported by the evidence for which a lesser punishment is provided by law.

(1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 11, 62, 70.

CASE NOTES

Either party may request lesser-included offense instruction. - This section does not limit the offering of lesser-included instructions to the accused; the Commonwealth may request an instruction on a lesser-included offense, and the trial court may grant such instruction, over the objection of the defense, as long as the evidence supports such an instruction. Craig v. Commonwealth, 34 Va. App. 155, 538 S.E.2d 355, 2000 Va. App. LEXIS 837 (2000).

§ 19.2-266.2. Defense objections to be raised before trial; hearing; bill of particulars.

  1. Defense motions or objections seeking (i) suppression of evidence on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia proscribing illegal searches and seizures and protecting rights against self-incrimination; (ii) dismissal of a warrant, information, or indictment or any count or charge thereof on the ground that: (a) the defendant would be deprived of a speedy trial in violation of the provisions of the Sixth Amendment to the Constitution of the United States, Article I, Section 8 of the Constitution of Virginia, or § 19.2-243 ; or (b) the defendant would be twice placed in jeopardy in violation of the provisions of the Fifth Amendment to the Constitution of the United States or Article I, Section 8 of the Constitution of Virginia; or (iii) dismissal of a warrant, information, or indictment or any count or charge thereof on the ground that a statute upon which it was based is unconstitutional shall be raised by motion or objection.
  2. Such a motion or objection in a proceeding in circuit court shall be raised in writing, before trial. The motions or objections shall be filed and notice given to opposing counsel not later than seven days before trial in circuit court or, if made under clause (ii) of subsection A, at such time prior to trial in circuit court as the grounds for the motion or objection shall arise, whichever occurs last. A hearing on all such motions or objections shall be held not later than three days prior to trial in circuit court, unless such period is waived by the accused, as set by the trial judge. The circuit court may, however, for good cause shown and in the interest of justice, permit the motions or objections to be raised at a later time.
  3. To assist the defense in filing such motions or objections in a timely manner, the circuit court shall, upon motion of the defendant, direct the Commonwealth to file a bill of particulars pursuant to § 19.2-230 . The circuit court shall fix the time within which such bill of particulars is to be filed. Upon further motion of the defendant, the circuit court may, upon a showing of good cause, direct the Commonwealth to supplement its bill of particulars. The attorney for the Commonwealth shall certify that the matters stated in the bill of particulars are true and accurate to the best of his knowledge and belief.
  4. In a criminal proceeding in district court, any motion or objection as described in subsection A may be raised prior to or at such proceeding. In the event such a motion or objection is raised, the district court shall, upon motion of the Commonwealth grant a continuance for good cause shown.

    (1987, c. 710; 2005, cc. 622, 694; 2006, cc. 578, 862.)

Editor's note. - The section above was recodified at the direction of the Virginia Code Commission. It was formerly codified at § 19.2-399 .

The 2005 amendments. - The 2005 amendments by cc. 622 and 694 are identical, and in the first paragraph, inserted present clause (ii) and redesignated former clause (ii) as present clause (iii), and inserted "or, if made under clause (ii), at such time prior to trial as the grounds for the motion or objection shall arise, whichever occurs last" at the end of the second sentence; and made minor stylistic changes.

The 2006 amendments. - The 2006 amendments by cc. 578 and 862 are nearly identical, and divided the former first paragraph into present subsections A and B by adding "Such a motion or objection in a proceeding in circuit court shall be raised" preceding "in writing, before trial" near the end of the former first sentence; in present subsection B, inserted "in circuit court" in three places, "of subsection A," and "circuit" preceding "court"; redesignated the former last paragraph as present subsection C and in subsection C, substituted "circuit court" for "trial court" in three places; and added subsection D.

Law review. - For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

Research References. - Virginia Forms (Matthew Bender). No. 9-1604. Answer of Bill of Particulars by Commonwealth. No. 9-1803. Motion to Dismiss--Unconstitutional Statute. No. 9-2101. Motion to Suppress--Illegal Warrantless Search, et seq. No. 9-2234. Motion to Bar Expert Testimony. No. 9-2235. Motion for Pre-Trial Taint Hearing (Witness Testimony).

Michie's Jurisprudence. - For related discussion, see 7B M.J. Evidence, § 56.

CASE NOTES

This statute operates to require a court to order a bill of particulars only where the defendant seeks: (1) suppression of evidence as violative of search and seizure or self-incrimination protections, or (2) dismissal of an indictment on the ground that the statute on which it was based is unconstitutional; where a defendant does not allege any grounds to bring this section into play and makes constitutional claims that relate only to the non-specificity of the indictment, this section does not require the court to order a bill of particulars. Sims v. Commonwealth, 28 Va. App. 611, 507 S.E.2d 648 (1998).

Waiver of written motion requirement found. - Trial judge's decision to rule on the substantive merits of defendant's objection at trial to admission of hospital bed statement effectively waived the requirement that a written motion be made in advance. Accordingly, defendant's objection to admission of his statement may be considered on appeal. Wheaton v. Commonwealth, No. 1409-95-2 (Ct. of Appeals Apr. 22, 1997).

Defendant failed to comply with the requirements of both the statute and Va. Sup. Ct. R. 3A:9 because defendant did not seek dismissal of the charges against him with his objection; defendant's written objection did not fulfill the requirements of the statute and the rule because when he made the motion he was not seeking dismissal of the charges, but rather, the purpose of the objection was simply to ensure that the time period was not tolled for speedy trial purposes. Bass v. Commonwealth, 70 Va. App. 522, 829 S.E.2d 554, 2019 Va. App. LEXIS 156 (2019).

Failure to raise objections before trial. - Trial court did not err in refusing to consider defendant's untimely motion to suppress, because defendant neither complied with pretrial filing requirements of this section, nor made any showing as to what "good cause" existed for his not having motion timely heard pretrial, or why "in the interest of justice" it was necessary to hear his motion at trial. Graves v. Commonwealth, No. 1316-98-3 (Ct. of Appeals June 29, 1999).

Defendant's argument that the statute he was prosecuted under was unconstitutional was not properly presented to the trial court in the manner prescribed by statute, and, as a result, the argument was not preserved for appeal. Johnson v. Commonwealth, 37 Va. App. 634, 561 S.E.2d 1, 2002 Va. App. LEXIS 160 (2002).

In defendant's possession of a firearm conviction, the trial court did not err in admitting defendant's statements to police that he picked up the firearm in an alley, as defendant's failure to file a motion to suppress did not meet the notice requirements of § 19.2-266.2 and therefore, defendant waived the argument on appeal. Greene v. Commonwealth, No. 3343-01-2, 2002 Va. App. LEXIS 717 (Ct. of Appeals Dec. 3, 2002).

Inmate was not entitled to habeas corpus relief on his claim that his rights under the Fifth and Sixth Amendments were violated when the Commonwealth was permitted to introduce during sentencing a tape recording between the inmate and an informant during which the inmate confessed to the bank robbery and murder because the inmate waived any such objection by failing to file a timely pretrial suppression motion. Schmitt v. True, 387 F. Supp. 2d 622, 2005 U.S. Dist. LEXIS 20335 (E.D. Va. 2005).

Appellate court declined to address the merits of defendant's claim that the trial court erred in refusing to suppress the cocaine discovered on defendant's person during a search, because § 19.2-266.2 provided the trial court with "a freestanding basis" for denying defendant's motion and defendant did not argue that defendant was misled by the Commonwealth or its witnesses or otherwise prevented by the Commonwealth from discovering relevant facts. Womack v. Commonwealth,, 2009 Va. App. LEXIS 257 (June 9, 2009).

Because defendant's written motion failed to refer to Miranda or to allege an improper custodial statement, the trial court correctly ruled that this section would not allow defendant to make such an argument in the actual suppression hearing. Gregory v. Commonwealth, 64 Va. App. 87, 764 S.E.2d 732, 2014 Va. App. LEXIS 385 (Nov. 25, 2014).

Because defendant did not comply with this section's requirement to file a written motion raising his constitutional objection at least seven days before the trial, he failed to preserve his arguments for appeal. Meadows v. Commonwealth,, 2015 Va. App. LEXIS 111 (Apr. 7, 2015).

Objection must be raised in writing before trial. - Because the plain language of § 19.2-266.2 requires without exception that defense motions or objections seeking dismissal of an indictment on the ground that the defendant would be twice placed in jeopardy in violation of the provisions of the Fifth Amendment to the Constitution of the United States or Va. Const., Art. I, § 8, be raised in writing before trial, a defendant must raise such an objection in writing before trial to preserve his or her objection, even if the trial court may be incapable of ruling on the motion until after the defendant is convicted and sentenced. Williams v. Commonwealth, 57 Va. App. 750, 706 S.E.2d 530, 2011 Va. App. LEXIS 96 (2011).

Defendant waived his objection that double jeopardy barred his multiple convictions for violations of § 20-61 because defendant failed to raise his double jeopardy objection in writing before trial, as required by § 19.2-266.2 ; defendant did not argue that the good cause or ends of justice exception to § 19.2-266.2 had to be invoked. Williams v. Commonwealth, 57 Va. App. 750, 706 S.E.2d 530, 2011 Va. App. LEXIS 96 (2011).

Failure to file motion to suppress waived constitutional challenge. - Defendant waived his claim that evidence introduced in his trial was unconstitutionally seized because he failed to file a pretrial motion to suppress the evidence; further, defendant failed to object to the admissibility of the evidence at trial, and thus his claim was unpreserved for appeal pursuant to Va. Sup. Ct. R. 5A:18. Arrington v. Commonwealth, 53 Va. App. 635, 674 S.E.2d 554, 2009 Va. App. LEXIS 146 (2009).

Because defendant failed to timely file his motion to dismiss based on his constitutional and statutory right to a speedy trial, or prove good cause for such failure, he waived his right to argue on appeal that his speedy trial right was violated; defendant did not move for dismissal of the charges against him based on the violation of speedy trial until after his trial was completed and he had been found guilty. Bass v. Commonwealth, 70 Va. App. 522, 829 S.E.2d 554, 2019 Va. App. LEXIS 156 (2019).

Failure to give prior notice of constitutional challenge. - In a charge of DUI as a second offense, the trial court properly refused to consider defendant's constitutional challenge to the local code section relating to the prior DUI, Newport News, Va., City Code § 26-72, because defendant failed to give notice of his intent to challenge the local code section's constitutionality as required by § 19.2-266.2 , and failed to show good cause for that failure. Artis v. Commonwealth,, 2008 Va. App. LEXIS 502 (Nov. 12, 2008).

Failure to raise argument until closing argument. - Defendant's failure to comply with the statutory requirements of § 19.2-266.2 barred his raising an issue as to his consent to a search of his car and motel room on appeal; defendant filed no pretrial motions contesting the validity of his consent, made no objection during the Commonwealth's case to the admissibility of the drugs or the search of the car or the motel room, made a motion to strike only based on the sufficiency of the evidence on a conspiracy charge, and did not raise the consent issue until closing argument. Wilson v. Commonwealth, No. 0433-02-2, 2002 Va. App. LEXIS 735 (Ct. of Appeals Dec. 10, 2002).

Reliability of informant. - Any lack of detail in the informant's stated basis of knowledge as to defendant's predicted criminal activity was compensated for by the informant's history of reliability, where the informant had a record of providing reliable information to the police for almost two years and leading to the arrest of more than 50 people and informed the police that he was watching defendant bring heroin to the subject of a search warrant; thus, defendant was not entitled to have the evidence suppressed. Beuns v. Commonwealth,, 2008 Va. App. LEXIS 206 (Apr. 29, 2008).

Although a search warrant was facially valid, given the informant's motive to lie and the absence of evidence corroborating his allegations or establishing his reliability in some other way, probable cause was lacking; therefore, defendant's motion to suppress was properly granted. Commonwealth v. Thomas,, 2011 Va. App. LEXIS 267 (Aug. 16, 2011).

Motions to suppress evidence. - Trial court did not err in denying defendant's motions to suppress evidence regarding the detention of defendant or the single-photograph identification of defendant, as the detention of defendant in a nearby park a short time after a woman was attacked was justified and the identification of defendant after the woman was attacked and a witness observed defendant at the scene of the attack was not unduly suggestive. Blevins v. Commonwealth, 40 Va. App. 412, 579 S.E.2d 658, 2003 Va. App. LEXIS 254 (2003).

Where defendant was charged with possession of heroin and cocaine with intent to distribute, both seized from his person during a warrantless arrest, the trial court refused to hear his untimely motion to suppress pursuant to § 19.2-266.2 ; because defendant failed to request a pretrial hearing on his motion to suppress as required by § 19.2-266.2 , he waived his right to challenge his arrest on appeal. Moody v. Commonwealth, No. 3183-02-1, 2003 Va. App. LEXIS 624 (Ct. of Appeals Dec. 9, 2003).

Where defendant wishes to file a motion to suppression evidence after the statutory deadline, if the argument is not presented to the trial court in the manner set forth in § 19.2-266.2 , then defendant has not preserved it for appeal. Moody v. Commonwealth, No. 3183-02-1, 2003 Va. App. LEXIS 624 (Ct. of Appeals Dec. 9, 2003).

Denial of defendant's motion to suppress was upheld since defendant, a juvenile, was not in custody when the associate principal questioned him because the associate principal was not a law-enforcement officer or state officer acting in that capacity, thus, Miranda warning was not required; in addition, the associate principal did not threaten defendant with disciplinary action if he remained silent or refused to cooperate indicating the statement was voluntarily made. J.D. v. Commonwealth, 42 Va. App. 329, 591 S.E.2d 721, 2004 Va. App. LEXIS 31 (2004).

Trial court erred in granting defendant's motion to suppress evidence seized in an investigatory stop and consent to search, as the police officer who stopped defendant's car had observed an air freshener hanging from the rear view mirror and determined that it was so big as to constitute a possible obstruction to the driver's view, which was a violation of § 46.2-1054 ; pursuant to a review of the officer's investigatory stop, the trial court should have merely determined whether the officer, under the totality of the circumstances, had a reasonable and articulable belief that the freshener could have constituted a violation of § 46.2-1054 , not whether it in fact was such an obstruction, as that was an inquiry for the trial court or jury. Commonwealth v. Bryant, No. 0076-04-1, 2004 Va. App. LEXIS 283 (Ct. of Appeals June 15, 2004).

Trial court erred in denying defendant's motion to suppress evidence, as the police did not have probable cause to arrest defendant and, thus, their search of him that revealed a toy gun in his pocket also was not supported by the necessary probable cause; accordingly, his subsequent confessions at the police station to two burglaries should have been suppressed. Hardin v. Commonwealth, No. 0690-03-1, 2004 Va. App. LEXIS 319 (Ct. of Appeals July 6, 2004).

Although a state trooper told defendant that defendant was not under arrest, defendant's hands were in handcuffs and defendant was placed in a locked patrol car; therefore, because the trooper was required to give Miranda warnings before questioning defendant, the trial court erred in denying defendant's motion to suppress. Dixon v. Commonwealth, 270 Va. 34 , 613 S.E.2d 398, 2005 Va. LEXIS 54 (2005).

Because an informant's identification, coupled with the police officers' corroboration, provided probable cause to approach a vehicle, and because cocaine was in plain view on defendant's lap in the passenger seat, there was probable cause to arrest defendant for possession of cocaine; therefore, the trial court properly denied defendant's motion to suppress. Turner v. Commonwealth,, 2006 Va. App. LEXIS 314 (July 18, 2006).

Because defendant's foot was partially outside of defendant's right shoe, the shoelaces were untied, and there was a bulge under defendant's foot that prevented the foot from completely fitting the shoe, a police officer's belief that defendant possessed a weapon in the shoe was reasonable and did not violate the Fourth Amendment; therefore, the trial court properly denied defendant's motion to suppress. Ford v. Commonwealth,, 2006 Va. App. LEXIS 316 (July 18, 2006).

Because defendant's post-entry assaults on police officers were outside the scope of the exclusionary rule, and because police officers had probable cause under § 19.2-81 to make a warrantless arrest for public intoxication, the Fourth Amendment was irrelevant; since defendant had no right to resist the arrest, defendant's motion to suppress was properly denied and defendant was properly convicted of assault and battery on a police officer and obstruction of justice. Messier v. Commonwealth,, 2007 Va. App. LEXIS 201 (May 15, 2007).

Although a police officer lawfully stopped a truck in which defendant was a passenger, the police officer had no reasonable belief that defendant was involved in criminal activity; therefore, because there was conflicting evidence as to whether defendant consented to a search of defendant's person, the trial court properly granted defendant's suppression motion. Commonwealth v. Swift,, 2008 Va. App. LEXIS 457 (Oct. 14, 2008).

Because a police officer, responding to a "shots-fired" call, had reasonable cause to stop a vehicle in which defendant was a passenger that made a wide turn, and based on the officer's knowledge of defendant's history with guns and defendant's bending movements as the vehicle passed the officer, the trial court erred in granting defendant's motion to suppress. Commonwealth v. Calloway,, 2009 Va. App. LEXIS 343 (Aug. 4, 2009).

Because the police possessed reasonable suspicion to suspect that defendant was wanted by the police when they detained defendant, they were justified in stopping defendant's vehicle and detaining defendant to confirm defendant's identity; consequently, the trial court did not err in denying defendant's motion to suppress evidence found during a subsequent search. Sidney v. Commonwealth,, 2009 Va. App. LEXIS 600 (Aug. 19, 2009).

While the trial court properly found that the information possessed by a police officer was sufficient for probable cause to arrest, it erred in holding that a formal arrest had to precede the search of defendant's person; accordingly, the trial court erred in granting defendant's motion to suppress. Commonwealth v. Turner,, 2011 Va. App. LEXIS 87 (Mar. 8, 2011).

Because the stop of defendant's vehicle was based on suspicion that defendant possessed drugs, a 15-minute detention to check defendant's license and registration and obtain a dog to sniff the vehicle did not violate the Fourth Amendment; therefore, defendant's motion to suppress was properly denied. Mitchell v. Commonwealth,, 2011 Va. App. LEXIS 287 (Sept. 27, 2011).

Defendant's due process rights were not violated and the trial court did not err by denying defendant's motion to suppress the victim's identification of defendant from a photo array because a police officer's statement that the suspect was in the array did not make it impermissibly suggestive, and defendant's elongated photo did not create a very substantial likelihood of irreparable misidentification. Smith v. Commonwealth, 61 Va. App. 112, 733 S.E.2d 683, 2012 Va. App. LEXIS 348 (2012).

Trial court correctly denied defendant's motion to suppress because a deputy's stop of defendant's vehicle was based on a reasonable, articulable suspicion that the vehicle had defective brake lights, in violation of §§ 46.2-1002 and 46.2-1003 . Otey v. Commonwealth, 61 Va. App. 346, 735 S.E.2d 255, 2012 Va. App. LEXIS 421 (2012).

Trial court properly denied defendant's motion to suppress statements he made to a police officer because the officer was not required to issue Miranda warnings before inquiring about the location of a gun since any detention of defendant was incidental to the officer's investigation; because there was no restraint on defendant's freedom of movement, defendant was not in custody for purposes of Miranda when he made his initial statements to the officer. Nichols v. Commonwealth, No. 0304-17-1, 2018 Va. App. LEXIS 75 (Mar. 20, 2018).

Trial court did not err in denying defendant's request to have his suppression motion and the trial heard on the same day; although a defendant may waive the three-day period, the ultimate authority for setting the pre-trial hearing rests with the trial judge, and nothing in the statute grants a defendant the right to have a suppression hearing take place on the same day as the trial. Nichols v. Commonwealth, No. 0304-17-1, 2018 Va. App. LEXIS 75 (Mar. 20, 2018).

Record, viewed under the appropriate legal standard, established that inculpatory evidence was discovered pursuant to a search warrant. Defendant did not rebut the presumption of validity of the warrant, and the circuit court erred by granting defendant's motion to suppress the evidence obtained pursuant to the search warrant. Commonwealth v. Smith, No. 1840-17-2, 2018 Va. App. LEXIS 115 (May 1, 2018).

Lawfulness of arrest. - Trial court erred when it held that defendant had been required to challenge the lawfulness of his arrest prior to trial pursuant to § 19.2-266.2 . Defendant's implied consent under this statute was predicated upon a lawful arrest. Green v. Commonwealth, 856 S.E.2d 587, 2021 Va. LEXIS 36 (Apr. 15, 2021).

Motion not timely. - In failing to comply with § 19.2-266.2 , defendant waived the opportunity to pursue defendant's constitutional claim. Accordingly, there was no abuse of discretion in the denial of defendant's motion to suppress on the ground that the motion was not timely filed. Cooke v. Commonwealth,, 2008 Va. App. LEXIS 208 (Apr. 29, 2008).

"Good cause" for failure to raise issue prior to trial not found. - Defendant failed to establish that defendant had "good cause" for the failure to argue, before trial, a motion to suppress based on failure to be informed of defendant's Miranda rights, where defendant, as the person to whom the rights were read and of whom questions were asked, was in the best position to know whether to raise such an issue in a motion to suppress. Naar v. Commonwealth,, 2009 Va. App. LEXIS 166 (Apr. 14, 2009).

Record did not establish good cause for defendant's failure to make a timely pre-trial challenge to the constitutionality of § 40.1-103 ; fact that a portion of the statute had already been declared unconstitutionally vague was information to which defendant had access between his indictment in late 2018 and his trial in mid-2019, plus defendant could have asked for a bill of particulars, then lodged his vagueness challenge prior to trial rather than waiting until after conviction. Mollenhauer v. Commonwealth, No. 0826-20-2, 2021 Va. App. LEXIS 109 (July 6, 2021).

Motion to suppress defendant's statement properly denied. - Because defendant's statement was given in a noncustodial setting, Miranda warnings were administered to him out of an abundance of caution, and law enforcement did not apply any coercive tactics or take advantage of defendant's disability in order to obtain a statement, said statement was properly admitted. Smith v. Commonwealth,, 2008 Va. App. LEXIS 27 (Jan. 15, 2008).

Trial court's judgment denying motion to suppress affirmed on other grounds. - Police had probable cause to arrest defendant after a person told them defendant tried to sell property that was reported stolen, and although the appellate court found that the trial court's reason for denying defendant's motion to suppress evidence was erroneous, it affirmed the trial court's judgment because police could have arrested defendant and conducted a search incident to arrest. Williams v. Commonwealth, No. 2854-01-1, 2003 Va. App. LEXIS 294 (Ct. of Appeals May 13, 2003).

Trial court erred in denying defendant's motion to suppress since the pat-down search of defendant exceeded the reasonable measures needed to assure officer safety; none of the four police officers who responded to a report that a group of black males were smoking marijuana at a street corner had a reasonable belief that defendant, a member of the group, was armed and dangerous, and, thus, the resulting pat-down search of him after an officer found a gun on another member of the group was not justified. El-Amin v. Commonwealth, No. 1472-02-2, 2003 Va. App. LEXIS 315 (Ct. of Appeals May 27, 2003).

Commonwealth's right to appeal from the suppression of evidence. - Procedure set forth in § 19.2-266.2 for suppression motions is directly related to the provisions of § 19.2-398 , the Commonwealth's right to appeal evidence excluded as a result of a suppression hearing; the Commonwealth would be prejudiced by allowing a defendant to disregard, without good cause, the dictates of § 19.2-266.2 . Wilson v. Commonwealth, No. 0433-02-2, 2002 Va. App. LEXIS 735 (Ct. of Appeals Dec. 10, 2002).

Counsel's strategic decision not ineffective although cause of habeas procedural default. - Federal district court properly denied a state death row inmate's habeas corpus petition because defense counsel were not ineffective under the Sixth Amendment for failing to move to suppress a taped conversation between the inmate and a Commonwealth witness, which contained both incriminating statements and statements that supported the inmate's claim that he fatally shot a security guard unintentionally, at least seven days before trial as required by § 19.2-266.2 ; although the claim was procedurally defaulted under state law because defense counsel did not comply with § 19.2-266.2 and could not, therefore, be reviewed by the federal habeas court, the default was the result of counsels' strategic, albeit unsuccessful, gamble that the Commonwealth would move to admit the tape during the guilt phase of trial, rather than wait until the penalty phase, which is what occurred. Schmitt v. Kelly,, 2006 U.S. App. LEXIS 17658 (4th Cir. July 13, 2006).

Failure to raise double jeopardy issue. - Court of appeals declined to address defendant's claim that § 19.2-266.2 did not bar his double jeopardy argument due to the Commonwealth's failure to raise the lack of compliance with § 19.2-266.2 before the trial court because defendant provided no principles of law or authority to support his argument that the Commonwealth's failure barred it from relying on § 19.2-266.2 on appeal. Williams v. Commonwealth, 57 Va. App. 750, 706 S.E.2d 530, 2011 Va. App. LEXIS 96 (2011).

Double jeopardy argument preserved. - Because defendant articulated his double jeopardy argument to the trial court during his motion to strike, because there was no objection from the Commonwealth, and because the trial court addressed the double jeopardy argument and rejected it, defendant sufficiently preserved his argument for consideration on appeal. Guerrant v. Commonwealth, No. 1446-18-3, 2020 Va. App. LEXIS 39 (Feb. 11, 2020).

Applied in Upchurch v. Commonwealth, 31 Va. App. 48, 521 S.E.2d 290 (1999); Schmitt v. Commonwealth, 262 Va. 127 , 547 S.E.2d 186, 2001 Va. LEXIS 85 (2001); Morrison v. Commonwealth, 37 Va. App. 273, 557 S.E.2d 724, 2002 Va. App. LEXIS 1 (2002); Brooks v. Commonwealth, 49 Va. App. 155, 638 S.E.2d 131, 2006 Va. App. LEXIS 574 (2006); McGhee v. Commonwealth, 280 Va. 620 , 701 S.E.2d 58, 2010 Va. LEXIS 260 (2010).

CIRCUIT COURT OPINIONS

Commonwealth not required to identify components of aggravating factor. - Where the Commonwealth intended to prove "vileness" as an aggravating factor in support of the death penalty, it was not required to identify the components of the vileness factor on which it intended to offer evidence because the indictment, the discovery responses, and defendant's opportunity to hear the evidence presented at the preliminary hearing adequately informed him of the charged offense. Commonwealth v. Waddler, 65 Va. Cir. 418, 2004 Va. Cir. LEXIS 296 (Portsmouth 2004).

Inevitable discovery. - Because a police officer's initial confrontation with defendant was a proper Fourth Amendment Terry stop and the contraband in defendant's pocket would have inevitably been discovered as the result of a search incident to arrest, defendant's motion to suppress was denied. Commonwealth v. Webster, 68 Va. Cir. 430, 2005 Va. Cir. LEXIS 249 (Roanoke County Aug. 25, 2005).

Miranda warnings not given. - Because defendants were handcuffed for over an hour and not free to leave in spite of a statement by the police to the contrary, they were entitled to Miranda warnings about their right to remain silent and the right to counsel; because the warnings were not given, defendants' motions to suppress were granted. Commonwealth v. Hughes, 69 Va. Cir. 482, 2006 Va. Cir. LEXIS 85 (Martinsville 2006).

Motion for bill of particulars granted. - Defendant filed a motion for a bill of particulars under subsection C of § 19.2-266.2 , seeking information about searches or seizures that might have affected his rights under U.S. Const., Amend. IV; and statements he allegedly made that might affect his rights under U.S. Const., Amends. V and VI. He was entitled to this information because it related to his rights against self-incrimination and illegal searches and seizures, which were specifically referred to in subsection A of § 19.2-266.2 . Commonwealth v. Kuhne, 80 Va. Cir. 299, 2010 Va. Cir. LEXIS 49 (Fairfax County Apr. 22, 2010).

Motion for bill of particulars denied. - Defendant filed a motion for a bill of particulars under subsection C of § 19.2-266.2 , seeking information regarding hearsay statements the prosecution might seek to introduce that might implicate his right of confrontation, and statements allegedly made at any identification procedure that might affect his rights under U.S. Const., Amends. V and VI. As the right to confrontation was not listed in subsection A of § 19.2-266.2 , and as his U.S. Const., Amend V rights were not implicated by the identification procedures, he was not entitled to the requested information. Commonwealth v. Kuhne, 80 Va. Cir. 299, 2010 Va. Cir. LEXIS 49 (Fairfax County Apr. 22, 2010).

Motions to suppress evidence. - In a matter arising out of a dog bite incident giving rise to a dangerous dog proceeding, defendant's motion to suppress was denied because, based on a plain meaning textual analysis, the character of the penalties in a dangerous dog proceeding, and an understanding of the underlying purposes of the exclusionary rule, the dangerous dog proceeding should be treated as a civil proceeding, which thus barred application of the exclusionary rule to the dangerous dog proceeding. Commonwealth v. Shafer, 91 Va. Cir. 234, 2015 Va. Cir. LEXIS 160 (Fairfax County Sept. 28, 2015).

OPINIONS OF THE ATTORNEY GENERAL

Applicability in district courts. - This section applies only to proceedings in circuit courts and not to proceedings in district courts. See opinion of Attorney General to Delegate Robert Hurt, 05-016 (5/17/05).

§ 19.2-266.3. Continuances; appearances of parties.

When the court grants a continuance in advance of the date of a scheduled trial or hearing, if the defendant acknowledges in writing, on a form provided by the Office of the Executive Secretary of the Supreme Court, that he promises to appear in court on the date and time of the newly scheduled trial or hearing, the court shall not require counsel or the defendant to appear on the date when the trial or hearing was originally scheduled. However, if the defendant is in violation of the terms of his pretrial release or has failed to appear at any court proceeding, the court may require the defendant to appear on the date when the trial or hearing was originally scheduled as a condition of any continuance granted.

(2013, c. 154.)

Research References. - Virginia Forms (Matthew Bender). No. 9-2203.1. Motion to Waive Court Appearance.

§ 19.2-266.4. Expert assistance for indigent defendants.

  1. In any case in which a defendant is (i) charged with a felony offense or a Class 1 misdemeanor and (ii) determined to be indigent by the court pursuant to § 19.2-159 , the defendant or his attorney may, upon notice to the Commonwealth, move the circuit court to designate another judge in the same circuit to hear an ex parte request for appointment of a qualified expert to assist in the preparation of the defendant's defense. No ex parte proceeding, communication, or request may be considered pursuant to this section unless the defendant or his attorney states under oath or in a sworn declaration that a need for confidentiality exists. A risk that trial strategy may be disclosed unless the hearing is ex parte shall be sufficient grounds to establish a need for confidentiality.
  2. Upon receiving the defendant's or his attorney's declaration of need for confidentiality, the designated ex parte judge shall conduct an ex parte hearing on the request for authorization to obtain expert assistance. This hearing shall occur as soon as practicable. After a hearing upon the motion and upon a showing that the provision of the requested expert services would materially assist the defendant in preparing his defense and the denial of such services would result in a fundamentally unfair trial, the court shall order the appointment of a qualified expert. Any expert appointed pursuant to this subsection shall be compensated in accordance with § 19.2-332 . The designated judge shall direct requests for scientific investigations to the Department of Forensic Science or Division of Consolidated Laboratory Services whenever practicable.
  3. All ex parte hearings conducted under this section shall be initiated by written motion and shall be on the record. Except for the initial declaration of need for confidentiality, the record of the hearings, together with all papers filed and orders entered in connection with ex parte requests for expert assistance, all payment requests submitted by experts appointed, and the identity of all experts appointed, shall be kept under seal as part of the record of the case and shall not be disclosed. Following a decision on the motion, whether it is granted or denied, the motion, order or orders, and all other papers or information related to the proceedings or expert assistance sought shall remain under seal. On motion of any party, and for good cause shown, the court may unseal the foregoing records after the trial is concluded.
  4. All ex parte proceedings, communications, or requests shall be transcribed and made part of the record available for appellate review or any other post-conviction review.

    (2020, c. 1124.)

CIRCUIT COURT OPINIONS

Ex parte hearing. - Defendant was entitled to an ex parte hearing to demonstrate a particularized need for funds from the Commonwealth of Virginia to hire expert assistance when defendant was charged with rape, abduction with intent to defile, and aggravated sexual battery because the court concluded that defendant demonstrated a particularized need for confidentiality to avoid revealing defendant's trial strategy and theory of the case. The court designated another judge to hear and rule upon defendant's request, in ex parte fashion, for expert assistance.(decided under former § 19.2-264.3:1.3) Commonwealth v. Stockton, 99 Va. Cir. 281, 2018 Va. Cir. LEXIS 112 (Roanoke June 28, 2018).

Expert witness disclosure. - Defendant not required to disclose expert witness name and billable rate.(decided under former § 19.2-264.3:1.3) Commonwealth v. Chandler, 97 Va. Cir. 138, 2017 Va. Cir. LEXIS 315 (Norfolk Nov. 2, 2017).

Chapter 16. Evidence and Witnesses.

In General.

Witnesses From or for Another State.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 17. Subpoenaas and Witnesses. § 17.02 Subpoena of Witnesses. Friend. Virginia Forms (Matthew Bender). No. 9-2105. Motion for Return of Seized Property, et seq.

Article 1. In General.

§ 19.2-267. Provisions applicable to witnesses in criminal as well as civil cases; obligation to attend; summons.

Sections 8.01-396.1 , 8.01-402 , 8.01-405 , 8.01-407 , and 8.01-408 to 8.01-410 , inclusive, shall apply to a criminal as well as a civil case in all respects, except that a witness in a criminal case shall be obliged to attend, and may be proceeded against for failing to do so, although there may not previously have been any payment, or tender to him of anything for attendance, mileage, or tolls. In a criminal case a summons for a witness may be issued by the attorney for the Commonwealth or other attorney charged with the responsibility for the prosecution of a violation of any ordinance or by the attorney for the defendant; however, any attorney who issues such a summons shall, at the time of the issuance, file with the clerk of the court the names and addresses of such witnesses except to the extent protected under § 19.2-11.2 .

(Code 1950, § 19.1-262; 1960, c. 366; 1962, c. 374; 1975, c. 495; 1977, c. 624; 1991, c. 38; 1994, c. 543; 2007, c. 552; 2008, c. 124; 2014, c. 744.)

Cross references. - As to summons for witnesses in criminal cases, see also §§ 19.2-72 and 19.2-131 .

As to exclusion of witnesses in civil cases, see § 8.01-375 .

The 2007 amendments. - The 2007 amendment by c. 552 inserted "or by the attorney for the defendant" following "ordinance" in the last sentence.

The 2008 amendments. - The 2008 amendment by c. 124 substituted "8.01-405, 8.01-407 , and 8.01-408 to 8.01-410 " for "8.01-405, and 8.01-407 to 8.01-410 ."

The 2014 amendments. - The 2014 amendment by c. 744 inserted "except to the extent protected under § 19.2-11.2 ."

Law review. - For annual survey of Virginia labor and employment law, see 40 U. Rich. L. Rev. 241 (2005).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Research References. - Virginia Forms (Matthew Bender). No. 2-1414. Order Against a Witness to Show Cause Why a Fine for Contempt Should Not Be Imposed. No. 9-2233. Motion for Competency Determination of Infant Witness. No. 9-2405. Request for Witness Subpoena (Spanish).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 64.

CASE NOTES

Because such filing is a directory rather than a mandatory requirement, failure to file the names and addresses of such witnesses under this section with the clerk does not prevent the witnesses from being called to testify. Caccioppo v. Commonwealth, 20 Va. App. 534, 458 S.E.2d 592 (1995).

Where a defendant's substantive rights were not affected by the Commonwealth's failure to file the names and addresses of witnesses being summoned at the time of the issuance of the summonses, the trial court did not abuse its discretion in permitting the witnesses to testify. Abraham v. Commonwealth, 32 Va. App. 22, 526 S.E.2d 277 (2000).

Nothing in this section prohibits the witnesses summoned by the Commonwealth from testifying due to the Commonwealth's failure to file their names or addresses with the clerk; nor is there any suggestion in the statute that such a remedy was intended by the legislature. Abraham v. Commonwealth, 32 Va. App. 22, 526 S.E.2d 277 (2000).

In response to defendant's pretrial motion, the prosecutor proffered that her office had filed the returns of service for its witnesses and, thus, the names of its witnesses were available to defendant, despite defendant's suggestion that no evidence in the record supports the Commonwealth's assertion; the rule is well settled that a unilateral avowal of counsel, if unchallenged, constitutes a proper proffer. Maldonado v. Commonwealth,, 2006 Va. App. LEXIS 589 (Dec. 28, 2006).

Expert testimony admissible in criminal case. - Where a firearms expert's testimony was within her area of expertise, was not within the range of the jury's common experience, was relevant, and assisted the trier of fact in understanding the evidence, the trial court did not abuse its discretion in admitting this expert testimony under § 8.01-401.1 . McCormick v. Commonwealth, No. 3058-01-2, 2003 Va. App. LEXIS 311 (Ct. of Appeals May 20, 2003).

§ 19.2-267.1. Authority of law-enforcement officer to issue summons to witness; failure to appear.

A summons may be issued by a law-enforcement officer during the course of his immediate investigation of an alleged misdemeanor for which an arrest warrant is not required pursuant to § 19.2-81 to any person he reasonably believes was a witness to the offense. The summons shall command the person to appear and testify at the trial of any criminal charge brought against any person as the result of the offense.

A summons issued pursuant to this section shall have the same force as if issued by the court. The failure of any person so summoned to appear after receiving written notice of the date, time and place of the trial at least five days prior to the trial shall be punishable as contempt of the court in accordance with § 18.2-456 (5).

(1983, c. 224.)

§ 19.2-267.2. Response to subpoena for information stored in electronic format.

When a subpoena has been served pursuant to Rule 3A:12 of the Rules of the Supreme Court on a person who is not a party to the action requiring the production of information that is stored in an electronic format, the person shall produce a tangible copy of the information. If a tangible copy cannot be produced, the person shall permit the parties to review the information on a computer or by electronic means during normal business hours, provided that the information can be accessed and isolated. If a tangible copy cannot reasonably be produced and the information is commingled with information other than that requested in the subpoena and cannot reasonably be isolated, the person may file a motion for a protective order or motion to quash.

(2002, c. 764.)

Research References. - Virginia Forms (Matthew Bender). No. 9-1417. Motion to Inspect Computer Stored Information, et seq.

§ 19.2-268. Right of accused to testify.

In any case of felony or misdemeanor, the accused may be sworn and examined in his own behalf, and if so sworn and examined, he shall be deemed to have waived his privilege of not giving evidence against himself, and shall be subject to cross-examination as any other witness; but his failure to testify shall create no presumption against him, nor be the subject of any comment before the court or jury by the prosecuting attorney.

(Code 1950, § 19.1-264; 1960, c. 366; 1975, c. 495.)

Cross references. - As to when statement by accused as a witness is not received in evidence, see § 19.2-270 .

As to testimony of husband and wife, see § 8.01-398 and §§ 19.1-271.1 and 19.2-271.2 .

As to right to refuse to testify, see Va. Const., Art. I, § 8.

As to competency of interested party, see § 8.01-396 .

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For note on the problem of partially silent defendants, see 69 Va. L. Rev. 155 (1983).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Argument and Conduct of Counsel, §§ 9, 15; 4A M.J. Commonwealth's and State's Attorney, § 3; 5B M.J. Criminal Procedure, §§ 55, 59, 61; 7B M.J. Evidence, § 231; 20 M.J. Witnesses, §§ 5, 39, 81, 82.

CASE NOTES

I. IN GENERAL.

History of section. - See Enoch v. Commonwealth, 141 Va. 411 , 126 S.E. 222 (1925).

The object of this section was to afford the accused opportunity to testify or not, as his interest might dictate, and not to deprive him of his right to deny his guilt by plea and rest upon the legal presumption of innocence. Price v. Commonwealth, 77 Va. 393 (1883). See Blair v. Commonwealth, 166 Va. 715 , 185 S.E. 900 (1936); Elliott v. Commonwealth, 172 Va. 595 , 1 S.E.2d 273 (1939).

This section must be given a reasonable construction. Enoch v. Commonwealth, 141 Va. 411 , 126 S.E. 222 (1925).

And should be liberally construed in favor of the accused, so as to give him the fullest right to testify in his own behalf, and that this right should not be any further impaired than the language of the statute necessarily requires. Enoch v. Commonwealth, 141 Va. 411 , 126 S.E. 222 (1925).

When accused testifies he subjects himself to all the terms of this section. - This section permits the accused himself to testify, but to do so he must accept all of the terms of the section, and (1) "be deemed to have waived his privilege of not giving evidence against himself," and (2) "be subject to cross-examination as any other witness." The right to cross-examine him "as any other witness" implied the right to impeach his credibility by the same rules as those applicable to other witnesses. To discredit the witness, if there be reason to doubt his truthfulness, is one of the legitimate and leading objects of cross-examination. Smith v. Commonwealth, 136 Va. 773 , 118 S.E. 107 (1923). See Watson v. Commonwealth, 87 Va. 608 , 13 S.E. 22 (1891); Thaniel v. Commonwealth, 132 Va. 795 , 111 S.E. 259 (1922); Smith v. Commonwealth, 182 Va. 585 , 30 S.E.2d 26 (1944).

This section permits an accused to testify in his own behalf in any criminal proceeding, subject to cross-examination as any other witness. Powell v. Commonwealth, 13 Va. App. 17, 409 S.E.2d 622 (1991).

Once defendant in robbery trial testified on direct examination about his adversarial relationship with witness in an effort to discredit her testimony, Commonwealth could explore on cross examination additional matters relating to the case, even those that were beyond the scope of matters raised on direct examination. Drumgoole v. Commonwealth, 26 Va. App. 783, 497 S.E.2d 159 (1998).

And waives his rights under § 19.2-270 . - Under § 19.2-270 no statement made by a witness upon a legal examination, unless made when examined as a witness in his own behalf, can be used as evidence against him. But where, under this section, a prisoner subsequently goes on the stand as a witness in his own behalf, he thereby waives the right afforded him by § 19.2-270 , and may be cross-examined as to his statement at such examination, and the Commonwealth may contradict his testimony thus adduced. Thaniel v. Commonwealth, 132 Va. 795 , 111 S.E. 259 (1922); Smith v. Commonwealth, 136 Va. 773 , 118 S.E. 107 (1923).

But waiver must always be made understandingly and willingly. - The waiver of the privilege of the accused not to give evidence against himself must always be made understandingly and willingly, and generally after being fully warned by the court. Powell v. Commonwealth, 167 Va. 558 , 189 S.E. 433 (1937).

Whenever the accused, because of some incident in the trial and through no fault of his, is forced to testify for fear that adverse inferences might be drawn from his failure, then he has not volunteered as a witness and has not waived his rights. Such waiver only follows where liberty of choice has been fully accorded. Powell v. Commonwealth, 167 Va. 558 , 189 S.E. 433 (1937).

If it cannot be said that the accused voluntarily took the stand and testified, then it cannot be said that he intended to waive his statutory right. Blair v. Commonwealth, 166 Va. 715 , 185 S.E. 900 (1936).

As to the matter testified about by accused he waives his privilege and becomes subject to cross-examination as any other witness. Enoch v. Commonwealth, 141 Va. 411 , 126 S.E. 222 (1925).

Manifestly, an accused who takes the stand waives his right against self-incrimination in its entirety, not just selectively, and may be cross-examined on any subject related to the offenses for which he is on trial. Wells v. Commonwealth, 32 Va. App. 775, 531 S.E.2d 16, 2000 Va. App. LEXIS 498 (2000).

Testimony stricken where defendant refused to submit to cross-examination. - The trial court properly struck the defendant's testimony where, during a recess following his direct examination, he made it clear to the court that he would not resume the witness stand and submit to cross-examination, and the trial court was not required to go through a fruitless charade to demonstrate the situation. Tate, Jr. v. Commonwealth, No. 3017-97-2 (Ct. of Appeals Mar. 30, 1998).

Inferences permitted by waiver. - The waiver of the privilege against self-incrimination goes so far as to permit inferences to be drawn from prior omissions or failures or refusals to testify at a time when the privilege existed and the inference would have been prohibited. Sims v. Slayton, 333 F. Supp. 246 (W.D. Va. 1971).

Inferences from silence as to certain matters. - Where the accused takes the stand in his own behalf and voluntarily testifies for himself, he may not stop short in his testimony by omitting and failing to explain incriminating circumstances and events already in evidence, in which he participated and concerning which he is fully informed, without subjecting his silence to the inferences naturally to be drawn from it. Wells v. Commonwealth, 32 Va. App. 775, 531 S.E.2d 16, 2000 Va. App. LEXIS 498 (2000).

A court does not err in instructing a jury that it may draw inferences from the selective silence of a testifying accused and any inferences that a jury may draw are also appropriate subjects for argument by the Commonwealth. Wells v. Commonwealth, 32 Va. App. 775, 531 S.E.2d 16, 2000 Va. App. LEXIS 498 (2000).

Right of Commonwealth to comment on silence. - An accused, by taking the stand, waives not only his right against self-incrimination but also his right not to have the Commonwealth comment on his failure to testify on a particular issue or subject. Wells v. Commonwealth, 32 Va. App. 775, 531 S.E.2d 16, 2000 Va. App. LEXIS 498 (2000).

Construction of "subject to cross-examination as any other witness." - There was some doubt as to the meaning of the phrase, "subject to cross-examination as any other witness." This doubt was as to whether the accused waives his privilege of not testifying against himself and may stop any stage when a question is asked which would tend to incriminate him. This was settled by expressly declaring that if the accused be "so sworn and examined, he shall be deemed to have waived his privilege of not giving evidence against himself." Thaniel v. Commonwealth, 132 Va. 795 , 111 S.E. 259 (1922).

This section does not extend the class of cases in which the right of cross-examination was given, but simply defines the extent of the right where it already existed. If the right to cross-examination did not exist before, it has not been conferred now. Enoch v. Commonwealth, 141 Va. 411 , 126 S.E. 222 (1925).

Extent of right to cross-examine. - To guard against false testimony, the right of cross-examination was conferred. It would seem that this safeguard did not extend any further than the benefit conferred, and that if the benefit was limited the safeguard should be also. Enoch v. Commonwealth, 141 Va. 411 , 126 S.E. 222 (1925).

The statute did not attempt to confer upon the Commonwealth the right to examine the accused, but only to cross-examine him under given conditions. This right to cross-examine, however, could only exist where there had been a prior examination in chief. Enoch v. Commonwealth, 141 Va. 411 , 126 S.E. 222 (1925).

When the accused voluntarily takes the stand he loses his character as a party, becomes a mere witness, and may be examined as fully as any other witness; he may be examined and must answer concerning all matters that are relevant to the case, whether testified to on the direct examination or not. Bourne v. Commonwealth, No. 0309-02-4, 2003 Va. App. LEXIS 111 (Ct. of Appeals Mar. 4, 2003).

By taking the stand, defendant subjected himself to cross-examination about any relevant matter, including whether he was driving at the time of the accident and with whom he discussed the issue; the challenged cross-examination also affected defendant's credibility, as it was closely related to defendant's direct examination, in which defendant denied telling the victim's former girlfriend or any member of the victim's family that he had been driving. Bourne v. Commonwealth, No. 0309-02-4, 2003 Va. App. LEXIS 111 (Ct. of Appeals Mar. 4, 2003).

Cross-examination as to prior felony convictions. - The Commonwealth may ask a defendant who testifies in a criminal proceeding the number of times he has been convicted of a felony, but not the names of the felonies, other than perjury, and not the nature or details thereof. Thus, a defendant in a criminal trial who has been convicted of one or more felonies is not subject to as comprehensive cross-examination as nondefendant witnesses, notwithstanding the provisions of this section. Sadoski v. Commonwealth, 219 Va. 1069 , 254 S.E.2d 100 (1979).

Impeachment. - This right to cross-examination implies the right to impeach the credibility of the accused under the same rules applicable to any other witness. Carson v. Commonwealth, 188 Va. 398 , 49 S.E.2d 704 (1948).

Impeachment with previously suppressed statement. - A statement made by defendant which was not a confession of guilt but a statement inconsistent with the statements made by him at the trial, was admissible to impeach his credibility. Carson v. Commonwealth, 188 Va. 398 , 49 S.E.2d 704 (1948).

Statement of a witness that he fails to recollect or does not recall his former statement constitutes an adequate foundation for his impeachment, even where the statement with which the impeachment will be accomplished has been suppressed as a result of a Miranda violation. Bourne v. Commonwealth, No. 0309-02-4, 2003 Va. App. LEXIS 111 (Ct. of Appeals Mar. 4, 2003).

Statement obtained in violation of Miranda may be used to impeach a defendant's trial testimony if that testimony is inconsistent with the suppressed statement; the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances. Bourne v. Commonwealth, No. 0309-02-4, 2003 Va. App. LEXIS 111 (Ct. of Appeals Mar. 4, 2003).

Effect of accused's testimony as to collateral matter. - It could never have been intended that the accused should be deemed to have waived his constitutional right of silence before the jury because he had testified to such collateral matters as the qualification of jurors, change of venue, etc., before the judge in the absence of the jury. So far as the merits of the case are concerned, the guilt or innocence of the accused, the accused had not been sworn and examined in his own behalf "in any case of felony." Enoch v. Commonwealth, 141 Va. 411 , 126 S.E. 222 (1925).

An accused does not waive his privilege against self-incrimination by testifying before trial or, in a jury trial, outside the presence of the jury as to collateral matters, such as venue or the admissibility of a confession. Wells v. Commonwealth, 32 Va. App. 775, 531 S.E.2d 16, 2000 Va. App. LEXIS 498 (2000).

Selective suppression of incriminating facts prohibited. - The defendant may not testify freely as to events and circumstances which tend to support his defense, and selectively suppress other relevant facts and matters that tend to incriminate him. Sims v. Slayton, 333 F. Supp. 246 (W.D. Va. 1971).

Claimed error as to the judge's impartiality was not preserved for appellate review. - Defendant's claim of error as to the court's comments to her outside of the presence of the jury to compose herself, were not preserved for appellate review as she failed to object to such and failed to show how they could have had a negative impact on the jury's perception of her credibility. Cary v. Commonwealth, No. 2031-03-1, 2004 Va. App. LEXIS 623 (Ct. of Appeals Dec. 21, 2004), aff'd, 271 Va. 87 , 623 S.E.2d 906 (2006).

Applied in Powell v. Commonwealth, 261 Va. 512 , 552 S.E.2d 344, 2001 Va. LEXIS 86 (2001).

II. FAILURE TO TESTIFY.

No comment by prosecuting attorney on failure of accused to testify. - The statutes expressly provide that the failure of the accused to testify shall create no presumption against him, nor be the subject of comment by the prosecuting attorney. Price v. Commonwealth, 77 Va. 393 (1883).

The inhibition against comment upon the failure of the accused to testify contained in this section is so positive, so clear and so direct, that it is unnecessary to enter the realm of speculation to discover the intention of the lawmakers. In unambiguous language they have said it shall not be done. Elliott v. Commonwealth, 172 Va. 595 , 1 S.E.2d 273 (1939).

Provision prohibiting comment must be strictly observed. - The requirement of this section, that failure of a defendant to testify shall not be subject of comment before the court or jury must be strictly observed. Banovitch v. Commonwealth, 196 Va. 210 , 83 S.E.2d 369 (1954); Dunn v. Commonwealth, 222 Va. 750 , 284 S.E.2d 807 (1981).

When failure to testify instruction given. - A failure to testify instruction should always be given if requested by a defendant. Hines v. Commonwealth, 217 Va. 905 , 234 S.E.2d 262 (1977).

While the better practice is that a failure to testify instruction not be given over defendant's objection, there will be cases in which a cautionary instruction may be given by a court in the exercise of its sound discretion and where no prejudice will result. Hines v. Commonwealth, 217 Va. 905 , 234 S.E.2d 262 (1977).

Prosecutor's comment not prejudice per se. - While a comment by a prosecutor on the failure of the accused to testify is improper, there is no rigid rule that such a statement constitutes prejudice per se. Dunn v. Commonwealth, 222 Va. 750 , 284 S.E.2d 807 (1981).

Test as to whether prosecutor's remark prohibited. - In determining whether a remark falls within the boundary of the prohibition that a prosecutor shall not make an adverse comment before the jury on a defendant's failure to testify, the test is whether, in the circumstances of the particular case, the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. Hines v. Commonwealth, 217 Va. 905 , 234 S.E.2d 262 (1977).

The test is whether, in the circumstances of the particular case, the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. Quintana v. Commonwealth, 224 Va. 127 , 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L. Ed. 2d 501 (1983).

When prosecutor's comment harmless. - A comment by a prosecutor on the failure of the accused to testify is harmless only where the court is able to declare a belief that it was harmless beyond a reasonable doubt. Dunn v. Commonwealth, 222 Va. 750 , 284 S.E.2d 807 (1981).

As a general rule, any comment that the attorney for the Commonwealth makes referring to defendant's election not to testify is a violation of his rights against self-incrimination as guaranteed by U.S. Const., Amend. V and Va. Const., Art. I, § 8, and as explicated in this section. Johnson v. Commonwealth, 236 Va. 48 , 372 S.E.2d 134 (1988).

Prosecutorial comment may become proper under invited error doctrine. - It is generally error for the prosecutor to comment on the defendant's failure to testify. Such comment, however, may become proper under the invited error doctrine when the area has been opened to fair comment by the argument and comment of defense counsel or of a pro se defendant. Lincoln v. Commonwealth, 217 Va. 370 , 228 S.E.2d 688 (1976).

Even though a defendant does not testify, demonstrative conduct on his part in some circumstances may open the door to fair comment on his failure to testify. Lincoln v. Commonwealth, 217 Va. 370 , 228 S.E.2d 688 (1976); Johnson v. Commonwealth, 236 Va. 48 , 372 S.E.2d 134 (1988).

Prosecution's response held justified. - Defendant's counsel, in his summation, represented to the jury that the defendant did not testify because "we don't feel . . . the jury are going to convict . . . on the evidence of two convicted felons" and because "we didn't think it was necessary." By so doing, the defense invited the prosecution's response, which did not go beyond meeting the argument advanced by the defendant. In these circumstances, the response was fully justified and did not constitute error. Lincoln v. Commonwealth, 217 Va. 370 , 228 S.E.2d 688 (1976).

The prosecutor can no more comment now than he could before the statute on the failure of the accused to testify. Before the statute the accused could not testify. It is now his privilege to testify, but it is his right to stand mute. His liberty of choice must be fully accorded him, and cannot be made the subject of comment. But the restraint of the statute cannot be extended so as to prevent proper comment and emphasis upon the testimony of other witnesses simply because it could only be contradicted by the accused and he stands mute. Miller v. Commonwealth, 153 Va. 890 , 149 S.E. 459 (1929). See Blair v. Commonwealth, 166 Va. 715 , 185 S.E. 900 (1936); Powell v. Commonwealth, 167 Va. 558 , 189 S.E. 433 (1937).

But prosecutor may comment on testimony of other witnesses. - Assuming the validity of this section and construing it, certainly it does not mean that because a prosecutor may not comment upon the failure of the accused to testify, therefore he cannot allude to, rely upon and comment upon the evidence of the witnesses who have actually testified. Miller v. Commonwealth, 153 Va. 890 , 149 S.E. 459 (1929).

Section does not apply to extrajudicial statement. - The provision in this section that the failure of an accused to testify shall create no presumption against him applies to testimony in court and not to an extrajudicial statement. Thus, it does not prohibit admission of testimony that an accused remained silent in the face of an accusation. Owens v. Commonwealth, 186 Va. 689 , 43 S.E.2d 895 (1947).

Objectionable comment. - Where accused did not testify and the attorney for the Commonwealth, in his closing argument, said that accused had not denied what a witness for the Commonwealth had stated, the trial court should have declared a mistrial. Elliott v. Commonwealth, 172 Va. 595 , 1 S.E.2d 273 (1939).

Where the prosecution in a burglary trial continuously asserted that the defendant was required to explain his possession of the stolen goods, and the prosecution similarly in closing argument placed the burden on the defendant personally to deny that he had stolen the goods, the prosecution made improper reference to the defendant's failure to testify. Shipwash v. Collins, 475 F. Supp. 1000 (W.D. Va. 1979).

Unobjectionable comment. - Remark of prosecuting attorney to the jury that prisoner had not accounted for his whereabouts at time of homicide nor his flight from the State, without allusion to his failure to testify, comes not within this section. Sutton v. Commonwealth, 85 Va. 128 , 7 S.E. 323 (1888).

Likewise, in a prosecution for seduction, prosecuting attorney's remark that no witness has gone upon the stand to deny statements of two witnesses that defendant had had intercourse with the prosecutrix, was unobjectionable. Miller v. Commonwealth, 153 Va. 890 , 149 S.E. 459 (1929).

Remarks of prosecuting attorney that "though he had no right to swear any man accused of crime, he had the right to prove his statements," is not a violation of this section. Sawyers v. Commonwealth, 88 Va. 356 , 13 S.E. 708 (1891).

In a burglary prosecution, where defendant chose not to testify, and the prosecutor asked the jurors if they had "heard from that witness stand any evidence" that the defendant had denied his guilt, any witness who had spoken with the defendant could have supplied such evidence if, in fact, the defendant had uttered such a denial. Hence, the prosecutor's reference to the lack of such evidence, like a comment that incriminating evidence had not been contradicted, could not be characterized fairly as a remark that the jury naturally and necessarily would interpret as a comment on the fact that defendant had exercised his right not to testify. Johnson v. Commonwealth, 236 Va. 48 , 372 S.E.2d 134 (1988).

Time for exception to comment. - If the exception to such comment is not taken until after verdict it is too late, if, under all the circumstances, the court can see that a proper verdict has been rendered and the accused not injured by the comment. Price v. Commonwealth, 77 Va. 393 (1883); Norfolk & W.R.R. v. Shott, 92 Va. 34 , 22 S.E. 811 (1895).

Defendant held not improperly compelled to testify. - Where the Commonwealth disclosed the incriminating statement well before the investigator testified and in ample time for defendant's counsel to advise him whether or not to take the witness stand, admission of the statement did not improperly compel defendant to testify. Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200 (1989).

Burden is on Commonwealth to show objectionable comment was harmless. Joyner v. Commonwealth, 192 Va. 471 , 65 S.E.2d 555 (1951).

§ 19.2-268.1. Contradiction by prior inconsistent writing (Subdivision (b)(i) of Supreme Court Rule 2:613 derived in part from this section).

A witness in a criminal case may be cross-examined as to previous statements made by him in writing or reduced into writing, relative to the subject matter of the proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to the particular occasion on which the writing is supposed to have been made, and he may be asked if he did not make a writing of the purport of the one to be offered to contradict him, and if he denies making it, or does not admit its execution, it shall then be shown to him, and if he admits its genuineness, he shall be allowed to make his own explanation of it; but it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make such use of it for the purpose of the trial as it may think best.

(Code 1950, § 8-293; 1958, c. 380; 1960, c. 114; 1964, c. 356; 1977, c. 624.)

Cross references. - As to contradiction of witnesses by prior inconsistent writings in civil cases, see § 8.01-404 .

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

Law review. - For note on the problem of partially silent defendants, see 69 Va. L. Rev. 155 (1983).

Research References. - Virginia Forms (Matthew Bender). No. 9-1617. Motion for Exculpatory Evidence - Witness Statement.

Michie's Jurisprudence. - For related discussion, see 20 M.J. Witnesses, § 57.

CASE NOTES

This section does not provide authority for trial court to order the disclosure of otherwise non-discoverable material. Rather, the section was intended to be used as an evidentiary rule by the trial court to order the production, inspection and use of a written statement once a witness has been cross-examined about the existence or contents of a prior statement. Newton v. Commonwealth, 29 Va. App. 433, 512 S.E.2d 846, cert. denied, 528 U.S. 1025, 120 S. Ct. 540, 145 L. Ed. 2d 419 (1999).

Presupposition of writing's existence. - If the prior inconsistent statement was in writing or reduced to writing, such as in the form of a transcript, the court may require the party to produce the writing. However, this section presupposes the existence of a writing. Edwards v. Commonwealth, 19 Va. App. 568, 454 S.E.2d 1 (1995).

Necessity of laying of foundation. - A witness may be impeached by showing that he has formerly made statements inconsistent with his present testimony. An attorney may impeach a witness in this manner, provided a foundation is first laid by calling his attention to the statement and then questioning him about it. Edwards v. Commonwealth, 19 Va. App. 568, 454 S.E.2d 1 (1995).

Impeachment evidence which may be used. - After the foundation is laid, the witness may then usually be impeached by the introduction of evidence to prove that the prior inconsistent statement was in fact made. Such evidence includes the testimony of another witness who heard the prior inconsistent statement, or the transcript of a prior hearing. Edwards v. Commonwealth, 19 Va. App. 568, 454 S.E.2d 1 (1995).

Courts can require a direct reading from an available transcript instead of paraphrased questions, and it was well within the court's discretion to control the conduct of cross-examination. Edwards v. Commonwealth, 19 Va. App. 568, 454 S.E.2d 1 (1995).

If a witness denies or is unable to recall a prior statement, a party may impeach him by introducing other evidence, such as another witness who heard the inconsistent statement. If a transcript is available, the court may require its production pursuant to the mandate of this section even if there are other means of impeachment. Edwards v. Commonwealth, 19 Va. App. 568, 454 S.E.2d 1 (1995).

This section does not determine the outcome of the instant case because there was no evidence that a transcript was available or that the disputed testimony had been reduced to writing. If a transcript is available, an attorney may read from the transcript to impeach a witness by prior inconsistent statements. Edwards v. Commonwealth, 19 Va. App. 568, 454 S.E.2d 1 (1995).

Use of transcribed questions. - Where Commonwealth's witnesses in a murder trial had given statements to investigating officers which were inconsistent with their trial testimony, the court did not commit reversible error by requiring defense counsel to read the transcribed questions and answers contained in those statements during cross-examination in an attempt to attack the credibility of the witnesses' prior inconsistent statements. Scott v. Commonwealth, 7 Va. App. 552, 372 S.E.2d 771 (1988), cert. denied, 490 U.S. 1095, 109 S. Ct. 2441, 104 L. Ed. 2d 997 (1989).

Court did not abuse its discretion in refusing to admit transcript. - Where trial court refused to admit into evidence the transcription of witness' prior statement to police, made at the time of his arrest, which directly contradicted witness' trial testimony, where defendant's attorney cross-examined witness as to a portion of the testimony, and where defendant asserted that the entire statement was inconsistent with witness' trial testimony and, therefore, should have been admitted in its entirety, because the trial court determined that admission of the written statement would have added nothing not already in the record, the trial court did not abuse its discretion in refusing to admit the transcript. Smith v. Commonwealth, 15 Va. App. 507, 425 S.E.2d 95 (1992).

The court erred in requiring a transcript as the only means of impeaching a witness based on inconsistent statements made at an earlier hearing. Although laying a foundation prior to the introduction of impeachment evidence is a separate and necessary step in the impeachment process, it is not contingent on the existence of a transcript. While using a transcript, if available, is the preferable means of laying an impeachment foundation, it is not the only means. This rule also applies once the initial foundation has been laid. Edwards v. Commonwealth, 19 Va. App. 568, 454 S.E.2d 1 (1995).

Objection to use of such writing must be made at trial. - Although defendant argued that the trial court erred in not requiring the Commonwealth to produce the inconsistent writing used to impeach defense witness, defendant failed to properly raise the issue at trial and also failed to raise the issue on appeal, causing the matter to be barred. Wilson v. Commonwealth, 25 Va. App. 263, 487 S.E.2d 857 (1997).

Applied in Smith v. Commonwealth, 19 Va. App. 594, 453 S.E.2d 572 (1995).

§ 19.2-268.2. Recent complaint hearsay exception (Subdivision (23) of Supreme Court Rule 2:803 derived from this section).

Notwithstanding any other provision of law, in any prosecution for criminal sexual assault under Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, a violation of §§ 18.2-361 , 18.2-366 , 18.2-370 or § 18.2-370.1 , the fact that the person injured made complaint of the offense recently after commission of the offense is admissible, not as independent evidence of the offense, but for the purpose of corroborating the testimony of the complaining witness.

(1993, c. 592.)

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

Law review. - For an article, "Criminal Law and Procedure," see 31 U. Rich. L. Rev. 1015 (1997).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

Michie's Jurisprudence. - For related discussion, see 15 M.J. Rape, § 19.

CASE NOTES

Only the fact of the complaint, not the details given therein may be admitted, and the scope of admission rests with the sound discretion of the trial court. Woodard v. Commonwealth, 19 Va. App. 24, 448 S.E.2d 328 (1994).

The initial determination of timeliness under the recent complaint rule is committed to the sound discretion of the trial court, and thereafter, timeliness is a matter for the trier of fact to consider in weighing the evidence. Woodard v. Commonwealth, 19 Va. App. 24, 448 S.E.2d 328 (1994).

Timeliness. - Under this section, timeliness, in relation to the reasons for the delay of the rape complaint, must initially be decided by the trial judge in order to determine whether evidence of the complaint can be admitted. Terry v. Commonwealth, 24 Va. App. 627, 484 S.E.2d 614 (1997).

Delayed complaints of sexual assault are admissible for purpose of corroborating testimony of a complaining witness, where delay is credibly explained or consistent with circumstances. Bartz v. Commonwealth, No. 1374-98-2 (Ct. of Appeals June 29, 1999).

Trial court was not required under § 19.2-268.2 to make an express factual finding prior to the admittance into evidence of the child's stepmother's testimony, and there was sufficient evidence of the child's fear that she would not have been believed and of her fear of reprisals by defendant, to explain the delay in the child's complaint to her stepmother. Almond v. Commonwealth, No. 3071-01-2, 2002 Va. App. LEXIS 746 (Ct. of Appeals Dec. 17, 2002).

A rape victim's complaint corroborates more than his or her testimony; it also corroborates the occurrence of the rape itself. No reason justifies limiting the recent complaint rule to corroboration of a victim's testimony. The rule is also applicable to corroborate other independent evidence of the offense; however, the complaint alone does not constitute sufficient evidence of the offense. Woodard v. Commonwealth, 19 Va. App. 24, 448 S.E.2d 328 (1994).

This statute was inapplicable in this case. Child's statement that he had been sexed was uniquely probative of the charge of sexual abuse; as such, it was "independent evidence of the offense." Moreover, that statement was not made "for the purpose of corroborating the testimony of the complaining witness"; the child never testified in court. Jenkins v. Commonwealth, 254 Va. 333 , 492 S.E.2d 131 (1997).

Trial court did not abuse its discretion in admitting evidence of the victim's hearsay complaint of the rape, which occurred in July, where the school-age victim testified that she told no one about the offense until school commenced after the summer recess, over defendant's objection on the ground that these reports were not recent complaints and, thus, not admissible. Woodard v. Commonwealth, 19 Va. App. 24, 448 S.E.2d 328 (1994).

Error in admitting complaint. - In the absence of an explanation for the extraordinary 16-month delay between alleged molestation and child's statements about the alleged incident to her stepmother, the evidence failed to provide a foundation from which the trial judge could have found that the complaint met the statutory requirement under this section that it was made "recently after commission of the offense." Castelow v. Commonwealth, 29 Va. App. 305, 512 S.E.2d 137 (1999).

No error in admitting victim's complaint. - The plain language of § 19.2-268.2 does not limit the number of recent complaints of sexual assault that the Commonwealth may introduce into evidence to corroborate a victim's testimony, and there is also no case law barring the Commonwealth from presenting more than two corroborating witnesses. Longfield v. Commonwealth, No. 0303-01-2, 2002 Va. App. LEXIS 33 (Ct. of Appeals Jan. 29, 2002).

While victim did not tell her father or mother about the rape until ten months later, she explained the reasons for the delay: (1) victim was afraid mother would not believe her because defendant was her mother's good friend; (2) she did not tell her father for fear that he would hurt the defendant and end up in jail; and (3) she felt responsible for rape because she insisted on staying home instead of going with her mother. Thus, the trial court did not err by holding the complaint sufficiently recent to be admissible. Terry v. Commonwealth, 24 Va. App. 627, 484 S.E.2d 614 (1997).

The trial court did not abuse its discretion in admitting a statement made by the victim to a school counselor regarding multiple rapes by the defendant, who was her uncle, though it was made long after the event, where the rapes occurred when she was between 11 and 14 years old, the complaint was made when she was 15 years old, and the defendant threatened her with regard to telling anyone about the incidents. Hutchison v. Commonwealth, No. 0131-97-3 (Ct. of Appeals April 28, 1998).

Minor victim's statements regarding sexual assaults were properly admitted, since her delay in reporting assaults to her mother was explained by threat of harm from defendant if she were to tell anyone. Booker v. Commonwealth, No. 1603-98-1 (Ct. of Appeals Aug. 3, 1999).

Trial court did not abuse its discretion in admitting a complaining witness' recent complaints of rape where it was impossible to separate the admissible portions from the inadmissible and the trial court judge specifically said he would not consider the inadmissible portions. The fact of the complaint of rape laid in the details of the complaining witness' statement and the complaint would have been incomplete without those details. Breeden v. Commonwealth, 43 Va. App. 169, 596 S.E.2d 563, 2004 Va. App. LEXIS 257 (2004).

Sexual assault victim's letter to her grandmother complaining of defendant's conduct fell within the "recent complaint" hearsay exception and was admissible, not as independent evidence, but to corroborate the victim's testimony. Wilson v. Commonwealth, 46 Va. App. 73, 615 S.E.2d 500, 2005 Va. App. LEXIS 268 (2005).

In an action charging defendant with various sexually based crimes, admission of a letter that the victim wrote to a school counselor as a recent complaint under § 19.2-268.2 was proper where, inter alia, the delay in reporting was adequately explained by the victim, who stated that the victim did not think anyone would believe the victim and the victim was concerned about the victim's niece's father going to jail; defendant's other challenges to the letter were waived by a failure to object or raise the issue in the trial court and a failure to proffer a curative instruction. Williams v. Commonwealth,, 2008 Va. App. LEXIS 460 (Oct. 14, 2008).

Social worker's testimony regarding a statement by the victim was admissible as a recent complaint, under § 19.2-268.2 , because neither § 19.2-268.2 , nor the common law conditioned admissibility of the victim's complaint on whether the complaint was the victim's first outcry; instead, all that was required was that the complaint was made recently after commission of the offense. Anderson v. Commonwealth,, 2011 Va. App. LEXIS 214 (June 28, 2011).

Preliminary hearing testimony. - In a case in which defendant was convicted of, inter alia, object sexual penetration, the trial court did not err by refusing to admit the transcript of the victim's testimony at the preliminary hearing under the provisions of § 19.2-268.2 . The victim's testimony at the preliminary hearing was not a "complaint of the offense" as contemplated by the statute. Mayberry v. Commonwealth, 66 Va. App. 93, 782 S.E.2d 599, 2016 Va. App. LEXIS 68 (Mar. 8, 2016).

Error in using victim's out-of-court statement to convict defendant. - Although the trial court properly admitted an out-of-court statement, which defendant's stepdaughter gave to a detective as a recent complaint of criminal sexual assault, pursuant to § 19.2-268.2 , the court erred by using the stepdaughter's statement to convict defendant of forcible sodomy because testimony which the stepdaughter gave at defendant's trial did not corroborate her out-of-court statement and there was no other evidence that established the elements of the offense. However, the stepdaughter's testimony and defendant's admission that he rubbed his stepdaughter's genitalia were sufficient to prove that he committed animate object sexual penetration and aggravated sexual battery, and the appellate court affirmed the trial court's judgment convicting defendant of those crimes. Fincham v. Commonwealth, No. 3361-02-2, 2004 Va. App. LEXIS 259 (Ct. of Appeals June 8, 2004).

Evidence held sufficient. - Evidence was sufficient to convict defendant of two counts of carnal knowledge and two counts of indecent liberties because, notwithstanding any impeachment, the trial court accepted the 14-year-old victim's testimony of a sexual relationship between herself and defendant; the victim's testimony was supported by her pregnancy and subsequent abortion; the stepfather's and girlfriend's statements were admissible under the recent complaint exception to the hearsay rule as they were utilized to corroborate the victim's independent testimony; and defendant's statements regarding the victim's pregnancy and abortion constituted a waiver of his assertion that the Commonwealth's testimony on those issues was inadmissible. Pickett v. Commonwealth, No. 1320-14-2, 2015 Va. App. LEXIS 219 (July 21, 2015).

Applied in Brown v. Commonwealth, 37 Va. App. 169, 554 S.E.2d 711, 2001 Va. App. LEXIS 635 (2001); Anderson v. Commonwealth, 282 Va. 457 , 717 S.E.2d 623, 2011 Va. LEXIS 226 (2011).

CIRCUIT COURT OPINIONS

Applicability. - Circuit Court of the City of Norfolk, Virginia, is satisfied that §§ 18.1-215 and 18.2-370 are equivalent. When the current sexual assault complaint hearsay exception, codified at § 19.2-268.2 , states that it applies to charges for violations under § 18.2-370 , the Court therefore finds that it encompasses prior versions of that statute, including § 18.1-215. Commonwealth v. Silver, 91 Va. Cir. 401, 2015 Va. Cir. LEXIS 245 (Norfolk Dec. 2, 2015).

Allegations of subsequent sexual abuse by defendant were admissible under the recent sexual assault rule where he was charged with incestuous acts, the allegations were relevant to prove his disposition and relationship toward his daughter, he was alleged to have committed the acts as part of an ongoing chain of sexual abuse against his daughter, and the probative value exceeded any incidental prejudice. Commonwealth v. Silver, 91 Va. Cir. 401, 2015 Va. Cir. LEXIS 245 (Norfolk Dec. 2, 2015).

Trial court did not abuse its discretion. - Testimony about the daughter's complaint to her guidance counselor about defendant's alleged indecent liberties was admissible as the delay in reporting was explained by the daughter and the statement was made while the sexual abuse was ongoing. Commonwealth v. Silver, 91 Va. Cir. 401, 2015 Va. Cir. LEXIS 245 (Norfolk Dec. 2, 2015).

§ 19.2-268.3. Admissibility of statements by children in certain cases.

  1. As used in this section, "offense against children" means a violation or an attempt to violate § 18.2-31 , 18.2-32 , or 18.2-35 , subsection A of § 18.2-47 , § 18.2-48 , 18.2-51 , 18.2-51 .2, 18.2-51.6 , 18.2-52 , 18.2-54.1 , 18.2-54.2 , 18.2-61 , 18.2-67.1 , 18.2-67.2 , or 18.2-67.3 , § 18.2-346.01 if punishable as a felony, § 18.2-35 5, 18.2-356 , 18.2-357 , or 18.2-357.1 , subsection B of § 18.2-361 , subsection B of § 18.2-366 , § 18.2-370 , 18.2-370.1 , 18.2-371.1 , 18.2-374.1 , 18.2-374.1 :1, 18.2-374.3 , or 18.2-374.4 , § 18.2-386.1 if punishable as a felony, or § 40.1-103 .
  2. An out-of-court statement made by a child who is under 13 years of age at the time of trial or hearing who is the alleged victim of an offense against children describing any act directed against the child relating to such alleged offense shall not be excluded as hearsay under Rule 2:802 of the Rules of Supreme Court of Virginia if both of the following apply:
    1. The court finds, in a hearing conducted prior to a trial, that the time, content, and totality of circumstances surrounding the statement provide sufficient indicia of reliability so as to render it inherently trustworthy. In determining such trustworthiness, the court may consider, among other things, the following factors:
      1. The child's personal knowledge of the event;
      2. The age, maturity, and mental state of the child;
      3. The credibility of the person testifying about the statement;
      4. Any apparent motive the child may have to falsify or distort the event, including bias or coercion;
      5. Whether the child was suffering pain or distress when making the statement; and
      6. Whether extrinsic evidence exists to show the defendant's opportunity to commit the act; and
    2. The child:
      1. Testifies; or
      2. Is declared by the court to be unavailable as a witness; when the child has been declared unavailable, such statement may be admitted pursuant to this section only if there is corroborative evidence of the act relating to an alleged offense against children.
  3. At least 14 days prior to the commencement of the proceeding in which a statement will be offered as evidence, the party intending to offer the statement shall notify the opposing party, in writing, of the intent to offer the statement and shall provide or make available copies of the statement to be introduced.
  4. This section shall not be construed to limit the admission of any statement offered under any other hearsay exception or applicable rule of evidence.

    (2016, cc. 542, 553; 2021, Sp. Sess. I, c. 188.)

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, substituted " § 18.2-346.01 " for "subsection B of § 18.2-346 " in subsection A.

CASE NOTES

Constitutionality. - This section was not unconstitutional as applied to defendant when the Commonwealth sought to admit a child's out-of-court statements because it was stipulated the child would have testified had defendant not pled guilty, so defendant's confrontation rights would not have been violated, as the declarant would have been subject to cross-examination. Marsh v. Commonwealth, No. 1011-18-1, 2019 Va. App. LEXIS 228 (Oct. 15, 2019).

Admissibility of videotape. - Trial court did not err by admitting into evidence a videotape of a minor victim's forensic interview, despite the victim's inability to remember the interview, because defendant's opportunity to question the victim about the victim's faulty memory and attack the victim's credibility satisfied the Confrontation Clause guarantee of effective cross-examination. Furthermore, the interviewer testified as to its accuracy. Alvarez Saucedo v. Commonwealth, 71 Va. App. 31, 833 S.E.2d 900, 2019 Va. App. LEXIS 239 (2019).

Admissibility of victim's drawing. - In a case in which defendant was convicted of two counts of forcible sodomy of a minor, and two counts of aggravated sexual battery, the drawings made by the victim during the forensic interview were statements under this exception to the hearsay rule as the drawing of two stick figures in a bed with lines from one figure's mouth to the other figure's midsection described - in the context of the forensic interview in which it was drawn - how the assaults occurred. Chenevert v. Commonwealth, 72 Va. App. 47, 840 S.E.2d 590, 2020 Va. App. LEXIS 112 (2020).

Admissibility of victim's letter. - In a case in which defendant was convicted of two counts of forcible sodomy of a minor, and two counts of aggravated sexual battery, the victim's letter to her mother was properly admitted because the hearsay exception in this statute applied broadly to all statements made by a child victim describing any act directed against the child relating to the offense against the child, and did not mean only statements made by a child victim during a forensic interview. Chenevert v. Commonwealth, 72 Va. App. 47, 840 S.E.2d 590, 2020 Va. App. LEXIS 112 (2020).

Waiver. - By failing to challenge the admission of the child witness's statements to a pastor and a forensic interviewer as impeachment evidence and under the statute, and because impeachment was a proper purpose for admission, defendant waived the argument on appeal. Snead v. Commonwealth, No. 1211-19-2, 2021 Va. App. LEXIS 18 (Feb. 2, 2021).

CIRCUIT COURT OPINIONS

Admissibility of statement. - On the Commonwealth's motion to admit a child's out-of-court statement, the court found that the child's statement to a forensic interviewer were not testimonial because they were not made to a law-enforcement officer, occurred in the context of an ongoing emergency involving suspected child abuse, and were not made with the intent to be a substitute for trial testimony. Commonwealth v. Smith, 102 Va. Cir. 372, 2019 Va. Cir. LEXIS 428 (Norfolk Aug. 19, 2019).

Circuit court could not accept the contested proffer of the Assistant Commonwealth's Attorney to allow the child victim to testify via closed circuit television and to admit statements made by juvenile victims to a guidance counselor as substantive evidence to apply the statute because substantive evidence, testimony, and facts were required to determine the applicability of the statute. Commonwealth v. Maupin, 103 Va. Cir. 106, 2019 Va. Cir. LEXIS 444 (Orange County Sept. 14, 2019).

§ 19.2-269. Convicts as witnesses (Supreme Court Rule 2:609 derived from this section).

A person convicted of a felony or perjury shall not be incompetent to testify, but the fact of conviction may be shown in evidence to affect his credit.

(Code 1950, § 19.1-265; 1960, c. 366; 1975, c. 495.)

Cross references. - As to what constitutes a felony, see § 18.2-8 .

As to penalties for conviction of perjury, see § 18.2-434 .

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

Law review. - For article on evidence of other crimes in criminal cases, see 3 U. Rich. L. Rev. 62 (1968). For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For review of Fourth Circuit cases on evidence, see 36 Wash. & Lee L. Rev. 562 (1979). For survey of Virginia law on evidence for the year 1978-1979, see 66 Va. L. Rev. 293 (1980). For 1987 survey of Virginia evidence law, see 21 U. Rich. L. Rev. 775 (1987). For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

Research References. - Virginia Forms (Matthew Bender). No. 9-2411. Motion for Witness - Inmate, et seq.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Accomplices and Accessories, § 6; 5B M.J. Criminal Procedure, § 59; 20 M.J. Witnesses, §§ 6, 39, 66.

CASE NOTES

Law prior to adoption of section. - Prior to the adoption of this section as § 4779 of the Code of 1919, convicted felons, as a rule, could not testify unless pardoned or punished, and a person convicted of perjury could not testify although pardoned or punished. Lincoln v. Commonwealth, 217 Va. 370 , 228 S.E.2d 688 (1976).

Purpose of section. - This section makes material changes in the law governing the competency of witness to testify, so as to remove practically all disqualifications, and permit the courts to hear all evidence bearing on the question at issue just as is usual in the business affairs of life. In pursuance of this policy the law with reference to the testimony of those convicted of felony or perjury was changed. Epes' Adm'r v. Hardaway, 135 Va. 80 , 115 S.E. 712 (1923).

Impeachment. - It is not proper to ask a witness if he has been indicted, and it is not proper to show that he has been convicted of an ordinary misdemeanor, but it may, for purposes of impeachment, be shown by the witness himself that he has been convicted of felony or of perjury. Smith v. Commonwealth, 155 Va. 1111 , 156 S.E. 577 (1931).

A defendant/witness may be impeached by showing that he has been previously convicted of a felony. Powell v. Commonwealth, 13 Va. App. 17, 409 S.E.2d 622 (1991).

Any error in refusing to allow a witness's testimony that would have impeached the victim by contradicting his testimony that defendant never banned him from the property was harmless since the victim had already been impeached on a number of issues and was a convicted felon, yet the trial court found him credible; an additional piece of impeachment testimony would not have altered the outcome of the trial. Edward v. Commonwealth, No. 1768-12-2, 2013 Va. App. LEXIS 340 (Nov. 19, 2013).

Effect of impeachment. - If a witness is impeached, it only goes to his credit, not to his competency. He is a competent witness even if he has convicted of perjury. Patterson v. Commonwealth, 139 Va. 589 , 123 S.E. 657 (1924), appeal dismissed, 270 U.S. 632, 46 S. Ct. 349, 70 L. Ed. 771 (1926).

Entitlement to discount testimony. - At defendant's trial for grand larceny involving a stolen vehicle, the trial court was entitled to discount the defense testimony of defendant's girlfriend, who was a convicted felon. Randolph v. Commonwealth, No. 2162-02-1, 2003 Va. App. LEXIS 511 (Ct. of Appeals Oct. 14, 2003).

In defendant's prosecution for drug possession, although defendant denied knowledge of the drugs found in a car he was borrowing, the trial court was entitled to consider defendant's prior felony conviction in assessing his credibility under § 19.2-269 . Etheridge v. Commonwealth,, 2009 Va. App. LEXIS 134 (Mar. 24, 2009).

Defendant's conviction for grand larceny of a string trimmer was appropriate because the evidence was sufficient and the trial judge was entitled to consider defendant's prior felony conviction in assessing his credibility. Swiggett v. Commonwealth,, 2010 Va. App. LEXIS 53 (Feb. 9, 2010).

Testimony not inherently incredible. - In a first-degree murder case, the testimony of the Commonwealth's witnesses, most of whom were convicted felons, was not inherently incredible as a matter of law, and the jury was entitled to accept it. The testimony of those witnesses was not manifestly false, or so contrary to human experience as to render it unworthy of belief. Turner v. Commonwealth, No. 1807-16-1, 2018 Va. App. LEXIS 197 (July 17, 2018).

Proof of prior conviction. - It has long been well settled in this state that the character of a witness for veracity cannot be impeached by proof of a prior conviction of crime, unless the crime be a felony or one which involved moral turpitude or the character of the witness for veracity. McLane v. Commonwealth, 202 Va. 197 , 116 S.E.2d 274 (1960); Lincoln v. Commonwealth, 217 Va. 370 , 228 S.E.2d 688 (1976).

By Commonwealth. - This section means that the fact of conviction of a felony may be shown by the Commonwealth. Harmon v. Commonwealth, 212 Va. 442 , 185 S.E.2d 48 (1971).

Effect of guilty plea. - In Jewel v. Commonwealth , 260 Va. 430 (2000), the Supreme Court of Virginia held that for the limited purposes of § 19.2-269 , a defendant's guilty plea accepted by the trial court constitutes a "conviction" and an order entering a finding of guilt was unnecessary. To the extent that Jewel can be read to suggest that a trial court formally adjudicates a defendant's guilt by accepting a plea of guilty and entering it in the record, it is overruled. Starrs v. Commonwealth, 287 Va. 1 , 752 S.E.2d 812, 2014 Va. LEXIS 11 (2014).

"Conviction" includes guilty plea. - For the limited purposes of this section, the word "conviction" includes a guilty plea accepted by the court but for which no order has been entered stating a finding of guilt or imposing sentence; proof of such a guilty plea may be shown to impeach a witness. Jewel v. Commonwealth, 260 Va. 430 , 536 S.E.2d 905, 2000 Va. LEXIS 145 (2000).

Felony, other than perjury, and the details thereof may not be shown. Harmon v. Commonwealth, 212 Va. 442 , 185 S.E.2d 48 (1971).

So long as the defendant answers truthfully the inquiry as to a prior felony conviction, the name of the crime cannot be shown. Harmon v. Commonwealth, 212 Va. 442 , 185 S.E.2d 48 (1971).

When the Commonwealth attempts to impeach the credibility of the accused by showing prior felony convictions, in order to avoid undue prejudice to the accused, neither the nature of the felony, other than perjury, nor the details of the crime are admissible; only the fact of a conviction can be shown. Powell v. Commonwealth, 13 Va. App. 17, 409 S.E.2d 622 (1991).

For purposes of impeachment, the fact of a prior conviction of a felony may be shown against a party-witness in a civil case, but the name of the felony, other than perjury, and the details thereof may not be shown. Payne v. Carroll, 250 Va. 336 , 461 S.E.2d 837 (1995).

Witnesses other than defendant may be asked names of felonies for which they have been convicted. This rule is not limited to witnesses for the Commonwealth. Dammerau v. Commonwealth, 3 Va. App. 285, 349 S.E.2d 409 (1986), overruled on other grounds Vescuso v. Commonwealth, 5 Va. App. 59, 360 S.E.2d 547 (1987).

Prior conviction must involve moral turpitude. - It must be clearly shown that the prior conviction was for an offense involving moral turpitude; otherwise the inquiry should not be permitted. Chrisman v. Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986).

And character of witness for veracity. - The character of a witness' veracity cannot be impeached by proof of a prior conviction of crime, unless the crime be one which involved the character of the witness for veracity. Chrisman v. Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986).

Misdemeanor must involve moral turpitude. - If the crime be a misdemeanor, the right to inquire is limited to those that involve moral turpitude. Chrisman v. Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986).

Indecent exposure conviction not admissible. - It was error to admit into evidence the fact of the defendant's prior conviction of indecent exposure. Chrisman v. Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986).

Since it is not determinative of veracity. - The crime of indecent exposure is neither a crime of treason nor a felony, nor is it a crime of the sort known as crimen falsi at the Roman or common law. It does not involve deception, trickery, forgery, lying, cheating or stealing. It is not an infamous crime. It does not involve moral turpitude as that phrase has been applied at common law relating to incompetency or impeachment. It is not determinative of the character of a person for veracity. Chrisman v. Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986).

Effect of voluntarily taking stand in own defense. - When a defendant voluntarily takes the stand in his own defense and opens up matters by his own testimony, he subjects himself to cross-examination on the matters relevantly raised by that testimony. Harmon v. Commonwealth, 212 Va. 442 , 185 S.E.2d 48 (1971).

Where defendant takes the witness stand in his own defense and testifies on direct examination that he has been convicted previously of a certain number of felonies, he may be cross-examined only with respect to the correctness of the number stated and, if his answers are truthful, without regard to the names or the nature of the offenses. McAmis v. Commonwealth, 225 Va. 419 , 304 S.E.2d 2 (1983).

Where defendant on direct examination goes beyond merely testifying he has been convicted previously of a certain number of felonies and discloses additional information concerning his convictions, he may be held to have opened the door to inquiry concerning the names of the offenses. McAmis v. Commonwealth, 225 Va. 419 , 304 S.E.2d 2 (1983).

When an accused testifies on his own behalf he may determine that it is in his best interests as a trial tactic to reveal the fact of his prior felony convictions in terms of bolstering his credibility with the trier of fact. If this is done truthfully and not in a manner calculated to mislead, it does not open the door for the Commonwealth on cross-examination to establish the names and nature of the prior felony convictions. Joyner v. Commonwealth, 10 Va. App. 290, 392 S.E.2d 822 (1990).

This section permits the examination of a defendant as to any prior felony convictions should he become a witness in his own behalf. The sole purpose of such inquiry is to attack the defendant's credibility as a witness. His answer is not to be considered as evidence of his guilt or innocence of the crime charged. Harmon v. Commonwealth, 212 Va. 442 , 185 S.E.2d 48 (1971).

Right of cross-examination not unlimited. - Where the Commonwealth attempts to impeach the accused under this section by establishing the number of prior convictions, the Commonwealth's right to cross-examine him about the name and nature of the prior convictions is not unlimited. Powell v. Commonwealth, 13 Va. App. 17, 409 S.E.2d 622 (1991).

Cross-examination of defendant as to prior felony convictions. - The Commonwealth may ask a defendant who testifies in a criminal proceeding the number of times he has been convicted of a felony, but not the names of the felonies, other than perjury, and not the nature or details thereof. Thus, a defendant in a criminal trial who has been convicted of one or more felonies is not subject to as comprehensive cross-examination as nondefendant witnesses, notwithstanding the provisions of § 19.2-268 . Sadoski v. Commonwealth, 219 Va. 1069 , 254 S.E.2d 100 (1979).

Effect of defendant's disclosure of felony on direct examination. - Where the accused has disclosed on direct examination the nature of the felony conviction, he does not open the door for the Commonwealth to introduce evidence concerning the nature or character of another felony conviction he may have either purposefully or mistakenly misrepresented without first exploring the other alternatives to prove that the accused had more than one felony conviction and testified untruthfully. Able v. Commonwealth, 16 Va. App. 542, 431 S.E.2d 337 (1993).

Reversible error in permitting evidence of names rather than number. - The trial court committed reversible error in permitting the Commonwealth to introduce evidence of the names rather than only the number of a defendant's prior felony convictions. Joyner v. Commonwealth, 10 Va. App. 290, 392 S.E.2d 822 (1990).

Error not harmless. - In a cocaine possession conviction based on a bench trial, admission of the nature of defendant's prior conviction was not harmless error because it was impossible to determine if this evidence, which potentially prejudiced the trial court's decision, was limited to credibility. Lawrence v. Commonwealth,, 2009 Va. App. LEXIS 426 (Sept. 29, 2009).

Erroneous admission of questions about prior convictions held harmless. - Although robbery defendant opened the door to questioning about one prior conviction for grand larceny, trial court abused its discretion in allowing the Commonwealth to question defendant as to the identity and nature of a second felony conviction and a misdemeanor conviction; the abuse was harmless error since defendant failed to show that admission of this testimony prejudiced his ability to receive a fair trial. Cole v. Commonwealth, 16 Va. App. 113, 428 S.E.2d 303 (1993).

Details of prior convictions. - Unless the defendant answers untruthfully any questions concerning the number of his felony convictions or voluntarily puts into issue the details of his prior convictions, the Commonwealth may not inquire as to the details of a prior offense. If a defendant answers falsely, however, he opens the door to the Commonwealth's impeachment of his response, and the Commonwealth may be permitted to inquire into the nature or character of the prior convictions. Farrow v. Commonwealth, No. 0861-89-3 (Ct. of Appeals Oct. 23, 1990).

Commonwealth's evidence was competent, not inherently incredible, and sufficient to prove beyond a reasonable doubt attempted rape and abduction with intent to defile, because jury believed the victim's version of what happened and the Commonwealth's evidence and rejected defendant's version of those events, and the jury was permitted to consider defendant's prior felony convictions in assessing his credibility; the victim testified that defendant held her down, partially removed her pants, exposed his penis, pulled out a knife, and repeatedly threatened to kill the victim. Gay v. Commonwealth,, 2011 Va. App. LEXIS 134 (Apr. 19, 2011).

Defendant, who misstated the number of his convictions and qualified his answer by stating that the convictions were received "when I was younger," opened the door to further inquiry by the Commonwealth in order to identify which of the felonies he was admitting to in attempting to account for his prior convictions. Farrow v. Commonwealth, No. 0861-89-3 (Ct. of Appeals Oct. 23, 1990).

Jury is entitled to know both the number and the nature of a witness' felony convictions, but not the details thereof, in order to evaluate his testimony and determine what credit it should be given. Johnson v. Commonwealth, 224 Va. 525 , 298 S.E.2d 99 (1982).

The triers of fact were entitled to know the number and nature, but not the details, of the felony convictions of a witness for the Commonwealth who had been granted immunity from prosecutions, so that they could evaluate his testimony and determine what credit it should be given. Hummel v. Commonwealth, 217 Va. 548 , 231 S.E.2d 216 (1977), cert. denied, 440 U.S. 935, 99 S. Ct. 1278, 59 L. Ed. 2d 492 (1979).

While naming a prior felony conviction similar in nature to the offense for which a defendant is on trial during cross-examination of the defendant would be highly prejudicial to him, the naming of the prior convictions of a witness for the Commonwealth who has been granted immunity from prosecution in order to attack his credibility does not present the same risk of undue prejudice. Hummel v. Commonwealth, 217 Va. 548 , 231 S.E.2d 216 (1977), cert. denied, 440 U.S. 935, 99 S. Ct. 1278, 59 L. Ed. 2d 492 (1979).

Probative value of prior conviction outweighs prejudicial effect. - Some prejudice rises against a defendant when it is disclosed that he has been convicted of a felony, but its probative value as to his credit outweighs the prejudicial effect. Harmon v. Commonwealth, 212 Va. 442 , 185 S.E.2d 48 (1971).

Exclusion of nature of prior convictions deemed harmless error. - Although a trial court erred in excluding defense counsel's attempts to question a malicious wounding victim as to the nature of his prior convictions, it was deemed harmless error because the jury knew that the victim was a convicted felon, as were the four defendants involved in the jailhouse attack, the jury was informed as to the number of prior convictions, and the nature of those felonies was not of particular importance, nor was it likely that they would have added to the impeachment potential. Justus v. Commonwealth, Nos. 1220-03-3, 1234-03-3, 1291-03-3, 2004 Va. App. LEXIS 256 (Ct. of Appeals June 1, 2004).

Indictment inadmissible where accused was convicted of lower offense. - It was error not to forbid the introduction before the jury of the record of the indictment of accused for housebreaking, upon which he was convicted of a mere assault and battery. Boggs v. Commonwealth, 199 Va. 478 , 100 S.E.2d 766 (1957).

It was improper for the attorney for the Commonwealth to ask defendant whether he had been convicted of malicious wounding (a felony) when in fact he had been indicted for malicious wounding but convicted only of assault and battery (a misdemeanor). But defendant was not manifestly prejudiced by the question where no testimony was given in response to the question and where the trial court took prompt, direct and positive action in instructing the jury to disregard the question and all its effects. McLane v. Commonwealth, 202 Va. 197 , 116 S.E.2d 274 (1960).

Effect of felony under federal statute declared misdemeanor by state statute. - The conviction of a crime in a federal court, which is a felony under the federal statutes but which is declared to be a misdemeanor by the Virginia statutes, is not admissible in evidence under this section. Burford v. Commonwealth, 179 Va. 752 , 20 S.E.2d 509 (1942).

Adjudication as juvenile delinquent may not be shown. - In view of the provisions of the juvenile statutes no error was committed in refusing to allow defendant's counsel to ask a witness for the prosecution whether he had ever been adjudged a juvenile delinquent in a proceeding in a juvenile court involving a felonious offense or larceny, the purpose of the question being to affect the credibility of the witness. Questions which refer to the disposition of the child in a juvenile court are not permitted. Kiracofe v. Commonwealth, 198 Va. 833 , 97 S.E.2d 14 (1957).

Question about felony conviction asked in conjunction with prejudicial questions about prior conduct. - That a question about a felony conviction may be improper when asked of an accused in conjunction with prejudicial questions about prior conduct, see Williams v. Commonwealth, 203 Va. 837 , 127 S.E.2d 423 (1962).

Only a conviction, not a revocation of probation, may be used to impeach the credibility of a witness. Willis v. Commonwealth, No. 1195-95-3 (Ct. of Appeals April 23, 1996).

Witness not incompetent to testify. - Under § 19.2-269 , a witness is not incompetent to testify simply because he has a criminal record. Lester v. Commonwealth, No. 1719-03-3, 2004 Va. App. LEXIS 198 (Ct. of Appeals Apr. 27, 2004).

Impeachment by juvenile adjudication. - Defendant's convictions for first-degree murder and use of a firearm in the commission of a felony were proper because, although she sought pretrial disclosure by the Commonwealth of the criminal records of several witnesses for the Commonwealth, including both adult and juvenile records, review of defendant's several motions in limine relating to juvenile records demonstrated that she sought juvenile records as part of general impeachment preparations. Bias or motivation was never identified as a justification; consequently, juvenile adjudications were not permitted to be used for the impeachment of a witness on the subject of general credibility. Thomas v. Commonwealth, 279 Va. 131 , 688 S.E.2d 220, 2010 Va. LEXIS 11, cert. denied, 131 S. Ct. 143, 178 L. Ed. 2d 8, 2010 U.S. LEXIS 6109 (U.S. 2010).

Applied in Epps v. Commonwealth, 59 Va. App. 71, 717 S.E.2d 151, 2011 Va. App. LEXIS 351 (2011).

CIRCUIT COURT OPINIONS

Impeachment following removal of political disabilities of witness. - Motion in limine by an accident victim in a negligence action was denied to the extent that the motion requested that a motorist was to be barred from impeaching the victim with the victim's felony convictions because, under § 19.2-269 , the fact of the convictions could be used as evidence to affect the victim's credibility, even though the victim's political disabilities had been removed by the Governor of Virginia. Sulton v. FedEx Ground Package Sys., 80 Va. Cir. 385, 2010 Va. Cir. LEXIS 62 (Fairfax County June 1, 2010).

§ 19.2-269.1. Inmates as witnesses in criminal cases.

Whenever the Commonwealth or a defendant in a criminal prosecution in any circuit court in this Commonwealth requires as a witness in his behalf, an inmate in a state or local correctional facility as defined in § 53.1-1 , the court, on the application of such defendant or his attorney, or the attorney for the Commonwealth, shall issue an order to the Director of the Department of Corrections to deliver such witness to the sheriff of the jurisdiction of the court issuing the order. If authorized by the court, the clerk of the circuit court or a deputy clerk may issue these orders on behalf of the court. The sheriff shall go where such witness may then be and carry him to the court to testify as such witness, and after he has testified and been released as such witness, carry him back to the place whence he came, for all of which service the sheriff shall be paid out of the criminal expense funds in the state treasury such compensation as the court in which the case is pending may certify to be reasonable.

(Code 1950, § 8-300; 1966, c. 227; 1974, cc. 44, 45; 1977, c. 624; 2002, cc. 515, 544.)

The 2002 amendments. - The 2002 amendments by cc. 515 and 544 are identical, and rewrote the section.

Research References. - Virginia Forms (Matthew Bender). No. 9-2411. Motion for Witness - Inmate, et seq.

§ 19.2-269.2. Nondisclosure of addresses or telephone numbers of crime victims and witnesses.

During any criminal proceeding, upon motion of the defendant or the attorney for the Commonwealth, a judge may prohibit testimony as to the current residential or business address, any telephone number, or email address of a victim or witness if the judge determines that this information is not material under the circumstances of the case.

(1989, c. 170; 1994, cc. 845, 931; 2018, cc. 47, 83.)

The 2018 amendments. - The 2018 amendments by cc. 47 and 83 are identical, and substituted "business address, any telephone number, or email address" for "business address or telephone number."

Research References. - Virginia Forms (Matthew Bender). No. 9-1616. Motion to Compel Access to Witnesses.

§ 19.2-270. When statement by accused as witness not received as evidence.

In a criminal prosecution, other than for perjury, or in an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination, in a criminal or civil action, unless such statement was made when examined as a witness in his own behalf.

(Code 1950, § 19.1-267; 1960, c. 366; 1975, c. 495; 1988, c. 366.)

Cross references. - As to right of accused to testify, see § 19.2-268 .

Law review. - For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 93; 5B M.J. Criminal Procedure, § 60; 7B M.J. Evidence, §§ 231, 234; 8B M.J. Forgery, § 17; 20 M.J. Witnesses, §§ 39, 80, 81.

CASE NOTES

Constitutionality. - The effect of this section is to conform the procedure in this state with the general rule that a defendant's testimony at a former trial is admissible in evidence against him in later proceedings and does not violate his constitutional privilege against compulsory self-incrimination. Consequently, the statute is not in derogation of the federal and state constitutional provisions. Harbaugh v. Commonwealth, 209 Va. 695 , 167 S.E.2d 329 (1969).

This section benefits both the witness-in-jeopardy and the accused by immunizing the witness. Benefit to the witness from use of immunity is manifest. The benefit to the accused lies in taking away the obstacle to confrontation posed by the witness' continued assertion of the Fifth Amendment privilege. A third, and equally important, benefit accrues to the truthfinding process. As the trial judge stated: "The reason behind this statute . . . is obvious. There is a search for justice and we must have the truth." Cunningham v. Commonwealth, 2 Va. App. 358, 344 S.E.2d 389 (1986).

Protection provided witness limited. - This section by its terms confers only use immunity, i.e., it protects the witness only from the use of the specific testimony compelled from him under the grant of immunity, but not from evidence obtained as a result of such testimony. Such limited protection is obviously not coextensive with the constitutional privilege against self-incrimination and cannot overcome the privilege, once validly asserted. Gosling v. Commonwealth, 14 Va. App. 158, 415 S.E.2d 870 (1992).

Witness testimony should only be compelled if incrimination clearly impossible. - When a witness declares his belief that an answer to a question would incriminate, or tend to incriminate him, the court cannot compel him to answer, unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken and that the answer cannot possibly have such tendency. Gosling v. Commonwealth, 14 Va. App. 158, 415 S.E.2d 870 (1992).

Immunization cures any possible prejudice. - Although no Virginia cases on point can be found, immunization has been held in other jurisdictions to cure any possible prejudice, because the defendant is enabled to cross-examine. Cunningham v. Commonwealth, 2 Va. App. 358, 344 S.E.2d 389 (1986).

No statement made by witness upon legal examination, unless made when examined as a witness in his own behalf, can be used as evidence against him. Smith v. Commonwealth, 136 Va. 773 , 118 S.E. 107 (1923).

Where defendant formerly a witness in his own behalf. - Where the defendant's testimony at his brother's trial constituted statements that he made when examined as a witness on his own behalf, he was not entitled to any protection under this section when the prosecutor sought to use that testimony against him. Thornton v. Commonwealth, 22 Va. App. 2, 467 S.E.2d 820 (1996).

Testimony from a prior trial that ends in a mistrial is admissible under the statute. Moore v. Commonwealth, No. 0063-98-4 (Ct. of Appeals Feb. 23, 1999).

Waiver. - A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him. Harbaugh v. Commonwealth, 209 Va. 695 , 167 S.E.2d 329 (1969).

A defendant in a criminal case who takes the stand in his own behalf and testifies without asserting his privilege against self-incrimination thereby waives the privilege as to the testimony given so that it may be used against him in a subsequent trial of the same case. The fact that the defendant does not take the stand at the second trial does not prevent the use of his testimony given at the former trial if it would otherwise be admissible. Harbaugh v. Commonwealth, 209 Va. 695 , 167 S.E.2d 329 (1969).

Statements at coroner's inquest are inadmissible. - On a trial for murder, statements made by the accused on his examination at the inquest before the coroner's jury cannot be given in evidence against him, under the express provisions of this section. Mullins v. Commonwealth, 113 Va. 787 , 75 S.E. 193 (1912).

But cross-examination as to statements made before coroner is permissible. Thaniel v. Commonwealth, 132 Va. 795 , 111 S.E. 259 (1922).

The fact that defendant took the stand at his second trial only after the State threatened to introduce his prior testimony does not have the effect of compelling his testimony at the second trial since the State could constitutionally introduce that evidence. Smith v. Slayton, 369 F. Supp. 1213 (W.D. Va. 1973).

The decision of the defendant to take the stand at his second trial, apparently to avoid the effect that his prior testimony might have upon the jury, does not rise to the level of an unconstitutional coercion or compulsion on the part of the Commonwealth. Smith v. Slayton, 369 F. Supp. 1213 (W.D. Va. 1973).

The use of prior testimony from defendant's first trial for purposes of rebuttal or impeachment is certainly a natural consequence of taking the stand in one's own defense. Smith v. Slayton, 369 F. Supp. 1213 (W.D. Va. 1973).

Statement of witness for accused in conflict with his former testimony. - Evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination. Therefore, evidence that the statements of witnesses for the accused conflict with the testimony of the accused as delivered on his examination as a witness at a former trial is inadmissible. Kirby v. Commonwealth, 77 Va. 681 (1883), superseded by statute as stated in Frazier v. Commonwealth, 40 Va. App. 350, 579 S.E.2d 628 (2003).

But statements of joint interest when witness is subsequently indicted are admissible. - Statements made by a person as a witness upon a legal examination touching a matter in which he is jointly interested with another are not excluded under this section when he is subsequently indicted for crime. Hansel v. Commonwealth, 118 Va. 803 , 88 S.E. 166 (1916).

Statement inadmissible. - In a prosecution for violation of the Prohibition Act, a witness testified as to a statement of accused that he had given away some of the beverages found on his premises. Accused denied having made such statements, and the purpose of the testimony was to impeach his credibility. The statement was not shown to have been made by the accused "when examined as a witness in his own behalf," and, therefore, was not admissible. Neal v. Commonwealth, 124 Va. 842 , 98 S.E. 629 (1919).

Denial of due process where defense witness arrested in violation of section. - See Bray v. Peyton, 429 F.2d 500 (4th Cir. 1970).

Witness' silence correctly honored where trial court properly heard and considered several questions that defendant proposed to ask witness, recognized an incriminating dimension to the inquiries, and thereby declined to compel witness' testimony. Gosling v. Commonwealth, 14 Va. App. 158, 415 S.E.2d 870 (1992).

Defendant's testimony from prior trial admissible. - Trial court properly admitted defendant's prior testimony from her boyfriend's trial for failure to appear because, as an exception to the statute, regarding the personal and familial aspect of the defendant and her boyfriend's relationship, defendant testified at her own trial that she encouraged her boyfriend to flee during his drug/weapons trial because she was concerned about her boyfriend and the father of her child going to prison. Frazier v. Commonwealth, 268 Va. 412 , 601 S.E.2d 624, 2004 Va. LEXIS 126 (2004).

Applied in Johnson v. Riddle, 222 Va. 428 , 281 S.E.2d 843 (1981).

§ 19.2-270.1. Use of photographs as evidence in certain larceny and burglary prosecutions.

In any prosecution for larceny under the provisions of §§ 18.2-95 , 18.2-96 or § 18.2-98 , or for shoplifting under the provisions of § 18.2-103 , or for burglary under the provisions of §§ 18.2-89 , 18.2-90 , 18.2-91 or § 18.2-92 , photographs of the goods, merchandise, money or securities alleged to have been taken or converted shall be deemed competent evidence of such goods, merchandise, money or securities and shall be admissible in any proceeding, hearing or trial of the case to the same extent as if such goods, merchandise, money or securities had been introduced as evidence. Such photographs shall bear a written description of the goods, merchandise, money or securities alleged to have been taken or converted, the name of the owner of such goods, merchandise, money or securities and the manner of the identification of same by such owner, or the name of the place wherein the alleged offense occurred, the name of the accused, the name of the arresting or investigating police officer or conservator of the peace, the date of the photograph and the name of the photographer. Such writing shall be made under oath by the arresting or investigating police officer or conservator of the peace, and the photographs identified by the signature of the photographer. Upon the filing of such photograph and writing with the police authority or court holding such goods and merchandise as evidence, such goods or merchandise shall be returned to their owner, or the proprietor or manager of the store or establishment wherein the alleged offense occurred.

(1976, c. 577; 1985, c. 184; 1987, c. 493; 1995, c. 447.)

Law review. - For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 56; 14B M.J. Photographs and Photographers, § 5.

CASE NOTES

This section provides an alternative means of establishing an adequate foundation to authenticate a photograph which is offered under the independent silent witness theory in prosecutions under §§ 18.2-95 and 18.2-96 . Saunders v. Commonwealth, 1 Va. App. 396, 339 S.E.2d 550 (1986).

Photograph as silent witness. - A photograph of the goods or merchandise alleged to have been taken or converted, which bears the sworn writing of the arresting officer and the photographer's signature, shall be deemed competent evidence of such goods or merchandise and shall be admissible to the same extent as if such goods and merchandise had been introduced as evidence. When a photograph is so authenticated and admitted it becomes not just an illustration of the testimony of a witness but an independent silent witness constituting substantive evidence. Saunders v. Commonwealth, 1 Va. App. 396, 339 S.E.2d 550 (1986).

Authentication of photograph. - Trial court did not err in allowing the prosecution to authenticate a photograph of allegedly stolen goods because the court resolved the inconsistent testimony regarding who took the photograph in the Commonwealth of Virginia's favor when the court admitted the photograph into evidence during the testimony of a loss prevention officer for the retail store from which the goods were allegedly stolen, who said that the officer took the photograph. Hall v. Commonwealth, 65 Va. App. 368, 778 S.E.2d 139, 2015 Va. App. LEXIS 319 (2015).

The trial court did not err in admitting photographs of recovered, stolen property in a larceny prosecution where the Commonwealth failed to comply with this section because they were received as illustrative, rather than substantive, evidence, and, thus, were not subject to the requirements of this section. Saunders v. Commonwealth, 1 Va. App. 396, 339 S.E.2d 550 (1986).

§ 19.2-270.1:1. Computer and electronic data in obscenity, etc. cases; access to defendant.

When computer data or electronic data, stored in any form, the possession of which is otherwise unlawful, are seized as evidence in a criminal prosecution of any offense involving obscenity or child pornography, neither the original data nor a copy thereof shall be released to the defendant or his counsel, nor shall a court order the release of such evidence to the defendant or his counsel except as provided herein. The defendant and his counsel shall be allowed the reasonable opportunity to review such evidence in accordance with the rules of discovery. Upon a finding that the production of the original data or a copy thereof to counsel or his designee is necessary and material to the defense of the accused, the court may order such production only under terms that restrict access to specifically identified recipients, prohibit any duplication of the data beyond what is reasonably necessary for the purpose of the production, and require the return of the data to the law-enforcement agency maintaining custody or control of the seized data for appropriate disposition.

(2006, c. 601.)

Research References. - Virginia Forms (Matthew Bender). No. 9-105. Affidavit for Search Warrant - Internet Materials.

CASE NOTES

Denial of discovery request. - Trial court did not abuse its discretion in denying defendant's discovery request for copies of the Commonwealth's photographs because it permitted defense counsel to have liberal access to the images in the office of the Commonwealth's attorney, and counsel failed to meet the statutory requirements to justify obtaining copies; defense counsel were not entitled to copies of the images absent a showing that inspecting them was insufficient, and producing copies was material and necessary. Nimety v. Commonwealth, 66 Va. App. 432, 786 S.E.2d 835 (2016).

§ 19.2-270.2. Disposition of money, securities or documents seized upon arrest, etc., and pertinent as evidence.

  1. When in the course of investigation or arrest, the investigating or arresting officer shall seize or come into the possession of moneys, cash, or negotiable or nonnegotiable instruments or securities, hereinafter called "moneys or securities," taken or retained unlawfully from a financial institution or other person, and such moneys or securities, or a portion thereof, shall be pertinent evidence in a pending prosecution or appeal therefrom, the officer or agency having possession thereof, may retain, pending such prosecution or appeal thereof, sufficient of such moneys or securities as shall be necessary to prove the crime of grand larceny or other crimes requiring a specific amount in value. The court upon motion of the attorney for the Commonwealth and for good cause shown may order the release of all moneys or securities, subject to the provisions of this section. The remaining excess moneys or securities, if any, may be released to the owner thereof, upon proper receipt therefor, which release shall be with the consent of the attorney for the Commonwealth. The officer or agency authorizing such release shall make an appropriate record of such moneys or securities released, including designation or copying of serial numbers, and such record or receipt shall be admissible into evidence in any proceeding, hearing or trial of the case to the same extent as if such moneys or securities had been introduced. Such record or receipt shall contain the name of the financial institution or person from whom such moneys or securities were taken, the place from which taken, the name of the accused, and the name of the arresting officer or officers coming into initial possession of such moneys or securities. Pictures shall be taken of any instruments or securities and such pictures shall be attached to the receipt or record above and shall contain further, in the case of such copying, the date of the photograph and the name of the photographer.
  2. When in the course of investigation or arrest, the investigating or arresting officer seizes or comes into the possession of moneys or securities under the provisions of this section, and such moneys or securities, or a portion thereof, are introduced as an exhibit in a prosecution or appeal therefrom, the court may, with the consent of the attorney for the Commonwealth, authorize the clerk of the circuit court, upon all appeal rights being exhausted, to deposit such moneys or cash in an interest-bearing account.

    (1980, c. 423; 1991, c. 680; 1995, c. 447.)

Michie's Jurisprudence. - For related discussion, see 16 M.J. Searches and Seizures, § 11.

CASE NOTES

Inapplicable as to introduction of seized items. - This section permits police authorities to retain monies and securities pending trial or appeal, or to release the items when good cause is shown and does not involve the admissibility of the items as evidence; this statute has no application to the introduction into evidence of the money and checks or copies thereof against this defendant. Nestle v. Commonwealth, 22 Va. App. 336, 470 S.E.2d 133 (1996).

§ 19.2-270.3. Admissible evidence as to identity of party presenting bad check, draft or order.

In any prosecution under § 18.2-181 or § 18.2-182 for the presentation of a bad check, draft or order, the following shall be admissible in any proceeding, hearing or trial of the case:

  1. The unpaid or dishonored check, draft or order, bearing a notation thereon of the full name, residence address, home telephone number, and either the driver's license, social security or other governmentally issued identification number of the person who delivered such check, draft or order to the payee, the cashing party or its representative, and bearing the initials of the representative of the payee or cashing party to whom the check, draft or order was delivered, as evidence that such information was transcribed on such check, draft or order at the time of such delivery; or
  2. A composite photograph of the check, draft or order, and of the person delivering such check, draft or order, and of other documentation identifying such person, such as a driver's license, social security card, or other governmentally issued identification card, taken together at the time the check, draft or order was delivered by such person to the payee, the cashing party or its representative.

    If such evidence is introduced, it may invoke an inference sufficient for the trier of fact to find that the person whose identifying information appears on the check, draft or order was the person who delivered the check, draft or order in question to the payee, cashing party or its representative.

    (1981, c. 292; 1991, c. 633.)

Research References. - Virginia Forms (Matthew Bender). No. 9-105. Affidavit for Search Warrant - Internet Materials.

Michie's Jurisprudence. - For related discussion, see 3A M.J. Banks and Banking, § 89.

CASE NOTES

This section does not create a rebuttable presumption that a bad check was presented by the person whose name, address, telephone number, and social security or other identifying number are noted thereon. If the legislative purpose was to create such a rebuttable presumption, the statutory language fell short of accomplishing that end. Such a presumption might have been specifically created, but, significantly, was not. Edwards v. Commonwealth, 227 Va. 349 , 315 S.E.2d 239 (1984).

Statutory words "may be deemed competent evidence with respect to the identity of the person who delivered the check," are not equivalent to the words "shall be sufficient evidence to show, prima facie, that the person whose identifying data is written on the face of a bad check, is the person who presented it." Edwards v. Commonwealth, 227 Va. 349 , 315 S.E.2d 239 (1984).

Identifying data must be shown to pertain to presenter. - The opening paragraph of this section makes admissible and competent, as to the identity of the presenter, only that evidence specified in the following numbered subdivisions. Thus when subdivision 1, which refers only to identifying data of the person who delivered such check, is relied on, the identifying data must still be shown somehow to pertain to the presenter of a bad check, and the presenter's identity must still be shown by some other means. Edwards v. Commonwealth, 227 Va. 349 , 315 S.E.2d 239 (1984).

§ 19.2-270.4. When donation, destruction, or return of exhibits received in evidence authorized.

  1. Except as provided in § 19.2-270.4:1 and unless objection with sufficient cause is made, the trial court in any criminal case may order the donation or destruction of any or all exhibits received in evidence during the course of the trial (i) in any misdemeanor case, at any time after the expiration of the time for filing an appeal from the final judgment of the court if no appeal is taken or if an appeal is taken, at any time after exhaustion of all appellate remedies and (ii) in any felony case, upon notice in the sentencing order or otherwise to the attorney for the Commonwealth, the defendant at his last known address, and attorney of record for the defendant in the case, after more than one year has expired from exhaustion of all appellate remedies, or, if no appeal is taken, after more than one year from the time for seeking appellate remedies has expired; and in the event the defendant is found not guilty by a court of law, the court may, upon entry of the final order, order the destruction, donation, or return of the exhibits; provided, however, if a petition for writ of habeas corpus is filed within such one-year period, then such order shall not be entered until exhaustion of such habeas corpus proceedings. Notwithstanding the foregoing, in all cases concluded prior to July 1, 2005, the notice requirement in this section shall not apply. The order of donation or destruction may require that photographs be made of all exhibits ordered to be donated or destroyed and that such photographs be appropriately labeled for future identification. In addition, the order shall state the nature of the exhibit subject to donation or destruction, identify the case in which such exhibit was received and from whom such exhibit was received, if known, and the manner by which the exhibit is to be destroyed or to whom donated. However, any money introduced into evidence, unless it is stolen from a third party, shall be subject to forfeiture by law-enforcement officials as otherwise provided by law, and if no forfeiture action is taken or if funds remain after any such forfeiture, the clerk shall escheat such funds as otherwise provided by law. No notice to the defendant shall be required in the case of exhibits the disposal or destruction of which is controlled by § 19.2-386.23 or 19.2-386.24 , in any case in which such exhibits may be seized and forfeited to the Commonwealth under Chapter 22.1 (§ 19.2-386.1 et seq.) or Chapter 22.2 (§ 19.2-386.15 et seq.), or any other forfeiture provisions, or in any case where such exhibits are deemed contraband.
  2. Except as provided in § 19.2-270.4:1 , a circuit court for good cause shown, on notice to the attorney for the Commonwealth and any attorney for a defendant in the case, may order the return of any or all exhibits to the owners thereof, notwithstanding the pendency of any appeal or petition for a writ of habeas corpus. The order may be upon such conditions as the court deems appropriate for future identification and inclusion in the record of a case subject to retrial. In addition, the owner shall acknowledge in a sworn affidavit to be filed with the record of the case, that he has retaken possession of such exhibit or exhibits.
  3. Any photographs taken pursuant to an order of donation or destruction or an order returning exhibits to the owners shall be retained with the record in the case and, if necessary, shall be admissible in any subsequent trial of the same cause, subject to all other rules of evidence.
  4. Upon petition of any organization which is exempt from taxation under § 501 (c) (3) of the Internal Revenue Code, the court in its sound discretion may order the donation of an exhibit to such charitable organization.

    (1984, c. 621; 1989, c. 481; 1994, c. 536; 2001, cc. 873, 874, 875; 2008, c. 805; 2010, cc. 352, 366, 454.)

Cross references. - As to the contents of the record on appeal before the Virginia Supreme Court, see Rule 5:10, Rules of the Virginia Supreme Court.

Editor's note. - Acts 2001, cc. 873 and 874, cl. 3, provide: "That an emergency exists and the provisions of this act, except for the provisions of Chapter 19.2, consisting of sections 19.2-327.2 through 19.2-327.6 , are in force from its passage [May 2, 2001]."

The 2001 amendments. - The 2001 amendments by cc. 873, 874 and 875 are identical, and inserted "Except as provided in § 19.2-270.4:1 and unless" at the beginning of subsection A and "Except as provided in § 19.2-270.4:1 " at the beginning of subsection B. For effective date of the amendments by cc. 873 and 874, see the Editor's note.

The 2008 amendments. - The 2008 amendment by c. 805, in subsection A, inserted "in any misdemeanor case" at the beginning of clause (i), redesignated the former clause (ii) as a continuation of clause (i), inserted present clause (ii); and in subsection B, inserted "or petition for a writ of habeas corpus" at the end of the first sentence.

The 2010 amendments. - The 2010 amendment by c. 352 in subsection A, inserted "in the sentencing order or otherwise" and "and in the event the defendant is found not guilty by a court of law, the court may, upon entry of the final order, order the destruction, donation, or return of the exhibits" in the first sentence, and inserted the second and fifth sentences.

The 2010 amendments by cc. 366 and 454 are nearly identical, and inserted the last sentence in subsection A.

Law review. - For survey, "Innocent Suffering: The Unavailability of Post-Conviction Relief in Virginia Courts," see 51 U. Rich. L. Rev. 299 (2016).

CASE NOTES

Habeas petition denied. - Petition for a writ of habeas corpus was dismissed because the chief court clerk, who obtained an order to destroy the trial exhibits in the defendant's case after the defendant's conviction was affirmed by the Supreme Court of Virginia in order to create storage space, did not act in bad faith in destroying the evidence, was not aware that the new statute had gone into effect, and was not aware that potentially exculpatory DNA evidence was destroyed in the destruction of the exhibits. Lovitt v. Warden, 266 Va. 216 , 585 S.E.2d 801, 2003 Va. LEXIS 81 (2003), cert. denied, 541 U.S. 1006, 124 S. Ct. 2018, 158 L. Ed. 2d 523 (2004); habeas corpus dismissed, stay vacated sub nom. Lovitt v. True, 330 F. Supp. 2d 603 (E.D. Va. 2004).

OPINIONS OF THE ATTORNEY GENERAL

Requirement for motion to preserve evidence. - Unless a court imposes a death sentence or a defendant files a motion to store, retain, and preserve human biological evidence, the trial court, in a criminal case that has not been appealed, may order the donation or destruction of such evidence after the time period for appeal of the final judgment has expired. See opinion of Attorney General to The Honorable Yvonne G. Smith, Clerk, Circuit Court of Henrico County, 03-094 (10/31/03).

§ 19.2-270.4:1. Storage, preservation and retention of human biological evidence in felony cases.

  1. Notwithstanding any provision of law or rule of court, upon motion of a person convicted of a felony 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.
  2. 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.
  3. 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.
  4. 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.

    (2001, cc. 873, 874, 875; 2002, c. 832; 2005, cc. 868, 881; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2001, cc. 873, 874, cl. 3, provides: "That an emergency exists and the provisions of this act, except for the provisions of Chapter 19.2, consisting of sections 19.2-327.2 through 19.2-327.6 , are in force from its passage [May 2, 2001]."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendment by c. 832 substituted "specifically identified" for "any" in the first sentence in subsection A.

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "15" for "fifteen" in subsection A; and substituted "Department" for "Division" three times in subsections A through C and one time in subsection D.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "but not sentenced to death" following "convicted of a felony" in the first sentence; deleted former subsection B, which read: "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"; and redesignated the remaining subsections accordingly.

Law review. - For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 28.

CASE NOTES

No bad faith in destruction of trial exhibits. - Petition for a writ of habeas corpus was dismissed because the chief court clerk, who obtained an order to destroy the trial exhibits in the defendant's case after the defendant's conviction was affirmed by the Supreme Court of Virginia in order to create storage space, did not act in bad faith in destroying the evidence, was not aware that the new statute had gone into effect, and was not aware that potentially exculpatory DNA evidence was destroyed in the destruction of the exhibits. Lovitt v. Warden, 266 Va. 216 , 585 S.E.2d 801, 2003 Va. LEXIS 81 (2003), cert. denied, 541 U.S. 1006, 124 S. Ct. 2018, 158 L. Ed. 2d 523 (2004); habeas corpus dismissed, stay vacated sub nom. Lovitt v. True, 330 F. Supp. 2d 603 (E.D. Va. 2004).

CIRCUIT COURT OPINIONS

Request limited to specifically identified human biological evidence. - Trial court denied the defendant's motion to preserve biological evidence as the defendant made a blanket request for all evidence; however, pursuant to subsection A of § 19.2-270.4:1 , the defendant could only request the court to preserve specifically identified human biological evidence. Commonwealth v. Stevens, 60 Va. Cir. 432, 2002 Va. Cir. LEXIS 415 (Richmond 2002).

Request for storage of hair samples granted. - Defendant's request, after his conviction for statutory burglary and attempted grand larceny, for new scientific testing of hair samples found at the scene of the crime, pursuant to § 19.2-327.1 , was denied where the results thereof would not have resulted in a changed outcome because the trial court had given no weight to the prior analysis of such hair fragments and there was sufficient other evidence to support the conviction; however, the court granted defendant's motion to store, preserve, and retain his human biological evidence for a period of 15 years pursuant to § 19.2-270.4:1 . Neal v. Commonwealth's Atty. of Roanoke City, 60 Va. Cir. 440, 2002 Va. Cir. LEXIS 305 (Roanoke 2002).

OPINIONS OF THE ATTORNEY GENERAL

Requirement for motion to preserve evidence. - Unless a court imposes a death sentence or a defendant files a motion to store, retain, and preserve human biological evidence, the trial court, in a criminal case that has not been appealed, may order the donation or destruction of such evidence after the time period for appeal of the final judgment has expired. See opinion of Attorney General to The Honorable Yvonne G. Smith, Clerk, Circuit Court of Henrico County, 03-094 (10/31/03).

§ 19.2-270.5. DNA profile admissible in criminal proceeding.

In any criminal proceeding, DNA (deoxyribonucleic acid) testing shall be deemed to be a reliable scientific technique and the evidence of a DNA profile comparison may be admitted to prove or disprove the identity of any person. This section shall not otherwise limit the introduction of any relevant evidence bearing upon any question at issue before the court, including the accuracy and reliability of the procedures employed in the collection and analysis of a particular DNA sample. The court shall, regardless of the results of the DNA analysis, if any, consider such other relevant evidence of the identity of the accused as shall be admissible in evidence.

At least twenty-one days prior to commencement of the proceeding in which the results of a DNA analysis will be offered as evidence, the party intending to offer the evidence shall notify the opposing party, in writing, of the intent to offer the analysis and shall provide or make available copies of the profiles and the report or statement to be introduced. In the event that such notice is not given, and the person proffers such evidence, then the court may in its discretion either allow the opposing party a continuance or, under appropriate circumstances, bar the person from presenting such evidence. The period of any such continuance shall not be counted for speedy trial purposes under § 19.2-243 . If the opposing party intends to object to the admissibility of such evidence he shall give written notice of that fact and the basis for his objections at least ten days prior to commencement of the proceedings.

(1990, c. 669; 1997, c. 315; 2002, cc. 627, 885.)

The 2002 amendments. - The 2002 amendments by cc. 627 and 835 are identical, and deleted the last paragraph, which read: "No blood sample submitted to the Division of Forensic Science for analysis and use as provided in this section and no results of the analysis performed shall be included in the DNA data bank established by the Division pursuant to § 19.2-310.5 or otherwise used in any way with identifying information on the person whose sample was submitted."

Law review. - For note, "DNA Fingerprinting: The Virginia Approach," see 35 Wm. & Mary L. Rev. 767 (1994).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For comment, "Rapid DNA Testing and Virginia's Rape Kit Backlog: A Double-Edged Sword Masquerading as a Miracle, or the Future of Forensic Analysis?" see 52 U. Rich. L. Rev. 941 (2018).

Research References. - Virginia Forms (Matthew Bender). No. 9-103. Affidavit for Search Warrant - DNA Materials.

CASE NOTES

Virginia's statute governing admission of DNA evidence was simply a rule of evidence, merely stating that such evidence is to be treated as scientifically reliable, and did not shift the burden of proof to the defendant or determine his guilt. Satcher v. Netherland, 944 F. Supp. 1222 (E.D. Va. 1996), aff'd in part and rev'd in part on other grounds sub nom. Satcher v. Pruett, 126 F.3d 561 (4th Cir.), cert. denied, 522 U.S. 1010, 118 S. Ct. 595, 139 L. Ed. 2d 431 (1997).

Profiles, reports or statements. - A probability calculation or probability report indicating statistical probability of a DNA match constitutes a "profile," "report" or "statement" within meaning of this section. Beverly v. Commonwealth, No. 0852-98-2 (Ct. of Appeals June 29, 1999).

This section does not require that copies of profiles, statements or reports to be introduced be attached to the notice; it requires only that they be "provided or made available." Beverly v. Commonwealth, No. 0852-98-2 (Ct. of Appeals June 29, 1999).

Prosecution's filing of third DNA notice less than 21 days before trial was irrelevant to the report's admissibility, where report had previously been timely attached to both first and second DNA notices. Beverly v. Commonwealth, No. 0852-98-2 (Ct. of Appeals June 29, 1999).

The supplemental report prepared by the expert merely completed the summary of the analysis contained in expert's earlier report, and it thus constituted additional analysis of the DNA evidence in question, not an analysis of new evidence requiring additional notice to defendant. Hills v. Commonwealth, 32 Va. App. 479, 528 S.E.2d 730, 2000 Va. App. LEXIS 388 (2000).

Fake DNA certificate of analysis. - Trial court properly rejected defendant's request for a dismissal based on an alleged Brady violation when defendant's counsel contended that counsel first learned at trial that one of the several DNA certificates of analysis was a fake prepared by a detective for possible use during a pre-arrest interview of defendant as defendant suffered no genuine prejudice, much less irreparable prejudice that only a dismissal could remedy. Romero v. Commonwealth,, 2014 Va. App. LEXIS 114 (Mar. 25, 2014).

Where notice not given, options of court. - The statute provides that, in the event timely notice is not given, "then the court may in its discretion either allow ... a continuance or ... bar... such evidence." That language expressly limits the court's discretion by the disjunctive "or" to a choice of "either" of two defined options. Stated differently, if a trial court determines that the evidence is admissible, the statute requires the court to grant a motion to interrupt and postpone the progress of the trial to afford the defense a period of time for consultation with other experts and preparation of an appropriate response to the new evidence. Caprio v. Commonwealth, 254 Va. 507 , 493 S.E.2d 371 (1997).

Extrapolation of blood profile frequency was within contemplation of statute. - Extrapolation of blood profile frequency based upon expert's analysis of a series of DNA profiles and reports was a matter within the contemplation of the statute. Caprio v. Commonwealth, 254 Va. 507 , 493 S.E.2d 371 (1997).

Exclusion of hypothesis. - While defendant's hypothesis that the DNA evidence did not consider the existence of an identical twin or close relative to defendant - a circumstance which would diminish the probability that he was the perpetrator - was conceivable, it had no basis in the record. The Commonwealth must only exclude hypotheses of innocence that reasonably flow from the evidence, not from defendant's imagination, therefore, the evidence provided ample support for the convictions. Taylor v. Commonwealth, No. 1767-93-1 (Ct. of Appeals Feb. 28, 1995).

Evidence properly admitted. - Trial court properly admitted testimony by two scientists regarding DNA testing, with all its constituent parts, including the DNA profile comparisons, as their calculation of the statistical probability of randomly selecting an individual with the profile unrelated to defendant was based on allele frequency data whose admissibility has been legislatively determined. Ramsey v. Commonwealth, 63 Va. App. 341, 757 S.E.2d 576, 2014 Va. App. LEXIS 171 (2014).

Harmless error. - Even assuming that the Commonwealth did not comply with § 19.2-270.5 regarding a DNA certificate, any error was harmless under § 8.01-678 because the forensic scientist who prepared the DNA certificate testified at trial, explaining the testing conducted, and, thus, the certificate was duplicative of her testimony; even without the certificate, the evidence against defendant was overwhelming as he was seen in the vicinity of the bank shortly after the robbery wearing the same clothes as the perpetrator. Whitted v. Commonwealth,, 2008 Va. App. LEXIS 248 (May 20, 2008).

CIRCUIT COURT OPINIONS

Where court offers a continuance. - Petitioner was not denied his right to due process warranting habeas relief by the trial court's refusal to bar DNA evidence that the Commonwealth untimely disclosed because, although § 19.2-270.5 required the trial court to provide petitioner with an opportunity for the defense to consult with other experts and prepare an appropriate response to the new evidence, the trial court asked petitioner if he wanted a continuance in the event it did not find appropriate circumstances to bar admission of the evidence but petitioner declined. Hudson v. Dir. of the Dep't of Corr., 67 Va. Cir. 319, 2005 Va. Cir. LEXIS 147 (Clarke County May 16, 2005).

§ 19.2-270.6. Evidence of abuse admissible in certain criminal trials (Supreme Court Rule 2:409 derived from this section).

In any criminal prosecution alleging personal injury or death, or the attempt to cause personal injury or death, relevant evidence of repeated physical and psychological abuse of the accused by the victim shall be admissible, subject to the general rules of evidence.

(1993, c. 5.)

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

Michie's Jurisprudence. - For related discussion, see 7B M.J. Evidence, § 47.

CIRCUIT COURT OPINIONS

Expert testimony. - Defendant's expert witness was not barred because if there was evidence of the victim's attack, defendant could present relevant evidence of her repeated physical and psychological and expert testimony of Battered Person Syndrome in support of her own self-defense provided it does not usurp the function of the jury; defendant's proffer had to identify the expert, and the circuit court had to find that he subject matter was beyond the knowledge of ordinary persons. Commonwealth v. McDowell,, 2013 Va. Cir. LEXIS 231 (Lancaster County Sept. 16, 2013).

§ 19.2-270.7. Determining decibel level of sound with proper equipment; certificate as to accuracy of equipment.

A law-enforcement officer may use equipment deemed proper pursuant to subsection C of § 2.2-1112 to determine the decibel level of any sound, including noise. The results of such determinations shall be accepted as prima facie evidence of the decibel level of the sound in any court or legal proceeding where the decibel level of the sound is at issue.

In any court or legal proceeding in which any question arises about the calibration or accuracy of such equipment used to determine the decibel level of sound, a certificate, or a true copy thereof, showing the calibration or testing for accuracy of the equipment, and when and by whom the calibration or test was made, shall be admissible as evidence of the facts therein stated. No calibration or testing of such equipment shall be valid for longer than 12 months.

(2010, c. 558.)

§ 19.2-271. Certain judicial officers incompetent to testify under certain circumstances; exceptions (Supreme Court Rule 2:605 derived from this section).

No judge shall be competent to testify in any criminal or civil proceeding as to any matter which came before him in the course of his official duties.

Except as otherwise provided in this section, no clerk of any court, magistrate, or other person having the power to issue warrants, shall be competent to testify in any criminal or civil proceeding as to any matter which came before him in the course of his official duties. Such person shall be competent to testify in any criminal proceeding wherein the defendant is charged with perjury or pursuant to the provisions of § 18.2-460 or in any proceeding authorized pursuant to § 19.2-353.3 . Notwithstanding any other provision of this section, any judge, clerk of any court, magistrate, or other person having the power to issue warrants, who is the victim of a crime, shall not be incompetent solely because of his office to testify in any criminal or civil proceeding arising out of the crime.

(Code 1950, §§ 19.1-267, 19.1-268; 1960, c. 366; 1975, c. 495; 1976, c. 269; 1989, c. 738; 1990, c. 602; 2015, c. 635.)

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

The 2015 amendments. - The 2015 amendment by c. 635 in the second paragraph, substituted "Except as otherwise provided in this section, no" for "No," deleted "except proceedings wherein the defendant is charged with perjury" following "criminal or civil proceeding" in the first sentence, and inserted "with perjury or" in the second sentence.

Law review. - For note, "Lying on the Stand Won't Cost You a Dime: Should Courts Recognize a Civil Action in Tort for Perjury?," see 44 Wash. & Lee L. Rev. 1257 (1988).

Michie's Jurisprudence. - For related discussion, see 8B M.J. Forgery, § 17; 9A M.J. Habeas Corpus, § 23; 20 M.J. Witnesses, §§ 11.1, 80.

CASE NOTES

This section is not a blanket prohibition against clerks testifying; it prohibits, instead, clerks testifying regarding factual matters which have come before them in the course of their official duties. This section does not prevent a clerk from testifying how and whether he has performed a ministerial function. Carter v. Commonwealth, No. 1930-89-2 (Ct. of Appeals March 26, 1991); Carter v. Commonwealth, 12 Va. App. 156, 403 S.E.2d 360 (1991).

This section is intended to protect an accused against the testimony of certain judicial officers before whom he has appeared as to admissions or confessions made by him. Baylor v. Commonwealth, 190 Va. 116 , 56 S.E.2d 77 (1949).

But it has no application to an extrajudicial statement. Owens v. Commonwealth, 186 Va. 689 , 43 S.E.2d 895 (1947).

Therefore, statement of accused to judge after judgment is admissible. - Where the testimony of the mayor in whose court case was first tried did not embrace any statements made by the accused on his trial, but embraced a statement made by the accused after judgment had been pronounced against him, it was held that the court did not err in admitting this evidence as it did not violate this section. Pflaster v. Town of Berryville, 157 Va. 859 , 161 S.E. 58 (1931).

Error to allow judge's testimony. - Trial court erred in allowing the sitting circuit judge to testify in defendant's civil and criminal contempt case where he defied the trial court's order to have a deputy at the courthouse entrance during weekly business hours, and he took down signs ordered to be posted by the trial court about when the courthouse would be closed absent a deputy at the front entrance despite at least one request by the trial court that a sign and corresponding order be returned; the court itself, and not the trial judge, was the victim of defendant's contemptuous conduct and other statutory authority, such as § 18.2-459 , did not permit a judicial officer who simply witnesses contemptuous behavior to testify. Epps v. Commonwealth, 47 Va. App. 687, 626 S.E.2d 912, 2006 Va. App. LEXIS 102 (2006).

Because it was the court as an institution which was harmed by contemptuous behavior, a judge was not a "victim" under § 19.2-271 for purposes of a contempt proceeding; a trial court erred in finding that a judge was a victim of alleged contempt, and in permitting the judge to testify. Commonwealth v. Epps, 273 Va. 410 , 641 S.E.2d 77, 2007 Va. LEXIS 35 (2007).

No error to allow judge's testimony. - Because a judge passively witnessed defendant's conduct, and did not preside over any of the proceedings, he was properly allowed to testify, despite defendant's claim that the judge was not listed as a witness on the bill of particulars and no discovery order requiring the production of witnesses had been entered; moreover, defendant's claim that the judge's testimony was cumulative was not addressed, as such was raised for the first time on appeal. Bennett v. Commonwealth, No. 3047-05-2, 2007 Va. App. LEXIS 155 (Apr. 17, 2007).

Defendant's constitutional right of confrontation was not violated by admission into evidence in criminal proceeding of certificate prepared by general district court judge, which detailed circumstances of offense. Baugh v. Commonwealth, 14 Va. App. 368, 417 S.E.2d 891 (1992), overruled in part by Gilman v. Commonwealth, 275 Va. 222 , 657 S.E.2d 474, 2008 Va. LEXIS 23 (2008).

Virginia legislature does not intend to give birth to a constitutional right to cross-examine a juvenile and domestic relations district court (JDR court) judge at an appeal of a petty direct summary contempt proceeding, a right that a defendant does not otherwise have in the JDR court or the circuit court, as: (1) a JDR court proceeding is not a criminal prosecution within the scope of the Sixth Amendment; (2) there is no constitutional right to trial at the JDR court and no constitutional right of appeal; (3) there is a statutory prohibition against calling a judge as a witness; and (4) the Virginia general assembly provides a statutory right of appeal with the caveat that a certificate from the JDR court can be used in such an appeal. Gilman v. Commonwealth, 48 Va. App. 16, 628 S.E.2d 54, 2006 Va. App. LEXIS 130 (2006), rehearing granted, 48 Va. App. 236, 629 S.E.2d 720 (2006), opinion withdrawn, vacated by 2006 Va. App. LEXIS 456 (Oct. 10, 2006).

Defendant must articulate basis for challenge. - It may be inappropriate to deny a challenge to a magistrate's neutrality in every instance, but where the defendant has not articulated a basis for his challenge, the trial court is justified in disallowing the defense to interrogate magistrate. Singleton v. Commonwealth, No. 1481-85 (Ct. of Appeals Aug. 31, 1987).

Applied in Bartlett v. Bank of Carroll, 218 Va. 240 , 237 S.E.2d 115 (1977).

CIRCUIT COURT OPINIONS

Magistrate's testimony not allowed. - In a malicious prosecution action, a magistrate's testimony was not permitted, as it was irrelevant; neither defendant police officer nor the jury was entitled to place more reliance on arrest warrants issued by one magistrate over another because of one magistrate's additional education or job experience. Archer v. Fink, 56 Va. Cir. 253, 2001 Va. Cir. LEXIS 455 (Charlottesville 2001).

§ 19.2-271.1. Competency of spouses to testify.

Persons married to each other shall be competent witnesses to testify for or against each other in criminal cases, except as otherwise provided.

(Code 1950, § 8-287; 1977, c. 624; 2020, c. 900.)

Cross references. - As to competency of husband and wife to testify for or against each other in civil cases, see § 8.01-398 .

The 2020 amendments. - The 2020 amendment by c. 900, substituted "Persons married to each other" for "Husband and wife."

Michie's Jurisprudence. - For related discussion, see 9B M.J. Husband and Wife, § 87; 20 M.J. Witnesses, § 7.

CASE NOTES

Determination to be made at time of trial. - "The privilege of an accused to prevent his spouse from testifying against him is determined at the time of trial and depends upon the couple being validly married at that time." Livingston v. Commonwealth, 21 Va. App. 621, 466 S.E.2d 757 (1996).

The Commonwealth's attorney had the burden of first obtaining the consent of the accused husband before it could call the wife as a witness against him. Livingston v. Commonwealth, 21 Va. App. 621, 466 S.E.2d 757 (1996).

A person is not incompetent to testify against his spouse under Virginia law. Shiflett v. Virginia, 447 F.2d 50 (4th Cir. 1971), cert. denied, 405 U.S. 994, 92 S. Ct. 1267, 31 L. Ed. 2d 462 (1972), decided under former § 8-287.

And he can testify freely unless the spouse objects. Shiflett v. Virginia, 447 F.2d 50 (4th Cir. 1971), cert. denied, 405 U.S. 994, 92 S. Ct. 1267, 31 L. Ed. 2d 462 (1972), decided under former § 8-287.

In which event the spouse is privileged to prevent any testimony. - See Shiflett v. Virginia, 447 F.2d 50 (4th Cir. 1971), cert. denied, 405 U.S. 994, 92 S. Ct. 1267, 31 L. Ed. 2d 462 (1972), decided under former § 8-287.

§ 19.2-271.2. Testimony of spouses in criminal cases (Subsection (b) of Supreme Court Rule 2:504 derived from this section).

In criminal cases, persons married to each other shall be allowed, and, subject to the rules of evidence governing other witnesses, may be compelled to testify in behalf of each other, but neither shall be compelled to be called as a witness against the other, except (i) in the case of a prosecution for an offense committed by one against the other, against a minor child of either, or against the property of either; (ii) in any case where either is charged with forgery of the name of the other or uttering or attempting to utter a writing bearing the allegedly forged signature of the other; or (iii) in any proceeding relating to a violation of the laws pertaining to criminal sexual assault (§§ 18.2-61 through 18.2-67.10 ), crimes against nature (§ 18.2-361 ) involving a minor as a victim and provided that the defendant and the victim are not married to each other, incest (§ 18.2-366 ), or abuse of children (§§ 18.2-370 through 18.2-371 ). The failure of either spouse to testify, however, shall create no presumption against the accused, nor be the subject of any comment before the court or jury by any attorney.

Except in the prosecution for a criminal offense as set forth in clause (i), (ii), or (iii), in any criminal proceeding, a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communication between his spouse and him during their marriage, regardless of whether he is married to that spouse at the time he objects to disclosure. For the purposes of this section, "confidential communication" means a communication made privately by a person to his spouse that is not intended for disclosure to any other person.

(Code 1950, § 8-288; 1950, p. 664; 1958, c. 231; 1960, c. 469; 1977, c. 624; 1988, c. 482; 1993, c. 637; 1996, c. 423; 2005, c. 809; 2020, c. 900.)

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

The 2005 amendments. - The 2005 amendment by c. 809, in the first paragraph, deleted "and subject to the exception stated in § 8.01-398 " preceding "may be compelled to testify," and inserted "against the property of either"; rewrote the last paragraph; and made minor stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 900, in the first paragraph, substituted "persons married to each other" for "husband and wife" in the first sentence in the introductory language and "spouse" for "husband or wife" in the last sentence; and in the second paragraph, substituted "clause (i), (ii), or (iii)" for " (i), (ii) or (iii) above" in the first sentence.

Law review. - For survey of Virginia law on evidence for the year 1977-1978, see 64 Va. L. Rev. 1451 (1978). For comment on confidential communication privileges under federal and Virginia law, see 13 U. Rich. L. Rev. 593 (1979).

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 9 Discovery. § 9.04 Privileges Against Discovery. Bryson.

Virginia Forms (Matthew Bender). No. 9-2232. Motion to Prohibit Testimony.

Michie's Jurisprudence. - For related discussion, see 6A M.J. Divorce and Alimony, § 33; 9B M.J. Husband and Wife, § 87; 20 M.J. Witnesses, § 7.

Editor's note. - Many of the cases cited in the following annotations were decided under former § 8-288, which was comparable to this section, and under this section as it read prior to the 1996 amendment eliminating defendant spouse's privilege to ban witness spouse from testifying against him.

CASE NOTES

Consent of defendant spouse no longer required. - In 1996, the legislature amended this statute to eliminate the defendant spouse's privilege to bar the witness spouse from testifying against the defendant, while preserving in the witness spouse the privilege to avoid compelled testimony, subject to certain statutory exceptions. Turner v. Commonwealth, 33 Va. App. 88, 531 S.E.2d 619, 2000 Va. App. LEXIS 566 (2000).

The language of this section is mandatory. Jones v. Commonwealth, 218 Va. 732 , 240 S.E.2d 526 (1978).

The context of the phrase "criminal cases" indicates that the legislature intended for the marital privilege of this section to apply in an adversarial trial proceeding. Livingston v. Commonwealth, 21 Va. App. 621, 466 S.E.2d 757 (1996).

"Subject to the exception stated in § 8.01-398 " is construed as a cross-reference which embodies the proviso in § 8.01-398 concerning confidential communications. This has the effect of retaining, as a part of the law of criminal procedure, the historic interspousal confidential communication privilege which was formerly contained in § 8-289, notwithstanding the apparent confinement of its successor statute, the present § 8.01-398 , to "civil actions." In the absence of an express enactment to that effect, the supreme court will not assume that the General Assembly intended to abrogate this long-standing rule. Church v. Commonwealth, 230 Va. 208 , 335 S.E.2d 823 (1985).

This section does not prohibit testimony at pretrial hearing to determine marital status. - Although husband faced trial for criminal charges, this section would not apply to prohibit his wife from testifying at a pretrial hearing to determine the marital status of the parties. Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200 (1989).

A person is not incompetent to testify against his spouse under Virginia law. Shiflett v. Virginia, 447 F.2d 50 (4th Cir. 1971), cert. denied, 405 U.S. 994, 92 S. Ct. 1267, 31 L. Ed. 2d 462 (1972).

And he can testify freely unless the spouse objects. Shiflett v. Virginia, 447 F.2d 50 (4th Cir. 1971), cert. denied, 405 U.S. 994, 92 S. Ct. 1267, 31 L. Ed. 2d 462 (1972).

In which event the spouse is privileged to prevent any testimony. - See Shiflett v. Virginia, 447 F.2d 50 (4th Cir. 1971), cert. denied, 405 U.S. 994, 92 S. Ct. 1267, 31 L. Ed. 2d 462 (1972).

And this is only circumstance in which section does not apply. - This section does not apply only if the Commonwealth attempts to call the wife as a witness against her husband and the husband objects. Jones v. Commonwealth, 218 Va. 732 , 240 S.E.2d 526 (1978).

Exercise of privilege rested with testifying spouse. - Trial court erred in limiting defendant's cross-examination of the alleged shooting victim's wife, as neither the Commonwealth nor the victim had the right to invoke spousal immunity if the victim's wife was willing to testify, as the spousal immunity privilege rested with the testifying spouse, not defendant spouse, under § 19.2-271.2 ; in addition, even if there had been a privileged marital communication, the privilege was waived when the victim testified, without objection, concerning what the victim had told the victim's wife. Holt v. Commonwealth, No. 2542-01-3, 2003 Va. App. LEXIS 215 (Ct. of Appeals Apr. 8, 2003).

Privilege determined at time of trial. - The privilege of an accused to prevent his spouse from testifying against him is determined at the time of trial and depends upon the couple being validly married at that time. Stewart v. Commonwealth, 219 Va. 887 , 252 S.E.2d 329 (1979).

"The privilege of an accused to prevent his spouse from testifying against him is determined at the time of trial and depends upon the couple being validly married at that time." Livingston v. Commonwealth, 21 Va. App. 621, 466 S.E.2d 757 (1996).

Thus, divorce decree after commission of offense terminated privilege. - A decree which granted a defendant's wife a divorce from bed and board after the charged offense of grand larceny of the wife's personal property was allegedly committed by defendant terminated defendant's privilege of preventing his wife from testifying against him, and, thus, she could testify against him in grand larceny prosecution. Stewart v. Commonwealth, 219 Va. 887 , 252 S.E.2d 329 (1979).

Interspousal confidential communication privilege survived dissolution of marriage. - The confidential communications made by the defendant to his wife during their marriage must be treated as privileged if the case is tried again. Church v. Commonwealth, 230 Va. 208 , 335 S.E.2d 823 (1985).

Offense committed prior to marriage. - Neither spouse may testify for or against the other in the prosecution of either for an offense committed before marriage. Stevens v. Commonwealth, 207 Va. 371 , 150 S.E.2d 229 (1966).

Marriage must be valid. - This rule operates only where there is a valid marriage. United States v. Neeley, 475 F.2d 1136 (4th Cir. 1973).

When the defendant has never legally divorced his third wife, he cannot rely on any exclusionary rules based on the existence of subsequent valid marriages. United States v. Neeley, 475 F.2d 1136 (4th Cir. 1973).

Prior marriage in effect. - At defendant's request, a California court entered a final order of divorce nunc pro tunc, dissolving wife's first marriage and validating her subsequent marriage to defendant; but upon subsequent proceedings on behalf of wife and the former husband, that court set aside the nunc pro tunc judgment; therefore, wife's first marriage was still in effect, precluding husband from objecting to her testimony under this section, and the giving of effect to the California court's most recent order was proper under subsection B of § 8.01-389 . Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200 (1989).

This section provides no exception where an alibi defense is asserted. Jones v. Commonwealth, 218 Va. 732 , 240 S.E.2d 526 (1978).

When extrajudicial statements admissible. - Where the wife's extrajudicial statements are made with the actual or constructive knowledge and with the express or tacit consent of the husband, they are admissible in evidence against him. Coppola v. Commonwealth, 220 Va. 243 , 257 S.E.2d 797 (1979), cert. denied, 444 U.S. 1103, 100 S. Ct. 1069, 62 L. Ed. 2d 788 (1980).

Statute pertained specifically to testimony in criminal cases, and did not apply to a report of earlier extrajudicial statements. Wolfe v. Commonwealth, 37 Va. App. 136, 554 S.E.2d 695, 2001 Va. App. LEXIS 629 (2001).

Once the defendant's wife invoked the marital privilege, she could not be compelled to testify; she was, therefore, unavailable for the purpose of admitting her hearsay statement to the police made following her arrest. Therefore, the trial court did not error in admitting into evidence the confession the defendant's wife made to the police, after she invoked the spousal privilege at trial and refused to testify, because the confession was admissible as a declaration against the wife's interest. Nowlin v. Commonwealth, 40 Va. App. 327, 579 S.E.2d 367, 2003 Va. App. LEXIS 218 (2003), but see Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

Because defendant's communication to his estranged wife over a cell phone concerned acts for which the wife had a right of action against defendant, neither § 8.01-398 nor the exception in § 19.2-271.2 forbade her testimony as to his statement. Braxton v. Commonwealth,, 2006 Va. App. LEXIS 313 (July 18, 2006).

Defendant's convictions for rape and forcible sodomy of defendant's teenage stepdaughter were not obtained in violation of defendant's ex post facto clause rights; admission was proper of the testimony of the victim's mother, defendant's wife, of statements that defendant made to her and a tape recording the mother made containing defendant's incriminating statements under amendments to §§ 8.01-398 and 19.2-271.2 since the evidence did not change the quantum of proof necessary to obtain the convictions but only changed the admissibility of evidence that could be offered to obtain the convictions. Carpenter v. Commonwealth, 51 Va. App. 84, 654 S.E.2d 345, 2007 Va. App. LEXIS 463 (2007).

Inapplicable in criminal investigations. - This section lists several exceptions to the general rule that an accused's spouse may not be called as a witness against him without his consent. These exceptions use the terms "prosecution," "case," and "proceeding" to describe situations in which an accused's spouse may testify against him. By using these terms interchangeably, the legislature thus defined "criminal cases" as "prosecutions" and "proceedings" and did not intend to include criminal investigation. Livingston v. Commonwealth, 21 Va. App. 621, 466 S.E.2d 757 (1996).

The language of this section clearly contemplates an adversarial proceeding such as a preliminary hearing or trial, not pretrial criminal investigation by the police. Furthermore, case law interpreting the marital privilege of this section has dealt only with a trial. Livingston v. Commonwealth, 21 Va. App. 621, 466 S.E.2d 757 (1996).

The "criminal case" contemplated by this section would encompass only potential testimony of wife at the trial on the misdemeanor marijuana possession charge and at the preliminary hearing and trial on the felony cocaine charge. Thus, the trial court did not err in denying appellant's motion to suppress the drugs seized from his home. Livingston v. Commonwealth, 21 Va. App. 621, 466 S.E.2d 757 (1996).

The rationale of the co-conspirator exception to the hearsay rule nullifies the application of the spousal privilege to extrajudicial statements made by one spouse when acting in concert with the other spouse and the fact that the accused is not charged with conspiring with his spouse is of no consequence since admissions of one spouse that are expressly adopted by the other spouse are clearly admissible. Stumpf v. Commonwealth, 8 Va. App. 200, 379 S.E.2d 480 (1989).

Argument prohibited by section. - The argument that if the wife had been called to testify for the defendant, her testimony would have been unfavorable is the kind of argument which this section was intended to prohibit. Jones v. Commonwealth, 218 Va. 732 , 240 S.E.2d 526 (1978).

Exception inapplicable. - In the absence of a prosecution for an offense committed by one spouse against the other, the statutory exception to spousal privilege contained in this section is inapplicable. Creech v. Commonwealth, 242 Va. 385 , 410 S.E.2d 650 (1991).

Where defendant's wife's property was destroyed along with defendant's house in a fire; defendant was indicted and tried solely for arson of his house; and defendant was neither charged with, nor tried for, any offense against his wife; it was error to allow defendant's wife to testify at his arson trial without his consent. Creech v. Commonwealth, 242 Va. 385 , 410 S.E.2d 650 (1991).

Section 19.2-271.2(i) did not apply because the husband was not the victim of the offense; the husband did not rely on defendant's deceit, as he testified that he had no knowledge that defendant had written the check, he was not defrauded, and he parted with nothing of value because the bank had earlier closed the account from which defendant wrote the check. Lindsey v. Commonwealth, No. 1494-06-2, 2007 Va. App. LEXIS 480 (Dec. 27, 2007).

Section 19.2-271.2 (ii) did not apply because defendant was indicted for uttering a check with insufficient funds, she was not charged with "forgery or uttering." Lindsey v. Commonwealth, No. 1494-06-2, 2007 Va. App. LEXIS 480 (Dec. 27, 2007).

Statutory requirements of § 19.2-271.2 (ii) are met only when the Commonwealth specifically charges forgery, or uttering, or attempting to utter a document bearing the alleged forged name of the spouse. Lindsey v. Commonwealth, No. 1494-06-2, 2007 Va. App. LEXIS 480 (Dec. 27, 2007).

Burden of obtaining consent of accused upon Commonwealth. - The language employed shows the plain intent of the legislature to place upon the Commonwealth the burden of first obtaining the consent of the accused husband before it will be allowed to call the wife as a witness against him. Wilson v. Commonwealth, 157 Va. 962 , 162 S.E. 15 (1932); Brown v. Commonwealth, 208 Va. 512 , 158 S.E.2d 663 (1968).

The evil which the legislature sought to correct was exemplified in the case at bar, viz.: the intentional effort of the attorney for the Commonwealth was to force the accused to object to the introduction of his wife as a witness against him, and thus, perhaps, have the jury place upon him the odium of seeking to prevent a fair investigation of the transaction. An accused should not, by willful act, be placed in such an attitude before the jury by the representative of the Commonwealth. Wilson v. Commonwealth, 157 Va. 962 , 162 S.E. 15 (1932); Brown v. Commonwealth, 208 Va. 512 , 158 S.E.2d 663 (1968). See also Roller v. Commonwealth, 161 Va. 1104 , 172 S.E. 242 (1932).

The Commonwealth's attorney has " 'the burden of first obtaining the consent of the accused husband before it will be allowed to call the wife as a witness against him.' " Livingston v. Commonwealth, 21 Va. App. 621, 466 S.E.2d 757 (1996).

Adoption of wife's words by accused made them his own. - Where a defendant in a confession agreed with his wife's statement concerning what happened in the incident in which the defendant was involved, it was necessary to give content to his indication of acquiescence. His adoption of her words made them his own, and did not constitute testimony by the wife over the defendant's objection. Shiflett v. Virginia, 447 F.2d 50 (4th Cir. 1971), cert. denied, 405 U.S. 994, 92 S. Ct. 1267, 31 L. Ed. 2d 462 (1972).

Effect of dismissal of charge of offense committed against spouse. - Where the defendant was originally charged with the attempted murder of his wife, but the Commonwealth elected not to prosecute that offense and that charge was dismissed prior to trial, and the defendant was brought to trial under indictments charging him with the murder of another and using a firearm in the commission of that felony, neither of the indictments charged that defendant committed an offense against his wife, so neither was a prosecution for an offense committed against the wife. Therefore, the wife was incompetent to testify against her husband. Jenkins v. Commonwealth, 219 Va. 764 , 250 S.E.2d 763 (1979).

Comment by attorney for the Commonwealth in violation of section was not harmless error. - A comment by the attorney for the Commonwealth in violation of this section concerning the failure of the defendant's wife to testify concerning his alibi was not harmless error where it may have contributed to the quantum of punishment. Jones v. Commonwealth, 218 Va. 732 , 240 S.E.2d 526 (1978).

Mother not barred from testifying against father in incest case. - A minor daughter's participation in an incestuous relationship did not mean that the offense was not committed "against" her so as to bring her mother's testimony within the exception to the statutory bar. The daughter's participation resulted from the father's intimidation and coercion and offense was as much "against" her as if the father had assaulted or maimed her. Cumbee v. Commonwealth, 219 Va. 1132 , 254 S.E.2d 112 (1979).

This section should be given a reasonable construction; it is not a penal statute that must be construed strictly against the Commonwealth. Brown v. Commonwealth, 223 Va. 601 , 292 S.E.2d 319 (1982).

Spouse may testify in prosecution for offenses against self and third party. - Where one spouse has testified in a criminal prosecution against the other, whatever marital harmony once existed has been dissipated, and the spousal privilege no longer serves a useful purpose. Accordingly, where one spouse is indicted for an offense against the other and an offense against a third party, and both offenses arose from a common criminal enterprise, the witness-spouse can testify against the defendant-spouse in the prosecution of both charges. Brown v. Commonwealth, 223 Va. 601 , 292 S.E.2d 319 (1982).

Attire observations not per se admissible. - There is no per se rule allowing the admission of spouse's observations of other's attire. Some acts, such as cross-dressing, or wearing bloody clothing, might be considered confidential communications. Edwards v. Commonwealth, 20 Va. App. 470, 457 S.E.2d 797 (1995).

Testimony in prosecution for property offense permitted. - This section permits spousal testimony in prosecutions for offenses committed by one spouse against the property as well as the person of the other, and accordingly a wife is a competent witness against her husband in his prosecution for larceny of her property. Hudson v. Commonwealth, 223 Va. 596 , 292 S.E.2d 317 (1982).

Testimony properly admitted. - Wife's description of the defendant's clothing, which he displayed in public when he left the home, was not a confidential communication. Further, it is reasonable to infer that clothing worn in public was not intended to be kept private or confidential. Therefore, the wife's testimony about the defendant's attire on the evening of the offense was properly admitted. Edwards v. Commonwealth, 20 Va. App. 470, 457 S.E.2d 797 (1995).

The wife's testimony about the defendant's interest in purchasing a car and his intent to test-drive a car with an older couple was also not the sort of communication a spouse would reasonably consider of a secret nature between husband and wife. The information was not conveyed with an expression of confidentiality, nor did its content imply that it should be kept confidential. In fact, the defendant not only expressed his intent to the victim and his wife, but also arranged to meet them in a public place, further supporting a finding that this communication was not a marital secret. Edwards v. Commonwealth, 20 Va. App. 470, 457 S.E.2d 797 (1995).

Defendant's wife's testimony that the defendant instructed her over the phone to meet him at his relative's house was not disclosure of a secret communication because it lacked any objective indicia of confidential intent. If anything, the defendant's actions indicate the opposite, since he instructed her to meet him at a place where other people would be present to witness the meeting. Edwards v. Commonwealth, 20 Va. App. 470, 457 S.E.2d 797 (1995).

When the wife testified that she looked through the defendant's belongings, which he had deposited in their bedroom outside of her presence, and found a wallet containing the victim's driver's license and credit card, she was not describing a communication. While a spouse's conduct may convey information to the other spouse and would, therefore, be privileged, a spouse's conduct which does not convey information to the other spouse is not privileged. The former wife's discovery of the contents of the wallet conveyed information to her, as did the fact that she discovered it among the defendant's belongings. However, the defendant's conduct - leaving the wallet among his belongings - was not observed by the former wife and did not convey information to her. Edwards v. Commonwealth, 20 Va. App. 470, 457 S.E.2d 797 (1995).

Where defendant was violently assaulting wife when her father, the victim of the instant offense, came to her aid, and ignoring victim's command to stop, defendant continued "beating" and "banging" wife, and "grabbed" the knife from victim's hand, wounding victim with it as he retreated, defendant's assault on victim clearly attended defendant's attack on wife and, therefore, "arose from a common criminal enterprise." Accordingly, wife's testimony was properly admitted into evidence. Bowe v. Commonwealth, No. 2285-94-3 (Ct. of Appeals March 5, 1996).

In light of the 1996 amendment to this section eliminating the defendant spouse's privilege to bar the witness spouse from testifying against the defendant, a defendant's argument that the trial court erred in admitting his wife's testimony over his objection was without merit where the wife testified willingly. Turner v. Commonwealth, 33 Va. App. 88, 531 S.E.2d 619, 2000 Va. App. LEXIS 566 (2000).

Spouse's testimony of defendant's possession and use of a firearm the spouse owned was properly admitted in convicting defendant on possession and reckless handling of a firearm charges as the narrow statutory exception applied to the rule against admitting the testimony of one spouse against another since the evidence showed the prosecutions against defendant were for offenses committed by one spouse against another, in this case, by defendant against the spouse. Kirby v. Commonwealth, 264 Va. 440 , 570 S.E.2d 832, 2002 Va. LEXIS 164 (2002).

Defendant's wife's testimony at defendant's preliminary hearing was properly admitted at defendant's trial where: (1) the wife voluntarily testified at the preliminary hearing, although she could have invoked the marital privilege; (2) she chose not to testify at the trial; and (3) in neither instance was she compelled to testify against defendant; after the wife accused defendant of premeditated murder in open court, any marital harmony they might have previously enjoyed was overtaken by events and applying the privilege could not be justified either by § 19.2-271.2 or its underlying public policy. Pryor v. Commonwealth, 48 Va. App. 1, 628 S.E.2d 47, 2006 Va. App. LEXIS 131 (2006).

Applied in Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713 (1985).

§ 19.2-271.3. Communications between ministers of religion and persons they counsel or advise (Supreme Court Rule 2:503 derived in part from this section).

No regular minister, priest, rabbi or accredited practitioner over the age of eighteen years, of any religious organization or denomination usually referred to as a church, shall be required in giving testimony as a witness in any criminal action to disclose any information communicated to him by the accused in a confidential manner, properly entrusted to him in his professional capacity and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, where such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted.

(1985, c. 570.)

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

Law review. - For a survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

For article, "Exorcising the Clergy Privilege," see 103 Va. L. Rev. 1015 (2017).

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 9 Discovery. § 9.04 Privileges Against Discovery. Bryson.

Michie's Jurisprudence. - For related discussion, see 20 M.J. Witnesses, § 28.

CASE NOTES

Privilege limited to accused, not witness. - Defendant erroneously claimed a "priest-penitent" privilege justified his failure to present the testimony of the minister who allegedly heard potential witness's confession of the murder since this section creates a "priest-penitent" privilege in criminal cases, but limits the privilege to "information communicated to the minister by the accused." Defendant, not witness is the accused in this case. O'Dell v. Commonwealth, 234 Va. 672 , 364 S.E.2d 491, cert. denied, 488 U.S. 871, 109 S. Ct. 186, 102 L. Ed. 2d 154 (1988).

The pastoral privilege belongs to the clergyman, not to the layman, leaving it to his conscience to decide when disclosure is appropriate. Nestle v. Commonwealth, 22 Va. App. 336, 470 S.E.2d 133 (1996).

§ 19.2-271.4. Privileged communications by certain public safety personnel.

  1. A person who is a member of a critical incident stress management or peer support team, established pursuant to subdivision A 13 of § 32.1-111.3 , shall not disclose nor be compelled to testify regarding any information communicated to him by emergency medical services or public safety personnel who are the subjects of peer support services regarding a critical incident. Such information shall also be exempt from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).
  2. A person whose communications are privileged under subsection A may waive the privilege.
  3. The provisions of this section shall not apply when:
    1. Criminal activity is revealed;
    2. A member of a critical incident stress management or peer support team is a witness or a party to a critical incident that prompted the peer support services;
    3. A member of a critical incident stress management or peer support team reveals the content of privileged information to prevent a crime against any other person or a threat to public safety;
    4. The privileged information reveals intent to defraud or deceive the investigation into the critical incident;
    5. A member of a critical incident stress management or peer support team reveals the content of privileged information to the employer of the emergency medical services or public safety personnel regarding criminal acts committed or information that would indicate that the emergency medical services or public safety personnel pose a threat to themselves or others; or
    6. A member of a critical incident stress management or peer support team is not acting in the role of a member at the time of the communication.
  4. For the purposes of this section, "critical incident" means an incident that induces an abnormally high level of negative emotions in response to a perceived loss of control. Such an incident is most often related to a threat to the well-being of the emergency medical services or public safety employee or to the well-being of another individual for whom such employee has some obligation of personal or professional concern.

    (2012, cc. 148, 320; 2017, c. 609.)

The 2017 amendments. - The 2017 amendment by c. 609 inserted "or peer support" following "stress management" throughout the section; and added subdivision C 6, and subsection D.

§ 19.2-271.5. Protected information; newspersons engaged in journalism.

  1. As used in this section, unless the context requires a different meaning:

    "Journalism" means the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.

    "News organization" means any (i) newspaper or magazine issued at regular intervals and having a general circulation; (ii) recognized press association or wire service; (iii) licensed radio or television station that engages in journalism; or (iv) business that, by means of photographic or electronic media, engages in journalism and employs an editor overseeing the journalism function that follows commonly accepted journalistic practice as evidenced by (a) membership in a state-based journalism organization, including the Virginia Press Association and the Virginia Association of Broadcasters; (b) membership in a national journalism organization, including the National Press Club, the Society of Professional Journalists, and the Online News Association; (c) membership in a statewide or national wire news service, including the Capital News Service, The Associated Press, and Reuters; or (d) its continuous operation since 1994 or earlier.

    "Newsperson" means any person who, for a substantial portion of his livelihood or for substantial financial gain, engages in journalism for a news organization. "Newsperson" includes any person supervising or assisting another person in engaging in journalism for a news organization.

    "Protected information" means information identifying a source who provided information to a newsperson under a promise or agreement of confidentiality made by a news organization or newsperson while such news organization or newsperson was engaging in journalism.

  2. Except as provided in subsection C, no newsperson shall be compelled by the Commonwealth or a locality in any criminal proceeding to testify about, disclose, or produce protected information. Any protected information obtained in violation of this subsection is inadmissible for any purpose in an administrative or criminal proceeding.
  3. A court may compel a newsperson to testify about, disclose, or produce protected information only if the court finds, after notice and an opportunity to be heard by such newsperson, that:
    1. The protected information is necessary to the proof of an issue material to an administrative or criminal proceeding;
    2. The protected information is not obtainable from any alternative source;
    3. The Commonwealth or locality exhausted all reasonable methods for obtaining the protected information from all relevant alternative sources, if applicable; and
    4. There is an overriding public interest in the disclosure of the protected information, including preventing the imminent threat of bodily harm to or death of a person or ending actual bodily harm being inflicted upon a person.
  4. The publication by a news organization or the dissemination by a newsperson of protected information obtained while engaging in journalism shall not constitute a waiver of the protection from compelled testimony, disclosure, and production provided by subsection B.

    (2020, c. 650.)

§ 19.2-271.6. Evidence of defendant's mental condition admissible; notice to Commonwealth.

  1. For the purposes of this section: "Developmental disability" means the same as that term is defined in § 37.2-100 . "Intellectual disability" means the same as that term is defined in § 37.2-100 . "Mental illness" means a disorder of thought, mood, perception, or orientation that significantly impairs judgment or capacity to recognize reality.
  2. In any criminal case, evidence offered by the defendant concerning the defendant's mental condition at the time of the alleged offense, including expert testimony, is relevant, is not evidence concerning an ultimate issue of fact, and shall be admitted if such evidence (i) tends to show the defendant did not have the intent required for the offense charged and (ii) is otherwise admissible pursuant to the general rules of evidence. For purposes of this section, to establish the underlying mental condition the defendant must show that his condition existed at the time of the offense and that the condition satisfies the diagnostic criteria for (i) a mental illness, (ii) a developmental disability or intellectual disability, or (iii) autism spectrum disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association. If a defendant intends to introduce evidence pursuant to this section, he, or his counsel, shall give notice in writing to the attorney for the Commonwealth, at least 60 days prior to his trial in circuit court, or at least 21 days prior to trial in general district court or juvenile and domestic relations district court, or at least 14 days if the trial date is set within 21 days of last court appearance, of his intention to present such evidence. In the event that such notice is not given, and the person proffers such evidence at his trial as a defense, then the court may in its discretion either allow the Commonwealth a continuance or, under appropriate circumstances, bar the defendant from presenting such evidence. The period of any such continuance shall not be counted for speedy trial purposes under § 19.2-243 . If a defendant intends to introduce expert testimony pursuant to this section, the defendant shall provide the Commonwealth with (a) any written report of the expert witness setting forth the witness's opinions and the bases and reasons for those opinions, or, if there is no such report, a written summary of the expected expert testimony setting forth the witness's opinions and bases and reasons for those opinions, and (b) the witness's qualifications and contact information.
  3. The defendant, when introducing evidence pursuant to this section, shall permit the Commonwealth to inspect, copy, or photograph any written reports of any physical or mental examination of the accused made in connection with the case, provided that no statement made by the accused in the course of such an examination disclosed pursuant to this subsection shall be used by the Commonwealth in its case in chief, whether the examination was conducted with or without the consent of the accused.
  4. Nothing in this section shall prevent the Commonwealth from introducing relevant, admissible evidence, including expert testimony, in rebuttal to evidence introduced by the defendant pursuant to this section.
  5. Nothing in this section shall be construed as limiting the authority of the court from entering an emergency custody order pursuant to subsection A of § 37.2-808 .
  6. Nothing in this section shall be construed to affect the requirements for a defense of insanity pursuant to Chapter 11 (§ 19.2-167 et seq.).
  7. Nothing in this section shall be construed as permitting the introduction of evidence of voluntary intoxication.

    (2021, Sp. Sess. I, cc. 523, 540.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 523 and 540, cl. 2 provides: "That the Office of the Executive Secretary of the Supreme Court of Virginia shall collect the following data and report such data annually to the Chairmen of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by December 1, 2021, and December 1, 2022: (i) the number of cases in which a defendant introduces evidence concerning his mental condition pursuant to § 19.2-271.6 of the Code of Virginia, as created by this act; (ii) the number of cases in which such evidence is introduced and a jury or court finds that a defendant did not have the intent required for the offense charged due to a mental illness as defined in § 19.2-271.6 of the Code of Virginia, as created by this act, an intellectual or developmental disability, or autism spectrum disorder; (iii) the number of cases in which the court issues an emergency custody order pursuant to § 37.2-808 of the Code of Virginia, as amended by this act, after a jury or the court finds that a defendant did not have the intent required for the offense charged due to a mental illness as defined in § 19.2-271.6 of the Code of Virginia, as created by this act, an intellectual or developmental disability, or autism spectrum disorder; and (iv) if an emergency custody order is issued in such case, the number of defendants for whom no subsequent temporary detention order is issued and who are released, the number of defendants for whom a subsequent temporary detention order is issued, and the number of defendants who are subsequently involuntarily admitted."

Acts 2021, Sp. Sess. I, cc. 523 and 540, cl. 3 provides: "That the Joint Subcommittee to Study Mental Health Services in the Commonwealth in the Twenty-First Century (the Joint Subcommittee) shall study, consider, and provide recommendations regarding the relevant standard of danger to self or others that may be appropriately applied to persons found not guilty under this act in the issuance of emergency custody orders, involuntary temporary detention orders, or the ordering of other mandatory mental health treatments in accordance with Article 4 ( § 37.2-808 et seq.) or Article 5 ( § 37.2-814 et seq.) of Chapter 8 of Title 37.2 of the Code of Virginia. The Joint Subcommittee shall report its findings, conclusions, and recommendations to the Chairmen of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by December 1, 2021."

Effective date. - This section is effective July 1, 2021, pursuant to Va. Const. Art. IV, § 13.

Article 2. Witnesses From or for Another State.

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 3. Active Jurisdiction. § 3.01 Process, et seq. Bryson.

Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 4 Process. § 4.04 Persons Exempt from Service of Process and Civil Arrest. Friend.

Virginia Forms (Matthew Bender). No. 9-2409. Motion for Out-of-State Witness. No. 9-2410. Certificate of Need of Out-of-State Witness.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 2; 5B M.J. Criminal Procedure, §§ 40, 64; 14B M.J. Process, § 4.

§ 19.2-272. Definitions.

"Witness" as used in this article shall include a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding.

The word "state" shall include any territory of the United States and the District of Columbia.

The word "summons" shall include a subpoena (both subpoena ad testificandum and subpoena duces tecum), order or other notice requiring the appearance of a witness or production of documents.

(Code 1950, § 19.1-269; 1960, c. 366; 1975, c. 495; 1988, c. 34.)

Uniform law cross references. - For other signatory state provisions, see:

Alabama: Code of Ala. §§ 12-21-280 to 12-21-285.

Alaska: Alaska Stat. §§ 12.50.010 to 12.50.080.

Arizona: A.R.S. §§ 13-4091 to 13-4096.

Arkansas: A.C.A. §§ 16-43-402 to 16-43-409.

California: California Pen. Code §§ 1334 to 1334.6.

Colorado: C.R.S. §§ 16-9-201 to 16-9-205.

Delaware: 11 Del. C. §§ 3521 to 3526.

Florida: Fla. Stat. §§ 942.01 to 942.06.

Georgia: O.C.G.A. §§ 24-10-90 to 24-10-97.

Hawaii: H.R.S. §§ 836-1 to 836-6.

Idaho: Idaho Code §§ 19-3005 to 19-3013.

Illinois: 725 I.L.C.S. 220/1 to 220/6.

Indiana: Burns Ind. Code Ann. §§ 35-37-5-1 to 35-37-5-9.

Iowa: Iowa Code §§ 819.1 through 819.5.

Kansas: K.S.A. §§ 22-4201 through 22-4206.

Kentucky: K.R.S. §§ 421.230 to 421.270.

Maine: 15 M.R.S. §§ 1411 to 1415.

Maryland: Md. Courts and Judicial Proceedings Code Ann. §§ 9-301 to 9-307.

Massachusetts: Mass. Ann. Laws ch. 233 §§ 10 to 13D.

Michigan: M.C.L.S. §§ 767.91 to 767.95.

Mississippi: Miss. Code Ann. §§ 99-9-27 to 99-9-35.

Missouri: §§ 491.400 to 491.450 R.S.Mo.

Nebraska: R.R.S. Neb. §§ 29-1906 to 29-1911.

Nevada: Nev. Rev. Stat. §§ 174.395 to 174.445.

New Hampshire: New Hampshire 59 R.S.A. §§ 613:1 to 613:3.

New Jersey: N.J. Stat. §§ 2A:81-18 to 2A:81-23.

New Mexico: N.M. Stat. Ann. §§ 38-8-1 to 31-8-6.

New York: NY CLS CPL §§ 640.10 to 640.20.

North Carolina: N.C. Gen. Stat. §§ 15A-811 to 15A-816.

Ohio: O.R.C. Ann. §§ 2939.25 to 2939.29.

Oklahoma: 22 Okl. St. §§ 721 to 727.

Oregon: O.R.S. §§ 136.623 to 136.637.

Pennsylvania: 42 Pa.C.S. §§ 5961 through 5965.

Puerto Rico: 34 L.P.R.A. § 1471.

Rhode Island: R.I. Gen. Laws 12-16-1 to 12-16-7.

South Carolina: S.C. Code Ann. §§ 19-9-10 to 19-9-120.

Tennessee: Tenn. Code Ann. §§ 40-17-201 to 40-17-212.

Texas: Tex. Code Crim. Proc. art. 24.28.

Utah: Utah Code Ann. §§ 77-21-1 to 77-21-5.

Vermont: 13 V.S.A. §§ 6641 through 6649.

Virgin Islands: 5 V.I.C. § 3861 to 3865.

Washington: Rev. Code Wash. §§ 10.55.010 to 10.55.130.

West Virginia: W. Va. Code §§ 62-6A-1 to 62-6A-6.

CASE NOTES

Purpose. - The uniform act relative to out-of-state witnesses was passed in furtherance of the common-law rule and did not supplant it. Its purpose was to compel the attendance of nonresident witnesses in criminal proceedings, granting them immunity from the service of process while in attendance upon the court. Davis v. Hackney, 196 Va. 651 , 85 S.E.2d 245 (1955).

Uniform act did not supplant the common law but was enacted in furtherance of the common law. Lester v. Bennett, 1 Va. App. 47, 333 S.E.2d 366 (1985).

Applied in Coleman v. Commonwealth, 226 Va. 31 , 307 S.E.2d 864 (1983).

§ 19.2-273. Certificate that witness is needed in another state; hearing.

If a judge of a court of record in any state which by its laws has made provisions for commanding persons within that state to attend and testify in this Commonwealth certifies under the seal of such court (1) that there is a criminal prosecution pending in such court or that a grand jury investigation has commenced or is about to commence, (2) that a person being within this Commonwealth is a material witness in such prosecution or grand jury investigation and (3) that his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county or city in which such person is, such judge shall fix a time and place for hearing and shall make an order directing the witness to appear at a time and place certain for the hearing.

(Code 1950, § 19.1-270; 1960, c. 366; 1975, c. 495.)

§ 19.2-274. When court to order witness to attend.

If at such hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or grand jury investigation in the other state and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence (and of any other state through which the witness may be required to pass by ordinary course of travel) will give to him protection from arrest and the service of civil and criminal process, the judge shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.

(Code 1950, § 19.1-271; 1960, c. 366; 1975, c. 495.)

§ 19.2-275. Arrest of witness.

If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance in the requesting state, such judge may, in lieu of notification of the hearing, direct that such witness be forthwith brought before him for the hearing; and the judge at the hearing being satisfied of the desirability of such custody and delivery, for which determination the certificate shall be prima facie proof of such desirability, may, in lieu of issuing subpoena or summons, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state.

(Code 1950, § 19.1-272; 1960, c. 366; 1975, c. 495.)

§ 19.2-276. Penalty for failure to attend and testify.

If the witness who is summoned as above provided, after being paid or tendered by some properly authorized person reimbursement for reasonable travel and lodging expenses as provided in § 2.2-2823 for each day he is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a Virginia circuit court summons.

(Code 1950, § 19.1-273; 1960, c. 366; 1975, c. 495; 1987, c. 125.)

§ 19.2-277. Summoning witnesses in another state to testify in this Commonwealth.

If a person in any state which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this Commonwealth is a material witness in a prosecution pending in a court of record in this Commonwealth, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this Commonwealth to assure his attendance in this Commonwealth. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.

(Code 1950, § 19.1-274; 1960, c. 366; 1975, c. 495.)

CASE NOTES

Recommendation that a witness be taken into custody to assure attendance not required. - Permissive language of this section in allowing that a certificate from a Virginia court may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this Commonwealth to assure his attendance in this Commonwealth, does not require that a party always request a recommendation to take the witness into custody, especially where the witnesses have assured numerous officials that they would be present. Gray v. Commonwealth, 16 Va. App. 513, 431 S.E.2d 86 (1993).

§ 19.2-278. Reimbursement for daily mileage to such witnesses; issuance of warrant necessary to make tender.

If the witness is summoned to attend and testify in this Commonwealth he shall receive such reimbursement for his daily mileage as prescribed in § 2.2-2823 for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this Commonwealth a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court.

The judge issuing the certificate prescribed in § 19.2-277 may, by order, direct the clerk of the court involved to issue such warrant or warrants payable out of the state treasury, as may be necessary to make the tender hereinabove prescribed; and after the entry of such order, such clerk, upon application of the attorney for the Commonwealth of the county or city involved, or of the accused, if certificate for the attendance of witness has been issued by such judge on his behalf as authorized by § 19.2-330 , shall issue such warrant or warrants and deliver them to the said attorney for the Commonwealth, who shall, forthwith, cause such tender to be made. Upon issuance of any such warrant or warrants said clerk shall deliver a certified copy of the court's order to the Supreme Court, and the said warrant or warrants shall be paid out of the state treasury upon presentation.

Unless and until appropriate forms shall be obtained, such warrants may be issued on the regular forms provided for the payment of witness fees and allowances, but in such event the clerk issuing the same shall make a notation thereon that they were issued pursuant to the provisions of this section.

(Code 1950, § 19.1-275; 1960, c. 366; 1972, c. 719; 1975, c. 495; 1976, c. 308; 1977, c. 483; 1978, c. 195.)

§ 19.2-279. Penalty for failure of such witnesses to testify.

If such witness, after coming into this Commonwealth, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this Commonwealth.

(Code 1950, § 19.1-276; 1960, c. 366; 1975, c. 495.)

§ 19.2-280. Exemption of such witnesses from arrest or service of process.

If a person comes into this Commonwealth in obedience to a summons directing him to attend and testify in this Commonwealth he shall not while in this Commonwealth pursuant to such summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this Commonwealth under the summons.

If a person passes through this Commonwealth while going to another state in obedience to a summons to attend and testify in that state or while returning therefrom, he shall not while so passing through this Commonwealth be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this Commonwealth under the summons.

(Code 1950, § 19.1-277; 1960, c. 366; 1975, c. 495.)

CASE NOTES

Persons not in state in obedience to summons. - This section provides no basis upon which a person may claim immunity from arrest or service of process, where he is not in this State in obedience to a summons to attend and testify in a criminal proceeding. Lester v. Bennett, 1 Va. App. 47, 333 S.E.2d 366 (1985).

Out-of-state witness immune from process though not summoned under this article. - The enactment of this article did not supplant, but rather supplemented, the common-law rules on the subject. Hence a resident of Tennessee who voluntarily accepted service and appeared to testify in a criminal proceeding in Virginia, was privileged against service of civil process in Virginia, though he had not been summoned according to the procedure provided in the Uniform Act. Davis v. Hackney, 196 Va. 651 , 85 S.E.2d 245 (1955).

The privilege from process extends to the property of the witness reasonably necessary to his attendance as well as to his person; and is based on considerations too important to yield to the personal advantage or disadvantage of individual suitors. Davis v. Hackney, 196 Va. 651 , 85 S.E.2d 245 (1955).

The automobile in which a witness came to Virginia to testify was immune from attachment, even though it had been bought from the party against whom the witness came to testify and had not been paid for. Davis v. Hackney, 196 Va. 651 , 85 S.E.2d 245 (1955).

§ 19.2-281. Construction of article.

This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it.

(Code 1950, § 19.1-278; 1960, c. 366; 1975, c. 495.)

§ 19.2-282. How article cited.

This article may be cited as the "Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings."

(Code 1950, § 19.1-279; 1960, c. 366; 1975, c. 495.)

Chapter 17. Convictions; Effect Thereof.

Proof and Verdicts.

Former Jeopardy.

Conviction of Aliens.

Article 1. Proof and Verdicts.

§ 19.2-283. How accused may be convicted of felony.

No person shall be convicted of felony, unless by his confession of guilt in court, or by his plea, or by the verdict of a jury, accepted and recorded by the court, or by judgment of the court trying the case without a jury according to law.

(Code 1950, § 19.1-248; 1960, c. 366; 1975, c. 495.)

Cross references. - As to trial without jury, see §§ 19.2-257 and 19.2-258 .

As to constitutional provision for criminal trials, see Va. Const., Art. I, § 8.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 50, 78.

CASE NOTES

What constitutes a "conviction" for purposes of impeachment. - A conviction occurs when an accused enters a plea of guilty that is voluntarily and intelligently made; it is not necessary for the final judgment or sentencing order to have been entered for the prior conviction to be used for impeachment purposes when the accused testifies in another case. Jewel v. Commonwealth, 30 Va. App. 416, 517 S.E.2d 264 (1999), aff'd, 260 Va. 430 , 536 S.E.2d 905 (2000).

In Jewel v. Commonwealth, 260 Va. 430 (2000), the Supreme Court of Virginia held that for the limited purposes of § 19.2-269 , a defendant's guilty plea accepted by the trial court constitutes a "conviction" and an order entering a finding of guilt was unnecessary. To the extent that Jewel can be read to suggest that a trial court formally adjudicates a defendant's guilt by accepting a plea of guilty and entering it in the record, it is overruled. Starrs v. Commonwealth, 287 Va. 1 , 752 S.E.2d 812, 2014 Va. LEXIS 11 (2014).

Verdict never accepted or recorded by court. - Where a pool of the jury revealed that they had agreed to a two-thirds majority verdict, and after questioning the jurors and determining that all of them did not agree the trial court declared a mistrial and discharged them, defendant was not convicted at that trial, because the court never accepted or recorded the jury's verdict, and the fact that a harsher sentence was given at a second trial did not violate defendant's constitutional rights. Price v. Slayton, 347 F. Supp. 1269 (W.D. Va. 1972).

§ 19.2-284. Proof of ownership in offense relating to property.

In a prosecution for an offense committed upon, relating to or affecting real estate, or for stealing, embezzling, destroying, injuring or fraudulently receiving or concealing any personal estate it shall be sufficient to prove that when the offense was committed the actual or constructive possession, or a general or special property, in the whole or any part of such estate was in the person or entity alleged in the indictment or other accusation to be the owner thereof.

(Code 1950, § 19.1-247; 1960, c. 366; 1975, c. 495.)

Law review. - For a note, "Pleading for Theft Consolidation in Virginia: Larceny, Embezzlement, False Pretenses and § 19.2-284 ," see 55 Wash. & Lee L. Rev. 249 (1998).

Michie's Jurisprudence. - For related discussion, see 12A M.J. Larceny, § 14.

CASE NOTES

Object of section. - This section does not dispense with the necessity of stating in an indictment for larceny the name of the owner of the stolen property, nor enable any person to be such owner who was not capable of being so at common law. Its only object was to get rid of the difficulties often existing at common law in regard to the proper person to be stated as the owner of property in an indictment for larceny or other offenses against property. Hughes v. Commonwealth, 58 Va. (17 Gratt.) 565 (1867).

This section has no application to proving a violation of § 18.2-81 ; § 18.2-81 is silent on the issue of ownership. Section 18.2-81 proscribes not only burning another person's property, but the broader offense of burning any property with malice or the intent to defraud an insurance company or another person; thus, § 18.2-81 requires proof only of malice or intent to defraud. Proof of ownership, or of an insurable interest, is not an element of malicious burning under § 18.2-81, and this section does not make it such. Hamm v. Commonwealth, 16 Va. App. 150, 428 S.E.2d 517 (1993).

Allegation as to owner must be proved. - On a trial for larceny, to convict the prisoner, there must be satisfactory proof that the property stolen was the property of the person stated in the indictment. Jones v. Commonwealth, 58 Va. (17 Gratt.) 563 (1866); Robinson v. Commonwealth, 73 Va. (32 Gratt.) 866 (1879); Prather v. Commonwealth, 85 Va. 122 , 7 S.E. 178 (1888).

But it is only necessary to prove absolute or special ownership. - To sustain an indictment for larceny it is only necessary to prove that the goods alleged to have been stolen are either the absolute or the special property of the alleged owner. Latham v. Commonwealth, 184 Va. 934 , 37 S.E.2d 36 (1946).

Carrier has special ownership in property transported. - Since the initial carrier is liable for loss, damage or injury to property in interstate commerce, it follows as a corollary that the initial carrier has a legal or special ownership in the property transported. Latham v. Commonwealth, 184 Va. 934 , 37 S.E.2d 36 (1946).

Variance between indictment and proof at trial as to ownership. - When the Commonwealth alleged in an indictment that the money obtained by the defendant was the property of a named individual, her grandfather, but the evidence showed the money was the property of the bank in which the grandfather maintained a savings account, it proved a different offense, resulting in a fatal variance and requiring that the defendant's conviction be reversed. Gardner v. Commonwealth, 262 Va. 18 , 546 S.E.2d 686, 2001 Va. LEXIS 80 (2001).

Where the indictment omitted the word "Inc.," the significance of the term related solely to the legal status of the victim and not to the identity of the victim or the manner in which the crime was committed. Nuckles v. Commonwealth, 266 Va. 519 , 587 S.E.2d 695, 2002 Va. App. LEXIS 665 (2003), reversing Nuckles v. Commonwealth, 2002 Va. App. LEXIS 665 (Va. Ct. App. Nov. 5, 2002).

Constructive possession. - Conviction for destruction of property was sufficiently supported by the evidence although the woman named in the indictment as the owner of the automobile which the defendant damaged did not have legal title to the property. The evidence proved that the woman had possession of the automobile and that she was to receive title to it under an agreement with her former husband, who did have legal title to the property. Proof that the person alleged in the indictment to be the owner of such property has actual or constructive possession of the property is sufficient in a prosecution for this offense. Tammaro v. Commonwealth, No. 0504-94-1 (Ct. of Appeals March 21, 1995).

§ 19.2-285. Accused guilty of part of offense charged; sentence; on new trial what tried.

If a person indicted of a felony be by the jury acquitted of part of the offense charged, he shall be sentenced for such part as he is so convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor. If the verdict be set aside and a new trial granted the accused, he shall not be tried for any higher offense than that of which he was convicted on the last trial.

(Code 1950, § 19.1-249; 1960, c. 366; 1975, c. 495.)

Cross references. - As to conviction for attempt on indictment for felony and as to general verdict of not guilty, see § 19.2-286 .

Michie's Jurisprudence. - For related discussion, see 2C M.J. Autrefois, Acquit and Convict, §§ 11, 17, 21; 5B M.J. Criminal Procedure, §§ 11, 62, 70; 9B M.J. Homicide, § 100; 13B M.J. New Trials, § 67; 16 M.J. Robbery, § 8.

CASE NOTES

History of legislation resulting in this section. - See Cates v. Commonwealth, 111 Va. 837 , 69 S.E. 520 (1910).

Sections 18.2-31 and 18.2-32 and this section are in pari materia and should be read together. Tucker v. Commonwealth, 159 Va. 1038 , 167 S.E. 253 (1933); Puckett v. Commonwealth, 182 Va. 237 , 28 S.E.2d 619 (1944).

"Higher offense" within the meaning of this section is to be determined by the maximum of the penalty affixed to the offense. Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895).

For section to apply, crime must be substantially charged in the indictment. - One indicted for felony may be convicted of part of an offense charged but the statute does not apply unless the particular crime of which one was convicted was substantially charged in the indictment. Myers v. Commonwealth, 148 Va. 725 , 138 S.E. 483 (1927).

Crime convicted of not different in nature from that in indictment. - Defendant was not convicted of a crime different in nature from that charged in the indictment where the original indictment charged the crime of breaking and entering a dwelling house with the intent to maim, and was amended to charge breaking and entering with the intent to commit murder, nor did the trial court err in permitting the amendment. Smith v. Commonwealth, 10 Va. App. 592, 394 S.E.2d 30 (1990).

Circuit courts do not lose jurisdiction because conviction for lesser included offense. - Former § 17-123 (see now § 17.1-513 ) provides that the circuit court has jurisdiction of all indictments for felonies. Since the defendant was indicted for a felony, the case had to be tried in the circuit court. Circuit courts do not lose jurisdiction to convict and sentence a defendant merely because the conviction turns out to be for a lesser included misdemeanor offense. Jimenez v. Commonwealth, 10 Va. App. 277, 392 S.E.2d 827 (1990), reversed on other grounds, 241 Va. 244 , 402 S.E.2d 678 (1991).

On indictment for felony, defendant may be convicted of lower offense. - On an indictment for malicious cutting and wounding with intent to maim, disfigure, disable and kill, the defendant may be convicted of unlawful cutting and wounding with like intent, or of assault and battery. Montgomery v. Commonwealth, 98 Va. 840 , 36 S.E. 371 (1900).

Jury verdict finding accused guilty of a lesser degree of homicide will not be disturbed even though the evidence adduced tends to prove murder in the first degree and none other. Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952).

Evidence sufficient to sustain a conviction of a felony charged in an indictment is alike sufficient to sustain a conviction of a lesser offense substantially charged in the indictment. Fleming v. Commonwealth, 170 Va. 636 , 196 S.E. 696 (1938).

Of what offenses accused may be convicted under indictment charging murder in first degree. - Under this section upon an indictment charging murder in the first degree, accused might be convicted not only of murder in the first degree but of murder in the second degree or manslaughter, and accused might be found guilty of an attempt to commit murder, first or second degree, or manslaughter, and where an indictment specifically charges an attempt to commit murder, the jury can find the accused guilty of an attempt to commit murder in the second degree, and impose the penalty of one year in jail. Lee v. Commonwealth, 144 Va. 594 , 131 S.E. 212 (1926).

Conviction of lower offense is acquittal of higher offense. - A person indicted for murder and convicted of murder in the second degree is not again liable to conviction for murder in the first degree. Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895). See also, Bateman v. Commonwealth, 183 Va. 253 , 32 S.E.2d 134 (1944).

A conviction of the defendant of murder in the second degree acquits him of murder in the first degree. Carson v. Commonwealth, 188 Va. 398 , 49 S.E.2d 704 (1948).

The conviction of the accused of the lower offense of voluntary manslaughter is an acquittal of the higher offenses of first and second-degree murder. Kuckenbecker v. Commonwealth, 199 Va. 619 , 101 S.E.2d 523 (1958).

Where the indictment charged the accused with murder, the effect of a verdict finding him guilty of involuntary manslaughter, under the provisions of this section, was to acquit him of murder in either degree and voluntary manslaughter. Taylor v. Commonwealth, 186 Va. 587 , 43 S.E.2d 906 (1947).

On new trial accused cannot be tried for any higher offense than that of which he was convicted on the last trial. Lane v. Commonwealth, 190 Va. 58 , 55 S.E.2d 450 (1949).

If an accused is fairly acquitted of a higher offense included in the indictment, and, upon conviction of a lesser offense, applies for and obtains a new trial, he does not thereby waive the advantage of the acquittal of the higher offense thus obtained. He is not, however, acquitted of the offense in respect to which he asks for a new trial. He may be tried again for that offense with all its incidents and consequences. Lane v. Commonwealth, 190 Va. 58 , 55 S.E.2d 450 (1949).

Where defendant was indicted for armed robbery, but was tried as an accessory to armed robbery and convicted for receiving stolen property, and the conviction was affirmed by the Supreme Court, he could not be retried for any crime of greater gravity than the receipt of stolen goods. Dove v. Peyton, 343 F.2d 210 (4th Cir. 1965).

And the same rule applies to a trial upon an indictment with one count that governs in a trial upon an indictment with several counts. Lane v. Commonwealth, 190 Va. 58 , 55 S.E.2d 450 (1949).

Effect of conviction as to crimes of equal degree. - Housebreaking in the nighttime with intent to commit larceny, and grand larceny, are of equal degree. A conviction of either, when set aside at the instance of the accused, as a waiver of his jeopardy as to both, and upon a new trial he may be put upon trial upon the whole indictment in which both are charged. Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895).

Effect of conviction of felony punishable as misdemeanor. - Conviction of unlawful shooting is a conviction of a felony, though punished by imprisonment in jail and a fine, and after reversal of the sentence a second trial may be had for the felony, and not merely for a misdemeanor, notwithstanding this section. Forbes v. Commonwealth, 90 Va. 550 , 19 S.E. 164 (1894).

Under this section, one indicted for felony, may be convicted of an attempt to commit such felony; and one prosecuted for grand larceny, may be found guilty of petit larceny. Commonwealth v. Worrell, 5 Va. L. Reg. (n.s.) 836 (1920).

And conviction of attempt is acquittal of felony. - A person indicted for rape may be found not guilty of rape, but of an attempt to commit rape, but a verdict of guilty of an attempt to commit rape is an acquittal of the offense of rape, and if such verdict be set aside, the accused cannot on a second trial, be convicted of rape, as this is a higher offense. Cates v. Commonwealth, 111 Va. 837 , 69 S.E. 520 (1910).

No conviction for assault in prosecution for sodomy where no charge of force. - Where in an indictment for sodomy no charge of assault was involved, because no force against, or lack of consent on the part of, the prosecutrix was averred, there can be no conviction of assault. Nor is the case in any way within this section authorizing a conviction for a part only of the larger offense charged. Wise v. Commonwealth, 135 Va. 757 , 115 S.E. 508 (1923).

Section applies to robbery. - It was argued by counsel for defendant that this section applies to cases of homicide, malicious wounding, etc., but that it is not applicable to a case of robbery. The argument was more specious than sound, and if permitted to prevail, the defendant would go hence without punishment, although his guilt were firmly established by the evidence. Maxwell v. Commonwealth, 165 Va. 860 , 183 S.E. 452 (1936).

Indecent exposure not lesser offense of sodomy. - Indecent exposure, though it may occur in almost all cases of sodomy where two persons are involved, is not a fact that must be charged or proved to sustain a conviction of sodomy in any case. Therefore, indecent exposure is not a lesser offense included in the offense of sodomy. Ashby v. Commonwealth, 208 Va. 443 , 158 S.E.2d 657 (1968), cert. denied, 393 U.S. 1111, 89 S. Ct. 884, 21 L. Ed. 2d 808 (1969).

Instructions as to lesser offenses. - In murder prosecution where facts were sufficient to establish the killing of the deceased by the defendant and defendant was convicted of involuntary manslaughter the court did not err in instructing the jury as to voluntary manslaughter, involuntary manslaughter, or assault and battery, because there was no evidence which tended to prove the commission of any of these lesser offenses. Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952).

Instruction as to higher offense in new trial for lower offense is immaterial. - Where the accused was tried upon an indictment containing only one count and was found guilty, not of murder but of voluntary manslaughter, action of the court in defining the degrees of murder becomes immaterial upon a new trial in view of this section. Bevley v. Commonwealth, 185 Va. 210 , 38 S.E.2d 331 (1946).

Applied in Jones v. Commonwealth, 217 Va. 226 , 228 S.E.2d 124 (1976); Edenton v. Commonwealth, 227 Va. 413 , 316 S.E.2d 736 (1984).

§ 19.2-286. Conviction of attempt or as accessory on indictment for felony; effect of general verdict of not guilty.

On an indictment for felony the jury may find the accused not guilty of the felony but guilty of an attempt to commit such felony, or of being an accessory thereto; and a general verdict of not guilty, upon such indictment, shall be a bar to a subsequent prosecution for an attempt to commit such felony, or of being an accessory thereto.

(Code 1950, § 19.1-254; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Accomplices and Accessories, §§ 8, 12; 2A M.J. Attempts and Solicitations, § 6; 2C M.J. Autrefois, Acquit and Convict, §§ 3, 21; 5B M.J. Criminal Procedure, § 11.

CASE NOTES

Upon conviction of lessor offense, higher offense no longer available. - Under this section a person indicted for rape may be found not guilty of rape, but of an attempt to commit rape, but a verdict of guilty of an attempt to commit rape is an acquittal of the offense of rape, and if such verdict be set aside, the accused cannot on a second trial, be convicted of rape, as this is a higher offense barred by § 19.2-285 . Cates v. Commonwealth, 111 Va. 837 , 69 S.E. 520 (1910).

Conviction of attempt is acquittal of main offense. - The result of a verdict which finds the accused guilty of an attempt to produce an abortion is to acquit him of the principal offense of abortion or miscarriage under § 18.2-71 . Anderson v. Commonwealth, 190 Va. 665 , 58 S.E.2d 72 (1950).

Accessory after the fact. - Before a defendant can be tried and convicted of being an accessory after the fact, he must be charged with that offense. Therefore, unless such a charge is specifically made, neither the state nor an accused is entitled to an accessory-after-the-fact instruction. Commonwealth v. Dalton, 259 Va. 249 , 524 S.E.2d 860 (2000).

In deleting the modifier, "after the fact," the General Assembly indicated its intention to eliminate accessories after the fact from the application of this section. Commonwealth v. Dalton, 259 Va. 249 , 524 S.E.2d 860 (2000).

Accessory before the fact instruction. - Trial court did not err in submitting a murder charge to the jury based on the theory that defendant was "an accessory before the fact or co-conspirator" in the commission of the charged murder; the Commonwealth is entitled to an accessory before the fact instruction on a felony indictment even when the defendant is not charged in the indictment with being an accessory before the fact to the felony. Schwartz v. Commonwealth, 45 Va. App. 407, 611 S.E.2d 631, 2005 Va. App. LEXIS 156 (2005).

Indictment charging crime also embraces attempt. - Indictment charging that petitioner "feloniously did enter the storehouse," etc., although charging the consummated crime of storebreaking, also embraced the lesser offense of attempting to enter without breaking or attempting to break and enter. Willoughby v. Smyth, 194 Va. 267 , 72 S.E.2d 636 (1952).

Refusal of accessory after the fact instruction appropriate. - Defendant's convictions for first-degree murder and use of a firearm in the commission of a felony were appropriate because her argument that the trial court erred in refusing to allow her to proceed on the theory that she was an accessory after the fact and refusing an instruction that would have permitted the jury to make that finding was without merit under § 19.2-286 and Va. Sup. Ct. R. 3A:17(c). Before a defendant could be tried and convicted of being an accessory after the fact, she must have been charged with that offense; unless such a charge was specifically made, neither the Commonwealth nor an accused was entitled to an accessory-after-the-fact instruction and accessory after the fact was not a lesser included offense of murder. Thomas v. Commonwealth, 279 Va. 131 , 688 S.E.2d 220, 2010 Va. LEXIS 11, cert. denied, 131 S. Ct. 143, 178 L. Ed. 2d 8, 2010 U.S. LEXIS 6109 (U.S. 2010).

§ 19.2-287. Verdict and judgment, when jury agree as to some and disagree as to others.

When two or more persons are charged and tried jointly, the jury may render a verdict as to any of them as to whom they agree. Thereupon judgment shall be entered according to the verdict; and as to the others the case shall be tried by another jury.

(Code 1950, § 19.1-256; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 26.

CASE NOTES

New trial as to some. - Where several prisoners were tried together for the same felony and found guilty, the court may grant a new trial to one of them, and render a judgment against the others. Kemp v. Commonwealth, 59 Va. (18 Gratt.) 969 (1868).

Reversal as to some. - Two persons were indicted jointly and both the defendants were found guilty. One of them applied for a new trial, which was overruled, and he obtained a writ of error. The other did not apply for a new trial and there was a judgment against him. The judgment may be reversed as to the one who appealed, without reversing the judgment against the other who did not apply for a new trial. Jones v. Commonwealth, 72 Va. (31 Gratt.) 830 (1878).

§ 19.2-288. Verdict when accused found guilty of punishable homicide.

If a person indicted for murder be found by the jury guilty of any punishable homicide, they shall in their verdict fix the degree thereof. The court shall ascertain the extent of the punishment to be inflicted within the bounds prescribed by §§ 18.2-30 to 18.2-36 , unless the accused has requested that the jury ascertain punishment of the offense as provided in subsection A of § 19.2-295 .

(Code 1950, § 19.1-250; 1960, c. 366; 1975, c. 495; 2020, Sp. Sess. I, c. 43.)

Cross references. - As to trial without jury in felony case or plea of guilty, see § 19.2-257 .

As to definition of capital murder, see § 18.2-31 .

As to definition of first and second degree murder, see § 18.2-32 .

As to how murder in first degree and in the second degree are punished, see § 18.2-32 .

As to how lesser degrees of homicide are punished, see §§ 18.2-35 and 18.2-36 .

Editor's note. - Acts 2020 Sp. Sess. I, c. 43, cl. 2 provides: "That the provisions of this act shall become effective on July 1, 2021."

At the direction of the Virginia Code Commission, the last sentence was deleted pursuant to Acts 2021, Sp. Sess. I, cc. 344, 345, which repealed Article 4.1 ( § 19.2-264.2 et seq.) of Chapter 15. The sentence read: However, in any case in which the accused is found guilty of capital murder, the provisions of Article 4.1 ( § 19.2-264.2 et seq.) of Chapter 15 shall apply.

The 2020 Sp. Sess. I amendments. - The 2020 amendment by Sp. Sess. I, c. 43, effective July 1, 2021, rewrote the section which read: "If a person indicted for murder be found by the jury guilty of any punishable homicide, they shall in their verdict fix the degree thereof and ascertain the extent of the punishment to be inflicted within the bounds prescribed by §§ 18.2-30 to 18.2-36 ."

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 78; 9B M.J. Homicide, § 121.

CASE NOTES

Effect of former law. - See Kibert v. Commonwealth, 216 Va. 660 , 222 S.E.2d 790 (1976).

Failure of verdict to specify degree of crime erroneous. - Where a person is tried upon an indictment for murder the verdict should specify the degree of the crime of which he is convicted. If it does not so specify, it is erroneous. Commonwealth v. Williamson, 4 Va. (2 Va. Cas.) 211 (1820); Briggs v. Commonwealth, 82 Va. 554 (1886).

But verdict valid if punishment indicates degree. - A verdict which does not expressly find the degree may nevertheless be valid if the assessment of punishment clearly indicates such degree. Hobson v. Youell, 177 Va. 906 , 15 S.E.2d 76 (1941).

Upon a plea of guilty, the court cannot submit the degree of guilt and the question of punishment to a jury for its determination. Upon a plea of guilty to the whole indictment, the court has no authority to submit the degree of guilt and the question of the punishment to be inflicted upon the accused to a jury for its determination. The accused and the public are both entitled to the independent judgment of the court upon the degree of his guilt and the punishment to be inflicted uninfluenced by the judgment or advice of the "jury" or other bystanders. Dixon v. Commonwealth, 161 Va. 1098 , 172 S.E. 277 (1934); Hobson v. Youell, 177 Va. 906 , 15 S.E.2d 76 (1941).

Fixing punishment by agreement permissible. - The practice, developed in a number of trial courts, whereby upon the arraignment of the accused and his plea of guilty, one of the attorneys, in the presence of the other, states to the court the essential facts constituting the crime charged and the punishment agreed upon, whereupon the court accepts such recommendation and, without examining the witnesses, fixes the punishment accordingly, is permissible under this section but such practice may be abused and should not be extended. Hobson v. Youell, 177 Va. 906 , 15 S.E.2d 76 (1941).

§ 19.2-289. Conviction of petit larceny.

In a prosecution for grand larceny, if it be found that the thing stolen is of less value than $1,000, the jury may find the accused guilty of petit larceny.

(Code 1950, § 19.1-252; 1960, c. 366; 1966, c. 247; 1975, c. 495; 1981, c. 197; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200."

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "less value than $1,000" for "less value than $500."

Michie's Jurisprudence. - For related discussion, see 12A M.J. Larceny, §§ 12, 32.

§ 19.2-290. Conviction of petit larceny though thing stolen worth $1,000 or more.

In a prosecution for petit larceny, though the thing stolen be of the value of $1,000 or more, the jury may find the accused guilty, and upon a conviction under this section or § 19.2-289 the accused shall be sentenced for petit larceny.

(Code 1950, § 19.1-253; 1960, c. 366; 1966, c. 247; 1975, c. 495; 1981, c. 197; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200."

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000 or more" for "$500 or more."

Michie's Jurisprudence. - For related discussion, see 12A M.J. Larceny, §§ 12, 32.

CASE NOTES

Discrepancies between indictment and evidence as to value of property stolen are contemplated by this section. Holly v. Commonwealth, 113 Va. 769 , 75 S.E. 88 (1912).

§ 19.2-291. Faulty counts; motion to strike; general verdict of guilty.

When there are several counts in the indictment one or more of which are faulty, the accused may move to strike the faulty count or counts or move the court to instruct the jury to disregard them. If he does neither and a general verdict of guilty is found, judgment shall be entered against the accused, if any count be good, though others be faulty, unless the court can plainly see that the verdict could not have been found on the good count. If the accused demurs to the faulty count or moves the court to instruct the jury to disregard it and his demurrer or motion is overruled and there is a general verdict of guilty and it cannot be seen on which count the verdict was founded, if the jury has been discharged, it shall be set aside; but if it is manifest that it could not have been found on the bad count, the verdict shall be allowed to stand.

(Code 1950, § 19.1-255; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 6A M.J. Demurrers, § 5; 9B M.J. Indictments, Informations and Presentments, § 55; 19 M.J. Verdict, § 13.

CASE NOTES

When judgment not affected by bad count. - In a prosecution for violation of a city ordinance no demurrer to the warrant, which contained two counts, was interposed and no motion was made to instruct the jury to disregard the first count. There was a general verdict of guilty, which might well have been found under the second count. Under this section, even if the first count was bad, the regularity of the judgment was not affected thereby. Collins v. City of Radford, 134 Va. 518 , 113 S.E. 735 (1922).

Since each of the four judgments of conviction against defendant were supported by sufficient evidence to prove him guilty beyond a reasonable doubt, the trial court did not err in denying defendant's motion to strike the charges against him on which he was convicted. Payne v. Commonwealth, No. 3339-02-3, 2003 Va. App. LEXIS 616 (Ct. of Appeals Dec. 2, 2003).

A motion to exclude evidence which could only be applicable to the faulty count, is in effect a motion to disregard that count. Rand v. Commonwealth, 50 Va. (9 Gratt.) 738 (1852).

§ 19.2-291.1. Report of conviction of school employees for certain offenses.

The clerk of any circuit court or any district court in the Commonwealth shall report to the Superintendent of Public Instruction and the division superintendent of any employing school division the conviction of any person, known by such clerk to hold a license issued by the Board of Education, for any felony involving the sexual molestation, physical or sexual abuse, or rape of a child or involving drugs pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2.

(2008, cc. 474, 827.)

Article 2. Former Jeopardy.

§ 19.2-292. Acquittal by jury on merits bar to further prosecution for same offense.

A person acquitted upon the facts and merits on a former trial, may plead such acquittal in bar of a second prosecution for the same offense, notwithstanding any defect in the form or substance of the indictment or accusation on which he was acquitted, unless the case be for a violation of the law relating to the state revenue and the acquittal be reversed on a writ of error on behalf of the Commonwealth.

(Code 1950, § 19.1-257; 1960, c. 366; 1975, c. 495.)

Cross references. - As to other provisions providing for appeal in prosecutions for violation of state revenue laws, see § 19.2-317 .

Research References. - Virginia Forms (Matthew Bender). No. 9-1805. Motion to Dismiss - Former Jeopardy.

Michie's Jurisprudence. - For related discussion, see 2C M.J. Autrefois, Acquit and Convict, §§ 6, 7, 9, 10, 12; 5B M.J. Criminal Procedure, § 8.

CASE NOTES

Section does not apply when warrants were quashed because void. - This section, providing immunity against a second trial for the same offense, speaks only of cases in which there has first been an acquittal "by the jury upon the facts and merits." It does not in terms at least, apply to a case, where no jury was sworn, but the warrant of a justice of the peace was quashed and dismissed on the ground that the statute under which it was issued was unconstitutional and void. Commonwealth v. Perrow, 124 Va. 805 , 97 S.E. 820 (1919).

Nor when indictment was dismissed for variance. - When defendant was acquitted on the first trial because of a variance between the indictment and the proof, this acquittal could not be pleaded in bar to a second trial on the same crime. Burress v. Commonwealth, 68 Va. (27 Gratt.) 934 (1876), overruled on another point Keister's Ex'rs v. Philips' Ex'x, 124 Va. 585 , 98 S.E. 674 (1919).

Nor when quashed for racial discrimination in selection of grand jury. - Where former indictments against defendant were quashed on his motion because of racial discrimination in the selection of the grand jury, and a jury verdict on one of them was set aside and annulled, and subsequently another grand jury returned indictments against defendant substantially identical with the former ones, pleas of autrefois acquit would not lie to the new indictments, for defendant was not in jeopardy under the invalid indictments. Mealy v. Commonwealth, 193 Va. 216 , 68 S.E.2d 507 (1952).

Acquittal on defective indictment. - This section was intended to apply when a person had been brought to trial under a defective indictment upon the facts and merits, and acquitted. He may then plead such acquittal in bar of a second prosecution for the same offense, notwithstanding the defective indictment. Burress v. Commonwealth, 68 Va. (27 Gratt.) 934 (1876), overruled on another point Keister's Ex'rs v. Philips' Ex'x, 124 Va. 585 , 98 S.E. 674 (1919); Rosser v. Commonwealth, 159 Va. 1028 , 167 S.E. 257 (1933).

Voluntary de novo appeal did not constitute new trial. - Appellate court did not reach defendant's issue of whether two charges constituted the "same offense," under § 19.2-292 , because the charges at issue were brought as a part of a single prosecution, and it was well settled that an appeal de novo from a general district court to a circuit court annulled the former judgment as completely as if no trial had ever occurred; thus, defendant's argument that her voluntary appeal, after her conviction for a misbranding charge in district court, constituted a new trial, was without merit. McClellan v. Commonwealth, 39 Va. App. 759, 576 S.E.2d 785, 2003 Va. App. LEXIS 95 (2003).

Former trial by court or jury may constitute jeopardy. - The spirit and purpose of the immunity intended to be secured by the doctrine of double jeopardy is violated whenever a defendant in any criminal case has been formerly tried by competent authority - whether court or jury - and discharged upon a defense constituting a bar to the proceeding, whether that defense is rested upon the law or the facts. Adkins v. Commonwealth, 175 Va. 590 , 9 S.E.2d 349 (1940).

§ 19.2-293. When acquittal not a bar to further prosecution for same offense.

A person acquitted of an offense on the ground of a variance between the allegations and the proof of the indictment or other accusation, or upon an exception to the form or substance thereof, may be arraigned again on a new indictment or other proper accusation, and tried and convicted for the same offense, notwithstanding such former acquittal.

(Code 1950, § 19.1-258; 1960, c. 366; 1975, c. 495.)

Cross references. - As to discharge of accused for failure to try within time prescribed, see § 19.2-243 .

As to effect of verdict of not guilty of felony on subsequent prosecution for attempt, see § 19.2-286 .

For constitutional provisions as to former jeopardy, see Va. Const., Art. I, § 8.

Michie's Jurisprudence. - For related discussion, see 2C M.J. Autrefois, Acquit and Convict, § 6; 10A M.J. Instructions, § 35.

CASE NOTES

Discharge of jury after excluding state's evidence does not bar subsequent prosecution. - The court discharged the jury after sustaining motion of the defendant to exclude the Commonwealth's evidence on the ground of variance. The discharge of the jury on such ground did not bar a subsequent prosecution. Robinson v. Commonwealth, 73 Va. (32 Gratt.) 866 (1879).

Nor does verdict set aside for variance. - A second indictment being for the same act of embezzling as the first, and the prisoner having been indicted, tried and convicted in time, and the verdict set aside for variance between allegation and proof as to ownership of the property, the second indictment was proper and in time, and the prisoner is not entitled to be discharged. Commonwealth v. Adcock, 49 Va. (8 Gratt.) 661 (1851). See also, Robinson v. Commonwealth, 73 Va. (32 Gratt.) 866 (1879).

Section 19.2-243 is to be read as a proviso to this section, so as to authorize the trial and conviction of a party upon a new indictment or proper accusation who has been acquitted on the ground of variance, or upon an exception to the form or substance of the indictment, only if this new indictment is found and the trial had within three terms after the prisoner was first held for trial. Commonwealth v. Adcock, 49 Va. (8 Gratt.) 661 (1851).

When discharge upon demurrer bars further prosecution. - Where defendant was indicted and charged with the commission of the crime of bigamy and with counselling, aiding and abetting and assisting in the commission of the crime of bigamy, and a demurrer to that indictment was sustained on the ground that as a matter of law an unmarried man was not included within the language of the statute defining bigamy and could not be an accessory to the crime, and it was ordered that "the defendant be discharged from said indictment and may go thereof without day," the order discharging defendant "without day" was an ultimate decision upon a question of law, and when defendant was arraigned upon a second indictment charging him with aiding and abetting in the commission of the crime of bigamy the trial court erred in sustaining a demurrer to a plea of autrefois acquit to the second indictment. Adkins v. Commonwealth, 175 Va. 590 , 9 S.E.2d 349 (1940).

Sufficiency of evidence argument considered. - Court of appeals addressed defendant's argument that the evidence was insufficient to support his convictions even though his convictions were reversed due to a fatal variance between the indictments and the proof offered at trial because if successful, it could impose a double jeopardy bar to reprosecution under properly worded indictments. Purvy v. Commonwealth, 59 Va. App. 260, 717 S.E.2d 847, 2011 Va. App. LEXIS 389 (2011).

CIRCUIT COURT OPINIONS

Prior dismissal did not bar retrial. - Where a dismissal in a prior case in a circuit court was entered before a jury was empaneled and before an arraignment, and was not intended to have been with prejudice or amounting to an acquittal, double jeopardy did not bar retrial of the same charges in a city court. Commonwealth v. Hagwood, 63 Va. Cir. 212, 2003 Va. Cir. LEXIS 356 (Charlottesville 2003).

§ 19.2-294. Offense against two or more statutes or ordinances.

If the same act be a violation of two or more statutes, or of two or more ordinances, or of one or more statutes and also one or more ordinances, conviction under one of such statutes or ordinances shall be a bar to a prosecution or proceeding under the other or others. Furthermore, if the same act be a violation of both a state and a federal statute, a prosecution under the federal statute shall be a bar to a prosecution under the state statute. The provisions of this section shall not apply to any offense involving an act of terrorism as defined in § 18.2-46.4 .

For purposes of this section, a prosecution under a federal statute shall be deemed to be commenced once jeopardy has attached.

(Code 1950, § 19.1-259; 1960, c. 366; 1975, c. 495; 1987, c. 241; 2002, cc. 588, 623; 2003, c. 736.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2003, c. 736, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and added the last sentence in the first paragraph.

The 2003 amendments. - The 2003 amendment by c. 736 substituted "commenced once jeopardy has attached" for "commenced with the return of an indictment by a grand jury or the filing of an information by a United States attorney" at the end of the second paragraph.

Law review. - For note, "Commonwealth Right of Appeal in Criminal Proceedings," see 43 Wash. & Lee L. Rev. 295 (1986). For comment on multiple murder, multiple punishment and double jeopardy in Virginia, see 9 G.M.U. L. Rev. 107 (1986).

For an article, "Criminal Law and Procedure," see 31 U. Rich. L. Rev. 1015 (1997).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

Michie's Jurisprudence. - For related discussion, see 2C M.J. Autrefois, Acquit and Convict, §§ 18, 20, 28; 3A M.J. Burglary and Housebreaking, §§ 11, 21; 5A M.J. Courts, § 62; 5B M.J. Criminal Procedure, § 87; 9A M.J. Habeas Corpus, § 18.

CASE NOTES

I. IN GENERAL.

Applicability. - This section is implicated only when both convictions are for violations of a statute or a local ordinance or a combination of such; as such, the statute does not apply if one of the charges is a common-law offense. Morris v. Commonwealth, 45 Va. App. 181, 609 S.E.2d 92, 2005 Va. App. LEXIS 79 (2005).

For a case discussing the history of this section and § 19.2-294.1 and the cases interpreting those sections, see Lash v. County of Henrico, 13 Va. App. 251, 410 S.E.2d 689 (1991), overruled on other grounds, Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

The purpose of this section is to remove the hardship manifest in Arrington v. Commonwealth, 87 Va. 96 , 12 S.E. 224 (1890), in which a prisoner had "committed" but a single act, but inasmuch as it violated two statutes, he was convicted under both. Owens v. Commonwealth, 129 Va. 757 , 105 S.E. 531 (1921).

Preventive effect. - Although the language of this section does not state that it provides a defense of former jeopardy, it amounts to such a defense in purpose and desired effect. Like the Fifth Amendment bar of former jeopardy, this section prevents the Commonwealth from subjecting an accused to the hazards of vexatious, multiple prosecutions. Phillips v. Commonwealth, 257 Va. 548 , 514 S.E.2d 340 (1999).

This section is applicable only to criminal proceedings. It does not apply to a proceeding under § 18.2-336 [see now § 19.2-386.30 ] to forfeit property used in connection with a lottery, for that is a civil case. Quidley v. Commonwealth, 190 Va. 1029 , 59 S.E.2d 52 (1950).

This section applies only to multiple or successive prosecutions. - The plain language of this statute bespeaks a legislative intent that it applies only to multiple or successive prosecutions. Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

When defendant was charged with multiple arson counts, § 19.2-294 did not bar his convictions of those counts, because that statute only barred multiple or successive prosecutions, and defendant was tried in a single, simultaneous, prosecution for all the offenses alleged. Schwartz v. Commonwealth, 41 Va. App. 61, 581 S.E.2d 891, 2003 Va. App. LEXIS 339 (2003), aff'd, 267 Va. 751 , 594 S.E.2d 925 (2004).

This section does not apply to simultaneous prosecutions. Slater v. Commonwealth, 15 Va. App. 593, 425 S.E.2d 816 (1993).

Simultaneous prosecutions not barred. - This section does not bar multiple convictions arising out of the same act if they are prosecuted simultaneously. Thus where warrants for involuntary manslaughter and driving while under the influence of alcohol were issued at the same time, although the charges were heard at different times in different courts, because the charges were initiated simultaneously, the proceedings were concurrent, not successive, and thus, both convictions were permitted under this section. Doss v. Commonwealth, No. 2003-93-3, 1995 Va. App. LEXIS 425 (May 9, 1995).

Defendant's convictions in the circuit court for cruelty to animals in violation of § 3.1-796.122, after defendant had already been convicted in district court for failure to provide care for the same animals under § 3.1-796.68, did not violate § 19.2-294 because the cruelty convictions occurred as part of the same prosecution as her convictions for failure to provide care, and § 19.2-294 did not apply to simultaneous prosecutions. Hillman v. Commonwealth, No. 1211-01-3, 2002 Va. App. LEXIS 195 (Ct. of Appeals Apr. 2, 2002).

Evidence that defendant used his finger to rub his 12-year-old stepdaughter's genitalia and also touched his stepdaughter's breasts was sufficient to sustain his convictions for animate object sexual penetration and aggravated sexual battery, and nothing in § 19.2-294 barred defendant's convictions for both crimes in a single, simultaneous prosecution. Fincham v. Commonwealth, No. 3361-02-2, 2004 Va. App. LEXIS 259 (Ct. of Appeals June 8, 2004).

Trial court did not err in failing to dismiss indictments for robbery and possession of a firearm after a felony conviction on double jeopardy grounds, as the prosecutions against defendant were simultaneous, not successive, because they were joined in a single evidentiary hearing in the general district court; thus, upon an adjudication on misdemeanor charges, the later events in the circuit court on the felony charges were merely a continuation of the same prosecution. Morris v. Commonwealth, 45 Va. App. 181, 609 S.E.2d 92, 2005 Va. App. LEXIS 79 (2005).

Simultaneous initiation of charges is not exclusive measure of whether convictions arise from a single prosecution; rather, the more significant and compelling factor is whether the offenses were prosecuted in a single, concurrent evidentiary hearing. Phillips v. Commonwealth, 27 Va. App. 674, 500 S.E.2d 848 (1998).

Multiple convictions arising from same act not necessarily precluded. - This section does not preclude multiple convictions arising from the same act, provided the related offenses are prosecuted simultaneously. Hairston v. Commonwealth, No. 2777-95-3, 1996 Va. App. LEXIS 814 (Dec. 31, 1996).

Where felony and misdemeanor charges are instituted at separate times, but are heard simultaneously in a single proceeding, they are part of a single prosecution, even though jurisdictional limitations necessitate that they be concluded in different courts. Phillips v. Commonwealth, 27 Va. App. 674, 500 S.E.2d 848 (1998).

Conspiracy test. - The court has adopted the "totality of the circumstances" test established by the Fourth Circuit in United States v. MacDougall, 790 F.2d 1135 (4th Cir. 1986), to determine whether the evidence proves a single conspiracy or multiple conspiracies. Bolton v. Commonwealth, 19 Va. App. 376, 451 S.E.2d 687 (1994).

The MacDougall test examines five criteria: (1) the time periods of the alleged conspiracy(ies); (2) the places where the alleged activities occurred; (3) the people involved; (4) the overt acts alleged; and (5) the substantive statutes involved. Bolton v. Commonwealth, 19 Va. App. 376, 451 S.E.2d 687 (1994).

Multiple convictions for "same act" in same trial. - This section does not bar multiple convictions for the "same act" when those convictions are obtained in a single trial; however, multiple convictions and punishments for the "same act" may be precluded by the double jeopardy clause, even though obtained in a single trial. Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

This section does not bar multiple convictions for separate crimes arising out of the same act when those convictions are obtained in a single trial. Thus, even if the challenged convictions arose out of the "same act," this section would not impose a bar if the convictions were obtained in a single proceeding. Because convictions were obtained in a single trial, defendant's contention that this section precluded his convictions for abduction, robbery and use of a firearm in the commission of a felony was without merit. Phoung v. Commonwealth, 15 Va. App. 457, 424 S.E.2d 712 (1992).

Capital murder convictions following defendant's guilty pleas to the lesser included first-degree murder offenses were not precluded because this section applies only to successive proceedings or prosecutions, and does not bar multiple convictions for the same act when those convictions are obtained in a single trial. Rea v. Commonwealth, 14 Va. App. 940, 421 S.E.2d 464 (1992).

Same evidence test cannot be reconciled with the plain language of this statute and can, in practice, defeat the protection afforded by this statute; the protection afforded by this statute depends on whether a given action is or is not the same act. To restore clarity to the law, the supreme court overrules Jefferson v. Commonwealth , 43 Va. App. 361 (2004) and Johnson v. Commonwealth , 38 Va. App. 137 (2002), and rejects any test articulated in Hundley v. Commonwealth , 193 Va. 449 (1952) or other prior cases that diverge from the factually based same act analysis required by this statute. Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (Dec. 3, 2020).

Amenability of one charge to early conclusion. - Where charges are brought simultaneously, the amenability of one to early conclusion, while the other requires further proceedings, does not alter the fact that the proceedings are concurrent, not successive, prosecutions. Slater v. Commonwealth, 15 Va. App. 593, 425 S.E.2d 816 (1993).

Multiple convictions for "same act" through successive prosecutions. - This section bars the Commonwealth from securing multiple convictions for the "same act" through successive prosecutions or proceedings after having previously obtained a conviction. Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

Successive prosecution not barred for offenses of possession of concealed weapon and possession of firearm by convicted felon. - Where both defendants were convicted in separate prosecutions of carrying a concealed weapon in a first prosecution and possessing a firearm as a convicted felon in a second prosecution, the statute barring a successive prosecution did not bar the subsequent prosecutions in defendants' cases because, to be concealed, the weapons had to first be possessed; and the possession and concealment might (or might not) have been close temporally, but there could be no dispute that defendants had to possess the firearms at issue, and that it took separate acts to conceal them; thus, the additional act of concealing the weapon made it a different act from merely possessing it, and the successive prosecutions did not rest on the same act. Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (Dec. 3, 2020).

Two prosecutions involving single element insufficient to invoke double jeopardy protection. - Defendant was properly convicted of operating a motor vehicle after been declared an habitual offender, as the same evidence was not required to sustain both charges for DUI and for driving after having been declared a habitual offender; thus, the fact that the two prosecutions involved the single, overlapping element was not enough to invoke the protection of § 19.2-294 . Belvin v. Commonwealth, No. 2568-01-1, 2002 Va. App. LEXIS 620 (Ct. of Appeals Oct. 15, 2002).

Pleading did not transform single prosecution into separate prosecutions. - By electing to plead guilty to three charges and not guilty to the remainder, defendant neither transformed the single prosecution into two separate prosecutions nor captured for himself any special protections against successive prosecutions under the double jeopardy clause. The convictions were thus obtained in a single trial and not barred by this section. Rea v. Commonwealth, 14 Va. App. 940, 421 S.E.2d 464 (1992).

Simultaneous prosecutions found. - Prosecutions were simultaneous, not successive, because they were joined in a single evidentiary hearing in the general district court. Thus, the later events in the circuit court on the felony charges were merely a continuation of the same prosecution. Phillips v. Commonwealth, 257 Va. 548 , 514 S.E.2d 340 (1999).

Under § 19.2-294 , defendant's guilty plea to reckless driving did not bar his prosecution for felony eluding arising from the same incident; as arrest warrants for the two offenses were issued on the same date, the misdemeanor and felony charges were brought in a "single proceeding," even though, due to jurisdictional constraints, they were resolved by two different courts. Hall v. Commonwealth, No. 1731-11-2, 2012 Va. App. LEXIS 306 (Ct. of Appeals Oct. 2, 2012).

Section applies only to statutory offenses. - This section does not bar a defendant's conviction and punishment for both voluntary manslaughter and unlawful wounding, since it applies only where two or more statutory offenses are involved, and manslaughter is a common-law offense. Blythe v. Commonwealth, 222 Va. 722 , 284 S.E.2d 796 (1981).

This section is not applicable when one crime is a common-law offense. Darnell v. Commonwealth, 12 Va. App. 948, 408 S.E.2d 540 (1991).

Statutory protection afforded by this section did not apply where one of defendant's criminal violations was for attempted murder, a common-law offense. Coleman v. Commonwealth, No. 2871-97-2, 1999 Va. App. LEXIS 445 (July 20, 1999).

Conviction is necessary under first sentence. - Under the first sentence of this section a mere proceeding or prosecution which does not result in a conviction does not bar another prosecution in a state court. Owens v. Commonwealth, 129 Va. 757 , 105 S.E. 531 (1921), overruled on other grounds, Watkins v. Commonwealth, 238 Va. 341 , 385 S.E.2d 50 (1989); Wheeler v. Commonwealth, 192 Va. 665 , 66 S.E.2d 605 (1951); Dykeman v. Commonwealth, 201 Va. 807 , 113 S.E.2d 867 (1960).

This section contemplates a conviction of an act or offense prohibited by two or more statutes or ordinances. Hundley v. Commonwealth, 193 Va. 449 , 69 S.E.2d 336 (1952), overruled in part and superseded by statute as stated in Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (2020); Kelley v. County of Brunswick, 200 Va. 45 , 104 S.E.2d 7 (1958).

The statute only bars prosecutions or proceedings after there has been a conviction. Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

But first sentence applies only to state statutes and municipal ordinances. - The first sentence of this section applies only where state statutes and municipal ordinances are involved. Sigmon v. Commonwealth, 200 Va. 258 , 105 S.E.2d 171 (1958).

The second sentence of this section does not create an absolute bar, which may be invoked by persons prosecuted in the state court at any time before conviction, without any reference to the time when either prosecution was commenced; it only refers to prosecutions in the federal court which have been commenced before the state court takes jurisdiction of the case. Owens v. Commonwealth, 129 Va. 757 , 105 S.E. 531 (1921).

By the second sentence of this section, the legislature only intended to provide that if, when a prosecution under a state law was commenced, the accused could show that before that time there had been a prosecution against him under a federal statute for the same act, then the prosecution in the state court should be barred. Owens v. Commonwealth, 129 Va. 757 , 105 S.E. 531 (1921); Sigmon v. Commonwealth, 200 Va. 258 , 105 S.E.2d 171 (1958).

Charges arising from joint federal and state investigation does not necessarily bar state prosecution. - Under this section, a prosecution under state law for an offense arising out of a joint federal and state investigation is barred where a defendant has been charged in a federal warrant for the same acts. However, the mere fact that charges may be the result of a joint federal and state investigation does not necessarily bar a state prosecution. Billington v. Commonwealth, 13 Va. App. 341, 412 S.E.2d 461 (1991).

Even if some of the events of state prosecutions are recited in an affidavit for a federal search warrant, a later state prosecution is not barred where the search warrant is based on other information developed during the investigation. Billington v. Commonwealth, 13 Va. App. 341, 412 S.E.2d 461 (1991).

State prosecution not barred where it commenced prior to federal prosecution. - Section 19.2-294 did not bar state prosecution of defendant because the state action commenced before the federal prosecution; the state court proceedings at issue commenced upon issuance of the arrest warrants whereas the federal proceedings did not commence until the federal indictment was returned. Green v. Commonwealth, No. 2508-02-2, 2003 Va. App. LEXIS 516 (Ct. of Appeals Oct. 14, 2003).

Court first taking jurisdiction has priority. - See Owens v. Commonwealth, 129 Va. 757 , 105 S.E. 531 (1921).

Conduct constituting "same act." - Although this section does not afford a blanket bar to multiple convictions where one such occurrence of driving a motor vehicle is involved, where one occurrence of driving cannot be separated factually into separate and distinct acts of driving and constitutes one distinct, continuous and unaltered course of driving bounded closely in terms of place and time, such conduct is the "same act" of driving for purposes of this section claim. Lash v. County of Henrico, 13 Va. App. 251, 410 S.E.2d 689 (1991), overruled on other grounds, Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

This section applies to violation of any two or more statutes, not just driving while intoxicated and reckless driving, and it is applicable only if "the same act" is a violation of two or more statutes, not to offenses growing out of the same act or acts, and § 19.2-294 does not contemplate a continuous, uninterrupted course of operation of a motor vehicle. Brown v. Commonwealth, No. 2028-03-2, 2004 Va. App. LEXIS 363 (Ct. of Appeals July 27, 2004).

Convictions of malicious wounding and stabbing arose from same act. - Defendant's act of stabbing the victim clearly was the identical act that was used to convict him of malicious wounding and of stabbing in the commission of a felony; therefore, multiple convictions arising out of the "same act" were obtained. Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

The inclusion of the words "same act or acts" in § 19.2-294.1 broadens the scope of that section over that of this section, which is limited to multiple prosecutions for the "same act." Lash v. County of Henrico, 13 Va. App. 251, 410 S.E.2d 689 (1991), overruled on other grounds, Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

Test of identity of acts or offenses is whether the same evidence is required to sustain them; if not, then the fact that several charges relate to and grow out of one transaction or occurrence does not make a single act or offense where two separate acts or offenses are defined by statute. Hundley v. Commonwealth, 193 Va. 449 , 69 S.E.2d 336 (1952), overruled in part and superseded by statute as stated in Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (2020); Owsley v. Cunningham, 190 F. Supp. 608 (E.D. Va. 1961).

A conviction of one statutory offense does not bar conviction under another statutory offense if each offense could have been proved without the necessity of proving the other. Fitzgerald v. Commonwealth, 11 Va. App. 625, 401 S.E.2d 208 (1991).

In determining whether the conduct underlying the convictions is based upon the same act, the particular criminal transaction must be examined to determine whether the acts are the same in terms of time, situs, victim, and the nature of the act itself. Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

The test of whether there are separate acts sustaining several offenses is whether the same evidence is required to sustain them. Slade v. Commonwealth, No. 2664-98-3, 2000 Va. App. LEXIS 514 (Ct. of Appeals July 18, 2000).

To establish the applicability of this section, a defendant is required to do no more than to show that the "act" which served as the basis for the one conviction was "the same act" which was used to convict him of the other charge. Slade v. Commonwealth, No. 2664-98-3, 2000 Va. App. LEXIS 514 (Ct. of Appeals July 18, 2000).

Two victims. - There were two distinct victims of the crimes of which defendant was convicted: the victim of the improper driving traffic offense was the Commonwealth, and the victim of the unlawful wounding was defendant's ex-boyfriend. Accordingly, the trial court did not err in denying defendant's motion to dismiss the unlawful wounding charge. Moore v. Commonwealth, No. 0662-17-1, 2018 Va. App. LEXIS 122 (May 1, 2018).

Introduction of evidence of federal crimes to prove intent not bar to state prosecution. - The mere fact that the prosecution introduced and relied upon evidence of federal crimes to prove a defendant's intent with respect to the different acts for which he was being prosecuted under state law did not bar his prosecution. Billington v. Commonwealth, 13 Va. App. 341, 412 S.E.2d 461 (1991).

No double jeopardy where state and federal offenses involve different acts. - Defendant's motion to dismiss the heroin transport charges against him in the Commonwealth court was denied because the previous dismissal of the heroin distribution charges against the defendant in the federal court did not warrant a finding of double jeopardy as the defendant was charged with different acts, that is the transportation of heroin across the Commonwealth's border in the Commonwealth court and the distribution of heroin in the federal court. Londono v. Commonwealth, 40 Va. App. 377, 579 S.E.2d 641, 2003 Va. App. LEXIS 257 (2003).

Determination of simultaneous or successive charges. - It is the time of their institution which determines whether multiple charges are simultaneous or successive. Hairston v. Commonwealth, No. 2777-95-3, 1996 Va. App. LEXIS 814 (Dec. 31, 1996).

Collection of evidence is not step in prosecution of crime. - A step in the process of prosecution, under a federal statute, must first be begun against a defendant for the "same act" before this section is a bar to a later state prosecution; the collection of evidence by a federal grand jury which coincidentally, inadvertently or unavoidably includes evidence of a state crime is not "a step in the prosecution, under federal statute," of that crime and does not bar prosecution by the state for that crime. Billington v. Commonwealth, 13 Va. App. 341, 412 S.E.2d 461 (1991).

The mere fact that evidence of a state crime may be captured in the broad sweep of an inquiry before a federal grand jury does not bar prosecution by the state for that crime. Billington v. Commonwealth, 13 Va. App. 341, 412 S.E.2d 461 (1991).

The mere fact that evidence of a state crime may be captured in the broad sweep of an inquiry before a federal grand jury does not bar prosecution by the state for that crime. There must be a step in the process of prosecution, under a federal statute for the "same act" before this section is a bar to a later state prosecution. The mere collection of evidence by a federal grand jury which coincidentally, inadvertently or unavoidably includes evidence of a state crime is not such a step and does not bar prosecution by the state for that crime. Phau v. Commonwealth, No. 0539-90-3 (Ct. of Appeals Sept. 29, 1992).

Where an indictment for murder followed statutory short form and did not allege that the murder was committed while the accused was in the act of committing or attempting to commit robbery, the proof required to sustain the conviction was entirely different from that required to sustain conviction under a previous indictment for robbery only. Owsley v. Cunningham, 190 F. Supp. 608 (E.D. Va. 1961).

One occasion of driving an automobile may give rise to several acts and offenses, and the test of whether there are separate acts sustaining several offenses is whether the same evidence is required to sustain them. Estes v. Commonwealth, 212 Va. 23 , 181 S.E.2d 622 (1971).

Manner of raising defense. - A defense under the provisions of this section is not exactly one of former jeopardy, yet it amounts to such a defense in purpose and desired effect. A mere motion to dismiss or quash is not sufficient to constitute a plea of former jeopardy. Such a defense must be raised by a formal plea in writing, duly sworn to, and setting forth all the facts and circumstances necessary to identify the accused and the offense. Sigmon v. Commonwealth, 200 Va. 258 , 105 S.E.2d 171 (1958), holding that defendant's motion to quash, would, in this instance, be considered sufficient as a plea of former jeopardy under this section.

This section is not exactly a defense of former jeopardy. Yet, it amounts to such a defense in purpose and desired effect. Epps v. Commonwealth, 216 Va. 150 , 216 S.E.2d 64 (1975).

Time for raising defense. - To argue a violation of this section, a defendant must present his plea in writing seven days prior to the trial date and, if the rule establishing this time limit is not followed, a defendant is deemed to have waived these concerns although, for good cause shown, a circuit court can allow an oral motion prior to trial. Clay v. Commonwealth, No. 0619-99-2, 2000 Va. App. LEXIS 644 (Ct. of Appeals Sept. 5, 2000).

Question cannot be raised for first time on appeal. - On appeal from a conviction for driving an automobile while under the influence of intoxicants, the accused contended that, because he had been tried upon a charge of being intoxicated and had been acquitted, this was an adjudication of driving an automobile while under the influence of intoxicants and, under this section, barred the second prosecution. However, it was held that the accused could not raise this question for the first time on appeal. Owens v. Commonwealth, 147 Va. 624 , 136 S.E. 765 (1927).

A defense under this section was not made in the lower court and it cannot be raised for the first time on appeal. This is so because the defense is akin to that of former jeopardy which is an affirmative defense and if not raised in proper time is deemed to have been waived. Hubbard v. Commonwealth, 207 Va. 673 , 152 S.E.2d 250 (1967).

Where defendant was convicted of both murder and malicious discharge of a firearm, in a case where there was testimony that another person was about three to four feet from the murder victim at the time of the killing, and the other person was knocked back and could not hear, defendant did not preserve defendant's argument that § 19.2-294 required the Commonwealth to elect which charge the Commonwealth would present to the jury, as the argument was not presented to the trial court; the Virginia Court of Appeals would not consider an argument on appeal that was not presented to the trial court, under Va. Sup. Ct. R. 5A:18. Proctor v. Commonwealth, 40 Va. App. 233, 578 S.E.2d 822, 2003 Va. App. LEXIS 182 (2003).

Not barred by double jeopardy. - In a case in which defendant was convicted of possession with the intent to distribute methamphetamine, the trial court did not err in denying defendant's motion to dismiss the indictment and ruling that the case was not barred by double jeopardy principles. Campbell v. Commonwealth, 69 Va. App. 217, 817 S.E.2d 663, 2018 Va. App. LEXIS 230 (2018).

Applied in Mason v. Commonwealth, 217 Va. 321 , 228 S.E.2d 683 (1976); Wade v. Commonwealth, 9 Va. App. 359, 388 S.E.2d 277 (1990); Ali v. Commonwealth, 280 Va. 665 , 701 S.E.2d 64, 2010 Va. LEXIS 273 (2010).

II. ILLUSTRATIVE CASES.

Acts occurred at separate times and places. - Because the felony obstruction of justice prosecution was not based on the same act as the misdemeanor obstruction of justice conviction, § 19.2-294 did not bar his prosecution for felony obstruction of justice. Roach v. Commonwealth, 51 Va. App. 741, 660 S.E.2d 348, 2008 Va. App. LEXIS 212 (2008).

Prosecutions not based on same evidence as earlier convictions. - State prosecutions on ten charges of embezzlement, violations of § 18.2-111 , convictions were not barred under § 19.2-294 , although defendant had previously pled guilty on federal charges of mail fraud, in violation of 18 U.S.C.S. § 1341, and money laundering, in violation of 18 U.S.C.S. § 1956, because the evidence necessary to prove the federal offenses was different from that required to prove the state offenses where the acts involved in embezzling the funds were not the same as the acts of laundering the money and engaging in mail fraud. Rodis v. Commonwealth,, 2010 Va. App. LEXIS 195 (May 11, 2010).

Multiple violations under a single statute not barred. - Conviction for committing three acts of aggravated sexual battery did not violate § 19.2-294 , as defendant was convicted in a simultaneous prosecution for multiple violations of a single statute and § 19.2-294 only barred successive convictions under two or more statutes. De'Armond v. Commonwealth, 51 Va. App. 26, 654 S.E.2d 317, 2007 Va. App. LEXIS 460 (2007).

Bar to prosecution. - This statute bars a prosecution when: (1) the defendant was previously prosecuted - if the prosecutions are simultaneous, this statute does not apply; (2) the prior prosecution resulted in a conviction - if the defendant was not convicted, this statute does not apply; and (3) the prior prosecution was based on the "same act." In resolving that question, the court should compare the act proved in a prior prosecution with the act alleged in the successive prosecution to determine whether the act is the same: was it separated in time or location, was it a separate volitional act, and did the act differ in its nature. Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (Dec. 3, 2020).

Prosecution for attempted murder after conviction of obstructing justice. - This section is not a bar to prosecution for attempted murder after a conviction of obstructing justice; while obstructing justice may be a statutory offense, attempted murder is a common-law offense. Martin v. Commonwealth, 242 Va. 1 , 406 S.E.2d 15, cert. denied, 502 U.S. 945, 112 S. Ct. 388, 116 L. Ed. 2d 339 (1991).

Conviction of being a felon in possession of a handgun not based on the same evidence as earlier conviction for carrying a concealed weapon. - Defendant's conviction of possession of a firearm by a felon, § 18.2-308.2 , was affirmed; the possession by a felon conviction was based on different evidence than the conviction for carrying a concealed weapon, § 18.2-308 , which was based on the same incident, and therefore § 19.2-294 did not bar the possession by a felon conviction. Jefferson v. Commonwealth, 43 Va. App. 361, 597 S.E.2d 290, 2004 Va. App. LEXIS 277 (2004), overruled by Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (2020).

Reckless driving and driving under the influence. - In apparent response to Hundley v. Commonwealth, 193 Va. 449 , 69 S.E.2d 336 (1952), the legislature changed the focus from "the same act" in cases involving concurrent charges of reckless driving and driving under the influence arising from one occurrence to whether the offenses arose from one continuous, uninterrupted course of operation of a motor vehicle. Lash v. County of Henrico, 13 Va. App. 251, 410 S.E.2d 689 (1991), overruled on other grounds, Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

Reckless driving and speeding are separate and distinct offenses; nothing in the language of § 19.2-294.1 precludes the Commonwealth or a locality from convicting a person for both DUI and speeding. White v. Commonwealth, 26 Va. App. 410, 494 S.E.2d 896 (1998).

Prosecution for eluding a police officer after DUI conviction. - Although defendant had already been convicted of driving under the influence under § 18.2-266 from the same incident, his conviction for eluding a police officer under subsection B of § 46.2-817 was not barred by § 19.2-294 because the specific acts serving as a basis for prosecution of the offenses were separate and distinct in that the same evidence would not produce a conviction for both offenses. Wolford v. Commonwealth,, 2006 Va. App. LEXIS 513 (Nov. 14, 2006).

Conviction of driving under influence and of driving on suspended license. - The defendant's conviction of driving under the influence was not barred, under this section, by his contemporaneous conviction of driving on a suspended license, or vice versa, because the defendant could have been convicted of driving under the influence without evidence of the suspension of his driver's license, and he could have been convicted of driving on a suspended license without evidence of his intoxication. Estes v. Commonwealth, 212 Va. 23 , 181 S.E.2d 622 (1971).

Operating vehicle while under influence and driving after adjudged habitual offender. - Operating a motor vehicle while under the influence of alcohol and driving a motor vehicle upon a highway after having been adjudged an habitual offender are separate acts. Slater v. Commonwealth, 15 Va. App. 593, 425 S.E.2d 816 (1993).

Speeding and being adjudged an habitual offender. - Habitual offender charge was not barred by a prior speeding conviction because while the defendant's method of operating a motor vehicle was at issue in both charges, the nature of the specific act peculiar to each prosecution was different, the nature of each specific act was separate and distinct, and the speeding charge and habitual offender charge required different evidence. Terry v. Commonwealth, No. 0959-02-3, 2003 Va. App. LEXIS 220 (Ct. of Appeals Apr. 15, 2003).

Driving on suspended license and driving after being adjudged an habitual offender. - Charges of driving on a suspended license and driving after being adjudged an habitual offender did not constitute double jeopardy even though they arose from the same act of driving. While driving was conduct common and necessary to each charge, the legal disability on defendant relating to each was different, and thus the evidence would not produce a conviction for both offenses. Johnson v. Commonwealth, 38 Va. App. 137, 562 S.E.2d 341, 2002 Va. App. LEXIS 228 (2002), overruled by Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (2020).

Aggravated involuntary manslaughter and driving while intoxicated. - Vehicular aggravated involuntary manslaughter conviction did not violate § 19.2-294 , because defendant's conduct supported both defendant's conviction for manslaughter and the previous conviction for driving while intoxicated, where each act had a distinct victim and the nature of the act specific to each prosecution was distinct. Davis v. Commonwealth, 57 Va. App. 446, 703 S.E.2d 259, 2011 Va. App. LEXIS 3 (2011).

A prior administrative suspension of the defendant's driver's license did not bar a subsequent criminal trial for driving under the influence of alcohol. Kenison v. Commonwealth, No. 1688-97-4, 1999 Va. App. LEXIS 131 (Feb. 23, 1999).

Prosecution for hit and run after conviction for fleeing police. - The defendant's conviction of fleeing a police officer in Fairfax County did not bar his subsequent hit and run conviction in Arlington County. Even though the hit and run was the culmination of the same flight from police that gave rise to the Fairfax County conviction, the Arlington conviction was not based on the "same act" that served as the basis for the Fairfax conviction. Treu v. Commonwealth, 12 Va. App. 996, 406 S.E.2d 676 (1991).

Theft of several articles at same time. - The rule that the theft of several articles at one and the same time constitutes an indivisible offense, and a conviction or acquittal of any one or more of them is a bar to a subsequent prosecution for the larceny of the others, applies only to a case involving multiple larceny prosecutions predicated upon the theft of multiple articles stolen contemporaneously. Jones v. Commonwealth, 218 Va. 757 , 240 S.E.2d 658, cert. denied, 435 U.S. 909, 98 S. Ct. 1459, 55 L. Ed. 2d 500, 439 U.S. 892, 99 S. Ct. 249, 58 L. Ed. 2d 238 (1978), overruled in part by Hudgins v. Commonwealth, 269 Va. 607 , 611 S.Ed.2d 362 (2005).

Conviction of aggravated sexual battery and rape. - Defendant was not prosecuted under two statutes for a single act as proscribed by this section; instead, he was prosecuted for two separate acts, each constituting a distinct offense; when defendant moistened his finger and inserted it into his step-daughter's vagina (this act completed the offense of aggravated sexual battery) and then immediately thereafter, penetrated her vagina with his penis, (this act completed the offense of rape), defendant could have been convicted of each offense without evidence of the other, and this section did not bar his prosecution for both crimes because each offense was based on a different act arising from the same incident and each required different evidence to sustain a conviction. Thomas v. Commonwealth, No. 1743-88-3 (Ct. of Appeals Feb. 27, 1990).

This section does not prohibit defendant's prosecution in a single trial for aggravated malicious wounding and use of a firearm in the commission of the aggravated malicious wounding. Powell v. Commonwealth, No. 0554-89-1 (Ct. of Appeals Oct. 6, 1992).

Conviction of robbery and larceny. - In terms of time and situs, the robbery of a motel clerk and the larceny of the motel's courtesy car by the defendant involved two separate and distinct acts of caption and two different acts of asportation. Therefore, the acts which constituted the two offenses of which defendant was convicted were not "the same act" within the meaning of this section. Jones v. Commonwealth, 218 Va. 757 , 240 S.E.2d 658, cert. denied, 435 U.S. 909, 99 S. Ct. 249, 55 L. Ed. 2d 500, 439 U.S. 892, 99 S. Ct. 249, 58 L. Ed. 2d 238 (1978), overruled in part by Hudgins v. Commonwealth, 269 Va. 607 , 611 S.Ed.2d 362 (2005).

Conviction for burglary and grand larceny. - The double jeopardy clause does not bar conviction and sentence at one trial for burglary under § 18.2-91 and grand larceny under § 18.2-95 arising from a unitary criminal transaction, since each offense rests on different necessary elements. The clause is infringed only if all the components of a crime defined under one statute must also be proved to convict under another. The test to be applied is whether each provision requires proof of an additional fact which the other does not. Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971).

Conviction of breaking and entering and destroying private property. - This section is inapplicable where the "same act" involved was the breaking of the doors of the places broken into. This act, although common to both the convictions of breaking and entering and the convictions for destroying private property, was a violation of § 18.2-137 , destroying private property, but was not a violation of § 18.2-91 , statutory burglary. Thus, the same act was a violation of only one of the two statutes, not both. Fitzgerald v. Commonwealth, 11 Va. App. 625, 401 S.E.2d 208 (1991).

Prosecution for both breaking and entering and destroying private property was not barred because the breaking of a door may have been one continuous act, but the act of entering the property with intent to commit larceny, although immediately following the breaking, was a separate act from the breaking. Fitzgerald v. Commonwealth, 11 Va. App. 625, 401 S.E.2d 208 (1991).

Cruelty to animals and discharging firearm based on same act. - The Commonwealth was barred from prosecuting a defendant for cruelty to an animal after the defendant had already been convicted of discharging a firearm within the city limits, where the Commonwealth could successfully prosecute the defendant for cruelty to an animal only by proving, as charged in the indictment, that he shot the animal, and this same act of shooting was the basis for the earlier discharging a firearm conviction. Slade v. Commonwealth, No. 2664-98-3, 2000 Va. App. LEXIS 514 (Ct. of Appeals July 18, 2000).

Felony charges of distributing marijuana on school property not barred under the provisions of this section due to two prior misdemeanor convictions based on the same acts as the felony charges. Phillips v. Commonwealth, 27 Va. App. 674, 500 S.E.2d 848 (1998).

Conviction for five capital murders. - Although defendant was convicted of five charges of capital murder, each based separately upon proof beyond a reasonable doubt, the jury fixed only one death sentence for each victim. Under these circumstances, he was not subjected to multiple punishments for what he claimed was the same act or offense. Williams v. Commonwealth, 248 Va. 528 , 450 S.E.2d 365 (1994), cert. denied, 515 U.S. 1161, 115 S. Ct. 2616, 132 L. Ed. 2d 858 (1995).

Prior conviction of illegal manufacture of liquor. - Under this section a misdemeanor indictment charging illegal possession of a still in violation of former § 4-77 (see now § 4.1-314 ) would fall only upon conviction of a charge of the greater and inclusive offense of illegal manufacture of liquor in violation of former § 4-57 (see now § 4.1-300 ) by the use of the identical still. Wheeler v. Commonwealth, 192 Va. 665 , 66 S.E.2d 605 (1951), overruled on other grounds, Watkins v. Commonwealth, 238 Va. 341 , 385 S.E.2d 50 (1989).

Prior conviction of illegal sale of liquor. - Under this section, a prior conviction in a trial justice court for the illegal sale of liquor is a bar to a prosecution for illegal possession of the identical liquor. Wheeler v. Commonwealth, 192 Va. 665 , 66 S.E.2d 605 (1951), overruled on other grounds, Watkins v. Commonwealth, 238 Va. 341 , 385 S.E.2d 50 (1989).

Uttering a forged note is not the "same act" as obtaining money by means thereof. Bullock v. Commonwealth, 205 Va. 867 , 140 S.E.2d 821, cert. denied, 382 U.S. 927, 86 S. Ct. 310, 15 L. Ed. 2d 341 (1965), rehearing denied, 382 U.S. 1000, 86 S. Ct. 530, 15 L. Ed. 2d 489 (1966).

Indecent exposure not included in offense of sodomy. - The misdemeanor of indecent exposure is not included within the offense of sodomy because the elements of indecent exposure are not included within the elements of sodomy. Similarly, the elements of indecent exposure with lascivious intent are not included within the offense of sodomy, nor are the elements of sodomy included within the offense of indecent exposure with lascivious intent. So even if a prior conviction of indecent exposure with lascivious intent was based on the same evidence as a later prosecution for sodomy, this section is not applicable. Ashby v. Commonwealth, 208 Va. 443 , 158 S.E.2d 657 (1968), cert. denied, 393 U.S. 1111, 89 S. Ct. 884, 21 L. Ed. 2d 808 (1969).

Severance not found. - Omission from the indictment of the language in the warrant, "or concealed weapon," simply removed surplusage, without affecting the substantive allegation. Therefore, the felony prosecution continued, uninterrupted, through a procedurally regular course from its genesis in the criminal complaint to conviction in the trial court. Hairston v. Commonwealth, No. 2777-95-3, 1996 Va. App. LEXIS 814 (Dec. 31, 1996).

The procurement of arrest warrants on different dates does not automatically trigger the successive prosecution bar under this section. Since the bar is intended to protect an accused from the "hazards of vexatious, multiple prosecutions," the bar does not preclude the prosecution of charges in a single, evidentiary hearing, even though the arrest warrants were obtained on different dates. Phillips v. Commonwealth, 257 Va. 548 , 514 S.E.2d 340 (1999).

Subsequent prosecution under valid warrant. - Where a city ordinance was invalid and the city warrant issued under that ordinance was disposed of by a nolle prosequi - which barred prosecution under that particular warrant - this did not prevent later prosecution of the defendant under a valid warrant for the offense for which he was arrested. Lowery v. Commonwealth, 205 Va. 575 , 138 S.E.2d 300 (1964).

For a case indicating that courts will decide, case by case, whether particular acts in violation of §§ 46.2-817 and 46.2-852 can produce multiple convictions without violating this section or § 19.2-294.1 , see Lash v. County of Henrico, 13 Va. App. 251, 410 S.E.2d 689 (1991), overruled on other grounds, Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

CIRCUIT COURT OPINIONS

Only applies to convictions. - Trial court found that § 19.2-294 , which provided statutory double jeopardy protection to defendants, did not apply in defendant's case to prohibit a prosecution in the trial court against him for carnal knowledge in a case where the county juvenile court had already dismissed a charge of contributing to the delinquency of a minor against him; this section applies only to convictions and the dismissal of the charge in the county juvenile court did not involve a conviction against defendant. Commonwealth v. Hopkinson, 67 Va. Cir. 520, 2004 Va. Cir. LEXIS 362 (Loudoun County July 19, 2004).

"Acts" test. - Legal disability is not an "act" by a defendant; proof that a defendant has previously been convicted of a felony is an element of the offense but is not a separate act by him or her, and Virginia has explicitly rejected the "elements" test in favor of the "acts" test. Commonwealth v. Evans, 101 Va. Cir. 477, 2018 Va. Cir. LEXIS 711 (Norfolk Apr. 18, 2018).

Interpretation of the statute has narrowed the scope of its application to such an extent that it rarely effects its purpose; by overlaying the "same evidence" test atop the "same act" test, courts virtually ensure that the statute has no application. Inherently each criminal offense always requires evidentiary proof not required by any other offense, because different offenses have different elements. Commonwealth v. Evans, 101 Va. Cir. 477, 2018 Va. Cir. LEXIS 711 (Norfolk Apr. 18, 2018).

Simultaneous prosecutions not barred. - Requirements for proving a concealed weapons misdemeanor under § 18.2-308 were distinct from the requirements of § 18.2-308.2 , although the two charges were commenced at the same or concurrent time, and the prosecutions were not sequential in nature simply because the misdemeanor was more amenable to an expeditious resolution than the felony; thus, no violation of § 19.2-294 resulted. Commonwealth v. Turner, 62 Va. Cir. 209, 2003 Va. Cir. LEXIS 312 (Charlottesville 2003).

The fact that misdemeanor charges were brought to an early conclusion under the jurisdiction of the General District Court, did not make the subsequent prosecution of the felony cases in the Circuit Court a successive prosecution that violated the provisions of § 19.2-294 ; the prosecutions were simultaneous. Commonwealth v. Johnson, 68 Va. Cir. 482, 2001 Va. Cir. LEXIS 539 (Nelson County 2001).

State prosecution was not barred by § 19.2-294 on the basis of a federal prosecution because there was no showing that the acts for which defendant was charged, producing child pornography, also constituted a violation of a federal statute, which prohibited possession of child pornography transported in interstate commerce; defendant was charged federally with possessing child pornography that was transported in interstate commerce, but in the state case, defendant was charged with producing or creating child pornography images on a different date. Although he may have victimized the same child on more than one of these various occasions, the specific acts on which each prosecution was based were different in terms of when they occurred, as well as in the nature of the acts themselves. Commonwealth v. Allen,, 2007 Va. Cir. LEXIS 100 (Fairfax County May 3, 2007).

A prior administrative suspension of driver's license. - Sixty-day administrative license suspension requirement in § 46.2-391.2 is civil, and not criminal, like its seven-day counterpart, and a subsequent driving under the influence (DUI) prosecution thus does not violate double jeopardy or § 19.2-294 . Accordingly, such a suspension did not bar a DUI prosecution under § 18.2-266 . Commonwealth v. Stump, 69 Va. Cir. 433, 2006 Va. Cir. LEXIS 95 (Roanoke 2006).

Simultaneous prosecutions not barred. - Double jeopardy pursuant to Va. Const. art. I, § 8, U.S. Const. amend. V, or § 19.2-294 did not bar defendant's felony prosecution for charges stemming from the making and storing of hazardous materials for the purpose of manufacturing fireworks, violations of §§ 18.2-85 , 10.1-1455 , after he pleaded guilty to violations of Norfolk, Va. City Code §§ 17.1-43, 17.1-44(25), because each of the four statutes required different elements of proof. Commonwealth v. Saunders, 78 Va. Cir. 345, 2009 Va. Cir. LEXIS 173 (Norfolk May 27, 2009).

Acts occurred at separate times and places. - Defendant failed to show that trial counsel's arguments to support a motion to dismiss under § 19.2-294 fell below an objective standard of reasonableness state charges for producing child pornography under § 18.2-374.1 and federal charges for possession of images of child pornography under 18 U.S.C.S. 2252A(a)(5)(B) involved two distinct acts and required different evidence to sustain them; the federal possession charge required only a showing that the pornographic images defendant possessed in 2004 were produced by someone using materials that had entered interstate commerce, and the state charge of production required the Commonwealth to show that defendant created the pornographic images in 2003. Allen v. Johnson,, 2012 Va. Cir. LEXIS 72 (Fairfax County July 20, 2012).

Motion to dismiss. - Defendant failed to show that trial counsel's arguments to support a motion to dismiss under § 19.2-294 fell below an objective standard of reasonableness state charges for producing child pornography under § 18.2-374.1 and federal charges for possession of images of child pornography under 18 U.S.C.S. 2252A(a)(5)(B) involved two distinct acts and required different evidence to sustain them; the federal possession charge required only a showing that the pornographic images defendant possessed in 2004 were produced by someone using materials that had entered interstate commerce, and the state charge of production required the Commonwealth to show that defendant created the pornographic images in 2003. Allen v. Johnson,, 2012 Va. Cir. LEXIS 72 (Fairfax County July 20, 2012).

Commonwealth was not barred from prosecuting defendant for possession of a firearm by a convicted felon despite his earlier conviction of unlawfully carrying a concealed weapon arising from the same instance because the legal disability of being adjudicated a felon that attended and was integral to the respective acts was significantly different. Commonwealth v. Evans, 101 Va. Cir. 477, 2018 Va. Cir. LEXIS 711 (Norfolk Apr. 18, 2018).

Virginia's double jeopardy statute did not bar the prosecution of defendant for illegally possessing a firearm when defendant was earlier convicted for possessing the same firearm because defendant's separate acts, or instances of possession, on different dates warranted separate prosecutions and punishment as each act created a new danger to members of the community. Commonwealth v. Varona, 105 Va. Cir. 1, 2020 Va. Cir. LEXIS 90 (Norfolk Jan. 27, 2020).

§ 19.2-294.1. Dismissal of one of dual charges for driving while intoxicated and reckless driving upon conviction of other charge.

Whenever any person is charged with a violation of § 18.2-266 or any similar ordinances of any county, city, or town and with reckless driving in violation of § 46.2-852 or any ordinance of any county, city or town incorporating § 46.2-852 , growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge.

(Code 1950, § 19.1-259.1; 1960, c. 493; 1975, c. 495; 1997, c. 691; 2004, c. 937.)

Editor's note. - Acts 2004, c. 937, cl. 2, provides: "That the Department of Motor Vehicles shall determine the impact on its recordkeeping system if the penalties currently applicable to a third conviction of § 18.2-266 were applicable without regard to the time period in which the offenses were committed."

The 2004 amendments. - The 2004 amendment by c. 937 deleted " § 18.2-51.4 or" preceding " § 18.2-266 " and inserted "with" preceding "reckless driving" and "in violation of § 46.2-852 or any ordinance of any county, city or town incorporating § 46.2-852 " near the middle.

Law review. - For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, §§ 118, 123; 20 M.J. Witnesses, § 11.1.

CASE NOTES

For a case discussing the history of § 19.2-294 and this section and the cases interpreting those sections, see Lash v. County of Henrico, 13 Va. App. 251, 410 S.E.2d 689 (1991), overruled on other grounds, Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

Construction. - Because this section relates to matters of a penal nature and is remedial in character, it must be construed strictly against the Commonwealth and favorably to the accused. Padgett v. Commonwealth, 220 Va. 758 , 263 S.E.2d 388 (1980).

It is the commonality of the underlying offending conduct, the continuous, uninterrupted operation of a motor vehicle, that invokes the preclusive effect of this section. Harris v. City of Va. Beach, 19 Va. App. 214, 450 S.E.2d 401 (1994).

Although DUI and reckless driving are "separate and distinct" violations, a "conviction of one offense . . . preclude[s] conviction of the other, whenever both 'gr[o]w' from the same 'continuous, uninterrupted course of operation of a motor vehicle.'" "It is the commonality of the underlying offending conduct, the continuous, uninterrupted operation of a motor vehicle, that invokes the preclusive effect of the statute." Lankford v. Commonwealth, No. 0581-95-2 (Ct. of Appeals Mar. 26, 1996).

Reckless driving and speeding are separate and distinct offenses; nothing in the language of this section precludes the Commonwealth or a locality from convicting a person for both DUI and speeding. White v. Commonwealth, 26 Va. App. 410, 494 S.E.2d 896 (1998).

The language, "the same act or acts," means "the same act or acts" of driving and contemplates a continuous, uninterrupted course of operation of a motor vehicle, without regard to the crossing of the boundary line between two localities. Padgett v. Commonwealth, 220 Va. 758 , 263 S.E.2d 388 (1980).

The inclusion of the words "same act or acts" in this section broadens the scope of this section over that of § 19.2-294 , which is limited to multiple prosecutions for the "same act." Lash v. County of Henrico, 13 Va. App. 251, 410 S.E.2d 689 (1991), overruled on other grounds, Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

Where a DUI conviction is for a purely federal offense, the prohibition on dual convictions under this section is not triggered. United States v. Koonge, No. 99-4350, 2000 U.S. App. LEXIS 11438 (4th Cir. May 19, 2000).

Assimilation of section into federal law. - This provision controls the penalties when a person is charged with both reckless driving and driving while intoxicated and therefore is assimilated into federal law. United States v. Jones, No. 99-4879, 2000 U.S. App. LEXIS 23291 (4th Cir. Sept. 14, 2000).

This section merely requires a court to dismiss the charge of driving while intoxicated if the defendant is convicted of reckless driving. The term "charge" connotes a criminal action. By its terms, this section does not preclude civil action for compensatory relief or a suit to render nondischargeable a claim for compensatory relief. Hildebrand v. Kugler, 170 Bankr. 291 (Bankr. E.D. Va. 1994).

Reckless driving and driving under the influence. - In apparent response to Hundley v. Commonwealth, 193 Va. 449 , 69 S.E.2d 336 (1952), the legislature changed the focus from "the same act" in cases involving concurrent charges of reckless driving and driving under the influence arising from one occurrence to whether the offenses arose from one continuous, uninterrupted course of operation of a motor vehicle. Lash v. County of Henrico, 13 Va. App. 251, 410 S.E.2d 689 (1991), overruled on other grounds, Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

Two offenses subject to this section, driving under the influence and reckless driving, are "separate and distinct" violations, but the legislature intended that a conviction of one offense precludes conviction of the other, whenever both grow from the same continuous, uninterrupted course of operation of a motor vehicle so the statute is applicable where the two offenses grow out of the same act or acts of driving, and it is the commonality of the underlying offending conduct, the continuous, uninterrupted operation of a motor vehicle, that invokes the preclusive effect of the statute. Brown v. Commonwealth, No. 2028-03-2, 2004 Va. App. LEXIS 363 (Ct. of Appeals July 27, 2004).

Section 19.2-294.1 required the dismissal of defendant's indictment for felony driving under the influence, fourth offense, in violation of §§ 18.2-266 and 18.2-270 because defendant had been previously convicted of reckless driving in the general district court arising out of the same act or acts that were the basis of the felony indictment for driving under the influence. Lawson v. Commonwealth, 61 Va. App. 292, 734 S.E.2d 714, 2012 Va. App. LEXIS 402 (2012).

Where an officer arrested defendant for driving under the influence of alcohol, suppression of evidence seized during an inventory search was not warranted, because the officer stopped defendant based upon the officer's observation of defendant's drifting as well as defendant's texting while driving, and the magistrate judge found the officer's specific, articulable observations to be credible; the officer was not required to inform defendant of every reason for initiating the traffic stop, and the officer's reason for exercising the charging discretion, in this case a minor mistake of law, was irrelevant. United States v. Wingle,, 2014 U.S. App. LEXIS 6596 (4th Cir. Apr. 10, 2014).

Dismissal mandatory. - Hence, when a person is convicted of driving under the influence of intoxicants, it is mandatory for the court to dismiss the reckless driving charge. Crawley v. Wilkerson, 283 F. Supp. 447 (W.D. Va. 1968).

Reversal of subsequent conviction necessitated. - Where defendant was charged and convicted of both this section's offenses, driving while intoxicated (DWI) and reckless driving, and the evidence was undisputed that the alleged misconduct was intimately related in time and distance, arising from and connected by one continuous, uninterrupted operation of defendant's motor vehicle, under such circumstances, the legislature clearly intended that a conviction of one offense result in a dismissal of the other. Accordingly, defendant's subsequent conviction for DWI should be reversed. Harris v. City of Va. Beach, 19 Va. App. 214, 450 S.E.2d 401 (1994).

Annulment of bar to conviction on appeal. - A person's conviction for driving under the influence of intoxicants constituted a bar to convicting such person of reckless driving, but when that person's conviction is annulled by an appeal, the bar to a conviction for reckless driving is also annulled. Crawley v. Wilkerson, 283 F. Supp. 447 (W.D. Va. 1968).

This section is irrelevant to prosecutions under federal regulations. - See United States v. Eubanks, 435 F.2d 1261 (4th Cir. 1971).

Commonwealth was not barred from prosecuting DUI charge. - The Commonwealth was not barred from prosecuting the defendant on his DUI charge by the provisions of this section; the language, "the same act or acts" used in this section means "the same act or acts" of driving and contemplates a continuous, uninterrupted course of operation of a motor vehicle; when appellant stopped his vehicle to use the bathroom, his course of operation of his vehicle was interrupted. When he started again on his course, that act of driving under the influence of alcohol constituted a separate offense subject to prosecution under the code section prohibiting driving under the influence of alcohol. Munden v. Commonwealth, No. 0105-90-2 (Ct. of Appeals June 4, 1991).

For a case indicating that courts will decide, case by case, whether particular acts in violation of §§ 46.2-817 and 46.2-852 can produce multiple convictions without violating § 19.2-294 or this section, see Lash v. County of Henrico, 13 Va. App. 251, 410 S.E.2d 689 (1991), overruled on other grounds, Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

Article 3. Conviction of Aliens.

§ 19.2-294.2. Procedure when aliens convicted of certain felonies; duties of probation and parole officer.

  1. Whenever a person is (i) convicted in a circuit court of any felony and (ii) referred to a probation or parole officer for a report pursuant to § 19.2-299 , or for probation supervision, the probation or parole officer shall inquire as to the citizenship of such person. If upon inquiry it is determined that the person may be an alien based upon his failure to produce evidence of United States citizenship, the probation or parole officer shall report this determination to the Central Criminal Records Exchange of the Department of State Police in a format approved by the Exchange.
  2. The inquiry required by this section need not be made if it is apparent that a report on alien status has previously been made to the Central Criminal Records Exchange pursuant to this section.
  3. It shall be the responsibility of the Central Criminal Records Exchange of the Department of State Police to review arrest reports submitted by law-enforcement agencies and reports of suspected alien-status inquiries made by probation or parole officers, and to report within sixty days of final disposition to the Law Enforcement Support Center of the United States Immigration and Customs Enforcement the identity of all convicted offenders suspected of being an alien.

    (1985, c. 247; 1994, c. 579; 2008, cc. 180, 415; 2017, c. 84.)

The number of this section was assigned by the Code Commission, the number in the 1985 act having been 19.2-249.2 .

Editor's note. - Acts 2004, c. 82, cl. 1, provides: "The State Compensation Board shall (i) maintain in the Local Inmate Data System (LIDS) specific data fields for an inmate's country of birth and country of citizenship, (ii) require all jail facilities that are subject to LIDS reporting to complete the additional fields for all inmates housed at such facilities, (iii) annually encourage all jail facilities subject to LIDS reporting to request compensation from the United States Department of Justice State Criminal Alien Assistance Program (SCAAP) for costs associated with incarcerating undocumented aliens; (iv) provide information to all jail facilities on the eligibility requirements to obtain such funds; and (v) monitor local jail participation in the SCAAP program."

Acts 2008, cc. 180 and 415, cl. 3 provides: "That the Department of Corrections shall confirm the validity of the social security numbers given by inmates and omit from its database those social security numbers determined to be fictitious."

The 2008 amendments. - The 2008 amendments by cc. 180 and 415 are identical and substituted "Law Enforcement Support Center of the United States Immigration and Customs Enforcement" for "Immigration and Naturalization Service" in subsection C.

The 2017 amendments. - The 2017 amendment by c. 84 substituted "in a format approved" for "on forms provided" in the last sentence of subsection A.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Aliens, § 4.

Chapter 18. Sentence; Judgment; Execution of Sentence.

General Provisions.

DNA Analysis and Data Bank.

Indeterminate Commitment.

Boot Camp Incarceration Program.

Detention Center Incarceration Program.

Diversion Center Incarceration Program.

Community Corrections Alternative Program.

Article 1. General Provisions.

§ 19.2-295. Ascertainment of punishment.

  1. Within the limits prescribed by law, the court shall ascertain the term of confinement in the state correctional facility or in jail and the amount of fine, if any, when a person is convicted of a criminal offense, unless the accused is tried by a jury and has requested that the jury ascertain punishment. Such request for a jury to ascertain punishment shall be filed as a written pleading with the court at least 30 days prior to trial.
  2. When the accused is tried by a jury, deliberations of the jury shall be confined to a determination of the guilt or innocence of the accused, except that when the ascertainment of punishment by the jury has been requested by the accused, a proceeding in accordance with § 19.2-295.1 shall apply.
  3. In any case in which a jury has fixed a sentence as provided in this chapter and the sentence is modified by the court pursuant to the authority contained within this chapter, the court shall file with the record of the case a written explanation of such modification including the cause therefor.

    (Code 1950, §§ 19.1-291, 19.1-292; 1960, c. 366; 1975, c. 495; 2007, c. 259; 2020, Sp. Sess. I, c. 43.)

Editor's note. - Acts 2020 Sp. Sess. I, c. 43, cl. 2 provides: "That the provisions of this act shall become effective on July 1, 2021."

At the direction of the Virginia Code Commission, the phrase "or when the accused is found guilty of capital murder, the provisions of Article 4.1 ( § 19.2-264.2 et seq.) of Chapter 15 shall apply” was deleted at the end of subsection B pursuant to Acts 2021, Sp. Sess. I, cc. 344, 345, which repealed Article 4.1 ( § 19.2-264.2 et seq.) of Chapter 15.

The 2007 amendments. - The 2007 amendment by c. 259 designated the provisions of the section as subsection A and added subsection B.

The 2020 Sp. Sess. I amendments. - The 2020 amendment by Sp. Sess. I, c. 43, effective July 1, 2021, rewrote subsection A, which read: "Within the limits prescribed by law, the term of confinement in the state correctional facility or in jail and the amount of fine, if any, of a person convicted of a criminal offense, shall be ascertained by the jury, or by the court in cases tried without a jury"; added subsection B; and redesignated former subsection B as subsection C.

Law review. - For discussion of jury sentencing, see 53 Va. L. Rev. 968 (1967). For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971). For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975). For article, "The Constitutionality of Harsher Sentences on Retrial in Virginia," see 62 Va. L. Rev. 1337 (1976). For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976). For comment on sentencing in criminal cases, see 13 U. Rich. L. Rev. 899 (1979). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

For an article on bifurcated sentencing in noncapital felony cases in Virginia, see 30 U. Rich. L. Rev. 465 (1996).

For a note, "The Supreme Court's Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards," see 86 Va. L. Rev. 1249 (2000).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 38, 49, 50, 70, 72, 78, 79, 81, 95; 11B M.J. Jury, § 11.

CASE NOTES

Constitutionality. - Virginia's method of sentencing in a jury trial under this section and former § 53-272 (now §§ 53.1-151 and 53.1-186 ) does not violate due process. Roman v. Parrish, 328 F. Supp. 882 (E.D. Va. 1971).

Defendant's Sixth Amendment rights were not violated in a case where defendant was convicted of voluntary manslaughter, a jury recommended a three-year prison sentence pursuant to § 19.2-295 , and the trial court imposed a three-year period of postrelease supervision; the postrelease supervision portion of defendant's sentence was imposed pursuant to statutory law, was within that statute's permissible range, and did not require the trial court to find any additional facts that were not implicit in the jury's finding of guilt. Alston v. Commonwealth, 274 Va. 759 , 652 S.E.2d 456, 2007 Va. LEXIS 133 (2007).

The right to have the jury both try the issue of guilt and fix the penalty is a part of the right of trial by jury. Huggins v. Commonwealth, 213 Va. 327 , 191 S.E.2d 734 (1972).

Statutory right to jury trial as to punishment. - Court of Appeals of Virginia concludes that, upon the election of trial by jury, a defendant has a statutory right, pursuant to §§ 19.2-295 and 19.2-295.1 , and subject to limitations and qualifications established by the legislature, to have his punishment ascertained by a jury. Webb v. Commonwealth, 64 Va. App. 371, 768 S.E.2d 696, 2015 Va. App. LEXIS 54 (Feb. 24, 2015).

Due process clause not contrary to conclusion that jury sentencing preferable. Nothing in the due process clause of the Fourteenth Amendment intrudes upon the conclusion of this state that jury sentencing is preferable, whether in a unitary or bifurcated trial. Vines v. Muncy, 553 F.2d 342 (4th Cir.), cert. denied, 434 U.S. 851, 98 S. Ct. 163, 54 L. Ed. 2d 120 (1977).

No due process right to be sentenced by jury. - Nothing in the United States or Virginia Constitution gives a defendant the right to be sentenced by a jury or solely by a jury and the imposition of postrelease periods of suspended incarceration and supervision pursuant to § 19.2-295.2 does not violate any due process right of a defendant to be sentenced by a jury under this section. Boyd v. Commonwealth, 28 Va. App. 537, 507 S.E.2d 107 (1998).

The choice of sentencing procedures is a matter of legislative determination. Duncan v. Commonwealth, 2 Va. App. 342, 343 S.E.2d 392 (1986).

Right granted adults to have their sentences fixed by juries is purely statutory in both origin and nature. Ballard v. Commonwealth, 228 Va. 213 , 321 S.E.2d 284 (1984), cert. denied, 470 U.S. 1085, 105 S. Ct. 1848, 85 L. Ed. 2d 146 (1985).

Juveniles not denied equal protection by different sentencing procedure. - Juveniles are not deprived of equal protection by the Virginia procedure in criminal cases, whereby an adult tried by jury has his sentence fixed by the jury under this section, while a juvenile transferred to circuit court and tried by jury has his sentence fixed by the judge under § 16.1-272. Ballard v. Commonwealth, 228 Va. 213 , 321 S.E.2d 284 (1984), cert. denied, 470 U.S. 1085, 105 S. Ct. 1848, 85 L. Ed. 2d 146 (1985).

Rational basis exists for different sentencing procedure for juveniles. - A rational basis does exist for the classification under which sentences of adults are fixed by juries but sentences of juveniles transferred to the circuit court are fixed by the judge. While, for the purpose of determining guilt or innocence, a transferred juvenile is treated as an adult, and although he may be subject to adult penalties in the sentencing phase of his case, § 16.1-272 permits a circuit court to treat him in all respects as a juvenile, with the full panoply of beneficent alternatives available in juvenile court, including the use of a juvenile probation officer. Ballard v. Commonwealth, 228 Va. 213 , 321 S.E.2d 284 (1984), cert. denied, 470 U.S. 1085, 105 S. Ct. 1848, 85 L. Ed. 2d 146 (1985).

Criminal defendant entitled to decision on sentence by jury and by trial judge. - Under the practice in this state, the convicted criminal defendant is entitled to "two decisions" on the sentence, one by the jury and the other by the trial judge in the exercise of his statutory right to suspend. Vines v. Muncy, 553 F.2d 342 (4th Cir.), cert. denied, 434 U.S. 851, 98 S. Ct. 163, 54 L. Ed. 2d 120 (1977).

His ultimate sentence does not therefore rest with the jury alone but is always subject to the control of the trial judge. Vines v. Muncy, 553 F.2d 342 (4th Cir.), cert. denied, 434 U.S. 851, 98 S. Ct. 163, 54 L. Ed. 2d 120 (1977).

Under the practice in this state, the punishment as fixed by the jury is not final or absolute, since its finding on the proper punishment is subject to suspension by the trial judge, in whole or in part, on the basis of any mitigating facts that the convicted defendant can marshal. Vines v. Muncy, 553 F.2d 342 (4th Cir.), cert. denied, 434 U.S. 851, 98 S. Ct. 163, 54 L. Ed. 2d 120 (1977).

Any criticism of jury sentencing because it lacks the objectivity and principled decision of a judge is overcome by the existence of the power in the trial judge to bring his so-called superior judgment to bear upon the issue of proper punishment in reaching his decision whether to suspend the sentence or not. Vines v. Muncy, 553 F.2d 342 (4th Cir.), cert. denied, 434 U.S. 851, 98 S. Ct. 163, 54 L. Ed. 2d 120 (1977).

The power to impose sentences in all misdemeanor and felony cases resides in the jury. Witcher v. Peyton, 382 F.2d 707 (4th Cir. 1967).

Consideration of mitigating circumstances is for the court. - By vesting the trial court with discretionary authority to suspend or modify the sentence imposed by the jury, the legislature intended to leave the consideration of mitigating circumstances to the court. Reese v. Commonwealth, No. 1279-03-4, 2004 Va. App. LEXIS 316 (Ct. of Appeals July 6, 2004).

Policies behind right to jury trial not impaired. - The choice a defendant must make is whether or not to be tried by a jury, and since both the prosecutor and trial judge must concur in a waiver, it is not always his or her choice at that. But, a defendant, as a matter of law, suffers no prohibited burden of waiving the opportunity for a suspended sentence by being tried by a jury, because former § 53-272 (now §§ 53.1-151 and 53.1-186 ) specifically provides for suspension or probation by the judge after the jury's verdict of guilty and sentence under this section. Thus, this section and former § 53-272 (now §§ 53.1-151 and 53.1-186 ) on their faces do not appreciably impair the policies behind the right to a jury trial. Roman v. Parrish, 328 F. Supp. 882 (E.D. Va. 1971).

And fundamentally fair. - The federal district court cannot concern itself with what would be the most desirable method of sentencing under this state's law so long as the method employed is not fundamentally unfair, which that court has found it is not as far as this section and former § 53-272 (now §§ 53.1-151 and 53.1-186 ) are concerned. Roman v. Parrish, 328 F. Supp. 882 (E.D. Va. 1971).

The established practice is one trial on guilt and punishment. Snider v. Cox, 212 Va. 13 , 181 S.E.2d 617 (1971).

And change of that general practice is left to the legislature. Snider v. Cox, 212 Va. 13 , 181 S.E.2d 617 (1971).

A trial to determine punishment alone is permitted where, under newly announced constitutional principles, a felon's sentence has been set aside, not because the jury that tried him could not constitutionally find him guilty, but because the jury as then constituted could not constitutionally impose the death sentence. Snider v. Cox, 212 Va. 13 , 181 S.E.2d 617 (1971).

Although a felon's sentence was set aside because the jury as then constituted could not constitutionally impose the death sentence, the exclusion of jurors opposed to capital punishment did not result in an unrepresentative jury on the issue of guilt or substantially increase the risk of conviction, and there was no error in the action of the state courts in granting a new trial on the issue of punishment only. Snider v. Winstead, 339 F. Supp. 897 (W.D. Va. 1972).

The verdict of the jury is the fixing of maximum punishment which may be served. Vines v. Muncy, 553 F.2d 342 (4th Cir.), cert. denied, 434 U.S. 851, 98 S. Ct. 163, 54 L. Ed. 2d 120 (1977).

Under such practice, the convicted defendant is entitled to "two decisions" on the sentence, one by the jury and the other by the trial judge in the exercise of his statutory right to suspend, rendering the jury's finding little more than an advisory opinion or first step decision. Reese v. Commonwealth, No. 1279-03-4, 2004 Va. App. LEXIS 316 (Ct. of Appeals July 6, 2004).

When harsher sentence upon retrial permissible. - A jury's imposition upon retrial of a harsher sentence than that given at an earlier trial does not offend due process so long as the jury is not informed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness. Cooper v. Mitchell, 647 F.2d 437 (4th Cir.), cert. denied, 454 U.S. 849, 102 S. Ct. 171, 70 L. Ed. 2d 139 (1981).

A defendant cannot receive a harsher sentence at a second trial where the sentence was imposed by a jury at the first trial. Levine v. Peyton, 444 F.2d 525 (4th Cir.), cert. denied, 404 U.S. 995, 92 S. Ct. 536, 30 L. Ed. 2d 547 (1971).

Harsher sentence improper. - Judgment was reversed and the case was remanded for a new sentencing hearing on defendant's robbery, conspiracy, and wearing a mask in public convictions as the ends of justice exception in Va. Sup. Ct. R. 5A:18 applied because defendant was sentenced to a maximum total sentence of 33 years in violation of § 19.2-295 , when the jury imposed a maximum total sentence of 15 years of imprisonment. Gibbs v. Commonwealth, No. 1726-11-1, 2012 Va. App. LEXIS 324 (Ct. of Appeals Oct. 16, 2012).

The jury's use of the word "recommend" instead of the more commonly used word, "fix" was a mere irregularity which would have been amendable before the jury was discharged, and the judgment entered on such a verdict was not void and could not be successfully attacked by means of habeas corpus. Smyth v. Bunch, 202 Va. 126 , 116 S.E.2d 33 (1960), cert. denied, 364 U.S. 935, 81 S. Ct. 382, 5 L. Ed. 2d 366 (1961).

Suspension of sentence or probation. - Even though this section provides for imposition of sentence by the jury, former § 53-272 (now §§ 53.1-151 and 53.1-186 ) allows the trial judge to suspend that sentence or place the defendant on probation. Roman v. Parrish, 328 F. Supp. 882 (E.D. Va. 1971).

Sentence exceeded what was statutorily permissible. - Trial court erred in sentencing defendant because although the jury recommended twelve months in jail, the trial court sentenced defendant to a term of five years of incarceration, with four years suspended for a period of five years; while the trial court had the authority to impose an additional term of up to three years of postrelease supervision, it did not specify that the additional time was imposed pursuant to the statute, and the sentence exceeded what was statutorily permissible. Culberson v. Commonwealth, No. 2006-15-1, 2017 Va. App. LEXIS 84 (Mar. 21, 2017).

Only excessive part of sentence is void. - Where the sentence imposed is in excess of that prescribed by law, that part of the sentence which is excessive is invalid. Deagle v. Commonwealth, 214 Va. 304 , 199 S.E.2d 509 (1973).

A sentence in excess of one prescribed by law is not void ab initio because of the excess, but is good insofar as the power of the court extends, and is invalid only as to the excess. Deagle v. Commonwealth, 214 Va. 304 , 199 S.E.2d 509 (1973).

Response to inquiry by jury as to time defendant would actually serve. - Where the jury wanted to know whether if they gave defendant life imprisonment or any long term of years they would have any assurance that he would not "get out," the proper response to such inquiries was stated in Coward v. Commonwealth, 164 Va. 639 , 178 S.E. 797 (1935), to be, that it is the duty of the jury if they find the accused guilty to impose such punishment as they consider to be just under the evidence and within the limits stated in the court's instructions; and that they must not concern themselves with what may afterwards happen. Jones v. Commonwealth, 194 Va. 273 , 72 S.E.2d 693 (1952), commented on in 39 Va. L. Rev. 273, 10 Wash. & Lee L. Rev. 219 (1953).

Response to inquiry by jury as to whether sentences would be served consecutively. - Since the trial judge did not know whether he would modify the jury's recommended sentences by running the sentences concurrently or otherwise suspending the sentences, he properly refused to instruct the jury on the presumption that sentences were to run consecutively; to advise the jury about the trial court's discretion would have been confusing. May v. Commonwealth, No. 0140-01-2, 2002 Va. App. LEXIS 398 (Ct. of Appeals July 23, 2002).

Punishment for robbery. - The import of this section is that the jury, upon determining a petitioner's guilt of robbery, has to set the sentence between the statutory limits for robbery as set forth in § 18.2-58 . Roman v. Parrish, 328 F. Supp. 882 (E.D. Va. 1971).

If a jury returns with less than a five-year punishment for robbery, it will be sent back to set punishment within the limits of § 18.2-58 . Roman v. Parrish, 328 F. Supp. 882 (E.D. Va. 1971).

Procedure where death sentence set aside. - Where the portion of the judgment order sentencing the defendant to death in accordance with the jury verdict must be set aside because the death penalty has been ruled invalid, the case should be remanded for a new trial on the issue of punishment since it would be sheer speculation to conclude that, if death had not then been a permissible punishment, the jury would have fixed the punishment at life imprisonment. Hodges v. Commonwealth, 213 Va. 316 , 191 S.E.2d 794 (1972).

Applied in George v. Angelone, 901 F. Supp. 1070 (E.D. Va. 1995); Runyon v. Commonwealth, 29 Va. App. 573, 513 S.E.2d 872 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Trial court may not order a person convicted of a felony to serve any confinement in jail on weekends or nonconsecutive days. - The plain language of § 53.1-131.1 , limits the court's authority to convictions for misdemeanors, traffic offenses and violations of Chapter 5 ( § 20-61 et seq.) Title 20. See opinion of Attorney General to The Honorable Harvey L. Bryant, Commonwealth's Attorney, City of Virginia Beach, 12-062, 2012 Va. AG LEXIS 30 (7/20/2012).

§ 19.2-295.1. Sentencing proceeding by the jury after conviction.

In cases of trial by jury, upon a finding that the defendant is guilty of a felony or a Class 1 misdemeanor, or upon a finding in the trial de novo of an appealed misdemeanor conviction that the defendant is guilty of a Class 1 misdemeanor, a separate proceeding limited to the ascertainment of punishment shall be held as soon as practicable before the same jury when ascertainment of punishment by jury has been requested by the accused as provided in subsection A of § 19.2-295 . At such proceeding, the Commonwealth may present any victim impact testimony pursuant to § 19.2-295.3 and shall present the defendant's prior criminal history, including prior convictions and the punishments imposed, by certified, attested, or exemplified copies of the final order, including adult convictions and juvenile convictions and adjudications of delinquency. Prior convictions shall include convictions and adjudications of delinquency under the laws of any state, the District of Columbia, the United States or its territories. The Commonwealth shall provide to the defendant 14 days prior to trial notice of its intention to introduce copies of final orders evidencing the defendant's prior criminal history, including prior convictions and punishments imposed. Such notice shall include (i) the date of each prior conviction, (ii) the name and jurisdiction of the court where each prior conviction was had, (iii) each offense of which he was convicted, and (iv) the punishment imposed. Prior to commencement of the trial, the Commonwealth shall provide to the defendant photocopies of certified copies of the final orders that it intends to introduce at sentencing. After the Commonwealth has introduced in its case-in-chief of the sentencing phase such evidence of prior convictions or victim impact testimony, or both, or if no such evidence is introduced, the defendant may introduce relevant, admissible evidence related to punishment. Nothing in this section shall prevent the Commonwealth or the defendant from introducing relevant, admissible evidence in rebuttal.

If the jury cannot agree on a punishment, the court shall fix punishment.

If the sentence imposed pursuant to this section is subsequently set aside or found invalid solely due to an error in the sentencing proceeding, the court shall impanel a different jury to ascertain punishment, unless the defendant, the attorney for the Commonwealth and the court agree, in the manner provided in § 19.2-257 , that the court shall fix punishment.

(1994, cc. 828, 860, 862, 881; 1995, c. 567; 1996, c. 664; 2001, c. 389; 2007, cc. 388, 478; 2012, c. 134; 2020, Sp. Sess. I, c. 43.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Editor's note. - Acts 2020 Sp. Sess. I, c. 43, cl. 2 provides: "That the provisions of this act shall become effective on July 1, 2021."

The 2001 amendments. - The 2001 amendment by c. 389, in the first paragraph, inserted "or a Class 1 misdemeanor, or upon a finding in the trial de novo of an appealed misdemeanor conviction that the defendant is guilty of a Class 1 misdemeanor" near the beginning and deleted the former last sentence, which read: "If the defendant is found guilty of an offense other than a felony, punishment shall be fixed as otherwise provided by law"; and substituted "imposed pursuant to this section" for "on appeal" near the beginning of the last paragraph.

The 2007 amendments. - The 2007 amendments by cc. 388 and 478 are identical and rewrote the first paragraph.

The 2012 amendments. - The 2012 amendment by c. 134, in the second paragraph, substituted "the court shall impanel a different jury to ascertain punishment, unless" for "and if" and "that" for "then."

The 2020 Sp. Sess. I amendments. - The 2020 amendment by Sp. Sess. I, c. 43, effective July 1, 2021, in the first paragraph, inserted "when ascertainment of punishment by jury has been requested by the accused as provided in subsection A of § 19.2-295 " at the end of the first sentence and substituted "that" for "which" in the sixth sentence; and deleted "impanel a different jury to ascertain punishment, unless the defendant, the attorney for the Commonwealth, and the court agree, in the manner provided in § 19.2-257 , that the court shall" preceding "fix punishment" in the second paragraph.

Law review. - For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For a review of criminal law in Virginia for year 1999, see 33 U. Rich. L. Rev. 857 (1999).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 70, 78.

CASE NOTES

I. SENTENCING PROCEEDINGS GENERALLY.

Purpose of bifurcated proceeding. - This section establishes the procedure for bifurcating felony trials by jury; the purpose of such bifurcated trials is to allow the trier of fact to consider the prior record of the accused for sentencing purposes while avoiding the risk of prejudice to the accused when determining guilt or innocence. Byrd v. Commonwealth, 30 Va. App. 371, 517 S.E.2d 243 (1999).

No ex post facto violation. - The court rejects the defendant's contention that the construction of the statute violates constitutional protections against ex post facto laws. The enactment of this section and its application in this case do not violate ex post facto protections. Bunn v. Commonwealth, 21 Va. App. 593, 466 S.E.2d 744 (1996).

Section 19.2-295.1 was procedural in nature, and the trial court did not violate defendant's rights under U.S. Const., Art. 1, § 10, or Va. Const., Art. 1, § 9, to be free from ex post facto laws by applying it during defendant's trial on charges that he violated former § 18.1-191 by committing fornication with his daughter in 1969 and 1970, even though § 19.2-295.1 was not enacted into law at the time defendant committed the offenses. Pilcher v. Commonwealth, No. 2483-01-3, 2003 Va. App. LEXIS 402 (Ct. of Appeals July 15, 2003).

This section does not convey a substantive right; procedural in nature, it permits bifurcating the trial and sentencing proceedings. Riley v. Commonwealth, 21 Va. App. 330, 464 S.E.2d 508 (1995).

This section requires a bifurcated proceeding in all felony trials and a jury verdict of guilty emanating from the guilt phase of the bifurcated trial, approved by the trial court, resolves that issue, leaving sentence as the sole question remaining to be decided by an additional verdict incidental to a "separate proceeding." Gray v. Commonwealth, 28 Va. App. 227, 503 S.E.2d 252 (1998).

Jury sentence imposed by the trial court violated § 19.2-295.1 as it neither impaneled a new jury nor obtained the parties' consent to decide defendant's sentence. Webb v. Commonwealth, 64 Va. App. 371, 768 S.E.2d 696, 2015 Va. App. LEXIS 54 (Feb. 24, 2015).

Because the sentencing verdict was not unanimous, the trial court was obligated under § 19.2-295.1 to reject the verdict and either impanel a new jury or, with the parties' consent, to decide defendant's sentence itself. Webb v. Commonwealth, 64 Va. App. 371, 768 S.E.2d 696, 2015 Va. App. LEXIS 54 (Feb. 24, 2015).

Statutory right to jury trial as to punishment. - Court of Appeals of Virginia concludes that, upon the election of trial by jury, a defendant has a statutory right, pursuant to §§ 19.2-295 and 19.2-295.1 , and subject to limitations and qualifications established by the legislature, to have his punishment ascertained by a jury. Webb v. Commonwealth, 64 Va. App. 371, 768 S.E.2d 696, 2015 Va. App. LEXIS 54 (Feb. 24, 2015).

Limitations on jury's ascertainment of punishment. - The Legislature intended the procedures outlined in this section for the jury's ascertainment of punishment to be subject to: (1) the provisions of § 19.2-295 , which require the jury's sentence to be within the limits prescribed by law; (2) the provisions of § 19.2-295.2 , which permit the trial court to impose a suspended term of incarceration and postrelease supervision when the jury's sentence includes an active term of incarceration; and (3) the provisions of § 19.2-303 , which permit the trial court to suspend some or all of a sentence and impose probation. Boyd v. Commonwealth, 28 Va. App. 537, 507 S.E.2d 107 (1998).

Jurors in Virginia are neither required nor entitled to consider parole eligibility in non-capital felony cases, either by the federal constitution or the law extant in the Commonwealth. The recent abolishment of parole for all felonies committed after January 1, 1995, does not require departure from the rule. Walker v. Commonwealth, 25 Va. App. 50, 486 S.E.2d 126 (1997).

This section contains no provision requiring that the jury be told of defendant's parole ineligibility and the appellate court is not at liberty to create such a requirement for noncapital cases where it does not exist. Mosby v. Commonwealth, 24 Va. App. 284, 482 S.E.2d 72 (1997).

Because this section is directory and procedural, the Commonwealth's failure to precisely comply with its provisions does not result in the de facto inadmissibility of evidence of defendant's prior convictions. Lee v. Commonwealth, No. 0139-95-3 (Ct. of Appeals March 4, 1997).

This section is procedural in nature and does not convey a substantive right. As such, the statute's notice provisions are merely directory, and precise compliance was not essential to the validity of the proceedings. Lebedun v. Commonwealth, 27 Va. App. 697, 501 S.E.2d 427 (1998).

Polling of jury. - The trial court did not err in denying defendant's request to poll the jury as to guilt or innocence because the guilty verdict had already been announced and the sentencing phase of the trial was well underway. Therefore, all that was left to do was for the jury to deliberate and determine sentencing. Kenner v. Commonwealth, 299 Va. 414 , 854 S.E.2d 493, 2021 Va. LEXIS 6 (2021).

No due process right to be sentenced by jury. - Nothing in the United States or Virginia Constitution gives a defendant the right to be sentenced by a jury or solely by a jury and the imposition of postrelease periods of suspended incarceration and supervision pursuant to § 19.2-295.2 does not violate any due process right of a defendant under this section, which provides for bifurcated jury sentencing. Boyd v. Commonwealth, 28 Va. App. 537, 507 S.E.2d 107 (1998).

In determining what evidence should be considered by sentencing jury, a trial court should be guided by the cases decided under § 19.2-264.4, the corresponding statute for capital murder cases. Runyon v. Commonwealth, 29 Va. App. 573, 513 S.E.2d 872 (1999).

Remedy for error in jury instruction. - Although the trial court erred by denying defendant's request for a jury instruction regarding his ineligibility for parole during the penalty phase of his trial, § 19.2-295.1 only entitled him to a resentencing hearing, not a new trial. Hills v. Commonwealth, 262 Va. 807 , 553 S.E.2d 722, 2001 Va. LEXIS 127 (2001).

Purpose of notice provisions. - The purpose of the notice provisions in this section is to provide defense counsel with the opportunity to know in advance what convictions the Commonwealth intends to introduce and to investigate their validity. Lebedun v. Commonwealth, 27 Va. App. 697, 501 S.E.2d 427 (1998).

Where notice of prior convictions included erroneous dates. - The Commonwealth was properly permitted to introduce evidence of prior convictions of the defendant, notwithstanding that the notice of intention to produce such evidence erroneously stated the dates of the prior convictions, since the conviction order and documentation delivered to the defendant sufficiently apprised him of the correct conviction dates. Lebedun v. Commonwealth, No. 0233-97-4 (Ct. of Appeals July 7, 1998).

Notice to the defendant of the Commonwealth's intention to introduce a prior conviction into evidence was sufficient, notwithstanding that the notice stated an incorrect date for the conviction, where the defendant also received copies of the conviction order listing the correct date and he admitted that the conviction actually occurred. Bender v. Commonwealth, No. 0176-98-1 (Ct. of Appeals Feb. 23, 1999).

Where the defendant received a photocopy of the front side of the "warrant for arrest" relating to the conviction in issue. While this portion of the warrant did not reflect the conviction, defendant was clearly notified of the Commonwealth's intention to introduce such evidence during the sentencing phase of the trial. Thus, the Commonwealth's failure to precisely comply with the procedural requirements of this section violated no substantive right and resulted in no prejudice to the defendant. Evans v. Commonwealth, No. 0870-95-2 (Ct. of Appeals April 2, 1996).

Not rule of exclusion. - This section creates a category of evidentiary admissibility; it is not a rule of evidentiary exclusion. Evidence that is otherwise admissible is not dependent upon the statute for admissibility. Gilley v. Commonwealth, 21 Va. App. 740, 467 S.E.2d 312 (1996).

Imposition of sentence below mandatory minimum sentence. - In a case in which defendant was convicted of possessing a firearm after having been convicted of a violent felony, the circuit court's imposition of a jury sentence below the mandatory minimum sentence of five years was void ab initio; under these circumstances, the proper procedure for correcting the error was to remand the case for a new sentencing hearing. Commonwealth v. Greer, 63 Va. App. 561, 760 S.E.2d 132, 2014 Va. App. LEXIS 263 (July 22, 2014), appeal dismissed, in part, decision reached on appeal by, 67 Va. App. 324, 796 S.E.2d 422, 2017 Va. App. LEXIS 40 (2017).

Introduction of punishment imposed for prior convictions improper. - Proof of the punishment imposed for prior convictions is not relevant to the issue whether the accused is guilty of the offense, and therefore, the trial judge erred in refusing to redact references to defendant's jail sentence from the conviction order when it was entered as evidence during the guilt determination phase of the trial. Burke v. Commonwealth, 27 Va. App. 489, 500 S.E.2d 225 (1998).

However, error in allowing evidence of prior punishment to be entered during guilt determination phase of jury trial was clearly harmless, where jury's knowledge of prior punishment could have only affected the sentence they imposed, and they eventually would have been exposed to defendant's punishment for the prior offense before deciding his punishment. Burke v. Commonwealth, 27 Va. App. 489, 500 S.E.2d 225 (1998).

In the prosecution's case in chief at the penalty phase of the trial of a non-capital felony or a Class 1 misdemeanor, it may introduce records showing only the fact of a conviction of a criminal offense, including the name of the crime, the date of the conviction, and the court in which the conviction occurred. Information in the record concerning proceedings subsequent to conviction, such as sentence, suspension, probation, or other rehabilitative efforts, must be redacted before the record is received in evidence. Gillespie v. Commonwealth, 272 Va. 753 , 636 S.E.2d 430, 2006 Va. LEXIS 94 (2006) (decided prior to 2007 amendments).

Defendant's sentence for burglary was reversed because, during its case in chief at the sentencing phase, the prosecution introduced evidence of the sentence he received for a grand larceny conviction, as well as his drug treatment. Under § 19.2-295.1 , the prosecution could introduce only evidence of defendant's convictions, but not sentencing information, unless necessary for rebuttal. Gillespie v. Commonwealth, 272 Va. 753 , 636 S.E.2d 430, 2006 Va. LEXIS 94 (2006) (decided prior to 2007 amendments).

Introduction of prior convictions during guilt phase improper. - Trial judge erred in admitting defendant's two prior robbery convictions during the guilt phase of the trial because the felony convictions, which had to be proved to invoke § 19.2-297.1 , were not elements of the malicious wounding offense proscribed by § 18.2-51 ; § 19.2-297.1 unambiguously related to the punishment to be imposed upon conviction. Washington v. Commonwealth, 44 Va. App. 157, 604 S.E.2d 92, 2004 Va. App. LEXIS 503 (2004).

New trial required where improper evidence admitted during guilt phase. - Because the improper evidence of other crimes was presented during the guilt phase of defendant's criminal trial, not in the sentencing proceeding, the remedy of a new sentencing proceeding afforded by § 19.2-295.1 , was inapplicable and a new trial should have been ordered. Young v. Commonwealth, 273 Va. 528 , 643 S.E.2d 491, 2007 Va. LEXIS 55 (2007).

Guilty plea following verdict untimely. - A defendant may plead guilty at any time prior to the return of the jury's verdict concluding the guilt phase of a bifurcated trial; however, following publication of a guilty verdict and its acceptance by the trial court, a plea of guilty is untimely and may not upset the procedural course of a bifurcated trial. Daye v. Commonwealth, 21 Va. App. 688, 467 S.E.2d 287 (1996).

Failure to preserve issue for appellate review. - Defendant did not argue in the trial court, as he did on appeal, that the testimony of two officers at the penalty phase of his trial was barred under the bifurcated sentencing statute, and thus this argument was barred on appeal. Macklin v. Commonwealth,, 2007 Va. App. LEXIS 269 (June 26, 2007).

Applied in Livingston v. Commonwealth, 21 Va. App. 621, 466 S.E.2d 757 (1996); Dingus v. Commonwealth, 23 Va. App. 382, 477 S.E.2d 303 (1996); Booker v. Commonwealth, 276 Va. 37 , 661 S.E.2d 461, 2008 Va. LEXIS 84 (2008); Nelson v. Commonwealth,, 2010 Va. App. LEXIS 42 (2010).

II. INTRODUCTION OF EVIDENCE.
A. EVIDENCE OF PRIOR CONVICTIONS.

"Record of conviction" under this section includes the indictment for a prior conviction as well as the final order. Brooks v. Commonwealth, 24 Va. App. 523, 484 S.E.2d 127 (1997).

But evidence of non-final prior convictions cannot be introduced. - Remand was required for resentencing of defendant convicted of grand larceny as the trial court erred in considering one of defendant's prior convictions that was not final and the appellate court could not say the error was harmless, especially since the trial court imposed a sentence at the high end of the permissible range. Smith v. Commonwealth, No. 2320-02-1, 2004 Va. App. LEXIS 117 (Ct. of Appeals Mar. 23, 2004).

Prior convictions under local laws. - Because the word "include" is susceptible to more than one meaning and because it is not immediately clear from the word's context which meaning is meant to apply, the statute's provision that prior convictions shall include convictions under the laws of any state, the District of Columbia, the United States or its territories is ambiguous; however, consistent with the manifest purpose of the statute, which is to allow the jury to consider defendant's current record of criminal convictions, § 19.2-295.1 does not provide an exclusive definition of the term "prior convictions" and, thus, does not prohibit the presentation at sentencing of convictions under local laws. Rather, the statute's provision that prior convictions shall include convictions under the laws of any state, the District of Columbia, the United States or its territories indicates that the prior convictions the Commonwealth may present at sentencing are not limited to convictions under the statutes contained in the Code of Virginia; accordingly, the trial court did not err in allowing the Commonwealth to present evidence of defendant's misdemeanor driving under the influence of alcohol conviction for violating a city code. Auer v. Commonwealth, 46 Va. App. 637, 621 S.E.2d 140, 2005 Va. App. LEXIS 416 (Oct. 25, 2005).

Nolle prossed charges not admissible. - The language of this section is clear and its intent plain in that it limits the introduction of evidence by the Commonwealth to charges for which the defendant has been convicted; there is no basis upon which to enlarge the legislature's manifest intent in adopting this statute by permitting the introduction of evidence of charges that were nolle prossed. Byrd v. Commonwealth, 30 Va. App. 371, 517 S.E.2d 243 (1999).

Proof requirements. - The Commonwealth was not required to prove the contents of a written order reflecting the fact of defendant's conviction; rather, it was required to prove the fact of the conviction itself. Folson v. Commonwealth, 23 Va. App. 521, 478 S.E.2d 316 (1996).

The trial court did not err by allowing indictments to be read to the jury. Palmer v. Commonwealth, No. 2507-95-2 (Ct. of Appeals Aug. 5, 1997).

Convictions from special courts-martial. - Trial court did not violate § 19.2-295.1 by admitting, during the sentencing phase of defendant's bifurcated jury trial, criminal convictions he received from special courts-martial under the Uniform Code of Military Justice (UCMJ), as the provisions of the UCMJ constituted laws of the United States and defendant did not raise on appeal any constitutional objections in contest of his UCMJ convictions. Oliver v. Commonwealth, 46 Va. App. 613, 620 S.E.2d 567, 2005 Va. App. LEXIS 411 (Oct. 18, 2005).

Admission of prior traffic record. - Because the General Assembly does not expressly refer to § 46.2-943 , a statute related to sentencing proceedings in bifurcated trials for traffic offenses, when it enacted § 19.2-295.1 , it did not intend to impose the § 19.2-295.1 notice requirements as a prerequisite for the admissibility of a defendant's prior traffic record into evidence pursuant to § 46.2-943 ; § 46.2-943 is the more specific statute, and § 19.2-295.1 notice requirements do not apply to the admission of a defendant's prior traffic record into evidence pursuant to § 46.2-943. Ngomondjami v. Commonwealth, 54 Va. App. 310, 678 S.E.2d 281, 2009 Va. App. LEXIS 296 (2009).

Introduction of prior convictions proper. - The bifurcated procedure established in this section clearly manifests a legislative intent to provide juries with information specific only to sentencing, apart from considerations of guilt or innocence, thereby similarly situating juries in felony cases with their counterparts in bifurcated capital cases; thus the trial court properly allowed the Commonwealth to disclose to the jury defendant's prior convictions, together with the attendant sentences, during the sentencing phase of his trial. Gilliam v. Commonwealth, 21 Va. App. 519, 465 S.E.2d 592 (1996).

The obvious purpose of this section is to allow the jury, which will be recommending sentence, to consider the defendant's most current record of criminal convictions. Nothing in the language or logic of the statute suggests that the legislature intended to limit the jury's consideration to anything other than the defendant's complete criminal record. Bunn v. Commonwealth, 21 Va. App. 593, 466 S.E.2d 744 (1996).

The clear and obvious reading of the statute is that "prior convictions" refers to convictions obtained prior "to the [bifurcated sentencing] proceeding." Bunn v. Commonwealth, 21 Va. App. 593, 466 S.E.2d 744 (1996).

When the Legislature enacted the bifurcated trial statute, they incorporated the term "record of conviction" aware that its meaning includes both convictions and punishment, thereby intending to assist the jury in fashioning a sentence suitable both to defendant and the offense. Burke v. Commonwealth, 27 Va. App. 489, 500 S.E.2d 225 (1998).

Nothing in this section required the Commonwealth to introduce a document that was signed by the judge who convicted defendant of rape to have that document considered by the trial court that convicted defendant of robbery, and the court that convicted defendant of robbery did not err when it considered documents that were not signed by the judge but were properly authenticated by his clerk. Seaton v. Commonwealth, 42 Va. App. 739, 595 S.E.2d 9, 2004 Va. App. LEXIS 165 (2004).

Proof of a defendant's prior predicate convictions is admissible during the guilt phase of the trial. This reading comports with the plain language of § 19.2-295.1 and gives full meaning, force and effect to §§ 19.2-295.1 and 19.2-297.1 . Washington v. Commonwealth, 272 Va. 449 , 634 S.E.2d 310, 2006 Va. LEXIS 73 (2006).

Trial court did not err in permitting the prosecutor to cross-examine defendant about his prior conviction for possession of cocaine because defendant introduced evidence concerning his history and background, and the prosecutor was entitled to cross-examine him about specific acts in order to rebut his testimony; during the sentencing hearing, defendant stated that he was "deeply sorry" for his actions, and he testified that he had a chemical addiction to cocaine and that his criminal record was a reflection of that addiction. Ali v. Commonwealth,, 2009 Va. App. LEXIS 500 (Nov. 10, 2009), aff'd in part, rev'd in part, 280 Va. 665 , 701 S.E.2d 64 (2010).

In a capital case in which defendant was sentenced to death, defendant unsuccessfully argued that the admission of his previous death sentence was irrelevant to his future dangerousness and undermined the jury's obligation to consider the mitigating evidence. Pursuant to subsection B of § 19.2-264.4, the history and background of defendant could be admitted, and § 19.2-295.1 provided that upon his conviction for a felony, the Commonwealth shall present his prior criminal history, including prior convictions and the punishments imposed, by certified, attested or exemplified copies of the final order, including adult convictions. Prieto v. Commonwealth, 278 Va. 366 , 682 S.E.2d 910, 2009 Va. LEXIS 94 (2009), cert. denied, 177 L. Ed. 2d 332, 2010 U.S. LEXIS 4926 (U.S. 2010); appeal after remand, decision reached on appeal by, 283 Va. 149 , 721 S.E.2d 484, 2012 Va. LEXIS 20 (2012).

Trial court did not abuse its discretion in allowing the Commonwealth to cross-examine defendant about his prior offenses during the sentencing phase of trial because defendant presented evidence of his good character; because defendant introduced evidence of his good character through testimony that gave the impression he was a hard-working, law-abiding citizen, the Commonwealth was entitled to cross-examine him about his prior offenses in order to rebut his testimony. Green v. Commonwealth, No. 0373-19-1, 2020 Va. App. LEXIS 69 (Mar. 10, 2020).

Introduction of prior convictions proper in recidivist crimes. - Defendant moved to bifurcate the guilt phase of the trial so that the jury would not be aware of his prior larceny convictions until it determined whether he was guilty of petit larceny in violation of §§ 18.2-96 and 18.2-104 , but the trial court stated that there was no authority for such a procedure and that it was for the legislature to change the manner of proof in recidivist crimes. When the legislature enacted and amended § 19.2-295.1 , it chose not to create a separate bifurcated procedure of the guilt phase for these offenses, thus, the trial court did not err. Elem v. Commonwealth, 55 Va. App. 55, 683 S.E.2d 830, 2009 Va. App. LEXIS 462 (2009).

Introduction of prior convictions improper. - The trial court erroneously permitted the jury to consider as convictions for purposes of fixing punishment three offenses for which the defendant had previously been found guilty but not sentenced that were thus incomplete records of conviction not contemplated by this statute. Webb v. Commonwealth, 31 Va. App. 466, 524 S.E.2d 164 (2000).

Unredacted final order. - In a case in which defendant was convicted of possession of a Schedule I or II controlled substance, the circuit court did not abuse its discretion by admitting an unredacted final order of another circuit court convicting defendant of petit larceny. The trial court's interpretation of § 19.2-295.1 was in accordance with traditional canons of statutory interpretation. Robinson v. Commonwealth, 811 S.E.2d 861, 2018 Va. App. LEXIS 83 (Apr. 3, 2018).

Probation violation inadmissible. - Trial court erroneously considered evidence of a defendant's prior probation revocation in the penalty determination phase of a bifurcated criminal jury trial as part of the record of conviction, as such was not a continuation and part of the sentencing process imposed for a criminal conviction; to the extent that Merritt v. Commonwealth, 32 Va. App. 506, 528 S.E.2d 743 (2000) conflicted with this holding, it was expressly overruled. Jaccard v. Commonwealth, 268 Va. 56 , 597 S.E.2d 30, 2004 Va. LEXIS 87 (2004).

Prior sentencing evidence. - Defendant's contention that it was error for the trial court to allow the admission of prior sentencing evidence had to be rejected. Such evidence was admissible under the explicit provisions of § 19.2-295.1 . Pcelinski v. Commonwealth,, 2008 Va. App. LEXIS 81 (Feb. 19, 2008).

Prior sentencing order properly admitted. - Where this section requires the Commonwealth to present evidence of a defendant's past criminal convictions by introduction of his record of conviction, the record of conviction is the trial court's sentencing order; thus the entire order, including the sentence imposed, which is the record of conviction, was properly submitted to the jury. Davis v. Commonwealth, No. 0126-95-4 (Ct. of Appeals Jan. 23, 1996).

When evidence of prior sentences may lead the jury to speculate that parole is still available to the defendant, a trial judge is required to instruct the jury that defendant, if convicted, will be ineligible for parole. Hartigan v. Commonwealth, 31 Va. App. 243, 522 S.E.2d 406 (1999).

Sufficient evidence of prior convictions. - Where the certifications by the clerk and judge verified not only the accuracy of the photocopies, but also reflected the state of Maryland's determination that "the originals together, constitute the record of the proceedings," in the case, the evidence contained in these properly admitted documents, viewed in the aggregate, was sufficient to establish defendant's prior convictions. Folson v. Commonwealth, 23 Va. App. 521, 478 S.E.2d 316 (1996).

Admission of evidence of nolle prossed charges harmless error. - The admission of evidence of charges that had been nolle prossed was harmless error because, even if the jury had treated these charges as convictions, this evidence was merely cumulative of overwhelming evidence that the appellant had been convicted of numerous similar offenses and, although the jury was free to impose a maximum sentence of 10 years imprisonment, it only imposed a mid-range sentence of five years. Byrd v. Commonwealth, 30 Va. App. 371, 517 S.E.2d 243 (1999).

B. OTHER RELEVANT EVIDENCE.

Construction with § 19.2-264.4. - The factors a jury may consider in mitigation of a capital offense under subsection B of § 19.2-264.4 may also be considered by the trial court in determining what evidence is relevant to punishment under this section, except that evidence of unadjudicated criminal activity is admissible in capital cases, whereas this section only permits the introduction of the record of convictions. Byrd v. Commonwealth, 30 Va. App. 371, 517 S.E.2d 243 (1999).

In determining what evidence is relevant to punishment, the trial court may be guided in the exercise of its discretion, subject to the rules of evidence governing admissibility, by the factors set forth in § 19.2-264.4(B) as interpreted in Coppola v. Commonwealth, 220 Va. 243 , 257 S.E.2d 797 (1979). Commonwealth v. Shifflett, 257 Va. 34 , 510 S.E.2d 232 (1999).

Unsworn or out-of-court evidence may be considered. - The court must be allowed to consider all relevant evidence in the exercise of its discretion in sentencing; such evidence includes any responsible unsworn or out-of-court information relative to the circumstances of the crime, subject to the requirement that the information bear some indicia of reliability. Payan v. Commonwealth, No. 2373-99-4, 2000 Va. App. LEXIS 379 (Ct. of Appeals May 16, 2000).

Admission of evidence at resentencing hearing. - Trial court erred under § 19.2-295.1 in admitting at a resentencing hearing, over defendant's objection, a summary of facts created by the trial court that had not been presented to the original jury. Booker v. Commonwealth, 60 Va. App. 35, 723 S.E.2d 621, 2012 Va. App. LEXIS 108 (2012).

Evidence of codefendant's sentence. - Trial court properly precluded the jury from hearing testimony regarding codefendant's sentence during the penalty phase, although the trial judge was permitted to consider such evidence in determining whether to impose the jury's recommended sentence. Howell v. Commonwealth,, 2012 Va. App. LEXIS 205 (June 19, 2012).

Admissible mitigating evidence. - The kind of evidence contemplated bears upon the record of the defendant and the nature of his crime. Evidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of a noncapital crime is admissible mitigating evidence. Commonwealth v. Shifflett, 257 Va. 34 , 510 S.E.2d 232 (1999).

Recidivism evidence. - Section 19.2-297.1 did not forbid recidivism evidence from being presented in the guilt phase of a jury trial, and neither the jury bifurcation statute, § 19.2-295.1 , nor Va. Sup. Ct. R. 3A:17.1 were inconsistent with this interpretation; recidivism evidence was properly admitted in a prosecution for malicious wounding "after having been twice convicted of a violent felony." Washington v. Commonwealth, 46 Va. App. 276, 616 S.E.2d 774, 2005 Va. App. LEXIS 320 (2005), aff'd, 272 Va. 449 , 634 S.E.2d 310 (2006).

Admission of victim impact evidence proper. - Trial court did not abuse its discretion at defendant's sentencing proceeding by admitting into evidence a limited number of photographs of the victim during the victim impact testimony of the victim's spouse, who testified extensively as to the psychological and emotional impacts of the victim's death on the spouse and the spouse's children. The photographs were relevant to psychological injuries, familial relationships, personal welfare, and changes in the lifestyle of the victim's family members as a result of the offenses. Moyd v. Commonwealth, No. 0317-12-1, 2012 Va. App. LEXIS 425 (Aug. 6, 2012).

Defendant may testify as to involvement in planning or participation in crime. - A defendant is entitled during the sentencing phase of the trial to account for or explain his participation or degree of culpability in the offense for which he has been found guilty, because those facts are relevant to and have a bearing upon the appropriate punishment to be imposed for the defendant's criminal conduct. Kearney v. Commonwealth, 32 Va. App. 790, 531 S.E.2d 23, 2000 Va. App. LEXIS 534 (2000).

Evidence of defendant's problems with drug use. - Because defendant did not object to admission of defendant's extensive prior convictions or other exhibits that also informed the jury of defendant's problems with drug use, the same information defendant argued should have been redacted from a specific exhibit pursuant to former § 19.2-295.1 , any error in admitting that exhibit without redaction was harmless. Adams v. Commonwealth,, 2009 Va. App. LEXIS 112 (Mar. 17, 2009).

Evidence of defendant's pretrial incarceration irrelevant. - Trial court did not err in refusing to allow defendant to testify during sentencing phase that he was incarcerated on earlier charges arising from same incident before those charges were nolle prosequied because the jury's consideration of defendant's prior incarceration addressed none of the purposes of sentencing; in applying the factors of subsection B of § 19.2-264.4 as they related to § 19.2-295.1 , defendant's pretrial incarceration was not relevant to circumstances surrounding the offense, the history and background of defendant, circumstances that tended to explain the offense, defendant's criminal record, mental condition and intellectual functioning of defendant, the age of defendant, or any other factor in mitigation of the offense. Jones v. Commonwealth, 54 Va. App. 414, 679 S.E.2d 568, 2009 Va. App. LEXIS 338 (2009).

Discretion is vested in trial court to determine, subject to rules of evidence governing admissibility, the evidence which may be adduced in mitigation of the offense. Runyon v. Commonwealth, 29 Va. App. 573, 513 S.E.2d 872 (1999).

Discretion is vested in trial court to determine relevance. - Circuit court properly allowed defendant's social media posts - indicating that he had certain drugs to sell - at sentencing to provide circumstantial evidence of his involvement with illegal drugs, nothing in the evidence would inflame the passions of the jurors, particularly when compared with the brutality of the offense for which defendant was being sentenced, and, although it was difficult to comprehend how the posts were permissible victim impact testimony, defendant's failure to raise that statute prevented the trial court from timely consideration of the objection and a proper ruling on its merits, defendant did not invoke the good cause or ends of justice exceptions, and the appellate court would not apply the exceptions sua sponte. McInnis v. Commonwealth, No. 1934-17-1, 2018 Va. App. LEXIS 332 (Dec. 4, 2018).

Impact of defendant's incarceration. - The trial court did not abuse its discretion by refusing to allow evidence concerning the impact of defendant's incarceration upon his family and his employment. Commonwealth v. Shifflett, 257 Va. 34 , 510 S.E.2d 232 (1999).

In the punishment phase of a bifurcated trial, the trial judge can allow the jury to consider conviction orders that include recital of the punishment imposed. Burke v. Commonwealth, 27 Va. App. 489, 500 S.E.2d 225 (1998).

Minimum sentence rendered error involving defendant's evidence harmless. - Assuming that the trial court erred in limiting appellant's evidence of employment history and family during the sentencing phase, this error was harmless and did not affect appellant's sentence, as he received the minimum sentence allowed for the offense committed. Carcamo v. Commonwealth, No. 1554-95-4 (Ct. of Appeals Sept. 17, 1996).

Defendant may produce relevant admissible evidence. - The statutory language simply sets forth the order of proof at the sentencing proceeding. However, the language does not prohibit the defendant from introducing relevant, admissible evidence related to punishment if the Commonwealth chooses not to produce evidence of the defendant's prior convictions, or if the defendant has no criminal record that the Commonwealth can introduce. Pierce v. Commonwealth, 21 Va. App. 581, 466 S.E.2d 130 (1996).

Rebuttal evidence permitted. - This section permits the Commonwealth to introduce relevant, admissible evidence to rebut any evidence introduced by the defendant on the issue of sentencing, but the admissibility of rebuttal evidence is generally restricted in scope to refuting matters brought out by its proponent's adversary. Byrd v. Commonwealth, 30 Va. App. 371, 517 S.E.2d 243 (1999).

This section prohibits the Commonwealth from offering into evidence more than certified copies of criminal convictions, and permits the defendant to introduce any evidence relevant to the issue of punishment, but in the event the defendant offers evidence on the issue of punishment, the Commonwealth may offer relevant, admissible evidence in rebuttal. Jones v. Commonwealth, No. 0406-99-2, 2000 Va. App. LEXIS 578 (Ct. of Appeals Aug. 1, 2000).

If defendant offers sentencing information in rebuttal at the penalty phase, as allowed by § 19.2-295.1 , the prosecution may introduce evidence of sentencing and prior efforts to rehabilitate if the trial court deems it relevant and admissible to rebut defendant's evidence. Gillespie v. Commonwealth, 272 Va. 753 , 636 S.E.2d 430, 2006 Va. LEXIS 94 (2006).

Rebuttal of defendant's good character. - This section goes beyond the common-law rule of evidence, which disallows proof of a defendant's specific bad acts to rebut the defendant's character evidence, and where a defendant puts on evidence that he has been of good character or has a history and background of being a good, law-abiding, caring or remorseful person, the Commonwealth may, subject to the trial court's sound discretion, introduce evidence of specific acts in the defendant's history and background that rebuts the defendant's contention or proves that the defendant has a history or background of criminal or bad acts or is not of good character. Pughsley v. Commonwealth, 33 Va. App. 640, 536 S.E.2d 447, 2000 Va. App. LEXIS 700 (2000).

When a defendant convicted of unlawful wounding offered evidence in mitigation through his testimony that he did not intend to cut the victim or anyone else, he put his intent or lack thereof in issue as it might bear on the determination of an appropriate sentence for his crime, and a photograph of another person cut by the defendant in the same incident then became relevant evidence to rebut this evidence by depicting both the number of wounds and their severity. Jones v. Commonwealth, No. 0406-99-2, 2000 Va. App. LEXIS 578 (Ct. of Appeals Aug. 1, 2000).

Error for court to exclude appellant's background and family information. - Where after sentencing hearing, trial court allowed appellant to proffer excluded evidence, and appellant testified that his father had been killed when he was nine, that he had no male role models, that his mother abused drugs and alcohol, that his half-brother had been shot, and that he had no fixed home before he came to Virginia at the age of 22, the excluded evidence in this case clearly was relevant to appellant's background and family situation at the time of the earlier conviction and was also probative of his current situation. It was error for the trial court to exclude this information from the jury's purview. Taylor v. Commonwealth, No. 1776-96-4 (Ct. of Appeals Dec. 30, 1997).

Any error from exclusion of additional mitigating evidence was harmless, where defense proved extensive facts concerning defendant's mental deficiencies and "hard life," and evidence was clearly presented to jury that defendant's problems flowed from extenuating circumstances. Hostetter v. Commonwealth, No. 2378-98-3 (Ct. of Appeals Feb. 15, 2000).

Evidence of adverse effect on wife's medical condition properly excluded. - In malicious wounding case, defendant's proffered evidence that his incarceration would adversely affect his wife, who had a medical condition, was not a mitigating circumstance that the jury could properly consider. Caudill v. Commonwealth, 27 Va. App. 81, 497 S.E.2d 513 (1998).

Harmless error in refusing to admit mitigating evidence. - A defendant's suicidal mindset on the evening when he was charged with operating a vehicle after having been declared an habitual offender offered an insubstantial explanation for his behavior, and the trial court's refusal to admit evidence regarding his medical condition and mental state at the time of the offense, if error, was harmless, as such evidence would clearly have had no effect on the jury's determination of sentence. Thomas v. Commonwealth, No. 1883-99-4, 2000 Va. App. LEXIS 641 (Ct. of Appeals Sept. 5, 2000).

CIRCUIT COURT OPINIONS

Introduction of prior conviction did not impede impartial jury. - Commonwealth could introduce evidence of defendant's prior larceny convictions in the guilt phase of a concealment trial under §§ 18.2-103 and 18.2-104 , and upon request, a limiting instruction would be given that the evidence could be considered only as proof of defendant's prior predicate convictions, and not as proof that defendant committed the concealment; defendant's request for a separate proceeding after a preliminary finding of culpability, but before defendant was convicted, was rejected as under § 19.2-295.1 , a separate proceeding to determine punishment occurred only after a defendant was convicted of a felony. Commonwealth v. Dickens, 77 Va. Cir. 57, 2008 Va. Cir. LEXIS 124 (Fairfax County 2008).

§ 19.2-295.2. Postrelease supervision of felons sentenced for offenses committed on and after January 1, 1995, and on and after July 1, 2000.

  1. At the time the court imposes sentence upon a conviction for any felony offense committed (i) on or after January 1, 1995, the court may, and (ii) on or after July 1, 2000, shall, in addition to any other punishment imposed if such other punishment includes an active term of incarceration in a state or local correctional facility, except in cases in which the court orders a suspended term of confinement of at least six months, impose a term of incarceration, in addition to the active term, of not less than six months nor more than three years, as the court may determine. Such additional term shall be suspended and the defendant shall be ordered to be placed under postrelease supervision upon release from the active term of incarceration. The period of supervision shall be established by the court; however, such period shall not be less than six months nor more than three years. Periods of postrelease supervision imposed pursuant to this section upon more than one felony conviction may be ordered to run concurrently. Periods of postrelease supervision imposed pursuant to this section may be ordered to run concurrently with any period of probation the defendant may also be subject to serve.
  2. The period of postrelease supervision shall be under the supervision and review of the Virginia Parole Board. The Board shall review each felon prior to release and establish conditions of postrelease supervision. Failure to successfully abide by such terms and conditions shall be grounds to terminate the period of postrelease supervision and recommit the defendant to the Department of Corrections or to the local correctional facility from which he was previously released. Procedures for any such termination and recommitment shall be conducted in the same manner as procedures for the revocation of parole.
  3. Postrelease supervision programs shall be operated through the probation and parole districts established pursuant to § 53.1-141 .
  4. Nothing in this section shall be construed to prohibit the court from exercising any authority otherwise granted by law.

    (1994, 2nd Sp. Sess., cc. 1, 2; 1995, cc. 502, 574; 2000, c. 767; 2020, cc. 1115, 1116.)

Editor's note. - Acts 2000, c. 767, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1-14, the estimated amount of the necessary appropriation is $0 in FY 2010."

The 2000 amendments. - The 2000 amendment by c. 767, added "and on and after July 1, 2000" in the section catchline; in subsection A, inserted "(i)" "and (ii) on or after July 1, 2000, shall" and "except in cases in which the court orders a suspended term of confinement of at least six months" and substituted "of postrelease supervision" for "in addition to the active term"; and in subsection B, substituted the language beginning "under the supervision" and ending "postrelease supervision" for "conducted in the same manner as a like period of supervised probation, including a requirement that the defendant shall abide by such terms and conditions as the court may establish" and substituted "parole" for "probation and imposition of a suspended sentence."

The 2020 amendments. - The 2020 amendments by cc. 1115 and 1116 are identical, and in subsection A in the first sentence, substituted "incarceration, in addition to the active term" for "postrelease supervision" and in the second sentence, inserted "shall be ordered to be."

Law review. - For an article, "Criminal Law and Procedure," see 31 U. Rich. L. Rev. 1015 (1997).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 70; 14A M.J. Pardon, Probation and Parole, § 5.

CASE NOTES

Statute to be interpreted liberally. - Section 19.2-295.2 is more similar to probation than to traditional penal codes and, therefore, should be interpreted liberally. Alston v. Commonwealth, 49 Va. App. 115, 637 S.E.2d 344, 2006 Va. App. LEXIS 544 (2006).

Application of statute does not require additional fact-finding by court. - Section does not require that a trial court find proof of particular facts independent of the jury's finding of guilt. Alston v. Commonwealth, 49 Va. App. 115, 637 S.E.2d 344, 2006 Va. App. LEXIS 544 (2006).

This statute clearly provides the court independent authority to control the imposition of sentence, giving it discretion to suspend or increase a jury's recommendation; while defendant's codefendants received lighter sentences, they did not have defendant's extensive criminal record. Accordingly, there was no abuse of discretion in imposing the jury sentence and the additional one year suspended term under this section. Allard v. Commonwealth, 24 Va. App. 57, 480 S.E.2d 139 (1997).

No due process right to be sentenced by jury. - Nothing in the United States or Virginia Constitution gives a defendant the right to be sentenced by a jury or solely by a jury and the imposition of postrelease periods of suspended incarceration and supervision pursuant to this section does not violate any due process right of a defendant to be sentenced by a jury. Boyd v. Commonwealth, 28 Va. App. 537, 507 S.E.2d 107 (1998).

Statute does not violate separation of powers doctrine. - Imposition of a term of post-release supervision pursuant to § 19.2-295.2 did not violate the separation of powers doctrine under Va. Const., Art. III, § 1, because the Virginia Parole Board only provided conduct standards for defendant upon release, but defendant remained subject to the length of punishment imposed by the judiciary. Akbar v. Commonwealth, No. 0915-09-3, 2010 Va. App. LEXIS 154 (Apr. 27, 2010).

Postrelease supervision upon revocation of probation. - Contention that the trial court abused its discretion by sentencing defendant to one-year of postrelease supervision upon defendant's service of two years in prison after revocation of defendant's probation because this exceeded the original sentence the trial court imposed and suspended, two years in prison for cocaine possession, could not be considered by the appellate court because defendant did not object during the trial proceedings, and no other circumstance existed that would warrant considering the contention. McCoy v. Commonwealth, No. 1475-01-1, 2002 Va. App. LEXIS 436 (Ct. of Appeals July 30, 2002).

Subsection A of 19.2-295.2 unambiguously required that a court impose a sentence of postrelease supervision at the time of conviction, and thus, the trial court erred in imposing an additional term of postrelease supervision after defendant's probation was revoked. Lamb v. Commonwealth, 40 Va. App. 52, 577 S.E.2d 530, 2003 Va. App. LEXIS 120 (2003).

Where defendant violated his probation conditions, the trial court only had the authority to revoke suspension of the original three years to which it sentenced defendant; it did not have the authority to impose a period of postrelease supervision. Roundtree v. Commonwealth, No. 0298-03-1, 2003 Va. App. LEXIS 599 (Ct. of Appeals Nov. 18, 2003).

Suspended sentence and postrelease supervision properly imposed. - Defendant's sentence to three years of incarceration plus an additional six months, suspended upon a condition of six months of postrelease supervision, for unlawfully throwing a missile at or against an occupied building pursuant to § 18.2-279 , was not in error on the ground that it exceeded the jury's recommendation of three years; this section permits a trial court to impose a suspended term of incarceration and postrelease supervision when a jury's sentence includes an active term of incarceration, and the trial court did not make additional fact findings in imposing the sentence beyond those found by the jury. Perry v. Commonwealth,, 2006 Va. App. LEXIS 270 (June 20, 2006).

Imposition of postrelease terms of suspended incarceration and supervision. - Trial court did not err in imposing an additional sentence of three years supervision on to defendant's life sentence after defendant pled guilty to first degree murder in exchange for the life sentence; although the plea agreement was a contract, contract law included the law in force on the date the contract was formed, which included the suspended sentence and postrelease supervision provisions of subdivision (g) of § 18.2-10 and § 19.2-295.2 . Wright v. Commonwealth, 49 Va. App. 58, 636 S.E.2d 489, 2006 Va. App. LEXIS 503 (2006).

Imposition of terms of suspended incarceration and supervision proper though not mentioned in plea agreement. - Defendant entered into a plea agreement with the Commonwealth pursuant to Va. Sup. Ct. R. 3A:8(c)(1)(C). As contract principles applied to plea agreements, and the law in effect when the contract was made became part of the contract, the trial court, after accepting the plea agreement, properly imposed terms of suspended incarceration and postrelease supervision under §§ 18.2-10 (g) and 19.2-295.2 A, even though such terms were not mentioned in the plea agreement. Wright v. Commonwealth, 275 Va. 77 , 655 S.E.2d 7, 2008 Va. LEXIS 12 (2008).

Imposition of post-release supervision, but no post-release term of suspended incarceration. - Circuit court, in sentencing defendant, ordered only a term of post-release supervision, not one of post-release incarceration; thus, no suspended term of confinement was available for imposition, and the circuit court's order imposing post-release incarceration was vacated without reaching defendant's claim on appeal. To the extent that the court interpreted the sentencing order to contain a period of suspended post-release confinement implicitly or by operation of law, that interpretation was erroneous. Eggleston v. Commonwealth, No. 1347-16-2, 2017 Va. App. LEXIS 235 (Sept. 12, 2017).

Postrelease supervision properly imposed. - Where a trial court did not make factual determinations beyond those implicit in the jury's conviction, it did not violate Blakely by adding three years of postrelease supervision to defendant's sentence pursuant to § 19.2-295.2 , as a statute could provide for such sentencing components without violating the right to a jury trial. Alston v. Commonwealth, 49 Va. App. 115, 637 S.E.2d 344, 2006 Va. App. LEXIS 544 (2006).

As defendant's sentence, which included three years of imprisonment fixed by the jury and a three-year term of postrelease supervision imposed by the trial court under § 19.2-295.2 , was within the 10-year range set by the legislature for voluntary manslaughter, it was not illegal. Alston v. Commonwealth, 49 Va. App. 115, 637 S.E.2d 344, 2006 Va. App. LEXIS 544 (2006).

Defendant's Sixth Amendment rights were not violated in a case where defendant was convicted of voluntary manslaughter, a jury recommended a three-year prison sentence pursuant to § 19.2-295 , and the trial court imposed a three-year period of postrelease supervision; the postrelease supervision portion of defendant's sentence was imposed pursuant to statutory law, was within that statute's permissible range, and did not require the trial court to find any additional facts that were not implicit in the jury's finding of guilt. Alston v. Commonwealth, 274 Va. 759 , 652 S.E.2d 456, 2007 Va. LEXIS 133 (2007).

Trial court did not err by adding to defendant's sentence a post-release supervision term because, given defendant's convictions for statutory burglary, petit larceny, and larceny with intent to sell or distribute, the trial court had no choice but to impose the additional term as it was mandated by statute. Yaconis v. Commonwealth, No. 1363-13-1, 2014 Va. App. LEXIS 270 (July 29, 2014).

Trial court erred in sentencing defendant because although the jury recommended twelve months in jail, the trial court sentenced defendant to a term of five years of incarceration, with four years suspended for a period of five years; while the trial court had the authority to impose an additional term of up to three years of postrelease supervision, it did not specify that the additional time was imposed pursuant to the statute, and the sentence exceeded what was statutorily permissible. Culberson v. Commonwealth, No. 2006-15-1, 2017 Va. App. LEXIS 84 (Mar. 21, 2017).

Additional terms of post-release supervision did not violate the Sixth Amendment as § 19.2-295.2 did not require that a trial court find proof of particular facts independent of the jury's conviction. Rigdon v. Commonwealth, No. 1101-17-1, 2019 Va. App. LEXIS 7 (Jan. 8, 2019).

Sentence and postrelease supervision improperly imposed. - Trial court's sentencing order, as drafted, did not comply with Virginia law, where the order did not specify that the additional time was imposed pursuant to §§ 18.2-10 and 19.2-295.2 . Furthermore, the period of post-release supervision imposed by the trial court was not under the supervision and review of the Virginia Parole Board. Thomas v. Commonwealth, 296 Va. 301 , 819 S.E.2d 437, 2018 Va. LEXIS 139 (2018).

Determination of sentence. - Because the three-year term of postrelease supervision was to be added to the 10-year term that could have been imposed for the offenses for which defendant was convicted, the sentences totaling 10.5 years imposed by the trial court were within the statutory ranges for the offenses and, therefore, were not illegal. Williams v. Commonwealth, 270 Va. 580 , 621 S.E.2d 98, 2005 Va. LEXIS 96 (2005).

Section 19.2-295.2 does not direct the trial court to suspend a part of the traditional sentence under § 18.2-10 , but instead to add a period of postrelease supervision when less than six months of the traditional sentence is suspended. The legislature did not create a conflict with the prior sentencing structure, but instead changed it. Alston v. Commonwealth, 49 Va. App. 115, 637 S.E.2d 344, 2006 Va. App. LEXIS 544 (2006).

Because it was unclear as to whether a trial court, which sentenced defendant following his convictions for second-degree murder and use of a firearm during a felony, intended to sentence defendant to the maximum term of postrelease supervision under § 19.2-295.2 , the cause was remanded for entry of a specific term. Alston v. Commonwealth,, 2008 Va. App. LEXIS 4 (Jan. 8, 2008).

Claim that the imposition of a two-year term of postrelease supervision under § 19.2-295.2 violated the separation of powers doctrine was barred by Va. Sup Ct. R. 5A:18 where defendant failed to make his argument before the trial court; the ends of justice exception to Rule 5A:18 did not apply where defendant did not show that a miscarriage of justice actually occurred. Fitzpatrick v. Commonwealth,, 2008 Va. App. LEXIS 52 (Feb. 5, 2008).

§ 19.2-295.2:1. Postrelease incarceration of felons sentenced for certain offenses committed on or after July 1, 2006.

  1. For offenses committed on or after July 1, 2006:
    1. At the time the court imposes a sentence upon a conviction for a first violation of subsection A of § 18.2-472.1 the court shall impose an added term of postrelease incarceration of six months.
    2. For a second or subsequent violation of subsection A of § 18.2-472.1 when both violations occurred after July 1, 2006, or a first violation of subsection B of § 18.2-472.1 , the court shall impose an added term of postrelease incarceration of two years.
    3. For a second or subsequent violation of subsection B of § 18.2-472.1 when both violations occurred after July 1, 2006, the court shall impose an added term of postrelease incarceration of five years. Any terms of postrelease incarceration imposed pursuant to this section shall be in addition to any other punishment imposed, including any periods of active incarceration or suspended periods of incarceration, if any.
  2. The court shall order that any term of postrelease incarceration imposed pursuant to this section be suspended, and the defendant be placed on active supervision under a postrelease supervision program operated by the Department of Corrections. The court shall order that the defendant be subject to electronic monitoring by means of a GPS (Global Positioning System) tracking device, or other similar device during this period of postrelease supervision. Failure to successfully abide by the terms and conditions of the postrelease supervision program shall be grounds to terminate the period of postrelease supervision and recommit the defendant to the Department of Corrections or to a local correctional facility. Procedures for any such termination shall be conducted after a hearing in the court which originally sentenced the defendant, conducted in a manner consistent with a revocation hearing under § 19.2-306 , mutatis mutandis.
  3. Nothing in this section shall be construed to prohibit the court from exercising any authority otherwise granted by law.

    (2006, cc. 857, 914; 2020, cc. 1115, 1116.)

Editor's note. - Acts 2006, cc. 857 and 914, cl. 4, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $2,419,496 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2020 amendments. - The 2020 amendments by cc. 1115 and 1116 are identical, and in subdivisions A 1 and A 3, last paragraph and subsection B, first sentence, substituted "postrelease incarceration" for "postrelease supervision" and in subdivisions A 2 and A3, first paragraph, substituted "postrelease incarceration" for "supervision by the Department of Corrections."

OPINIONS OF THE ATTORNEY GENERAL

Misdemeanor violations of subsection A of § 18.2-472.1 - A General District Court is authorized to order postrelease supervision of a person convicted of violating subsection A of § 18.2-472.1 , but in the case of misdemeanor convictions that period is limited to six months for each such conviction. The court can order the Virginia Department of Corrections to oversee such supervision. See opinion of Attorney General to the Honorable Lucretia A. Carrico, General District Court Judge, Retired, Petersburg, 11-093, 2013 Va. AG LEXIS 47 (7/12/13).

§ 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 and when the accused has requested the jury to ascertain punishment as provided in subsection A of § 19.2-295 , the court shall permit the victim to testify at the sentencing hearing conducted pursuant to § 19.2-295 .1. In all other cases of trial by jury, the case of trial by the court, or the case of a guilty plea, the court shall permit the victim to testify before the court prior to the imposition of the sentence by the presiding judge.

(1998, c. 485; 2004, c. 310; 2020, Sp. Sess. I, c. 43; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2020 Sp. Sess. I, c. 43, cl. 2 provides: "That the provisions of this act shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2004 amendments. - The 2004 amendment by c. 310 substituted "Whether by trial or upon a plea of guilty" for "In cases of trial by jury or by the court" at the beginning of the first sentence, and inserted "or a guilty plea" near the middle of the third sentence.

The 2020 Sp. Sess. I amendments. - The 2020 amendment by Sp. Sess. I, c. 43, effective July 1, 2021, inserted "and when the accused has requested the jury to ascertain punishment as provided in subsection A of § 19.2-295 ," substituted "In all other cases of trial by jury" for "or in," inserted "the case of" preceding "a guilty plea" and substituted "the sentence by the presiding judge" for "a sentence."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted the former last sentence, which read: "Victim impact testimony in all capital murder cases shall be admitted in accordance with § 19.2-264.4."

CASE NOTES

Family member statements were properly admitted since the murder was determined to be a direct consequence of the conspiracy to commit robbery. - Since it could not be said that the trial court was plainly wrong when it determined that a murder was a direct consequence of a conspiracy to commit a robbery, the victim impact testimony was properly admitted under subsection B of § 19.2-11.01 even though defendant was acquitted of the murder. Furthermore, the admissibility of the victim impact testimony was relevant and within the sound discretion of the trial court even if the witnesses were not deemed "victims" under subsection B of § 19.2-11.01 . Rock v. Commonwealth, 45 Va. App. 254, 610 S.E.2d 314, 2005 Va. App. LEXIS 107 (2005).

Victim's testimony admissible. - This section and § 19.2-299.1 , did not compel the trial court to exclude testimony from the victim concerning the circumstances of the crime when that testimony assisted the court as it considered what sentence to impose and the testimony did not exceed the scope of permissible testimony. Harvey v. Commonwealth, 65 Va. App. 280, 777 S.E.2d 231, 2015 Va. App. LEXIS 283 (2015).

Relevant evidence not limited by statute. - There is no sound reason why relevant victim impact testimony that may be considered by a jury in a capital case should not likewise be considered in a non-capital case. Rock v. Commonwealth, 45 Va. App. 254, 610 S.E.2d 314, 2005 Va. App. LEXIS 107 (2005).

Evidence admissible during Commonwealth's case-in-chief. - Pursuant to § 19.2-295.3 , the victim was properly permitted to testify during the Commonwealth's case-in-chief of the sentencing phase of defendant's rape trial; the victim had a qualified, statutorily protected right to be heard at sentencing, and it was within the trial judge's ultimate discretion to decide when the victim would be heard. Washington v. Commonwealth, 48 Va. App. 486, 632 S.E.2d 625, 2006 Va. App. LEXIS 349 (2006).

Admission of victim impact evidence proper. - Trial court did not abuse its discretion at defendant's sentencing proceeding by admitting into evidence a limited number of photographs of the victim during the victim impact testimony of the victim's spouse, who testified extensively as to the psychological and emotional impacts of the victim's death on the spouse and the spouse's children. The photographs were relevant to psychological injuries, familial relationships, personal welfare, and changes in the lifestyle of the victim's family members as a result of the offenses. Moyd v. Commonwealth, No. 0317-12-1, 2012 Va. App. LEXIS 425 (Aug. 6, 2012).

In a case in which a jury convicted defendant of second-degree murder and felony child abuse, the trial court did not err in admitting victim impact evidence pursuant to § 19.2-295.3 from the victim's uncle and other family members. The testimony was relevant to explain how the victim's family was affected by testifying at trial. Gatewood v. Commonwealth, No. 0296-14-1, 2015 Va. App. LEXIS 293 (Oct. 20, 2015).

CIRCUIT COURT OPINIONS

Defendant's presence at sentencing required. - Court denied defendant's request to be absent from his own sentencing hearing in a capital murder case because, inter alia, in the same memorandum in which defendant sought to waive his presence, he also asked the court to impose less than the maximum sentence provided by law; the Commonwealth would be offering victim impact testimony at sentencing, and the presence of defendant was statutorily required as the victim, upon a motion of the attorney for the Commonwealth, was permitted to testify in the presence of the accused regarding the impact of the offense upon the victim; and allocution was a fundamental right, and a denial of defendant's right to allocution constituted error and undermined a sentence. Commonwealth v. Rams, 96 Va. Cir. 215, 2017 Va. Cir. LEXIS 121 (Prince William County July 31, 2017).

Nolle prosequi. - When defendant agreed to a plea bargain which involved a charge being nolle prosequied, and pled guilty pursuant to the plea bargain, the prosecutor could not have a victim impact statement related to the nolle prosequied charge included in the presentence investigation report, because that would violate the spirit of § 19.2-295.3 , regarding the admission of victim impact testimony, which was only admitted after a defendant was found guilty, and the "bargained for exchange" of the plea bargain. Commonwealth v. Summit, 62 Va. Cir. 477, 2003 Va. Cir. LEXIS 157 (Roanoke 2003).

§ 19.2-296. Withdrawal of plea of guilty.

A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of a sentence is suspended; but to correct manifest injustice, the court within twenty-one days after entry of a final order may set aside the judgment of conviction and permit the defendant to withdraw his plea.

(1975, c. 495.)

Law review. - For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976).

For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

For article, "A Comparative Look At Plea Bargaining In Australia, Canada, England, New Zealand, and the United States," see 57 Wm. & Mary L. Rev. 1147 (2016).

Research References. - Virginia Forms (Matthew Bender). No. 9-2315. Questions to Accused by Court on Plea of Guilty (Written Form to Present to Court), et seq.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 33, 75.

CASE NOTES

Standard codified in this section. - In a post-sentence situation concerning withdrawal of a guilty plea entered after a plea agreement, judicial discretion is involved, and the applicable standard for exercising this discretion was enunciated in former Rule 3A:25(d) and is codified in this section. Lilly v. Commonwealth, 218 Va. 960 , 243 S.E.2d 208 (1978).

Jurisdiction. - Trial court erred in ruling that it had no jurisdiction to consider defendant's motion to withdraw his guilty plea where the motion was filed and argued before the 21-day period set forth in § 19.2-296 expired. Velazquez v. Commonwealth, 292 Va. 603 , 791 S.E.2d 556, 2016 Va. LEXIS 168 (2016).

Defendant filed a motion to withdraw defendant's guilty plea and defense counsel filed a motion to withdraw as counsel after filing a notice of appeal, but within twenty-one days from the date of the trial court's sentencing order. Therefore, remand for a hearing on defendant's motions was necessary because the trial court erred in finding that it did not have jurisdiction to consider the motions to withdraw the guilty plea and to withdraw as counsel. Smith v. Commonwealth, Nos. 0610-15-4, 1097-15-4, 2016 Va. App. LEXIS 308 (Ct. of Appeals Nov. 15, 2016).

Whether or not accused should be allowed to withdraw plea of guilty for the purpose of submitting a not guilty plea is a matter that rests within the sound discretion of the trial court and is to be determined by the facts and circumstances of each case. Jones v. Commonwealth, 29 Va. App. 503, 513 S.E.2d 431 (1999).

Motion to withdraw plea should be granted if it appears from the surrounding circumstances that the plea of guilty was submitted in good faith under an honest mistake of material fact or facts, or if it was induced by fraud, coercion or undue influence and would not otherwise have been made. Jones v. Commonwealth, 29 Va. App. 503, 513 S.E.2d 431 (1999).

A defendant has no absolute right to withdraw a plea of guilty or nolo contendere; rather, such privilege is permissive. Moreno v. Commonwealth, No. 1126-98-4 (Ct. of Appeals May 4, 1999).

Least surprise or influence causing plea sufficient for withdrawal. - Generally, the withdrawal of a plea of guilty should not be denied in any case where it is in the least evident that the ends of justice will be subserved by permitting not guilty to be pleaded in its place; the least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient grounds for permitting a change of plea from guilty to not guilty. Lynch v. Commonwealth, No. 0512-00-2, 2001 Va. App. LEXIS 275 (Ct. of Appeals May 22, 2001).

Manifest injustice. - Trial court properly denied her motion to withdraw her guilty plea because defendant's arrest warrant was for a felony, defendant was familiar with the system due to defendant's prior convictions, and defendant understood the maximum punishment; therefore, pursuant to § 19.2-296 , a "manifest injustice" did not occur. Milton v. Commonwealth,, 2012 Va. App. LEXIS 316 (Oct. 9, 2012).

Trial court did not abuse its discretion in denying defendant's post-sentencing motion to withdraw his guilty plea because there was no "manifest injustice": he admitted committing the crime; he agreed with the Commonwealth's proffer of facts; the trial court had found him competent; and it had subject matter jurisdiction over the case. Bryant v. Commonwealth, No. 1462-12-4, 2013 Va. App. LEXIS 214 (Ct. of Appeals July 23, 2013).

Defendant did not show a manifest injustice required that defendant's postsentence motion to withdraw defendant's guilty plea be granted, when defendant's criminal record was disclosed late, because defendant was not prejudiced, as: (1) defendant knew or should have known of the record; (2) defendant did not seek withdrawal before sentencing after knowing of the record, despite knowing the sentence defendant could receive; and (3) defendant benefitted from the disposition of other charges by nolle prosequi. Young v. Commonwealth, No. 0149-13-4, 2014 Va. App. LEXIS 15 (Jan. 21, 2014).

Defendant did not show a manifest injustice required that defendant's post-sentence motion to withdraw defendant's guilty plea be granted, when defendant's criminal record was disclosed late, because the Commonwealth did not violate a discovery order by not disclosing the record earlier, since: (1) the Commonwealth's Va. Sup. Ct. R. 7C:5 duty to disclose ended when defendant waived a preliminary hearing; (2) the Commonwealth had no sua sponte duty to provide the record; and (3) the Commonwealth did not know of the record until a probation officer's presentence report, so the record was not known to "a representative of the Commonwealth," before a preliminary hearing or waiver thereof. Young v. Commonwealth, No. 0149-13-4, 2014 Va. App. LEXIS 15 (Jan. 21, 2014).

On the merits, defendant failed to prove that his motion to withdraw his guilty plea was necessary to correct manifest injustice where he admitted that his answers during the plea colloquy were truthful, there was no assertion that the plea was involuntary or that any terms of a plea agreement were violated, and the trial court found that defendant understood the charges and voluntarily entered into the plea agreement. Velazquez v. Commonwealth, 292 Va. 603 , 791 S.E.2d 556, 2016 Va. LEXIS 168 (2016).

Actual or potential adverse employment or housing consequences that flowed from defendant's guilty plea to a petit larceny charge did not satisfy the manifest injustice standard and, therefore, did not provide a basis upon which to set aside her guilty plea. Brown v. Commonwealth, 297 Va. 295 , 826 S.E.2d 883, 2019 Va. LEXIS 39 (2019).

Defense to charges not enough to set aside guilty plea. - Defense to the charges is not by itself sufficient to require a trial court to set aside a guilty plea because the guilty plea must also be entered inadvisedly; any number of circumstances might render a plea inadvised, including the fact that an attorney overlooked a viable defense or the defendant did not understand the nature of the charges. Pritchett v. Commonwealth, 61 Va. App. 777, 739 S.E.2d 922, 2013 Va. App. LEXIS 117 (2013).

Defendant is allowed to withdraw his or her guilty plea in situations where the defendant would not have pled guilty but for some external circumstance such as coercion, or poor or erroneous advice from counsel; a defendant who wishes to withdraw his or her guilty plea must do more than tender a defense. Pritchett v. Commonwealth, 61 Va. App. 777, 739 S.E.2d 922, 2013 Va. App. LEXIS 117 (2013).

In resolving the question of whether the trial court abused its discretion in denying a motion for withdrawal of a guilty plea after sentencing to correct some manifest injustice resulting from a plea agreement, not only what the trial court may have told, or failed to tell, the defendant before accepting his plea but also the events that occurred after acceptance of the plea and before sentencing must be considered. If, upon the whole record, it appears that the defendant, at any time before sentencing, was fairly warned or otherwise made aware that the court was not bound to follow the recommendation of the attorney for the Commonwealth, then the defendant is in no position to claim that his plea was rendered "unknowing and involuntary," resulting in manifest injustice. Lilly v. Commonwealth, 218 Va. 960 , 243 S.E.2d 208 (1978).

In determining whether a trial court abused its discretion in denying a motion to withdraw a plea of guilty, an appellate court should consider not only what the trial court may have told, or failed to tell, the defendant before accepting his plea but also the events that occurred after acceptance of the plea and before sentencing. Underwood v. Commonwealth, No. 0872-98-3, 2000 Va. App. LEXIS 224 (Ct. of Appeals Mar. 28, 2000).

Determining whether court erred in declining to allow withdrawal of a guilty plea requires an examination of the circumstances confronting the accused immediately prior to and at the time he or she pleaded to the charge. Jones v. Commonwealth, 29 Va. App. 503, 513 S.E.2d 431 (1999).

Trial court's inquiry. - Trial court's inquiry should have been whether defendant proffered a valid defense recognized by the law, not the likely effectiveness of the defense. Hernandez v. Commonwealth, 67 Va. App. 67, 793 S.E.2d 7 (2016).

Reasonable defense. - Because defendant had not established a reasonable defense, the circuit court did not abuse its discretion in refusing to permit defendant to withdraw his guilty pleas to second-degree murder, possession of a firearm by a convicted felon, and use of a firearm in the commission of a felony. Thomason v. Commonwealth, 69 Va. App. 89, 815 S.E.2d 816, 2018 Va. App. LEXIS 189 (2018).

Because defendant failed to proffer evidence of a reasonable basis for contesting guilt to a petit larceny charge, the circuit court did not abuse its discretion in denying defendant's motion to set aside her guilty plea. Although defendant stated that she had evidence to prove that the merchandise was left in the store and that she had her money returned back to her, the Commonwealth was not required to establish that the merchandise left the store. Brown v. Commonwealth, 297 Va. 295 , 826 S.E.2d 883, 2019 Va. LEXIS 39 (2019).

Circuit court did not err in finding that defendant failed to meet his burden of establishing a reasonable defense; because its denial of defendant's motion to withdraw his guilty pleas was not based on an evaluation of substantive evidence but instead was based on defendant's failure to make a proffer; defendant did not introduce any records or testimony regarding the facts of his childhood or mental health but merely sought to explore the possibility of an insanity defense. Washington v. Commonwealth, No. 0083-18-4, 2019 Va. App. LEXIS 98 (Apr. 23, 2019).

Defendant moving to withdraw a guilty plea and assert an insanity defense must do more than speculate as to what evidence might support that defense. Washington v. Commonwealth, No. 0083-18-4, 2019 Va. App. LEXIS 98 (Apr. 23, 2019).

Circuit court did not abuse its discretion in denying defendant's motion to withdraw his guilty pleas because defendant did not present evidence of a reasonable defense; defendant failed to present evidence of a reasonable defense because the unsubstantiated assertion that an insanity defense was "possible" did not rise to prima facie evidence that defendant was legally insane at the time of the incident. Washington v. Commonwealth, No. 0083-18-4, 2019 Va. App. LEXIS 98 (Apr. 23, 2019).

Habeas case law was inapplicable. - Habeas case law was inapplicable in considering defendant's motion to withdraw a guilty plea prior to sentencing under § 19.2-296 as: (1) when a case remained within the jurisdiction of the trial court to permit the withdrawal of a guilty plea, the presumptions that favored the Commonwealth in a habeas proceeding did not apply; (2) when defendant filed the § 19.2-296 motion, defendant was necessarily seeking to repudiate the admission of guilt and some, if not all, of the admissions made in the guilty plea colloquy; and (3) the proper granting of a motion to withdraw a guilty plea under § 19.2-296 was not dependent upon a determination that defendant failed to receive adequate legal representation from counsel. Justus v. Commonwealth, 274 Va. 143 , 645 S.E.2d 284, 2007 Va. LEXIS 74 (2007).

Prejudice to Commonwealth. - Prejudice to the Commonwealth is a relevant factor that should be considered when reviewing a motion to withdraw a guilty plea. Small v. Commonwealth, 292 Va. 292 , 788 S.E.2d 702, 2016 Va. LEXIS 104 (2016).

Defendant entitled to withdraw guilty plea. - Ends of justice would be served in permitting defendant to withdraw defendant's guilty pleas and plead not guilty to the charges against defendant under § 19.2-296 as defendant's motion to withdraw the guilty pleas was made in good faith and premised upon a reasonable basis for substantive, and not "merely dilatory or formal," defenses to the charges since: (1) during the plea hearing, the trial court clearly was made aware by defense counsel that defendant was living with the victim in the home defendant was accused of having burglarized and damaged; (2) defendant provided an affidavit that evidenced that defendant had resided in this home at the time of the alleged burglary; (3) neither counsel's representation nor the affidavit were inherently incredible and they supported absolute defenses to the charges because a person could not unlawfully break and enter a home that person had the right to occupy, or damage that person's own property; and (4) an affidavit provided an evidentiary basis for defendant's claim of self-defense, and was not inherently incredible. Justus v. Commonwealth, 274 Va. 143 , 645 S.E.2d 284, 2007 Va. LEXIS 74 (2007).

Trial court erred in not permitting defendant to withdraw defendant's guilty plea because the motion to withdraw was made in good faith, as defendant contended that defendant was not provided by jail officials with bipolar medication before the plea hearing to treat defendant's depression. Furthermore, the motion to withdraw was premised upon a reasonable basis that defendant was able to present substantive, and not merely dilatory or formal, defenses to the charges of construction fraud, as defendant contended that the proffer of evidence by the Commonwealth of Virginia showed that defendant lacked the requisite intent to defraud when defendant entered into two renovation contracts and received advance payment for the purchase of supplies and labor. Bottoms v. Commonwealth, 281 Va. 23 , 704 S.E.2d 406, 2011 Va. LEXIS 22 (2011).

Trial court erred in denying motion to withdraw guilty pleas, where the trial court rejected defendant's argument that a reasonable defense was sufficient grounds for granting the motion to withdraw, although it was clear from case law that such grounds were sufficient cause to grant the motion, and the proffered defense was a substantive defense recognized by law and not merely dilatory or formal in nature. Terry v. Commonwealth,, 2012 Va. App. LEXIS 193 (June 12, 2012).

Trial court abused its discretion in not allowing defendant to withdraw his guilty pleas; counsel admitted that she gave defendant erroneous advice that caused him to enter the guilty pleas rather than present a viable defense, the trial court invaded the province of the jury in determining that defendant's insanity defense was not credible, and defendant offered a reasonable defense, and the court could not find that the passage of time itself was so prejudicial to the Commonwealth as to have outweighed the benefit to defendant of allowing him to withdraw his pleas and proceed to trial on an insanity defense. Hernandez v. Commonwealth, 67 Va. App. 67, 793 S.E.2d 7 (2016).

Defendant not entitled to withdraw guilty plea. - Trial court did not err in denying defendant's motion to withdraw his plea of guilty for manifest injustice, where court had advised defendant that his guilty plea was a waiver of all his rights incident to trial and that only issue before court was defendant's sentence; moreover, defendant did not avail himself of opportunity to make a statement before he was sentenced, or ask any questions of trial court. Underwood v. Commonwealth, No. 0872-98-3 (Ct. of Appeals Mar. 28, 2000).

Where defendant failed to demonstrate an actual conflict of interest with counsel, the trial court did not abuse its discretion or infringe upon defendant's Sixth Amendment guarantees when it denied counsel's motion to withdraw under Alford. Dillard v. Commonwealth, No. 0679-02-1, 2003 Va. App. LEXIS 207 (Ct. of Appeals Apr. 8, 2003).

Trial court properly denied defendant's motion pursuant to § 19.2-296 to withdraw his guilty plea to second degree murder, as defendant did not file the motion until his conviction had been reversed based on an illegal sentence, and defendant failed to show that he entered the plea based on an official misrepresentation concerning his sentence or a mistake of fact. Leneave v. Commonwealth, No. 2197-03-2, 2004 Va. App. LEXIS 480 (Ct. of Appeals Oct. 5, 2004).

Defendant was not entitled to withdraw his guilty pleas where, among other things, the evidence showed that the trial judge questioned defendant extensively to ensure that he was entering the pleas voluntarily, knowingly, and with a clear understanding of their effect, defendant acknowledged that the charges and the plea agreement had been read verbatim to him and that he understood them, and defendant told the trial judge that he was entering his pleas freely and voluntarily and that no one, including his attorney, had threatened or forced him to plead guilty or made any promises concerning his pleas of guilty. Stevenson v. Commonwealth, No. 2350-02-1, 2004 Va. App. LEXIS 89 (Ct. of Appeals Feb. 24, 2004).

Defendant's motion to withdraw his guilty plea to malicious wounding was properly denied as he did not establish he pled guilty due to a mistake of fact. Moreover, withdrawal of the plea would not promote the ends of justice; as the motion to withdraw the plea was not heard until nine months after he pled guilty and 21 months after the crime, a new trial would cause chaos. Johnson v. Commonwealth, No. 3206-03-2, 2005 Va. App. LEXIS 67 (Ct. of Appeals Feb. 15, 2005).

Where defendant testified he pled guilty to malicious wounding because his counsel misinformed him that he faced a life sentence, and counsel denied this, defendant's motion to withdraw his guilty plea on grounds of mistake of fact was properly denied because the trial court was entitled to believe counsel. Johnson v. Commonwealth, No. 3206-03-2, 2005 Va. App. LEXIS 67 (Ct. of Appeals Feb. 15, 2005).

Where defendant did not offer any real substantive defense to charges against defendant, which included the robbery of a store where five former coworkers recognized defendant as the assailant, defendant was not entitled to withdraw defendant's guilty plea filed pursuant to § 19.2-296 . The trial court could have concluded that defendant's claim of mistaken identity offered no real substantive defense and that defendant's claim that defendant was not thinking properly when defendant pled guilty did not mean defendant was not competent to plead guilty. Coleman v. Commonwealth, 51 Va. App. 284, 657 S.E.2d 164, 2008 Va. App. LEXIS 92 (2008).

Trial court properly denied defendant's motion to withdraw his guilty pleas to malicious wounding, using a firearm in the commission of malicious wounding, conspiracy to commit robbery, and wearing body armor because defendant's justifications for withdrawing his guilty pleas did not constitute evidence of reasonable grounds for trying the matter; defendant claimed no mistake of fact and did not assert that he entered his pleas with surprise or influence or out of fear, fraud, or official misrepresentation. Chaney v. Commonwealth,, 2008 Va. App. LEXIS 153 (Apr. 1, 2008).

Denial of defendant's motion to withdraw his guilty plea pursuant to § 19.2-296 was proper because defendant's only basis to withdraw his plea was that the sentencing guidelines came out higher than he expected, which, since the trial court informed him that his juvenile record would be used to compute his recommended sentence, was not a good faith basis; the reason that the guidelines required a higher sentence than defendant expected was that he failed to tell his attorney that he had a criminal record as a juvenile. Thompson v. Commonwealth,, 2009 Va. App. LEXIS 314 (July 14, 2009).

As the evidence clearly showed the victim was not capable of giving consent, defendant's assertions regarding possible defenses and his ignorance of the law regarding consent and mental retardation did not rise to the "more severe standard" applicable under § 19.2-296 after sentencing, which required defendant to show denial of his motion would create a manifest injustice. Sene v. Commonwealth,, 2009 Va. App. LEXIS 333 (July 28, 2009).

In a case in which defendant pled guilty to violating §§ 18.2-90 , 18.2-47 , 18.2-67.1 and 18.2-53.1 , he argued unsuccessfully that the circuit court abused its discretion in denying his motion to withdraw his guilty pleas prior to sentencing; defendant failed to show a good faith basis for seeking to withdraw his guilty pleas. He was clearly aware of the potential range of punishments available to the court at the time he pled guilty; as such, the fact that the sentencing guidelines recommended a higher sentence than he had hoped did not constitute a good faith basis for rescinding his pleas. Mack v. Commonwealth,, 2009 Va. App. LEXIS 417 (Sept. 22, 2009).

Trial court did not err in refusing defendant's motion to withdraw his guilty plea because defendant failed to establish a good faith basis for seeking to withdraw his plea and to proffer evidence of a reasonable basis for contesting guilt, and defendant knew, prior to entering his plea, exactly what his sentence was going to be and that it would run concurrent to his sentence in an earlier case; a reasonable defense is a defense that reasonably supports the defendant's proffer, it is not a defense that is based solely upon a challenge to the credibility of a victim's testimony, especially when a defendant has admitted to the substance of such testimony. Williams v. Commonwealth, 59 Va. App. 238, 717 S.E.2d 837, 2011 Va. App. LEXIS 392 (2011).

In a case in which defendant appealed his conviction for grand larceny, in violation § 18.2-95 , the trial court did not abuse its discretion in denying his motion to withdraw his guilty plea prior to sentencing. He had 14 prior felony convictions, several for grand larceny, and he also had numerous misdemeanor convictions for petit larceny; for him to argue that he was confused or subjected to undue influence by his attorney was nothing more than a dilatory attempt to postpone his trial. Terrell v. Commonwealth,, 2012 Va. App. LEXIS 243 (July 24, 2012).

Denial of defendant's motion to withdraw his guilty plea was upheld, because defendant failed to show guilty plea was entered by mistake or misconception of nature of charges, or through fear, and evidence supported the trial court's finding that defendant took a look at what the consequences might be after he pled guilty and had buyer's remorse. Branch v. Commonwealth, 60 Va. App. 540, 729 S.E.2d 777, 2012 Va. App. LEXIS 256 (2012).

Trial court did not err in denying defendant's motion to withdraw his guilty plea under § 19.2-296 as there was no good faith basis for the withdrawal of the plea. While defendant sought to withdraw his plea on the basis that his new attorney, retained since the guilty plea hearing, concluded that his plea was entered inadvisably, defendant had not been able on the day he entered his guilty plea to articulate any valid reason why he was unsatisfied with his attorney and wished to hire a new one. Vasquez v. Commonwealth,, 2013 Va. App. LEXIS 22 (Jan. 22, 2013).

Trial court did not err in denying defendant's motion to withdraw his guilty pleas because it followed the requirements of Va. Sup. Ct. R. 3A:8(c)(2); the trial court properly could consider the statements defendant made during the colloquy in assessing whether defendant's guilty pleas were entered into inadvisedly or based on a mistake concerning the trial court's ability to reject the recommendation of the prosecution. Pritchett v. Commonwealth, 61 Va. App. 777, 739 S.E.2d 922, 2013 Va. App. LEXIS 117 (2013).

Assuming, without deciding, that defendant entered his pleas in good faith because he was unduly influenced by his family, the trial court still did not abuse its discretion in denying defendant's motion to withdraw his guilty pleas because he failed to proffer a reasonable defense to justify a trial on the merits. Parham v. Commonwealth, No. 0290-13-1, 2013 Va. App. LEXIS 373 (Dec. 17, 2013).

Trial court properly denied defendant's petition to withdraw his guilty plea to robbery; though it found he had a good faith basis for seeking to withdraw his plea - his counsel's leading him to believe he would receive a short sentence under the plea agreement - he did not have a reasonable defense to justify going to a trial on the merits, as exercising his common-law right to reclaim his property was not a valid defense to robbery because the money owed him was based on an illegal debt. White v. Commonwealth, No. 0212-13-1, 2013 Va. App. LEXIS 374 (Dec. 17, 2013).

Defendant was properly not permitted to withdraw his no contest plea as he failed to proffer a reasonable defense to justify a trial as his claim that the lender's employee informed him that to get a second title loan he was to apply for a replacement title to serve as collateral was not credible because the manager testified that defendant would not have received the second loan had she known of the prior lien, and defendant's application for the replacement title stated that he sought a new title because he had lost the original; defendant presented the replacement title to the lender, thereby falsely indicating that there was no prior lien, to receive a second loan, which constituted a false pretense, even though the lender was able to place a lien on the replacement title. Shropshire v. Commonwealth,, 2015 Va. App. LEXIS 93 (Mar. 24, 2015).

Trial court did not err in denying defendant's motion to withdraw his guilty plea, as defendant failed to show that the threat of harm was imminent and that taking possession of the firearm and leaving the apartment was the only way for defendant to avoid the threatened harm, as defendant could have called the police. Edmonds v. Commonwealth, 292 Va. 301 , 787 S.E.2d 860, 2016 Va. LEXIS 105 (2016).

Trial court, which denied defendant's motion to withdraw his guilty plea to possession of a firearm by a convicted felon, did not err by weighing the equities and considering the resulting prejudice to the Commonwealth due to the lengthy delay between defendant's entry of his guilty plea and his motion to withdraw that plea. Small v. Commonwealth, 292 Va. 292 , 788 S.E.2d 702, 2016 Va. LEXIS 104 (2016).

Trial court did not err in denying defendant's post-sentencing motion to withdraw her guilty pleas because defendant failed to establish that manifest injustice resulted from her guilty plea; defendant's loss of employment and her home were not direct but were collateral consequences of her guilty pleas, and defendant's alleged affirmative defense was irrelevant to her motion to withdraw her guilty pleas filed after sentencing. Brown v. Commonwealth, No. 0269-17-1, 2018 Va. App. LEXIS 77 (Mar. 27, 2018), aff'd, 297 Va. 295 , 826 S.E.2d 883, 2019 Va. LEXIS 39 (2019).

Circuit court did not abuse its discretion in denying defendant's motion to withdraw his guilty pleas because the motion was not made in good faith; there was no indication in the record that defendant was unaware of his prior mental health issues or entered his plea under any honest mistake of material fact. Washington v. Commonwealth, No. 0083-18-4, 2019 Va. App. LEXIS 98 (Apr. 23, 2019).

Evidence supported the trial court's finding that defendant knowingly and intelligently entered into a valid contract and acted in bad faith in moving to withdraw his pleas, and therefore, the trial court did not abuse its discretion in denying his motion, because defendant signed a plea agreement waiving his right to withdraw his no contest pleas, the trial court specifically questioned defendant about whether he understood the plea withdrawal provision in the agreement, and defendant expressed an understanding that he was waiving certain rights by not proceeding with a trial, including his ability to move to withdraw his pleas. Chapman v. Commonwealth, No. 0838-19-1, 2020 Va. App. LEXIS 148 (May 12, 2020).

Because defendant expressly waived her right to withdraw her guilty plea and confirmed through the plea colloquy with the trial court her understanding of her waiver of her right, the trial court did not abuse its discretion in denying defendant's motion to withdraw her guilty plea. Sullivan v. Commonwealth, No. 1039-19-4, 2020 Va. App. LEXIS 250 (Oct. 20, 2020).

Defendant was not entitled to withdraw his Alford pleas on grounds that he misunderstood their nature and effect, or that he mistakenly entered into plea agreement because he feared his co-defendant would testify untruthfully. Moreno v. Commonwealth, No. 1126-98-4 (Ct. of Appeals May 4, 1999).

Trial court properly exercised its discretion when it denied defendant's motion to withdraw his Alford guilty pleas because defendant's request was not made in good faith; defendant did not have a viable or reasonable defense and never provided any proof to support his allegations that counsel told defendant that he could receive only the midpoint or below of the sentencing guidelines, failed to investigate and present mitigating evidence, and failed to adequately prepare for trial. Gallimore v. Commonwealth,, 2008 Va. App. LEXIS 174 (Apr. 15, 2008).

Where defendant entered Alford pleas to rape, conspiracy to commit a felony, and unlawful videotaping of a minor, defendant's motion to withdraw the pleas based on undue influence was properly denied because: (1) nothing "undue" was found regarding defendant feeling pressured and fearful as defendant faced the prospect of fighting the charges alone and the possibility of multiple life sentences being imposed; and (2) defendant failed to proffer a "reasonable defense" to the charges. Rice v. Commonwealth,, 2008 Va. App. LEXIS 287 (June 17, 2008).

As defendant had not shown there was a manifest injustice to be corrected, the trial court did not abuse its discretion in denying defendant's motion to withdraw defendant's Alford guilty plea; defendant's claim that defendant was not mentally stable fell short of satisfying the manifest injustice standard, as defendant demonstrated that defendant was competent to enter the guilty plea and that defendant was entering it knowingly, freely, and voluntarily. Howell v. Commonwealth, 60 Va. App. 737, 732 S.E.2d 722, 2012 Va. App. LEXIS 322 (2012).

Defendant's motion to withdraw his Alford guilty pleas was properly denied because he signed a plea agreement that expressly waived any right to withdraw his plea once it was accepted by the trial court; before accepting the plea, the trial court engaged in an extensive colloquy, during which the trial court reviewed the agreement terms with defendant in detail; defendant confirmed that he read and understood the agreement, that he signed the agreement, and that he was entering his guilty pleas freely and voluntarily; he confirmed that he understood and agreed to the express waiver provision waiving his right to withdraw his guilty pleas; and the record showed that the Commonwealth would suffer actual prejudice if forced to try the case. Griffin v. Commonwealth, 65 Va. App. 714, 780 S.E.2d 909, 2016 Va. App. LEXIS 1 (Jan. 12, 2016).

Failure to file motion to withdraw plea. - Defendant's plea was valid because the trial court conducted an extensive colloquy with him to ensure his plea of guilty was made knowingly, intelligently, and voluntarily and defendant, at no time, raised any issues regarding the voluntary nature of his plea. During the 15 months following his plea, defendant never challenged the trial court's acceptance of his plea; there was also no merit to his contention that he had little or no opportunity to challenge the voluntary nature of his plea in the trial court. Swilling v. Commonwealth,, 2009 Va. App. LEXIS 24 (Jan. 27, 2009).

Withdrawal of guilty plea not permitted. - The trial court did not abuse his discretion in refusing to allow the defendant to withdraw his guilty plea, notwithstanding the assertion that the guilty plea was not made knowingly, where there was an extensive colloquy prior to the acceptance of the plea, the defendant signed a stipulation admitting the crime, and both the defendant and his counsel acknowledged that the entire matter had been explained to the defendant prior to the hearing and that he understood the charge against him and the consequences of pleading guilty. Johnson v. Commonwealth, No. 1587-97-2 (Ct. of Appeals Dec. 15, 1998).

Trial judge did not abuse his discretion by denying defendant's post-sentence motion to withdraw his guilty pleas where the evidence showed that the pleas were made voluntarily and that the motion was prompted by defendant's disappointment in the sentence he received. Bowman v. Commonwealth, No. 0952-00-2, 2001 Va. App. LEXIS 479 (Ct. of Appeals Aug. 14, 2001).

Trial court did not err in finding that defendant was prohibited from possessing a firearm on the porch of his home and therefore, the trial court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea. Plumley v. Commonwealth, No. 1799-02-3, 2003 Va. App. LEXIS 501 (Ct. of Appeals Oct. 7, 2003).

Denial of motion to withdraw guilty plea was upheld where the evidence indicated that defendant fully and completely understood the plea agreement he entered into; the plea agreement defendant signed made no mention of eight-year cap and the guilty plea form that defendant signed before trial did not indicate that defendant had a particular expectation regarding what his sentence would be. Harris v. Commonwealth, No. 2917-02-1, 2003 Va. App. LEXIS 514 (Ct. of Appeals Oct. 14, 2003).

Since there was no question that the trial court imposed sentence and/or imposed suspension of sentence for all charges well before defendant sought to withdraw his guilty pleas, the trial court, pursuant to § 19.2-296 , lacked any authority to consider defendant's motion and, thus did not err in refusing to do so. Staten v. Commonwealth, No. 2165-02-2, 2004 Va. App. LEXIS 45 (Ct. of Appeals Feb. 3, 2004).

Defendant was not entitled to withdraw his guilty pleas where, among other things, the evidence showed that the trial judge questioned defendant extensively to ensure that he was entering the pleas voluntarily, knowingly, and with a clear understanding of their effect, defendant acknowledged that the charges and the plea agreement had been read verbatim to him and that he understood them, and defendant told the trial judge that he was entering his pleas freely and voluntarily and that no one, including his attorney, had threatened or forced him to plead guilty or made any promises concerning his pleas of guilty. Stevenson v. Commonwealth, No. 2350-02-1, 2004 Va. App. LEXIS 89 (Ct. of Appeals Feb. 24, 2004).

Trial court did not have jurisdiction to consider defendant's motion to withdraw his guilty plea under this section, as defendant's original sentencing order remained valid as to all portions that were not in excess of the sentencing court's statutory authority. McKenney v. Commonwealth, Nos. 3330-02-2, 0473-03-2, 2004 Va. App. LEXIS 157 (Ct. of Appeals Apr. 6, 2004).

Defendant's motion to withdraw his Alford plea was properly denied; he had been fully advised of the consequences of his plea and understood them, and trial court did not credit his claim that he felt pressured into accepting the plea bargain. Wilson v. Commonwealth, No. 2175-03-2, 2004 Va. App. LEXIS 248 (Ct. of Appeals June 1, 2004).

Trial court did not abuse its discretion in denying defendant's motion for leave to withdraw defendant's guilty pleas. The evidence did not support defendant's allegation that the police fraudulently induced defendant to plead guilty to drug charges, as defendant was asked twice whether defendant was promised anything and defendant answered no, and defendant gave the same answer on defendant's guilty plea form. Jones v. Commonwealth,, 2006 Va. App. LEXIS 568 (Dec. 19, 2006).

Trial court did not err in denying defendant's motion to withdraw his guilty pleas to robbery and use of a firearm in the commission of a robbery because the trial court was not required to grant the motion based on defendant's alleged defense, which simply claim that he was in the wrong place at the wrong time; defendant presented no affidavits and submitted no evidence in support of his motion, and the record did not support defendant's allegation that he was pressured into accepting the plea agreement. Booker v. Commonwealth,, 2008 Va. App. LEXIS 171 (Apr. 8, 2008).

Circuit court did not err in denying defendant's motion to withdraw his guilty pleas because defendant did not offer any affidavits to support his motion, and he offered conflicting explanations as to why he decided to plead guilty, which suggested an attempt to avoid the consequences of his actions; defendant's motion appeared to have represented simply an attempt to avoid jail, and he did not offer a reasonable foundation for a defense. Hughes v. Commonwealth,, 2008 Va. App. LEXIS 236 (May 13, 2008).

Withdrawal of plea of nolo contendere. - Defendant was entitled to withdraw the disputed plea of nolo contendere if the record established any defense at all to the indictments, and it was reasonably probable that nondisclosure of the exculpatory impeachment evidence had the least influence on such plea. Jefferson v. Commonwealth, 27 Va. App. 477, 500 S.E.2d 219 (1998).

Defendant was not permitted to withdraw his plea of nolo contendere where record failed to show that defendant's plea was involuntary, induced by fraud, coercion, or undue influence, or based upon any surprise or honest mistake of material fact; to the contrary, the record contained evidence that defendant fully understood the nature and effect of his plea and that defendant's nolo contendere plea was freely and voluntarily given. Horn v. Commonwealth, No. 1317-02-3, 2003 Va. App. LEXIS 702 (Ct. of Appeals Dec. 30, 2003).

Because defendant neither argued why defendant's § 19.2-296 motion to withdraw a plea of nolo contendere should be granted, nor proffered the evidence defendant intended to elicit or the argument defendant made on appeal, defendant's argument was waived pursuant to Va. Sup. Ct. R. 5A:18. Stone v. Commonwealth,, 2011 Va. App. LEXIS 288 (Sept. 27, 2011).

Trial court properly denied defendant's motion to withdraw his nolo contendere pleas because neither defendant nor his prior counsel ever testified that defendant was unaware of a potential motion to suppress, defendant did not introduce the search warrant at issue or present any evidence challenging its validity, defendant's unsubstantiated contention that the search warrant was "for a different phone" did not constitute prima facie evidence, the court found that prior counsel's failure to file a suppression motion was "trial strategy" and noted that defendant answered the questions in the plea colloquy affirmatively, and the record demonstrated that defendant failed to offer affirmative evidence of any reasonable defense to his charge. Spencer v. Commonwealth, 68 Va. App. 183, 806 S.E.2d 410, 2017 Va. App. LEXIS 279 (Nov. 14, 2017).

Improper standard applied. - Trial court erred in denying defendant's motion to withdraw his guilty plea, because it did not follow the correct standard in denying the motion; the trial court did not consider whether defendant's proffered defense was reasonable, and not merely dilatory or formal, but found that defendant was advised by two experienced attorneys and relied on his answers during the colloquy. Hubbard v. Commonwealth, 60 Va. App. 200, 725 S.E.2d 163, 2012 Va. App. LEXIS 168 (2012).

Order granting a writ of habeas corpus was error because, after sentencing, the rule of § 19.2-296 applied to motions to withdraw guilty pleas, and there was no evidence that the inmate was denied effective assistance of counsel relating to his motion to withdraw his Alford plea to grand larceny or that manifest injustice occurred; if the case had gone to trial, the inmate's sole defense would have been his own self-serving and uncorroborated testimony that he had been given permission to remove air conditioning units he was charged with stealing. He would have been subject to cross-examination with regard to his changing accounts of the person who had allegedly given him permission, his precipitate flight from the scene when confronted by the owner, and his two prior larceny convictions. Johnson v. Anis, 284 Va. 462 , 731 S.E.2d 914, 2012 Va. LEXIS 164 (2012).

Defendant's purported misunderstanding of procedural matters was belied by record, and even if his misunderstanding was genuine, his reluctance to submit to normal legal procedure could not be deemed manifest injustice under this section. Atabaki v. Commonwealth, No. 1411-98-4 (Ct. of Appeals Feb. 8, 2000).

Jurisdiction on appeal. - Because a motion to withdraw a guilty plea under § 19.2-296 is designed by statute to be filed and disposed of while the circuit court retains jurisdiction over the case, the motion is criminal in nature; such motion does not challenge the jurisdiction of the circuit court. Thus, defendant's appeal was subject to the criminal appellate jurisdiction of the Court of Appeals under subsection A of § 17.1-406 . Williams v. Commonwealth, 263 Va. 189 , 557 S.E.2d 233, 2002 Va. LEXIS 22 (2002).

Preservation of issue on appeal. - Defendant's appellate argument that his guilty pleas were involuntary because the trial court did not specifically advise him of the appellate consequences of the pleas was defaulted because defendant never questioned the voluntariness of pleas before the trial court, did not object to the trial court's acceptance of his pleas either during trial or post-trial, and did not move to withdraw his pleas. Cook v. Commonwealth,, 2005 Va. App. LEXIS 429 (Nov. 1, 2005).

Ends of justice exception could not have been used to seek a withdrawal of no contest pleas because defendant never raised the issue during sentencing, he never filed a motion to withdraw the pleas after sentencing, and the trial court was never asked to rule on any issues that would have accompanied a withdrawal motion. Byrd v. Commonwealth, No. 1426-12-3, 2014 Va. App. LEXIS 102 (Mar. 18, 2014).

Because defendant made no motion to withdraw his guilty plea before the trial court, there was no ruling for the appellate court to review. Martin v. Commonwealth,, 2015 Va. App. LEXIS 113 (Apr. 7, 2015).

Applied in Manning v. Commonwealth, 22 Va. App. 252, 468 S.E.2d 705 (1996); Williams v. Commonwealth, 263 Va. 189 , 557 S.E.2d 233, 2002 Va. LEXIS 22 (2002); Epps v. Commonwealth, 59 Va. App. 71, 717 S.E.2d 151, 2011 Va. App. LEXIS 351 (2011); Booker v. Commonwealth, 61 Va. App. 323, 734 S.E.2d 729, 2012 Va. App. LEXIS 407 (2012); Terry v. Commonwealth,, 2017 Va. App. LEXIS 347 (Feb. 27, 2017).

CIRCUIT COURT OPINIONS

Withdrawal of plea allowed where defendant's attorney misinformed defendant of the immigration consequences of the plea. - Defendant's motion to withdraw his guilty plea to charges of distribution of marijuana was granted, because defendant's attorney incorrectly advised defendant that the guilty plea would not render him deportable pursuant to 8 U.S.C.S. § 1227(a)(2)(B)(i), so defendant received ineffective assistance of counsel, and the guilty plea was not voluntary and knowing. Commonwealth v. Tahmas,, 2005 Va. Cir. LEXIS 132 (Fairfax County July 26, 2005).

Defendant's motion to withdraw a guilty plea to second degree murder and one count of use of a firearm in the commission of a felony was granted where it was filed shortly after a change of counsel, lack of premeditation was a reasonable defense, and although the four-year delay was substantial, and the bulk of the delay was due to 10 continuances prior to entry of the guilty plea. Commonwealth v. Taylor, 95 Va. Cir. 383, 95 Va. Cir. 383, 2017 Va. Cir. LEXIS 68 (Norfolk Apr. 19, 2017).

Withdrawal of plea allowed. - Defendant was entitled to withdraw his guilty plea, as the record showed that defendant misconceived the nature of pleading to first-degree murder and misunderstood the effect; he asserted a reasonable defense to the charges by proffering that he had a gun because the victim, who was military trained, had threatened defendant just prior to the shooting and defendant was protecting himself; and the government presented no argument as to how a withdrawal would in fact prejudice the Commonwealth. Commonwealth v. Terry,, 2017 Va. Cir. LEXIS 149 (Stafford County July 21, 2017).

Defendant entitled to withdraw guilty plea. - Defendant's written plea agreement could not provide a sufficient basis for denying his motion to withdraw his guilty plea, as the record was devoid of an extensive colloquy discussing the parameters of the provision waiving his right to withdraw his guilty plea and the record did not indicate defense counsel ever reviewed with him the contours of that specific provision. Commonwealth v. Terry, 96 Va. Cir. 155, 2017 Va. Cir. LEXIS 145 (Stafford County July 18, 2017).

Defendant was entitled to withdraw his plea because defendant made the motion in good faith as it appeared that defendant contrary to the law might have been advised that defendant's foreknowledge of an alleged robbery meant that defendant was guilty, defendant asserted a facially reasonable defense, and there was an insufficient basis to find that the passage of time itself was so prejudicial to the Commonwealth of Virginia as to outweigh the benefit to defendant of allowing defendant to withdraw the plea and to proceed to trial. Commonwealth v. Taylor, 105 Va. Cir. 242, 2020 Va. Cir. LEXIS 107 (Norfolk June 29, 2020).

Defendant not entitled to withdraw guilty plea. - Defendant's motion to withdraw his guilty plea was denied because he failed to demonstrate a good faith basis for doing so, as he filed the motion the day before his sentencing hearing, which was over 11 weeks after he pleaded guilty, he failed to offer any proof that the jail had administered an additional dose of medicine to him the morning of trial, he offered no evidence regarding how the alleged excessive dosage might have adversely affected him, and his actions at the hearing were not consistent with his claim that he was confused when he entered his guilty plea. Defendant also failed to proffer a reasonable defense and the withdrawal of defendant's guilty plea would significant prejudice the Commonwealth. Commonwealth v. Foster, 100 Va. Cir. 335, 2018 Va. Cir. LEXIS 622 (Norfolk Nov. 16, 2018).

§ 19.2-297.

Repealed by Acts 1994, c. 706.

§ 19.2-297.1. Sentence of person twice previously convicted of certain violent felonies.

  1. Any person convicted of two or more separate acts of violence when such offenses were not part of a common act, transaction or scheme, and who has been at liberty as defined in § 53.1-151 between each conviction, shall, upon conviction of a third or subsequent act of violence, be sentenced to life imprisonment and shall not have all or any portion of the sentence suspended, provided it is admitted, or found by the jury or judge before whom he is tried, that he has been previously convicted of two or more such acts of violence. For the purposes of this section, "act of violence" means (i) any one of the following violations of Chapter 4 (§ 18.2-30 et seq.) of Title 18.2:
  2. Prior convictions shall include convictions under the laws of any state or of the United States for any offense substantially similar to those listed under "act of violence" if such offense would be a felony if committed in the Commonwealth.

    The Commonwealth shall notify the defendant in writing, at least thirty days prior to trial, of its intention to seek punishment pursuant to this section.

  3. Any person sentenced to life imprisonment pursuant to this section shall not be eligible for parole and shall not be eligible for any good conduct allowance or any earned sentence credits under Chapter 6 (§ 53.1-186 et seq.) of Title 53.1. However, any person subject to the provisions of this section, other than a person who was sentenced under subsection A of § 18.2-67.5:3 for criminal sexual assault convictions specified in subdivision f, (i) who has reached the age of sixty-five or older and who has served at least five years of the sentence imposed or (ii) who has reached the age of sixty or older and who has served at least ten years of the sentence imposed may petition the Parole Board for conditional release. The Parole Board shall promulgate regulations to implement the provisions of this subsection. (1994, cc. 828, 860, 862, 881; 1994, 2nd Sp. Sess., cc. 1, 2; 1995, c. 834; 1996, c. 539.)
  1. First and second degree murder and voluntary manslaughter under Article 1 (§ 18.2-30 et seq.);
  2. Mob-related felonies under Article 2 (§ 18.2-38 et seq.);
  3. Any kidnapping or abduction felony under Article 3 (§ 18.2-47 et seq.);
  4. Any malicious felonious assault or malicious bodily wounding under Article 4 (§ 18.2-51 et seq.);
  5. Robbery under § 18.2-58 and carjacking under § 18.2-58.1 ;
  6. Except as otherwise provided in § 18.2-67.5:2 or § 18.2-67.5:3 , criminal sexual assault punishable as a felony under Article 7 (§ 18.2-61 et seq.); or
  7. Arson in violation of § 18.2-77 when the structure burned was occupied or a Class 3 felony violation of § 18.2-79 .
    1. conspiracy to commit any of the violations enumerated in clause (i) of this section; and (iii) violations as a principal in the second degree or accessory before the fact of the provisions enumerated in clause (i) of this section.

Cross references. - As to requirement of saliva or tissue sample for DNA analysis after arrest for a violent felony, see § 19.2-310.2:1 .

Editor's note. - Acts 1996, c. 539, cl. 2 provides: "[t]hat the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0."

Law review. - For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, § 9; 13A M.J. Mobs, Riots and Lynchings, § 4.

CASE NOTES

Introduction of recidivism evidence. - This section did not forbid recidivism evidence from being presented in the guilt phase of a jury trial, and neither the jury bifurcation statute, § 19.2-295.1 , nor Va. Sup. Ct. R. 3A:17.1 were inconsistent with this interpretation; recidivism evidence was properly admitted in a prosecution for malicious wounding "after having been twice convicted of a violent felony." Washington v. Commonwealth, 46 Va. App. 276, 616 S.E.2d 774, 2005 Va. App. LEXIS 320 (2005), aff'd, 272 Va. 449 , 634 S.E.2d 310 (2006).

Introduction of prior convictions during guilt phase. - Trial judge erred in admitting defendant's two prior robbery convictions during the guilt phase of the trial because the felony convictions, which had to be proved to invoke § 19.2-297.1 , were not elements of the malicious wounding offense proscribed by § 18.2-51 ; this section unambiguously related to the punishment to be imposed upon conviction. Washington v. Commonwealth, 44 Va. App. 157, 604 S.E.2d 92, 2004 Va. App. LEXIS 503 (2004).

Proof of a defendant's prior predicate convictions is admissible during the guilt phase of the trial. This reading comports with the plain language of § 19.2-295.1 and gives full meaning, force and effect to §§ 19.2-295.1 and 19.2-297.1 . Washington v. Commonwealth, 272 Va. 449 , 634 S.E.2d 310, 2006 Va. LEXIS 73 (2006).

Conviction of non-offense. - Court of appeals applied the ends of justice exception to defendant's conviction for participating in a criminal street gang predicate act of violence because defendant was convicted of a non-offense; because defendant was not convicted of a crime that was a predicate criminal act, he was convicted of a crime that did not exist. Smith v. Virginia, No. 0099-18-1, 2019 Va. App. LEXIS 119 (May 14, 2019).

To meet its burden of proof, the Commonwealth needed to show that defendant had been "before sentenced in the United States;" accordingly, the trial court correctly admitted into evidence copies of orders showing defendant's prior sentences so that the Commonwealth could prove its case in chief. Person v. Commonwealth, No. 1989-92-2 (Ct. of Appeals Apr. 12, 1994) (decided under former § 19.2-297 ).

Robbery offenses not substantially similar. - Based on a comparison of the elements of the crimes of robbery in Maryland and Virginia, an appellant may be convicted in Maryland of behavior that would not have been a crime in Virginia, which compels the conclusion that the offenses are not substantially similar for purposes of § 19.2-297.1 as in Maryland, in cases not involving capital or felony murder, a defendant can be convicted of an afterthought robbery, but Virginia's appellate courts have expressly rejected the notion of robbery as an afterthought crime in the non-capital murder context. Dean v. Commonwealth, 61 Va. App. 209, 734 S.E.2d 673, 2012 Va. App. LEXIS 394 (2012).

Assault with intent to maim. - Defendant's conviction of assault with intent to maim under former Md. Ann. Code art. 27, § 386 substantially conformed to § 18.2-51 and could be used under subsection B of § 19.2-297.1 to establish a violent felony under § 17.1-805 to support defendant's conviction of possession of a firearm after being convicted of a violent felony under subsection A of § 18.2-308.2 as defendant was specifically convicted of an intent to maim, which was proscribed by § 18.2-51 . Dillsworth v. Commonwealth, 62 Va. App. 93, 741 S.E.2d 818, 2013 Va. App. LEXIS 148 (2013).

CIRCUIT COURT OPINIONS

The presumption against bail for a murder charge applied in a bail determination under § 19.2-406 . - The burden on the Commonwealth to show good cause why bail should not have been reduced or defendant released on his own recognizance during the Commonwealth's pretrial appeal did not eliminate the presumption against bail for defendant's murder charge. Commonwealth v. Ludwig, 69 Va. Cir. 460, 2006 Va. Cir. LEXIS 87 (Loudoun County 2006).

§ 19.2-298. Pronouncement of sentence.

After a finding of guilty, sentence shall be pronounced, or decision to suspend the imposition of sentence shall be announced, without unreasonable delay. Pending pronouncement, the court may commit the accused to jail or may continue or alter the bail except that in those cases where the accused is convicted of a murder in the first degree, the court shall commit him to jail and he shall not be allowed bail pending the pronouncement of sentence. Before pronouncing the sentence, the court shall inquire of the accused if he desires to make a statement and if he desires to advance any reason why judgment should not be pronounced against him.

Whenever any person willfully and knowingly fails to surrender or submit to the custody of a sheriff as ordered by a court, any law-enforcement officer, with or without a warrant, may arrest such person anywhere in the Commonwealth. If the arrest is made in the county or city in which the person was ordered to surrender, or in an adjoining county or city, the officer may forthwith return the accused before the proper court. If the arrest is made beyond the foregoing limits, the officer shall proceed according to the provisions of § 19.2-76 , and if such arrest is made without a warrant, the officer shall procure a warrant from the magistrate serving the county or city wherein the arrest was made, charging the accused with contempt of court.

(1975, c. 495; 1976, c. 285; 2009, c. 192.)

The 2009 amendments. - The 2009 amendment by c. 192 added the last paragraph.

Law review. - For article, "The Constitutionality of Harsher Sentences on Retrial in Virginia," see 62 Va. L. Rev. 1337 (1976). For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976).

For an article on bifurcated sentencing in noncapital felony cases in Virginia, see 30 U. Rich. L. Rev. 465 (1996).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 27, 70, 72.

CASE NOTES

Allocution and closing argument distinguished. - Allocution is the defendant's right to speak on his own behalf after the fact finder determines guilt but before the judge pronounces sentence. The defendant's closing argument is not allocution, but is his opportunity to present arguments in mitigation before the fact finder deliberates. Bassett v. Commonwealth, 222 Va. 844 , 284 S.E.2d 844 (1981), cert. denied, 456 U.S. 938, 102 S. Ct. 1996, 72 L. Ed. 2d 458 (1982); 499 U.S. 983, 111 S. Ct. 1639, 113 L. Ed. 2d 734 (1991).

The right of allocution is not constitutionally required. Stamper v. Baskerville, 531 F. Supp. 1122 (E.D. Va. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 123, 75 L. Ed. 2d 466 (1993).

Court rejected petitioner's claim that he was denied the effective assistance of counsel at trial due to his counsel's failure to raise the issue that the trial court violated his rights under the Fifth and Fourteenth Amendments as well as under § 19.2-298 when it failed to allow petitioner to allocute before he was sentenced because there is no constitutional "right" to an allocution before sentencing. The record demonstrated that petitioner was prone to making statements detrimental to his case and he did not allege what he would have said if he had been given the opportunity to address the court or how such a statement would have impacted the sentence he received. Powell v. Warden of the Sussex I State Prison,, 2005 Va. LEXIS 106 (Nov. 8, 2005).

Denial of due process to refuse defendant's request to speak. - When a defendant effectively communicates his desire to the trial judge to speak prior to the imposition of sentence, it is a denial of due process not to grant defendant's request. Stamper v. Baskerville, 531 F. Supp. 1122 (E.D. Va. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 123, 75 L. Ed. 2d 466 (1993).

Sentence in absentia. - Trial court erred in imposing a jail sentence in absentia. Robinson v. Commonwealth, No. 2901-01-1, 2003 Va. App. LEXIS 183 (Ct. of Appeals Apr. 1, 2003).

Effect of acceptance of plea agreement. - Acceptance of defendant's plea agreement, which provided that the trial court would impose sentence on two counts of aggravated sexual battery and would withhold decision on the other two counts, did not divest the trial court of its jurisdiction to adjudicate the charges. Holden v. Commonwealth, 26 Va. App. 403, 494 S.E.2d 892 (1998).

No clear error shown. - At habeas corpus hearing, where the record showed that the defendant, who was represented at trial by experienced criminal lawyers, did not inform the trial judge of his desire to address the court before sentencing and the judge failed to inform him of his right to speak under this section, but counsel was well aware of the omission at trial and chose to forbear objecting for tactical reasons, there was no "clear error." Stamper v. Baskerville, 531 F. Supp. 1122 (E.D. Va. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 123, 75 L. Ed. 2d 466 (1993).

Harmless error. - Trial court's failure to afford defendant a right of allocution under § 19.2-298 was harmless error as defendant's refusal to proffer an allocution statement deprived the trial court of an opportunity to correct its mistake, and precluded the appellate court from determining whether defendant received a fair trial and substantial justice. Montgomery v. Commonwealth, 56 Va. App. 695, 696 S.E.2d 261, 2010 Va. App. LEXIS 324 (2010).

Applied in Stamper v. Commonwealth, 220 Va. 260 , 257 S.E.2d 808 (1979); Lamb v. Commonwealth, 40 Va. App. 52, 577 S.E.2d 530, 2003 Va. App. LEXIS 120 (2003).

CIRCUIT COURT OPINIONS

Defendant's presence at sentencing required. - Court denied defendant's request to be absent from his own sentencing hearing in a capital murder case because, inter alia, in the same memorandum in which defendant sought to waive his presence, he also asked the court to impose less than the maximum sentence provided by law; the Commonwealth would be offering victim impact testimony at sentencing, and the presence of defendant was statutorily required as the victim, upon a motion of the attorney for the Commonwealth, was permitted to testify in the presence of the accused regarding the impact of the offense upon the victim; and allocution was a fundamental right, and a denial of defendant's right to allocution constituted error and undermined a sentence. Commonwealth v. Rams, 96 Va. Cir. 215, 2017 Va. Cir. LEXIS 121 (Prince William County July 31, 2017).

§ 19.2-298.01. Use of discretionary sentencing guidelines.

  1. In all felony cases, other than Class 1 felonies, the court shall (i) have presented to it the appropriate discretionary sentencing guidelines worksheets and (ii) review and consider the suitability of the applicable discretionary sentencing guidelines established pursuant to Chapter 8 (§ 17.1-800 et seq.) of Title 17.1. Before imposing sentence, the court shall state for the record that such review and consideration have been accomplished and shall make the completed worksheets a part of the record of the case and open for inspection. In cases tried by a jury, the jury shall not be presented any information regarding sentencing guidelines.
  2. In any felony case, other than Class 1 felonies, in which the court imposes a sentence which is either greater or less than that indicated by the discretionary sentencing guidelines, the court shall file with the record of the case a written explanation of such departure.
  3. In felony cases, other than Class 1 felonies, tried by a jury and in felony cases tried by the court without a jury upon a plea of not guilty, the court shall direct a probation officer of such court to prepare the discretionary sentencing guidelines worksheets. In felony cases tried upon a plea of guilty, including cases which are the subject of a plea agreement, the court shall direct a probation officer of such court to prepare the discretionary sentencing guidelines worksheets, or, with the concurrence of the accused, the court and the attorney for the Commonwealth, the worksheets shall be prepared by the attorney for the Commonwealth.
  4. Except as provided in subsection E, discretionary sentencing guidelines worksheets prepared pursuant to this section shall be subject to the same distribution as presentence investigation reports prepared pursuant to subsection A of § 19.2-299 .
  5. Following the entry of a final order of conviction and sentence in a felony case, the clerk of the circuit court in which the case was tried shall cause a copy of such order or orders, the original of the discretionary sentencing guidelines worksheets prepared in the case, and a copy of any departure explanation prepared pursuant to subsection B to be forwarded to the Virginia Criminal Sentencing Commission within five days. Similarly, the statement required by §§ 19.2-295 and 19.2-303 and regarding departure from or modification of a sentence fixed by a jury shall be forwarded to the Virginia Criminal Sentencing Commission.
  6. The failure to follow any or all of the provisions of this section or the failure to follow any or all of the provisions of this section in the prescribed manner shall not be reviewable on appeal or the basis of any other post-conviction relief.
  7. The provisions of this section shall apply only to felony cases in which the offense is committed on or after January 1, 1995, and for which there are discretionary sentencing guidelines. For purposes of the discretionary sentencing guidelines only, a person sentenced to a community corrections alternative program pursuant to § 19.2-316.4 shall be deemed to be sentenced to a term of incarceration. (1994, 2nd Sp. Sess., cc. 1, 2; 1996, c. 552; 1997, c. 345; 1998, cc. 200, 353; 1999, c. 286; 2007, c. 259; 2019, c. 618.)

Cross references. - As to inspection of confidential Department of Juvenile Justice records for the purpose of preparing discretionary sentencing guidelines worksheets, see § 16.1-300.

As to punishment for Class 1 felonies, see § 18.2-10 .

The 1999 amendment substituted "8 ( § 17.1-800 et seq.) of Title 17.1" for "11 ( § 17.232 et seq.) of Title 17" in the first sentence in subsection A.

The 2007 amendments. - The 2007 amendment by c. 259 added the second sentence in subsection E.

The 2019 amendments. - The 2019 amendment by c. 618 substituted "community corrections alternative program pursuant to § 19.2-316.4 " for "boot camp incarceration program pursuant to § 19.2-316.1 , a detention center incarceration program pursuant to § 19.2-316.2 or a diversion center incarceration program pursuant to § 19.2-316.3 " in subsection G.

CASE NOTES

Constitutionality. - The legislature acted within its authority when it created the sentencing guidelines and provided that those guidelines would be discretionary and not mandatory; it confirmed the discretionary aspect of the guidelines by leaving their implementation solely within the discretion of the trial courts and by excluding decisions relating to the application of the guidelines from appellate review. This structural determination denies a defendant no substantive or procedural right that he is entitled under the law to enjoy. Jett v. Commonwealth, 34 Va. App. 252, 540 S.E.2d 511, 2001 Va. App. LEXIS 46 (2001).

Applicability. - Defendants' assignment of error that a statutory subsection was unconstitutional when it was applied to bar appellate review of a trial court's sentencing determination was not at issue in the appeal because the assignment of error was irrelevant to defendant's position on appeal as defendant did not contend that the court erred in its application of the sentencing guidelines. Defendant never asserted that the guidelines were incorrectly calculated, or that the trial judge failed to give a reason why the judge departed from the guidelines. Spradling v. Commonwealth, No. 2082-15-4, 2016 Va. App. LEXIS 313 (Ct. of Appeals Nov. 15, 2016).

If a sentence is within the range set by the legislature for the crime with which the defendant was convicted, an appellate court will not interfere with the judgment; thus defendant's life sentence would not be disturbed. Hunt v. Commonwealth, 25 Va. App. 395, 488 S.E.2d 672 (1997).

Trial court did not abuse its discretion in imposing a 43-year sentence against defendant, as said sentence was within the ranges set by the legislature and well below the total statutory maximum for the various felony offenses for which he was convicted. Clark v. Commonwealth, No. 1727-07-3,, 2008 Va. App. LEXIS 234 (Ct. of Appeals May 13, 2008).

References in a victim impact statement and a pre-sentence report relating to defendant's conduct towards a former girlfriend did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000), as defendant entered a no contest plea, which allowed the trial court to consider defendant guilty for sentencing purposes; although the trial court departed from the sentencing guidelines, the guidelines were discretionary under § 19.2-298.01 , and the sentences imposed were within the authorized ranges. Myers v. Commonwealth, No. 0986-07-3, 2008 Va. App. LEXIS 385 (Aug. 12, 2008).

Defendant's 10-year sentence for felony embezzlement under § 18.2-111 was proper as the failure to follow any or all of the sentencing guidelines under § 19.2-298.01 was not reviewable on appeal. Greene v. Commonwealth,, 2008 Va. App. LEXIS 319 (July 15, 2008).

Pursuant to subsection F of § 19.2-298.01 , defendant was not entitled to a new sentencing proceeding after his felony murder conviction was reversed on appeal as the sentencing guidelines were discretionary and were not binding on the circuit court's determination of the appropriate sentence. Woodard v. Commonwealth, 287 Va. 276 , 754 S.E.2d 309, 2014 Va. LEXIS 32 (2014).

The sentencing guidelines are not binding on trial judges, rather, the guidelines are merely a tool to assist trial judges in fixing an appropriate punishment; Virginia trial courts have discretion to fix an appropriate sentence, and failure to follow the guidelines does not deny equal protection of the law. Brooks v. Commonwealth, No. 2540-02-3, 2004 Va. App. LEXIS 29 (Ct. of Appeals Jan. 28, 2004).

Although defendant was granted habeas corpus relief, defendant's claim that he suffered prejudice under Strickland because defendant's conviction of common-law involuntary manslaughter and aggravated involuntary manslaughter subjected defendant to an increased range of punishment under the sentencing guidelines was rejected because the guidelines provided by § 19.2-298.01 were discretionary, rather than mandatory; the trial court was required only to consider the sentencing guidelines before sentencing defendant and to file with the record of the case a written explanation of any departure from the indicated range of punishment. West v. Dir. of the Dep't of Corr., 273 Va. 56 , 639 S.E.2d 190, 2007 Va. LEXIS 17 (2007).

Scientific evidence in presentence report. - In order to admit scientific evidence in the risk assessment portion of the presentence report the Commonwealth had the burden of proving that a penile plethysmograph examination was a reliable scientific method of determining a convicted sex offender's risk to reoffend. Billips v. Commonwealth, 274 Va. 805 , 652 S.E.2d 99, 2007 Va. LEXIS 122 (2007).

Scope of review. - Review of trial court's imposition on three related counts of sentence of 75 years and $800,000.00 fine was limited to whether the sentence fell within the permissible statutory range. Smith v. Commonwealth, 26 Va. App. 620, 496 S.E.2d 117 (1998).

Sentencing court's use of voluntary sentencing guidelines in effect at the time of defendant's sentencing, as opposed to those in effect at the time of his crime, was not an ex post facto violation because the guidelines were mere tools to assist the sentencing court in pronouncing sentence, their application did not rise to the level of an ex post facto violation, and the scope of the appellate court's review was whether the sentence imposed fell within the range prescribed by the legislature. Luttrell v. Commonwealth, 42 Va. App. 461, 592 S.E.2d 752, 2004 Va. App. LEXIS 83 (2004).

When defendant said the sex offender risk assessment instrument incorporated into the sentence imposed on him was unreliable in predicting recidivism, this issue was not reviewable on appeal under subsection F of § 19.2-298.01 , so the trial court's consideration of the instrument as a factor in applying discretionary sentencing guidelines was no basis for review of defendant's sentence. Luttrell v. Commonwealth, 42 Va. App. 461, 592 S.E.2d 752, 2004 Va. App. LEXIS 83 (2004).

Defendant's sentence, which departed from the sentencing guidelines, was affirmed as: (1) subsection F of § 19.2-298.01 prohibited appellate review of application of the sentencing guidelines; (2) the sentences were not beyond the statutory maximum on either charge; (3) defendant waived his claims that the trial court violated his constitutional right to a fair trial and deprived him of his right to liberty without due process under the Fifth, Sixth, and Fourteenth Amendments as he objected only to the trial court's failure to impose the discretionary sentencing guidelines; and (4) there were no grounds to invoke the good cause or ends of justice exceptions to Rule 5A:18. Burpo v. Commonwealth, No. 2831-02-2, 2004 Va. App. LEXIS 123 (Ct. of Appeals Mar. 23, 2004).

Because defendant's sentence of 27 months imprisonment for drunk driving and for driving with a suspended license fell below the midpoint of the range prescribed by § 18.2-266 and subdivision C 1 of § 18.2-270 , it was consonant with the Assimilative Crimes Act's "like punishment" requirement, and even if the district court should have more adequately considered Virginia's sentencing guidelines, those guidelines were entirely discretionary, and deviations from them were not reviewable on appeal. United States v. Finley, 531 F.3d 288, 2008 U.S. App. LEXIS 13762 (4th Cir. 2008).

Defendant's sentence for possession of cocaine with intent to distribute was not subject to appellate review because it was within the applicable sentencing range of 5 to 40 years, and § 19.2-298.01 provided that a failure to sentence consistent with the discretionary sentencing guideline recommendation was not reviewable on appeal. Tunstall v. Commonwealth,, 2009 Va. App. LEXIS 65 (Feb. 10, 2009).

Defendant was unable to object to sentences imposed on certain felony convictions because pursuant to subsection F of § 19.2-298.01 , the failure to follow certain sentencing provisions in the prescribed manner did not provide any basis for relief. Melendez v. Commonwealth,, 2010 Va. App. LEXIS 171 (May 4, 2010).

Defendant's claim that the trial court erred by finding sufficient evidence of a firearm when calculating his sentence under the sentencing guidelines was not reviewable on appeal where he did not challenge the validity of the trial court's sentence but only its calculation of the guidelines, under this section implementation of the guidelines was left to the discretion of the trial court, and altering the suggested range of sentencing could not afford relief for consideration of a fact that was part of the uncontested proffered observations of the victim. Holley v. Commonwealth, No. 0998-15-4, 2016 Va. App. LEXIS 246 (Ct. of Appeals Sept. 20, 2016).

Appellant's sole assignment of error, i.e., whether the trial court's sentencing guidelines calculation properly interpreted his psychosexual evaluation as not constituting prior mental health treatment, was non-reviewable because under subsection F of § 19.2-298.01 , the appellate court had no authority to review a trial court's sentencing guideline calculations. Stacy v. Commonwealth, No. 0414-19-1, 2019 Va. App. LEXIS 314 (Dec. 27, 2019).

No abuse of discretion. - Defendant did not show an abuse of discretion in sentencing for his felony convictions because the sentences were within the statutory maximum. Melendez v. Commonwealth,, 2010 Va. App. LEXIS 171 (May 4, 2010).

Trial court did not abuse its discretion, as the record failed to show that the trial court based its upward departure from the sentencing guidelines upon defendant being from Baltimore, much less his race. Instead, the trial court noted that the reason it departed upwards from the recommended sentencing guideline range was the "heroin epidemic." Blackwell v. Commonwealth, No. 1986-17-4, 2018 Va. App. LEXIS 320 (Nov. 20, 2018).

Sentence was proper. - Defendant, who was convicted of possession of heroin and cocaine with intent to distribute and possession with intent to distribute a controlled substance within 1,000 feet of a school, was properly sentenced because the sentences were within the statutory sentencing range. Murphy v. Commonwealth,, 2010 Va. App. LEXIS 103 (Mar. 23, 2010).

Sentence for taking indecent liberties with a minor was affirmed where, before passing sentence, the trial court emphasized the seriousness of the offense committed, addressed two of the arguments made by the defense in mitigation of the offense, explained that it did not feel either of those claims undermined the seriousness of the criminal acts committed against the victim, and gave reasons for exceeding the sentencing guidelines: "gravity of the offense" and "failure to truly accept responsibility"; contrary to defendant's contention, the record did not reflect that the trial court refused to consider any of the mitigating facts or circumstances presented on his behalf. The sentence imposed by the trial court was within the range set by the legislature. Harmon v. Commonwealth, No. 0694-11-4,, 2012 Va. App. LEXIS 107 (Ct. of Appeals Apr. 10, 2012).

Applied in Runyon v. Commonwealth, 29 Va. App. 573, 513 S.E.2d 872 (1999).

CIRCUIT COURT OPINIONS

Sentencing guidelines not binding on trial judges. - A trial court properly departed from the discretionary sentencing guidelines by filing a written explanation for its departure, citing the violent nature of the crime committed, coupled with defendant's extensive criminal record, and defendant was sentenced within the statutory range for grand larceny from the person, and below the mandatory minimum sentence imposed for a conviction of robbery. Scott v. Warden, Coffeewood Corr. Ctr.,, 2004 Va. Cir. LEXIS 27 (Fairfax County Mar. 1, 2004).

Effective for felony offenses committed after January 1, 1995, sentencing guidelines are to be prepared and must be considered by the judge at sentencing. These "guidelines" are precisely that and impose no mandatory sentencing duty on the court. Commonwealth v. Boone, 73 Va. Cir. 277, 2007 Va. Cir. LEXIS 232 (Portsmouth Apr. 26, 2007).

Rejection of plea agreement. - Defendant's written plea agreement to a suspended $100 fine as the ultimate sentence for possession with intent to sell, give or distribute 50 pounds of marijuana and 400 cartridges of hashish oil was rejected because defendant's offenses were still considered serious drug charges in Virginia; neither the Commonwealth's attorney nor defense counsel advanced any argument as to how a suspended $100 fine for the serious charges of possession with intent to distribute would deter others from like criminality; and the sentencing guidelines for defendant called for a midrange of active incarceration of one year and seven months, with at least the remainder of the minimum statutory sentence of five years being suspended with a period of probation. Commonwealth v. Hartley,, 2020 Va. Cir. LEXIS 203 (Arlington County Sept. 8, 2020).

Post-trial relief. - Failure of a court to follow sentencing guidelines was not a basis for post-trial relief; a petition for a writ of habeas corpus that alleged, inter alia, that the petitioner's counsel did not know the sentencing guidelines, was denied. Beddard v. Mahon, 58 Va. Cir. 111, 2001 Va. Cir. LEXIS 398 (Fauquier County 2001).

§ 19.2-298.02. Deferred disposition in a criminal case.

  1. A trial court presiding in a criminal case may, with the agreement of the defendant and the Commonwealth, after any plea or trial, with or without a determination, finding, or pronouncement of guilt, and notwithstanding the entry of a conviction order, upon consideration of the facts and circumstances of the case, including (i) mitigating factors relating to the defendant or the offense, (ii) the request of the victim, or (iii) any other appropriate factors, defer proceedings, defer entry of a conviction order, if none, or defer entry of a final order, and continue the case for final disposition, on such reasonable terms and conditions as may be agreed upon by the parties and placed on the record, or if there is no agreement, as may be imposed by the court. Final disposition may include (a) conviction of the original charge, (b) conviction of an alternative charge, or (c) dismissal of the proceedings.
  2. Upon violation of a term or condition, the court may enter an adjudication of guilt, if not already entered, and make any final disposition of the case provided by subsection A. Upon fulfillment of the terms and conditions, the court shall adjudicate the matter consistent with the agreement of the parties or, if none, by conviction of an alternative charge or dismissal of the case.
  3. By consenting to and receiving a deferral of proceedings or a deferral of entry of a final order of guilt and fulfilling the conditions as specified by the court as provided by subsection A, the defendant waives his right to appeal such entry of a final order of guilt.

    Prior to granting a deferral of proceedings, a deferral of entry of a conviction order, if none, or a deferral of a final order, the court shall notify the defendant that he would be waiving his rights to appeal any final order of guilt if such deferral is granted.

  4. Upon agreement of all parties, a charge that is dismissed pursuant to this section may be considered as otherwise dismissed for purposes of expungement of police and court records in accordance with § 19.2-392.2 , and such agreement of all parties and expungement eligibility shall be indicated in the final disposition order. (2020, Sp. Sess. I, cc. 20, 21.)

Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§§ 19.2-298.1 through 19.2-298.4.

Repealed by Acts 2003, c. 584.

Cross references. - For current registration provisions, see the Sex Offender and Crimes Against Minors Registry Act, §§ 9.1-900 et seq.

§ 19.2-299. Investigations and reports by probation officers in certain cases.

  1. 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, including any diagnoses of an intellectual or developmental disability as defined in § 37.2-100 , 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.
  2. 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 .
  3. 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.
  4. 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 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 . (Code 1950, § 53-278.1; 1952, c. 233; 1972, c. 516; 1974, c. 121; 1975, cc. 371, 495; 1979, c. 286; 1980, c. 733; 1981, c. 263; 1983, c. 541; 1987, c. 676; 1989, c. 169; 1991, cc. 43, 229; 1992, c. 77; 1993, cc. 466, 492; 1994, 2nd Sp. Sess., cc. 1, 2; 1995, cc. 687, 778; 1997, c. 691; 1998, cc. 783, 840; 1999, cc. 891, 903, 913; 2001, c. 647; 2003, cc. 146, 613; 2004, cc. 308, 459, 819; 2005, cc. 188, 219, 631; 2006, cc. 99, 863, 914, 916; 2010, c. 223; 2017, c. 45; 2019, c. 107; 2021, Sp. Sess. I, cc. 344, 345, 523, 540.)

Cross references. - As to inspection of confidential Department of Juvenile Justice records for the purpose of preparing presentence reports, see § 16.1-300.

Editor's note. - The above section is former § 53-278.1 as amended by Acts 1975, c. 371. Pursuant to Acts 1975, c. 593, cl. 2, it has been substituted for § 19.2-299 as enacted by Acts 1975, c. 495.

Acts 1998, cc. 783 and 840, cl. 2, provide: "That the provisions of this act amending or adding §§ 16.1-273, 18.2-251.01 , 18.2-252 , 19.2-299 and 19.2-299.2 , except for subsection A (ii) of § 19.2-299.2 , shall become effective July 1, 1999."

Acts 2005, c. 631, cl. 3, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $43,177 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2006, c. 914, cl. 5, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $2,419,496 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1998 amendments. - The 1998 amendments by cc. 783 and 840, effective July 1, 1999, are identical, and in subsection A, in the first sentence, deleted "may, or on the motion of the defendant" following "such charge, the court" and added subsection D.

The 1999 amendments. - The 1999 amendments by cc. 891 and 913 are identical, and in subsection A, in the first sentence, substituted "(i)" for "upon a felony charge or" and substituted "may, or on motion of the defendant shall, or (ii) upon a felony charge, the court may when there is a plea agreement between the defendant and the Commonwealth and shall when the defendant pleads guilty without a plea agreement or is found guilty by the court after a plea of not guilty" for "shall," and in subsection D, substituted "January 1, 2000" for "July 1, 1999," and deleted "and assessment" following "abuse screening."

The 1999 amendment by c. 903, in subsection A, substituted "the court may when there is a plea agreement between the defendant and the Commonwealth and shall when the defendant pleads guilty without a plea agreement or is found guilty by the court after a plea of not guilty" for "the court shall, before imposing sentence" in the first sentence, and in the fifth sentence, deleted "and" following "United States," and deleted "shall be made available" following "probation and parole services."

The 2001 amendments. - The 2001 amendment by c. 647, in subsection A, substituted " § 18.2-57 " for " §§ 18.2-57 , 18.2-57.1 ," deleted "maiming or" following " § 18.2-67.5 or," deleted " § 18.2-51.4 or" preceding " § 18.2-266 ," inserted "not set forth in subdivision (iii) below," and inserted "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 §§ 18.2-61 , 18.2-63 , 18.2-64.1 , 18.2-64.2 , 18.2-67.1 , 18.2-67.2 , 18.2-67.2:1 , 18.2-67.3 , 18.2-67.4:1 , 18.2-67.5:1 , 18.2-355 , 18.2-356 , 18.2-357 , 18.2-358 , 18.2-361 , 18.2-362 , 18.2-366 , 18.2-367 , 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 ."

The 2003 amendments. - The 2003 amendment by c. 146, in the fifth sentence of subsection A, deleted "sealed upon the entry of the sentencing order by the court and" following "shall be," and inserted "and shall be sealed upon final order by the court" following "court order."

The 2003 amendment by c. 613 inserted "Unless waived by the court and the defendant and the attorney for the Commonwealth" at the beginning of subsection A.

The 2004 amendments. - The 2004 amendments by cc. 308 and 819 are identical, and in subsection A, inserted "18.2-46.2, 18.2-46.3 " and "any information regarding the accused's participation or membership in a criminal street gang as defined in § 18.2-46.1 " in the first sentence and added the last sentence.

The 2004 amendment by c. 459, deleted "18.2-358" following "18.2-357" and "18.2-367" following "18.2-366" in subsection A.

The 2005 amendments. - The 2005 amendments by cc. 188 and 219 are virtually identical, and in subsection A, added the present third sentence, inserted "provided with a copy of the presentence report by his counsel or" in the present fourth sentence, and made minor stylistic changes.

The 2005 amendment by c. 631 deleted "18.2-67.2:1" after "18.2-67.2" and made minor stylistic changes.

The 2006 amendments. - The 2006 amendment by c. 99 inserted the second and third sentences in subsection A.

The 2006 amendments by cc. 863 and 914 are identical, and inserted "18.2-48" in clause (iii) of the first sentence in subsection A.

The 2006 amendment by c. 916, in the first sentence of subsection A, deleted the phrase "Unless waived by the court and the defendant and the attorney for the Commonwealth," at the beginning of the sentence and reinserted the phrase in clause (i), and in clause (iii), inserted "18.2-48, clause (2) or (3) of 18.2-49 " and made a related change.

The 2010 amendments. - The 2010 amendment by c. 223, in the tenth sentence in subsection A, substituted "Subject to the limitations set forth in § 37.2-901 , any report" for "Any report," added the clause (i) designator, added clause (ii) and made a related change.

The 2017 amendments. - The 2017 amendment by c. 45 inserted "unless waived by the defendant and the attorney for the Commonwealth" and twice inserted "or nolo contendere" in clause (ii) of subsection A.

The 2019 amendments. - The 2019 amendment by c. 107 inserted "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" in subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "Class 1 felony" for "capital offense" in subsection D.

The 2021 amendments by Sp. Sess. I, cc. 523 and 540, effective July 1, 2021, are identical, and inserted "including any diagnoses of an intellectual or developmental disability as defined in § 37.2-100 " in the second sentence of subsection A.

Law review. - For survey of Virginia law on criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975). For article, "The Constitutionality of Harsher Sentences on Retrial in Virginia," see 62 Va. L. Rev. 1337 (1976). For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976). For comment on sentencing in criminal cases, see 13 U. Rich. L. Rev. 899 (1979).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 70, 78.

CASE NOTES

Section is procedural statute and does not violate constitutional prohibition against ex post facto laws. McClain v. Commonwealth, 189 Va. 847 , 55 S.E.2d 49 (1949).

This section is a procedural statute. Smyth v. White, 195 Va. 169 , 77 S.E.2d 454 (1953).

Its provisions may be waived with the consent of the accused, the attorney for the Commonwealth, and the court. Smyth v. White, 195 Va. 169 , 77 S.E.2d 454 (1953).

This section sets forth a permissible practice only, which is not required unless requested by the defendant. Hawks v. Peyton, 288 F. Supp. 94 (W.D. Va. 1968).

And noncompliance cannot be reached by habeas corpus. - The failure to comply with the statute cannot be reached by writ of habeas corpus. Smyth v. White, 195 Va. 169 , 77 S.E.2d 454 (1953); Hawks v. Peyton, 288 F. Supp. 94 (W.D. Va. 1968).

Allegation that no presentence report was made is not grounds for the grant of a writ of habeas corpus. Hawks v. Peyton, 288 F. Supp. 94 (W.D. Va. 1968).

"History of the accused" includes, but is not restricted to, the defendant's history of criminal convictions. Thomas v. Commonwealth, 18 Va. App. 656, 446 S.E.2d 469 (1994).

Criminal history in presentence report. - Although defendant's prior perjury conviction was improperly admitted since defendant did not testify and defendant's credibility was not at issue, the error was harmless under § 8.01-678 since defendant's criminal history was properly before the trial court during sentencing as part of a presentence report under § 19.2-299 . Pierce v. Commonwealth, 50 Va. App. 609, 652 S.E.2d 785, 2007 Va. App. LEXIS 419 (2007).

Pre-sentence report properly recounted the history of defendant's relationship to a former girlfriend under subsection A of § 19.2-299 , even though the report included unadjudicated criminal acts committed against the girlfriend as the goal of defendant's intrusion into the home of the girlfriend's sibling was to force the girlfriend to come to that home and bring their child so that defendant could "blow her head off" with a shotgun defendant possessed. Myers v. Commonwealth, No. 0986-07-3, 2008 Va. App. LEXIS 385 (Aug. 12, 2008).

Psychological report. - Nothing in the plain language of subsection A of § 19.2-299 specifically requires a probation officer to investigate a defendant's current physiology or psychology. Indeed, the statute expressly limits the subject of the probation officer's investigation and report to the history of the accused. When read in context, it is clear that the phrase all other relevant facts is used to describe additional historical information that may be relevant to the probation officer's investigation and report. Johnson v. Commonwealth, 292 Va. 772 , 793 S.E.2d 326, 2016 Va. LEXIS 186 (2016), cert. denied, 2018 U.S. LEXIS 519 (U.S. 2018).

Defendant's reliance on subsection A of § 19.2-299 to require the appointment of a neuropsychologist was rejected as nothing in the statute's plain language specifically required a probation officer to investigate a defendant's current physiology or psychology. Johnson v. Commonwealth, 292 Va. 772 , 793 S.E.2d 326, 2016 Va. LEXIS 186 (2016), cert. denied, 2018 U.S. LEXIS 519 (U.S. 2018).

Review of presentence report of co-defendant in related case. - Defendant was not entitled to have defendant's sentence set aside because the trial court's sua sponte review of the presentence report of the defendant in a related case was not improper pursuant to § 19.2-299 , which governed presentence reports, in that the statute provided that presentence reports were available to courts and did not limit courts to a review of presentence reports in particular cases. Stewart v. Commonwealth, No. 2453-11-4, 2012 Va. App. LEXIS 327 (Oct. 16, 2012).

Judge retains discretionary sentencing authority. - This section does not affect a transfer of discretionary authority from the judge of the trial court to a probation officer of the court. Judges are not bound to the conclusions presented in probation officers' reports. Bassett v. Commonwealth, 13 Va. App. 580, 414 S.E.2d 419 (1992).

A defendant convicted of a felony has an absolute right to have a presentence investigation and report prepared upon his request and submitted to the court prior to the pronouncement of sentence. Duncan v. Commonwealth, 2 Va. App. 342, 343 S.E.2d 392 (1986).

Defendant waives right against self-incrimination by pleading guilty. - By pleading guilty, a defendant waives his Fifth Amendment right against self-incrimination as to matters germane to the offense for which he has pled guilty and is to be sentenced. Edmundson v. Commonwealth, 13 Va. App. 476, 412 S.E.2d 727 (1992).

The waiver of the right against compulsory self-incrimination is not unlimited; it does not allow the law-enforcement authorities to inquire about unrelated matters which have no bearing upon the disposition of the case before the trial court. Edmundson v. Commonwealth, 13 Va. App. 476, 412 S.E.2d 727 (1992).

Inquiry held within scope of waiver of right against self-incrimination. - Where the trial court was considering a presentence report in order to determine an appropriate sentence and disposition, and the defendant had given conflicting reports about the extent of his drug use or habit, the inquiry into the conflicting reports was relevant to the case for which he had pled guilty and within the scope of the waiver of his right against compulsory self-incrimination. Edmundson v. Commonwealth, 13 Va. App. 476, 412 S.E.2d 727 (1992).

The effect of the 1975 amendment to former § 53-278.1 (transferred hereto) was such that, when an accused is found guilty of any felony by either the court or a jury, the court may, and upon defendant's motion shall, direct an investigation by a probation officer and consider his report before imposing sentence. Upon defendant's motion, he is entitled to this presentence procedure as a matter of right. Smith v. Commonwealth, 217 Va. 329 , 228 S.E.2d 557 (1976).

Impact statement may be source for restitution amount. - The legislature intended that the victim impact statement be used by trial judge to determine the amount of restitution. Alger v. Commonwealth, 19 Va. App. 252, 450 S.E.2d 765 (1994).

Time of reference to probation officer. - The time before sentence when the case is referred to the probation officer for investigation and report is not important. What is important is that the accused shall be adjudged guilty only on evidence admissible on that issue, and before the court hears the probation officer's report. McClain v. Commonwealth, 189 Va. 847 , 55 S.E.2d 49 (1949).

This section does not contemplate that the probation officer recommend what sentence should be imposed. Linton v. Commonwealth, 192 Va. 437 , 65 S.E.2d 534 (1951).

Use of voluntary sentencing guidelines as "tool" does not violate section. - When the sentence imposed by the trial court is within the statutory range established by the legislature, use of judicially implemented voluntary sentencing guidelines as a "tool" to assist the court in determining the appropriate sentence does not violate this section. Hudson v. Commonwealth, 10 Va. App. 158, 390 S.E.2d 509 (1990).

Failure to afford opportunity of cross-examining officer where his appointment not required. - Where a report of a probation officer was not required but the court appointed such officer at defendants' counsel's request failure to afford defendant's counsel opportunity to cross-examine the probation officer and, after scrutiny of the report, to present any additional facts bearing on the matter was reversible error. Having availed itself of the provisions of the statute, the court should have been governed by its terms. Linton v. Commonwealth, 192 Va. 437 , 65 S.E.2d 534 (1951).

Credibility of police officer. - To the extent that defendant contended that a police officer's reliability was suspect because he had an adversarial relationship with defendant, a drug dealer, these arguments went to the weight of the evidence, not to its admissibility. Pursuant to subsection A of § 19.2-299 , defendant had a right to cross-examine the investigating officer as to any matter contained in the presentence report. Blunt v. Commonwealth, 62 Va. App. 1, 741 S.E.2d 56, 2013 Va. App. LEXIS 130 (2013).

Hearsay evidence may be considered in sentencing phase. - During the sentencing phase of a capital murder case, the court may consider hearsay evidence, favorable or unfavorable to the defendant, contained in a postsentence report. This is implicit from the language of § 19.2-264.5 and this section, which permit a probation officer "to thoroughly investigate and report upon the history of the accused and any other and all other relevant facts." O'Dell v. Commonwealth, 234 Va. 672 , 364 S.E.2d 491, cert. denied, 488 U.S. 871, 109 S. Ct. 186, 102 L. Ed. 2d 154 (1988).

Testimony regarding drug associations at sentencing. - Defendant was not deprived of due process at sentencing where Commonwealth elicited testimony regarding charges that were nolle prosequied, because there was no evidence that the Commonwealth agreed not to elicit testimony regarding defendant's drug associations at sentencing, and the testimony regarding such "associations" was admissible under subsection C of § 19.2-299 . Sizer v. Commonwealth,, 2010 Va. App. LEXIS 337 (Aug. 17, 2010).

Admission of unadjudicated criminal activity during sentencing proper. - Trial court did not abuse its discretion by admitting testimony concerning defendant's unadjudicated criminal activity during sentencing because the record supported the conclusion that the testimony was sufficiently reliable where a witness testified as to defendant's sexual assault of her that took place in the early 1980's, a second witness testified about defendant's sexual assault of her daughter in 2004, defendant's letters to the second witness and her daughter were circumstantial evidence establishing the prior offenses, there were similarities between the offense described by the second witness and defendant's other offenses, and the second witness reported the matter to the police. Merchant v. Commonwealth, No. 2267-14-1, 2016 Va. App. LEXIS 167 (Ct. of Appeals May 17, 2016).

Error in denying motion for presentencing report not cured. - The proceedings conducted in reliance upon the second paragraph of former § 53-272 prior to the 1976 amendment did not cure the original error in denying defendant's motion for a presentencing probation report pursuant to former § 53-278.1, predecessor to this section. Smith v. Commonwealth, 217 Va. 329 , 228 S.E.2d 557 (1976).

Construction with appellate rules. - Narrative portion of presentence report was not a proper substitute for properly designated portions of transcript or statement of facts, or copies of orders, as required by appellate rule. Jones v. Commonwealth, No. 1128-98-4 (Ct. of Appeals Mar. 21, 2000).

Sentencing judge's right to read report. - Concomitant with the defendant's right to the presentence report is the right to have the sentencing judge read the report before passing sentence. Harley v. Commonwealth, No. 1717-95-2 (Ct. of Appeals July 23, 1996).

Scientific evidence in presentence report. - In order to admit scientific evidence in the risk assessment portion of the presentence report the Commonwealth had the burden of proving that a penile plethysmograph examination was a reliable scientific method of determining a convicted sex offender's risk to reoffend. Billips v. Commonwealth, 274 Va. 805 , 652 S.E.2d 99, 2007 Va. LEXIS 122 (2007).

Use of information from confidential informants permitted. - Inclusion of information under this section from confidential informants does not violate the Fifth, Sixth, and Fourteenth Amendments. Furthermore, this section is not void for vagueness and does not require the disclosure of the identities of the informants used to prepare a defendant's presentence report. Moses v. Commonwealth, 27 Va. App. 293, 498 S.E.2d 451 (1998).

Hearsay evidence introduced by a police officer at sentencing met the requirement that the information from the non-testifying informant, upon whom the officer relied in his testimony, bear some indicia of reliability as the officer testified that the information he received from the informant was consistent with what he saw on the video and heard from the technician who monitored the conversations on the audio feed. Blunt v. Commonwealth, 62 Va. App. 1, 741 S.E.2d 56, 2013 Va. App. LEXIS 130 (2013).

Applied in Knight v. Johnson, 699 F.2d 162 (4th Cir. 1983); Crank v. Rogers, 1 Va. App. 491, 339 S.E.2d 909 (1986); Wheeler v. Gilmore, 998 F. Supp. 666 (E.D. Va. 1998); Harvey v. Commonwealth, 297 Va. 403 , 829 S.E.2d 534, 2019 Va. LEXIS 106 (2019).

CIRCUIT COURT OPINIONS

Probation officer recommendations. - Statute is no longer limited to the gathering of extenuating circumstances, and a probation officer is to report all other relevant facts so a court may determine the appropriate sentence, and the restriction on sentencing recommendations, to the extent it ever existed in the past, is no longer applicable; the language in the statute, "all other relevant facts," encompasses sentencing recommendations from probation officers comprising just another fact the court may consider in its sentencing determination. Commonwealth v. Villagran, 96 Va. Cir. 302, 2017 Va. Cir. LEXIS 154 (Fairfax County Sept. 1, 2017).

Court denied defendant's motion to strike the probation officer's recommendation of active incarceration, notwithstanding the fact that the guidelines recommended probation, as the statute permitted such recommendations. Commonwealth v. Villagran, 96 Va. Cir. 302, 2017 Va. Cir. LEXIS 154 (Fairfax County Sept. 1, 2017).

OPINIONS OF THE ATTORNEY GENERAL

Provision of report to defendant not authorized. - It is a violation of this section for a defense attorney to copy a defendant's presentence report or to provide the original or a copy of such report to the defendant. See opinion of Attorney General to The Honorable Thomas B. Hoover, Judge, Ninth Judicial Circuit, 03-009 (3/31/03)(But see 2005 amendments to this section).

§ 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, include a Victim Impact Statement.

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.).

(1983, c. 541; 1984, c. 282; 1987, c. 676; 1989, c. 374; 1993, cc. 436, 569; 1995, cc. 687, 720; 1996, c. 398; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to use of victim impact statements for Commitment Review Committee assessments of prisoners eligible for commitment as sexually violent predators, see § 37.2-904 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and rewrote the first paragraph, which formerly read: "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" and deleted "of this title" from the end of the last paragraph.

Law review. - For a note, "Due Process on the Uncharted Seas of Irrelevance: Limiting the Presence of Victim Impact Evidence at Capital Sentencing After Payne v. Tennessee ," see 55 Wash. & Lee L. Rev. 295 (1998).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 70, 80.

CASE NOTES

Relevance of victim impact testimony in capital case. - Victim impact testimony is relevant to punishment in a capital murder prosecution in Virginia. The trial court did not err in admitting the testimony in the instant case. Weeks v. Commonwealth, 248 Va. 460 , 450 S.E.2d 379 (1994), cert. denied, 516 U.S. 829, 116 S. Ct. 100, 133 L. Ed. 2d 55 (1995).

Under Virginia's modern, bifurcated capital procedure, victim impact evidence is probative, for example, of the depravity of mind component of the vileness predicate, which the jury in the instant case found as a basis for imposing the death penalty. Weeks v. Commonwealth, 248 Va. 460 , 450 S.E.2d 379 (1994), cert. denied, 516 U.S. 829, 116 S. Ct. 100, 133 L. Ed. 2d 55 (1995).

Trial court did not err in refusing to allow defendant to call the father of one of the decedents as a witness to testify about remarks attributed to him by the news media to the effect that as a Christian he could not hope that jurors imposed the death penalty because the testimony did not fall within the scope of victim impact testimony authorized under § 19.2-299.1 and witness' opinion on what the jury should decide as the appropriate sentence in a given case was not admissible. Juniper v. Commonwealth, 271 Va. 362 , 626 S.E.2d 383, 2006 Va. LEXIS 29 (2006), habeas corpus proceeding, 2010 Va. Cir. LEXIS 201 (2010); habeas corpus dismissed, 281 Va. 277 , 707 S.E.2d 290, 2011 Va. LEXIS 61 (2011).

Victim's statement admissible. - This section and § 19.2-295.3 , did not compel the trial court to exclude testimony from the victim concerning the circumstances of the crime when that testimony assisted the court as it considered what sentence to impose and the testimony did not exceed the scope of permissible testimony. Harvey v. Commonwealth, 65 Va. App. 280, 777 S.E.2d 231, 2015 Va. App. LEXIS 283 (2015).

Victim impact statement did not place victim's character at issue. - Trial court did not abuse its discretion by finding that the victim impact statement did not place the victim's character at issue, and therefore the trial court properly excluded the character evidence defendant sought to introduce, because the victim's widow's statement merely referred to her personal relationship with the victim and did not reference his reputation in the community. Meekins v. Commonwealth, 72 Va. App. 61, 841 S.E.2d 365, 2020 Va. App. LEXIS 120 (2020).

The statutes do not limit evidence of victim impact to that received from the victim's family members; rather, the circumstances of the individual case will dictate what evidence will be necessary and relevant, and from what sources it may be drawn. Beck v. Commonwealth, 253 Va. 373 , 484 S.E.2d 898, cert. denied, 522 U.S. 1018, 118 S. Ct. 608, 139 L. Ed. 2d 495 (1997).

Former girlfriend's psychological harm was the "direct result" of the felonies committed by defendant during a home intrusion, and the victim impact statement of the girlfriend was properly included in the pre-sentence report under subsection B of § 19.2-11.01 and § 19.2-299.1 as the goal of the home intrusion of the girlfriend's sibling was to force the girlfriend to come to that home and bring their child so that defendant could "blow her head off" with a shotgun defendant possessed; the girlfriend clearly suffered "psychological" harm as she "was scared to death" and "was waiting in horror to hear what happened" to her sibling and the sibling's family. Myers v. Commonwealth, No. 0986-07-3, 2008 Va. App. LEXIS 385 (Aug. 12, 2008).

Restitution may be ordered for insurer. - The statutes declare a legislative intent to provide restitution for the victims of crimes, including corporations. One cannot conclude that the legislature intended by the most recent legislation to limit the power of the courts to order restitution. Therefore, it was proper for the court in the instant case to order burglar to pay restitution to insurance carrier of victims. Alger v. Commonwealth, 19 Va. App. 252, 450 S.E.2d 765 (1994).

Objection failed to preserve appellate issue. - Defendant objected to officers' testimony at the penalty phase of his trial based on relevance and prejudice, but the trial court was not presented with the issue of whether the officers were "victims" under the victim impact statute, § 19.2-299.1 , and, thus, defendant's objection lacked the requisite specificity to preserve his appellate argument that the officers' testimony was inadmissible under that statute. Macklin v. Commonwealth,, 2007 Va. App. LEXIS 269 (June 26, 2007).

Admission of victim impact evidence proper. - Trial court did not abuse its discretion at defendant's sentencing proceeding by admitting into evidence a limited number of photographs of the victim during the victim impact testimony of the victim's spouse, who testified extensively as to the psychological and emotional impacts of the victim's death on the spouse and the spouse's children. The photographs were relevant to psychological injuries, familial relationships, personal welfare, and changes in the lifestyle of the victim's family members as a result of the offenses. Moyd v. Commonwealth, No. 0317-12-1, 2012 Va. App. LEXIS 425 (Aug. 6, 2012).

Victim's testimony about defendant's prior threats was admissible at sentencing because, inter alia, the victim had a right to (1) identify the extent of the victim's psychological injury and the victim's victim impact statement linked defendant's prior crimes to defendant's current crime's psychological impact, and (2) testify to any change in the victim's personal welfare, lifestyle or familial relationships due to the crime. Baldwin v. Commonwealth, 69 Va. App. 75, 815 S.E.2d 809, 2018 Va. App. LEXIS 191 (2018).

CIRCUIT COURT OPINIONS

Victim impact statement considered. - Victims were pillars of the community and their murders, as defendant intended, sent shockwaves of terror and grief throughout the community, plus the victims were discovered in their own homes by their own family members; the impact on the family members was permanent and catastrophic, as was clear from the victim impact statements, and no mitigating circumstances were found, and thus, in part, defendant was sentenced to life in prison for the murder counts, and all sentences were to be served consecutively. Commonwealth v. Severance, 91 Va. Cir. 23, 2016 Va. Cir. LEXIS 11 (Fairfax County Jan. 21, 2016), aff'd, 67 Va. App. 629, 799 S.E.2d 329, 2017 Va. App. LEXIS 129 (2017).

§ 19.2-299.2. Alcohol and substance abuse screening and assessment for designated Class 1 misdemeanor convictions.

  1. When a person is convicted of any offense committed on or after January 1, 2000, under Article 1 (§ 18.2-247 et seq.) or Article 1.1 (§ 18.2-265.1 et seq.) of Chapter 7 of Title 18.2, and such offense is punishable as a Class 1 misdemeanor, or when a person is convicted for a second offense of petit larceny, the court shall order the person to undergo a substance abuse screening as part of the sentence if the defendant's sentence includes probation supervision by a local community-based probation services agency established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1 or participation in a local alcohol safety action program. Whenever a court requires a person to enter into and successfully complete an alcohol safety action program pursuant to § 18.2-271.1 for a second offense of the type described therein, or orders an evaluation of a person to be conducted by an alcohol safety action program pursuant to any provision of § 46.2-391 , the alcohol safety action program shall assess such person's degree of alcohol abuse before determining the appropriate level of treatment to be provided or to be recommended for such person being evaluated pursuant to § 46.2-391 . The court may order such screening upon conviction as part of the sentence of any other Class 1 misdemeanor if the defendant's sentence includes probation supervision by a local community-based probation services agency established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1, participation in a local alcohol safety action program or any other sanction and the court has reason to believe the defendant has a substance abuse or dependence problem.
  2. A substance abuse screening ordered pursuant to this section shall be conducted by the local alcohol safety action program. When an offender is ordered to enter local community-based probation services established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1, rather than the local alcohol safety action program, the local community-based probation services agency shall be responsible for the screening. However, if a local community-based probation services agency has not been established for the locality, the local alcohol safety action program shall conduct the screening as part of the sentence.
  3. If the screening indicates that the person has a substance abuse or dependence problem, an assessment shall be completed and if the assessment confirms that the person has a substance abuse or dependence problem, as a condition of a suspended sentence and probation, the court shall order the person to complete the substance abuse education and intervention component, or both as appropriate, of the local alcohol safety action program or such other agency providing treatment programs or services, if available, such as in the opinion of the court would be best suited to the needs of the person. If the referral is to the local alcohol safety action program, the program may charge a fee for the education and intervention component, or both, not to exceed $300, based upon the defendant's ability to pay.

    (1998, cc. 783, 840; 1999, cc. 891, 913; 2000, cc. 958, 980, 1040; 2007, c. 133; 2008, c. 762.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Editor's note. - Acts 1998, cc. 783 and 840, cl. 2, provide: "That the provisions of this act amending or adding §§ 16.1-273, 18.2-251.01 , 18.2-252 , 19.2-299 and 19.2-299.2 , except for subsection A (ii) of § 19.2-299.2 , shall become effective July 1, 1999."

Acts 2000, cc. 958 and 980, cl. 3, provide: "That the provisions of this act shall be effective October 1, 2000."

Acts 2000, cc. 958 and 980, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2010."

Acts 2000, c. 1040, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2010."

The 1999 amendment, in subsection A, in the first paragraph, deleted "(i)" following "convicted of," substituted "January 1, 2000" for "July 1, 1999," deleted "or (ii) a second or subsequent offense committed on or after July 1, 1998, in violation of § 18.2-266 or an ordinance of a county, city or town which is substantially similar to § 18.2-266 , or any combination thereof, within five years of a prior such offense for which he was convicted and the court orders the person to enter an alcohol safety action program pursuant to § 18.2-271.1 ," and substituted "as part of the sentence if the defendant's sentence includes probation supervision by a community corrections program established pursuant to Article 2 ( § 53.1-180 et seq.) of Chapter 5 of Title 53.1 or participation in a local alcohol safety action program" for "and assessment" and in the second paragraph, substituted "upon conviction as part of the sentence" for "and assessment upon conviction" and inserted "defendant's sentence includes probation supervision by a community corrections program established pursuant to Article 2 ( § 53.1-180 et seq.) of Chapter 5 of Title 53.1, participation in a local alcohol safety action program or any other sanction and the"; in subsection B, in the first sentence, deleted "and assessment" following "abuse screening" and deleted "in conjunction with and pursuant to an agreement with" following "safety action program," in the second sentence, inserted "When an offender is ordered to enter programming under" and inserted "rather than the local alcohol safety action program, the local community corrections program shall be responsible for the screening," and substituted "as part of the sentence" for "and assessment" in the last sentence; and in subsection C, in the first sentence, substituted "indicates that the person has" for "and assessment identifies the person as having" and inserted "an assessment shall be completed and if the assessment confirms that the person has a substance abuse or dependence problem."

The 2000 amendments. - The 2000 amendments by cc. 958 and 980, effective October 1, 2000, are identical, and added the last sentence in subsection A.

The 2000 amendment by c. 1040 substituted "local community-based probation program" for "community corrections program" throughout subsections A and B.

The 2007 amendments. - The 2007 amendment by c. 133 substituted "community-based probation services agency" for "community-based probation program" in two places in subsections A and B; substituted "local community-based probation services" for "programming under the local community-based probation program" in the second sentence of subsection B; and in subsection C, in the first sentence, inserted "agency providing" following "such other" and "or services" following "treatment programs."

The 2008 amendments. - The 2008 amendment by c. 762 inserted "or when a person is convicted for a second offense of petit larceny" following "Class 1 Misdemeanor" in the first sentence in subsection A.

Research References. - Virginia Forms (Matthew Bender). No. 9-2535. Substance Abuse Screening--Adult Misdemeanor.

§ 19.2-300. Deferring for mental examination sentence of person convicted of offense indicating sexual abnormality.

In the case of the conviction in any circuit court of any person for any criminal offense which indicates sexual abnormality, the trial judge may on his own initiative, or shall upon application of the attorney for the Commonwealth, the defendant, or counsel for defendant or other person acting for the defendant, defer sentence until the report of a mental examination conducted as provided in § 19.2-301 of the defendant can be secured to guide the judge in determining what disposition shall be made of the defendant.

(Code 1950, § 53-278.2; 1950, p. 897; 1970, c. 62; 1975, c. 495; 1990, c. 697.)

Law review. - For a review of criminal law in Virginia for year 1999, see 33 U. Rich. L. Rev. 857 (1999).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 70; 9B M.J. Incest, § 2; 15 M.J. Rape, § 27; 16 M.J. Sodomy, § 4.

CASE NOTES

Construction. - Section 19.2-301 does not independently require trial courts to order a mental examination of a defendant prior to sentencing; instead, it simply provides that when the process of securing a mental examination of a defendant is initiated pursuant to this section, a judge shall thereafter order a mental examination in accordance with specific parameters and procedures. Cox v. Commonwealth,, 2021 Va. App. LEXIS 106 (July 6, 2021).

A trial court is required to defer sentencing of a defendant only when one of the parties requests mental examination of the defendant, and § 19.2-301 does not even come into play unless one of the triggering conditions in this section is met. The court does not read § 19.2-301 to independently grant a defendant an absolute and unqualified right to a psychosexual evaluation and report prior to sentencing. Cox v. Commonwealth,, 2021 Va. App. LEXIS 106 (July 6, 2021).

"Sexual abnormality." - When dealing with sexually abnormal behavior, the Virginia legislature does not make a distinction between "force" and "violence." Simerly v. Commonwealth, 29 Va. App. 710, 514 S.E.2d 387 (1999).

If the question to be answered is whether the defendant's conduct indicates "sexual abnormality," the answer should never rest upon the victim's conduct. The victim's decision to avoid violence does not make the defendant's conduct any less "abnormal." Simerly v. Commonwealth, 29 Va. App. 710, 514 S.E.2d 387 (1999).

Defendant was convicted of an offense that "indicates sexual abnormality" where the record was replete with evidence that defendant used force to commit rape. Because the defendant's counsel requested that the court defer sentencing until he could be given a mental examination but the trial court refused, the case was reversed and remanded for resentencing after the receipt of the report of mental examination. Simerly v. Commonwealth, 29 Va. App. 710, 514 S.E.2d 387 (1999).

Mental evaluation not mandatory when imposing sentence for violation of probation. - Decision to order a mental examination under § 19.2-300 is not discretionary when a defendant who has been convicted of an offense indicating sexual abnormality requests such an evaluation prior to sentencing for that conviction; however, it is not mandatory before revoking a suspended sentence due to a probation violation, as the previously imposed sentence is merely being modified. Alsberry v. Commonwealth, 39 Va. App. 314, 572 S.E.2d 522, 2002 Va. App. LEXIS 721 (2002).

Trial court did not abuse its discretion in refusing to order a mental evaluation before imposing a sentence for defendant's probation violation; defendant could have requested an evaluation when he was first sentenced, but he did not do so, and this request was made during the hearing on his fourth probation violation, more than six years after defendant's abnormal behavior first came to light. Alsberry v. Commonwealth, 39 Va. App. 314, 572 S.E.2d 522, 2002 Va. App. LEXIS 721 (2002).

Scientific evidence in presentence report. - In order to admit scientific evidence in the risk assessment portion of the presentence report the Commonwealth had the burden of proving that a penile plethysmograph examination was a reliable scientific method of determining a convicted sex offender's risk to reoffend. Billips v. Commonwealth, 274 Va. 805 , 652 S.E.2d 99, 2007 Va. LEXIS 122 (2007).

Applied in Justus v. Commonwealth, 220 Va. 471 , 266 S.E.2d 87 (1980).

§ 19.2-301. Judge shall require examination under § 19.2-300; by whom made; report; expenses of psychiatrist.

The judge shall order the defendant examined by at least one psychiatrist or clinical psychologist who is qualified by specialized training and experience to perform such evaluations. Upon a finding by the court that a psychiatrist or clinical psychologist is not reasonably available for the instant case, the court may appoint a state licensed clinical social worker who has been certified by the Commonwealth as a sex offender treatment provider as defined in § 54.1-3600 and qualified by experience and by specialized training approved by the Commissioner of Behavioral Health and Developmental Services to perform such evaluations. The examination shall be performed on an outpatient basis at a mental health facility or in jail. However, if the court specifically finds that outpatient examination services are unavailable or if the results of outpatient examination indicate that hospitalization of the defendant for further examination is necessary, the court may order the defendant sent to a hospital designated by the Commissioner of Behavioral Health and Developmental Services as appropriate for examination of persons convicted of crimes. The defendant shall then be hospitalized for such time as the director of the hospital deems necessary to perform an adequate examination, but not to exceed 30 days from the date of admission to the hospital. Upon completion of the examination, the examiners shall prepare a written report of their findings and conclusions and shall furnish copies of such report to the defendant, counsel for the defendant, and the attorney for the Commonwealth at least five days prior to sentencing and shall furnish a copy of the report to the judge in advance of the sentencing hearing. The report of the examiners shall at all times be kept confidential by each recipient, except to the extent necessary for the prosecution or defense of any offense, and shall be filed as part of the record in the case and the defendant's copy shall be returned to the court at the conclusion of sentencing. Any report so filed shall be sealed upon the entry of the sentencing order by the court and made available only by court order, except that such report or copies thereof shall be available at any time to the office of the Attorney General for assessment for civil commitment as provided in Chapter 9 (§ 37.2-900 et seq.) of Title 37.2; 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 who is the subject of the report. Any such report shall without court order be made available to counsel for the person who is the subject of the report if that person is charged with a felony subsequent to the time of the preparation of the report.

(Code 1950, § 53-278.3; 1950, p. 898; 1970, c. 62; 1975, cc. 286, 495; 1990, c. 697; 2002, c. 662; 2003, c. 886; 2007, c. 440; 2009, cc. 813, 840.)

Editor's note. - The above section is former § 53-278.3 as amended by Acts 1975, c. 286. Pursuant to Acts 1975, c. 593, cl. 2, it has been substituted for § 19.2-301 as enacted by Acts 1975, c. 495.

The 2002 amendments. - The 2002 amendment by c. 662 added the sixth, seventh and eighth sentences.

The 2003 amendments. - The 2003 amendment by c. 886 substituted "30" for "thirty" in the fourth sentence, and in the fifth sentence deleted "the judge" following "report to" and inserted "at least five days prior to sentencing and shall furnish a copy of the report to the judge in advance of the sentencing hearing."

The 2007 amendments. - The 2007 amendment by c. 440 inserted the second sentence.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Commissioner of Behavioral Health and Developmental Services" for "Commissioner of Mental Health, Mental Retardation and Substance Abuse Services" in the second and fourth sentences.

CASE NOTES

Construction. - This section does not independently require trial courts to order a mental examination of a defendant prior to sentencing; instead, it simply provides that when the process of securing a mental examination of a defendant is initiated pursuant to § 19.2-300 , a judge shall thereafter order a mental examination in accordance with specific parameters and procedures. Cox v. Commonwealth,, 2021 Va. App. LEXIS 106 (July 6, 2021).

A trial court is required to defer sentencing of a defendant only when one of the parties requests mental examination of the defendant, and this section does not even come into play unless one of the triggering conditions in § 19.2-300 is met. The court does not read this section to independently grant a defendant an absolute and unqualified right to a psychosexual evaluation and report prior to sentencing. Cox v. Commonwealth,, 2021 Va. App. LEXIS 106 (July 6, 2021).

Applied in Justus v. Commonwealth, 220 Va. 471 , 266 S.E.2d 87 (1980).

§ 19.2-302. Construction and administration of §§ 19.2-300 and 19.2-301.

Nothing contained in § 19.2-300 or 19.2-301 shall be construed to conflict with or repeal any statute in regard to the Department of Behavioral Health and Developmental Services, and such sections shall be administered with due regard to the authority of, and in cooperation with, the Commissioner of Behavioral Health and Developmental Services.

(Code 1950, § 53-278.4; 1950, p. 898; 1975, c. 495; 2009, cc. 813, 840.)

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" twice; and made a minor stylistic change.

§ 19.2-303. Suspension or modification of sentence; probation; taking of fingerprints and blood, saliva, or tissue sample as condition of probation.

After conviction, whether with or without jury, the court may suspend imposition of sentence or suspend the sentence in whole or part and in addition may place the defendant on probation under such conditions as the court shall determine, including monitoring by a GPS (Global Positioning System) tracking device, or other similar device, or may, as a condition of a suspended sentence, require the defendant to make at least partial restitution to the aggrieved party or parties for damages or loss caused by the offense for which convicted, or to perform community service, or both, under terms and conditions which shall be entered in writing by the court. The court may fix the period of probation for up to the statutory maximum period for which the defendant might originally have been sentenced to be imprisoned. Any period of supervised probation shall not exceed five years from the release of the defendant from any active period of incarceration. The limitation on the period of probation shall not apply to the extent that an additional period of probation is necessary (i) for the defendant to participate in a court-ordered program or (ii) if a defendant owes restitution and is still subject to restitution compliance review hearings in accordance with § 19.2-305.1 . The defendant may be ordered by the court to pay the cost of the GPS tracking device or other similar device. If, however, the court suspends or modifies any sentence fixed by a jury pursuant to § 19.2-295 , the court shall file a statement of the reasons for the suspension or modification in the same manner as the statement required pursuant to subsection B of § 19.2-298.01 . The judge, after convicting the defendant of any offense for which a report to the Central Criminal Records Exchange is required in accordance with subsection A of § 19.2-390 , shall determine whether a copy of the defendant's fingerprints or fingerprint identification information has been provided by a law-enforcement officer to the clerk of court for each such offense. In any case where fingerprints or fingerprint identification information has not been provided by a law-enforcement officer to the clerk of court, the judge shall require that fingerprints and a photograph be taken by a law-enforcement officer as a condition of probation or of the suspension of the imposition or execution of any sentence for such offense. Such fingerprints shall be submitted to the Central Criminal Records Exchange under the provisions of subsection D of § 19.2-390 .

In those courts having electronic access to the Local Inmate Data System (LIDS) within the courtroom, prior to or upon sentencing, the clerk of court shall also determine by reviewing LIDS whether a blood, saliva, or tissue sample has been taken for DNA analysis and submitted to the DNA data bank maintained by the Department of Forensic Science pursuant to Article 1.1 (§ 19.2-310.2 et seq.) of Chapter 18 of this title. In any case in which the clerk has determined that a DNA sample or analysis is not stored in the DNA data bank, or in any case in which electronic access to LIDS is not available in the courtroom, the court shall order that the defendant appear within 30 days before the sheriff or probation officer and allow the sheriff or probation officer to take the required sample. The order shall also require that, if the defendant has not appeared and allowed the sheriff or probation officer to take the required sample by the date stated in the order, then the sheriff or probation officer shall report to the court the defendant's failure to appear and provide the required sample.

After conviction and upon sentencing of an active participant or member of a criminal street gang, the court may, as a condition for suspending the imposition of the sentence in whole or in part or for placing the accused on probation, place reasonable restrictions on those persons with whom the accused may have contact. Such restrictions may include prohibiting the accused from having contact with anyone whom he knows to be a member of a criminal street gang, except that contact with a family or household member, as defined in § 16.1-228, shall be permitted unless expressly prohibited by the court.

Notwithstanding any other provision of law, in any case where a defendant is convicted of a violation of § 18.2-48 , 18.2-61 , 18.2-63 , 18.2-67.1 , 18.2-67.2 , 18.2-67.3 , 18.2-370 , or 18.2-370 .1, committed on or after July 1, 2006, and some portion of the sentence is suspended, the judge shall order that the period of suspension shall be for a length of time at least equal to the statutory maximum period for which the defendant might originally have been sentenced to be imprisoned, and the defendant shall be placed on probation for that period of suspension subject to revocation by the court. The conditions of probation may include such conditions as the court shall determine, including active supervision. Where the conviction is for a violation of clause (iii) of subsection A of § 18.2-61 , subdivision A 1 of § 18.2-67.1 , or subdivision A 1 of § 18.2-67.2 , the court shall order that at least three years of the probation include active supervision of the defendant under a postrelease supervision program operated by the Department of Corrections, and for at least three years of such active supervision, the defendant shall be subject to electronic monitoring by means of a GPS (Global Positioning System) tracking device, or other similar device.

If a person is sentenced to jail upon conviction of a misdemeanor or a felony, the court may, at any time before the sentence has been completely served, suspend the unserved portion of any such sentence, place the person on probation in accordance with the provisions of this section, or otherwise modify the sentence imposed.

If a person has been sentenced for a felony to the Department of Corrections (the Department), the court that heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, or within 60 days of such transfer, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation in accordance with the provisions of this section.

(1975, c. 495; 1982, cc. 458, 636; 1983, c. 431; 1984, c. 32; 1992, c. 391; 1993, c. 448; 2006, cc. 436, 483, 853, 914; 2007, cc. 259, 528; 2011, cc. 799, 837; 2019, cc. 782, 783; 2021, Sp. Sess. I, cc. 176, 538.)

Editor's note. - Acts 2006, c. 853, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2006, c. 914, cl. 5, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $2,419,496 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2006 amendments. - The 2006 amendments by cc. 436 and 483 are identical, and added the second paragraph.

The 2006 amendments by cc. 853 and 914 are identical, and in the first paragraph, substituted "defendant" for "accused" in three places and "defendant's fingerprints" for "accused's fingerprints"; and added the third paragraph.

The 2007 amendments. - The 2007 amendment by c. 259 added the second sentence in the first paragraph.

The 2007 amendment by c. 528 inserted "and blood, saliva, or tissue sample" in the section heading; and added the second paragraph.

The 2011 amendments. - The 2011 amendments by cc. 799 and 837 are identical, and in the first paragraph, inserted "including monitoring by a GPS (Global Positioning System) tracking device, or other similar device" in the first sentence, and added the second sentence.

The 2019 amendments. - The 2019 amendments by cc. 782 and 783 are identical, and in the first paragraph, rewrote the fourth and fifth sentences, which read: "The judge, after convicting the defendant of a felony, shall determine whether a copy of the defendant's fingerprints are on file at the Central Criminal Records Exchange. In any case where fingerprints are not on file, the judge shall require that fingerprints be taken as a condition of probation"

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 176, effective July 1, 2021, in the last paragraph, substituted "(the Department)" for "but has not actually been transferred to a receiving unit of the Department," inserted "or within 60 days of such transfer," and made a stylistic change.

The 2021 amendment by Sp. Sess. I, c. 538, effective July 1, 2021, added the second through fourth sentences in the first paragraph; substituted "Notwithstanding any other provision of law, in any case" for "In any case" in the fourth paragraph; and substituted "in accordance with the provisions of this section" for "for such time as the court shall determine" in the fifth and sixth paragraphs.

Law review. - For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975). For article, "The Constitutionality of Harsher Sentences on Retrial in Virginia," see 62 Va. L. Rev. 1337 (1976). For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For annual survey of Virginia law article, "Criminal Law and Procedure," see 47 U. Rich. L. Rev. 143 (2012).

For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

For article, "Sentencing Juvenile Homicide Offenders: A 50-State Survey," see 5 Va. J. Crim. L. 130 (2017).

Research References. - Virginia Forms (Matthew Bender). No. 9-2529. Motion to Delay Serving Sentence; No. 9-2537. Notice of Referral to Probation Officer; No. 9-2602. Probation and Diversion Order - Local - Misdemeanor, et seq.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 125; 5B M.J. Criminal Procedure, §§ 70, 75, 76; 16 M.J. Restitution, § 1.

Editor's note. - Many of the cases cited in the following annotations were decided under former § 53-272.

CASE NOTES

I. IN GENERAL.

Constitutionality. - Statutes such as former § 53-272, which confer upon the trial court power to suspend sentences, are constitutional. Richardson v. Commonwealth, 131 Va. 802 , 109 S.E. 460 (1921).

No infringement of pardoning power. - Former § 53-272, relating to suspension of sentence and placing on probation by the court, did not contravene the constitutional provisions vesting the pardoning power in the executive. Richardson v. Commonwealth, 131 Va. 802 , 109 S.E. 460 (1921). See Wilborn v. Saunders, 170 Va. 153 , 195 S.E. 723 (1938).

Legislative intent. - This section reflects the legislature's intent to provide for the review and suspension of sentences imposed for all felony convictions provided the defendant has not been sent to the Department of Corrections. Esparza v. Commonwealth, 29 Va. App. 600, 513 S.E.2d 885 (1999).

The legislature did not intend to limit the application of this section to cases of convictions obtained upon a plea of not guilty or an open plea entered without agreement. Esparza v. Commonwealth, 29 Va. App. 600, 513 S.E.2d 885 (1999).

Defendant did not show that an exception existed to the state supreme court rule that the trial court lacked jurisdiction to modify a sentence where the request was made more than 21 days after the sentencing order was entered; although § 19.2-303 provided for an exception to the state supreme court rule, the exception did not apply to defendant's case as it gave the trial court the power to "suspend or otherwise modify" a sentence before a defendant was sent to the Department of Corrections and the legislature did not intend that the trial court could "suspend" defendant's already suspended sentence. Patterson v. Commonwealth, 39 Va. App. 610, 575 S.E.2d 583, 2003 Va. App. LEXIS 34 (2003).

Purpose. - The purpose of former § 53-272 was to restore to a useful place in society an offender who is a good social risk. Slayton v. Commonwealth, 185 Va. 357 , 38 S.E.2d 479 (1946).

Former § 53-272 was enacted to the end that the criminal might be reformed, so that he might be restored to a useful place in society and be self-sustaining thereafter. Wilborn v. Saunders, 170 Va. 153 , 195 S.E. 723 (1938).

Both this section and § 19.2-306 serve the same rehabilitative purpose. Esparza v. Commonwealth, 29 Va. App. 600, 513 S.E.2d 885 (1999).

Liberal construction. - Former § 53-272 was highly remedial and should be liberally construed. Richardson v. Commonwealth, 131 Va. 802 , 109 S.E. 460 (1921); Dyke v. Commonwealth, 193 Va. 478 , 69 S.E.2d 483 (1952).

The statutes obviously confer upon trial courts wide latitude and much discretion in matters of suspension and probation to provide a remedial tool in the rehabilitation of criminals and, to that end, should be liberally construed. Wright v. Commonwealth, 32 Va. App. 148, 526 S.E.2d 784, appeal dismissed, 261 Va. 1 , 539 S.E.2d 432 (2000).

Due process. - The imposition of postrelease periods of suspended incarceration and supervision pursuant to this section and § 19.2-295.2 does not violate any due process right of a defendant to be sentenced by a jury. Boyd v. Commonwealth, 28 Va. App. 537, 507 S.E.2d 107 (1998).

Because the liberty interest at issue could be revoked only by the circuit court in a revocation proceeding, it was the circuit court in which defendant was entitled to exercise his due process right to be heard regarding the termination of his suspended sentence if not afforded that opportunity in the drug court hearing. Washington v. Commonwealth, No. 0710-16-1, 2017 Va. App. LEXIS 288 (Nov. 14, 2017).

Circuit court properly revoked defendant's suspended sentence because he received his due process rights to notice and a hearing regarding his termination from a drug treatment court program; defendant exercised the opportunity to present evidence, he admitted receiving written notice that the Commonwealth sought to revoke his suspended sentence for "using drugs," and the record contained a transcript of the drug court termination hearing, which showed defendant was present with counsel. Washington v. Commonwealth, No. 0710-16-1, 2017 Va. App. LEXIS 288 (Nov. 14, 2017).

Applicability of statute. - Because defendant was originally sentenced to the the Virginia Department of Juvenile Justice, instead of to the Virginia Department of Corrections, Va. Code Ann. § 19.2-303 was not applicable. McClease v. Commonwealth, No. 2209-13-1, 2014 Va. App. LEXIS 358 (Oct. 28, 2014).

Applicable to plea agreements. - There is nothing in the statutory scheme as articulated by the legislature to suggest the post-sentencing rehabilitative purposes and goals of this section are inapplicable to felons convicted pursuant to a plea agreement. Esparza v. Commonwealth, 29 Va. App. 600, 513 S.E.2d 885 (1999).

Alternative dispositions. - Former § 53-272 provided two alternatives: (1) that the convicted person may be placed on probation conditioned upon his good behavior for a definite period until the further order of the court; and (2) that his sentence may be suspended without any express limitation as to the duration of the suspension. White v. Commonwealth, 170 Va. 641 , 196 S.E. 610 (1938).

This section did not authorize a trial court to vacate a previous conviction if defendant complied with conditions that may have been imposed upon defendant for the suspension of the imposition of defendant's sentence. Epps v. Commonwealth, 59 Va. App. 71, 717 S.E.2d 151, 2011 Va. App. LEXIS 351 (2011).

Not applicable to request for new trial. - This section applies to a request for sentence modification when a prisoner has not been transferred to the department of corrections rather than a request for a new trial. Hillman v. Commonwealth, No. 2194-93-4 (Ct. of Appeals May 16, 1995).

Jurisdiction. - Commonwealth was incorrect that the court lacked jurisdiction because § 19.2-303 gave the trial court jurisdiction over all felony convictions provided that defendant had not been sent to the Department of Corrections. To the extent that the Commonwealth challenged the merits of the motion to reconsider on the basis that a purely legal argument could not constitute circumstances in mitigation of the offense, that argument did not need to be reached because the trial court denied the motion to reconsider without reaching its merits, reiterating that the evidence that defendant wanted to present had no bearing on the sentences that it imposed. Pagan v. Commonwealth,, 2011 Va. App. LEXIS 7 (Jan. 11, 2011).

Phrase "receiving unit." - When read in conjunction with the statute, it appears that a "receiving unit" is merely a generic term for the facility where a person is first "received" into Department of Corrections custody; it does not refer to the specific facility where a person is assigned to serve his or her sentence. Duhart v. Commonwealth, No. 1672-18-4, 2019 Va. App. LEXIS 256 (Ct. of Appeals Nov. 12, 2019).

Final judgment subject to review. - After the trial court has adjudged the defendant guilty and has suspended either the imposition or the execution of sentence, or commitment of the defendant, and has fixed the terms of his probation, it has made a complete disposition of the case within the purview of the statute. Its action is then final and subject to review. The happening of an event, which brings into operation the right of revocation, does not alter the finality of the judgment previously entered. Fuller v. Commonwealth, 189 Va. 327 , 53 S.E.2d 26 (1949).

A final judgment is not obtained when the judge overrules a motion for a new trial, and adjudges the defendant guilty but suspends imposition of sentence pending a report from the probation officer and in order to permit the defendant to perfect his appeal. Fuller v. Commonwealth, 189 Va. 327 , 53 S.E.2d 26 (1949).

Final disposition not found. - Initial order finding that the evidence supported a determination of guilt against defendant for violating § 58.1-1815 regarding the failure to pay withholding tax was not a conviction and did not impose a sentence. Instead that order continued the case and deferred final disposition for nearly a year, which meant that defendant could not claim that the trial court in its initial order entered a suspended sentence regarding defendant pursuant to § 19.2-303 because that statute applied only after a conviction and the initial order did not enter a conviction or sentence. Gibson v. Commonwealth, 276 Va. 176 , 662 S.E.2d 54, 2008 Va. LEXIS 86 (2008).

Failure to preserve issue for review. - Defendant failed to preserve his argument because he chose to testify and offer evidence on the due process issue; when the circuit court found that the evidence was sufficient to prove defendant's noncompliance with the drug court program and stated it was entering a formal finding of guilt for purposes of the revocation proceeding defendant registered no objection. Washington v. Commonwealth, No. 0710-16-1, 2017 Va. App. LEXIS 288 (Nov. 14, 2017).

To the extent defendant contended that he did not receive any specific due process rights in the circuit court revocation proceeding, he waived anything beyond his challenge to the more general due process entitlement to notice and a hearing because defendant failed to object contemporaneously to the procedure followed in the circuit court revocation proceeding or to request a continuance to counter the substantive evidence supporting the revocation of his suspended sentence. Washington v. Commonwealth, No. 0710-16-1, 2017 Va. App. LEXIS 288 (Nov. 14, 2017).

Appeal from order where sentence is suspended. - A sentencing order entered by a trial court is a complete disposition of the case, even if the order suspends the imposition of sentence, and is, thus, a final, appealable order. Oliver v. Commonwealth, 35 Va. App. 286, 544 S.E.2d 870, 2001 Va. App. LEXIS 196 (2001).

Orders of suspension and probation with regard to sentences on several convictions of grand larceny spoke as of the day they were entered, and the defendant's probation ran from that date. There was no merit in the Commonwealth's contention that by virtue of former § 19.1-294 (now § 19.2-308 ) the defendant was placed on probation for successive periods. Vick v. Commonwealth, 201 Va. 474 , 111 S.E.2d 824 (1960).

Restitution award. - Restitution award was proper, as it was for the medical expenses of an officer who was injured when chasing defendant and thus, was directly caused by defendant's criminal conduct of escaping from police custody. Shelton v. Commonwealth, 66 Va. App. 1, 781 S.E.2d 750, 2016 Va. App. LEXIS 32 (2016).

Trial court did not abuse its discretion in ordering defendant to pay restitution in the amount necessary to replace the locks and cylinders on the first car, which defendant took without authorization, and on the second car, and to reprogram the second car's computer because, by unlawfully taking the first car and its contents, including the victim's purse containing the keys to the second car, defendant compromised the victim's ability to protect her vehicles from unwanted intrusion as both sets of keys were missing when the first car was recovered; and requiring defendant to pay for changing the locks was not too remote or attenuated from the crime of unauthorized use of a motor vehicle to establish an abuse of discretion. Fleisher v. Commonwealth, 69 Va. App. 685, 822 S.E.2d 679, 2019 Va. App. LEXIS 20 (2019).

Discretionary authority of court. - Circuit court's revocation of defendant's previously suspended sentence of incarceration in the Tennessee Department of Corrections was a proper exercise of both its discretion to impose conditions and to revoke a suspended sentence. Martinez v. Commonwealth, 71 Va. App. 318, 836 S.E.2d 1, 2019 Va. App. LEXIS 285 (2019).

Sentences properly ran consecutively. - Original sentencing order unambiguously evinced the trial court's intent to impose concurrent sentences only for the active portions of defendant's sentences, as a condition of his suspended sentences, and to impose consecutive terms for the suspended sentences; accordingly, when the trial court revoked and resuspended a portion of those sentences it did not abuse its discretion by ordering defendant to serve the imposed portions consecutively. Clemons v. Commonwealth, No. 1675-19-1, 2020 Va. App. LEXIS 207 (July 21, 2020).

Trial court did not abuse its discretion by ordering imposed sentences to run consecutively, rather than concurrently, because it exercised its authority by conditioning the resuspension of part of defendant's sentences on the sentences running consecutively with all other sentences; by doing so, it did not amend the terms of the original sentence because it exercised its discretionary prerogative upon the resuspension of the sentences to impose a different condition on the suspension. Clemons v. Commonwealth, No. 1675-19-1, 2020 Va. App. LEXIS 207 (July 21, 2020).

Applied in Stamper v. Commonwealth, 228 Va. 707 , 324 S.E.2d 682 (1985); Anderson v. Commonwealth, 25 Va. App. 565, 490 S.E.2d 274 (1997); Rogers v. Commonwealth, 29 Va. App. 580, 513 S.E.2d 876 (1999); Reinke v. Commonwealth, 51 Va. App. 357, 657 S.E.2d 805, 2008 Va. App. LEXIS 111 (2008).

II. MODIFICATION OR SUSPENSION OF SENTENCE.

This section invests courts with discretionary authority to modify a sentence post-conviction in all felony cases, including those in which the defendant has been sentenced pursuant to a plea agreement so long as the defendant is in the local jail and has not been delivered to the Department of Corrections. Esparza v. Commonwealth, 29 Va. App. 600, 513 S.E.2d 885 (1999).

Trial court did not err in modifying defendant's sentence to impose the same sentence on defendant's first habitual petit larceny conviction as it did on defendant's other habitual petit larceny conviction, as the trial court had the statutory authority to modify the sentence, defendant's sentence could be modified because defendant was in jail and not in the Department of Correction, modification conformed defendant's sentence to defendant's plea bargain and the trial court's sentencing intent, and the modification was not entered more than 21 days after entry of a final sentencing order. Hilleary v. Commonwealth, No. 0423-02-4, 2003 Va. App. LEXIS 144 (Ct. of Appeals Mar. 18, 2003).

Circuit court retained jurisdiction under § 19.2-303 to modify defendant's sentences even though an appeal was pending because the requirements of § 19.2-303 were met at the time the circuit court addressed the motion. Harris v. Commonwealth, 57 Va. App. 205, 700 S.E.2d 475, 2010 Va. App. LEXIS 422 (2010).

This section operated as a statutory exception to Va. Sup. Ct. R. 1:1, and where the requirements of § 19.2-303 were satisfied, the trial court retained jurisdiction to modify defendant's sentences even after twenty-one days from entry of the final order because defendant had not yet been transferred to the Department of Corrections. Harris v. Commonwealth, 57 Va. App. 205, 700 S.E.2d 475, 2010 Va. App. LEXIS 422 (2010).

Convicted criminal entitled to decision on sentence by jury and by judge. - Under the practice in this State, the convicted criminal defendant is entitled to "two decisions" on the sentence, one by the jury and the other by the trial judge in the exercise of his statutory right to suspend. Vines v. Muncy, 553 F.2d 342 (4th Cir.), cert. denied, 434 U.S. 851, 98 S. Ct. 163, 54 L. Ed. 2d 120 (1977).

His ultimate sentence does not therefore rest with the jury alone, but is always subject to the control of the trial judge. Vines v. Muncy, 553 F.2d 342 (4th Cir.), cert. denied, 434 U.S. 851, 98 S. Ct. 163, 54 L. Ed. 2d 120 (1977).

Under the practice in this State, the punishment as fixed by the jury is not final or absolute, since its finding on the proper punishment is subject to suspension by the trial judge, in whole or in part, on the basis of any mitigating facts that the convicted defendant can marshal. Vines v. Muncy, 553 F.2d 342 (4th Cir.), cert. denied, 434 U.S. 851, 98 S. Ct. 163, 54 L. Ed. 2d 120 (1977).

Any criticism of jury sentencing on the ground that it lacks the objectivity and principled decision of a judge is overcome by the existence of the power in the trial judge to bring his so-called superior judgment to bear upon the issue of proper punishment in reaching his decision whether to suspend the sentence or not. Vines v. Muncy, 553 F.2d 342 (4th Cir.), cert. denied, 434 U.S. 851, 98 S. Ct. 163, 54 L. Ed. 2d 120 (1977).

The verdict of the jury is the fixing of maximum punishment which may be served. Vines v. Muncy, 553 F.2d 342 (4th Cir.), cert. denied, 434 U.S. 851, 98 S. Ct. 163, 54 L. Ed. 2d 120 (1977).

While a trial judge may have the authority under this section to reduce a jury's recommended sentence, he or she does not have the authority to impose a sentence greater than the one recommended by the jury. Batts v. Commonwealth, 30 Va. App. 1, 515 S.E.2d 307 (1999).

There is no right to have the jury determine whether a sentence should be suspended. Virginia ex rel. Shifflett v. Cook, 333 F. Supp. 718 (W.D. Va. 1971).

Suspension conditioned on waiver of Fourth Amendment rights. - The sole statutory limitation placed upon a trial court's discretion in its determination of conditions for suspending sentence is one of reasonableness and the court acted reasonably and within its discretion when it conditioned the suspension of the defendant's sentence on his waiver of his Fourth Amendment right against unreasonable searches and seizures for one year. Anderson v. Commonwealth, 256 Va. 580 , 507 S.E.2d 339 (1998).

Trial court did not err in denying defendant's motion to suppress evidence that was recovered pursuant to a traffic stop because defendant's waiver of his Fourth Amendment rights incorporated into his plea agreement was valid as it applied to his seizure; defendant knowingly and voluntarily entered a plea agreement containing a waiver of his Fourth Amendment rights against unreasonable searches and seizures of his person, and his waiver was reasonable. Blanton v. Commonwealth, No. 1834-14-4, 2016 Va. App. LEXIS 61 (Mar. 1, 2016).

Consideration of mitigation left to court. - By vesting the trial court with discretionary authority to suspend or modify the sentence imposed by the jury, the legislature intended to leave the consideration of mitigating circumstances to the court. Duncan v. Commonwealth, 2 Va. App. 342, 343 S.E.2d 392 (1986).

Circumstances in mitigation of offense. - Defendant failed to present evidence that would have justified a modification or suspension of her sentence under § 19.2-303 because the new evidence that she presented to the trial court was not evidence in mitigation of the offense within the meaning of § 19.2-303 since the evidence was only relevant to defendant's guilt or innocence; "circumstances in mitigation of the offense" under § 19.2-303 , does not include evidence that bears solely on the question of guilt or innocence because § 19.2-303 clearly provides that the only remedy that may be utilized in light of the mitigating circumstances is modification or suspension of the defendant's sentence. Wilson v. Commonwealth, 54 Va. App. 631, 681 S.E.2d 74, 2009 Va. App. LEXIS 363 (2009).

As to distinction between suspension of sentence and probation, see Dyke v. Commonwealth, 193 Va. 478 , 69 S.E.2d 483 (1952).

Suspension and probation distinguished. - This section, § 19.2-304 and former § 53-272 distinguish between a suspension, either of imposition of sentence or of execution of sentence, on the one hand, and probation, on the other. Grant v. Commonwealth, 223 Va. 680 , 292 S.E.2d 348 (1982).

"Suspension of sentence" means either delay in its imposition or the staying of its execution. It is not a pardon, excuse, immunity, or relief from the punishment, but a mere suspension, or postponement, of its execution. Richardson v. Commonwealth, 131 Va. 802 , 109 S.E. 460 (1921).

When defendant pled guilty to an offense and the trial court withheld a finding of guilt, and defendant was subsequently convicted of another offense, the trial court could enter an order nunc pro tunc to the prior proceedings finding defendant guilty of the offense to which he pled guilty, sentencing him to a suspended sentence, and revoking that suspension as to part of the sentence. Jefferson v. Commonwealth, No. 2301-02-2, 2004 Va. App. LEXIS 18 (Ct. of Appeals Jan. 13, 2004), aff'd, 269 Va. 136 , 607 S.E.2d 107 (2005), overruled by Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (2020).

And lies in the court's discretion. - The suspension of a sentence is left to the discretion of the trial court. Slayton v. Commonwealth, 185 Va. 357 , 38 S.E.2d 479 (1946). See also Abdo v. Commonwealth, 218 Va. 473 , 237 S.E.2d 900 (1977).

Suspension of a sentence is a matter of the trial court's discretion rather than the jury's. Virginia ex rel. Shifflett v. Cook, 333 F. Supp. 718 (W.D. Va. 1971).

Court could not conditionally suspend sentence without making requisite findings. - Trial court erred in conditionally suspending defendant's sentence pending a hearing because it had not heard any evidence to allow it to determine that there were circumstances in mitigation of the offense and that the suspension would be compatible with the public interest. Holland v. Commonwealth, 62 Va. App. 445, 749 S.E.2d 206, 2013 Va. App. LEXIS 290 (2013).

The attorney for the Commonwealth may agree to recommend suspension. - An attorney for the Commonwealth may properly confer with the accused and his attorney, and in appropriate cases agree to recommend to the judge the exercise of his power to suspend a sentence. But the attorney for the Commonwealth can make no agreement which will bind the judge, and the appropriate action must be at last determined by the judge himself, though he will generally adopt such recommendation. Richardson v. Commonwealth, 131 Va. 802 , 109 S.E. 460 (1921).

But the trial judge cannot enter into a binding agreement with the prisoner to excuse him forever from the penalties of his crime. When a trial judge suspends a sentence he does not make a contract with the accused, but only extends to him the opportunity which the State affords to repent and reform. Richardson v. Commonwealth, 131 Va. 802 , 109 S.E. 460 (1921).

The rule that a court cannot amend a final judgment or order, after the adjournment of the term, has no application to an order suspending a sentence upon accused and discharging him from custody until the further order of the court. When the execution of a sentence was thus suspended, under former § 53-272, the case remained pending and the court did not thereby lose its control over the accused or his case. Richardson v. Commonwealth, 131 Va. 802 , 109 S.E. 460 (1921).

No modification of sentencing order after felon released on parole. - Trial judge may not modify a sentencing order after a convicted felon has been released by the Department of Corrections on parole and impose for the first time a requirement of probation. Russnak v. Commonwealth, 10 Va. App. 317, 392 S.E.2d 491 (1990).

Modification allowed where defendant was never in custody of the Virginia Department of Corrections. - Trial court retained jurisdiction to modify defendant's sentence under the § 19.2-303 exception to Va. Sup. Ct. R. 1:1 while he was in the custody of the Federal Bureau of Prisons as defendant had never actually been in the custody of the Virginia Department of Corrections. Neely v. Commonwealth, 44 Va. App. 239, 604 S.E.2d 733, 2004 Va. App. LEXIS 530 (2004), aff'd, 271 Va. 1 , 624 S.E.2d 657 (2006).

Circuit court did not lose jurisdiction to consider defendant's motion to modify his sentence under § 19.2-303 because time limitations imposed by Va. Sup. Ct. R. 1:1 did not impact jurisdiction where defendant had not been transferred to the Virginia Department of Corrections but had been in a federal correctional institution for crimes committed while he was on supervised probation relating to a suspended two-year state sentence for possession of cocaine. Commonwealth v. Neely, 271 Va. 1 , 624 S.E.2d 657, 2006 Va. LEXIS 8 (2006).

Trial court erred in denying defendant's motion to suspend or modify sentence under § 19.2-303 on the ground that it did not have jurisdiction to entertain the motion because the trial court had jurisdiction to entertain the motion when defendant had been convicted of a felony and not yet transferred to the Department of Corrections; however, the error was harmless because defendant failed to present evidence that would have justified a modification or suspension of her sentence under § 19.2-303 . Wilson v. Commonwealth, 54 Va. App. 631, 681 S.E.2d 74, 2009 Va. App. LEXIS 363 (2009).

Statute, in its entirety, expresses clear legislative intent that the operative point in time for the circuit court to lose jurisdiction over a case where a felon has been sentenced to prison is when a defendant begins serving their sentence under the supervision of the Department of Corrections (DOC), which formally occurs when the person initially enters any DOC facility. Duhart v. Commonwealth, No. 1672-18-4, 2019 Va. App. LEXIS 256 (Ct. of Appeals Nov. 12, 2019).

Trial judge did not have authority to modify defendant's sentence pursuant to this section since the record did not disclose whether defendant had been transferred to the Department of Corrections when the trial judge overruled her motion on March 5, 1991; since the burden of proving appellate jurisdiction rested upon the defendant, defendant failed to prove on the record that the trial judge had authority to act and that her appeal was timely. D'Alessandro v. Commonwealth, 15 Va. App. 163, 423 S.E.2d 199 (1992).

In absence of proof that defendant had not yet been transferred to department of corrections, and in light of proof to the contrary, trial judge had no authority to modify defendant's sentences to run concurrently. Johnson v. Commonwealth, No. 0348-98-4 (Ct. of Appeals June 22, 1999).

Once a defendant has been transferred to the Department of Corrections and 21 days have passed since the court's last order, the court can no longer use § 19.2-303 to modify a sentence. A trial court improperly entered an amended sentencing order more than 21 days after entry of a sentencing order on revocation of a defendant's probation because the evidence showed defendant was in custody of the Department of Corrections. Ziats v. Commonwealth, 42 Va. App. 133, 590 S.E.2d 117, 2003 Va. App. LEXIS 701 (2003).

Because defendant received a fully suspended sentence and was not going to be transferred to the Department of Corrections at any time after his sentencing, the trial court did not have jurisdiction to modify defendant's suspended sentence under § 19.2-303 . Smith v. Commonwealth,, 2008 Va. App. LEXIS 238 (May 20, 2008).

Trial court properly found that it had no authority under § 19.2-303 to modify defendant's sentence where he had already been transferred to the Virginia Department of Corrections because the legislature in § 19.2-303 had created an absolute event when a trial court could no longer modify a sentence and clearly limited the authority of the trial court to do so. The statute contained no exceptions. Stokes v. Commonwealth, 61 Va. App. 388, 736 S.E.2d 330, 2013 Va. App. LEXIS 17 (2013).

When read in conjunction with Va. Sup. Ct. R. 1:1, Va. Code Ann. § 19.2-303 establishes an absolute event, i.e., a transfer to the Virginia Department of Corrections, when a trial court can no longer modify a sentence. Because § 19.2-303 clearly allows a court to modify an unserved portion of a sentence any time before a person is transferred to the Department of Corrections, the operative date in question is when the court makes its ruling, not when the motion is filed, and not when the matter initially comes before the court. Stokes v. Commonwealth, 61 Va. App. 388, 736 S.E.2d 330, 2013 Va. App. LEXIS 17 (2013).

Trial court did not retain jurisdiction over defendant's motion to modify his sentence after he entered the Department of Corrections; thus, its order ending the suspension on the execution of his sentence was void ab initio for lack of jurisdiction. Holland v. Commonwealth, 62 Va. App. 445, 749 S.E.2d 206, 2013 Va. App. LEXIS 290 (2013).

Because more than twenty-one days from the circuit court's entry of judgment had elapsed, and defendant's transfer to Department of Corrections (DOC) custody defeated exercise of the circuit court's jurisdiction, the circuit court did not err in holding that it lacked jurisdiction to consider defendant's motion for reconsideration of sentence; defendant was transferred into DOC custody upon his arrival to a correctional center, thereby ending the circuit court's jurisdiction. Duhart v. Commonwealth, No. 1672-18-4, 2019 Va. App. LEXIS 256 (Ct. of Appeals Nov. 12, 2019).

Defendant's transfer to the Department of Corrections (DOC) precluded the court from considering his motion to reduce his sentence because the statute permitting suspension or modification of his sentence did not allow the trial court to rule on any sentence modification as it lost jurisdiction once defendant had been transferred to the custody of the DOC. Akers v. Commonwealth, 298 Va. 448 , 839 S.E.2d 902, 2020 Va. LEXIS 31 (2020).

Court lacked authority to lengthen incarceration. - It was true that both the first and third orders fixed the grand larceny and burglary sentences to run consecutively. However, the second order providing that those sentences run concurrently became final under Rule 1:1 more than a year before the third order was entered. While the trial court still retained power under this section to modify the sentences in consideration of "circumstances in mitigation of the offense", the court had no authority to lengthen the period of incarceration. Robertson v. Superintendent of Wise Correctional Unit, 248 Va. 232 , 445 S.E.2d 116 (1994).

Suspension must be ordered within 21 days of sentencing order. - Reading Rule 1:1 and former § 53-272 together, after the expiration of 21 days from the sentencing order if a defendant convicted of a felony has been committed and delivered to the state correctional facility and no order has been entered within 21 days after final judgment suspending the sentence, the trial court has no further authority to suspend the sentence. In re Commonwealth, Dep't of Cors., 222 Va. 454 , 281 S.E.2d 857 (1981).

And taking motion under advisement is insufficient. - In view of Rule 1:1 and former § 53-272, where the trial court took under advisement motions to set aside the verdicts and judgments and to suspend or modify all or part of the sentences of defendants convicted of drug-related offenses within 21 days of the entry of sentencing orders, the court did not "modify, vacate, or suspend" the judgments, and, therefore, the motions and the orders entered thereon did not affect the finality of the sentencing orders and the court lost jurisdiction to act on the motions to suspend at the end of the 21-day period and delivery of the defendants to the state correctional facility. In re Commonwealth, Dep't of Cors., 222 Va. 454 , 281 S.E.2d 857 (1981).

Order to suspend a sentence entered more than 21 days after sentencing. - Trial court acted properly when it suspended a sentence it imposed on defendant to hear defendant's motion to modify the sentence, even though the order suspending defendant's sentence was entered more than 21 days after defendant was sentenced to incarceration in the Virginia Department of Corrections, because defendant was still incarcerated in a county jail. Baldwin v. Commonwealth, 43 Va. App. 415, 598 S.E.2d 754, 2004 Va. App. LEXIS 309 (2004).

Though the court's conditional order suspending defendant's sentence pending a hearing on modification was untimely under Va. Sup. Ct. R. 1:1, it was not void; as defendant had not yet entered the Department of Corrections, the trial court had jurisdiction under § 19.2-303 to enter the order. Holland v. Commonwealth, 62 Va. App. 445, 749 S.E.2d 206, 2013 Va. App. LEXIS 290 (2013).

Use of writ of prohibition to bar suspension. - The Department of Corrections had standing to seek a writ of prohibition barring the trial court from ordering the release from custody and suspension of sentences of prisoners convicted of drug-related offenses, and still held in custody, where the trial court had taken under advisement the motions of the prisoners within 21 days of the entry of sentencing orders, but had not ordered the judgments modified, vacated or suspended within the 21-day period. In re Commonwealth, Dep't of Cors., 222 Va. 454 , 281 S.E.2d 857 (1981).

A writ of prohibition could not be used to revoke the releases of prisoners from custody and the suspension of their sentences, even if the orders of the trial court were improperly entered for failure of the court to act within 21 days of entry of sentencing orders and before delivery to the state correctional facility, since the writ of prohibition is not available to correct errors already committed. In re Commonwealth, Dep't of Cors., 222 Va. 454 , 281 S.E.2d 857 (1981).

Extended probation modified. - Defendant's extended probation imposed upon him as a condition of the suspension of his sentence was modified as the trial court had specified no period of probation. Hartless v. Commonwealth, 29 Va. App. 172, 510 S.E.2d 738 (1999).

Trial judge did not have authority to modify defendant's sentence. - Although a trial court normally retained jurisdiction for a certain time period over certain judgments, orders, and decrees, it did not have jurisdiction over defendant's motion to reduce his sentence as defendant's earlier concession that he had already been transferred to a Virginia Department of Corrections facility meant that the trial court was divested, at the time of the transfer, of its authority, pursuant to § 19.2-303 , to retain jurisdiction over his case. Chilton v. Commonwealth, No. 0789-02-2, 2004 Va. App. LEXIS 38 (Ct. of Appeals Jan. 28, 2004).

Sentencing court lacked jurisdiction under this section to modify defendant's amended sentence or to reconsider the court's denial of defendant's motion to withdraw his guilty plea where: (1) the sentencing court properly vacated the portion of its original sentencing order that was in excess of the statutory maximum in § 18.2-181 and sentenced defendant to the statutory maximum, (2) the sentencing court properly vacated that portion of the original sentencing order that ordered a probation officer to set restitution and set a restitution amount as was required by subsection C of § 19.2-305.1 , (3) otherwise, the original sentencing order remained a valid final order, and (4) defendant had been transferred to the Virginia Department of Corrections and his motions were filed more than 21 days after entry of the original sentencing order. McKenney v. Commonwealth, Nos. 3330-02-2, 0473-03-2, 2004 Va. App. LEXIS 157 (Ct. of Appeals Apr. 6, 2004).

Trial court properly held that it did not have jurisdiction to modify defendant's sentence under Rule 1:1 and § 19.2-303 , as more than 21 days had passed since the sentence was imposed, and defendant had been transferred to the custody of the Virginia Department of Corrections (DOC); there was no exception that would allow the trial court to retain jurisdiction even though defendant's transfer to the DOC occurred in violation of the trial court's order retaining custody of defendant in the local jail for some indefinite period of time. Coe v. Commonwealth, No. 3293-02-2, 2004 Va. App. LEXIS 181 (Ct. of Appeals Mar. 2, 2004).

Sentencing order void ab initio. - Sentencing order was a final order under Va. Sup. Ct. R. 1:1 as it adjudicated guilt, imposed a sentence, remanded defendant to the sheriff's custody, and required that defendant register as a sex offender on his release; the sentencing order was void ab initio because § 19.2-303 did not authorize the trial court to reduce defendant's conviction from a felony to a misdemeanor after he had served the active portion of the sentence. The doctrine of invited error did not bar defendant's motion to vacate the sentencing order. Burrell v. Commonwealth, 283 Va. 474 , 722 S.E.2d 272, 2012 Va. LEXIS 50 (2012).

Defendant did not prove jurisdiction. - Defendant had not shown that the trial court had jurisdiction to modify his sentence under § 19.2-303 . His motion had been filed over 21 days from the entry of the final order, and neither the motion nor the record indicated that defendant had not yet been transferred to the Department of Corrections at the time the motion was filed. Monk v. Commonwealth,, 2007 Va. App. LEXIS 378 (Oct. 9, 2007).

No abuse of discretion in refusing to modify sentence imposed. - Because defendant never voiced any objection to the sentences imposed against him after entering guilty pleas to two indictments charging distribution of cocaine pursuant to a plea agreement, the trial court's denial of defendant's motion to modify the sentences was upheld on appeal. The appellate court found no abuse of discretion on the part of the trial court in failing to modify defendant's sentences since defendant responded to the trial court's questions regarding the plea agreement, found that it was voluntarily entered into, that defendant never voiced any objections, and because the sentences did not exceed the maximum allowable. Russell v. Commonwealth,, 2005 Va. App. LEXIS 263 (July 5, 2005).

III. CONDITIONS ON SUSPENSION OR PROBATION.

Power to place conditions on suspension. - Inherent in the power granted under this section and former § 53-272 to suspend imposition or execution is the power to place conditions on such suspension. Grant v. Commonwealth, 223 Va. 680 , 292 S.E.2d 348 (1982).

Trial court was authorized to place conditions on that part of defendant's sentence that was suspended, including lifetime probation under certain conditions, and, thus, the trial court did not err in placing conditions on defendant's suspended sentence that included lifetime probation in a case where defendant pled guilty to seven felonies arising out of the accidental shooting of a friend, as defendant could have received up to 105 years in prison and only received 65 years with 35 years of those suspended based on certain conditions, including the lifetime probation. Lathram v. Commonwealth, No. 0155-05-4,, 2006 Va. App. LEXIS 168 (Ct. of Appeals May 2, 2006).

Good behavior is a condition of every suspension, with or without probation, whether expressly so stated or not. Coffey v. Commonwealth, 209 Va. 760 , 167 S.E.2d 343 (1969).

Even though the language of the suspension does not in terms include a condition of good behavior, that condition is implicit in every such suspension whether with or without probation and whether or not expressly so stated and constitutes the origin and purpose of the suspension and probation statutes. Marshall v. Commonwealth, 202 Va. 217 , 116 S.E.2d 270 (1960).

While the language of the suspensions did not in terms include a condition of good behavior, that condition is implicit in every such suspension and constitutes the origin and purpose of the suspension and probation statutes. When a trial court suspends a sentence it does not make a contract with the accused, but only extends to him the opportunity which the State affords him to repent and reform. Coffey v. Commonwealth, 209 Va. 760 , 167 S.E.2d 343 (1969); Brown v. Slayton, 342 F. Supp. 61 (W.D. Va. 1972).

When defendant received a suspended sentence after pleading guilty, an implicit condition of that suspension was that he maintain good behavior, so, when he was subsequently convicted of another offense, his suspended sentence could be revoked. Jefferson v. Commonwealth, No. 2301-02-2, 2004 Va. App. LEXIS 18 (Ct. of Appeals Jan. 13, 2004), aff'd, 269 Va. 136 , 607 S.E.2d 107 (2005), overruled by Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (2020).

The first clause of this section gives broad power to the trial court to determine the conditions of a suspended sentence. Waiters v. Commonwealth, 33 Va. App. 739, 536 S.E.2d 923, 2000 Va. App. LEXIS 735 (2000).

The only limitation placed upon the discretion of the trial court in its determination of what conditions are to be imposed is that a condition be "reasonable." Jackson v. Commonwealth, 29 Va. App. 418, 512 S.E.2d 838 (1999).

The only limitation placed upon the discretion of the trial court is that the conditions of suspension must be reasonable in relation to the nature of the offense, the background of the offender and the surrounding circumstances. Waiters v. Commonwealth, 33 Va. App. 739, 536 S.E.2d 923, 2000 Va. App. LEXIS 735 (2000).

Reasonable conditions. - Trial court did not err in conditioning defendant's suspended sentence on indefinite periods of good behavior and supervised probation because it did not exceed the statutory maximum for the offense of which defendant was convicted, defendant confused the trial court's authority in fashioning a sentence with its authority in placing conditions upon suspended sentences, and the trial court gave due regard to the gravity of the offense - second-degree murder - and the conditions it imposed were reasonable. Roy v. Commonwealth,, 2015 Va. App. LEXIS 15 (Jan. 20, 2015).

In a case in which defendant pleaded guilty to aggravated sexual battery of a child under the age of 13, the circuit court erred in ordering that, as a condition of probation, defendant could have no use of any device that could access the internet unless approved by his probation officer because there was no evidence that computers or the internet played any role in defendant's offense; the circuit court articulated no justification for how imposing that restriction on defendant's fundamental right to free speech would serve any rehabilitative or public safety purpose; and that restriction burdened substantially more speech than was necessary to further the government's legitimate interests and was not narrowly tailored. Fazili v. Commonwealth, 71 Va. App. 239, 835 S.E.2d 87, 2019 Va. App. LEXIS 281 (2019).

Hearing court did not abuse its discretion by imposing probation conditions, which prohibited defendant from having contact with females under the age of eighteen, texting, and using the internet, because the conditions, although unrelated to defendant's underlying larceny and fraud convictions, addressed defendant's pedophilia to prevent victimization of children as defendant demonstrated a pattern of inappropriate conduct with female minors, acknowledged sexual attraction to children, and was clinically diagnosed as a pedophile. O'Neal v. Commonwealth, No. 1962-19-3, 2021 Va. App. LEXIS 3 (Jan. 12, 2021).

Prohibition on driving. - There was no statutory conflict between defendant's status as a licensed driver and a condition of probation that prohibited him from actually driving. The condition of probation did not affect defendant's license to drive but rather only required him to refrain from doing so while on probation as a measure of protection to the public that otherwise could only be achieved through defendant's incarceration. Garibaldi v. Commonwealth, 71 Va. App. 64, 833 S.E.2d 915, 2019 Va. App. LEXIS 243 (2019).

Geographical restriction. - When defendant pled guilty to aggravated sexual battery, the trial court did not err in prohibiting him, as a condition of probation, from residing in a set geographical area around the minor victim's house, which included the home of defendant's parents; as the condition was aimed at protecting the victim, it was not unreasonable. Bryant v. Commonwealth, No. 1462-12-4, 2013 Va. App. LEXIS 214 (Ct. of Appeals July 23, 2013).

Condition requiring defendant be accompanied when leaving home. - Condition of probation requiring that defendant be accompanied by an adult when he left his home was permissible under this section and did not impermissibly infringe on his constitutional rights, as it did not prevent defendant from leaving his home and was related to the concern that defendant, who suffered from severe mental impairment, would not benefit from treatment and was unlikely to be able to control his inappropriate impulses in the future. Willard v. Commonwealth, No. 1326-17-3, 2018 Va. App. LEXIS 213 (Aug. 7, 2018).

No victim contact. - Ordering defendant not to contact his victims as a condition of his suspended sentences was not an abuse of discretion where the stepmother's victim impact statement and the weakness of the prosecution's proffer supported the conclusion that the stepmother was uniquely vulnerable to the possibility that defendant would try to entice her to recant in support of a likely challenge to the convictions. Minh Duy Du v. Commonwealth, 292 Va. 555 , 790 S.E.2d 493, 2016 Va. LEXIS 130 (2016).

Restitution. - Trial court erred in requiring defendant to pay, as a condition of his suspended sentence, restitution that included the cost of the installation of a security system installed by the burglary victims after the burglary because, while related to defendant's burglary, the installation of a security system was not caused by the offense, and the attenuation was too great. Howell v. Commonwealth, 274 Va. 737 , 652 S.E.2d 107, 2007 Va. LEXIS 121 (2007).

Restitution. - Under § 19.2-303 restitution was limited to damages caused by the offense; therefore, the trial court abused its discretion when it ordered defendant to pay restitution related to an "indirect" financial loss that occurred when a pipe burst inside a victim's home while the victim was convalescing elsewhere. Maye v. Commonwealth,, 2011 Va. App. LEXIS 40 (Feb. 8, 2011).

Trial court did not abuse its discretion, pursuant to § 19.2-303 , subsection B of § 19.2-305 , and subsection A of § 19.2-305 .1, by the amount of a restitution ordered because the finding by the trial court that the Commonwealth of Virginia Department of Medical Assistance Services received no value from the services rendered to Medicaid-eligible clients by defendant's employee, who actually had no training to be a personal care aide, was not plainly wrong or unsupported by the evidence. Burriesci v. Commonwealth, 59 Va. App. 50, 717 S.E.2d 140, 2011 Va. App. LEXIS 344 (2011).

Amount owed on loan for property damaged or destroyed. - In a case in which defendant was convicted of attempted malicious wounding, the trial court did not err in imposing, as one of the conditions of defendant's suspended sentence, that he was had to pay the victim $6,639.23 in restitution because, although defendant contended that it was error for the trial court to include in his restitution the $3,289.23 still owed by the victim on her car loan after the insurance company had paid her full restitution, a trial court, in determining restitution, could include the amount still owed on a loan for property damaged or destroyed through defendant's criminal acts. Baugh v. Commonwealth, No. 0347-18-2, 2019 Va. App. LEXIS 287 (Dec. 10, 2019).

Impact statement may be source for restitution amount. - The legislature intended that the victim impact statement be used by trial judge to determine the amount of restitution. Alger v. Commonwealth, 19 Va. App. 252, 450 S.E.2d 765 (1994).

Restitution may be ordered for insurer. - The statutes declare a legislative intent to provide restitution for the victims of crimes, including corporations. One cannot conclude that the legislature intended by the most recent legislation to limit the power of the courts to order restitution. Therefore, it was proper for the court in the instant case to order burglar to pay restitution to insurance carrier of victims. Alger v. Commonwealth, 19 Va. App. 252, 450 S.E.2d 765 (1994).

Return of sum paid by undercover agent as appropriate restitution. - A trial court's order that a defendant convicted of distribution of marijuana return the exact sum an undercover agent had paid the defendant for the illegal drugs was a reasonable and appropriate exercise of the court's discretion; at a minimum, the requirement prevented the defendant from profiting from the crime he committed. Waiters v. Commonwealth, 33 Va. App. 739, 536 S.E.2d 923, 2000 Va. App. LEXIS 735 (2000).

Supervised probation on resuspension of sentence. - The trial court had implicit statutory authority under § 19.2-306 to place defendant on supervised probation as a condition of resuspending the 1989 sentence, and it did not impermissibly modify or extend the 1989 sentencing order in violation of Va. Sup. Ct. R. 1:1, or its exceptions in § 19.2-303 . Harrison v. Commonwealth, No. 0556-04-2, 2005 Va. App. LEXIS 115 (Ct. of Appeals Mar. 22, 2005).

Incarceration as condition of suspension. - Trial court had the authority to impose a period of incarceration as a condition of suspending the execution of a five-year penitentiary sentence. Nuckoles v. Commonwealth, 12 Va. App. 1083, 407 S.E.2d 355 (1991).

Submission to court-ordered child support upheld as condition. - That part of defendant's sentence, conditioning the suspension of part of said sentence on his submission to court-ordered child support, was upheld on appeal, and found not to be an abuse of the trial court's wide latitude afforded under § 19.2-303 , as such was an important aspect of his rehabilitation and reintegration into his community. Martin v. Commonwealth,, 2006 Va. App. LEXIS 602 (Dec. 19, 2006).

Imposing warrantless searches. - Circuit court erred by imposing a probation condition requiring defendant to submit to warrantless, suspicionless searches at any time by any probation or law-enforcement officer because the condition was not reasonable in light of the sex offenses for which defendant was convicted, defendant did not agree to waive his Fourth Amendment rights pursuant to a signed plea agreement, and the Commonwealth's interests did not outweigh the degree of intrusion on defendant's expectation of privacy. Murry v. Commonwealth, 288 Va. 117 , 762 S.E.2d 573, 2014 Va. LEXIS 121 (Sept. 12, 2014).

Enforcement of probationary requirement. - A court's ability to revoke the suspension of a sentence and to impose that sentence permits it to enforce a probationary requirement as a condition of suspension. Hartless v. Commonwealth, 29 Va. App. 172, 510 S.E.2d 738 (1999).

Delegation of authority to probation officer to supervise conditions of probation. - Although the circuit court erred in failing to narrowly tailor the conditions of probation that defendant could have no use of any device that could access the internet unless approved by his probation officer by providing both a rationale and guidance or parameters to the probation officer, in the abstract, the circuit court's delegation to the probation officer the authority to supervise defendant's internet usage was not an improper delegation of authority. Fazili v. Commonwealth, 71 Va. App. 239, 835 S.E.2d 87, 2019 Va. App. LEXIS 281 (2019).

Violation of special instructions imposed by probation officer. - There was no error in a trial court finding that a probationer violated the terms of probation and in the court revoking the probationer's suspended sentence when the probationer violated special instructions which were imposed by the probation officer at the court's direction. Furthermore, the instructions which the probation officer imposed were reasonable and warranted enforcement and were tailored to a sex offender such as the probationer. Smith v. Commonwealth, No. 0038-17-1, 2017 Va. App. LEXIS 316 (Dec. 12, 2017).

Altering conditions of suspended sentence. - Court could remove a good behavior requirement as a probation condition but lacked jurisdiction to alter good behavior and related provisions imposed as conditions of the suspension of a sentence more than 21 days after entry of a sentencing order. McFarland v. Commonwealth, 39 Va. App. 511, 574 S.E.2d 311, 2002 Va. App. LEXIS 770 (2002).

When a trial court had subject matter jurisdiction over defendant's 1998 hearing to revoke his suspended sentence and extended defendant's period of suspension, the trial court did not err in revoking defendant's suspended sentence in 2010, pursuant to subsection A of § 19.2-306 , because the suspension took place within the fourteen-year period established in the 1998 sentencing order; defendant was not entitled to collaterally attack the 1998 sentencing order because the order was not void. Dunham v. Commonwealth, 59 Va. App. 634, 721 S.E.2d 824, 2012 Va. App. LEXIS 49 (2012), aff'd, 284 Va. 511 , 733 S.E.2d 660, 2012 Va. LEXIS 201 (Va. 2012).

To be effective, probation must be concurrent with coordinate term of suspension of sentence. Hartless v. Commonwealth, 29 Va. App. 172, 510 S.E.2d 738 (1999).

Probation period. - Probation depends for enforceability upon the existence of a term of sentence suspension; therefore, the duration of probation cannot extend beyond the specified period of suspension. Hartless v. Commonwealth, 29 Va. App. 172, 510 S.E.2d 738 (1999).

Trial court did not abuse its discretion in ordering lifetime probation following defendant's 50 years of active incarceration where the statutory maximum sentences applicable to his convictions added up to life imprisonment plus 30 years, and the imposition of lifetime probation was far less severe than life imprisonment. Minh Duy Du v. Commonwealth, 292 Va. 555 , 790 S.E.2d 493, 2016 Va. LEXIS 130 (2016).

Trial court did not err by placing defendant on probation for the remainder of his life even though it did not also extend the suspension of his sentence because the holdings of Briggs and Wright were consistent with § 19.2-303.1 and the trial court had the authority to suspend defendant's sentence for the remainder of his life after it revoked the previous suspension. Baughman v. Commonwealth, No. 0346-18-4, 2019 Va. App. LEXIS 299 (Dec. 17, 2019).

Probation can be directed only under supervision of probation officers. - The probation of defendants in criminal cases can be directed and exercised only under the supervision of probation officers, duly appointed and qualified. Bryant v. Commonwealth, 198 Va. 148 , 93 S.E.2d 130 (1956).

And a verbal order directing a husband to assist in the probation of his wife is wholly void and of no legal or binding force or effect. Bryant v. Commonwealth, 198 Va. 148 , 93 S.E.2d 130 (1956).

Effect of acceptance of plea agreement. - Acceptance of defendant's plea agreement, which provided that the trial court would impose sentence on two counts of aggravated sexual battery and would withhold decision on the other two counts, did not divest the trial court of its jurisdiction to adjudicate the charges. Holden v. Commonwealth, 26 Va. App. 403, 494 S.E.2d 892 (1998).

Effect of compliance by accused. - When the accused has complied with conditions specified, he has a right to rely upon them, and the suspension will stand. Griffin v. Cunningham, 205 Va. 349 , 136 S.E.2d 840 (1964); Hamilton v. Commonwealth, 217 Va. 325 , 228 S.E.2d 555 (1976).

Failure to comply. - A court which has ordered a suspension of sentence undoubtedly has the power to revoke it when the defendant has failed to comply with the conditions of the suspension. Griffin v. Cunningham, 205 Va. 349 , 136 S.E.2d 840 (1964).

Where the trial court imposed a condition upon a probation to enter and successfully complete a Detention Center Incarceration Program, and while such might have been a condition of probation, merely entering the program was a prerequisite to and one of the conditions upon which the probationer's sentence was suspended; when he could no longer satisfy this condition, the court was authorized to reconsider the suspended sentences and determine what portion of the same or other alternatives were appropriate. Word v. Commonwealth, 41 Va. App. 496, 586 S.E.2d 282, 2003 Va. App. LEXIS 485 (2003).

Trial court did not abuse its discretion by imposing the entire original sentences that had been suspended against a defendant upon revocation of the suspended sentences, because § 19.2-306 did not provide a trial court with any discretion as to imposing the entire original sentence or a portion of the same upon revocation. As such, the trial court's imposition of the entire 26 years of imprisonment against the defendant was proper, because his suspended sentences were revoked due to his failure to report to his probation officer, his failure to make restitution, and his subsequent conviction for larceny. Commonwealth v. Payne,, 2003 Va. LEXIS 117 (July 11, 2003).

Showing performance of condition of suspension. - Where sentence is suspended upon the condition that the defendant keep the peace and not violate the law for one year, the better, though not essential, practice is for the defendant to show to the court that he has performed the condition of the suspension and obtain an order of complete discharge. Dyke v. Commonwealth, 193 Va. 478 , 69 S.E.2d 483 (1952).

Evidence that the defendant continued to be employed by the victim after commission of the burglary and larceny, and evidence that he made restitution for the damage to the window and money stolen, was irrelevant to the issue of defendant's guilt. The evidence, at best, was relevant only to the issue of punishment. The trial court properly refused to admit the evidence before the jury in mitigation of punishment. Duncan v. Commonwealth, 2 Va. App. 342, 343 S.E.2d 392 (1986).

Decision to seek reincarceration after release not violation. - The Virginia Attorney General's decision to seek reincarceration of persons who had been sentenced for serious narcotics violations and then released by procedures which the Supreme Court of Virginia held to be void under Rule 1:1 and this section did not violate the Fourteenth Amendment, where there was nothing in the record to indicate that he undertook to have them reincarcerated for any reason other than the seriousness of the crimes involved and the public outcry against their release. Crowley v. Landon, 780 F.2d 440 (4th Cir. 1985).

Suspension of probation upon event enhancing purpose of probation. - The trial court is given broad discretion to suspend sentences and fix terms of probation. With this broad authority to fix the terms and conditions of probation, to increase or decrease the probation period, and to revoke or modify any condition of the probation, there is no reason or restriction that would preclude the trial court from suspending the probation upon the occurrence of events that enhance the purpose of probation. Sami v. Commonwealth, No. 0367-86-4 (Ct. of Appeals July 27, 1987).

Punishment not excessive. - Sentence for violation of § 18.2-248 to a term of nine years in the penitentiary, of which four-and-one-half years were suspended conditioned on appellant's good behavior for 40 years did not constitute excessive and unreasonable punishment. Worsham v. Commonwealth, No. 1944-93-2 (Ct. of Appeals March 14, 1995).

Revocation of suspended sentence justified. - Where the trial court's order suspending defendant's sentence was in writing and plainly stated that defendant was required to pay restitution for his victim's medical expenses not to exceed $10,000, and he had paid only a total of $865.00 during nearly three years on probation despite constant reminders from his probation officer to adhere to his payment schedule, revocation of defendant's probation was justified. Keeling v. Commonwealth, 25 Va. App. 312, 487 S.E.2d 881 (1997).

Sentencing court did not abuse its discretion in holding that defendant committed a new violation of the conditions of his probation and suspended sentence, rather than merely reconsidering the suspension of his sentence, because it had authority to consider the entire period of time from the original suspension of defendant's sentence through the revocation hearing, and the evidence supported its finding that defendant violated the terms of the suspended sentence and probation by committing new crimes. Mooney v. Commonwealth, No. 1452-12-2, 2013 Va. App. LEXIS 262 (Ct. of Appeals Sept. 24, 2013).

Trial court did not abuse its discretion in imposing the remainder of appellant's original sentence when it revoked his suspended sentence as there was no dispute that the original four-year sentence fell within the statutory range, the suspension conditions were reasonable, and appellant repeatedly violated those conditions. Wallace v. Commonwealth, No. 1631-19-4, 2020 Va. App. LEXIS 211 (July 21, 2020).

CIRCUIT COURT OPINIONS

Bond pending appeal. - Circuit court had authority to grant defendant's petition for bond pending an appeal by the Commonwealth, after the appellate court had reversed defendant's conviction, where defendant's original sentence had been suspended, in part, by the trial court pursuant to this section. Commonwealth v. Smith, 54 Va. Cir. 629, 1999 Va. Cir. LEXIS 727 (Richmond 1999).

Time limitations. - Because more than 21 days had lapsed since the entry of a final sentencing order, and because none of the exceptions in § 19.2-303 applied, the circuit court lacked jurisdiction to alter defendant's sentence under Va. Sup. Ct. R. 1:1. Commonwealth v. Flinchum, 79 Va. Cir. 549, 2009 Va. Cir. LEXIS 224 (Salem Nov. 30, 2009).

Postrelease periods contemplated by §§ 18.2-10 and 19.2-295.2 did not conflict with the trial court's sentencing powers under the statute. Commonwealth v. Washington, 55 Va. Cir. 358, 2001 Va. Cir. LEXIS 299 (Rockingham County 2001).

Polygraph testing of sex offenders constitutes a reasonable condition of probation pursuant to this section absent evidence that the procedures employed by the probation officer or polygraph examiner unduly burden the probationer's Fifth Amendment right against self-incrimination. Commonwealth v. Hill, 55 Va. Cir. 155, 2001 Va. Cir. LEXIS 66 (Fairfax County 2001).

Trial judge without authority to modify former sentence. - On motion brought by a legal permanent resident seeking reduction of a 12 months suspended sentence and inactive probation, already served, so as to avoid possible sanctions by the Immigration and Naturalization Service, the trial court did not have authority to grant complainant's application for writ of audita querela in order to modify her sentence, since it was entered pursuant to a guilty plea and had already been served. Commonwealth v. Sharma, 58 Va. Cir. 460, 2002 Va. Cir. LEXIS 70 (Fairfax County 2002).

Suspension of finding of guilt or innocence inappropriate. - Even if a trial court could suspend a finding of guilt or innocence, it was inappropriate to do so in defendant's case after she was found guilty of grand larceny; defendant's bona fide claim of right, based upon her belief that she owned the bracelet in question, was contradicted by credible and overwhelming evidence. Commonwealth v. Bryant, 57 Va. Cir. 162, 2001 Va. Cir. LEXIS 514 (Danville 2001).

Not applicable to improper driving violation. - Juvenile who was found guilty of improper driving could not be ordered to pay restitution because improper driving was a traffic infraction under § 46.2-869 , not an offense under § 19.2-303 , and was not a crime to which §§ 19.2-305.1 B or 19.2-305 B was applicable. Commonwealth v. Warwick, 78 Va. Cir. 336, 2009 Va. Cir. LEXIS 145 (Brunswick County May 18, 2009).

Restitution. - Commonwealth's motion to modify the restitution portion of the sentencing order was denied because the court did not have jurisdiction to amend or modify the sentencing order as the court was divested of jurisdiction to modify, vacate, or suspend a final order once 21 days had lapsed since its entry; the portion of the sentencing order regarding how defendant would pay restitution was as stated in the record, and, as such, the exception to correct a final order that was inconsistent with what actually occurred in the proceeding or with what the court ordered but was mistakenly recorded or omitted, did not apply; and the Commonwealth sought to modify the sentencing order other than to affect the unserved portion of defendant's sentence. Commonwealth v. Anderson, 98 Va. Cir. 442, 2013 Va. Cir. LEXIS 218 (Chesapeake 2013).

Circuit court did not have jurisdiction to order restitution after 21 days from entry of sentencing orders. Because the circuit court never sentenced one of the defendants to pay restitution, restitution was not an unserved portion of this defendant's sentence subject to the circuit court's modification. Commonwealth v. Amaya, 94 Va. Cir. 378, 2016 Va. Cir. LEXIS 155 (Fredericksburg Oct. 11, 2016).

§ 19.2-303.01. Reduction of sentence; substantial assistance to prosecution.

Notwithstanding any other provision of law or rule of court, upon motion of the attorney for the Commonwealth, the sentencing court may reduce the defendant's sentence if the defendant, after entry of the final judgment order, provided substantial assistance in investigating or prosecuting another person for (i) an act of violence as defined in § 19.2-297.1 , an act of larceny of a firearm in violation of § 18.2-95 , or any violation of § 18.2-248 , 18.2-248 .01, 18.2-248.02 , 18.2-248.03 , 18.2-248.1 , 18.2-248.5 , 18.2-251.2 , 18.2-251.3 , 18.2-255 , 18.2-255 .2, 18.2-258 , 18.2-258 .02, 18.2-258.1 , or 18.2-258.2 , or any substantially similar offense in any other jurisdiction, which offense would be a felony if committed in the Commonwealth; (ii) a conspiracy to commit any of the offenses listed in clause (i); or (iii) violations as a principal in the second degree or accessory before the fact of any of the offenses listed in clause (i). In determining whether the defendant has provided substantial assistance pursuant to the provisions of this section, the court shall consider (a) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the Commonwealth's evaluation of the assistance rendered; (b) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (c) the nature and extent of the defendant's assistance; (d) any injury suffered or any danger or risk of injury to the defendant or his family resulting from his assistance; and (e) the timeliness of the defendant's assistance. If the motion is made more than one year after entry of the final judgment order, the court may reduce a sentence only if the defendant's substantial assistance involved (1) information not known to the defendant until more than one year after entry of the final judgment order, (2) information provided by the defendant within one year of entry of the final judgment order but that did not become useful to the Commonwealth until more than one year after entry of the final judgment order, or (3) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after entry of the final judgment order and which was promptly provided to the Commonwealth by the defendant after its usefulness was reasonably apparent.

(2018, cc. 492, 493; 2020, c. 765.)

The 2020 amendments. - The 2020 amendment by c. 765, inserted "an act of larceny of a firearm in violation of § 18.2-95 " in the first sentence and made stylistic changes.

CASE NOTES

Construction. - Trial court erred by dismissing the motions to reconsider defendant's sentence filed by the Commonwealth and defendant based on his substantial assistance in an unrelated murder investigation because this section authorized the trial court to reduce defendant's sentence below the mandatory minimum period of incarceration provided by subsection C of § 18.2-248 , as the plain language of § 19.2-303.01 indicated the General Assembly intended that the statute function without obstruction from other incongruous laws. Holloway v. Commonwealth, 72 Va. App. 370, 846 S.E.2d 19, 2020 Va. App. LEXIS 224 (2020).

§ 19.2-303.02. Modification of conditions of suspended sentence or probation to require fingerprinting.

In any case where the court has suspended the imposition or execution of a sentence or placed the defendant on probation, the court may modify the sentence or conditions of probation at any time within the period of suspension or supervision to require that the fingerprints and photograph of the defendant be taken by a law-enforcement officer as a condition of that suspended sentence or probation, but only upon a hearing after reasonable notice to both the defendant and the attorney for the Commonwealth.

(2019, cc. 782, 783.)

§ 19.2-303.1. Fixing period of suspension of sentence.

In any case where a court suspends the imposition or execution of a sentence, it may fix the period of suspension for up to the statutory maximum period for which the defendant might originally have been sentenced to be imprisoned. The limitation on the period of suspension shall not apply to the extent that an additional period of suspension is necessary for the defendant to participate in a court-ordered program.

(1982, c. 636; 2021, Sp. Sess. I, c. 538.)

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 538, effective July 1, 2021, rewrote the section, which read: "In any case where a court suspends the imposition or execution of a sentence, it may fix the period of suspension for a reasonable time, having due regard to the gravity of the offense, without regard to the maximum period for which the defendant might have been sentenced."

Research References. - Virginia Forms (Matthew Bender). No. 9-2604. Motion to Suspend Sentence.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 76.

CASE NOTES

Liberal construction. - The statutes obviously confer upon trial courts wide latitude and much discretion in matters of suspension and probation to provide a remedial tool in the rehabilitation of criminals and, to that end, should be liberally construed. Wright v. Commonwealth, 32 Va. App. 148, 526 S.E.2d 784, appeal dismissed, 261 Va. 1 , 539 S.E.2d 432 (2000).

The court's authority to suspend execution is not absolute; the legislature has authorized suspension "for a reasonable time, having due regard to the gravity of the offense." Simmers v. Commonwealth, 11 Va. App. 375, 398 S.E.2d 693 (1990).

Facts may authorize or require longer suspension. - Under this section the court must consider that the facts surrounding a particular offense may well authorize, even require, a longer suspension than would be reasonable under less egregious circumstances. Simmers v. Commonwealth, 11 Va. App. 375, 398 S.E.2d 693 (1990).

Although defendant had no criminal history at the time defendant pled guilty to possession of illegal mushrooms, defendant's suspended sentence of 20 years was not unreasonable in light of the information produced at the sentencing hearing that defendant had an extensive history of illegal drug usage prior to defendant's conviction and sentencing for possession of illegal mushrooms; in light of that information, the lengthy suspended sentence was not unreasonable. Patterson v. Commonwealth, 39 Va. App. 610, 575 S.E.2d 583, 2003 Va. App. LEXIS 34 (2003).

When a trial court had subject matter jurisdiction over defendant's 1998 hearing to revoke his suspended sentence and extended defendant's period of suspension, the trial court did not err in revoking defendant's suspended sentence in 2010, pursuant to subsection A of § 19.2-306 , because the suspension took place within the fourteen-year period established in the 1998 sentencing order; defendant was not entitled to collaterally attack the 1998 sentencing order because the order was not void. Dunham v. Commonwealth, 59 Va. App. 634, 721 S.E.2d 824, 2012 Va. App. LEXIS 49 (2012), aff'd, 284 Va. 511 , 733 S.E.2d 660, 2012 Va. LEXIS 201 (Va. 2012).

Authority to suspend sentence extends to revocation proceedings. - This section which expressly provides that a trial court may suspend a sentence for a reasonable time "in any case," pertains not only to a defendant's initial sentencing but also to sentencing in revocation proceedings and a court could, therefore, reimpose a five year suspension period in a revocation proceeding, even though that period would extend beyond the end of the five-year period originally imposed. Wright v. Commonwealth, 32 Va. App. 148, 526 S.E.2d 784, appeal dismissed, 261 Va. 1 , 539 S.E.2d 432 (2000).

Section 19.2-303.1 , which expressly provides that a trial court may suspend a sentence for a reasonable time, applies not only to a defendant's initial sentencing but also to a sentence imposed in a subsequent revocation proceeding. Keene v. Commonwealth, No. 0043-03-1, 2003 Va. App. LEXIS 679 (Ct. of Appeals Dec. 23, 2003).

Trial court had authority to revoke the suspension of defendant's malicious wounding sentence after defendant was convicted of murder because the trial court reasonably concluded it had originally suspended his sentence for the maximum period allowable for the convictions in that case; the same judge who sentenced defendant originally presided over the revocation hearing, and he concluded that he intended to suspend the execution of both sentences for the maximum time permitted by law. Davis v. Commonwealth, 70 Va. App. 722, 833 S.E.2d 87, 2019 Va. App. LEXIS 219 (2019).

Active jurisdiction to revoke suspended sentence. - Circuit court erred in revoking defendant's suspended sentence because it no longer had "active" jurisdiction to do so; the circuit court had "active" jurisdiction to find defendant in violation of the conditions for his suspended sentence during a period of five years and six months, and thus, its "active" jurisdiction to revoke defendant's suspended sentence terminated for any action by defendant that occurred after the five years and six months of his suspended sentence. Wilson v. Commonwealth, 67 Va. App. 82, 793 S.E.2d 15 (2016).

Indefinite suspension and probation. - Where a defendant was convicted of robbery, for which the maximum sentence permitted is life in prison, the trial court did not impose a period of suspension or probation that exceeded the maximum when it ordered an indefinite period of suspension and an indefinite period of probation; such sentence was reasonable given the gravity of the offense. Cherry v. Commonwealth, No. 0468-00-1, 2001 Va. App. LEXIS 198 (Ct. of Appeals Apr. 17, 2001).

Trial court did not err in conditioning defendant's suspended sentence on indefinite periods of good behavior and supervised probation because it did not exceed the statutory maximum for the offense of which defendant was convicted, defendant confused the trial court's authority in fashioning a sentence with its authority in placing conditions upon suspended sentences, and the trial court gave due regard to the gravity of the offense - second-degree murder - and the conditions it imposed were reasonable. Roy v. Commonwealth,, 2015 Va. App. LEXIS 15 (Jan. 20, 2015).

Although defendant could only have been incarcerated for 20 years, this section authorized the trial court to suspend his sentence beyond that time period. Willard v. Commonwealth, No. 1326-17-3, 2018 Va. App. LEXIS 213 (Aug. 7, 2018).

Lifetime probation. - Trial court was authorized to place conditions on that part of defendant's sentence that was suspended, including lifetime probation under certain conditions, and, thus, the trial court did not err in placing conditions on defendant's suspended sentence that included lifetime probation in a case where defendant pled guilty to seven felonies arising out of the accidental shooting of a friend, as defendant could have received up to 105 years in prison and only received 65 years with 35 years of those suspended based on certain conditions, including the lifetime probation. Lathram v. Commonwealth, No. 0155-05-4,, 2006 Va. App. LEXIS 168 (Ct. of Appeals May 2, 2006).

Trial court did not err by placing defendant on probation for the remainder of his life even though it did not also extend the suspension of his sentence because the holdings of Briggs and Wright were consistent with this section and the trial court had the authority to suspend defendant's sentence for the remainder of his life after it revoked the previous suspension. Baughman v. Commonwealth, No. 0346-18-4, 2019 Va. App. LEXIS 299 (Dec. 17, 2019).

Lifetime good behavior. - Circuit court properly imposed a condition of good behavior for the rest of defendant's life because defendant neither objected to the condition nor filed any post-sentencing motions contesting his sentence, he also failed to provide the required legal authority, all of his prior probations or paroles were revoked because he reoffended, absconded, or both, and based on his history and attitude, the trial court's imposition of a lifetime requirement of good behavior was reasonable. Kelly v. Commonwealth, No. 1075-18-1, 2019 Va. App. LEXIS 204 (Sept. 24, 2019).

Circuit court properly imposed as a condition of defendant's suspended sentence that he be of good behavior for the rest of his life upon his release from incarceration because defendant did not object before the trial court to the condition and made no motion within 21 days of sentencing to vacate the provision, and there were no grounds to apply the ends of justice exception inasmuch as the condition was reasonably based on defendant's history of ignoring court orders and disobeying probation officers indicated continuing criminal wrongdoing and no amenability to rehabilitation. Kelly v. Commonwealth,, 2019 Va. App. LEXIS 205 (Sept. 24, 2019).

Applied in Briggs v. Commonwealth, 21 Va. App. 338, 464 S.E.2d 512 (1995).

§ 19.2-303.2. Persons charged with first offense may be placed on probation.

Whenever any person who has not previously been convicted of any felony, or has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, pleads guilty to or enters a plea of not guilty to any crime against property constituting a misdemeanor, under Article 3 (§ 18.2-95 et seq.), 5 (§ 18.2-119 et seq.) except for a violation of § 18.2-130 or 18.2-130.1 , 6 (§ 18.2-137 et seq.), 7 (§ 18.2-144 et seq.), or 8 (§ 18.2-153 et seq.) of Chapter 5 of Title 18.2, the court, upon such plea if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation subject to terms and conditions, which may include restitution for losses caused, set by the court. If the court defers further proceedings for an offense that is required to be reported to the Central Criminal Records Exchange pursuant to § 19.2-390 , at that time the court shall determine whether the clerk of court has been provided with the fingerprint identification information or fingerprints of the accused, taken by a law-enforcement officer pursuant to § 19.2-390 , and, if not, shall order that the fingerprints and photograph of the accused be taken by a law-enforcement officer. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, and upon determining that the clerk of court has been provided with the fingerprint identification information or fingerprints of such person for an offense that is required to be reported to the Central Criminal Records Exchange pursuant to § 19.2-390, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purpose of applying this section in subsequent proceedings.

(1985, c. 617; 2019, cc. 782, 783; 2020, cc. 989, 990.)

The 2019 amendments. - The 2019 amendments by cc. 782 and 783 are identical, and inserted the second sentence, and "and upon determining that the clerk of court has been provided with the fingerprint identification information or fingerprints of such person for an offense that is required to be reported to the Central Criminal Records Exchange pursuant to § 19.2-390 " in the fourth sentence.

The 2020 amendments. - The 2020 amendments by cc. 989 and 990 are identical, and in the first sentence, inserted "or has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section" and substituted "under Article 3 ( § 18.2-95 et seq.), 5 ( § 18.2-119 et seq.) except for a violation of § 18.2-130 or 18.2-130.1 , 6 ( § 18.2-137 et seq.), 7 ( § 18.2-144 et seq.), or 8 ( § 18.2-153 et seq.) of Chapter 5 of Title 18.2" for "under Articles 5, 6, 7 and 8 of Chapter 5 ( § 18.2-119 et seq.) of Title 18.2" and made stylistic changes.

Research References. - Virginia Forms (Matthew Bender). No. 9-2537. Notice of Referral to Probation Officer. No. 9-2601. Order of Probation of First Offender Without Finding of Guilt.

Michie's Jurisprudence. - For related discussion, see 14A M.J. Pardon, Probation and Parole, § 5.

Applied in Epps v. Commonwealth, 59 Va. App. 71, 717 S.E.2d 151, 2011 Va. App. LEXIS 351 (2011).

§ 19.2-303.3. Sentence to local community-based probation services; services agency; requirements for participation; sentencing; and removal from probation; payment of costs towards supervision and services.

  1. Any offender who is (i) convicted on or after July 1, 1995, of a misdemeanor or a felony that is not a felony act of violence as defined in § 19.2-297.1 , and for which the court imposes a total sentence of 12 months or less, and (ii) no younger than 18 years of age or is considered an adult at the time of conviction may be sentenced to a local community-based probation services agency established pursuant to § 9.1-174 by the local governing bodies within that judicial district or circuit.
  2. In those courts having electronic access to the Local Inmate Data System (LIDS) within the courtroom, at the time of sentencing, the clerk of court shall determine by reviewing LIDS, in any case where there is a felony conviction, whether a sample of the offender's blood, saliva, or tissue or an analysis of the sample is stored in the DNA data bank maintained by the Department of Forensic Science pursuant to Article 1.1 (§ 19.2-310.2 et seq.) of Chapter 18 of this title. If the clerk has determined that a DNA sample or analysis is not stored in the DNA data bank, or in any case in which electronic access to LIDS is not available in the courtroom, the court shall order that the offender appear within 30 days before the sheriff or community-based probation officer and allow the sheriff or community-based probation officer to take the required sample. The order shall also require that, if the offender has not appeared and allowed the sheriff or community-based probation officer to take the required sample by the date stated in the order, then the sheriff or community-based probation officer shall report to the court the offender's failure to appear and provide the required sample. The court may order the offender placed under local community-based probation services pursuant to § 9.1-174 upon a determination by the court that the offender may benefit from these services and is capable of returning to society as a productive citizen with a reasonable amount of supervision and intervention including services set forth in § 9.1-176 . All or part of any sentence imposed that has been suspended, shall be conditioned upon the offender's successful completion of local community-based probation services established pursuant to § 9.1-174 . The court may impose terms and conditions of supervision as it deems appropriate, including that the offender abide by any additional requirements of supervision imposed or established by the local community-based probation services agency during the period of probation supervision.
  3. Any sworn officer of a local community-based probation services agency established or operated pursuant to the Comprehensive Community Corrections Act for Local-Responsible Offenders (§ 9.1-173 et seq.) may seek a capias from any judicial officer for the arrest of any person on local community-based probation and under its supervision for (i) intractable behavior; (ii) refusal to comply with the terms and conditions imposed by the court; (iii) refusal to comply with the requirements of local community-based probation supervision established by the agency; or (iv) the commission of a new offense while on local community-based probation and under agency supervision. Upon arrest, the offender shall be brought for a hearing before the court of appropriate jurisdiction. After finding that the offender (a) exhibited intractable behavior as defined herein; (b) refused to comply with terms and conditions imposed by the court; (c) refused to comply with the requirements of local community-based probation supervision established by the agency; or (d) committed a new offense while on local community-based probation and under agency supervision, the court may revoke all or part of the suspended sentence and supervision, and commit the offender to serve whatever sentence was originally imposed or impose such other terms and conditions of probation as it deems appropriate or, in a case where the proceeding has been deferred, enter an adjudication of guilt and proceed as otherwise provided by law. "Intractable behavior" is that behavior that, in the determination of the court, indicates an offender's unwillingness or inability to conform his behavior to that which is necessary for successful completion of local community-based probation or that the offender's behavior is so disruptive as to threaten the successful completion of the program by other participants.
  4. An offender sentenced to or provided a deferred proceeding and placed on community-based probation pursuant to this section may be required to pay an amount towards the costs of his supervision and services received in accordance with subsection D of § 9.1-182 . (1994, 2nd Sp. Sess., cc. 1, 2; 1995, cc. 502, 574; 1999, c. 372; 2000, c. 1040; 2006, c. 883; 2007, cc. 133, 528.)

The 1999 amendment inserted "in accordance with subsection D of § 53.1-185.2" in subsection D.

The 2000 amendments. - The 2000 amendment by c. 1040 substituted "local community-based probation program" for "community-based corrections program or facility" in the section catchline, and rewrote subsections A, B, and C.

The 2006 amendments. - The 2006 amendment by c. 883 rewrote the section.

The 2007 amendments. - The 2007 amendment by c. 133, in subsection B, in the first sentence of the first paragraph, substituted "under local community-based probation services" for "in a local community-based probation program" and "these services" for "the program" and deleted "programs and" following "including," and substituted "local community-based probation services" for "any program" in the last sentence; and substituted "local community-based probation services agency" for "program" in the last paragraph; inserted "community-based" preceding "board" in five places in subsection C and once in subsection D and "local community-based" preceding "probation" in two places in subsection C; and in subsection C, inserted "services" preceding "agency" in the first sentence and substituted "probation" for "supervision" in clause (d) of the last sentence.

The 2007 amendment by c. 528 inserted the first three sentences and deleted "Proir to or at the time of sentencing" at the beginning of the fourth sentence in subsection B.

Research References. - Virginia Forms (Matthew Bender). No. 9-2537. Notice of Referral to Probation Officer.

Applied in Carroll v. Commonwealth, 54 Va. App. 730, 682 S.E.2d 92, 2009 Va. App. LEXIS 392 (2009).

§ 19.2-303.4. Payment of costs when proceedings deferred and defendant placed on probation.

A circuit or district court, which has deferred further proceedings, without entering a judgment of guilt, and placed a defendant on probation subject to terms and conditions pursuant to § 4.1-305 , 16.1-278.8, 16.1-278.9, 18.2-57.3 , 18.2-61 , 18.2-67.1 , 18.2-67.2 , 18.2-251 , 19.2-298.02 , 19.2-303.2 , or 19.2-303.6 shall impose upon the defendant costs.

(1995, c. 485; 2000, c. 186; 2002, c. 831; 2005, c. 631; 2020, c. 1004; 2020, Sp. Sess. I, c. 21.)

The 2000 amendments. - The 2000 amendment by c. 186 inserted "18.2-57.3" following "16.1-278.9."

The 2002 amendments. - The 2002 amendment by c. 831, effective July 1, 2003, inserted "4.1-305" and substituted "shall impose" for "may impose."

The 2005 amendments. - The 2005 amendment by c. 631 deleted "18.2-67.2:1" preceding "18.2-251" and made minor stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 1004, substituted "19.2-303.2, or 19.2-303.6 " for "or 19.2-303.2 ."

The 2020 Sp. Sess. I amendments. - The 2020 amendment by Sp. Sess. I, c. 21, effective March 1, 2021, inserted "19.2-298.02."

CASE NOTES

Costs mandated. - Defendant's argument that the trial court erred in convicting him for failure of a condition, the payment of costs not set forth in § 18.2-251 was without merit because it was a term and condition authorized by § 18.2-251 and mandated by § 19.2-303.4 ; defendant knew he had one year to complete the condition of court costs payment in order to avoid the consequence provided in § 18.2-251. Smallwood v. Commonwealth, No. 0844-19-4, 2020 Va. App. LEXIS 146 (May 12, 2020).

§ 19.2-303.5.

Expired.

Editor's note. - Acts 2010, c. 845, cls. 1 and 4, were codified as this section at the direction of the Virginia Code Commission.

Acts 2010, c. 845, cl. 2, provides: "That the Virginia Criminal Sentencing Commission shall report to the Chairmen of the House and Senate Courts of Justice Committees on or before January 12, 2012, on the operation and costs of any established immediate sanction probation program, including statistics on the characteristics of the participants and the outcomes of their participation."

Acts 2010, c. 845, cl. 3, provides: "That the Virginia Criminal Sentencing Commission may calculate the impact of a revocation of a suspended sentence for a participant in an immediate sanction probation program differently than the revocation of a sentence pursuant to § 19.2-306 of the Code of Virginia."

Former § 19.2-303.5 , pertaining to immediate sanction probation programs, derived from 2010, c. 845; 2014, c. 314; 2016, c. 201, and expired by its own terms, effective July 1, 2017.

§ 19.2-303.6. Deferred disposition in a criminal case; persons with autism or intellectual disabilities.

  1. In any criminal case, except a violation of § 18.2-31 , an act of violence as defined in § 19.2-297.1 , or any crime for which a deferred disposition is provided for by statute, upon a plea of guilty, or after a plea of not guilty, and the facts found by the court would justify a finding of guilt, the court may, if the defendant has been diagnosed by a psychiatrist or clinical psychologist with (i) an autism spectrum disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association or (ii) an intellectual disability as defined in § 37.2-100 and the court finds by clear and convincing evidence that the criminal conduct was caused by or had a direct and substantial relationship to the person's disorder or disability, without entering a judgment of guilt and with the consent of the accused, after giving due consideration to the position of the attorney for the Commonwealth and the views of the victim, defer further proceedings and place the accused on probation subject to terms and conditions set by the court. Upon violation of a term or condition, the court may enter an adjudication of guilt; or upon fulfillment of the terms and conditions, the court may discharge the person and dismiss the proceedings against him without an adjudication of guilt. This section shall not limit the authority of any juvenile and domestic relations court granted to it in Title 16.1.
  2. Deferred disposition shall be available to the defendant even though he has previously been convicted of a criminal offense, been adjudicated delinquent as a juvenile, or had proceedings deferred and dismissed under this section or under any other provision of law, unless, after having considered the position of the attorney for the Commonwealth, the views of the victims, and any evidence offered by the defendant, the court finds that deferred disposition is inconsistent with the interests of justice.

    (2020, c. 1004.)

§ 19.2-304. Increasing or decreasing probation period and modification of conditions.

The court may subsequently increase or decrease the probation period and may revoke or modify any condition of probation, but only upon a hearing after reasonable notice to both the defendant and the attorney for the Commonwealth.

(Code 1950, § 53-273; 1974, c. 205; 1975, c. 495.)

Law review. - For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971). Cook v. Commonwealth, 211 Va. 290 , 176 S.E.2d 815 (1970) was commented on in 6 U. Rich. L. Rev. 167 (1971).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 76, 77.

CASE NOTES

Suspension and probation distinguished. - This section, § 19.2-303 and former § 53-272 distinguish between a suspension, either of imposition of sentence or of execution of sentence, on the one hand, and probation, on the other. Grant v. Commonwealth, 223 Va. 680 , 292 S.E.2d 348 (1982).

Subject matter jurisdiction. - Neither § 19.2-304 nor § 19.2-306 grants a trial court categorical judicial power over criminal cases or their attendant proceedings, and thus, neither can reasonably be read to strip a trial court of subject matter jurisdiction if the court violates those procedures. Cilwa v. Commonwealth, 298 Va. 259 , 836 S.E.2d 378, 2019 Va. LEXIS 153 (Dec. 12, 2019).

Because the trial court acted within its subject matter jurisdiction when it entered the order extending probation indefinitely until further order, defendant could not collaterally attack that order as void ab initio; the order imposed a term of indefinite probation "until further order by the court" and thus specifically contemplated termination of probation by a subsequent court order. Cilwa v. Commonwealth, 298 Va. 259 , 836 S.E.2d 378, 2019 Va. LEXIS 153 (Dec. 12, 2019).

Extending probation period. - No time limitation in either § 19.2-304 or § 19.2-306 implicates a court's subject matter jurisdiction to enter uncontested orders extending probation periods before or after their expiration; as a result, the parties are free to extend these deadlines, with the trial court's concurrence, even after their expiration. Cilwa v. Commonwealth, 298 Va. 259 , 836 S.E.2d 378, 2019 Va. LEXIS 153 (Dec. 12, 2019).

Effect of extending probation period. - An extension of the period of probation under this section has the effect of extending the time period during which revocation may occur under § 19.2-306 . Cook v. Commonwealth, 211 Va. 290 , 176 S.E.2d 815 (1970).

Where defendant's probation period had been extended under § 19.2-304 , the trial court was entitled to revoke his suspended sentence, although the original period of suspension had expired, because, pursuant to subsection A of § 19.2-306 , the trial court could revoke the suspension anytime during the probation period. Mohamed v. Commonwealth, 56 Va. App. 95, 691 S.E.2d 513, 2010 Va. App. LEXIS 145 (2010).

Fundamental fairness requires a judicial hearing of a summary nature for the probation period to be extended, since increasing the period of probation has the effect of extending the restraints on the probationer's liberty which are normally incident to his probation and extends the time period during which revocation may occur. Cook v. Commonwealth, 211 Va. 290 , 176 S.E.2d 815 (1970).

Hearing required to extend probation. - Trial court erred in revoking defendant's suspended sentence, because defendant had no notice of the request to extend probation and was not given opportunity to be heard on whether probation should have been extended. Thus, the extension was invalid and the cause of revocation occurred beyond the one-year probation period and beyond the two-year period of suspension. Dudash v. Commonwealth,, 2012 Va. App. LEXIS 415 (Dec. 18, 2012).

Although a probation officer's decision to notify defendant verbally, a day before a hearing to extend defendant's probation, that defendant needed to appear before the court was not condoned, defendant did receive actual notice. Therefore, the defect in notice did not render the court's order void, as any defect in notice merely rendered the order voidable. Figueroa v. Commonwealth,, 2015 Va. App. LEXIS 114 (Apr. 7, 2015).

Verbal notice the day before a hearing does not conform to the statutory requirements. Figueroa v. Commonwealth,, 2015 Va. App. LEXIS 114 (Apr. 7, 2015).

Reasonable notice. - Trial court properly revoked the remainder of defendant's suspended sentence when she violated the terms of her probation because the General Assembly did not did not intend to impose the same notice and hearing requirements for abatement of probation when it enacted the notice statute, defendant was unable to show prejudice inasmuch as she acknowledged her release date when she signed the conditions of probation forms, and the trial court retained jurisdiction to revoke defendant's suspended sentence at any time within five years of her conviction. Edwards v. Commonwealth, No. 0043-17-3, 2018 Va. App. LEXIS 96 (Apr. 17, 2018).

Suspension of probation upon event enhancing purpose of probation. - The trial court is given broad discretion to suspend sentences and fix the terms of probation. With this broad authority to fix the terms and conditions of probation, to increase or decrease the probation period, and to revoke or modify any condition of the probation, there is no reason or restriction that would preclude the trial court from suspending the probation upon the occurrence of events that enhance the purpose of probation. Sami v. Commonwealth, No. 0367-86-4 (Ct. of Appeals July 27, 1987).

Invalid order. - Where defendant was not present when the order was entered extending his period of probation, and no notice was given to him of the action proposed to be taken by the court, and he was afforded no opportunity to be heard on whether his period of probation should be extended, the order was not a valid order. Cook v. Commonwealth, 211 Va. 290 , 176 S.E.2d 815 (1970).

There was no error in a trial court finding that a probationer violated the terms of probation and in the court revoking the probationer's suspended sentence when the probationer violated special instructions which were imposed by the probation officer at the court's direction. Furthermore, the instructions which the probation officer imposed were reasonable and warranted enforcement and were tailored to a sex offender such as the probationer. Smith v. Commonwealth, No. 0038-17-1, 2017 Va. App. LEXIS 316 (Dec. 12, 2017).

Authority of court to modify condition of suspension. - Evidence supported the trial court's conclusion that a payment allotted to defendant's wife from defendant's military retirement benefit was a condition of defendant's suspended sentences rather than a condition of probation and, thus, that the trial court correctly concluded it lacked authority under Va. Sup. Ct. R. 1:1 to modify the condition pursuant to § 19.2-304 . Reinke v. Commonwealth, 51 Va. App. 357, 657 S.E.2d 805, 2008 Va. App. LEXIS 111 (2008).

Court could impose probation after probation expired because (1) probation was a condition of suspended sentences, and, on finding a violation, a court could revoke and re-suspend any part of the sentence and impose new conditions, (2) a contrary interpretation led to the absurd result that a violation notice could be given after probation expired but another probation period could not be imposed as a condition for re-suspending a revoked sentence, and (3) defendant's continuance requests caused defendant's revocation hearing to be held after the probationary period. Bost v. Commonwealth, No. 1302-17-4, 2018 Va. App. LEXIS 200 (July 24, 2018).

Liberal construction of the statute favors giving a trial court the flexibility to consider and, if appropriate, to adopt an agreed-upon extension to a probation period if doing so would support the court's rehabilitation goals for the criminal and would uphold the court's equally important duty to protect the public from recidivist crime. Cilwa v. Commonwealth, 298 Va. 259 , 836 S.E.2d 378, 2019 Va. LEXIS 153 (Dec. 12, 2019).

Altering conditions of suspended sentence. - Court could remove a good behavior requirement as a probation condition but lacked jurisdiction to alter good behavior and related provisions imposed as conditions of the suspension of a sentence more than 21 days after entry of a sentencing order. McFarland v. Commonwealth, 39 Va. App. 511, 574 S.E.2d 311, 2002 Va. App. LEXIS 770 (2002).

Trial court's order requiring defendant to pay restitution as a condition of his suspended sentence violated the rule because it improperly modified the original sentencing order; in the absence of a finding that defendant violated the original sentencing order, the trial court lacked jurisdiction to enter its sentencing order that added new terms and conditions to the suspended sentence almost three years after the trial court's final order. Majeski v. Commonwealth, No. 2332-14-1, 2015 Va. App. LEXIS 289 (Oct. 13, 2015).

Circuit court abused its discretion in revoking defendant's previously suspended sentence on the ground that he violated the conditions of his probation because defendant's probation officer impermissibly imposed a probation condition that contradicted an express term of probation previously imposed by the circuit court; as the probation officer unilaterally imposed the condition without obtaining judicial approval or following procedure provided in the statute, the condition was ineffective. Massey v. Commonwealth,, 2019 Va. App. LEXIS 53 (Mar. 5, 2019).

Appeal. - Probationer is free to advocate on direct appeal for strict compliance with the statutory time limitations in the absence of an agreement between the parties; what a defendant may not do, however, is rely upon these time limitations as a basis for a collateral attack on an earlier agreed-upon order. Cilwa v. Commonwealth, 298 Va. 259 , 836 S.E.2d 378, 2019 Va. LEXIS 153 (Dec. 12, 2019).

Applied in Anderson v. Commonwealth, 25 Va. App. 565, 490 S.E.2d 274 (1997).

§ 19.2-305. Requiring fines, costs, restitution for damages, support, or community services from probationer.

  1. While on probation the defendant may be required to pay in one or several sums a fine or costs, or both such fine and costs, imposed at the time of being placed on probation as a condition of such probation, and the failure of the defendant to pay such fine or costs, or both such fine and costs, at the prescribed time or times may be deemed a breach of such probation. The provisions of this subsection shall also apply to any person ordered to pay costs pursuant to § 19.2-303.3 .
  2. A defendant placed on probation following conviction may be required to make at least partial restitution or reparation to the aggrieved party or parties for damages or loss caused by the offense for which conviction was had, or may be required to provide for the support of his spouse or others for whose support he may be legally responsible, or may be required to perform community services. The defendant may submit a proposal to the court for making restitution, for providing for support, or for performing community services.
  3. No defendant shall be kept under supervised probation solely because of his failure to make full payment of fines, fees, or costs, provided that, following notice by the probation and parole officer to each court and attorney for the Commonwealth in whose jurisdiction any fines, fees, or costs are owed by the defendant, no such court or attorney for the Commonwealth objects to his removal from supervised probation.

    (Code 1950, § 53-274; 1962, c. 143; 1975, c. 495; 1977, c. 682; 1978, c. 716; 1984, c. 32; 1995, c. 485; 2009, c. 240; 2020, c. 900.)

The 2009 amendments. - The 2009 amendment by c. 240 added subsection C.

The 2020 amendments. - The 2020 amendment by c. 900, substituted "spouse" for "wife" in subsection B, first sentence.

Law review. - For article on criminal restitution, a survey of its past history and an analysis of its present usefulness, see 5 U. Rich. L. Rev. 71 (1970).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

Research References. - Virginia Forms (Matthew Bender). No. 9-2537. Notice of Referral to Probation Officer.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 78, 90, 92.

CASE NOTES

Restitution provisions applicable to probationer. - By its terms, the restitution portion of this statute comes into play when the defendant is on probation. This is the import of the words "Such defendant." They refer to the first sentence where the defendant is described as one on probation. Baker v. Commonwealth, 230 Va. 252 , 335 S.E.2d 276 (1985).

Payment of restitution. - Trial court erred in requiring defendant to pay, as a condition of his suspended sentence, restitution that included the cost of the installation of a security system installed by the burglary victims after the burglary because, while related to defendant's burglary, the installation of a security system was not caused by the offense, and the attenuation was too great. Howell v. Commonwealth, 274 Va. 737 , 652 S.E.2d 107, 2007 Va. LEXIS 121 (2007).

Because defendant's plea agreement to receiving or concealing stolen property in violation of § 18.2-108 specifically waived any right of appeal from the decision of the trial court, not merely the conviction itself, the trial court did not err in ordering defendant to pay restitution pursuant to subsection B of § 19.2-305 . Craig v. Commonwealth,, 2011 Va. App. LEXIS 329 (Nov. 1, 2011).

Restitution was limited to damages caused by the offense. - Under § 19.2-305 (B) restitution was limited to damages caused by the offense; therefore, the trial court abused its discretion when it ordered defendant to pay restitution related to an "indirect" financial loss that occurred when a pipe burst inside a victim's home while the victim was convalescing elsewhere. Maye v. Commonwealth,, 2011 Va. App. LEXIS 40 (Feb. 8, 2011).

Trial court did not abuse its discretion, pursuant to § 19.2-303 , subsection B of § 19.2-305 , and subsection A of § 19.2-305 .1, by the amount of a restitution ordered because the finding by the trial court that the Commonwealth of Virginia Department of Medical Assistance Services received no value from the services rendered to Medicaid-eligible clients by defendant's employee, who actually had no training to be a personal care aide, was not plainly wrong or unsupported by the evidence. Burriesci v. Commonwealth, 59 Va. App. 50, 717 S.E.2d 140, 2011 Va. App. LEXIS 344 (2011).

Restitution proper for damages caused by the offense. - Restitution award was proper, as it was for the medical expenses of an officer who was injured when chasing defendant and thus, was directly caused by defendant's criminal conduct of escaping from police custody. Shelton v. Commonwealth, 66 Va. App. 1, 781 S.E.2d 750, 2016 Va. App. LEXIS 32 (2016).

Amount of restitution. - Trial court did not abuse its discretion in ordering defendant to pay restitution in the amount necessary to replace the locks and cylinders on the first car, which defendant took without authorization, and on the second car, and to reprogram the second car's computer because, by unlawfully taking the first car and its contents, including the victim's purse containing the keys to the second car, defendant compromised the victim's ability to protect her vehicles from unwanted intrusion as both sets of keys were missing when the first car was recovered; and requiring defendant to pay for changing the locks was not too remote or attenuated from the crime of unauthorized use of a motor vehicle to establish an abuse of discretion. Fleisher v. Commonwealth, 69 Va. App. 685, 822 S.E.2d 679, 2019 Va. App. LEXIS 20 (2019).

Amount owed on loan for property damaged or destroyed. - In a case in which defendant was convicted of attempted malicious wounding, the trial court did not err in imposing, as one of the conditions of defendant's suspended sentence, that he was had to pay the victim $6,639.23 in restitution because, although defendant contended that it was error for the trial court to include in his restitution the $3,289.23 still owed by the victim on her car loan after the insurance company had paid her full restitution, a trial court, in determining restitution, could include the amount still owed on a loan for property damaged or destroyed through defendant's criminal acts. Baugh v. Commonwealth, No. 0347-18-2, 2019 Va. App. LEXIS 287 (Dec. 10, 2019).

Payment of court costs. - Because defendant did not pay court costs during the original term of probation as required by a 1995 standing order that was incorporated into the sentencing order, defendant was still under the trial court's jurisdiction when it entered an order extending defendant's probation and thereafter found defendant in violation of probation. Heiderscheidt v. Commonwealth,, 2009 Va. App. LEXIS 256 (June 9, 2009).

Restitution order improper. - Trial court erred in ordering defendant to pay restitution, where there was no evidence that the money orders were negotiated prior to the "stop" placed on them and no evidence to establish the identity of the victim payee. Phillips v. Commonwealth, No. 0237-16-1, 2017 Va. App. LEXIS 88 (Mar. 28, 2017).

Circuit court erred in denying defendant's motion for reconsideration because the trial court ordered him to pay $1,500 restitution to the victim for "what was apparently taken" from the victim's home when defendant pleaded guilty to and was convicted of receiving stolen goods - a television, valued at $450 - and an offense that presupposed he was not the thief. Ellis v. Commonwealth, 68 Va. App. 706, 813 S.E.2d 16, 2018 Va. App. LEXIS 125 (2018).

Court-ordered child support as condition of probation. - Probation condition that defendant report to the Division of Child Support Enforcement and submit to an order of support for any child that was not in his custody was not improper in defendant's conviction for driving after having been declared an habitual offender because subsection B of § 19.2-305 authorized such a condition. Martin v. Commonwealth, 274 Va. 733 , 652 S.E.2d 109 (2007).

CIRCUIT COURT OPINIONS

Entry of judgment. - Where judgment was not entered and the restitution order was not docketed under the statute by order of the court or written request of the victim, criminal restitution could not be ordered. Commonwealth v. Mehryar, 57 Va. Cir. 496, 2000 Va. Cir. LEXIS 521 (Fairfax County Nov. 15, 2000).

Restitution provisions. - Court was granted statutory authority to require a defendant who was placed on probation to pay restitution pursuant to § 19.2-303 and this section. Commonwealth v. Washington, 55 Va. Cir. 358, 2001 Va. Cir. LEXIS 299 (Rockingham County 2001).

Postrelease supervision did equate to probation for purposes of ordering restitution. Commonwealth v. Washington, 55 Va. Cir. 358, 2001 Va. Cir. LEXIS 299 (Rockingham County 2001).

Not applicable to improper driving violation. - Juvenile who was found guilty of improper driving could not be ordered to pay restitution because improper driving was a traffic infraction under § 46.2-869 , not an offense under § 19.2-303 , and was not a crime to which §§ 19.2-305.1 B or 19.2-305 B was applicable. Commonwealth v. Warwick, 78 Va. Cir. 336, 2009 Va. Cir. LEXIS 145 (Brunswick County May 18, 2009).

OPINIONS OF THE ATTORNEY GENERAL

Payment of restitution. - A circuit court has the authority to order that payment of restitution be made prior to payment of court costs. See opinion of Attorney General to The Honorable Dollie M. Compton, Clerk, Circuit Court of Russell County, 00-097 (12/27/01).

§ 19.2-305.1. Restitution for property damage or loss; community service.

  1. Notwithstanding any other provision of law, no person convicted of a crime in violation of any provision in Title 18.2, which resulted in property damage or loss, shall be placed on probation or have his sentence suspended unless such person shall make at least partial restitution for such property damage or loss, or shall be compelled to perform community services, or both, or shall submit a plan for doing that which appears to the court to be feasible under the circumstances.
  2. Notwithstanding any other provision of law, any person who, on or after July 1, 1995, commits, and is convicted of, a crime in violation of any provision in Title 18.2 shall make at least partial restitution for any property damage or loss caused by the crime or for any medical expenses or expenses directly related to funeral or burial incurred by the victim or his estate as a result of the crime, may be compelled to perform community services and, if the court so orders, shall submit a plan for doing that which appears to be feasible to the court under the circumstances. B1. Notwithstanding any other provision of law, any person, who on or after July 1, 2005 commits and is convicted of a crime in violation of § 18.2-248 involving the manufacture of any controlled substance, may be ordered, upon presentation of suitable evidence of such costs, by the court to reimburse the Commonwealth or the locality for the costs incurred by the jurisdiction, as the case may be, for the removal and remediation associated with the illegal manufacture of any controlled substance by the defendant. B2. Notwithstanding any other provision of law, any person who, on or after July 1, 2015, commits and is convicted of a violation of § 18.2-138 for damage to the Capitol or any building, monument, statuary, artwork, or other state property in Capitol Square, or at any other property assigned to the Capitol Police, shall be ordered to pay restitution to the Commonwealth for the full amount of damages. Any person who, on or after July 1, 2015, commits and is convicted of a violation of § 18.2-405 , 18.2-407 , or 18.2-408 in Capitol Square, or at any other property assigned to the Capitol Police, shall be ordered to pay restitution to the Commonwealth for the full amount of damages to the Capitol or any building, monument, statuary, artwork, or other state property in Capitol Square, or at any other property assigned to the Capitol Police, to which damage is caused during such riot or unlawful assembly. In any prosecution under § 18.2-138 , 18.2-405 , 18.2-407 , or 18.2-408 , testimony of the Division of Engineering and Buildings of the Department of General Services or the Division of Risk Management shall be admissible as evidence of value or extent of damages or cost of repairs to the Capitol or any building, monument, statuary, artwork, or other state property in Capitol Square, or at any other property assigned to the Capitol Police. For the purposes of this subsection, "Capitol Square" means the grounds and the interior and exterior of all buildings in that area in the City of Richmond bounded by Bank, Governor, Broad, and Ninth Streets. "Capitol Square" includes the exterior of all state buildings that are at least 50 years old and bordering the boundary streets.
  3. At or before the time of sentencing, the court shall receive and consider any plan for making restitution submitted by the defendant. The plan shall include the defendant's home address, place of employment and address, social security number and bank information. If the court finds such plan to be reasonable and practical under the circumstances, it may consider probation or suspension of whatever portion of the sentence that it deems appropriate. By order of the court incorporating the defendant's plan or a reasonable and practical plan devised by the court, the defendant shall make restitution while he is free on probation or work release or following his release from confinement. Additionally, the court may order that the defendant make restitution during his confinement, if feasible, based upon both his earning capacity and net worth as determined by the court at sentencing.
  4. At the time of sentencing, the court shall determine the amount to be repaid by the defendant and the terms and conditions thereof. If community service work is ordered, the court shall determine the terms and conditions upon which such work shall be performed. The court shall include such findings in the judgment order. The order shall specify that sums paid under such order shall be paid to the clerk, who shall disburse such sums as the court may, by order, direct. The clerk shall record receipt of restitution payments in an automated financial management system operated and maintained by the Executive Secretary of the Supreme Court or such other system established and maintained by a circuit court clerk pursuant to § 17.1-502 . Any court desiring to participate in the Setoff Debt Collection Act (§§ 58.1-520 through 58.1-535 ) for the purpose of collecting fines or costs or providing restitution shall, at the time of sentencing, obtain the social security number of each defendant.
  5. At the time of sentencing, the court shall enter the amount of restitution to be repaid by the defendant, the date by which all restitution is to be paid, the terms and conditions of such repayment, and the victim's name and contact information, including the victim's home address, telephone number, and email address, on a form prescribed by the Office of the Executive Secretary of the Supreme Court of Virginia. If the attorney for the Commonwealth participated in the prosecution of the defendant, the attorney for the Commonwealth or his designee shall complete, to the extent possible, all portions of the form excluding the amount of restitution to be repaid by the defendant and the terms and conditions of such repayment. If the attorney for the Commonwealth did not participate in the prosecution of the defendant, the court or the clerk shall complete the form. A copy of the form, excluding contact information for the victim, shall be provided to the defendant at sentencing. A copy of the form shall be provided to the attorney for the Commonwealth and to the victim, his agent, or his estate upon request and free of charge. Except as provided in this section or otherwise required by law, the victim's contact information shall be confidential, and the clerk shall not disclose such confidential information to any person.
    1. In any case in which the court orders the defendant to pay restitution and places the defendant on probation that includes a period of active supervision, the probation agency supervising the defendant shall notify the court and the attorney for the Commonwealth of the amount of any restitution that remains unsatisfied and the last known address for the defendant (i) 60 days prior to the defendant's release from supervision pursuant to the terms of the sentencing order or (ii) if the agency requests that the defendant be released from supervision, at the time the agency submits its request to the court. Such notice shall be in writing and the attorney for the Commonwealth shall, if practicable, provide a copy of the notice to the victim. If any amount of restitution remains unsatisfied, the court shall conduct a hearing prior to the defendant's release from supervision after providing notice of the hearing to the defendant and the attorney for the Commonwealth. If the court finds that the defendant is not in compliance with the restitution order, the court may (a) release the defendant from supervision, (b) modify the period or terms of supervision pursuant to § 19.2-304 , (c) revoke some or all of the suspended sentence or probation pursuant to § 19.2-306 , or (d) proceed in accordance with subsection E of § 19.2-358 . The court shall also docket the restitution order pursuant to subsection B of § 19.2-305.2 unless such order has previously been docketed. Any defendant who is released from supervision shall be subject to the provisions of subdivision 3. F. 1.  In any case in which the court orders the defendant to pay restitution and places the defendant on probation that includes a period of active supervision, the probation agency supervising the defendant shall notify the court and the attorney for the Commonwealth of the amount of any restitution that remains unsatisfied and the last known address for the defendant (i) 60 days prior to the defendant's release from supervision pursuant to the terms of the sentencing order or (ii) if the agency requests that the defendant be released from supervision, at the time the agency submits its request to the court. Such notice shall be in writing and the attorney for the Commonwealth shall, if practicable, provide a copy of the notice to the victim. If any amount of restitution remains unsatisfied, the court shall conduct a hearing prior to the defendant's release from supervision after providing notice of the hearing to the defendant and the attorney for the Commonwealth. If the court finds that the defendant is not in compliance with the restitution order, the court may (a) release the defendant from supervision, (b) modify the period or terms of supervision pursuant to § 19.2-304 , (c) revoke some or all of the suspended sentence or probation pursuant to § 19.2-306 , or (d) proceed in accordance with subsection E of § 19.2-358 . The court shall also docket the restitution order pursuant to subsection B of § 19.2-305.2 unless such order has previously been docketed. Any defendant who is released from supervision shall be subject to the provisions of subdivision 3.
    2. In any case in which the court orders the defendant to pay restitution and places the defendant on probation that does not include a period of active supervision, the court shall include in the order a date, not to exceed two years from the date of the entry of the order or, if the court has sentenced the defendant to an active term of incarceration, from the date of the defendant's release from incarceration, on which the defendant's compliance with the restitution order shall be reviewed and the court shall schedule a hearing for such date. The court may, on its own motion, cancel the hearing if the amount of restitution has been satisfied. If at the hearing the court finds that the defendant is not in compliance with the restitution order, the court may (i) modify the period or terms of probation pursuant to § 19.2-304, (ii) revoke some or all of the suspended sentence or probation pursuant to § 19.2-306, or (iii) proceed in accordance with the provisions of subsection E of § 19.2-358. The court shall also docket the restitution order pursuant to subsection B of § 19.2-305.2 unless such order has previously been docketed. After the hearing conducted pursuant to this subdivision, the defendant shall be subject to the provisions of subdivision 3.
    3. If any amount of restitution remains unsatisfied at the time of a hearing conducted pursuant to subdivision 1 or 2, the court shall continue to schedule hearings to review the defendant's compliance with the restitution order until the amount of restitution has been satisfied and provide notice of such hearings to the defendant. The court may, on its own motion, cancel any such hearing if the amount of restitution has been satisfied or if the defendant is in compliance with the restitution order. If at any hearing conducted pursuant to this subdivision the court finds that the defendant is not in compliance with the restitution order, the court may (i) modify the period or terms of probation pursuant to § 19.2-304, (ii) revoke some or all of the suspended sentence or probation pursuant to § 19.2-306, or (iii) proceed in accordance with the provisions of subsection E of § 19.2-358. The court shall follow the procedures set forth in this subdivision for the purpose of reviewing compliance with a restitution order by a defendant (a) until the amount of restitution has been satisfied or (b) if any amount of restitution remains unsatisfied, for the longer of 10 years from the date of the hearing held pursuant to subdivision 1 or 2 or the period of probation ordered by the court.
    4. If the court determines at any hearing conducted pursuant to this subsection that the defendant is unable to pay restitution and will remain unable to pay restitution for the duration of the review period set forth in subdivision 3, the court may discontinue any further hearings to review a defendant's compliance with the restitution order.
    5. If the court determines that a defendant would be incarcerated on the date of any hearing scheduled pursuant to this subsection, the court may remove the case from the docket, reschedule such hearing to a date after the defendant's release from incarceration, and provide notice of the hearing to the defendant and the attorney for the Commonwealth. If the defendant who is on probation that includes a period of active supervision is incarcerated, the probation agency supervising the defendant shall notify the court when the defendant has been released from incarceration.
    6. No provision of this subsection shall be construed to prohibit the court from exercising any authority otherwise granted by law over a defendant during any period of probation ordered by the court.
    7. At every hearing conducted pursuant to subdivision 1 where the defendant was convicted of an offense for which a report to the Central Criminal Records Exchange is required under subsection A of § 19.2-390 , if the court has not previously verified that the conviction for such offense appears on the criminal history record of the defendant, the court shall review the criminal history record of the defendant and determine whether the present conviction appears on that record. The probation officer for the defendant shall provide the criminal history record to the court at such hearing. If the present conviction does not appear on the criminal history record, the court shall order that the fingerprints and photograph of the defendant be taken by a law-enforcement officer and submitted to the Central Criminal Records Exchange. If fingerprints and a photograph have previously been taken for such conviction, the probation officer shall provide written or electronic notification to the Central Criminal Records Exchange within the Department of State Police that the conviction does not appear on the offender's criminal history record prior to his release from supervision.
    8. At every hearing conducted pursuant to subdivision 2 where the attorney for the Commonwealth participated in the prosecution and the defendant was convicted of an offense for which a report to the Central Criminal Records Exchange is required under subsection A of § 19.2-390 , if the court has not previously verified that the conviction for such offense appears on the criminal history record of the defendant, the court shall review the criminal history record of the defendant and determine whether the present conviction appears on that record. If the attorney for the Commonwealth participated in the prosecution of the offense, the attorney for the Commonwealth shall provide the criminal history record to the court at such hearing. If the present conviction does not appear on the criminal history record, the court shall order that the fingerprints and photograph of the defendant be taken by a law-enforcement officer and submitted to the Central Criminal Records Exchange. If fingerprints and a photograph have previously been taken for such conviction, the attorney for the Commonwealth shall provide written or electronic notification to the Central Criminal Records Exchange within the Department of State Police that the conviction does not appear on the offender's criminal history record.
  6. Unreasonable failure to execute the plan by the defendant shall result in revocation of the probation or imposition of the suspended sentence. A hearing shall be held in accordance with the provisions of this Code relating to revocation of probation or imposition of a suspended sentence before either such action is taken.
  7. A defendant convicted of an offense under § 18.2-374.1 , 18.2-374.1:1 , or 18.2-374.3 shall be ordered to pay mandatory restitution to the victim of the offense in an amount as determined by the court. For purposes of this subsection, "victim" means a person who is depicted in a still or videographic image involved in an offense under § 18.2-374.1 , 18.2-374.1:1 , or 18.2-374.3 . The Commonwealth shall make reasonable efforts to notify victims of offenses under § 18.2-374.1, 18.2-374.1:1, or 18.2-374.3 .
  8. If restitution is ordered to be paid by the defendant to the victim of a crime and the victim can no longer be located or identified, the clerk shall deposit any such restitution collected to the Criminal Injuries Compensation Fund for the benefit of crime victims by November 1 of each year. If a clerk does not have any such restitution to deposit, the clerk shall provide a statement to that effect to the Fund by November 1 of each year. The administrator shall reserve a sum sufficient in the Fund from which he shall make prompt payment directly to the victim for any proper claims. When depositing such restitution to the Fund, the clerk shall report the victim's last known contact information, including the victim's home address, telephone number, and email address, and the amount of restitution being deposited for that victim. Before making the deposit, the administrator shall record the name, contact information, and amount of restitution being deposited for each victim appearing from the clerk's report to be entitled to restitution. The victim's contact information reported to the Fund shall be confidential and shall not be disseminated further except as otherwise required by law.
  9. If restitution pursuant to § 19.2-305 or this section is ordered to be paid by the defendant to the victim of a crime or other entity, and the Criminal Injuries Compensation Fund has made any payments to or on behalf of the victim for any loss, damage, or expenses included in the restitution order, then upon presentation by the Fund of a written request that sets forth the amount of payments made by the Fund to the victim or on the victim's behalf, the entity collecting restitution shall pay to the Fund as much of the restitution collected as will reimburse the Fund for its payments made to the victim or on the victim's behalf.
  10. Whenever a defendant is ordered to pay restitution, any sums collected shall be used first to satisfy such restitution order and any collection costs associated with restitution prior to being used to satisfy any fine, forfeiture, penalty, or cost assessed against the defendant, unless an order for restitution is docketed in the name of the victim or it is ordered that an assignment of the judgment to the victim be docketed.

    (1977, c. 682; 1978, c. 131; 1981, c. 224; 1984, cc. 32, 269; 1994, c. 197; 1995, cc. 434, 687; 2000, c. 775; 2002, cc. 810, 818; 2003, c. 982; 2005, c. 591; 2011, cc. 575, 588; 2013, c. 273; 2015, cc. 312, 550; 2017, cc. 757, 786, 814; 2018, cc. 316, 671, 724, 725; 2019, cc. 782, 783; 2021, Sp. Sess. I, cc. 190, 393.)

Cross references. - For the Criminal Injuries Compensation Fund, see § 19.2-368.18 .

The 2000 amendments. - The 2000 amendment by c. 775 added subsection E.

The 2002 amendments. - The 2002 amendments by cc. 810 and 818 are identical and, in subsection C, deleted "in its discretion" following "court" in the first sentence and substituted "shall specify" for "may specify" in the fourth sentence.

The 2003 amendments. - The 2003 amendment by c. 982 redesignated former subsections A1 through E as subsections B through F; deleted "except the provisions of Article 2 ( § 18.2-266 et seq.) of Chapter 7 of Title 18.2, on or after July 1, 1977" following "Title 18.2" in subsection A; and in subsection B, deleted "except the provisions of Article 2 ( § 18.2-266 et seq.) of Chapter 7 of Title 18.2" following "Title 18.2," and substituted "any medical expenses or expenses directly related to funeral or burial incurred by the victim or his estate" for "actual medical expenses incurred by the victim."

The 2005 amendments. - The 2005 amendment by c. 591, added subsection B1.

The 2011 amendments. - The 2011 amendments by cc. 575 and 588 are identical, and added subsection E1.

The 2013 amendments. - The 2013 amendment by c. 273 added subsection G.

The 2015 amendments by cc. 312 and 550 are identical, and added subsection B2.

The 2017 amendments. - The 2017 amendment by c. 757 added subsection J.

The 2017 amendments by cc. 786 and 814 are identical, and inserted subsection E and redesignated remaining subsections accordingly.

The 2018 amendments. - The 2018 amendments by cc. 316 and 671 are identical, and added subsection F, and redesignated the remaining subsections accordingly.

The 2018 amendments by cc. 724 and 725 are identical, and in subsection D, inserted the fifth sentence; in subsection E, inserted "and the victim's name and contact information, including the victim's home address, telephone number, and email address" in the first sentence and added the sixth sentence; rewrote subsection H, inserted "by November 1 of each year" in the first sentence, inserted the second sentence, inserted "directly" in the third sentence, inserted the fourth sentence, substituted "the administrator shall record the name, contact information, and amount of restitution being deposited for" for "he shall record the name, last known address and amount of restitution due" in the fifth sentence and added the sixth sentence.

The 2019 amendments. - The 2019 amendments by cc. 782 and 783 are identical, and added subdivisions F 7 and 8.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 190 and 393, effective July 1, 2021, are identical, and deleted "as a civil judgment" preceding "pursuant to subsection B" in subdivisions F 1 and 2; and added "unless an order for restitution is docketed in the name of the victim or it is ordered that an assignment of the judgment to the victim be docketed" in subsection K.

Law review. - For survey of Virginia criminal law for the year 1976-77, see 63 Va. L. Rev. 1396 (1977). For article, "Explaining Restitution," see 71 Va. L. Rev. 65 (1985).

Research References. - Virginia Forms (Matthew Bender). No. 9-2537. Notice of Referral to Probation Officer. No. 9-2602. Probation and Diversion Order - Local - Misdemeanor.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 90.

CASE NOTES

Jurisdiction. - Because the circuit court clearly had subject matter jurisdiction to order restitution in the sentencing order, it was not void but merely voidable; defendant failed to timely challenge the validity of the circuit court's sentencing order, and thus, his challenge to the order came too late and was an impermissible collateral attack on that order. Wilson v. Commonwealth, 67 Va. App. 82, 793 S.E.2d 15 (2016).

Intent that restitution be expressly ordered. - The legislature intended that the restitution requirement be expressly ordered. Russnak v. Commonwealth, 10 Va. App. 317, 392 S.E.2d 491 (1990).

Ability to pay is a necessary consideration in the trial court's determination of cause for the failure to pay restitution ordered as a condition of a suspended sentence, thus, where the evidence established that the failure resulted solely from an inability to pay and not a willful refusal, it was an abuse of discretion to automatically revoke the prior suspended sentence without considering reasonable alternatives to imprisonment. Duff v. Commonwealth, 16 Va. App. 293, 429 S.E.2d 465 (1993).

Circuit court abused its discretion in finding that defendant's payments towards restitution were unreasonable. The evidence showed that defendant made payments totaling $1,750 towards restitution, and these payments, based on the limited evidence presented, were in line with the amount defendant could afford to pay, and the trial court made no factual findings to the contrary. Ruff v. Commonwealth, No. 1392-18-1, 2020 Va. App. LEXIS 11 (Jan. 14, 2020).

The phrase "such property damage or loss" in subsection A refers back to that which "resulted" from the crime in question; therefore, restitution may be ordered only for damage or loss resulting from or caused by the crime for which the person is convicted. Thompson v. Commonwealth, No. 0686-89-2 (Ct. of Appeals June 11, 1991).

Amount of restitution. - Trial court did not abuse its discretion, pursuant to § 19.2-303 , subsection B of § 19.2-305 , and subsection A of § 19.2-305 .1, by the amount of a restitution ordered because the finding by the trial court that the Commonwealth of Virginia Department of Medical Assistance Services received no value from the services rendered to Medicaid-eligible clients by defendant's employee, who actually had no training to be a personal care aide, was not plainly wrong or unsupported by the evidence. Burriesci v. Commonwealth, 59 Va. App. 50, 717 S.E.2d 140, 2011 Va. App. LEXIS 344 (2011).

Restitution evidence was supported by a preponderance of the evidence; the victim prepared a list of stolen items with values and the list clearly bore some indicia of reliability, as the victim assessed the value of the stolen items not returned and gave that information to her insurance carrier and the police. Sigler v. Commonwealth, 61 Va. App. 674, 739 S.E.2d 272, 2013 Va. App. LEXIS 108 (2013).

Trial court did not abuse its discretion in ordering defendant to pay restitution in the amount necessary to replace the locks and cylinders on the first car, which defendant took without authorization, and on the second car, and to reprogram the second car's computer because, by unlawfully taking the first car and its contents, including the victim's purse containing the keys to the second car, defendant compromised the victim's ability to protect her vehicles from unwanted intrusion as both sets of keys were missing when the first car was recovered; and requiring defendant to pay for changing the locks was not too remote or attenuated from the crime of unauthorized use of a motor vehicle to establish an abuse of discretion. Fleisher v. Commonwealth, 69 Va. App. 685, 822 S.E.2d 679, 2019 Va. App. LEXIS 20 (2019).

Impact statement may be source for restitution amount. - The legislature intended that the victim impact statement be used by trial judge to determine the amount of restitution. Alger v. Commonwealth, 19 Va. App. 252, 450 S.E.2d 765 (1994).

Trial court required to set restitution amount. - Sentencing court properly vacated that portion of the original sentencing order that ordered a probation officer to set restitution and set a restitution amount as was required by subsection C. McKenney v. Commonwealth, Nos. 3330-02-2, 0473-03-2, 2004 Va. App. LEXIS 157 (Ct. of Appeals Apr. 6, 2004).

Circuit court improperly delegated the determination of defendant's restitution amount to the probation officer because its sentencing order stated that defendant had to pay restitution in the amount to be determined by the probation officer; however, the improper delegation did not negate any restitution ever being ordered. Wilson v. Commonwealth, 67 Va. App. 82, 793 S.E.2d 15 (2016).

Court given broad discretion. - When restitution is made by, or on behalf of, a defendant, the requirement for payment of restitution may be satisfied, but that determination can only be made if and when the Commonwealth seeks to execute a suspended portion of a sentence based upon an assertion that required restitution has not been paid, and there is evidence in the record that permits effective appellate review, an issue that would be premature and advisory. Keith v. Commonwealth, No. 0694-17-3, 2018 Va. App. LEXIS 127 (May 8, 2018).

Cost of security system improper as part of restitution. - Trial court erred in requiring defendant to pay, as a condition of his suspended sentence, restitution that included the cost of the installation of a security system installed by the burglary victims after the burglary because, while related to defendant's burglary, the installation of a security system was not caused by the offense, and the attenuation was too great. Howell v. Commonwealth, 274 Va. 737 , 652 S.E.2d 107, 2007 Va. LEXIS 121 (2007).

Recovery of damages does not affect restitution. - In many cases, the victim of a crime may recover damages from their own insurance carrier; such payments do not affect any court-ordered restitution for a number of reasons, including the fact that such payments are irrelevant to the rehabilitative and penal goals of restitution, and because in that situation, the insurance proceeds are paid to and also on behalf of the victim of the crime, not the defendant who committed it. Keith v. Commonwealth, No. 0694-17-3, 2018 Va. App. LEXIS 127 (May 8, 2018).

Amount owed on loan for property damaged or destroyed. - In a case in which defendant was convicted of attempted malicious wounding, the trial court did not err in imposing, as one of the conditions of defendant's suspended sentence, that he was had to pay the victim $6,639.23 in restitution because, although defendant contended that it was error for the trial court to include in his restitution the $3,289.23 still owed by the victim on her car loan after the insurance company had paid her full restitution, a trial court, in determining restitution, could include the amount still owed on a loan for property damaged or destroyed through defendant's criminal acts. Baugh v. Commonwealth, No. 0347-18-2, 2019 Va. App. LEXIS 287 (Dec. 10, 2019).

The sentencing court is given broad discretion as to whether it will order restitution in lieu of a suspended sentence. Therefore, there is an inherent uncertainty as to whether restitution will be ordered in the first instance, and if so, under what terms and conditions. Starr v. Virginia, 147 Bankr. 380 (Bankr. E.D. Va. 1991).

No implicit restitution arises from order silent on issue. - Because the statute requires the trial judge to include the terms of restitution in the sentencing order, no "implicit" requirement of "some form of restitution" arises from an order that is otherwise silent as to that issue. Russnak v. Commonwealth, 10 Va. App. 317, 392 S.E.2d 491 (1990).

Two separate statutory enforcement mechanisms. - Two separate statutory enforcement mechanisms for accomplishing compliance with a restitution obligation grant a trial court the authority to impose a duty to pay restitution as an express condition of a suspended sentence, either with or without a term of probation, and a duty to pay restitution as a freestanding legal obligation uncoupled to any particular sentence. Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).

When this section and § 19.2-306 are applied in conjunction, the requirement of subsection D of this section, that only "unreasonable" failure to pay restitution shall result in revocation of a suspended sentence, restricts the scope of the court's authority under § 19.2-306 to revoke a suspension for "any cause" deemed by it sufficient. Duff v. Commonwealth, 16 Va. App. 293, 429 S.E.2d 465 (1993).

A reasonable failure to pay restitution negates a reasonable cause to revoke a suspended sentence. Duff v. Commonwealth, 16 Va. App. 293, 429 S.E.2d 465 (1993).

Revocation justified. - Where the trial court's order suspending defendant's sentence was in writing and plainly stated that defendant was required to pay restitution for his victim's medical expenses not to exceed $10,000, and he had paid only a total of $865.00 during nearly three years on probation despite constant reminders from his probation officer to adhere to his payment schedule, revocation of defendant's probation was justified. Keeling v. Commonwealth, 25 Va. App. 312, 487 S.E.2d 881 (1997).

What discretion exists in the ordering of restitution demonstrates the General Assembly intended restitution to be used in a complementary fashion with other remedial sentencing tools; the majority of defendant's criminal sentence was suspended, and thus, it made sense to presume that the suspension was made in concert with the order of restitution for rehabilitative purposes. Keith v. Commonwealth, No. 0694-17-3, 2018 Va. App. LEXIS 127 (May 8, 2018).

Circuit court did not abuse its discretion by ordering defendant to pay restitution because defendant's restitution obligation was not a claim of the victim's estate subject to a settlement order in another jurisdiction; rather, it was a component of a criminal sentence and both a penal sanction and rehabilitative remedy payable to the victim's mother in her capacity as a statutorily defined "victim" of a criminal act and not as executor or beneficiary of the victim's estate. Keith v. Commonwealth, No. 0694-17-3, 2018 Va. App. LEXIS 127 (May 8, 2018).

Abuse of discretion in revoking suspended sentence. - Circuit court abused its discretion when it revoked defendant's suspended sentences because there was no evidence that showed whether or when defendant failed to make the monthly restitution payments; because the evidence was insufficient to prove that defendant failed to pay restitution according to her repayment plan, there was no evidence her alleged failure to pay restitution was unreasonable. Langen v. Commonwealth, No. 0745-16-1, 2017 Va. App. LEXIS 101 (Apr. 11, 2017).

Court's alternative where failure to pay restitution not willful. - A court may modify restitution plan consistent with the defendant's ability to pay or employ some other means to permit the victim to recover the loss where the failure to follow the plan resulted solely from an inability to pay and was not a willful refusal. Duff v. Commonwealth, 16 Va. App. 293, 429 S.E.2d 465 (1993).

Joint and several liability proper. - Although defendant was acting in concert with others, he was guilty of all crimes committed and was fully responsible for the total loss which the victim sustained. Where the trial court determined that defendant would be jointly and severally liable for victim-company's total loss, it acted within its sentencing authority in ordering restitution in the amount of $42,804.46. Bazemore v. Commonwealth, 25 Va. App. 466, 489 S.E.2d 254 (1997).

Fraudulent conversion of property. - Trial court did not abuse its discretion by ordering defendant who was convicted of fraudulently converting a piece of farm equipment, in violation of § 18.2-115 , to pay the unpaid secured balance which defendant owed on the equipment, rather than its diminished value as damaged or destroyed property. Landes v. Commonwealth, 37 Va. App. 710, 561 S.E.2d 37, 2002 Va. App. LEXIS 180 (2002).

Collateral source rule inapplicable. - Trial court erred in determining that collateral source rule precluded defendant's relief from restitution order following assault victim's settlement with insurer. Diedrich v. Commonwealth, No. 0962-98-1 (Ct. of Appeals June 29, 1999).

CIRCUIT COURT OPINIONS

Not applicable to improper driving violation. - Juvenile who was found guilty of improper driving could not be ordered to pay restitution because improper driving was a traffic infraction under § 46.2-869 , not an offense under § 19.2-303 , and was not a crime to which §§ 19.2-305.1 B or 19.2-305 B was applicable. Commonwealth v. Warwick, 78 Va. Cir. 336, 2009 Va. Cir. LEXIS 145 (Brunswick County May 18, 2009).

OPINIONS OF THE ATTORNEY GENERAL

Payment of restitution. - A circuit court has the authority to order that payment of restitution be made prior to payment of court costs. See opinion of Attorney General to The Honorable Dollie M. Compton, Clerk, Circuit Court of Russell County, 00-097 (12/27/01).

§ 19.2-305.2. Amount of restitution; enforcement.

  1. The court, when ordering restitution pursuant to § 19.2-305.1 , may require that such defendant, in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense, (i) return the property to the owner or (ii) if return of the property is impractical or impossible, pay an amount equal to the greater of the value of the property at the time of the offense or the value of the property at the time of sentencing.
  2. An order of restitution shall be docketed, in the name of the Commonwealth, or a locality if applicable, on behalf of the victim, as provided in § 8.01-446 when so ordered by the court, unless the victim named in the order of restitution requests in writing that the order be docketed in the name of the victim. An order of restitution docketed in the name of the victim shall be enforced by the victim as a civil judgment. The clerk shall record and disburse restitution payments as provided in subsection D of § 19.2-305.1 and subsection A of § 19.2-354 in accordance with orders of restitution or judgments for restitution docketed in the name of the Commonwealth or a locality. At any time before a judgment for restitution docketed in the name of the Commonwealth or a locality is satisfied, the court shall, at the written request of the victim, order the circuit court clerk to execute and docket an assignment of the judgment to the victim. The circuit court clerk shall remove from its automated financial system the amount of unpaid restitution upon docketing the assignment. If a judge of a district court orders the circuit court clerk to execute and docket an assignment of the judgment to the victim, the district court clerk shall remove from its automated financial system the amount of unpaid restitution upon sending the order to the circuit court clerk. If the victim requests that the order of restitution be docketed in the name of the victim or that a judgment for restitution previously docketed in the name of the Commonwealth or a locality be assigned to the victim, the victim shall provide to the court an address where the defendant can mail payment for the amount due and such address shall not be confidential. When a judgment for restitution previously docketed in the name of the Commonwealth or a locality is ordered to be assigned to the victim, the court shall provide notice of such order to the defendant at the defendant's last known address and shall include the mailing address provided by the victim. Enforcement by a victim of any order of restitution docketed as provided in § 8.01-446 is not subject to any statute of limitations. Such docketing shall not be construed to prohibit the court from exercising any authority otherwise available to enforce the order of restitution. (1988, c. 679; 1989, c. 386; 2017, cc. 786, 814; 2018, c. 736; 2021, Sp. Sess. I, cc. 190, 393.)

Effect of amendment. - The 2017 amendments by cc. 786 and 814 are identical, and added the last sentence in subsection B.

The 2018 amendments. - The 2018 amendment by c. 736 added the second sentence in subsection B.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 190 and 393, effective July 1, 2021, are identical, and rewrote subsection B, which read: "An order of restitution may be docketed as provided in § 8.01-446 when so ordered by the court or upon written request of the victim and may be enforced by a victim named in the order to receive the restitution in the same manner as a judgment in a civil action. Enforcement by a victim of any order of restitution docketed as provided in § 8.01-446 is not subject to any statute of limitations. Such docketing shall not be construed to prohibit the court from exercising any authority otherwise available to enforce the order of restitution."

Michie's Jurisprudence. - For related discussion, see 16 M.J. Restitution, § 1.

CASE NOTES

Docketing of restitution order as judgment against person does not improperly modify sentence by enhancing punishment, and requirement that restitution order be docketed "without delay" does not relate to entry of docketing order by circuit court. Frazier v. Commonwealth, 20 Va. App. 719, 460 S.E.2d 608 (1995).

Remedy for fraudulent conversion of property. - Trial court did not abuse its discretion by ordering defendant who was convicted of fraudulently converting a piece of farm equipment, in violation of § 18.2-115 , to pay the unpaid secured balance which defendant owed on the equipment, rather than its diminished value as damaged or destroyed property. Landes v. Commonwealth, 37 Va. App. 710, 561 S.E.2d 37, 2002 Va. App. LEXIS 180 (2002).

Hearsay evidence allowed to determine value of stolen property. - Sentencing court properly considered hearsay statements from burglary victims regarding value of property stolen from them in setting defendant's restitution requirement as the evidence bore minimal indicia of reliability and defendant knew of the evidence far enough in advance that he could have refuted the evidence. Smith v. Commonwealth, 52 Va. App. 26, 660 S.E.2d 691, 2008 Va. App. LEXIS 247 (2008).

Amount of restitution. - In a case in which defendant was convicted of attempted malicious wounding, the trial court did not err in imposing, as one of the conditions of defendant's suspended sentence, that he was had to pay the victim $6,639.23 in restitution because, although defendant contended that it was error for the trial court to include in his restitution the $3,289.23 still owed by the victim on her car loan after the insurance company had paid her full restitution, a trial court, in determining restitution, could include the amount still owed on a loan for property damaged or destroyed through defendant's criminal acts. Baugh v. Commonwealth, No. 0347-18-2, 2019 Va. App. LEXIS 287 (Dec. 10, 2019).

OPINIONS OF THE ATTORNEY GENERAL

Limitations for civil enforcement of restitution. - There is a twenty-year statute of limitations for the civil enforcement of restitution imposed by a circuit court in a traffic or criminal prosecution. This limitation period is extendable upon motion and by court approval in twenty-year increments, and is not tolled during incarceration, unless the court stays enforcement until the debtor/defendant is released. See opinion of Attorney General to The Honorable Richard L. Francis, Clerk, County of Southampton/City of Franklin Circuit Court, 16-022, 2017 Va. AG LEXIS 13 (4/27/17).

§ 19.2-305.3.

Repealed by Acts 1997, c. 140.

§ 19.2-305.4. When interest to be paid on award of restitution.

The court, when ordering restitution pursuant to § 19.2-305 or 19.2-305.1 , may provide in the order for interest on the restitution. If the court orders the payment of interest, it shall accrue from the date of the loss or damage unless the court specifies a different date in the order, at the rate specified in § 6.2-302 .

(1996, c. 544; 2001, c. 122; 2005, cc. 14, 79.)

Editor's note. - Effective October 1, 2010, "6.2-302" was substituted for "6.1-330.54" to conform to the recodification of Title 6.1 by Acts 2010, c. 794.

The 2001 amendments. - The 2001 amendment by c. 122 added the last sentence.

The 2005 amendments. - The 2005 amendments by cc. 14 and 79 are identical, and substituted "restitution" for "amount so ordered" in the first sentence, added "If the court orders the payment of interest, it shall accrue" to the beginning and inserted "unless the court specifies a different date in the order" in the second sentence and deleted the former last sentence, which read: "If the order requires interest and does not specify that the interest shall accrue from the date of the loss or damage, the interest shall automatically accrue from the date of the sentencing order."

§ 19.2-306. Revocation of suspension of sentence and probation.

  1. In any case in which the court has suspended the execution or imposition of sentence, the court may revoke the suspension of sentence for any cause the court deems sufficient that occurred at any time within the probation period, or within the period of suspension fixed by the court. If neither a probation period nor a period of suspension was fixed by the court, then the court may revoke the suspension for any cause the court deems sufficient that occurred within the maximum period for which the defendant might originally have been sentenced to be imprisoned.
  2. The court may not conduct a hearing to revoke the suspension of sentence unless the court issues process to notify the accused or to compel his appearance before the court within 90 days of receiving notice of the alleged violation or within one year after the expiration of the period of probation or the period of suspension, whichever is sooner, or, in the case of a failure to pay restitution, within three years after such expiration. If neither a probation period nor a period of suspension was fixed by the court, then the court shall issue process within six months after the expiration of the maximum period for which the defendant might originally have been sentenced to be incarcerated. Such notice and service of process may be waived by the defendant, in which case the court may proceed to determine whether the defendant has violated the conditions of suspension.
  3. If the court, after hearing, finds good cause to believe that the defendant has violated the terms of suspension, then the court may revoke the suspension and impose a sentence in accordance with the provisions of § 19.2-306.1 . The court may again suspend all or any part of this sentence for a period up to the statutory maximum period for which the defendant might originally have been sentenced to be imprisoned, less any time already served, and may place the defendant upon terms and conditions or probation. The court shall measure the period of any suspension of sentence from the date of the entry of the original sentencing order. However, if a court finds that a defendant has absconded from the jurisdiction of the court, the court may extend the period of probation or suspended sentence for a period not to exceed the length of time that such defendant absconded.
  4. If any court has, after hearing, found no cause to impose a sentence that might have been originally imposed, or to revoke a suspended sentence or probation, then any further hearing to impose a sentence or revoke a suspended sentence or probation, based solely on the alleged violation for which the hearing was held, shall be barred.
  5. Nothing contained herein shall be construed to deprive any person of his right to appeal in the manner provided by law to the circuit court having criminal jurisdiction from a judgment or order revoking any suspended sentence.

    (Code 1950, § 53-275; 1958, c. 468; 1970, c. 275; 1975, c. 495; 1978, c. 687; 2002, c. 628; 2016, c. 718; 2021, Sp. Sess. I, c. 538.)

Cross references. - As to eligibility for parole, see § 53.1-151 .

As to commencement of term of confinement, see § 53.1-186 .

Editor's note. - Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 41 F, effective for the biennium ending June 30, 2022, provides: "1. For any hearing conducted pursuant to § 19.2-306 , Code of Virginia, the circuit court shall have presented to it a sentencing revocation report prepared on a form designated by the Virginia Criminal Sentencing Commission indicating the condition or conditions of the suspended sentence, good behavior, or probation supervision that the defendant has allegedly violated.

"2. For any hearing conducted pursuant to § 19.2-306 in which the defendant is cited for violation of a condition or conditions other than a new criminal offense conviction, the court shall also have presented to it the applicable probation violation guideline worksheets established pursuant to Chapter 1042 of the Acts of Assembly 2003. The court shall review and consider the suitability of the discretionary probation violation guidelines. Before imposing sentence, the court shall state for the record that such review and consideration have been accomplished and shall make the completed worksheets a part of the record of the case and open for inspection. In hearings in which the court imposes a sentence that is either greater or less than that indicated by the discretionary probation violation guidelines, the court shall file with the record of the case a written explanation of such departure.

"3. Following any hearing conducted pursuant to § 19.2-306 and the entry of a final order, the clerk of the circuit court in which the hearing was held shall cause a copy of such order or orders, the original sentencing revocation report, any applicable probation violation guideline worksheets prepared in the case, and a copy of any departure explanation prepared pursuant to subsection F.2., to be forwarded to the Virginia Criminal Sentencing Commission within 30 days.

"4. The failure to follow any or all of the provisions specified in F.1. through F.3 or the failure to follow any or all of these provisions in the prescribed manner shall not be reviewable on appeal or the basis of any other post-hearing relief."

The 2002 amendments. - The 2002 amendment by c. 628 rewrote the section.

The 2016 amendments. - The 2016 amendment by c. 718, rewrote the first sentence in subsection B, which formerly read: "The court may not conduct a hearing to revoke the suspension of sentence unless the court, within one year after the expiration of the period of probation or the period of suspension, issues process to notify the accused or to compel his appearance before the court."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 538, effective July 1, 2021, in subsection B, inserted "90 days of receiving notice of the alleged violation or within" and "whichever is sooner" and substituted "six months" for "one year"; and rewrote subsection C, which read:" If the court, after hearing, finds good cause to believe that the defendant has violated the terms of suspension, then: (i) if the court originally suspended the imposition of sentence, the court shall revoke the suspension, and the court may pronounce whatever sentence might have been originally imposed or (ii) if the court originally suspended the execution of the sentence, the court shall revoke the suspension and the original sentence shall be in full force and effect. The court may again suspend all or any part of this sentence and may place the defendant upon terms and conditions or probation."

Law review. - For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971). For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975).

For 1995 survey of criminal law and procedure, see 29 U. Rich. L. Rev. 951 (1995).

Research References. - Virginia Forms (Matthew Bender). No. 9-305. Motion for Show Cause Summons; No. 9-413. Motion for Show Cause Summons or Capias.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 20.1; 5B M.J. Criminal Procedure, §§ 76, 77; 14A M.J. Pardon, Probation and Parole, § 5.

CASE NOTES

I. IN GENERAL.

Purpose. - Both this section and § 19.2-303 serve the same rehabilitative purpose. Esparza v. Commonwealth, 29 Va. App. 600, 513 S.E.2d 885 (1999).

Probation, suspension, distinct concepts. - In drafting conviction orders, sentencing judges must be cognizant that probation and suspension of sentence are separate and distinct concepts and that they may be fixed at different intervals to accomplish different goals. Sentencing orders frequently fail to clarify whether a period of suspension of sentence and a period of probation are fixed for the same or different periods of time, particularly where sentencing orders denominate probation as "unsupervised." Sentencing judges who intend that a sentence shall be suspended for a fixed period, even where the period of suspension is to expire at the same time as the period of probation, should clearly state the respective period of suspension and period of probation in the sentencing order. Carbaugh v. Commonwealth, 19 Va. App. 119, 449 S.E.2d 264 (1994).

The concepts are distinct but overlapping, in the sense that a sentence of confinement may be suspended without admitting the defendant to probation while a prerequisite to probation is that any sentence of confinement be first suspended. Collins v. Commonwealth, 269 Va. 141 , 607 S.E.2d 719, 2005 Va. LEXIS 13 (2005).

Suspension of execution of sentence includes release under appeal bond. - Appeal of a criminal conviction does not affect the finality of judgment, but only suspends the execution of the sentence. Therefore, the execution of defendant's sentence was suspended when he was released under his appeal bond and he was subject to the implicit condition of good behavior. Collins v. Commonwealth, 269 Va. 141 , 607 S.E.2d 719, 2005 Va. LEXIS 13 (2005).

When § 19.2-305.1 and this section are applied in conjunction, the requirement of § 19.2-305.1 D (now § 19.2-305.1 E) that only "unreasonable" failure to pay restitution shall result in revocation of a suspended sentence, restricts the scope of the court's authority under this section to revoke a suspension for "any cause" deemed by it sufficient. Duff v. Commonwealth, 16 Va. App. 293, 429 S.E.2d 465 (1993).

"If none" construed. - In order to give effect to the legislative purpose, the words "if none" in this section cannot sensibly refer solely to "period of probation." The words, "if none," may, however, reasonably be read to refer to the clause, "for any cause deemed by the judge sufficient which occurred at any time within the period of probation." This interpretation is grammatically sound and consistent with the legislative intent to grant judges broad powers to revoke suspended sentences. Carbaugh v. Commonwealth, 19 Va. App. 119, 449 S.E.2d 264 (1994).

The probation statutes are highly remedial and should be liberally construed to provide trial courts a valuable tool for rehabilitation of criminals. Grant v. Commonwealth, 223 Va. 680 , 292 S.E.2d 348 (1982).

The statutes obviously confer upon trial courts wide latitude and much discretion in matters of suspension and probation to provide a remedial tool in the rehabilitation of criminals and, to that end, should be liberally construed. Wright v. Commonwealth, 32 Va. App. 148, 526 S.E.2d 784, appeal dismissed, 261 Va. 1 , 539 S.E.2d 432 (2000).

Language "shall leave the jurisdiction of the court without the consent of the judge" manifestly applies primarily to a fugitive or to one who absconds. It does not apply to a person who departs the Commonwealth because he is in the custody of federal authorities. Rease v. Commonwealth, 227 Va. 289 , 316 S.E.2d 148 (1984).

Power of courts to revoke suspensions and probation for breach of conditions must not be restricted beyond statutory limitations. Grant v. Commonwealth, 223 Va. 680 , 292 S.E.2d 348 (1982).

No time limitation in either § 19.2-304 or § 19.2-306 implicates a court's subject matter jurisdiction to enter uncontested orders extending probation periods before or after their expiration; as a result, the parties are free to extend these deadlines, with the trial court's concurrence, even after their expiration. Cilwa v. Commonwealth, 298 Va. 259 , 836 S.E.2d 378, 2019 Va. LEXIS 153 (Dec. 12, 2019).

Subject matter jurisdiction. - Neither § 19.2-304 nor § 19.2-306 grants a trial court categorical judicial power over criminal cases or their attendant proceedings, and thus, neither can reasonably be read to strip a trial court of subject matter jurisdiction if the court violates those procedures. Cilwa v. Commonwealth, 298 Va. 259 , 836 S.E.2d 378, 2019 Va. LEXIS 153 (Dec. 12, 2019).

Jurisdiction on appeal of probation revocation. - As a trial court's jurisdiction to revoke a convict's probation and suspension of sentence is part of a purely criminal process, and as under this section the trial court retained jurisdiction over the suspended portion of defendant's sentence during the two-year period of his probation and for one year thereafter, the trial court had jurisdiction over the suspended portion of defendant's sentence at the time it revoked defendant's probation. Accordingly, because defendant's appeal of the revocation order was an appeal from an action taken while the trial court retained jurisdiction over his sentence, his appeal was within the appellate court's jurisdiction under subsection A of § 17.1-406 . Green v. Commonwealth, 263 Va. 191 , 557 S.E.2d 230, 2002 Va. LEXIS 23 (2002).

Trial court lacked jurisdiction when it found defendant in violation of probation, because, while the trial court extended defendant's probation, it did not explicitly or implicitly extend the three-year prior for which defendant's sentence was suspended and thus, the three-year period had expired two years earlier. Cilwa v. Commonwealth, No. 0481-15-4, 2016 Va. App. LEXIS 322 (Ct. of Appeals Nov. 29, 2016).

Because the circuit court had subject matter jurisdiction over the show cause hearing to consider whether defendant had violated the conditions of defendant's probation, any alleged error in the court's adjudication of the case was trial error. Green v. Commonwealth, No. 1640-19-2, 2020 Va. App. LEXIS 315 (Dec. 22, 2020).

Appeal of revocation proceeding based upon underlying conviction. - As a consequence, the fate of the underlying conviction will determine the outcome of an appeal of the revocation proceeding. Resio v. Commonwealth, 29 Va. App. 616, 513 S.E.2d 892 (1999).

Validity of district court's jurisdiction following appeal to circuit court. - Where defendant withdrew an appeal of a district court judgment more than 10 days after the date of the judgment, and a de novo hearing was not held, the judgment was stayed but remained valid; a circuit court's appellate order did not annul or abrogate the district court judgment. Commonwealth v. Diaz, 266 Va. 260 , 585 S.E.2d 552, 2003 Va. LEXIS 90 (2003), reversing 38 VA. App. 713, 568 S.E.2d 401 (2002).

Trial court's authority. - Defendant's suspended sentence could not be modified as no jurisdiction existed under § 19.2-306 as the trial court's authority had to be predicated on revocation of the suspended sentence, which had not occurred in the instant case; no power was given to the trial court to enlarge or modify an original sentence. Smith v. Commonwealth,, 2008 Va. App. LEXIS 238 (May 20, 2008).

Trial court's order requiring defendant to pay restitution as a condition of his suspended sentence violated the rule because it improperly modified the original sentencing order; in the absence of a finding that defendant violated the original sentencing order, the trial court lacked jurisdiction to enter its sentencing order that added new terms and conditions to the suspended sentence almost three years after the trial court's final order. Majeski v. Commonwealth, No. 2332-14-1, 2015 Va. App. LEXIS 289 (Oct. 13, 2015).

By the plain language of the statute, a circuit court has "active" jurisdiction over a defendant to revoke a suspended sentence for any act that occurs at any time either within the probation period, or within the period of suspension fixed by the court. Wilson v. Commonwealth, 67 Va. App. 82, 793 S.E.2d 15 (2016).

Trial court erred in finding that it had jurisdiction under this section to revoke defendant's nine-year suspended sentence relating to his 1993 arson conviction because that 10-year period of suspension had expired. Green v. Commonwealth, 69 Va. App. 99, 815 S.E.2d 821, 2018 Va. App. LEXIS 192 (2018).

Circuit court had the necessary jurisdictional authority over defendant and her case when it revoked her probation and ordered her to serve 90 days of her suspended sentence. Cilwa v. Commonwealth, No. 0687-15-4, 2018 Va. App. LEXIS 171 (June 26, 2018).

Even if the trial court erred in interpreting its original sentencing orders, the trial court still had jurisdiction to revoke the suspension of defendant's sentence on the malicious wounding charge because defendant's robbery and malicious wounding convictions arose out of a common factual circumstance and were tried in a single trial; thus, together they were the "case" that defined the maximum period for which the defendant could originally have been sentenced. Davis v. Commonwealth, 70 Va. App. 722, 833 S.E.2d 87, 2019 Va. App. LEXIS 219 (2019).

Trial court had authority to revoke the suspension of defendant's malicious wounding sentence after defendant was convicted of murder because the trial court reasonably concluded it had originally suspended his sentence for the maximum period allowable for the convictions in that case; the same judge who sentenced defendant originally presided over the revocation hearing, and he concluded that he intended to suspend the execution of both sentences for the maximum time permitted by law. Davis v. Commonwealth, 70 Va. App. 722, 833 S.E.2d 87, 2019 Va. App. LEXIS 219 (2019).

Trial court did not abuse its discretion by ordering imposed sentences to run consecutively, rather than concurrently, because it exercised its authority by conditioning the resuspension of part of defendant's sentences on the sentences running consecutively with all other sentences; by doing so, it did not amend the terms of the original sentence because it exercised its discretionary prerogative upon the resuspension of the sentences to impose a different condition on the suspension. Clemons v. Commonwealth, No. 1675-19-1, 2020 Va. App. LEXIS 207 (July 21, 2020).

Original sentencing order unambiguously evinced the trial court's intent to impose concurrent sentences only for the active portions of defendant's sentences, as a condition of his suspended sentences, and to impose consecutive terms for the suspended sentences; accordingly, when the trial court revoked and resuspended a portion of those sentences it did not abuse its discretion by ordering defendant to serve the imposed portions consecutively. Clemons v. Commonwealth, No. 1675-19-1, 2020 Va. App. LEXIS 207 (July 21, 2020).

In a probation violation case, contrary to defendant's argument, the 2015 order no longer controlled the terms and conditions of his probation once the circuit court entered the 2018 order. This section explicitly gave the circuit court jurisdiction over defendant's resuspended sentence for the duration of his probation and his violation was well within that extended two-year period. Hill v. Commonwealth, 857 S.E.2d 591, 2021 Va. App. LEXIS 83 (May 18, 2021).

Appeal of conviction does not bar revocation of suspension. - Evidence that the trier of fact in a criminal proceeding found beyond a reasonable doubt that a defendant violated a state law is sufficient to support revocation of a suspended sentence, notwithstanding the pendency of such conviction on appeal. Simmonds v. Commonwealth, No. 2710-99-3, 2000 Va. App. LEXIS 662 (Ct. of Appeals Sept. 26, 2000).

Failure to preserve issue for review. - Where a defendant made no objection when the Commonwealth reminded the trial court at a revocation hearing that a term of defendant's probation was to remain drug and alcohol free, or when the trial court noted that defendant had been under the influence of alcohol contrary to the terms of his probation, and made no argument at the hearing that the trial court's consideration of his consumption of alcohol was a violation of his due process rights or otherwise improper, he was barred under Va. Sup. Ct. R. 5A:18 from raising this issue for the first time on appeal. Cappell v. Commonwealth, No. 0807-02-3, 2003 Va. App. LEXIS 313 (Ct. of Appeals May 27, 2003).

In a probation revocation hearing, where defendant failed to renew his motion to strike after he presented his evidence, his closing argument did not challenge the sufficiency of the evidence, and he made no motion to set aside the court's judgment, any claim on appeal that the order of revocation was not supported by sufficient evidence was not preserved for appeal; further, the appeals court refused to apply Va. Sup. Ct. R. 5A:18 because defendant did not affirmatively show that a miscarriage of justice occurred. Ramsey v. Commonwealth, No. 1732-03-2, 2004 Va. App. LEXIS 297 (Ct. of Appeals June 29, 2004). See also, Goode v. Commonwealth,, 2007 Va. App. LEXIS 118 (Mar. 27, 2007).

To the extent defendant contended that he did not receive any specific due process rights in the circuit court revocation proceeding, he waived anything beyond his challenge to the more general due process entitlement to notice and a hearing because defendant failed to object contemporaneously to the procedure followed in the circuit court revocation proceeding or to request a continuance to counter the substantive evidence supporting the revocation of his suspended sentence. Washington v. Commonwealth, No. 0710-16-1, 2017 Va. App. LEXIS 288 (Nov. 14, 2017).

Miscarriage of justice found. - There was a miscarriage of justice for Va. Sup. Ct. R. 5A:18 purposes in the revocation of defendant's 1999 sentences as the maximum sentence for the 1999 convictions was five years and 30 days under §§ 18.2-308.2 , 18.2-10 , and 18.2-250.1 , and the revocation of defendant's 1999 suspended sentences occurred two years after the maximum period for which defendant might originally have been sentenced to imprisonment under subsection A of § 19.2-306 . Keen v. Commonwealth, No. 1787-09-3,, 2010 Va. App. LEXIS 268 (Ct. of Appeals July 6, 2010).

Miscarriage of justice not found. - Order revoking defendant's suspended sentences for three distributing marijuana convictions was proper as defendant failed to object and did not show a miscarriage of justice under Va. Sup. Ct. R. 5A:18 since the trial court had jurisdiction to revoke defendant's suspended sentences under subsection A of § 19.2-306 since such revocation was allowed during the maximum period for which defendant might originally have been sentenced to imprisonment, or 30 years, under § 18.2-10 . Keen v. Commonwealth, No. 1787-09-3,, 2010 Va. App. LEXIS 268 (Ct. of Appeals July 6, 2010).

Applied in Smith v. Commonwealth, 222 Va. 700 , 284 S.E.2d 590 (1981); Wise v. Ritter, 25 Bankr. 440 (Bankr. E.D. Va. 1982); Vaughn v. Commonwealth, 12 Va. App. 924, 406 S.E.2d 419 (1991); Epps v. Commonwealth, 59 Va. App. 71, 717 S.E.2d 151, 2011 Va. App. LEXIS 351 (2011); Smith v. Commonwealth, 59 Va. App. 710, 722 S.E.2d 310, 2012 Va. App. LEXIS 56 (2012); Johnson v. Commonwealth, No. 1138-14-2, 2015 Va. App. LEXIS 211 (July 7, 2015).

II. LIMITATION PERIOD.

When arrest allowed after expiration of probation and suspension. - To effect the legislative intent, the first sentence of this section must be read consistently so as to allow the arrest of a defendant within one year after the period of suspension fixed by the court in those cases where both a period of probation and a period of suspension have been prescribed and where the period of probation has expired. Carbaugh v. Commonwealth, 19 Va. App. 119, 449 S.E.2d 264 (1994).

Indefinite probation period. - Probation depends for enforceability upon the existence of a term of sentence suspension; therefore, the duration of probation cannot extend beyond the specified period of suspension. Hartless v. Commonwealth, 29 Va. App. 172, 510 S.E.2d 738 (1999).

Defendant's extended probation imposed upon him as a condition of the suspension of his sentence was modified as the trial court had specified no period of probation. Hartless v. Commonwealth, 29 Va. App. 172, 510 S.E.2d 738 (1999).

Because the trial court acted within its subject matter jurisdiction when it entered the order extending probation indefinitely until further order, defendant could not collaterally attack that order as void ab initio; the order imposed a term of indefinite probation "until further order by the court" and thus specifically contemplated termination of probation by a subsequent court order. Cilwa v. Commonwealth, 298 Va. 259 , 836 S.E.2d 378, 2019 Va. LEXIS 153 (Dec. 12, 2019).

Limitation upon period within which suspension revocable. - If the court fails to prescribe the period of probation in the suspending order, the statute limits the jurisdiction of the court to revoke the suspension to the maximum period for which the accused could originally have been imprisoned. Richardson v. Commonwealth, 131 Va. 802 , 109 S.E. 460 (1921). This holding was made statutory by the 1938 amendment.

Where there was no express limitation as to the duration of the suspension, the jurisdiction of the court to revoke the suspension continued for the maximum period for which the defendant might originally have been imprisoned. Dyke v. Commonwealth, 193 Va. 478 , 69 S.E.2d 483 (1952).

Former § 53-272 [now §§ 53.1-151 and 53.1-186 ] authorizes the suspension of imposition or execution of sentence during good behavior. Inherent in that optional authority is the power of the court to attach such reasonable terms and conditions to the suspension as it may deem proper. Such terms and conditions are probation only in the sense that they require the defendant to observe a specified course of conduct; but they are not the supervised probation referred to in the statute. If no period of supervised probation is added to the suspension of the sentence, then under the terms of this section the only limitation upon the time for revocation of the suspension is the maximum period for which the defendant might originally have been sentenced. Dyke v. Commonwealth, 193 Va. 478 , 69 S.E.2d 483 (1952).

When a court in its order prescribes the period of suspension and supervised probation it may, under this section, revoke the suspension and probation only within the probation period. Vick v. Commonwealth, 201 Va. 474 , 111 S.E.2d 824 (1960).

While petitioner was released from supervised probation by the judge, it is clear under Virginia law that a sentencing court retains the authority to activate petitioner's sentence at any time during the maximum period for which petitioner might have originally been sentenced. There is, therefore, no question that petitioner is "in custody" for purposes of the federal habeas corpus statutes. Hamilton v. Lumpkin, 389 F. Supp. 1069 (E.D. Va. 1975).

If a probation period or a period of suspension was "prescribed," within the meaning of this section, then running of the shorter time within which the court could revoke would be triggered; if such period was not "prescribed," then the time for revocation would extend through the maximum period for which defendant could originally have been sentenced. Grant v. Commonwealth, 223 Va. 680 , 292 S.E.2d 348 (1982).

Where no time was set or "prescribed" for the suspension of imposition of defendant's sentence, the sentencing authority of the trial court under this section was still viable and extended through the maximum period for which defendant might originally have been sentenced to imprisonment, and thus the trial court had the power to revoke the suspension and to pronounce the sentence that might have been originally imposed. Grant v. Commonwealth, 223 Va. 680 , 292 S.E.2d 348 (1982).

Where on November 10, 1983 (21 months after the original sentencing order), the trial court revoked appellant's suspended imposition of sentence and ordered him to serve 10 years in prison, but suspended five years for an unspecified time period, then the remaining suspension period ended, by operation of this section, on November 10, 1993; thus when on July 11, 1994, the trial court heard evidence that appellant committed a petit larceny on May 26, 1993, along with other parole violations starting in October 1993, both of these offenses occurred before November 10, 1993, and imposition of the five year previously suspended portion was proper. Briggs v. Commonwealth, 21 Va. App. 338, 464 S.E.2d 512 (1995).

Where a sentencing order imposes no term of suspension, the term of suspension is "the maximum period for which the defendant might originally have been sentenced to be imprisoned;" where the maximum period that the defendant could have been imprisoned was 12 months, and 12 months from the date of the sentencing order was July 28, 1993, and the conduct which was the cause of the suspension proceeding occurred, on May 24, 1994, since the term of suspension of defendant's sentence had expired, this conduct could not support the revocation of the suspension. Klokow v. Commonwealth, No. 2659-94-3 (Ct. of Appeals Feb. 13, 1996).

When defendant received a suspended sentence that did not specify the period of suspension, the suspension could be revoked at any time within the maximum prison term that could have been imposed, which was five years, and, when the suspension was revoked and resuspended, upon defendant's violation of the conditions of suspension, a new five-year period within which the new suspension could be revoked started running, so the trial court had jurisdiction to, again, revoke the suspension within that time period, upon defendant's further violations of the conditions of the suspension. Keene v. Commonwealth, No. 0043-03-1, 2003 Va. App. LEXIS 679 (Ct. of Appeals Dec. 23, 2003).

Where defendant was arrested on a four-year-old bench warrant for violating probation, the trial court properly exercised its jurisdiction pursuant to § 19.2-306 . The procedural law governing defendant's probation was governed by the version of § 19.2-306 in effect at the time defendant was placed on probation after serving a portion of an imposed sentence and the trial court issued the bench warrant well within the time period prescribed by the amendment to § 19.2-306 in effect at that time. Hunter v. Commonwealth, 56 Va. App. 582, 695 S.E.2d 567, 2010 Va. App. LEXIS 301 (2010).

Active jurisdiction to revoke suspended sentence. - Circuit court erred in revoking defendant's suspended sentence because it no longer had "active" jurisdiction to do so; the circuit court had "active" jurisdiction to find defendant in violation of the conditions for his suspended sentence during a period of five years and six months, and thus, its "active" jurisdiction to revoke defendant's suspended sentence terminated for any action by defendant that occurred after the five years and six months of his suspended sentence. Wilson v. Commonwealth, 67 Va. App. 82, 793 S.E.2d 15 (2016).

It was error to take well over nine months for the circuit court to enter an order stating that the period of probation for defendant was extended to allow him additional time to pay restitution because by the time that order was entered, the circuit court no longer had active jurisdiction to extend defendant's probation; defendant was not on supervised probation at the time the circuit court revoked his suspended sentence. Wilson v. Commonwealth, 67 Va. App. 82, 793 S.E.2d 15 (2016).

Limitation on time of revocation. - In the absence of a specified period of probation or a specified period of suspension, a trial court may revoke a suspension of sentence for a probation violation only when the violation occurs within the maximum period for which the defendant might originally have been sentenced to be imprisoned. Hartless v. Commonwealth, 29 Va. App. 172, 510 S.E.2d 738 (1999).

Where issues raised by a bench warrant were extensions of defendant's underlying criminal case, a matter already and properly before a trial court, the trial court had constitutional and statutory authority, subject matter jurisdiction, to entertain the issues raised by the bench warrant; however, its exercise of that jurisdiction was constrained by the time requirement of § 19.2-306 . Farmer v. Commonwealth,, 2008 Va. App. LEXIS 47 (Jan. 29, 2008).

Court could impose probation after probation expired because (1) probation was a condition of suspended sentences, and, on finding a violation, a court could revoke and re-suspend any part of the sentence and impose new conditions, (2) a contrary interpretation led to the absurd result that a violation notice could be given after probation expired but another probation period could not be imposed as a condition for re-suspending a revoked sentence, and (3) defendant's continuance requests caused defendant's revocation hearing to be held after the probationary period. Bost v. Commonwealth, No. 1302-17-4, 2018 Va. App. LEXIS 200 (July 24, 2018).

Trial court erred in revoking and re-suspending the portion of defendant's sentence for his misdemeanor conviction for driving on a revoked license because the one-year period of suspension had long ended; therefore, defendant could not have the misdemeanor portion of his suspended sentence revoked following an order to show cause. Burnham v. Commonwealth, 298 Va. 109 , 833 S.E.2d 872, 2019 Va. LEXIS 139 (2019).

Bench warrant issued was untimely. - A bench warrant issued more than one year after the conclusion of defendant's probation was untimely. Reinemer v. Commonwealth, 16 Va. App. 462, 431 S.E.2d 68 (1993).

One-year limit suspended when probationer arrested by another jurisdiction. - The legislature did not intend the statutory one-year limitation to restrict the power of the court to revoke probation circumstances when the probationer commits another crime within the probation period and is arrested by another jurisdiction, thereby placing himself beyond the jurisdiction and control of the sentencing court. In such cases, the one-year time constraint of this section is suspended. The time limit remains suspended, when the probation period expires during incarceration in the other jurisdiction, until the probationer is released by such other jurisdiction, provided the original court as soon as practicable has issued a warrant charging violation of probation and a detainer. Rease v. Commonwealth, 227 Va. 289 , 316 S.E.2d 148 (1984).

Statute tolled for time period that probationer absconded from jurisdiction. - Had this section not been tolled, trial court could have revoked probationer's suspended sentence up until January 8, 1991 - four years plus one year following his conviction on January 8, 1986. However, by including in the calculations the fact that he absconded from the jurisdiction for two years less nine days, thereby tolling the statute of limitations for that period of time, the trial court's jurisdiction continued until December 31, 1992. Therefore, the trial court had jurisdiction when it revoked probationer's suspended sentence on September 11, 1991. Withrow v. Commonwealth, No. 2087-91-1 (Ct. of Appeals Feb. 16, 1993).

Trial court did not abuse its discretion when it revoked defendant's probation at a time beyond the time the trial court normally would have retained jurisdiction over defendant's probation and suspended sentence, as defendant's acts in absconding when defendant's probation officer no longer knew where defendant was located and defendant's arrest on a criminal charge in another state, were sufficient to trigger the tolling provisions of the statute permitting revocations of probation and suspended sentences, and permitted the trial court to revoke defendant's probation and suspended sentence at a time that normally would have been beyond the time the trial court retained jurisdiction over defendant's probation and suspended sentence. Allison v. Commonwealth, 40 Va. App. 407, 579 S.E.2d 655, 2003 Va. App. LEXIS 256 (2003).

Limitation period tolled by out-of-state incarceration. - Probation revocation hearing was not outside the one-year limitation of § 19.2-306 . Appellant's probation had been tolled when he was incarcerated in California, during which he was beyond the jurisdiction and control of the Virginia trial court. Pierce v. Commonwealth, 48 Va. App. 660, 633 S.E.2d 755, 2006 Va. App. LEXIS 407 (2006).

Issuance of capias does not toll period for revocation of suspended sentence. - The time period during which a suspended sentence may be revoked for a violation of probation is not tolled by the mere issuance of a capias for a probationer's arrest. Smith v. Commonwealth, No. 0809-86-1 (Ct. of Appeals July 13, 1987).

Statute not tolled when defendant within reach of trial court's writ. - Even though defendant never reported to his probation officer, the tolling provision of this section did not apply where a trial court and the Commonwealth's agents knew his location, which was in reach of the trial court's writ, and the trial court had the power to retrieve defendant from any penal institution in the Commonwealth and have him produced for a revocation hearing. The trial court was constrained from exercising its subject matter jurisdiction to conduct a revocation hearing. Farmer v. Commonwealth,, 2008 Va. App. LEXIS 47 (Jan. 29, 2008).

When a state probation violation warrant merely has been issued but not served and a detainer has been lodged, a defendant has no constitutional or statutory right to force the trial court to decide the revocation issue. This is true even though the defendant was, for a brief time, held in federal custody in jail in an adjoining county. Accordingly, it is entirely proper for the trial court to defer decision on the probation violation until completion of defendant's federal incarceration. Rease v. Commonwealth, 227 Va. 289 , 316 S.E.2d 148 (1984).

Effect of extending probation period. - An extension of the period of probation under § 19.2-304 has the effect of extending the time period during which revocation may occur under this section. Cook v. Commonwealth, 211 Va. 290 , 176 S.E.2d 815 (1970).

Meaning of "maximum period," etc. - The language of this section, "the maximum period for which the defendant might originally have been sentenced" and "the court may pronounce whatever sentence might have been originally imposed," does not mean the maximum punishment for the greatest or most serious offense charged in the indictment. If upon an indictment for murder one is found guilty of involuntary manslaughter and given a suspended jail sentence and fine, the statute does not contemplate that the suspension of sentence could be revoked at any time during the life of accused because he was simply indicted for murder which carries a punishment of death or life imprisonment. The test is not what is the maximum punishment which might be imposed under the indictment alone, but the maximum punishment which might be imposed under the indictment and the evidence. White v. Commonwealth, 170 Va. 641 , 196 S.E. 610 (1938).

Hearing continued beyond period of probation on defendant's motion. - The appeal on an order revoking suspension of sentence came before the circuit court for hearing within the one-year period of probation during which defendant's sentence was suspended. On his motion the hearing was continued and not had until after the one-year period. Since the delay was on defendant's motion, he would not be heard to say the revocation was not timely made. Berry v. Commonwealth, 200 Va. 495 , 106 S.E.2d 590 (1959).

Suspension revocation exhausted court's sentencing authority. - When the trial court revoked the suspension of the execution of defendant's original sentence and imposed the entirety of the remainder of the unserved portion of that sentence, the court exhausted the sentencing authority invested in it by § 19.2-306 and lost its jurisdiction to impose any additional terms, conditions, or supervision upon him; because the trial court was without jurisdiction to order him placed on probation upon his release from incarceration after serving his sentence in full, his subsequent contempt conviction for violating that order was error. Grooms v. Commonwealth, No. 1439-02-3, 2003 Va. App. LEXIS 575 (Ct. of Appeals Nov. 12, 2003).

III. REVOCATION HEARING.
A. GENERALLY.

Fundamental fairness requires a judicial hearing of a summary nature before the court can revoke a suspended sentence and thereby deprive the probationer of his liberty. The requirement of such a hearing is implicit in the statute. Cook v. Commonwealth, 211 Va. 290 , 176 S.E.2d 815 (1970).

Since the revocation of a suspension of sentence deprives the probationer of his liberty, he is entitled to a judicial hearing thereon, but a summary hearing is sufficient. Slayton v. Commonwealth, 185 Va. 357 , 38 S.E.2d 479 (1946).

Since the revocation of a suspension deprives the probationer of his liberty, he is entitled to a judicial hearing thereon. Griffin v. Cunningham, 205 Va. 349 , 136 S.E.2d 840 (1964).

In a proceeding to revoke probation, an accused is entitled to a judicial hearing at which he has the right to appear and testify, and to be represented by counsel. Brown v. Slayton, 337 F. Supp. 10 (W.D. Va. 1971).

Judicial hearing defined. - A judicial hearing means a hearing in accordance with familiar principles governing the exercise of judicial discretion. Griffin v. Cunningham, 205 Va. 349 , 136 S.E.2d 840 (1964).

Due process. - Because the liberty interest at issue could be revoked only by the circuit court in a revocation proceeding, it was the circuit court in which defendant was entitled to exercise his due process right to be heard regarding the termination of his suspended sentence if not afforded that opportunity in the drug court hearing. Washington v. Commonwealth, No. 0710-16-1, 2017 Va. App. LEXIS 288 (Nov. 14, 2017).

Hearsay evidence. - A trial judge's action in taking cognizance of testimony that he heard in an earlier prosecution to which the defendant was a party is equivalent to admitting hearsay evidence in the revocation proceeding. Hess v. Commonwealth, 17 Va. App. 738, 441 S.E.2d 29 (1994).

Limited applicability of exclusionary rule. - Although a probation, parole, or suspended sentence revocation proceeding is not criminal in nature, the outcome of such a proceeding may result in the loss of one's liberty. Nevertheless, unless the evidence shows that the police officers who illegally seized the evidence also acted in bad faith, the exclusionary rule should not be used to prevent the evidence from being admitted into evidence in a secondary proceeding, such as a probation revocation hearing. Anderson v. Commonwealth, 20 Va. App. 361, 457 S.E.2d 396 (1995), aff'd, 251 Va. 437 , 470 S.E.2d 862 (1996).

Arrest is not necessary where defendant is already in custody of court. - The purpose of the provision in this section that the court may "cause the defendant to be arrested," is that he may be brought before the court. There was no occasion for causing the defendant to be arrested when he was already in the custody of the court on a felony charge of malicious shooting at the time of the revocation. Berry v. Commonwealth, 200 Va. 495 , 106 S.E.2d 590 (1959).

Failure to conduct preliminary hearing. - Even if there exists a requirement of a preliminary hearing in probation-revocation cases, the failure to conduct such a hearing is not a denial of a constitutional right. Brown v. Slayton, 337 F. Supp. 10 (W.D. Va. 1971).

Notice and hearing requirements. - Trial court properly revoked the remainder of defendant's suspended sentence when she violated the terms of her probation because the General Assembly did not did not intend to impose the same notice and hearing requirements for abatement of probation when it enacted the notice statute, defendant was unable to show prejudice inasmuch as she acknowledged her release date when she signed the conditions of probation forms, and the trial court retained jurisdiction to revoke defendant's suspended sentence at any time within five years of her conviction. Edwards v. Commonwealth, No. 0043-17-3, 2018 Va. App. LEXIS 96 (Apr. 17, 2018).

Where an outstanding warrant to show cause why the suspended portion of his sentence should not be revoked remained unexecuted for a time during which the defendant was otherwise incarcerated, defendant lost no protected liberty interest as a result of the warrant. Defendant was not deprived of any due process rights since there was no duty to provide him a hearing until he was taken into custody as a parole violator by execution of the capias and show cause order upon him. Atkins v. Commonwealth, 2 Va. App. 329, 343 S.E.2d 385 (1986).

Absence of counsel at revocation proceeding. - A probation revocation proceeding at which petitioner alleges that he did not have the benefit of counsel may be a valid ground for the granting of the writ of habeas corpus. Cave v. Slayton, 353 F. Supp. 513 (W.D. Va. 1972).

Burden on defendant to place in record evidence. - Burden was on defendant, appealing the revocation of a suspended sentence, to place in the record all of the evidence that would prove a statutory bar to revocation. Of necessity, that would include evidence and a copy of any orders from the first hearing. Mann v. Commonwealth, No. 0308-89-1 (Ct. of Appeals Aug. 21, 1990).

Defendant failed to prove that the sentencing court erred in relying on the convictions of his probation as the basis for revoking his sentence because defendant did not provide a sufficient record from which the court of appeals could determine whether the sentencing court erred. Mooney v. Commonwealth, No. 1452-12-2, 2013 Va. App. LEXIS 262 (Ct. of Appeals Sept. 24, 2013).

A jury need not be impanelled to try the issue of the sufficiency of the cause of revocation of the suspension. Slayton v. Commonwealth, 185 Va. 357 , 38 S.E.2d 479 (1946); Berry v. Commonwealth, 200 Va. 495 , 106 S.E.2d 590 (1959).

Appeal. - Probationer is free to advocate on direct appeal for strict compliance with the statutory time limitations in the absence of an agreement between the parties; what a defendant may not do, however, is rely upon these time limitations as a basis for a collateral attack on an earlier agreed-upon order. Cilwa v. Commonwealth, 298 Va. 259 , 836 S.E.2d 378, 2019 Va. LEXIS 153 (Dec. 12, 2019).

Judgment reversible only on clear showing of abuse of discretion. - The trial court's finding of fact and judgment as to an order of revocation are reversible only upon a clear showing of abuse of such discretion. Hamilton v. Commonwealth, 217 Va. 325 , 228 S.E.2d 555 (1976).

Discretion of court. - The revocation of the suspension of a sentence is left to the discretion of the trial court. And there is no indication as to how the sufficiency of the cause of revocation is to be determined. Slayton v. Commonwealth, 185 Va. 357 , 38 S.E.2d 479 (1946) wherein the court's discretion was held not abused.

A revocation of a suspended sentence lies in the discretion of the trial court and that discretion is quite broad. Hamilton v. Commonwealth, 217 Va. 325 , 228 S.E.2d 555 (1976).

The question of whether to revoke the suspension of a sentence lies within the sound discretion of the trial court. Singleton v. Commonwealth, 11 Va. App. 575, 400 S.E.2d 205 (1991). See also, Preston v. Commonwealth, 14 Va. App. 731, 419 S.E.2d 288 (1992).

A trial court has broad discretion to revoke a suspended sentence and probation. Hill v. Commonwealth, No. 1835-92-3 (Ct. of Appeals Jan. 18, 1994).

Where the trial court imposed a condition upon a probation to enter and successfully complete a Detention Center Incarceration Program, and while such might have been a condition of probation, merely entering the program was a prerequisite to and one of the conditions upon which the probationer's sentence was suspended; when he could no longer satisfy this condition, the court was authorized to reconsider the suspended sentences and determine what portion of the same or other alternatives were appropriate. Word v. Commonwealth, 41 Va. App. 496, 586 S.E.2d 282, 2003 Va. App. LEXIS 485 (2003).

Trial court did not abuse its discretion in denying defendant's motion to continue his probation revocation proceedings on grounds that defense counsel had not yet had the opportunity to review the Commonwealth's sentencing guidelines report or to obtain evidence that defendant was eligible for a particular drug treatment program, because: (1) defendant failed to include the sentencing guidelines report as a part of the record on appeal, preventing the appeals court from concluding that defendant's inability to review the report before the revocation hearing resulted in any prejudice; and (2) defendant was not eligible for the particular drug treatment he sought, and thus, he could not demonstrate any prejudice resulting from his inability to present evidence that he was eligible for that program. Mock v. Commonwealth,, 2005 Va. App. LEXIS 243 (June 21, 2005).

Trial court did not abuse its discretion by imposing the entire original sentences that had been suspended against a defendant upon revocation of the suspended sentences, because this section did not provide a trial court with any discretion as to imposing the entire original sentence or a portion of the same upon revocation. As such, the trial court's imposition of the entire 26 years of imprisonment against the defendant was proper, because his suspended sentences were revoked due to his failure to report to his probation officer, his failure to make restitution, and his subsequent conviction for larceny. Commonwealth v. Payne,, 2003 Va. LEXIS 117 (July 11, 2003).

Because defendant's instant messaging took place sometime after a revocation hearing, the trial court properly exercised its discretion under subsection D of § 19.2-306 in revoking defendant's suspended sentence. Castle v. Commonwealth,, 2011 Va. App. LEXIS 266 (Aug. 9, 2011).

If the presiding judge at the probation revocation hearing also presided at the probationer's criminal prosecution and the judge deems it necessary or desirable to consider evidence or aspects of the earlier criminal proceeding as a basis for revoking probation, the judge may in the exercise of sound discretion consider such evidence, provided that the judge delineates during the evidentiary portion of the revocation proceeding precisely the evidence that is being considered. Hess v. Commonwealth, 17 Va. App. 738, 441 S.E.2d 29 (1994).

Evidence of pre-suspension criminal record admissible. - Defendant's pre-suspension criminal record was admissible in revocation proceedings, as it was relevant to the trial court's determination of how much of the suspension to revoke. Pearson v. Commonwealth, 37 Va. App. 583, 560 S.E.2d 459, 2002 Va. App. LEXIS 141 (2002).

Imposition of new period of suspension in revocation proceeding. - Section 19.2-303.1 , which expressly provides that a trial court may suspend a sentence for a reasonable time "in any case," pertains not only to a defendant's initial sentencing but also to sentencing in revocation proceedings and a court could, therefore, impose a five year suspension period in a revocation proceeding, even though that period would extend beyond the end of the five-year period originally imposed. Wright v. Commonwealth, 32 Va. App. 148, 526 S.E.2d 784, appeal dismissed, 261 Va. 1 , 539 S.E.2d 432 (2000).

As defendant's first resentencing constituted a new sentencing event only in the imposition of previously suspended time and of reasonable conditions, which were within the statutorily limited powers of the circuit court, the period of suspension under § 19.2-306 included defendant's subsequent possession of heroin. Canty v. Commonwealth,, 2011 Va. LEXIS 253 (Oct. 7, 2011).

Trial court did not err by placing defendant on probation for the remainder of his life even though it did not also extend the suspension of his sentence because the holdings of Briggs and Wright were consistent with § 19.2-303.1 and the trial court had the authority to suspend defendant's sentence for the remainder of his life after it revoked the previous suspension. Baughman v. Commonwealth, No. 0346-18-4, 2019 Va. App. LEXIS 299 (Dec. 17, 2019).

The right to notice and hearing involves no constitutional question but is to be determined by reference to the probation statute. Berry v. Commonwealth, 200 Va. 495 , 106 S.E.2d 590 (1959).

Proceedings held not to violate rights of defendant. - While under suspended sentence for a misdemeanor defendant was arrested on a charge of malicious shooting. When he pleaded not guilty to this charge in the county court, it being suggested in his presence by the prosecutor that he had nevertheless been involved in a violent breach of the peace, the court revoked the suspension. He appealed to the circuit court under this section. After his conviction of the felony, hearing was held in the circuit court, also without any warrant, summons, or rule charging violation of the terms of the suspension, and the revocation was affirmed. These actions violated no right of defendant. Berry v. Commonwealth, 200 Va. 495 , 106 S.E.2d 590 (1959).

Use of polygraph results. - Trial court erred when it considered the results of a polygraph exam defendant took while enrolled in a counseling program for sex offenders and determined that defendant had violated the conditions of probation because he gave deceptive answers when asked if he had tried to meet with children or had sexual contacts with children. White v. Commonwealth, 41 Va. App. 191, 583 S.E.2d 771, 2003 Va. App. LEXIS 417 (2003).

B. BASIS FOR REVOCATION.

The revocation of the suspended sentence must be based on reasonable cause, and must be based upon cause that occurred within the suspension of probation period. Bailey v. Commonwealth, 19 Va. App. 355, 451 S.E.2d 686 (1994).

Adequacy of grounds for revocation. - Whether or not a court has adequate grounds on which to revoke a petitioner's probation is more properly a question of the sufficiency of the evidence; as such, only in the case where the judgment is totally devoid of evidentiary support is there raised a federal question cognizable in the federal district court. Brown v. Slayton, 337 F. Supp. 10 (W.D. Va. 1971).

Trial court did not abuse its discretion in revoking suspended sentence for aggravated sexual battery involving children, where defendant took photographs of children in public places without having physical contact with the children on the advice of a psychiatrist for use as a masturbation tool to help defendant overcome his pedophila and conditions of the suspended sentence included that defendant was not to possess pornography or have contact with children. Levesque v. Commonwealth, No. 0312-00-3, 2001 Va. App. LEXIS 371 (Ct. of Appeals June 26, 2001).

Trial court did not abuse its discretion in revoking a portion of defendant's suspended sentence, where defendant committed institutional infractions by threatening correctional officers and threatening to commit arson and by committing two acts of indecent exposure. Artis v. Commonwealth,, 2006 Va. App. LEXIS 84 (Mar. 7, 2006).

After defendant was convicted of attempted robbery, the trial court properly revoked two previously suspended sentences. Since being put on probation and having the sentences suspended, defendant had tested positive for cocaine use, failed to report to his probation officer, failed to submit to urine screens, failed to report to drug court, and absconded from his probation supervision, in addition to his conviction. Brown v. Commonwealth,, 2006 Va. App. LEXIS 233 (Apr. 18, 2006).

Revocation of defendant's suspended sentence was upheld because the act upon which the revocation was based violated the good behavior condition of suspension, which was in effect even during the period of defendant's incarceration, and the court's written order prevailed over any apparently contradictory provisions contained in the transcript of the proceedings. Palmer v. Commonwealth,, 2006 Va. App. LEXIS 434 (Oct. 3, 2006).

Since the record indicated that a trial court placed significant weight upon defendant's new convictions in the revocation of the suspension of her prior sentences, defendant was entitled to a new hearing in light of the court's reversal of defendant's new convictions. Whitehead v. Commonwealth, 278 Va. 105 , 677 S.E.2d 265, 2009 Va. LEXIS 62 (2009).

Trial court did not err in finding that defendant violated his probation by refusing to admit that he committed the charged crime during court-ordered sex offender treatment because his Alford plea did not contain an implicit promise that he would never be required to admit his guilt, and the record did not show that the trial court abused its discretion in ordering sex offender treatment as a condition of defendant's probation; a defendant who enters an Alford plea is not an innocent person for the purposes of criminal sentencing and probation, and to mitigate the possibility that an innocent person would so plead, a factual basis is required supporting the finding of guilt before an Alford plea could be accepted. Carroll v. Commonwealth, 54 Va. App. 730, 682 S.E.2d 92, 2009 Va. App. LEXIS 392 (2009), aff'd, 280 Va. 641 , 701 S.E.2d 414, 2010 Va. LEXIS 277 (2010).

Trial court did not err in revoking defendant's previously suspended sentence under subsection A of § 19.2-306 because defendant had been found guilty of robbery, abduction, carjacking, and use of a firearm during each of those felonies. Thompson v. Commonwealth, No. 2427-09-2, 2010 Va. App. LEXIS 415 (Ct. of Appeals Oct. 26, 2010).

Trial court had authority under § 19.2-306 to revoke defendant's suspended sentence for misconduct that occurred while defendant was serving time on work release because the sentencing summary did not state that the suspended sentence was conditioned "upon release" and the condition of good behavior was implicit in every order suspending sentence; that implicit condition attached from the moment following the pronouncement of a suspended sentence. Hodgins v. Commonwealth, 61 Va. App. 102, 733 S.E.2d 678, 2012 Va. App. LEXIS 346 (Nov. 6, 2012).

Trial court, because it committed no legal error in denying defendant's motion to withdraw defendant's guilty plea, properly considered defendant's new conviction in determining whether to revoke defendant's suspended sentence from a prior conviction. Further, in light of the evidence presented, the court did not abuse its discretion in revoking the entirety of defendant's suspended sentence in light of defendant's new conviction. Booker v. Commonwealth, 61 Va. App. 323, 734 S.E.2d 729, 2012 Va. App. LEXIS 407 (2012).

Assuming without deciding that challenged hearsay testimony was erroneously admitted, the error was harmless beyond a reasonable doubt as the evidence as a whole, excluding the challenged hearsay statements, overwhelmingly proved that defendant was in violation of the terms of his probation. Defendant acknowledged two misdemeanor offenses, which demonstrated that he failed to be of good behavior, as required by the terms of his probation; officers recovered from defendant's bedroom a duffle bag containing two plastic baggies of cocaine and heroin; a stolen car was found in defendant's garage; and a form found during the search of defendant's home linked defendant to yet another stolen vehicle. Baines v. Commonwealth, No. 0805-12-2, 2013 Va. App. LEXIS 132 (Ct. of Appeals Apr. 30, 2013).

Because defendant did not enter a guilty plea, the trial court did not err in failing to permit him to withdraw such a plea; the trial court concluded that defendant was in violation of his probation and ordered him to serve a portion of his previously suspended sentence, and defendant did not argue on appeal that the trial court abused its discretion in finding him in violation. Hurly v. Commonwealth, No. 1160-12-1, 2013 Va. App. LEXIS 268 (Ct. of Appeals Oct. 1, 2013).

Trial court did not err in concluding that appellant violated the terms and conditions of his supervised probation when he was convicted of a new drug offense where he had been sentenced to a new five-year term of supervised probation following a prior revocation hearing, and he was well within the five-year period when he was convicted of the new offense. Carter v. Commonwealth,, 2014 Va. App. LEXIS 163 (May 6, 2014).

Revocation of defendant's suspended sentence was appropriate because, although the alleged behavior by defendant may not have risen to a level sufficient to support new criminal convictions, the evidence sufficed to justify the revocation of the suspended sentence. The decision to revoke defendant's suspended sentence was not plainly wrong or without evidence to support it in that police detectives testified as to their investigations of the alleged new robberies committed by defendant and as to the statements made by the alleged victims. Anderson v. Commonwealth, No. 2305-14-2, 2016 Va. App. LEXIS 123 (Ct. of Appeals Apr. 12, 2016).

Trial court properly revoked defendant's probation because, while the trial court's 95 percent surety of defendant's guilt in a grand larceny case was insufficient to convict him, it was enough to revoke by itself, any violation of defendant's confrontation rights resulting from the admission of a probation violation report was harmless beyond a reasonable doubt, defendant had ample notice that his grand larceny charge would be material to the revocation proceeding, and he never challenged his failure to report his arrest within the three-day window required by the terms of his probation. Holman v. Commonwealth, No. 1919-16-2, 2018 Va. App. LEXIS 103 (Apr. 17, 2018).

Trial court did not abuse its discretion in finding defendant guilty of violating the terms of defendant's probation because the court found defendant in violation of defendant's probation based upon defendant's failure to comply with a condition that required defendant to follow defendant's probation officer's instructions and be truthful, cooperative, and report as instructed. Furthermore, the evidence fairly supported the trial court's finding that defendant violated that condition of defendant's probation. Kenan v. Commonwealth, No. 1592-17-4, 2020 Va. App. LEXIS 3 (Jan. 7, 2020).

Section provides authority to revoke. - The authority of the trial court to revoke suspension of the execution of a sentence for any cause deemed by it sufficient which occurs within the period of suspension fixed by the court is provided by this section. Hamilton v. Commonwealth, 217 Va. 325 , 228 S.E.2d 555 (1976).

This section provides the court with authority to revoke suspended sentences for violation occurring during the period of probation. Blankenship v. Commonwealth, No. 1490-88-1 (Ct. of Appeals Aug. 14, 1990).

This section authorizes a trial judge to revoke a suspended sentence based on criminal misconduct violating the conditions of suspension, even though committed while the convict is incarcerated and before his active probation begins. Haynes v. Commonwealth, No. 1593-92-2 (Ct. of Appeals Mar. 22, 1994).

Under this section, a court retains the authority to revoke a suspended sentence despite the proscriptions of the rule specifying that all final judgments, orders, and decrees shall remain under the control of the trial court and subject to be modified, vacated, or suspended for 21 days after the date of entry and no longer. Wright v. Commonwealth, 32 Va. App. 148, 526 S.E.2d 784, appeal dismissed, 261 Va. 1 , 539 S.E.2d 432 (2000).

Circuit court's revocation of defendant's previously suspended sentence of incarceration in the Tennessee Department of Corrections was a proper exercise of both its discretion to impose conditions and to revoke a suspended sentence. Martinez v. Commonwealth, 71 Va. App. 318, 836 S.E.2d 1, 2019 Va. App. LEXIS 285 (2019).

Revocation of suspended sentence did not exceed judge's authority. - Trial court had authority to revoke defendant's suspended sentence upon his violations of conditions of suspended sentence and probation, since § 19.2-306 provided that the court could revoke defendant's unspecified suspended sentence during the maximum prescribed sentence plus one year, and the court's action occurred well within the prescribed period. Baldwin v. Commonwealth, No. 2722-00-3, 2002 Va. App. LEXIS 283 (Ct. of Appeals May 7, 2002).

Since defendant was arrested and brought before the trial court within one year from the end of defendant's initial period of suspension, as required by § 19.2-306 , the trial court had the authority to revoke defendant's sentence and extend his probation. Vitkow v. Commonwealth, No. 0531-01-4, 2002 Va. App. LEXIS 310 (Ct. of Appeals May 14, 2002).

Where defendant's probation period had been extended under § 19.2-304 , the trial court was entitled to revoke his suspended sentence, although the original period of suspension had expired, because, pursuant to subsection A of § 19.2-306 , the trial court could revoke the suspension anytime during the probation period. Mohamed v. Commonwealth, 56 Va. App. 95, 691 S.E.2d 513, 2010 Va. App. LEXIS 145 (2010).

When defendant was convicted of taking indecent liberties with a child while in a custodial or supervisory relationship, it was not an abuse of discretion to revoke defendant's previously suspended sentence or to run the sentence consecutively to defendant's new sentence because, (1) by committing a new offense, defendant "forfeited" the "conditional freedom" inherent in the court's earlier decision to suspend part of defendant's sentence, (2) defendant did not claim the trial court based defendant's sentence or revocation on facially unlawful considerations or that either sentence exceeded applicable statutory limits, and (3) consecutive sentences were presumed, under § 19.2-308 . Nicholson v. Commonwealth,, 2011 Va. App. LEXIS 405 (Dec. 20, 2011).

Revocation of defendant's suspended sentences was warranted because his disregard for supervision made him a risk to public safety, and he failed to keep in contact with his probation officer. Wiley v. Commonwealth, No. 1136-12-4, 2013 Va. App. LEXIS 198 (Ct. of Appeals July 9, 2013).

Sentencing court did not abuse its discretion in holding that defendant committed a new violation of the conditions of his probation and suspended sentence, rather than merely reconsidering the suspension of his sentence, because it had authority to consider the entire period of time from the original suspension of defendant's sentence through the revocation hearing, and the evidence supported its finding that defendant violated the terms of the suspended sentence and probation by committing new crimes. Mooney v. Commonwealth, No. 1452-12-2, 2013 Va. App. LEXIS 262 (Ct. of Appeals Sept. 24, 2013).

Trial court did not err in revoking defendant's suspended sentence and re-suspending the suspended sentence for possession of cocaine because by committing new crimes, defendant violated the long established implicit condition of good behavior; committing new felonies qualified as "good cause" by any measure, and the trial court possessed the authority to revoke his previously suspended sentence for crimes committed during the period of suspension. Burnham v. Commonwealth, 298 Va. 109 , 833 S.E.2d 872, 2019 Va. LEXIS 139 (2019).

Revocation should not be arbitrary. - The action of the court in revoking a suspension should not, under any circumstances, be arbitrary. Griffin v. Cunningham, 205 Va. 349 , 136 S.E.2d 840 (1964); Hamilton v. Commonwealth, 217 Va. 325 , 228 S.E.2d 555 (1976).

Cause for revoking must be reasonable. - The cause deemed by the court to be sufficient for revoking a suspension must be a reasonable cause. Hamilton v. Commonwealth, 217 Va. 325 , 228 S.E.2d 555 (1976).

Because trial judge erred in imposing prison sentences in excess of maximum allowed by statute, he had no authority to later revoke suspended sentences on those convictions and incarcerate defendant on those revocations. McCray v. Commonwealth, No. 1276-99-2 (Ct. of Appeals Mar. 21, 2000).

Trial court did not abuse its discretion in revoking defendant's suspended sentence for defendant's failure to pay restitution for eight months as the evidence did not support defendant's argument that defendant had an inability to pay restitution as defendant paid for car insurance, gasoline, medical prescriptions, and even a second restitution in another county at a time when defendant's sentencing order stated defendant was required to pay "all income" towards defendant's restitution and she did not pay any restitution at all. Johnson v. Commonwealth, No. 0760-01-4 CHIEF, 2002 Va. App. LEXIS 628 (Ct. of Appeals Oct. 15, 2002).

Circuit court abused its discretion when it revoked defendant's suspended sentences because there was no evidence that showed whether or when defendant failed to make the monthly restitution payments; because the evidence was insufficient to prove that defendant failed to pay restitution according to her repayment plan, there was no evidence her alleged failure to pay restitution was unreasonable. Langen v. Commonwealth, No. 0745-16-1, 2017 Va. App. LEXIS 101 (Apr. 11, 2017).

Trial court erred in revoking defendant's suspended sentence because, while the trial court, in effect, held that defendant was strictly liable for her failure to comply with the condition of her probation requiring her to report to the jail, the standard for determining whether there was cause to find defendant violated a probation condition was "reasonable cause," the trial court should resolve the question of whether defendant was confused about whether she complied with the reporting requirement and, if so, whether her mistake in failing to report was reasonable. McNair v. Commonwealth, No. 0306-19-4, 2020 Va. App. LEXIS 33 (Feb. 4, 2020).

Defendant's own statement sufficient to prove violation of conditions of probation. - Circuit court did not abuse its discretion in revoking defendant's previously suspended sentences and re-suspending them on the ground that defendant violated the terms of probation because the Commonwealth proved by defendant's own statement that she used alcohol on numerous occasions during the probationary period, and if credited by the trial court, defendant's statement was sufficient, standing alone, to prove that she was making a poor adjustment to supervision; the corpus delicti rule is not applicable to the probation revocation process, which deals solely with the possible modification of a judgment already rendered. Downey v. Commonwealth, 59 Va. App. 13, 716 S.E.2d 472, 2011 Va. App. LEXIS 323 (2011).

Trial court properly revoked defendant's suspended sentence and imposed the remaining time because he stipulated that he had violated the terms of his suspended sentence, the trial court accepted defendant's stipulation before any mention was made of his firearm conviction, and no speedy trial violation regarding the firearm conviction was found. Lewis v. Commonwealth, Nos. 0632-17-2, 1173-17-2, 2018 Va. App. LEXIS 257 (Oct. 2, 2018).

Counsel's own judicial admission sufficient to prove violation of conditions of probation. - Since defendant's counsel conceded that defendant had been convicted of offenses while on probation by making a judicial admission of that fact during his request for a continuance, the trial court did not err in considering counsel's statements as conclusive proof that defendant had violated the terms and conditions of his probation. Hall v. Commonwealth, No. 1664-12-1, 2013 Va. App. LEXIS 234 (Ct. of Appeals Aug. 13, 2013).

Conduct occurred before sentence was imposed. - Revocation was not proper when all of the conduct complained of in the revocation proceeding occurred before the suspended sentence at issue was imposed. Joyce v. Commonwealth,, 2006 Va. App. LEXIS 498 (Nov. 7, 2006).

Because the trial court expressly stated that it did not consider the charges pending against defendant in another jurisdiction at a prior revocation hearing, it did not abuse its discretion under § 19.2-306 in revoking defendant's suspended sentence on that basis at a subsequent revocation hearing. Clarke v. Commonwealth, 60 Va. App. 190, 725 S.E.2d 158, 2012 Va. App. LEXIS 166 (2012).

Continuance of revocation proceeding not required. - A conviction for petit larceny which occurred during the period of probation is sufficient cause to support revocation of the petitioner's suspended sentence even if evidence of the facts underlying the conviction is not presented. In addition, a continuance of the revocation proceeding is not required while an appeal of the underlying conviction is pending. Patterson v. Commonwealth, 12 Va. App. 1046, 407 S.E.2d 43 (1991).

The conviction of a subsequent criminal offense is not essential to warrant the revocation of a suspension of sentence. Slayton v. Commonwealth, 185 Va. 357 , 38 S.E.2d 479 (1946); Berry v. Commonwealth, 200 Va. 495 , 106 S.E.2d 590 (1959).

Even though defendant had been acquitted of alleged crimes, the conduct connected with the alleged crimes could properly be the basis for revocation of suspension. In a revocation proceeding proof beyond a reasonable doubt is not required. Marshall v. Commonwealth, 202 Va. 217 , 116 S.E.2d 270 (1960).

Trial court did not abuse its discretion in revoking a defendant's suspended sentence where three witnesses placed him at the scene of a murder and one identified him as the shooter; the trial court - notwithstanding the fact that a jury had acquitted defendant of the murder - was entitled to find from this evidence that defendant was illicitly involved in the homicide and made deceitful statements to an officer to conceal his involvement, and on the basis of either of those findings, could have properly concluded that defendant failed to be of good behavior, amounting to substantial misconduct, during the period of the suspension of his sentence. Cappell v. Commonwealth, No. 0807-02-3, 2003 Va. App. LEXIS 313 (Ct. of Appeals May 27, 2003).

Defendant consented to procedure. - Revocation of defendant's probation was affirmed as defendant agreed to the procedure followed, in which federal drug charges that were pending at the time of a first revocation hearing were not to be considered, unless they resulted in convictions; defendant was convicted, and the drug offenses properly formed the basis of a second revocation hearing. Subsection D of § 19.2-306 did not bar later consideration of that not previously considered. Ford v. Commonwealth,, 2007 Va. App. LEXIS 106 (Mar. 20, 2007).

Failure to complete alternative sentencing program. - Revocation of defendant's suspended sentence based on his failure to complete an alternative sentencing program was erroneous because his failure to complete the program was not willful but based on an unforeseen medical condition. Peyton v. Commonwealth, 268 Va. 503 , 604 S.E.2d 17, 2004 Va. LEXIS 147 (2004).

Bench warrant as support of revocation. - Trial court did not violate defendant's due process rights when it revoked defendant's probation, as the bench warrant expressly stated that defendant was removed from the shelter for inappropriate conduct, which provided a sufficient basis for revocation. Lawrence v. Commonwealth, No. 0716-01-4, 2002 Va. App. LEXIS 719 (Ct. of Appeals Dec. 3, 2002).

Proof of violation beyond reasonable doubt not required. - An alleged violation upon which revocation is based need not be proven beyond a reasonable doubt. Simmonds v. Commonwealth, No. 2710-99-3, 2000 Va. App. LEXIS 662 (Ct. of Appeals Sept. 26, 2000).

Judge's power of revocation. - If no cause arose during the probation period, the judge may also revoke the suspended sentence and probation for any "cause . . . which occurred . . . within the period of suspension fixed by the court." The words, "if neither," must then be read to refer both to "cause . . . which occurred . . . within the probation period" and "cause . . . which occurred . . . within the period of suspension fixed by the court." Carbaugh v. Commonwealth, 19 Va. App. 119, 449 S.E.2d 264 (1994).

Although the express wording of this section does not explicitly address a judge's power to revoke suspension and probation when no period of suspension was fixed, that power is implicit because, if the cause arose during a time that was neither within the probation period nor within a period of suspension, i.e., no period of suspension was expressly prescribed, the judge could revoke the suspended sentence and probation within the maximum period for which the defendant might originally have been sentenced to be imprisoned. Carbaugh v. Commonwealth, 19 Va. App. 119, 449 S.E.2d 264 (1994).

Evidence supported decision to revoke defendant's probation and suspended sentence. - Revocation of suspended sentence was upheld as defendant's termination from the detention center violated a condition of his probation and suspended sentences and the trial court considered the totality of the evidence before finding sufficient cause to revoke defendant's suspended sentences. Owens v. Commonwealth, No. 0146-03-4, 2004 Va. App. LEXIS 60 (Ct. of Appeals Feb. 10, 2004).

Circuit court properly found a probationer in violation of his probation, as: (1) testimony from a victim-witness in a city prosecution, which was underlying basis for the issuance of a capias in the revocation matter, was relevant; (2) that witness was exempt from sequestration, as she could not have shaped her testimony to correspond to the contents of the probationer's letter to the judge or the testimony of the probation officer; and (3) a denial of a continuance was not error, as the probationer's counsel stated that despite his unfamiliarity with the city action, he was prepared to try the issue of whether or not his client violated the terms of his probation. Osborne v. Commonwealth, No. 2358-04-3, 2005 Va. App. LEXIS 376 (Oct. 4, 2005).

Revocation of defendant's suspended sentence was affirmed when defendant was convicted after the suspended sentence was imposed of additional crimes. Imposition of the unserved portions of the original sentences was not an abuse of discretion. Joyce v. Commonwealth,, 2006 Va. App. LEXIS 498 (Nov. 7, 2006).

Revocation of defendant's probation and suspension of sentence was affirmed because the fact that defendant threatened the trial judge, standing alone, was legally sufficient to support the revocation and did not reflect an abuse of discretion. Spencer v. Commonwealth,, 2007 Va. App. LEXIS 469 (Dec. 27, 2007).

Circuit court did not abuse its discretion in revoking a portion of an inmate's remaining suspended sentence for one conviction, imposing an active period of incarceration, and revoking and resuspending in full the sentence on a second conviction because the inmate violated the conditions of his probation by testing positive for cocaine use within days of leaving jail and by failing to report for a required meeting with his probation officer. Price v. Commonwealth, 51 Va. App. 443, 658 S.E.2d 700, 2008 Va. App. LEXIS 166 (2008).

During defendant's revocation hearing, evidence was admitted into the record without objection that defendant had violated the conditions of his probation by failing to abide by the law and by failing to report to his probation officer as instructed, and defendant pleaded "no contest" to felony petit larceny third or subsequent offense, which he committed the day after his initial meeting with his probation officer. Because the evidence clearly established that defendant was convicted of petit larceny third offense during his probation period, the appellate court concluded that the evidence was sufficient to establish that he violated the conditions of his probation. Myers v. Commonwealth,, 2009 Va. App. LEXIS 558 (Dec. 15, 2009).

No Sixth Amendment error resulted from admitting testimony at a revocation hearing from defendant's probation officer about hearsay statements from social workers who saw defendant go into a bar because the report from and to government officials was sufficiently reliable; the evidence was therefore sufficient to support the revocation. Saunders v. Commonwealth, 62 Va. App. 793, 753 S.E.2d 602, 2014 Va. App. LEXIS 23 (2014).

Trial court properly convicted defendant of possession of child pornography and revoked his probation because defendant's ownership of a cell phone on which an image of his 17 1/2-year old girlfriend manipulating her genitalia with her hand was found and his statements concerning that image to others established that he knowingly possessed a pornographic image. Bliss v. Commonwealth,, 2014 Va. App. LEXIS 177 (May 13, 2014).

Circuit court properly revoked defendant's suspended sentence because he received his due process rights to notice and a hearing regarding his termination from a drug treatment court program; defendant exercised the opportunity to present evidence, he admitted receiving written notice that the Commonwealth sought to revoke his suspended sentence for "using drugs," and the record contained a transcript of the drug court termination hearing, which showed defendant was present with counsel. Washington v. Commonwealth, No. 0710-16-1, 2017 Va. App. LEXIS 288 (Nov. 14, 2017).

Evidence supported sentence after probation revocation. - One-year and six-month sentence for underlying robbery and attempted robbery offenses was properly imposed after probation revocation under circumstances in which, inter alia, defendant had problems with both alcohol and drugs, tested positive for marijuana three times in five months, and refused to enter substance abuse counseling. Parkins v. Commonwealth,, 2006 Va. App. LEXIS 489 (Oct. 31, 2006).

C. TERMS AND CONDITIONS.

Good behavior is a condition of every suspension. - While the language of the suspensions did not in terms include a condition of good behavior, that condition is implicit in every such suspension and constitutes the origin and purpose of the suspension and probation statutes. When a trial court suspends a sentence it does not make a contract with the accused, but only extends to him the opportunity which the State affords him to repent and reform. Coffey v. Commonwealth, 209 Va. 760 , 167 S.E.2d 343 (1969); Brown v. Slayton, 342 F. Supp. 61 (W.D. Va. 1972).

Good behavior is a condition of every suspension, with or without probation, whether expressly so stated or not. Rutherford v. Blankenship, 468 F. Supp. 1357 (W.D. Va. 1979).

Revocation of a defendant's suspended sentence was proper, since: (1) good behavior was an implicit condition of every suspended sentence, even though probation had not yet started; and (2) he violated that condition while his sentence was suspended when he was released under his appeal bond. Collins v. Commonwealth, 269 Va. 141 , 607 S.E.2d 719, 2005 Va. LEXIS 13 (2005).

Trial court did not err in revoking defendant's suspended sentences and resuspending six months under § 19.2-306 without first finding that defendant signed the probation terms and conditions form because defendant violated her implied duty of good behavior during the term of her suspended sentences by continuing to use illegal drugs. Jennings v. Commonwealth,, 2010 Va. App. LEXIS 112 (Mar. 23, 2010).

Circuit court properly revoked defendant's two previously suspended sentences because he conceded that a 20-year period of good behavior was stated implicitly in the 2008 order and that the violations occurred within 20 years of 2008, the reference to "supervised probation" in the order did not mean the court fixed the probation period at zero, and since the court could revoke the suspension for any cause it deemed sufficient that occurred within the 20-year period, the ends of justice exception did not apply. Kelly v. Commonwealth,, 2019 Va. App. LEXIS 207 (Sept. 24, 2019).

Expressly stated condition of good behavior preferable. - Even though good behavior is an implicit condition of a suspended sentence, the better practice is to expressly include that language in an order revoking and re-suspending a sentence; an expressly stated condition of good behavior provides additional notice to a defendant and minimizes the risk of confusion. Burnham v. Commonwealth, 298 Va. 109 , 833 S.E.2d 872, 2019 Va. LEXIS 139 (2019).

Once the period of probation ends, the requirement of good behavior remains alongside the suspended sentence; the requirement of good behavior, implicit in every suspended sentence, does not disappear even if an earlier sentencing order contains an express requirement of good behavior and a subsequent order does not expressly carry over the good behavior requirement. Burnham v. Commonwealth, 298 Va. 109 , 833 S.E.2d 872, 2019 Va. LEXIS 139 (2019).

Incarceration as condition of suspension. - Trial court had the authority to impose a period of incarceration as a condition of suspending the execution of a five-year penitentiary sentence. Nuckoles v. Commonwealth, 12 Va. App. 1083, 407 S.E.2d 355 (1991).

Order not prescribing probation or probation period. - Order suspending jail sentence and placing defendant "upon his good behavior for a period of one year" upon condition that "he keep the peace and dignity and not violate any of the laws" for a period of one year, did not prescribe a probation or a probation period within the meaning of former § 53-272 and this section. Dyke v. Commonwealth, 193 Va. 478 , 69 S.E.2d 483 (1952).

Probation as condition of suspension. - A court's ability to revoke the suspension of a sentence and to impose that sentence permits it to enforce a probationary requirement as a condition of suspension. Hartless v. Commonwealth, 29 Va. App. 172, 510 S.E.2d 738 (1999).

Implicit in the trial court's sentencing authority was its power to impose the entire suspended sentence, and then to resuspend all or a portion of the reimposed sentence under such terms and conditions it deemed appropriate, including placing defendant on supervised probation as a condition of resuspending the 1989 sentence, and it did not impermissibly modify or extend the 1989 sentencing order in violation of Va. Sup. Ct. R. 1:1. Harrison v. Commonwealth, No. 0556-04-2, 2005 Va. App. LEXIS 115 (Ct. of Appeals Mar. 22, 2005).

To be effective, probation must be concurrent with coordinate term of suspension of sentence. Hartless v. Commonwealth, 29 Va. App. 172, 510 S.E.2d 738 (1999).

Proportionality of sentence imposed after revocation. - Although § 19.2-306 gave the trial court broad discretion to revoke suspended sentences and impose whatever sentence might have been originally imposed, imposing the entire 26 years of defendant's suspended sentences for forgery based on a new larceny conviction, two missed probation meetings in 7 years, and a failure to pay complete restitution, was disproportionate to defendant's violations where, inter alia, defendant was a non-violent offender who had done well on probation and was being "monitored" only for restitution purposes. Payne v. Commonwealth, No. 1759-01-1, 2002 Va. App. LEXIS 515 (Ct. of Appeals Aug. 20, 2002).

Restitution. - Trial court properly found that defendant was in contempt for violating the statute because the sentencing order requiring her to pay restitution constituted a condition of her suspended sentence and a freestanding obligation to pay and she failed to pay; despite the fact that defendant's probation expired, rendering enforcement of the restitution plan through § 19.2-306 untenable, the restitution plan remained enforceable through § 19.2-358 . Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).

Compliance with a restitution plan may be enforceable through § 19.2-306 , if incorporated into a sentencing order as a condition of a suspended sentence, or it may be enforceable through § 19.2-358 , regardless of whether the restitution plan stated that it was entered into pursuant to § 19.2-354 . The enforcement mechanisms of §§ 19.2-306 and 19.2-358 are not mutually exclusive. Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).

A reasonable failure to pay restitution negates a reasonable cause to revoke a suspended sentence. Duff v. Commonwealth, 16 Va. App. 293, 429 S.E.2d 465 (1993).

Ability to pay is a necessary consideration in the trial court's determination of cause for the failure to pay restitution ordered as a condition of a suspended sentence thus, where the evidence established that the failure resulted solely from an inability to pay and not a willful refusal, it was an abuse of discretion to automatically revoke the prior suspended sentence without considering reasonable alternatives to imprisonment. Duff v. Commonwealth, 16 Va. App. 293, 429 S.E.2d 465 (1993).

Circuit court abused its discretion in finding that defendant's payments towards restitution were unreasonable. The evidence showed that defendant made payments totaling $1,750 towards restitution, and these payments, based on the limited evidence presented, were in line with the amount defendant could afford to pay, and the trial court made no factual findings to the contrary. Ruff v. Commonwealth, No. 1392-18-1, 2020 Va. App. LEXIS 11 (Jan. 14, 2020).

Court's alternative where failure to pay restitution not willful. - A court may modify restitution plan consistent with the defendant's ability to pay or employ some other means to permit the victim to recover the loss where the failure to follow the plan resulted solely from an inability to pay and was not a willful refusal. Duff v. Commonwealth, 16 Va. App. 293, 429 S.E.2d 465 (1993).

Revocation of suspended sentence did not exceed judge's authority. - When appellant was arrested in 1992 for driving under the influence of alcohol, he was still within the maximum period for which he might have been sentenced on the grand larceny charge. Thus, the trial judge did not exceed his authority when, in 1993, he revoked an additional nine months of the suspended sentence. Carbaugh v. Commonwealth, 19 Va. App. 119, 449 S.E.2d 264 (1994).

Trial court did not abuse its discretion in revoking defendant's suspended sentences where he lied to court, failed to make timely restitution, and continued to fraudulently obtain money from other individuals, in violation of condition that he obey laws of Commonwealth. Mitchell v. Commonwealth, No. 2313-98-1 (Ct. of Appeals Nov. 16, 1999).

Where a defendant was in possession of a sharp instrument, made threats to children and made improper use of the mail, the trial court did not abuse its discretion in revoking suspended sentences. Kibler v. Commonwealth, No. 0165-02-4, 2002 Va. App. LEXIS 718 (Ct. of Appeals Dec. 3, 2002).

Because the trial court had the statutory authority to enter an order revoking a probationer's suspended sentences, and resuspend them for a fixed period on certain conditions, a collateral attack against the content of that order raising a question of trial court error was prohibited, as: (1) the order's lack of a specific finding that the probationer violated the terms of his suspended sentences, and its arguable lack of clarity, did not divest the court of jurisdiction; and (2) at most, such errors or irregularities rendered the order merely voidable rather than void ab initio. Moreover, the probationer could have challenged the court's entry of the order upon a timely motion to the trial court or a timely direct appeal, but failed to do so. Crawley v. Commonwealth,, 2007 Va. App. LEXIS 217 (May 22, 2007).

Because the record showed that a probationer failed to comply with the terms of his suspended sentences within the period of suspension fixed by the court, the trial court had jurisdiction to revoke the probationer's suspended sentences and resuspend those sentences for a fixed period on certain conditions. Crawley v. Commonwealth,, 2007 Va. App. LEXIS 217 (May 22, 2007).

When a trial court had subject matter jurisdiction over defendant's 1998 hearing to revoke his suspended sentence and extended defendant's period of suspension, the trial court did not err in revoking defendant's suspended sentence in 2010, pursuant to subsection A of § 19.2-306 , because the suspension took place within the fourteen-year period established in the 1998 sentencing order; defendant was not entitled to collaterally attack the 1998 sentencing order because the order was not void. Dunham v. Commonwealth, 59 Va. App. 634, 721 S.E.2d 824, 2012 Va. App. LEXIS 49 (2012), aff'd, 284 Va. 511 , 733 S.E.2d 660, 2012 Va. LEXIS 201 (Va. 2012).

Good cause hearing. - Trial court erred in including a condition of suspended sentence that upon receipt of a sworn affidavit from the mother, the father would be arrested and be remanded to the custody of the sheriff for service of his twelve-month jail term after being found guilty of contempt because the procedure given in the order deprived the court of the opportunity to determine at a hearing whether there was good cause to believe the father violated the terms of suspension before revoking the suspension. Milam v. Milam, 65 Va. App. 439, 778 S.E.2d 535, 2015 Va. App. LEXIS 331 (2015).

Absence of explicit recitation re-suspending balance of original sentence. - Under subsection C of § 19.2-306 , a first revocation order implicitly re-suspended the unserved balance of defendant's original sentence and did not implicitly discharge the remaining sentence, despite the absence of an explicit recitation re-suspending the balance of the original sentence; the trial court could not shorten a final sentence even if it wanted to, and certainly could not shorten defendant's sentence by accident or because his bad behavior required a revocation proceeding. Jacobs v. Commonwealth, 61 Va. App. 529, 738 S.E.2d 519, 2013 Va. App. LEXIS 77 (2013).

Appeal of condition barred by probationer's consent. - Because a probation condition that the probationer take his antipsychotic medication was imposed with his full and voluntary consent, any claim on appeal that the trial court erred in imposing sentence due to a violation of said condition was barred. Spencer v. Commonwealth,, 2007 Va. App. LEXIS 292 (Aug. 7, 2007).

Escape violated good behavior condition. - Appellant's contention that the sentencing order required only that he maintain good behavior for three years after release from confinement was without merit. This condition merely established the required period of good behavior after release. It had no effect on the implicit condition of suspension that appellant was to remain on good behavior from the time the sentencing order was entered. Therefore, when appellant escaped, he violated the condition of good behavior. Crowder v. Commonwealth, No. 2348-93-1 (Ct. of Appeals April 25, 1995).

Probation revocation based solely on failure to maintain good behavior upheld. - Trial court was justified in exercising its discretion to revoke appellant's suspended sentence and probation based solely on the fact that he failed to maintain good behavior when he did not report to his parole and probation officer upon being released from the penitentiary. Davis v. Commonwealth, 12 Va. App. 81, 402 S.E.2d 684 (1991).

Probation revocation upheld and sentence imposed. - Defendant's use of illegal drugs during the probationary period was inconsistent with the terms and conditions of the probation and evidenced her unwillingness to avail herself of the opportunity afforded by the court. Under such circumstances, the judgment of the trial court to convict defendant of possession of controlled substance and impose sentence clearly constituted no abuse of discretion. Connelly v. Commonwealth, 14 Va. App. 888, 420 S.E.2d 244 (1992).

Trial court did not abuse its discretion under § 19.2-306 in imposing all of defendant's previously suspended sentence where: (1) the evidence was uncontroverted that defendant violated the conditions of his probation by committing the misdemeanor destruction of private property and "Peeping Tom" offenses; (2) it was defendant's fourth violation of probation in less than four years; (3) defendant's other violations included failure to maintain his registration as a sex offender and hiding in the nurses' locker room at a hospital; (4) there was no question that the original sentence was warranted; and (5) defendant's probation officer testified that he was dangerous. Alsberry v. Commonwealth, 39 Va. App. 314, 572 S.E.2d 522, 2002 Va. App. LEXIS 721 (2002).

Condition to be of good behavior not violated. - Where the only changed circumstance that occurred between the date defendant was sentenced by the trial court and the date of the revocation hearing in the trial court was that the indictment against him, of which the court was aware at time of sentencing, has been tried and had resulted in a conviction in a federal court, this did not constitute a violation by defendant of the condition of his suspended sentence to be of good behavior. Hamilton v. Commonwealth, 217 Va. 325 , 228 S.E.2d 555 (1976).

Presumption where ground of revocation not stated. - Where the ground upon which a suspension of sentence was revoked is not shown, the presumption is that it was upon a valid finding that the accused had in some manner violated the conditions of the suspension. Slayton v. Commonwealth, 185 Va. 357 , 38 S.E.2d 479 (1946); Marshall v. Commonwealth, 202 Va. 217 , 116 S.E.2d 270 (1960).

Basis for revocation order. - However, should Commonwealth elect to rely solely upon criminal conviction, without evidence of the related conduct, to establish the reasonable cause necessary to revocation, the "bare fact" of such conviction clearly becomes the basis for the revocation order. Resio v. Commonwealth, 29 Va. App. 616, 513 S.E.2d 892 (1999).

Trial court erred in revoking defendant's suspended sentence and probation imposed in defendant's distribution of imitation of cocaine case, as revocation was based on conduct that occurred before defendant's sentence in that case was imposed, and not after as was required by statute. Oliver v. Commonwealth, 38 Va. App. 845, 568 S.E.2d 465, 2002 Va. App. LEXIS 522 (2002).

There was no error in a trial court finding that a probationer violated the terms of probation and in the court revoking the probationer's suspended sentence when the probationer violated special instructions that were imposed by the probation officer at the court's direction. Furthermore, the instructions which the probation officer imposed were reasonable and warranted enforcement and were tailored to a sex offender such as the probationer. Smith v. Commonwealth, No. 0038-17-1, 2017 Va. App. LEXIS 316 (Dec. 12, 2017).

Revocation order void ab initio. - Trial court erred in revoking defendant's probation and sentencing him to serve a term of imprisonment because, while defendant received adequate notice of the proceedings, the revocation order was void ab initio where the proceedings occurred well after the expiration of the 21-day window, the trial court had no power to alter the length of defendant's sentence, once the trial court found defendant in violation of probation, it was statutorily required to revoke the suspended term, impose terms and conditions, or place defendant on probation. Curry v. Commonwealth, No. 0180-15-1, 2015 Va. App. LEXIS 389 (Dec. 22, 2015).

Imposition of different conditions of resuspension of sentence. - Trial court, pursuant to § 19.2-306 , in revoking defendant's sentences and resuspending them, had the discretion to impose different conditions on the resuspension of those sentences. Reinke v. Commonwealth, 51 Va. App. 357, 657 S.E.2d 805, 2008 Va. App. LEXIS 111 (2008).

Reinstatement of portion of original sentence. - Because defendant pleaded no contest to violating the terms of a suspended sentence, the trial court did not abuse its discretion under subsection A of § 19.2-306 by reinstating a total of six years of the original nine-year-and-six-month sentence. Vaughn v. Commonwealth,, 2009 Va. App. LEXIS 71 (Feb. 17, 2009).

Effect of compliance by accused with conditions of suspension. - When the accused has complied with conditions specified, he has a right to rely upon them, and the suspension will stand. Griffin v. Cunningham, 205 Va. 349 , 136 S.E.2d 840 (1964).

Failure to comply. - A court which has ordered a suspension of sentence undoubtedly has the power to revoke it when the defendant has failed to comply with the conditions of the suspension. Griffin v. Cunningham, 205 Va. 349 , 136 S.E.2d 840 (1964); Hamilton v. Commonwealth, 217 Va. 325 , 228 S.E.2d 555 (1976).

Trial court acted within its discretion in revoking a defendant's probation where the defendant had violated two of the conditions of his probation by failing to make restitution payments to the elderly couple he had defrauded and by lying to his probation officer. Keselica v. Commonwealth, 34 Va. App. 31, 537 S.E.2d 611, 2000 Va. App. LEXIS 768 (2000).

Where defendant did not comply with a polygraph examination, which was a reasonable, additional probation requirement under the circumstances, the trial court properly revoked defendant's probation. Jones v. Commonwealth, No. 2637-02-1, 2003 Va. App. LEXIS 533 (Ct. of Appeals Oct. 28, 2003).

Substantial misconduct grounds for revocation of suspension. - The failure of a defendant to be of good behavior, amounting to substantial misconduct, during the period of the suspension would provide reasonable cause for revocation of the suspension whether or not good behavior was expressly stated to be a condition of the suspension. Marshall v. Commonwealth, 202 Va. 217 , 116 S.E.2d 270 (1960); Brown v. Slayton, 342 F. Supp. 61 (W.D. Va. 1972); Hamilton v. Commonwealth, 217 Va. 325 , 228 S.E.2d 555 (1976).

Proof of violation of conditions. - Inasmuch as a proceeding to revoke a suspension of a sentence for cause is not a trial for the commission of a new criminal offense, the alleged violation by the probationer of the conditions of the suspension of sentence need not be proven beyond a reasonable doubt. Slayton v. Commonwealth, 185 Va. 357 , 38 S.E.2d 479 (1946); Marshall v. Commonwealth, 202 Va. 217 , 116 S.E.2d 270 (1960).

Because sufficient evidence supported the other charged probation violations against the probationer, and because he requested the exact relief he sought to contest on appeal, the order finding that he was in violation of said probation by refusing to take antipsychotic drugs was upheld without reaching the merits of his claim. Spencer v. Commonwealth,, 2007 Va. App. LEXIS 292 (Aug. 7, 2007).

Evidence supported decision to revoke defendant's probation and suspended sentence. - Revocation of suspended sentence was upheld as defendant's termination from the detention center violated a condition of his probation and suspended sentences and the trial court considered the totality of the evidence before finding sufficient cause to revoke defendant's suspended sentences. Owens v. Commonwealth, No. 0146-03-4, 2004 Va. App. LEXIS 60 (Ct. of Appeals Feb. 10, 2004).

Suspended sentence revocable for substantial misconduct short of violation of law. - Defendant's suspended sentence for aggravated sexual battery on an 11-year-old, conditioned on good behavior, could be revoked for substantial misconduct not involving violation of law; therefore trial court did not abuse its discretion in revoking suspended sentence even absent proof that defendant violated law by writing letters in which he graphically described his desire to have sex with children. Holden v. Commonwealth, 27 Va. App. 38, 497 S.E.2d 492 (1998).

The trial judge erred by basing his decision to revoke probation and suspension of imposition of sentence upon testimony that he recalled from the misdemeanor prosecution, without his stating for or making part of the record the specific evidence upon which he relied to find that defendant had violated the conditions of probation and suspension of sentence. Hess v. Commonwealth, 17 Va. App. 738, 441 S.E.2d 29 (1994).

Miscarriage of justice regarding sentence not shown. - After defendant violated probation, the trial court was entitled to impose the entirety of his suspended sentences and imposition of a third of that time was not excessive on its face; defendant did not show a miscarriage of justice and his failure to preserve the issue precluded review. Hobbs v. Commonwealth, No. 0930-19-1, 2020 Va. App. LEXIS 134 (May 5, 2020).

Failure to preserve issue for review. - Where a defendant made no objection when the Commonwealth reminded the trial court at a revocation hearing that a term of defendant's probation was to remain drug and alcohol free, or when the trial court noted that defendant had been under the influence of alcohol contrary to the terms of his probation, and made no argument at the hearing that the trial court's consideration of his consumption of alcohol was a violation of his due process rights or otherwise improper, he was barred under Va. Sup. Ct. R. 5A:18 from raising this issue for the first time on appeal. Cappell v. Commonwealth, No. 0807-02-3, 2003 Va. App. LEXIS 313 (Ct. of Appeals May 27, 2003).

Defendant failed to preserve his argument because he chose to testify and offer evidence on the due process issue; when the circuit court found that the evidence was sufficient to prove defendant's noncompliance with the drug court program and stated it was entering a formal finding of guilt for purposes of the revocation proceeding defendant registered no objection. Washington v. Commonwealth, No. 0710-16-1, 2017 Va. App. LEXIS 288 (Nov. 14, 2017).

CIRCUIT COURT OPINIONS

Constitutionality. - Affidavit from a custodian of state police records of sex offender registrations that stated that defendant failed to register as a sex offender was properly admitted into evidence at a probation revocation hearing where admission of the affidavit did not violate defendant's due process right to confront witnesses in a criminal trial. Commonwealth v. Dickens, 73 Va. Cir. 437, 2007 Va. Cir. LEXIS 229 (Norfolk July 18, 2007), aff'd, 52 Va. App. 412, 663 S.E.2d 548, 2008 Va. App. LEXIS 356 (2008).

The Sixth Amendment and Crawford did not apply in a probation revocation hearing because the full panoply of rights due a defendant in a criminal prosecution does not extend to parole revocation proceedings, neither does that panoply of rights apply in a probation revocation hearing. Commonwealth v. Dickens, 73 Va. Cir. 437, 2007 Va. Cir. LEXIS 229 (Norfolk July 18, 2007), aff'd, 52 Va. App. 412, 663 S.E.2d 548, 2008 Va. App. LEXIS 356 (2008).

The admission into evidence of an affidavit in a probation violation proceeding does not violate the due process guarantee of confrontation in a parole revocation proceeding. Commonwealth v. Dickens, 73 Va. Cir. 437, 2007 Va. Cir. LEXIS 229 (Norfolk July 18, 2007), aff'd, 52 Va. App. 412, 663 S.E.2d 548, 2008 Va. App. LEXIS 356 (2008).

One-year limit suspended when probationer arrested by another jurisdiction. - Trial court was not required to dispose of inmate's probation violation that resulted in a detainer on his record until the inmate had completed his federal prison sentence, and, thus, his speedy trial rights were not violated because the inmate was not within the trial court's jurisdiction. Offer v. Commonwealth, 63 Va. Cir. 380, 2003 Va. Cir. LEXIS 213 (Fairfax County 2003).

Right to counsel during plea. - Where a sentence imposed on a defendant qualified defendant for court appointed counsel, defendant's appearance without counsel when defendant pleaded guilty did not show that an intelligent waiver of defendant's right to counsel had occurred; therefore, defendant's suspended sentence could not subsequently be revoked. Commonwealth v. Walker, 60 Va. Cir. 149, 2002 Va. Cir. LEXIS 302 (Alexandria 2002).

Conviction in circuit court did not divest juvenile court of jurisdiction. - Despite the fact that defendant had already been tried and convicted on unrelated charges as an adult in the circuit court, the juvenile court retained jurisdiction to enforce its previous order revoking his probation and sentencing him to jail time, and the juvenile proceedings subsequent to his conviction were simply an exercise of the court's inherent authority to enforce its orders. Commonwealth v. Stewart, 71 Va. Cir. 313, 2006 Va. Cir. LEXIS 224 (Page County 2006).

Post-probation period not tolled. - Defendant's motion to dismiss a bench warrant alleging a probation violation was granted where the Commonwealth did not seek revocation during the period of probation or for one year thereafter, as required by § 19.2-306 , and the one-year post-probation period was not tolled by defendant's ICE detention given that the Commonwealth waited nearly a year after his release from ICE before taking any action. Commonwealth v. Lupai, 95 Va. Cir. 283, 2017 Va. Cir. LEXIS 38 (Fairfax County Mar. 7, 2017).

Timeliness of habeas petition. - Habeas petitioner timely filed the petition within the period of probation because the convicting court did not specify the length of the period of probation. Therefore, although the petitioner's license to drive was suspended for a period of time and the petitioner was ordered to complete an alcohol safety action program, the suspended jail sentence was only revocable for violations that occurred within the one year maximum period in the case for which the petitioner might originally have been sentenced to be imprisoned. Nino v. Clarke, 102 Va. Cir. 380, 2019 Va. Cir. LEXIS 356 (Fairfax County Aug. 21, 2019).

Post-revocation sentencing. - Denial of defendant's motion to dismiss, as well as defendant's petition for writ of habeas corpus, was appropriate because the post-revocation sentencing restarted the calculation period. The issuance of process resulting in defendant's then incarceration occurred within the period of re-suspension. Commonwealth v. Jenkins, 105 Va. Cir. 294, 2020 Va. Cir. LEXIS 127 (Chesapeake July 7, 2020).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality. - Although this section does not specify when a probation revocation hearing must be conducted, the lack of a specific time period in the statute does not violate the due process rights of a defendant. See opinion of Attorney General to The Honorable James F. Almand, Member, House of Delegates, 02-112 (12/12/02).

Timely issuance of process invokes the jurisdiction of the circuit court under this section to conduct a probation revocation hearing. See opinion of Attorney General to The Honorable James F. Almand, Member, House of Delegates, 02-112 (12/12/02).

§ 19.2-306.1. Limitation on sentence upon revocation of suspension of sentence; exceptions.

  1. For the purposes of this section, "technical violation" means a violation based on the probationer's failure to (i) report any arrest, including traffic tickets, within three days to the probation officer; (ii) maintain regular employment or notify the probation officer of any changes in employment; (iii) report within three days of release from incarceration; (iv) permit the probation officer to visit his home and place of employment; (v) follow the instructions of the probation officer, be truthful and cooperative, and report as instructed; (vi) refrain from the use of alcoholic beverages to the extent that it disrupts or interferes with his employment or orderly conduct; (vii) refrain from the use, possession, or distribution of controlled substances or related paraphernalia; (viii) refrain from the use, ownership, possession, or transportation of a firearm; (ix) gain permission to change his residence or remain in the Commonwealth or other designated area without permission of the probation officer; or (x) maintain contact with the probation officer whereby his whereabouts are no longer known to the probation officer. Multiple technical violations arising from a single course of conduct or a single incident or considered at the same revocation hearing shall not be considered separate technical violations for the purposes of sentencing pursuant to this section.
  2. If the court finds the basis of a violation of the terms and conditions of a suspended sentence or probation is that the defendant was convicted of a criminal offense that was committed after the date of the suspension, or has violated another condition other than (i) a technical violation or (ii) a good conduct violation that did not result in a criminal conviction, then the court may revoke the suspension and impose or resuspend any or all of that period previously suspended.
  3. The court shall not impose a sentence of a term of active incarceration upon a first technical violation of the terms and conditions of a suspended sentence or probation, and there shall be a presumption against imposing a sentence of a term of active incarceration for any second technical violation of the terms and conditions of a suspended sentence or probation. However, if the court finds, by a preponderance of the evidence, that the defendant committed a second technical violation and he cannot be safely diverted from active incarceration through less restrictive means, the court may impose not more than 14 days of active incarceration for a second technical violation. The court may impose whatever sentence might have been originally imposed for a third or subsequent technical violation. For the purposes of this subsection, a first technical violation based on clause (viii) or (x) of subsection A shall be considered a second technical violation, and any subsequent technical violation also based on clause (viii) or (x) of subsection A shall be considered a third or subsequent technical violation.
  4. The limitations on sentencing in this section shall not apply to the extent that an additional term of incarceration is necessary to allow a defendant to be evaluated for or to participate in a court-ordered drug, alcohol, or mental health treatment program. In such case, the court shall order the shortest term of incarceration possible to achieve the required evaluation or participation.

    (2021, Sp. Sess. I, c. 538.)

Effective date. - This section is effective July 1, 2021.

§ 19.2-307. Contents of judgment order.

The judgment order shall set forth the plea, the verdict or findings and the adjudication and sentence, whether or not the case was tried by jury, and if not, whether the consent of the accused was concurred in by the court and the attorney for the Commonwealth. If the accused is found not guilty, or for any other reason is entitled to be discharged, judgment shall be entered accordingly. If an accused is tried at one time for two or more offenses, the court may enter one judgment order respecting all such offenses. The final judgment order shall be entered on a form promulgated by the Supreme Court.

(1975, c. 495; 1996, c. 60.)

Research References. - Virginia Forms (Matthew Bender). No. 9-2502. Sentencing Order - Required Form.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 70, 73.

CASE NOTES

Authentication of orders. - Nothing in this section required the Commonwealth to introduce a document that was signed by a judge who convicted defendant of rape to have that document considered by the trial court that convicted defendant of robbery, and the court that convicted defendant of robbery did not err when it considered documents that were not signed by the judge but were properly authenticated by his clerk. Seaton v. Commonwealth, 42 Va. App. 739, 595 S.E.2d 9, 2004 Va. App. LEXIS 165 (2004).

Admissibility of warrants - Certified criminal warrants reflecting defendant's misdemeanor convictions for assault of a family member were properly admitted at defendant's trial for felony assault of a family member, despite any noncompliance with § 19.2-307 , regarding the contents of judgments, due to not showing defendant's plea, because any statutory noncompliance did not make the warrants wholly inadmissible, as the warrants were relevant to the trial court's required inquiry as to whether defendant had the required number of predicate prior convictions. Farmer v. Commonwealth, 62 Va. App. 285, 746 S.E.2d 504, 2013 Va. App. LEXIS 229 (2013).

Judge's notes complied with section. - Judge's notes clearly complied with the substance of § 19.2-307 as they listed defendant's guilty plea, the judge's finding of guilt, the sentence, and conditional suspension of the sentence. It was immaterial that the judge did not list whether the case was tried by a judge or jury, as all cases of that type in juvenile and domestic relations district court were tried by a judge. Sanders v. Commonwealth,, 2008 Va. App. LEXIS 320 (July 15, 2008).

Requirements satisfied. - Defendant's prior conviction, in the general district court, of driving a motor vehicle after having been found to be an habitual offender was adequately proved by a record of his plea of guilty to the offense and his sentence, which comported with the prescribed punishment for the offense, notwithstanding a failure of the record to show a judicial finding of defendant's guilt. Wilson v. Commonwealth, 40 Va. App. 250, 578 S.E.2d 831, 2003 Va. App. LEXIS 193 (2003).

In light of the presumption of regularity, the absence of a mark on a prior juvenile adjudication indicating that a Boykin-type colloquy had been given, especially when there was no requirement in § 19.2-307 that the information be on the adjudication, defendant was properly convicted of violating § 18.2-308.2 . Isaac v. Commonwealth,, 2010 Va. App. LEXIS 423 (Nov. 2, 2010).

Requirements not satisfied. - At the sentencing phase of defendant's trial, the trial court erroneously admitted into evidence three documents which the Commonwealth contended were prior orders of conviction; these documents, as orders of conviction, failed in every respect to satisfy the requirements of this section. Bellinger v. Commonwealth, 23 Va. App. 471, 477 S.E.2d 779 (1996).

Trial court's judgment of conviction finding defendant guilty of possessing a firearm while under the age of 29, after having been convicted of a delinquent act that would have been a felony if committed by an adult, had to be reversed, as the juvenile court order that the trial court relied on did not make clear to which offense, or both, it was referring to when it stated "found guilty" in regard to charges against him when he was 15-years-old of grand larceny and petit larceny; accordingly, the juvenile court's judgment order was not sufficiently clear, and the Commonwealth could not definitively show that defendant had been adjudicated guilty of a delinquent act that would have been a felony had he been an adult. Johnson v. Commonwealth,, 2006 Va. App. LEXIS 91 (Mar. 14, 2006).

Conviction of felony domestic assault and battery was not supported by sufficient evidence because the warrant at issue, which alleged that defendant assaulted a family or household member "on or about 06/11/2004 to 06/13/2004," failed to indicate any finding of guilt and thus, was insufficient to prove a prior conviction on any date; nonetheless, the lesser-included misdemeanor was proven beyond a reasonable doubt. Sensabaugh v. Commonwealth,, 2007 Va. App. LEXIS 199 (May 15, 2007).

§ 19.2-308. When two or more sentences run concurrently.

When any person is convicted of two or more offenses, and sentenced to confinement, such sentences shall not run concurrently, unless expressly ordered by the court.

(Code 1950, § 19.1-294; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 77, 78, 81.

CASE NOTES

Sentences run consecutively. - The general rule in Virginia, both before there was a statute on the subject and since, is that sentences run consecutively and not concurrently. The first statute appears in the Acts of 1877-78, p. 315. See Commonwealth v. Leath, 3 Va. (1 Va. Cas.) 151 (1805), where the rule was applied before any statute had been enacted on the subject, and Parsons v. Commonwealth, 154 Va. 832 , 152 S.E. 547 (1930), where the rule was applied after the statute had been enacted. Hudson v. Youell, 179 Va. 442 , 19 S.E.2d 705, cert. denied, 317 U.S. 630, 63 S. Ct. 47, 87 L. Ed. 508 (1942).

Trial court's refusal to run defendant's sentence with the time he was already serving on a different offense was a decision within the trial court's sound discretion. There was no abuse in the exercise of that discretion. Swilling v. Commonwealth,, 2009 Va. App. LEXIS 24 (Jan. 27, 2009).

Circuit court did not err in dismissing an inmate's petition seeking an order requiring the Virginia Department of Corrections to comply with a judgment giving him credit for time spent incarcerated because the inmate was not entitled credit toward his Virginia sentence for the time he was incarcerated while he was in Virginia custody serving time for his West Virginia sentence; while in Virginia, the inmate remained in the custody of and subject to the jurisdiction of West Virginia under the Interstate Agreement on Detainers, Article V(g) of § 53.1-210 and W. Va. Code § 62-14-1, and the sentences imposed were to be served consecutively to and not concurrently with each other under § 19.2-308 . Dorr v. Clarke, 284 Va. 514 , 733 S.E.2d 235, 2012 Va. LEXIS 192 (2012).

Word "any" in Va. Code Ann. § 18.2-308.2 unambiguously includes any other sentence, including another sentence under the same code section, and the specific language of the statute limits the circuit court's general discretionary authority; the General Assembly intended that the penalty for a violation of the statute not be diluted by running any of that time concurrently with any other sentence. Commonwealth v. Botkin, 68 Va. App. 177, 805 S.E.2d 412, 2017 Va. App. LEXIS 262 (2017), aff'd, remanded, 296 Va. 309 , 819 S.E.2d 652 (2018).

Unless ordered to run concurrently. - The court is given express power to order sentences to run concurrently, but in the absence of express direction, they still run consecutively. Hudson v. Youell, 179 Va. 442 , 19 S.E.2d 705, cert. denied, 317 U.S. 630, 63 S. Ct. 47, 87 L. Ed. 508 (1942).

Where the court said that each of four sentences was "to be computed from the date of this judgment," it was meant thereby that the sentences should run concurrently and not consecutively. Conner v. Commonwealth, 207 Va. 455 , 150 S.E.2d 478 (1966).

Concurrent service is "expressly ordered," within the meaning of this section, whenever the order contains a direction compliance with which will produce that result. Perkins v. Peyton, 369 F.2d 590 (4th Cir. 1966).

Absent an express direction by the trial court that they are to run concurrently, multiple sentences are to run consecutively. Edmond v. Commonwealth, No. 2272-03-1, 2004 Va. App. LEXIS 610 (Ct. of Appeals Dec. 14, 2004).

Multiple sentences to confinement shall not run concurrently, unless expressly ordered by the court, and in the absence of express direction, they will run consecutively. Robertson v. Superintendent of Wise Correctional Unit, 248 Va. 232 , 445 S.E.2d 116 (1994).

As this section is self-executing. - The legislative intent seems manifest that this section was intended to be self-executing. Hudson v. Youell, 179 Va. 442 , 19 S.E.2d 705, cert. denied, 317 U.S. 630, 63 S. Ct. 47, 87 L. Ed. 508 (1942).

Sequence in which sentences must be served not specified by statute. - Nothing in former § 53-207 nor any other provision specifies the sequence in which sentences must be served. Shockley v. Slayton, 333 F. Supp. 868 (W.D. Va. 1971).

There is no constitutional or statutory requirement that sentences must be served in the order in which they are imposed by judgment. Shockley v. Slayton, 333 F. Supp. 868 (W.D. Va. 1971).

And it does not require the court to state sequence in its orders sentencing to imprisonment upon two or more convictions. Hudson v. Youell, 179 Va. 442 , 19 S.E.2d 705, cert. denied, 317 U.S. 630, 63 S. Ct. 47, 87 L. Ed. 508 (1942).

Both the nature and sequence of service of multiple sentences are determined by the court or courts rendering judgment. Shockley v. Slayton, 333 F. Supp. 868 (W.D. Va. 1971).

Kind, amount, and sequence of punishment must be clearly specified. - So long as the kind, amount, and sequence of punishment were clearly specified before petitioner began to serve any of the sentences, none of his constitutional rights were violated. Shockley v. Slayton, 333 F. Supp. 868 (W.D. Va. 1971).

It prevails over former § 53-207. - Former § 53-207 (now § 53.1-186 ), stating that confinement shall commence from the date of the final judgment, must be read in conjunction with this section, and being general in its terms must give way to this section whenever they conflict, the latter being specific in its terms. Wilkinson v. Youell, 180 Va. 321 , 23 S.E.2d 356 (1942); Conner v. Commonwealth, 207 Va. 455 , 150 S.E.2d 478 (1966).

The provisions of former § 53-207 (now § 53.1-186 ) must be read with this section and does not control the sequence of sentence service. Perkins v. Peyton, 369 F.2d 590 (4th Cir. 1966).

Former section 53-207 (now § 53.1-186 ) is not mandatory and it must be read in conjunction with, and when in conflict must give way to, this section, which provides that multiple sentences shall run consecutively and not concurrently, unless otherwise directed by the court. Shockley v. Slayton, 333 F. Supp. 868 (W.D. Va. 1971).

Concurrent sentences cannot later be made consecutive. - Original sentences expressly ordering concurrent service within the meaning of this section are beyond the power of the trial judge later to make them consecutive. Perkins v. Peyton, 369 F.2d 590 (4th Cir. 1966).

Order that revoked sentences run consecutively was not an abuse of discretion. - Defendant's revoked sentences of six months, to be served consecutively, were affirmed as when defendant was originally sentenced, § 19.2-308 required that multiple sentences be served consecutively, unless expressly ordered otherwise; the trial court did not abuse its discretion in finding that the original conviction orders evinced an intent to impose consecutive terms for the suspended sentences. James v. Commonwealth,, 2006 Va. App. LEXIS 276 (June 27, 2006).

When defendant was convicted of taking indecent liberties with a child while in a custodial or supervisory relationship, it was not an abuse of discretion to revoke defendant's previously suspended sentence or to run the sentence consecutively to defendant's new sentence because, (1) by committing a new offense, defendant "forfeited" the "conditional freedom" inherent in the court's earlier decision to suspend part of defendant's sentence, (2) defendant did not claim the trial court based defendant's sentence or revocation on facially unlawful considerations or that either sentence exceeded applicable statutory limits, and (3) consecutive sentences were presumed, under § 19.2-308 . Nicholson v. Commonwealth,, 2011 Va. App. LEXIS 405 (Dec. 20, 2011).

This section does not apply to orders of suspension and probation. - It applies only to the serving of sentences to confinement in prison. An order granting probation is not a sentence to confinement. Vick v. Commonwealth, 201 Va. 474 , 111 S.E.2d 824 (1960).

The suspended portions of a defendant's sentence would not run concurrently unless expressly so ordered by the court pursuant to this section. Malinowski v. Commonwealth, No. 1511-88-4 (Ct. of Appeals Aug. 14, 1990).

Trial court did not abuse its discretion by ordering imposed sentences to run consecutively, rather than concurrently, because it exercised its authority by conditioning the resuspension of part of defendant's sentences on the sentences running consecutively with all other sentences; by doing so, it did not amend the terms of the original sentence because it exercised its discretionary prerogative upon the resuspension of the sentences to impose a different condition on the suspension. Clemons v. Commonwealth, No. 1675-19-1, 2020 Va. App. LEXIS 207 (July 21, 2020).

Original sentencing order unambiguously evinced the trial court's intent to impose concurrent sentences only for the active portions of defendant's sentences, as a condition of his suspended sentences, and to impose consecutive terms for the suspended sentences; accordingly, when the trial court revoked and resuspended a portion of those sentences it did not abuse its discretion by ordering defendant to serve the imposed portions consecutively. Clemons v. Commonwealth, No. 1675-19-1, 2020 Va. App. LEXIS 207 (July 21, 2020).

Reduction of time to be served on concurrent sentence in another state. - Where defendant received a 30-year sentence in Virginia to run concurrently with his Texas sentence, the fact that Texas reduced the time to be served on its 30-year sentence did not reduce the Virginia sentence. Murray v. Martinez, 234 Va. 270 , 361 S.E.2d 136 (1987).

Definition of "concurrently." - Where the Attorney General, counsel for the respondent, contended that the purpose of the second order was to clarify the trial judge's intention that the prior 12-month sentence was to have run concurrently with the other unrelated convictions he had received and served locally and that use of the term "concurrent" in the second order was never intended to apply to the original two suspended sentences, the Supreme Court disagreed with that construction of the second order. Read together, the words "all sentences," "these sentences," and "concurrently," constituted an express directive that embraced the grand larceny and burglary sentences - the only sentences the trial court had jurisdiction to suspend - as well as the sentences imposed by other Virginia courts. Robertson v. Superintendent of Wise Correctional Unit, 248 Va. 232 , 445 S.E.2d 116 (1994).

Response to inquiry by jury as to whether sentences would be served concurrently. - Since the trial judge did not know whether he would modify the jury's recommended sentences by running the sentences concurrently or otherwise suspending the sentences, he properly refused to instruct the jury on the presumption that sentences were to run consecutively; to advise the jury about the trial court's discretion would have been confusing. May v. Commonwealth, No. 0140-01-2, 2002 Va. App. LEXIS 398 (Ct. of Appeals July 23, 2002).

Trial court did not err in refusing to answer a jury question as to whether a defendant's sentences would run concurrently or consecutively where the decision was up to the trial court on some of the charges, because the jury would then speculate as to what the trial court was going to do. Reese v. Commonwealth, No. 1279-03-4, 2004 Va. App. LEXIS 316 (Ct. of Appeals July 6, 2004).

Concurrent sentences proper. - Subdivision C1 of § 18.2-374.1 does not prohibit mandatory minimum sentences imposed under that section from running concurrently as: (1) § 18.2-12.1 , defining mandatory minimum, does not require that mandatory minimum sentences run consecutively; (2) § 19.2-308 provides that when any person is convicted of two or more offenses, and sentenced to confinement, such sentences shall not run concurrently, unless expressly ordered by the court; and (3) if subdivision C1 of § 18.2-374.1 were interpreted to require the mandatory minimum sentences to run consecutively, it would render superfluous the words the Virginia general assembly used in at least 11 other criminal statutes explicitly requiring that mandatory minimum sentences run consecutively. Commonwealth v. Jefferson, 60 Va. App. 749, 732 S.E.2d 728, 2012 Va. App. LEXIS 323 (2012).

Trial court did not abuse its discretion in ordering defendant's six § 18.2-374.1 sentences to run concurrently with each other as: (1) § 18.2-12.1 , defining mandatory minimum, did not require that mandatory minimum sentences run consecutively; (2) § 19.2-308 provided that when any person was convicted of two or more offenses, and sentenced to confinement, such sentences were not to run concurrently, unless expressly ordered by the court; and (3) if subdivision C1 of § 18.2-374.1 were interpreted to require the mandatory minimum sentences to run consecutively, it would render superfluous the words the Virginia general assembly used in at least 11 other criminal statutes explicitly requiring that mandatory minimum sentences run consecutively. Commonwealth v. Jefferson, 60 Va. App. 749, 732 S.E.2d 728, 2012 Va. App. LEXIS 323 (2012).

Neither § 18.2-12.1 , the mandatory minimum sentencing statute, nor § 18.2-53.1 , the use or display of a firearm while committing a felony, prohibit a trial court from running multiple sentences imposed for convictions of § 18.2-53.1 concurrently with each other. To the extent that the holding in Bullock v. Commonwealth, 631 S.E.2d 334 (2006), is inconsistent, it is overruled. Brown v. Commonwealth, 284 Va. 538 , 733 S.E.2d 638, 2012 Va. LEXIS 190 (2012).

Applied in Wood v. Commonwealth, 12 Va. App. 1257, 408 S.E.2d 568 (1991); Pierce v. Commonwealth, 48 Va. App. 660, 633 S.E.2d 755, 2006 Va. App. LEXIS 407 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Credit given for all time spent in jail awaiting trial, regardless of the jurisdiction. - A jail sentence is not tolled during the period when the inmate is temporarily transferred to another jurisdiction for a court appearance. As a result, the outside jurisdiction may not prohibit the detention center from giving the inmate credit for the period of his temporary transfer out of the detention center's jurisdiction. See opinion of Attorney General to the Honorable Dana Lawhorne, Sheriff, City of Alexandria, 12-090, 2013 Va. AG LEXIS 46 (6/28/13).

§ 19.2-308.1. When sentence may run concurrently with sentence in another jurisdiction.

Notwithstanding any other provision of law, in the event that a person is convicted of a criminal offense in any court of this Commonwealth and such person has also been sentenced to imprisonment for a term of one year or more by a court of the United States, or any other state or territory, and, at the time of sentencing in this Commonwealth, is incarcerated in a federal or state penal institution, the court may order the sentence to run concurrently with the sentence imposed by such other court.

(1977, c. 344.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 78.

CASE NOTES

No right for time served in another state while on parole. - Although a Virginia court has authority to allow a sentence imposed in Virginia to run concurrently with a sentence from another jurisdiction, a criminal defendant is only entitled to credit as a matter of right for time spent in confinement while awaiting trial. Therefore, the petitioner was not entitled to credit for the time served on a sentence imposed in South Dakota while he was on parole on his Virginia sentence. Larson v. Beck, No. 0880-85 (Ct. of Appeals Dec. 13, 1985).

Reduction of time to be served on concurrent sentence in another state. - Where defendant received a 30-year sentence in Virginia to run concurrently with his Texas sentence, the fact that Texas reduced the time to be served on its 30-year sentence did not reduce the Virginia sentence. Murray v. Martinez, 234 Va. 270 , 361 S.E.2d 136 (1987).

No error in denying concurrent sentence. - Given that the record on appeal adequately demonstrated that the sentencing judge correctly understood his discretion and sentenced defendant within the lawful scope of that discretion, the Court of Appeals of Virginia declined to apply the ends of justice exception to Va. Sup. Ct. R. 5A:18. As a result, no error resulted in the denial of defendant's request for a concurrent sentence. Scalf v. Commonwealth, No. 0007-07-3,, 2008 Va. App. LEXIS 230 (Ct. of Appeals May 13, 2008).

§ 19.2-309. Sentence of confinement for conviction of a combination of felony and misdemeanor offenses.

When any person is convicted of a combination of felony and misdemeanor offenses and sentenced to confinement therefor, in determining the sequence of confinement, the felony sentence and commitment shall take precedence and such person shall first be committed to serve the felony sentence.

(Code 1950, § 19.1-295; 1960, c. 366; 1975, c. 495.)

CIRCUIT COURT OPINIONS

Applicability. - Prisoner was convicted of felony and misdemeanor offenses spanning the course of several years and each charge constituted its own separate case; therefore, § 19.2-309 did not apply and sentences were served in order of judgment with the remaining active time from the prisoner's first period of incarceration to be served first, and the time not physically served on each sentence to be served second. Commonwealth v. Demille, 78 Va. Cir. 137, 2009 Va. Cir. LEXIS 9 (Fairfax County 2009).

§ 19.2-309.1. Sentence of confinement to jail farms maintained by the Cities of Danville, Martinsville and Newport News.

Notwithstanding any other provision of law, any person sentenced to a term of incarceration of up to two years by the courts of the Twenty-second Judicial Circuit may be confined, at the discretion of the court and subject to applicable regulations, at the farm established and maintained by the City of Danville pursuant to § 53.1-96 ; any person sentenced to such term by the Twenty-first Judicial Circuit may be so confined at the farm so established and maintained by the City of Martinsville; and any person sentenced to such term by the Seventh Judicial Circuit may be so confined at the farm so established and maintained by the City of Newport News.

(1988, cc. 764, 785.)

Editor's note. - This section was formerly "Not set out" in furtherance of the general policy of the Virginia Code Commission to include in the Code only provisions having general and permanent application.

§ 19.2-310. Transfer of prisoners to custody of Director of Department of Corrections.

Every person sentenced by a court to the Department of Corrections upon conviction of a felony shall be conveyed to an appropriate receiving unit operated by the Department in the manner hereinafter provided. The clerk of the court in which the person is sentenced shall forthwith transmit to the Central Criminal Records Exchange the report of dispositions required by § 19.2-390 . The clerk of the court within 30 days from the date of the judgment shall forthwith transmit to the Director of the Department a certified copy or copies of the order of trial and a certified copy of the complete final order, and if he fails to do so shall forfeit $50. The clerk of the court may transmit or make available a copy or copies of such orders electronically. Such copy or copies shall contain, as nearly as ascertainable, the birth date of the person sentenced. The sheriff shall certify to the Director of the Department any jail credits to which the person to be confined is entitled at such time as that person is transferred to the custody of the Director of the Department.

Following receipt of the order of trial and a certified copy of the complete final order, the Director or his designee shall dispatch a correctional officer to the county or city with a warrant directed to the sheriff authorizing him to deliver the prisoner to the correctional officer whose duty it shall be to take charge of the person and convey him to an appropriate receiving unit designated by the Director or his designee. The Director or his designee shall allocate space available in the receiving unit or units by giving first priority to the transportation, as the transportation facilities of the Department may permit, of those persons held in jails who in the opinion of the Director or his designee except as required by § 53.1-20 require immediate transportation to a receiving unit. In making such a determination of priority, the Director shall give due regard to the capacity of local as well as state correctional facilities and, to the extent feasible, shall seek to balance between local and state correctional facilities the excess of prisoners requiring detention.

(Code 1950, § 19.1-296; 1960, c. 366; 1966, c. 522; 1970, c. 67; 1972, c. 358; 1974, cc. 44, 45; 1975, c. 495; 1981, c. 529; 1982, cc. 476, 636; 1986, c. 606; 1990, cc. 676, 768; 2010, c. 352; 2011, c. 470.)

The 2010 amendments. - The 2010 amendment by c. 352 substituted "so shall forfeit $50" for "so he shall forfeit $100" at the end of the third sentence of the first paragraph.

The 2011 amendments. - The 2011 amendment by c. 470, in the first paragraph, made a minor stylistic change in the third sentence and added the fourth sentence.

CASE NOTES

Right of transfer to state system not constitutionally protected. - Under this section and the priority system established pursuant to it, Virginia has not provided those inmates who are awaiting transfer from jail to the state system with an interest that is protected by the Constitution. The transfer is within the discretion of the Director of the Department of Corrections, taking into consideration the space available in the units, the transportation required, and the categories within the priority system. Miller v. Landon, 545 F. Supp. 81 (W.D. Va. 1982).

Applied in In re Commonwealth, Dep't of Cors., 222 Va. 454 , 281 S.E.2d 857 (1981); Hill v. Hutto, 559 F. Supp. 390 (E.D. Va. 1983).

§ 19.2-310.01. Transmission of sentencing documents.

Within thirty days of the receipt of a request from the Department of Corrections for certified copies of sentencing documents for any misdemeanor conviction, the clerk of the court receiving such request shall transmit the requested documents to the Director of the Department. In accordance with the provisions of § 17.1-267 , the requested documents shall be provided to the Director without the payment of any fee.

(1992, c. 498.)

§ 19.2-310.1.

Repealed by Acts 1982, c. 636.

Cross references. - For present provisions covering the subject matter of the repealed section, see § 53.1-21 , subdivision B 4.

Editor's note. - The repealed section was enacted by Acts 1976, c. 287.

Article 1.1. DNA Analysis and Data Bank.

Research References. - Virginia Forms (Matthew Bender). No. 9-2532. Order for Withdrawal of Blood Sample/DNA/HIV. No. 9-2533. Order for Withdrawal of Blood Sample/DNA/HIV (Spanish).

§ 19.2-310.2. Blood, saliva, or tissue sample required for DNA analysis upon conviction of certain crimes; fee.

  1. Every person convicted of a felony on or after July 1, 1990, every person convicted of a felony offense under Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 who was incarcerated on July 1, 1989, and every person convicted of a misdemeanor violation of § 16.1-253.2, 18.2-57 , 18.2-60.3 , 18.2-60.4 , 18.2-67.4 , 18.2-67.4:1 , 18.2-67.4:2 , 18.2-67.5 , 18.2-102 , 18.2-119 , 18.2-121 , 18.2-130 , 18.2-370.6 , 18.2-387 , or 18.2-387 .1 or subsection E of § 18.2-460 or of any similar ordinance of any locality shall have a sample of his blood, saliva, or tissue taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. If a sample has been previously taken from the person as indicated by the Local Inmate Data System (LIDS), no additional sample shall be taken. The Department of Forensic Science shall provide to LIDS the most current information submitted to the DNA data bank on a weekly basis and shall remove from LIDS and the data bank persons no longer eligible to be in the data bank. A fee of $53 shall be charged for the withdrawal of this sample. The fee shall be taxed as part of the costs of the criminal case resulting in the conviction and $15 of the fee shall be paid into the general fund of the locality where the sample was taken and $38 of the fee shall be paid into the general fund of the state treasury. This fee shall only be taxed one time regardless of the number of samples taken. The assessment provided for herein shall be in addition to any other fees prescribed by law. The analysis shall be performed by the Department of Forensic Science or other entity designated by the Department. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the Department in a DNA data bank and shall be made available only as provided in § 19.2-310.5 .
  2. After July 1, 1990, the blood, saliva, or tissue sample shall be taken prior to release from custody. Notwithstanding the provisions of § 53.1-159 , any person convicted of an offense listed in subsection A who is in custody after July 1, 1990, shall provide a blood, saliva, or tissue sample prior to his release. Every person so convicted after July 1, 1990, who is not sentenced to a term of confinement shall provide a blood, saliva, or tissue sample as a condition of such sentence. A person required under this section to submit a sample for DNA analysis is not relieved from this requirement regardless of whether no blood, saliva, or tissue sample has been taken from the person or, if a sample has been taken, whether the sample or the results from the analysis of a sample cannot be found in the DNA data bank maintained by the Department of Forensic Science.
  3. Nothing in this section shall prevent the Department of Forensic Science from including the identification characteristics of an individual's DNA profile in the DNA data bank as ordered by a circuit court pursuant to a lawful plea agreement.
  4. A collection or placement of a sample for DNA analysis that was taken or retained in good faith does not invalidate the sample's use in the data bank pursuant to the provisions of this article. The detention, arrest, or conviction of a person based upon a data bank match or data bank information is not invalidated if it is determined that the sample was obtained, placed, or retained in the data bank in good faith, or if the conviction or juvenile adjudication that resulted in the collection of the DNA sample was subsequently vacated or otherwise altered in any future proceeding, including but not limited to post-trial or post-fact-finding motions, appeals, or collateral attacks.
  5. The Virginia Department of Corrections and the Department of Forensic Science shall, on a quarterly basis, compare databases of offenders under the custody or supervision of the Department of Corrections with the DNA data bank of the Department of Forensic Science. The Virginia Department of Corrections shall require a DNA sample of those offenders under its custody or supervision if they are not identified in the DNA data bank.
  6. The Department of State Police shall verify that a DNA sample required to be taken for the Sex Offender and Crimes Against Minors Registry pursuant to § 9.1-903 has been received by the Department of Forensic Science. In any instance where a DNA sample has not been received, the Department of State Police or its designee shall obtain from the person required to register a sample for DNA analysis.
  7. Each community-based probation services agency established pursuant to § 9.1-174 shall determine by reviewing the Local Inmate Data System upon intake and again prior to discharge whether a blood, saliva, or tissue sample has been taken for DNA analysis for each offender required to submit a sample pursuant to this section and, if no sample has been taken, require an offender to submit a sample for DNA analysis.
  8. The sheriff or regional jailer shall determine by reviewing the Local Inmate Data System upon intake and again prior to release whether a blood, saliva, or tissue sample has been taken for DNA analysis for each offender required to submit a sample pursuant to this section and, if no sample has been taken, require an offender to submit a sample for DNA analysis.

    (1990, c. 669; 1993, c. 33; 1996, cc. 154, 952; 1998, c. 280; 2002, cc. 54, 753, 773; 2005, cc. 868, 881; 2007, c. 528; 2011, c. 247; 2015, cc. 193, 209, 437; 2018, cc. 417, 543, 544; 2019, cc. 201, 786.)

Editor's note. - Acts 2002, cc. 753 and 773, cl. 3, provide: "That the provisions of this act shall become effective on January 1, 2003."

Acts 2004, c. 82, cl. 1, provides: "The State Compensation Board shall (i) maintain in the Local Inmate Data System (LIDS) specific data fields for an inmate's country of birth and country of citizenship, (ii) require all jail facilities that are subject to LIDS reporting to complete the additional fields for all inmates housed at such facilities, (iii) annually encourage all jail facilities subject to LIDS reporting to request compensation from the United States Department of Justice State Criminal Alien Assistance Program (SCAAP) for costs associated with incarcerating undocumented aliens; (iv) provide information to all jail facilities on the eligibility requirements to obtain such funds; and (v) monitor local jail participation in the SCAAP program."

Acts 2007, c. 528, cl. 2, provides: "That the Secretary of Public Safety shall conduct a review of the procedures for collection of DNA samples pursuant to § 16.1-299.1 of the Code of Virginia and Article 1.1 ( § 19.2-310.2 et seq.) of Chapter 18 of Title 19.2 of the Code of Virginia. This review shall include a comparison of the data collected and maintained by the Virginia Department of Corrections, the Department of State Police, and any entity supervising parole or probation. The Secretary of Public Safety shall submit a status report by November 1, 2007, including any necessary recommendation regarding corrective actions to the Chairmen of the House Appropriations Committee, the Senate Finance Committee, the House Committee for Courts of Justice, and the Senate Committee for Courts of Justice."

Acts 2014, c. 642, cl. 1 provides: " § 1. All local and state law-enforcement agencies shall report an inventory of all physical evidence recovery kits in their custody that may contain biological evidence that were collected but not submitted to the Department of Forensic Science for analysis prior to July 1, 2014. The Department shall establish the form of and timeline for such inventory. The Department shall receive the reports from such law-enforcement agencies and report the results of such inventory to the General Assembly on or before July 1, 2015."

Acts 2014, c. 642, cl. 2 provides: "That the provisions of this act shall not become effective unless an appropriation effectuating the purposes of this act is included in a general appropriation act passed in 2014 by the General Assembly that becomes law."

Acts 2015, cc. 209 and 437, cl. 2 provides: "That the provisions of this act shall apply only to persons convicted on or after July 1, 2015."

The 2002 amendments. - The 2002 amendment by c. 54 inserted the present third through fifth sentences in the first paragraph.

The 2002 amendments by cc. 753 and 773, effective January 1, 2003, are identical, and in the first paragraph, inserted the present second sentence, and inserted "or other entity designated by the Division" in the present sixth sentence.

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and in the first paragraph, substituted "$25" for "twenty-five dollars," "Department of Forensic Science" for "Division of Forensic Science, Department of Criminal Justice Services," and "Department" for "Division" two times.

The 2007 amendments. - The 2007 amendment by c. 528 inserted the A and B designations; inserted the third and sixth sentences in subsection A; added the last sentence in subsection B; and added subsections C through F.

The 2011 amendments. - The 2011 amendment by c. 247, in subsection A, in the first sentence, inserted "and every person convicted of a violation of (i) § 18.2-67.4 , (ii) § 18.2-67.4:2 , (iii) subsection C of § 18.2-67.5 , (iv) § 18.2-130 or (v) § 18.2-370.6 " and made a related change, and in the fifth sentence, deleted "felony" preceding "conviction"; and added subsection C and redesignated the remaining subsections accordingly.

The 2015 amendments. - The 2015 amendment by c. 193 added subsection F and redesignated former subsections F and G as subsections G and H.

The 2015 amendments by cc. 209 and 437 are identical, and in subsection A, inserted "misdemeanor" preceding "violation" and substituted " § 16.1-253.2, 18.2-60.3 , 18.2-60.4 , 18.267.4, 18.2-67.4:1 , 18.2-67.4:2 , 18.2-67.5 , 18.2-102 , 18.2-121 , 18.2-130 , 18.2-370.6 , 18.2-387 , 18.2-387 .1, or 18.2-479.1 " for "(i) § 18.2-67.4 , (ii) § 18.2-67.4:2 , (iii) subsection C of § 18.2-67.5 , (iv) § 18.2-130 or (v) § 18.2-370.6 " in the first sentence, substituted "$53" for "$25" in the fourth sentence, substituted "$15" for "one half" and "$38" for "one half" in the fifth sentence; and substituted "an offense listed in subsection A" for "a felony" in the first sentence of subsection B.

The 2018 amendments. - The 2018 amendment by c. 417 substituted "or subsection E of § 18.2-460 " for "or 18.2-479.1 " in subsection A.

The 2018 amendments by cc. 543 and 544 are identical, and inserted "18.2-57" and "18.2-119" in the first sentence of subsection A.

The 2019 amendments. - The 2019 amendments by cc. 201 and 786 are identical, and inserted "or of any similar ordinance of any locality" in subsection A.

Law review. - For note, "DNA Fingerprinting: The Virginia Approach", see 35 Wm. & Mary L. Rev. 767 (1994).

For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

For comment, "Rapid DNA Testing and Virginia's Rape Kit Backlog: A Double-Edged Sword Masquerading as a Miracle, or the Future of Forensic Analysis?" see 52 U. Rich. L. Rev. 941 (2018).

CASE NOTES

Constitutionality of article. - Because prisoners' limited interest in not providing a blood sample required by this article is outweighed by the very important interest of the state in deterring and detecting recidivist acts, and because the DNA data bank bears a close and substantial relation to the State's interest, this article does not violate prisoners' Fourth Amendment rights. Jones v. Murray, 763 F. Supp. 842 (W.D. Va. 1991).

This article's blood sample providing requirement does not violate the ex post facto clause of the state Constitution since the requirement that prisoners provide blood samples is not punitive in nature; they are not being punished for a prior wrong and no additional time is added to their sentence, the blood sample is taken and analyzed for the sole purpose of establishing a data bank which will aid future law enforcement. Jones v. Murray, 763 F. Supp. 842 (W.D. Va. 1991).

The Commonwealth does not violate prisoners' right to privacy when it analyzes the blood samples of convicted felons and stores the profiles in a data bank under this article. Jones v. Murray, 763 F. Supp. 842 (W.D. Va. 1991).

The procurement of a blood sample for DNA analysis from a convicted felon under this section does not violate the Fourth Amendment guarantee against unreasonable searches and seizures or the Virginia Constitution; in the case of convicted felons who are in the custody of the Commonwealth, the minor intrusion caused by the taking of a blood sample is outweighed by the state's interest in determining inmates' identification characteristics specific to the person for improved law enforcement. Johnson v. Commonwealth, 259 Va. 654 , 529 S.E.2d 769, 2000 Va. LEXIS 60, cert. denied, 531 U.S. 981, 121 S. Ct. 432, 148 L. Ed. 2d 439 (2000).

The Fifth Amendment right against self-incrimination, and the parallel right afforded by the Virginia Constitution, are not violated by the DNA statutes; the taking of a blood sample does not implicate any rights against self-incrimination, because such an act is not testimonial or communicative in nature. Johnson v. Commonwealth, 259 Va. 654 , 529 S.E.2d 769, 2000 Va. LEXIS 60, cert. denied, 531 U.S. 981, 121 S. Ct. 432, 148 L. Ed. 2d 439 (2000).

Portion of DNA testing statute authorizing mandatory parole modification unconstitutional. - To the extent that the first five words of the third paragraph of this section: "Notwithstanding the provisions of § 53.1-159 " authorize a modification of mandatory parole, this section violates the ex post facto clause. Therefore, those five words are unconstitutional and may not be enforced to modify the mandatory parole period. Otherwise, though, the mandatory DNA testing imposed on all incarcerated felons withstands Constitutional scrutiny. Jones v. Murray, 962 F.2d 302 (4th Cir.), cert. denied, 506 U.S. 977, 113 S. Ct. 472, 121 L. Ed. 2d 378 (1992).

Section constituted a reasonable regulation which was not penal in nature, and that the punishment of inmates for failure to comply with directives to provide a blood sample was contemplated as part of the sentence of every prisoner. Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993), cert. denied, 511 U.S. 1111, 114 S. Ct. 2112, 128 L. Ed. 2d 671 (1994).

Requirement does not constitute an ex post facto law. - Reasonable prison regulations are not frozen at the time of each inmate's conduct, but rather, they may be subject to reasonable amendments as necessary for good prison administration, safety and efficiency, without implicating ex post facto concerns thus, Virginia's enactment of a requirement that inmates provide blood samples or suffer punishment for their refusal did not constitute an ex post facto law. Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993), cert. denied, 511 U.S. 1111, 114 S. Ct. 2112, 128 L. Ed. 2d 671 (1994).

Prisoner must be given process before being held beyond parole release date. - While a prisoner who refuses to provide a blood sample prior to his release may be detained because they have not complied with the DNA statute, the prisoner must be given some process before he is held beyond his established parole release date; such procedures would provide that the state-created right to mandatory parole is not abrogated arbitrarily and that prisoners' liberty interests are not offended. Jones v. Murray, 763 F. Supp. 842 (W.D. Va. 1991), aff'd in part and rev'd in part, 962 F.2d 302 (4th Cir.), cert. denied, 506 U.S. 977, 113 S. Ct. 472, 121 L. Ed. 2d 378 (1992).

CIRCUIT COURT OPINIONS

No violation of Interstate Agreement on Detainers. - Where defendant had already been tried prior to detention in federal prison and the taking of blood samples under §§ 19.2-310.2 and 19.2-310.3 was not a penalty for being convicted, defendant's rights under § 53.1-210 , art. III(d), of the Interstate Agreement on Detainers were not violated. Commonwealth v. Velasquez, 63 Va. Cir. 477, 2003 Va. Cir. LEXIS 259 (Fairfax County 2003).

OPINIONS OF THE ATTORNEY GENERAL

The term "tissue" as used in §§ 19.2-310.2 through 19.2-310.7 includes epidermal cells taken from a person's body. See opinion of Attorney General to The Honorable David A. Nutter, Member, House of Delegates, 02-150 (1/8/03).

§ 19.2-310.2:1. Saliva or tissue sample required for DNA analysis after arrest for a violent felony.

Every person arrested for the commission or attempted commission of a violent felony as defined in § 19.2-297.1 or a violation or attempt to commit a violation of § 18.2-31 , 18.2-89 , 18.2-90 , 18.2-91 , or 18.2-92 , shall have a sample of his saliva or tissue taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. After a determination by a magistrate or a grand jury that probable cause exists for the arrest, a sample shall be taken prior to the person's release from custody. The analysis shall be performed by the Department of Forensic Science or other entity designated by the Department. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the Department in a DNA data bank and shall be made available as provided in § 19.2-310.5 .

The clerk of the court shall notify the Department of final disposition of the criminal proceedings. If the charge for which the sample was taken is dismissed or the defendant is acquitted at trial, the Department shall destroy the sample and all records thereof, provided there is no other pending qualifying warrant or capias for an arrest or conviction that would otherwise require that the sample remain in the data bank.

(2002, cc. 753, 773; 2003, c. 150; 2004, c. 445; 2005, cc. 868, 881; 2006, c. 182; 2020, c. 87.)

Editor's note. - Acts 2002, cc. 753 and 773, cl. 3, provide: "That the provisions of this act shall become effective on January 1, 2003."

The 2003 amendments. - The 2003 amendment by c. 150 inserted "or a grand jury" in the second sentence of the first paragraph; and inserted "provided there is no other pending qualifying warrant or capias for an arrest or felony conviction that would otherwise require that the sample remain in the data bank" at the end of the last paragraph.

The 2004 amendments. - The 2004 amendment by c. 445, in the first paragraph, in the first sentence, inserted "the commission or attempted commission of" and "or attempt to commit a violation."

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "Department" for "Division" three times in the first paragraph and two times in the last paragraph; and made minor stylistic changes.

The 2006 amendments. - The 2006 amendment by c. 182 inserted "18.2-31" in the first sentence of the first paragraph.

The 2020 amendments. - The 2020 amendment by c. 87, deleted "felony" preceding "conviction" in the second sentence of the second paragraph.

Law review. - For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

For note, see "You're Under Arrest-Say Ah: Suggestions for Legislatures Drafting Statutes Allowing DNA Extraction from Arrestees," 70 Wash & Lee L. Rev. 1443 (2013).

For comment, "Rapid DNA Testing and Virginia's Rape Kit Backlog: A Double-Edged Sword Masquerading as a Miracle, or the Future of Forensic Analysis?" see 52 U. Rich. L. Rev. 941 (2018).

Michie's Jurisprudence. - For related discussion, see 16 M.J. Searches and Seizures, § 9.

CASE NOTES

Constitutionality. - Taking of defendant's DNA pursuant § 19.2-310.2:1 , upon arrest for an unrelated felony, and as part of the routing booking process, did not violate the Fourth Amendment. Anderson v. Commonwealth, 274 Va. 469 , 650 S.E.2d 702, 2007 Va. LEXIS 115 (2007), cert. denied, Anderson v. Virginia, 553 U.S. 1054, 128 S. Ct. 2473, 2008 U.S. LEXIS 4189 (U.S. 2008).

Obtaining DNA sample. - DNA testing statute, § 19.2-310.2:1 , did not violate defendant's Fourth Amendment rights by authorizing police to obtain a sample of "saliva or tissue" for DNA testing from anyone arrested for certain violent felonies; a search of an arrestee, such as defendant for rape, robbery, and forcible sodomy, did not violate defendant's Fourth Amendment rights since no independent legal justification was required except for an arrest pursuant to probable cause, which occurred in defendant's case. Anderson v. Commonwealth, 48 Va. App. 704, 634 S.E.2d 372, 2006 Va. App. LEXIS 414 (2006), aff'd, 274 Va. 469 , 650 S.E.2d 702, 2007 Va. LEXIS 115 (Va. 2007).

OPINIONS OF THE ATTORNEY GENERAL

Reasonable force used to obtain DNA sample. - This section requires a person lawfully arrested for a violent felony to provide a saliva or tissue sample for DNA analysis; therefore, reasonable force may be used, if necessary, to obtain a DNA sample from such an arrestee who refuses to comply with the applicable DNA statutes. See opinion of Attorney General to The Honorable William R. Janis, Member, House of Delegates, 02-138 (5/13/03).

§ 19.2-310.3. Procedures for withdrawal of blood, saliva or tissue sample for DNA analysis.

Each sample required pursuant to § 19.2-310.2 from persons who are to be incarcerated shall be withdrawn at the receiving unit or at such other place as is designated by the Department of Corrections or, in the case of a juvenile, the Department of Juvenile Justice. The required samples from persons who are not sentenced to a term of confinement shall be withdrawn at a time and place specified by the sentencing court. Only a correctional health nurse technician or a physician, registered nurse, licensed practical nurse, graduate laboratory technician, or phlebotomist shall withdraw any blood sample to be submitted for analysis. No civil liability shall attach to any person authorized to withdraw blood, saliva or tissue as provided herein as a result of the act of withdrawing blood, saliva or tissue from any person submitting thereto, provided the blood, saliva or tissue was withdrawn according to recognized medical procedures. However, no person shall be relieved from liability for negligence in the withdrawing of any blood, saliva or tissue sample.

Chemically clean sterile disposable needles and vacuum draw tubes or swabs shall be used for all samples. The tube or envelope containing the sample shall be sealed and labeled with the subject's name, social security number, date of birth, race and gender; the name of the person collecting the sample; and the date and place of collection. The tubes or envelopes containing the samples shall be secured to prevent tampering with the contents. The steps herein set forth relating to the taking, handling, identification, and disposition of blood, saliva or tissue samples are procedural and not substantive. Substantial compliance therewith shall be deemed to be sufficient. The samples shall be transported to the Department of Forensic Science not more than 15 days following withdrawal and shall be analyzed and stored in the DNA data bank in accordance with §§ 19.2-310.4 and 19.2-310.5 .

(1990, c. 669; 1997, c. 862; 1998, c. 280; 2003, c. 150; 2004, c. 440; 2005, cc. 868, 881.)

The 2003 amendments. - The 2003 amendment by c. 150 inserted "blood" preceding "sample" in the third sentence of the first paragraph; and in the second paragraph, inserted "or envelope" and substituted "labeled" for "labelled" in the second sentence, inserted "or envelopes" in the third sentence, and substituted "15" for "fifteen" in the last sentence.

The 2004 amendments. - The 2004 amendment by c. 440 deleted "professional" following "registered" in the third sentence of the first paragraph.

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "Department" for "Division" in the last sentence of the last paragraph.

Law review. - For note, "DNA Fingerprinting: The Virginia Approach", see 35 Wm. & Mary L. Rev. 767 (1994).

CIRCUIT COURT OPINIONS

No violation of Interstate Agreement on Detainers. - Where defendant had already been tried prior to detention in federal prison and the taking of blood samples under §§ 19.2-310.2 and 19.2-310.3 was not a penalty for being convicted, defendant's rights under § 53.1-210 , art. III(d), of the Interstate Agreement on Detainers were not violated. Commonwealth v. Velasquez, 63 Va. Cir. 477, 2003 Va. Cir. LEXIS 259 (Fairfax County 2003).

§ 19.2-310.3:1. Procedures for taking saliva or tissue sample for DNA analysis.

  1. Each sample required pursuant to § 19.2-310.2:1 from persons arrested shall be taken before release from custody at such place as is designated by the law-enforcement agency responsible for arrest booking in the jurisdiction. Samples shall be taken in accordance with procedures adopted by the Department of Forensic Science. The sample shall be sealed and labeled with the subject's name, social security number, date of birth, race and gender; the name of the person collecting the sample; the date and place of collection; information identifying the arresting or accompanying officer; and the offense for which the person was arrested. The sample shall be secured to prevent tampering with the contents and be accompanied by a copy of the arrest warrant or capias. The steps herein set forth relating to the taking, handling, identification, and disposition of saliva or tissue samples are procedural and not substantive. The sample shall be transported to the Department of Forensic Science not more than 15 days following withdrawal and shall be analyzed and stored in the DNA data bank in accordance with §§ 19.2-310.4 and 19.2-310.5 .
  2. Substantial compliance therewith shall be deemed to be sufficient. If a sample has been previously taken from the individual as indicated by the Local Inmate Data System (LIDS), no additional sample shall be taken. No civil liability shall attach to any person authorized to take saliva or tissue as provided herein as a result of the act of taking saliva or tissue from any person submitting thereto, provided the saliva or tissue was taken according to recognized medical procedures. However, no person shall be relieved from liability for negligence in the taking of any saliva or tissue sample.

    (2002, cc. 753, 773; 2003, c. 150; 2005, cc. 868, 881.)

Editor's note. - Acts 2002, cc. 753 and 773, cl. 3, provide: "That the provisions of this act shall become effective on January 1, 2003."

The 2003 amendments. - The 2003 amendment by c. 150, in subsection A, substituted "law-enforcement agency responsible for arrest booking in the jurisdiction" for "magistrate" at the end of the first sentence, inserted "or capias" at the end of the fourth sentence, and substituted "15" for "fifteen" in the last sentence.

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and in subsection A, substituted "Department" for "Division" in the second and last sentences.

CASE NOTES

Obtaining DNA sample. - DNA testing statute, § 19.2-310.2:1 , did not violate defendant's Fourth Amendment rights by authorizing police to obtain a sample of "saliva or tissue" for DNA testing from anyone arrested for certain violent felonies; a search of an arrestee, such as defendant for rape, robbery, and forcible sodomy, did not violate defendant's Fourth Amendment rights since no independent legal justification was required except for an arrest pursuant to probable cause, which occurred in defendant's case. Anderson v. Commonwealth, 48 Va. App. 704, 634 S.E.2d 372, 2006 Va. App. LEXIS 414 (2006), aff'd, 274 Va. 469 , 650 S.E.2d 702, 2007 Va. LEXIS 115 (Va. 2007).

§ 19.2-310.4. Procedures for conducting DNA analysis of blood, saliva or tissue sample.

Whether or not the results of an analysis are to be included in the data bank, the Department shall conduct the DNA analysis in accordance with procedures adopted by the Department to determine identification characteristics specific to the individual whose sample is being analyzed. The Director or his designated representative shall complete and maintain on file a form indicating the name of the person whose sample is to be analyzed, the date and by whom the blood, saliva or tissue sample was received and examined, and a statement that the seal on the tube or envelope containing the sample had not been broken or otherwise tampered with. The remainder of a blood, saliva or tissue sample submitted for analysis and inclusion in the data bank pursuant to § 19.2-310.2 or 19.2-310.2:1 may be divided, labeled as provided for the original sample, and securely stored by the Department in accordance with specific procedures adopted by regulation of the Department to ensure the integrity and confidentiality of the samples. All or part of the remainder of that sample may be used only (i) to create a statistical data base provided no identifying information on the individual whose sample is being analyzed is included or (ii) for retesting by the Department to validate or update the original analysis.

A report of the results of a DNA analysis conducted by the Department as authorized, including the profile and identifying information, shall be made and maintained at the Department. A certificate and the results of the analysis shall be admissible in any court as evidence of the facts therein stated. Except as specifically provided in this section and § 19.2-310.5 , the results of the analysis shall be securely stored and shall remain confidential.

(1990, c. 669; 1998, c. 280; 2002, cc. 753, 773; 2003, c. 150; 2005, cc. 868, 881.)

Editor's note. - Acts 2002, cc. 753 and 773, cl. 3, provide: "That the provisions of this act shall become effective on January 1, 2003."

The 2002 amendments. - The 2002 amendments by cc. 753 and 773, effective January 1, 2003, are identical, and inserted "or § 19.2-310.2:1 " in the third sentence of the first paragraph.

The 2003 amendments. - The 2003 amendment by c. 150 inserted "or envelope" in the second sentence of the first paragraph.

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and in the first paragraph, substituted "Department" for "Division" five times; and in the last paragraph, substituted "Department" for "Division" two times; and made minor stylistic changes.

Law review. - For note, "DNA Fingerprinting: The Virginia Approach", see 35 Wm. & Mary L. Rev. 767 (1994).

§ 19.2-310.5. DNA data bank.

  1. It shall be the duty of the Department to receive samples of human biological evidence and to analyze, classify, and file the results of DNA identification characteristics profiles of samples of human biological evidence submitted pursuant to § 19.2-310.2 or 19.2-310.2:1 and to make such information available as provided in this section. The results of an analysis and comparison of evidence submitted to the Department pursuant to § 9.1-1101 to the identification characteristics of human biological evidence so analyzed, classified, and filed shall be made available directly to duly authorized members of federal, state, and local law-enforcement agencies or private police departments that have been designated as criminal justice agencies by the Department of Criminal Justice Services as defined by  § 9.1-101 , attorneys for the Commonwealth or attorneys for the United States Department of Justice, or the Office of the Chief Medical Examiner upon request made in furtherance of an official investigation or prosecution of any criminal offense, or to an accused or his attorney pursuant to § 9.1-1104 . The Department shall confirm whether or not there is a DNA profile on file for a specific individual if a federal, state or local law-enforcement officer requests that information in furtherance of an official investigation of any criminal offense. The name of the requestor and the purpose for which the information is requested shall be maintained on file with the Department.
  2. The Department shall adopt regulations governing (i) the methods of obtaining information from the data bank in accordance with this section and (ii) procedures for verification of the identity and authority of the requestor. The Department shall specify the positions in that agency which require regular access to the data bank and samples submitted as a necessary function of the job.
  3. The Department shall create a separate statistical data base comprised of DNA profiles of samples of human biological evidence of persons whose identity is unknown. Nothing in this section or § 19.2-310.6 shall prohibit the Department from sharing or otherwise disseminating the information in the statistical data base with law-enforcement or criminal justice agencies within or without the Commonwealth.
  4. The Department may charge a reasonable fee to search and provide a comparative analysis of DNA profiles in the data bank to any authorized law-enforcement agency outside of the Commonwealth.

    (1990, c. 669; 1998, c. 280; 2000, c. 284; 2002, cc. 753, 773; 2005, cc. 868, 881; 2010, c. 502; 2011, cc. 66, 171, 638.)

Editor's note. - Acts 2002, cc. 753 and 773, cl. 3, provide: "That the provisions of this act shall become effective on January 1, 2003."

The 2000 amendments. - The 2000 amendment by c. 284 inserted the present second sentence of the first paragraph, and deleted the second sentence of the second paragraph, which read: "Only when a sample or DNA profile supplied by the requestor satisfactorily matches a profile in the data bank shall the existence of data in the data bank be confirmed or identifying information from the data bank be disseminated."

The 2002 amendments. - The 2002 amendments by cc. 753 and 773, effective January 1, 2003, are identical, and inserted "or § 19.2-310.2:1 " in the first sentence of the first paragraph.

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are virtually identical, and substituted "Department" for "Division" three times in the first paragraph, two times in the third and fourth paragraphs, and once in the last paragraph; and made minor stylistic changes.

The 2010 amendments. - The 2010 amendment by c. 502 added the subsection A through D designations; substituted "samples of human biological evidence" for "blood, saliva or tissue samples" throughout the section; in subsection A, inserted "or to an accused or his attorney pursuant to § 9.1-1104 " in the second sentence, deleted the former fourth sentence, which read: "A request may be made by personal contact, mail, or electronic means.", and deleted the last sentence, which read: "Upon his request, a copy of the request for search shall be furnished to any person identified and charged with an offense as the result of a search of information in the data bank."

The 2011 amendments. - The 2011 amendments by cc. 66 and 171 are identical, and rewrote the second sentence in subsection A, which read: "The results of an analysis and comparison of the identification characteristics from two or more samples of human biological evidence shall be made available directly to federal, state and local law-enforcement officers upon request made in furtherance of an official investigation of any criminal offense, or to an accused or his attorney pursuant to § 9.1-1104 ."

The 2011 amendment by c. 638 substituted "state and local law-enforcement agencies or private police departments that have been designated as criminal justice agencies by the Department of Criminal Justice Services as defined by § 9.1-101 " for "state and local law-enforcement officers" in the second sentence in subsection A.

Law review. - For note, "DNA Fingerprinting: The Virginia Approach", see 35 Wm. & Mary L. Rev. 767 (1994).

For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

§ 19.2-310.6. Unauthorized uses of DNA data bank; forensic samples; penalties.

Any person who, without authority, disseminates information contained in the data bank shall be guilty of a Class 3 misdemeanor. Any person who disseminates, receives, or otherwise uses or attempts to so use information in the data bank, knowing that such dissemination, receipt, or use is for a purpose other than as authorized by law, shall be guilty of a Class 1 misdemeanor.

Except as authorized by law, any person who, for purposes of having DNA analysis performed, obtains or attempts to obtain any sample submitted to the Department of Forensic Science for analysis shall be guilty of a Class 5 felony.

(1990, c. 669; 2005, cc. 868, 881.)

Cross references. - As to punishment for Class 5 felonies, see § 18.2-10 .

As to punishment for Class 1 and Class 3 misdemeanors, see § 18.2-11 .

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "Department" for "Division" in the last paragraph.

§ 19.2-310.7. (For contingent expiration date, see Acts 2021, Sp. Sess. I, cc. 524 and 532) Expungement when DNA taken for a conviction.

A person whose DNA profile has been included in the data bank pursuant to § 19.2-310.2 may request expungement on the grounds that the conviction on which the authority for including his DNA profile was based has been reversed and the case dismissed. Provided that the person's DNA profile is not otherwise required to be included in the data bank pursuant to § 9.1-903 , 16.1-299.1, 19.2-310.2 , or 19.2-310.2:1 , the Department of Forensic Science shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receipt of (i) a written request for expungement pursuant to this section and (ii) a certified copy of the court order reversing and dismissing the conviction.

(1990, c. 669; 2002, cc. 753, 773; 2005, cc. 868, 881; 2015, cc. 209, 437.)

Section set out twice. - The section above is effective until the amendments by Acts 2021, Sp. Sess. I, cc. 524 and 542 take effect. For the version of this section effective as amended by Acts 2021, Sp. Sess. I, cc. 524 and 542, see the following section, also numbered § 19.2-310.7 .

Editor's note. - Acts 2002, cc. 753 and 773, cl. 3, provide: "That the provisions of this act shall become effective on January 1, 2003."

Acts 2015, cc. 209 and 437, cl. 2 provides: "That the provisions of this act shall apply only to persons convicted on or after July 1, 2015."

The 2002 amendments. - The 2002 amendments by cc. 753 and 773, effective January 1, 2003, are identical, and added "when DNA taken for a felony conviction" at the end of the section catchline; and substituted " § 19.2-310.2 " for "this chapter" in the first sentence.

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "Department of Forensic Science" for "Division" in the last sentence.

The 2015 amendments. - The 2015 amendments by cc. 209 and 437 are identical, and deleted "felony" preceding "conviction" in the first sentence and inserted "Provided that the person's DNA profile is not otherwise required to be included in the data bank pursuant to § 9.1-103 , 16.1-299.1, 19.2-310.2 , or 19.2-310.2 :1," at the beginning of the second sentence.

§ 19.2-310.7. (For contingent effective date, see Acts 2021, Sp. Sess. I, cc. 524 and 532) Expungement when DNA taken for a conviction.

  1. A person whose DNA profile has been included in the data bank pursuant to § 19.2-310.2 may request expungement on the grounds that the conviction on which the authority for including his DNA profile was based has been reversed and the case dismissed. Provided that the person's DNA profile is not otherwise required to be included in the data bank pursuant to § 9.1-903 , 16.1-299.1, 19.2-310.2 , or 19.2-310.2:1 , the Department of Forensic Science shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receipt of (i) a written request for expungement pursuant to this section and (ii) a certified copy of the court order reversing and dismissing the conviction.
  2. Entry of a sealing order pursuant to § 19.2-392.7 or 19.2-392.12 shall not serve as grounds for expungement of a person's DNA profile or any records in the data bank relating to that DNA profile. (1990, c. 669; 2002, cc. 753, 773; 2005, cc. 868, 881; 2015, cc. 209, 437; 2021, Sp. Sess. I, cc. 524, 542.)

Section set out twice. - The section above is set out as amended by Acts 2021, Sp. Sess. I, cc. 524 and 542. For the version of this section effective until the amendments by Acts 2021, Sp. Sess. I, cc. 524 and 542, take effect, see the preceding section, also numbered § 19.2-310.7 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 524 and 542, are identical, and added the subsection A designation; and added subsection B. For contingent effective date, see Editor's note.

Article 2. Indeterminate Commitment.

§ 19.2-311. Indeterminate commitment to Department of Corrections in certain cases; duration and character of commitment; concurrence by Department.

  1. The judge, after a finding of guilt, when fixing punishment in those cases specifically enumerated in subsection B, 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, 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.
  2. The provisions of subsection A shall be applicable to first convictions in which the person convicted:
    1. Committed the offense of which convicted before becoming 21 years of age;
    2. Was convicted of a felony offense other than any of the following: 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.
  3. 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.
  4. 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. (Code 1950, § 19.1-295.1; 1966, c. 579; 1974, cc. 44, 45; 1975, c. 495; 1976, c. 498; 1980, c. 531; 1988, c. 38; 1990, c. 701; 1994, cc. 859, 949; 1996, cc. 755, 914; 1997, c. 387; 2000, cc. 668, 690; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to facilities for confinement of persons committed to the Department of Corrections under § 19.2-311 et seq., see §§ 53.1-63 through 53.1-67 .

Editor's note. - Acts 1996, cc. 755 and 914, cls. 2 provide: "[t]hat the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $5,382,720."

Acts 1996, cc. 755 and 914, cls. 7 provide: "[t]hat the provisions of this act shall apply to offenses committed and to records created and proceedings held with respect to those offenses on or after July 1, 1996."

Acts 2000, c. 668, cl. 2 and Acts 2000, c. 690, cl. 3, provide: "That the Department of Corrections shall report annually to the General Assembly on or before December 1 on the utilization of the Youthful Offender Program by the Judiciary."

Acts 2000, c. 668, cl. 3, and Acts 2000, c. 690, cl. 2 provide: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $170,400 in FY 2008."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2000 amendments. - The 2000 amendment by c. 668 and 690, are identical, and in subsection A, inserted the present second sentence, substituted "for confinement in a state facility for youthful offenders established pursuant to § 53.1-63 " for "for initial confinement for a period not to exceed three years" in the present third sentence, in the present fourth sentence, substituted "one and one-half years" for "one year," and deleted "but such parole period shall not, in any case, continue beyond the four-year period" from the end of the sentence, in the present fifth sentence, substituted "established pursuant to § 53.1-63 " for "specified in § 53.1-64 ," deleted former clause (i), relating to voluntary withdrawal, and redesignated former clauses (ii) and (iii) as present clauses (i) and (ii), respectively; in subdivision B 1, deleted "after becoming eighteen but" following "convicted" and deleted "or was a juvenile tried as an adult in the circuit court" from the end of the subdivision; in subdivision B 2, deleted "an offense which is either (i)" following "convicted of" and substituted "a violation of §§ 18.2-61 , 18.2-67.1 , 18.2-67.2 or subdivision A 1 of § 18.2-67.3 ; and" for "(ii) a misdemeanor involving injury to a person or damage to or destruction of property; and"; in subsection C, deleted "and the Parole Board" following "Department of Corrections," inserted present clause (i), and redesignated former clauses (i) and (ii) as present clauses (ii) and (iii), all in the first sentence, and deleted "and the Parole Board" at the end of the second sentence; and added subsection D.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and in subdivision B 2, substituted "aggravated murder" for "capital murder" and " § 18.2-61 . 18.2-67.1 , or 18.2-67.2 " for " §§ 18.2-61 , 18.2-67.1 , 18.2-67.2 "; and made stylistic changes.

Law review. - For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976).

CASE NOTES

No language in this section directs the court to make any findings before it can deny alternative sentencing under this section. Rather, the language of this section gives the judge complete discretion whether to impose this sentencing alternative on defendants who qualify under its provisions. Crank v. Rogers, 1 Va. App. 491, 339 S.E.2d 909 (1986).

The language of this section, unlike former 18 U.S.C. § 5010 (d) of the Federal Youth Corrections Act, does not require the trial court to find that the youthful offender would not benefit from treatment under the statute before imposing any other sentence. Crank v. Rogers, 1 Va. App. 491, 339 S.E.2d 909 (1986).

Nor does due process require considering alternatives. - Due process does not require the trial judge to indicate, before imposing sentence, that he has considered sentencing alternatives available under this section. Crank v. Rogers, 1 Va. App. 491, 339 S.E.2d 909 (1986).

In order to prevail on claim that defense counsel was ineffective for not requesting court to sentence defendant under provisions of this section, defendant must establish both that counsel's assistance was deficient and that this deficiency prejudiced this defense. Crank v. Rogers, 1 Va. App. 491, 339 S.E.2d 909 (1986).

Sentencing alternatives under this section differ from those required by § 18.2-53.1 . Thus, a commitment under this section is contrary to the mandatory provision of § 18.2-53.1 . LaFleur v. Commonwealth, 6 Va. App. 190, 366 S.E.2d 712 (1988).

Purpose of § 18.2-53.1 would be eroded by committing offender under this section in lieu of sentencing him under § 18.2-53.1 . This would substitute a discretionary penalty for an inflexible one. The General Assembly has directed a contrary policy which courts must follow. LaFleur v. Commonwealth, 6 Va. App. 190, 366 S.E.2d 712 (1988).

Conviction for use of firearm. - The mandatory sentence required upon a conviction for the use of a firearm during the commission of a felony prevents a trial court from sentencing a person to an indeterminate commitment to the Department of Corrections. LaFleur v. Commonwealth, 6 Va. App. 190, 366 S.E.2d 712 (1988).

Sentence was voidable. - Although the trial court arguably erred in imposing a sentence for malicious wounding below the statutory minimum and in failing to impose a suspended sentence under subsection A of § 19.2-311 , the errors only rendered the sentence voidable; however, because more than 21 days had passed since the entry of defendant's original sentencing order, the trial court no longer had jurisdiction to enter an amended order under Va. Sup. Ct. R. 1:1, and could not reacquire jurisdiction, even by entry of a nunc pro tunc order. Because a probation violation order attempted to revoke a sentence imposed by the amended sentencing order, it too was invalid. Gautier v. Commonwealth,, 2007 Va. App. LEXIS 35 (Feb. 6, 2007).

Circuit court properly suspended a juvenile's five-year incarceration with the Department of Corrections (DOC) on the condition that he successfully complete a special Youthful Offender Program because his plea agreement anticipated that he could be in DOC through use of the language "a blended juvenile and adult sentence," and the juvenile was no longer eligible to be placed in the Department of Juvenile Justice because of his conduct there. Bardales v. Commonwealth, 71 Va. App. 737, 840 S.E.2d 14, 2020 Va. App. LEXIS 98 (2020).

§ 19.2-312.

Repealed by Acts 1990, c. 701.

§ 19.2-313. Eligibility for release.

Any person committed under the provisions of § 19.2-311 shall be eligible for release at the discretion of the Parole Board upon certification by the Director of the Department of Corrections that the person has successfully completed the program established pursuant to § 53.1-63 and a determination that he has demonstrated that such release is compatible with the interests of society and of such person and his successful rehabilitation to that extent. The Department and Parole Board shall make continuous evaluation of his progress to determine his readiness for release. All such persons, in any event, shall be released after four years' confinement. Any person committed under § 19.2-311 who was convicted of a misdemeanor and is determined to be unsuitable for the program established pursuant to § 53.1-63 shall be released after one year of confinement or the maximum confinement for the misdemeanor whichever is less.

(Code 1950, § 19.1-295.3; 1966, c. 579; 1975, cc. 495, 571; 2000, cc. 668, 690.)

Editor's note. - The above section is former § 19.1-295.3 as amended by Acts 1975, c. 571. Pursuant to § 1-13.39 (see now § 30-152), it has been substituted for § 19.2-313 as enacted by Acts 1975, c. 495.

Acts 2000, c. 668, cl. 3, and Acts 2000, c. 690, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $170,400 in FY 2008."

Acts 2000, c. 668, cl. 2 and Acts 2000, c. 690, cl. 3 provide: "That the Department of Corrections shall report annually to the General Assembly on or before December 1 on the utilization of the Youthful Offender Program by the Judiciary."

The 2000 amendments. - The 2000 amendments by cc. 668 and 690 are identical, and rewrote the section.

Law review. - For comment, "Obstacles to Holding a Parole Official in Virginia Liable for the Negligent Release or Supervision of a Parolee," see 22 U. Rich. L. Rev. 83 (1987).

§ 19.2-314. Supervision of persons released.

Every person released under § 19.2-313 shall receive intensive parole supervision for a period of at least one and one-half years and may have parole supervision continued for a longer period, if the Parole Board deems it advisable.

(Code 1950, § 19.1-295.4; 1966, c. 579; 1975, c. 495; 2000, cc. 668, 690.)

Editor's note. - Acts 2000, c. 668, cl. 3 and Acts 2000, c. 690, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $170,400 in FY 2008."

Acts 2000, c. 668, cl. 2 and Acts 2000, c. 690, cl. 3, provide: "That the Department of Corrections shall report annually to the General Assembly on or before December 1 on the utilization of the Youthful Offender Program by the Judiciary."

The 2000 amendments. - The 2000 amendments by cc. 668 and 690 are identical, and rewrote the section, which read: "The Virginia Parole Board shall supervise every person released under § 19.2-313 for a period of at least one year and may continue such supervised parole for a longer period, if it deems such advisable, provided such initial parole period shall not extend beyond the termination of the four-year period."

§ 19.2-315. Compliance with terms and conditions of parole; time on parole not counted as part of commitment period.

Every person on parole under § 19.2-314 shall comply with such terms and conditions as may be prescribed by the Board according to § 53.1-157 and shall be subject to the penalties imposed by law for a violation of such terms and conditions. Notwithstanding any other provision of the Code, if parole is revoked as a result of any such violation, such person may be returned to the institution established pursuant to § 53.1-63 upon the direction of the Parole Board with the concurrence of the Department of Corrections, provided such person has not been convicted since his release on parole of an offense constituting a felony under the laws of the Commonwealth. Time on parole shall not be counted as part of the four-year period of commitment under this section. In addition, such person may be brought before the sentencing court for imposition of all or part of the suspended sentence.

(Code 1950, § 19.1-295.5; 1966, c. 579; 1975, c. 495; 1984, c. 33; 2000, cc. 668, 690.)

Editor's note. - Acts 2000, c. 668, cl. 3 and Acts 2000, c. 690, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $170,400 in FY 2008."

Acts 2000, c. 668, cl. 2 and Acts 2000, c. 690, cl. 3, provide: "That the Department of Corrections shall report annually to the General Assembly on or before December 1 on the utilization of the Youthful Offender Program by the Judiciary."

The 2000 amendments. - The 2000 amendments by cc. 668 and 690 are identical, and substituted "pursuant to § 53.1-63 " for "under Article 4 ( § 53.1-63 et seq.) of Chapter 2 of Title 53.1" in the second sentence; and added the fourth sentence.

§ 19.2-316. Evaluation and report prior to determining punishment.

Following conviction and prior to sentencing, the court shall order such defendant committed to the Department of Corrections for a period not to exceed 60 days from the date of referral for evaluation and diagnosis by the Department to determine the person's potential for rehabilitation through confinement and treatment in the facilities and programs established pursuant to § 53.1-63 . The evaluation and diagnosis shall include a complete physical and mental examination of the defendant and may be conducted by the Department of Corrections at any state or local facility, probation and parole office, or other location deemed appropriate by the Department. The Department of Corrections shall conduct the evaluation and diagnosis and shall review all aspects of the case within 60 days from the date of conviction or revocation of ordinary probation and shall recommend that the defendant be committed to the facility established pursuant to § 53.1-63 upon finding that (i) such defendant is physically and emotionally suitable for the program, (ii) such commitment is in the best interest of the Commonwealth and the defendant, and (iii) facilities are available for confinement of the defendant.

If the Director of the Department of Corrections determines such person should be confined in a facility other than one established pursuant to § 53.1-63 , a written report giving the reasons for such decision shall be submitted to the sentencing court. The court shall not be bound by such written report in the matter of determining punishment. Additionally, the person may be committed or transferred to a state hospital operated by the Department of Behavioral Health and Developmental Services or other mental health hospital, as provided by law, during such 60-day period.

(Code 1950, § 19.1-295.6; 1966, c. 579; 1974, cc. 44, 1975, c. 495; 1990, c. 701; 2000, cc. 668, 690; 2012, cc. 476, 507.)

Editor's note. - Acts 2000, c. 668, cl. 3 and Acts 2000, c. 690, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $170,400 in FY 2008."

Acts 2000, c. 668, cl. 2 and Acts 2000, c. 690, cl. 3, provide: "That the Department of Corrections shall report annually to the General Assembly on or before December 1 on the utilization of the Youthful Offender Program by the Judiciary."

The 2000 amendments. - The 2000 amendments by cc. 668 and 690 are identical, and rewrote the first paragraph and in the first sentence of the second paragraph, substituted "pursuant to § 53.1-63 " for "under Article 4 of Chapter 2 of Title 53.1."

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and substituted "state hospital operated by the Department of Behavioral Health and Developmental Services or other mental health hospital" for "mental hospital or like institution" in the third sentence of the second paragraph; and made minor stylistic changes throughout.

Article 3. Boot Camp Incarceration Program.

§ 19.2-316.1.

Repealed by Acts 2019, c. 618, cl. 2.

Cross references. - For current provisions as to eligibility for participation in community corrections alternative program; evaluation; sentencing; withdrawal or removal from program, see § 19.2-316.4 .

Editor's note. - Acts 1990, c. 474, cl. 2, and Acts 1992, c. 861, cl. 2, which provided for the expiration of the 1990 enactment of and the 1992 amendment to this section on December 31, 1995, was repealed by Acts 1995, c. 117, cl. 2.

Acts 2000, c. 767, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1-14, the estimated amount of the necessary appropriation is $0 in FY 2010."

Former Article 3 ( § 19.2-316.1 ), relating to the Boot Camp Incarceration Program eligibility; evaluation; sentencing; withdrawal or removal from program, derived from 1990, c. 474; 1992, c. 861; 1994, c. 926; 1995, c. 117; 1996, cc. 809, 938; 2000, c. 769.

Article 4. Detention Center Incarceration Program.

§ 19.2-316.2.

Repealed by Acts 2019, c. 618, cl. 2.

Cross references. - For current provisions as to eligibility for participation in community corrections alternative program; evaluation; sentencing; withdrawal or removal from program, see § 19.2-316.4 .

Editor's note. - Former Article 4 ( § 19.2-316.2 ), relating to the Detention Center Incarceration Program eligibility; evaluation; sentencing; withdrawal or removal from program, derived from 1994, 2nd Sp. Sess., cc. 1, 2; 1995, cc. 502, 574; 2000, c. 338; 2002, c. 604; 2005, cc. 512, 580; 2008, cc. 362, 761.

Article 5. Diversion Center Incarceration Program.

§ 19.2-316.3.

Repealed by Acts 2019, c. 618, cl. 2.

Cross references. - For current provisions as to eligibility for participation in community corrections alternative program; evaluation; sentencing; withdrawal or removal from program, see § 19.2-316.4 .

Editor's note. - Former Article 5 ( § 19.2-316.3 ), relating to eligibility for participation in diversion center incarceration program; evaluation; sentencing; withdrawal or removal from program; payment for costs, derived from 1994, 2nd Sp. Sess., cc. 1, 2; 1995, cc. 502, 574; 2000, c. 338; 2002, c. 604; 2005, c. 604; 2008, cc. 384, 757.

Article 6. Community Corrections Alternative Program.

§ 19.2-316.4. Eligibility for participation in community corrections alternative program; evaluation; sentencing; withdrawal or removal from program; payment of costs.

  1. As used in this article, unless the context requires a different meaning: "Intractable behavior" means behavior that, in the determination of the Department of Corrections, (i) indicates an inmate's unwillingness or inability to conform his behavior to that necessary to his successful completion of the program or (ii) is so disruptive as to threaten the successful completion of the program by other participants. "Nonviolent felony" means any felony except those considered an "act of violence" pursuant to § 19.2-297.1 or any attempt to commit any of those crimes.
  2. A defendant (i) who otherwise would have been sentenced to incarceration for a nonviolent felony and whose identified risks and needs the court determines cannot be addressed by conventional probation supervision or (ii) whose suspension of sentence would otherwise be revoked after a finding that the defendant has violated the terms and conditions of probation for a nonviolent felony, may be considered for commitment to a community corrections alternative program established under § 53.1-67.9 as follows:
    1. Following conviction and prior to imposition of sentence or following a finding that the defendant's probation should be revoked, upon motion of the defendant or the attorney for the Commonwealth or upon the court's own motion, the court may order such defendant referred to the Department of Corrections for a period not to exceed 45 days from the date of commitment for evaluation and diagnosis by the Department to determine eligibility and suitability for participation in the community corrections alternative program. The evaluation and diagnosis may be conducted by the Department at any state or local correctional facility, probation, parole office, or other location deemed appropriate by the Department. When a defendant who has not been charged with a new criminal offense and who may be subject to a revocation of probation scores incarceration on the probation violation guidelines and agrees to participate, the probation and parole officer, with the approval of the court, may refer the defendant to the Department for such evaluation, for a period not to exceed 45 days.
    2. Upon determination that (i) such commitment is in the best interest of the Commonwealth and the defendant and (ii) facilities are available for the confinement of the defendant, the Department shall recommend to the court in writing that the defendant be committed to the community corrections alternative program. The Department shall have the final authority to determine an individual's eligibility and suitability for the program.
    3. Upon receipt of such a recommendation and a determination by the court that the defendant will benefit from the community corrections alternative program and is capable of returning to society as a productive citizen following successful completion of the program, and if the defendant would otherwise be committed to the Department, the court (i) shall impose sentence, suspend the sentence, and place the defendant on probation pursuant to this section or (ii) following a finding that the defendant has violated the terms and conditions of his probation previously ordered, shall place the defendant on probation pursuant to this section. Such probation shall be conditioned upon the defendant's entry into and successful completion of the community corrections alternative program. The court shall order that, upon successful completion of the program, the defendant shall be released from confinement and be under probation supervision for a period of not less than one year. The court shall further order that the defendant, prior to release from confinement, shall (a) make reasonable efforts to secure and maintain employment; (b) comply with a plan of restitution or community service; (c) comply with a plan for payment of fines, if any, and costs of court; and (d) undergo substance abuse treatment, if necessary. The court may impose such other terms and conditions of probation as it deems appropriate to be effective on the defendant's successful completion of the community corrections alternative program. A sentence to the community corrections alternative program shall not be imposed in addition to an active sentence to a state correctional facility.
    4. Upon the defendant's (i) voluntary withdrawal from the community corrections alternative program, (ii) removal from the program by the Department for intractable behavior, or (iii) failure to comply with the terms and conditions of probation, the court shall cause the defendant to show cause why his probation and suspension of sentence should not be revoked. Upon a finding that the defendant voluntarily withdrew from the program, was removed from the program by the Department for intractable behavior, or failed to comply with the terms and conditions of probation, the court may revoke all or part of the probation and suspended sentence and commit the defendant as otherwise provided in this chapter.
  3. Any offender incarcerated for a nonviolent felony paroled under § 53.1-155 or mandatorily released under § 53.1-159 and for whom probable cause that a violation of parole or of the terms and conditions of mandatory release, other than the occurrence of a new felony or Class 1 or Class 2 misdemeanor, has been determined under § 53.1-165 , may be considered by the Parole Board for commitment to a community corrections alternative program as established under § 53.1-67.9 as follows:
    1. The Parole Board or its authorized hearing officer, with the violator's consent or upon receipt of a defendant's written voluntary agreement to participate form from the probation and parole officer, may order the violator to be evaluated and diagnosed by the Department of Corrections to determine suitability for participation in the community corrections alternative program. The evaluation and diagnosis may be conducted by the Department at any state or local correctional facility, probation or parole office, or other location deemed appropriate by the Department.
    2. Upon determination that (i) such commitment is in the best interest of the Commonwealth and the violator and (ii) facilities are available for the confinement of the violator, the Department shall recommend to the Parole Board in writing that the violator be committed to the community corrections alternative program. The Department shall have the final authority to determine an individual's eligibility and suitability for the program.
    3. Upon receipt of such a recommendation and a determination by the Parole Board that the violator will benefit from the program and is capable of returning to society as a productive citizen following successful completion of the program and if the violator would otherwise be committed to the Department, the Parole Board shall restore the violator to parole supervision conditioned upon entry into and successful completion of the community corrections alternative program. The Parole Board shall order that, upon successful completion of the program, the violator shall be placed under parole supervision for a period of not less than one year. The Parole Board may impose such other terms and conditions of parole or mandatory release as it deems appropriate to be effective on the defendant's successful completion of the community corrections alternative program. The time spent in the program shall not be counted as service of any part of a term of imprisonment for which he was sentenced upon his conviction.
    4. Upon the violator's (i) voluntary withdrawal from the program, (ii) removal from the program by the Department for intractable behavior, or (iii) failure to comply with the terms and conditions of parole or mandatory release, the Parole Board may revoke parole or mandatory release and recommit the violator as provided in § 53.1-165 .
  4. A person sentenced pursuant to this article who receives payment for employment while in the community corrections alternative program shall be required to pay an amount to be determined by the Department of Corrections to defray the cost of his keep.

    (2019, c. 618.)

Law review. - For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

Research References. - Virginia Forms (Matthew Bender). No. 9-2612. Order for Evaluation for Boot Camp Incarceration Program, et seq.

Virginia Forms (Matthew Bender). No. 9-2614. Motion for Detention Center Incarceration Program, et seq.

Virginia Forms (Matthew Bender). No. 9-2617. Motion for Diversion Center Program, et seq.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 70, 77; 11A M.J. Judgments and Decrees, § 119.

CASE NOTES

I. DECIDED UNDER PRIOR LAW.

Intermediate scrutiny test must be applied to pilot boot camp incarceration program where the program only admitted male applicants. West v. Virginia Dep't of Cors., 847 F. Supp. 402 (W.D. Va. 1994).

Equal protection afforded to Christian and muslim inmates. - Inmate's 42 U.S.C. § 1983 action, alleging that defendants abridged his constitutional right to the free exercise of his Muslim religion and violated his rights under the Equal Protection Clause by treating Muslims less favorably than Christians, would fail, where evidence showed that Christian and Muslim inmates were afforded essentially equal opportunities for religious services in separate locations at the same times and both groups of inmates were subject to the same daily boot camp regimen and schedule; where prison officials addressed allegations of inferior space for holding religious services and authorizing Muslim inmates to hold their religious services in quieter and less crowded spaces; and where an exception to the SDC schedule was made permitting weekly Islamic study sessions for two hours on Friday afternoons with an Imam, a congregation leader, which plaintiff attended. In these circumstances, plaintiff's equal protection claim failed, for the record reflected that defendants afforded plaintiff reasonable opportunities for pursuing his faith which were comparable to those afforded to Christian inmates. Nor did equal protection require prisons to ensure that their libraries adhered to numerical parity in books congenial to various religions. Finally, claim of disparate treatment in holiday observances also failed because any differences in treatment were not the result of purposeful discrimination, but instead were justified as reasonably related to the legitimate penological objectives of the facility. Blagman v. White, 112 F. Supp. 2d 534, 2000 U.S. Dist. LEXIS 13799 (E.D. Va. 2000).

Equal protection violated. - Even if there were differences which justified treating male and female inmates differently, there was no compelling interest in providing male and female offenders with such unequal sentencing options where male offenders were allowed to be in a boot camp incarceration program; department of corrections did not even attempt to address what "acknowledged differences" would justify the provision of a boot camp program and favorable sentencing alternatives only to men, defendants were acting on the basis of archaic and stereotypic notions of the roles of men and women, and there was an inherent contradiction in the defendant's argument where on the one hand, defendants argue that the "acknowledged differences" between men and women justify the provision of a trial boot camp program for male inmates and on the other hand, defendants purport to want to use the results of the all-male boot camp incarceration program to determine whether the program should be extended to women. West v. Virginia Dep't of Cors., 847 F. Supp. 402 (W.D. Va. 1994).

Discretion of the court to modify suspended sentence. - Where the trial court imposed a condition upon a probation to enter and successfully complete a Detention Center Incarceration Program, and while such might have been a condition of probation, merely entering the program was a prerequisite to and one of the conditions upon which the probationer's sentence was suspended; when he could no longer satisfy this condition, the court was authorized to reconsider the suspended sentences and determine what portion of the same or other alternatives were appropriate. Word v. Commonwealth, 41 Va. App. 496, 586 S.E.2d 282, 2003 Va. App. LEXIS 485 (2003).

Failure to complete alternative program must be willful. - Revocation of defendant's suspended sentence based on his failure to complete an alternative sentencing program was erroneous because his failure to complete the program was not willful but based on an unforeseen medical condition. Peyton v. Commonwealth, 268 Va. 503 , 604 S.E.2d 17, 2004 Va. LEXIS 147 (2004).

Credit for time served in detention program. - Because defendant's participation in the § 19.2-316.2 Detention Center Incarceration Program was incarceration, even though served as a condition of probation, it could not be used upon revocation of probation to enlarge a sentencing order that had become final under Va. Sup. Ct. R. 1:1. Charles v. Commonwealth, 270 Va. 14 , 613 S.E.2d 432, 2005 Va. LEXIS 56 (2005).

Judge substantially followed statutory requirements despite statement that temporary detention of defendant, imposed pending determination of suitability for diversion program, would also be punishment for his violation of the terms and conditions of the previously suspended sentence. Rogers v. Commonwealth, 29 Va. App. 580, 513 S.E.2d 876 (1999).

Finding of ineligibility upheld. - Considering schizophrenic defendant's previous probation violations and her unsuitability for alternative programs, revocation of probation and imposition of remaining sentence upon the Department of Corrections' determination that defendant was ineligible for detention center program did not constitute an abuse of discretion, despite defendant's contention that by doing so the trial court violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Wilson v. Commonwealth, 31 Va. App. 200, 522 S.E.2d 385 (1999).

Applied in Word v. Commonwealth, 41 Va. App. 496, 586 S.E.2d 282, 2003 Va. App. LEXIS 485 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Eligibility. - General Assembly intended that a court should not sentence the same defendant to active incarceration with the Department of Corrections and to the Detention Center Incarceration Program or the Diversion Center Incarceration Program. Further, in a situation where one court imposes a Detention or Diversion Center sentence that would be countermanded by another court's sentence for incarceration with the Department, the Department must give effect to the sentences imposed by both courts. See opinion of Attorney General to The Honorable G. Carter Greer, Judge, City of Martinsville Circuit Court, 08-108, 2009 Va. AG LEXIS 17 (2/25/09).

Chapter 19. Exceptions and Writs of Error.

Sec.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1. Courts. § 1.03 Court of Appeals. Friend.

§ 19.2-317. When writ of error lies in criminal case for accused; when for Commonwealth; when for county, city or town.

  1. A writ of error shall lie in a criminal case to the judgment of a circuit court or the judge thereof, from the Court of Appeals as provided in § 17.1-406 . It shall lie in any such case for the accused and if the case is for the violation of any law relating to the state revenue, it shall lie also for the Commonwealth.
  2. A writ of error shall also lie for any county, city or town from the Supreme Court to the judgment of any circuit court declaring an ordinance of such county, city or town to be unconstitutional or otherwise invalid, except when the violation of any such ordinance is made a misdemeanor by state statute.
  3. A writ of error shall also lie for the Commonwealth from the Supreme Court to a judgment of the Court of Appeals in a criminal case, except where the decision of the Court of Appeals is made final under § 17.1-410 or § 19.2-408 . (Code 1950, § 19.1-282; 1960, c. 366; 1975, c. 495; 1984, c. 703; 1997, c. 358.)

Cross references. - As to appeals by the Commonwealth, see § 19.2-398 et seq.

Law review. - For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For note discussing the Virginia Judicial Council's intermediate appellate court proposal, see 16 U. Rich. L. Rev. 209 (1982).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 47, 56, 85; 2C M.J. Autrefois, Acquit and Convict, § 10.

CASE NOTES

This section grants only the right to seek to invoke appellate jurisdiction and does not mean that the jurisdiction may be invoked in every case. Saunders v. Reynolds, 214 Va. 697 , 204 S.E.2d 421 (1974).

The right to appellate review is not a necessary element of due process. Saunders v. Reynolds, 214 Va. 697 , 204 S.E.2d 421 (1974).

The due process clause of the Fourteenth Amendment to the Constitution of the United States does not require that petitioner be granted a writ of error as a matter of right. Saunders v. Reynolds, 214 Va. 697 , 204 S.E.2d 421 (1974).

Decision to grant or refuse petition is based on merits of case. - A decision to grant or refuse a petition for writ of error is based upon one equally-applied criterion - the merits of the case. Saunders v. Reynolds, 214 Va. 697 , 204 S.E.2d 421 (1974).

Thus, equal protection not denied where meritless petition refused. - So long as the court adheres to a merits review of each petition for writ of error, there is no denial of equal protection to the felon whose petition is refused because it is without merit. Saunders v. Reynolds, 214 Va. 697 , 204 S.E.2d 421 (1974).

Writ of error lies only to final judgment. - The judgment to which a writ of error will lie under this section is a final judgment pronounced at the end of a trial, and not an intermediate ruling of the trial court made as an incident of the trial of the case against a defendant. Sturgill v. Commonwealth, 175 Va. 584 , 7 S.E.2d 141 (1940); Fuller v. Commonwealth, 189 Va. 327 , 53 S.E.2d 26 (1949).

When the Virginia Supreme Court dismissed defendant's appeal from the denial of a motion to dismiss a case in which defendant was found incompetent to stand trial for lack of jurisdiction due to the appeal's criminal nature, the case was not transferred to the Virginia Court of Appeals because there had been no final conviction. Martinez v. Commonwealth, 296 Va. 387 , 821 S.E.2d 529, 2018 Va. LEXIS 176 (2018).

And to rejection of plea. - While it is permissible for the defendant in a criminal trial to file a plea seeking a dismissal of the prosecution under the provisions of § 19.2-243 , the rejection of the plea is but an antecedent incident to the trial of the indictment against the defendant, and is in no sense the pronouncement of a final judgment to which a writ of error will lie under this section. Sturgill v. Commonwealth, 175 Va. 584 , 7 S.E.2d 141 (1940).

Judgment under statute authorizing probation. - After a trial court has adjudged a defendant "guilty" and has suspended either the imposition or the execution of sentence, or commitment of the defendant, and has fixed the terms of his probation under former § 53-272 (now §§ 53.1-151 and 53.1-186 ), its action is final and subject to review. And the revocation of the probation does not alter the finality of the judgment. Fuller v. Commonwealth, 189 Va. 327 , 53 S.E.2d 26 (1949).

Judgment not final where trial court fails to impose sentence or fix terms of probation. - The trial court entered an order that defendant was guilty as charged, which recited that mitigating circumstances justified suspension of sentence, that before taking action the court desired to have a report of the probation officer, and that the court suspended imposition of any sentence temporarily for the purpose of allowing defendant time for presentation of a writ of error to the Supreme Court. It was held that the order was not a final judgment of the trial court as contemplated by the statute. Fuller v. Commonwealth, 189 Va. 327 , 53 S.E.2d 26 (1949).

As to the State's inability to appeal in criminal cases prior to the 1986 amendment of Va. Const., Art. VI, § 1, see Commonwealth v. Willcox, 111 Va. 849 , 69 S.E. 1027 (1911); Commonwealth v. Perrow, 124 Va. 805 , 97 S.E. 820 (1919); City of Roanoke v. Donckers, 187 Va. 491 , 47 S.E.2d 440 (1948); Peyton v. King, 210 Va. 194 , 169 S.E.2d 569 (1969).

The State may appeal in criminal case involving revenue laws. - Under Va. Const., Art. I, § 8 and Art. VI, § 1, the legislature may allow the Commonwealth an appeal in any criminal case involving the revenue laws, regardless of the degree of punishment. Commonwealth v. Willcox, 111 Va. 849 , 69 S.E. 1027 (1911); Commonwealth v. Perrow, 124 Va. 805 , 97 S.E. 820 (1919).

Reading the second sentence of former § 17-116.08 (see now § 17.1-411 ) with the second sentence of this section, the Commonwealth is "also" assured, consistent with Va. Const., Art. VI, § 1, of the right to appeal to the Supreme Court adverse judgments in prosecutions for the violation of any law relating to the state revenue, even though in criminal prosecutions generally, according to this section, "the accused" only may appeal to the Supreme Court. Commonwealth v. Smith, 230 Va. 354 , 337 S.E.2d 278 (1985).

State revenue case. - Where the defense to a prosecution for the unlawful sale of malt liquor was that the defendant had the right to sell it at the place where sold, under the revenue laws of the State, the case involved a violation of a law "relating to the state revenue" within the provisions of this section. Commonwealth v. Goodwin, 109 Va. 828 , 64 S.E. 54 (1909).

Two felons who are not similarly situated need not be treated alike to the extent that each must be granted a writ regardless of the merits of his claims. Saunders v. Reynolds, 214 Va. 697 , 204 S.E.2d 421 (1974).

Procedure of granting a writ of error to one felon and refusing it to another is not violative of the equal protection clause. Saunders v. Reynolds, 214 Va. 697 , 204 S.E.2d 421 (1974).

Distinctions between felonies and misdemeanors do not violate equal protection. - With respect to appellate procedure, the distinctions between felonies and misdemeanors either do not exist or, where they do, they are based upon well-reasoned objectives which serve a legitimate state interest and protect the constitutional rights of defendants convicted of crime and thus do not violate equal protection. Saunders v. Reynolds, 214 Va. 697 , 204 S.E.2d 421 (1974).

The equal protection clause of the Fourteenth Amendment to the United States Constitution is not violated by the procedure in which a person convicted of a misdemeanor in a court not of record is given an automatic appeal to a higher court while a person originally convicted in a court of record has no such automatic right of appeal to a higher court. Saunders v. Reynolds, 214 Va. 697 , 204 S.E.2d 421 (1974).

For cases construing former § 19.2-317.1 relative to the ineffective assistance of counsel, see Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986); Dowell v. Commonwealth, 3 Va. App. 555, 351 S.E.2d 915 (1987); Beaver v. Commonwealth, 232 Va. 521 , 352 S.E.2d 342, cert. denied, 483 U.S. 1033, 107 S. Ct. 3277, 97 L. Ed. 2d 781 (1987); Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267 (1987); Payne v. Commonwealth, 5 Va. App. 498, 364 S.E.2d 765 (1988); Hill v. Commonwealth, 8 Va. App. 60, 379 S.E.2d 134 (1989).

Applied in Wolkind v. Selph, 473 F. Supp. 675 (E.D. Va. 1979); City of Va. Beach v. Murphy, 239 Va. 353 , 389 S.E.2d 462 (1990).

§ 19.2-317.1.

Repealed by Acts 1990, c. 74.

§ 19.2-318. Appeal on writ of error to judgment for contempt.

From a judgment for any civil contempt of court an appeal may be taken to the Court of Appeals. A writ of error shall lie from the Court of Appeals to a judgment for criminal contempt of court. This section shall also be construed to authorize an appeal from or writ of error to a judgment of a circuit court rendered on appeal from a judgment of a district court for civil or criminal contempt.

(Code 1950, § 19.1-283; 1960, c. 366; 1968, c. 639; 1975, c. 495; 1979, c. 649; 1984, c. 703.)

Michie's Jurisprudence. - For related discussion, see 4A M.J. Contempt, § 35.

CASE NOTES

This section does not allow a writ of error to an interlocutory judgment or order adjudicating one guilty of contempt. An order which reserves the imposition of penalty or punishment for a period to allow the contemnor to purge himself is such an order. E.I. Du Pont de Nemours & Co. v. Universal Moulded Prods. Corp., 189 Va. 523 , 53 S.E.2d 835 (1949).

An order adjudging a defendant guilty of contempt is a final judgment to which a writ of error lies under this section. Weston v. Commonwealth, 195 Va. 175 , 77 S.E.2d 405 (1953).

Decree not interlocutory where appellant was sentenced to 15 days in jail and execution of the sentence was suspended until a date certain. The fact that the court suspended execution of the sentence and continued the case until a date certain so that the appellant could purge himself of the civil contempt did not make the decree interlocutory. The contempt decree imposed a sentence and fully adjudicated all issues; it was final, and jurisdiction of the appeal was therefore proper. Peet v. Peet, 16 Va. App. 323, 429 S.E.2d 487 (1993).

Jurisdiction over prohibition writ. - Court had appellate jurisdiction over matters involving divorce and judgments for civil contempt of court; thus, the issues raised in the petition for a writ of prohibition fell within the court's subject matter jurisdiction. The court rejected the claim that a final order was necessary to invoke the court's original jurisdiction to issue a writ of prohibition. Hoffman P'ship, LLP v. Circuit Court, 72 Va. App. 206, 843 S.E.2d 396, 2020 Va. App. LEXIS 175 (2020).

Jurisdiction in appeal of proper divorce decree debt liability determination. - Where matter clearly arose out of the enforcement of a provision in a divorce decree requiring husband to hold wife harmless for their joint debt to bank, Court of Appeals had jurisdiction to consider the trial court's determination that husband failed to comply with the terms of the decree. Douglas v. Douglas, 17 Va. App. 380, 437 S.E.2d 244 (1993).

Appellate court lacked jurisdiction to review denial of contempt motion. - Circuit court's decision declining to hold a spouse in a divorce proceeding in civil contempt of court was not reviewable by an appellate court. Weedon v. Weedon, No. 1378-13-2, 2014 Va. App. LEXIS 166 (2014).

Court of appeals did not have appellate jurisdiction to consider a show cause direction because the circuit court's decision declining to hold a husband in civil contempt of court was not reviewable on appeal. Reid v. Reid, No. 1862-16-1, 2017 Va. App. LEXIS 224 (Ct. of Appeals Aug. 29, 2017).

Civil contempt. - Section 19.2-318 did not provide appellate jurisdiction for either the Supreme Court of Virginia or the Court of Appeals of Virginia to review the judgment of the circuit court dismissing the rule to show cause and refusing to hold the property owner in civil contempt of court; therefore, finding no abrogation of the common-law rule in the current or former versions of § 19.2-318 that would give the court jurisdiction of the instant appeal, the court turned to subdivision A 3 of § 8.01-670 . The General Assembly abrogated the common-law rule that appellate review of contempt proceedings was not available only with regard to judgments "for" contempt; consequently, the court did not have jurisdiction under subdivision A 3 of § 8.01-670 to review the judgment dismissing the rule to show cause and refusing to hold the property owner in civil contempt of court. Jenkins v. Mehra, 281 Va. 37 , 704 S.E.2d 577, 2011 Va. LEXIS 18 (2011).

Because it was within the discretion of the trial court to exercise its contempt powers, the trial court did not abuse its discretion in finding that a mother successfully purged her contempt. Molchany v. Draughn, No. 1344-15-4, 2016 Va. App. LEXIS 188 (Ct. of Appeals June 28, 2016).

Claim of the guardian ad litem that the trial court erred by dismissing the show cause rules she brought against the mother were dismissed because the court of appeals did not have jurisdiction over the dismissal of the rules to show cause; the court of appeals does not have jurisdiction to review a trial court's refusal to find a litigant in contempt. Molchany v. Draughn, No. 1344-15-4, 2016 Va. App. LEXIS 188 (Ct. of Appeals June 28, 2016).

Appellate court did not have jurisdiction under either this section or § 17.1-405 to review a trial court's ruling that a wife was not in contempt of court for failing to abide by a previous child custody and support order. Newton v. Jones, 66 Va. App. 20, 781 S.E.2d 759, 2016 Va. App. LEXIS 42 (2016).

Appellate court did not have jurisdiction to review the trial court's award of attorney fees to appellee because the award arose out of, and was dependent on, the trial court's finding that appellee was not in contempt. Because the appellate court lacked jurisdiction to review the trial court's ruling that appellee was not in contempt, it also lacked jurisdiction to review the award of attorney fees based on that ruling. Staley v. Staley, No. 1414-17-1, 2018 Va. App. LEXIS 121 (May 1, 2018).

Applied in Nusbaum v. Berlin, 273 Va. 385 , 641 S.E.2d 494, 2007 Va. LEXIS 26 (2007); Monds v. Monds, 68 Va. App. 674, 813 S.E.2d 1, 2018 Va. App. LEXIS 124 (2018).

§ 19.2-319. When execution of sentence to be suspended; bail; appeal from denial.

If a person sentenced by a circuit court to 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. Upon review by the Court of Appeals, if the decision by the trial court to deny bail is overruled, the Court of Appeals shall either set bail or remand the matter to circuit court for such further action regarding bail as the Court of Appeals directs.

(Code 1950, § 19.1-281; 1960, c. 366; 1975, c. 495; 1979, c. 649; 1984, c. 703; 1987, c. 175; 1988, c. 524; 1999, c. 821; 2008, cc. 126, 146; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to increase or decrease in probation period and modification of conditions, see § 19.2-304 .

As to requiring restitution, etc., see §§ 19.2-305 to 19.2-305.4 .

As to revocation of suspension of sentence and probation, see § 19.2-306 .

As to eligibility for parole, see § 53.1-151 . As to commencement of term of confinement, see § 53.1-186 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendment added "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 the third paragraph.

The 2008 amendments. - The 2008 amendments by cc. 126 and 146 are identical, and in the last sentence of the final paragraph, inserted "either" and "or remand the matter . . . court directs."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and in the last paragraph, deleted "except that in any case where a person has been sentenced to death, a writ of error shall lie from the Supreme Court" from the end of the second sentence, in the third sentence, deleted "or the Supreme Court" following "Court of Appeals" and substituted "Court of Appeals" for "appellate court" twice; and made a stylistic change.

Law review. - For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Research References. - Virginia Forms (Matthew Bender). No. 9-1114. Appeal of Bond Decision.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 125; 2C M.J. Bail and Recognizance, §§ 12, 13, 15; 5B M.J. Criminal Procedure, § 85.

CASE NOTES

Applicability. - Where a trial court required a driving under the influence defendant to turn in his license to the court clerk upon his conviction, § 19.2-319 did not provide him with any relief on appeal because the revocation of a driver's license was not a punishment that could be postponed pending appeal, rather it was an act of the State under its police power to protect the public. Corbin v. Commonwealth, 44 Va. App. 196, 604 S.E.2d 111, 2004 Va. App. LEXIS 516 (2004).

Scope of section. - The statute does not purport to make the decision of the Court of Appeals final in a bail proceeding. It merely delineates the court to which an appeal is to be taken in a noncapital case as well as in a case where a death sentence has been imposed. In addition, the statute addresses only cases where bail has been refused or excessive bail required. It does not speak to the question whether the Commonwealth may appeal to the Supreme Court when the prisoner successfully has appealed to the Court of Appeals. Commonwealth v. Smith, 230 Va. 354 , 337 S.E.2d 278 (1985).

This section grants discretionary authority to the trial court to set bail pending appeal. Strohecker v. Commonwealth, 23 Va. App. 242, 475 S.E.2d 844 (1996).

Scope of relief. - This section provides for the postponement of the execution of a sentence in order to give a defendant a fair opportunity to apply for a writ of error. Here, appellant made no assertion to the trial court that he needed additional time to prepare his petition for appeal; rather, from appellant's motion it appeared that he misconstrued the statute, requesting that execution of his sentence be postponed "pending action by the Court of Appeals . . ." This section provides for no such relief. Thus, there was no prejudice to appellant by the trial court's refusal to suspend execution of this sentence. Strohecker v. Commonwealth, 23 Va. App. 242, 475 S.E.2d 844 (1996).

Trial court erred in denying defendant's motion for bail pending appeal after the trial court concluded that it lacked jurisdiction to consider the motion because defendant had already filed his notice of appeal in defendant's criminal case prior to filing the motion for bail; the trial court was either required to suspend execution of defendant's sentence upon defendant's indication that defendant would be filing a writ of error, at which point the trial court could consider whether to grant bail pursuant to § 19.2-319 , or the trial court could otherwise suspend execution of the sentence at any time during the pendency of appeal and then consider a bail request pursuant to § 19.2-322.1 . Askew v. Commonwealth, 49 Va. App. 127, 638 S.E.2d 118, 2006 Va. App. LEXIS 558 (2006).

Unlike § 19.2-120 , this section contains no general standards by which exercise of discretion to grant or deny post-conviction bail may be measured. Although post-conviction bail is generally less liberally accorded than in the pretrial stage, the statute requires the trial judge to exercise not an arbitrary discretion, but a sound judicial discretion. Dowell v. Commonwealth, 6 Va. App. 225, 367 S.E.2d 742 (1988).

Section 19.2-319 gives the court broad discretion in determining whether and under what circumstances to grant bail pending appeal; thus, the trial court erred in concluding it lacked authority to condition defendant's release on bail pending an appeal of his felony convictions on his participation in an electronic home monitoring program. Staton v. Commonwealth, No. 2055-01-4, 2001 Va. App. LEXIS 673 (Ct. of Appeals Dec. 11, 2001).

Order postponing execution of judgment of conviction only suspends execution of judgment. - The circuit judge's order postponing execution of the judgment of conviction only acts to suspend execution of the judgment; it does not vacate the judgment or affect finality of the judgement. Preston v. Commonwealth, 14 Va. App. 731, 419 S.E.2d 288 (1992).

Trial court cannot refuse to suspend judgment. - To refuse to suspend a judgment of imprisonment is a denial of the right to a writ of error conferred by statute. This the trial court has no right to do. Ramey v. Commonwealth, 145 Va. 848 , 133 S.E. 755 (1926).

But the period of suspension is within its discretion. - Under this section, the period of suspension of sentence in order to give accused time to apply for a writ of error is within the sound judicial discretion of the trial court. But this discretion cannot be exercised in such manner as to deprive one convicted of crime of a fair opportunity to apply for a writ of error. Ramey v. Commonwealth, 145 Va. 848 , 133 S.E. 755 (1926); Dodson v. Commonwealth, 185 Va. 57 , 37 S.E.2d 744 (1946).

This section grants the power of bail to the judge or the trial court to be exercised under a reasonable discretion, and unless it appear to the Supreme Court that such discretion has been abused, that court will not disturb the action of the trial court. Robinson v. Commonwealth, 190 Va. 134 , 56 S.E.2d 367 (1949).

Test for determining post-conviction bail. - The primary test for determining whether the defendant should be released following a felony conviction still requires the trial court to consider questions essential to all bail decisions - whether the defendant will appear for hearing or at such other time and place as may be directed and whether the defendant's liberty will constitute an unreasonable danger to himself and the public. Dowell v. Commonwealth, 6 Va. App. 225, 367 S.E.2d 742 (1988).

The decision to grant or deny bail should be made by the trial judge upon consideration of the evidence and the total record, including factors such as the nature and circumstance of the offense, the fact of conviction, the quantum of punishment assessed, defendant's employment status, defendant's record of escape, if any, and defendant's propensity for violence, if any. Dowell v. Commonwealth, 6 Va. App. 225, 367 S.E.2d 742 (1988).

The trial judge may find relevant the age of the defendant, his health, his ties to the community, the pendency of other charges against the defendant, and other factors relevant to whether the defendant will appear when required to do so and whether the defendant's liberty represents an unreasonable danger to himself and the public. Because each case has its own unique factors, precise rules cannot be formulated. However, whatever factors are used and considered determinative must bear upon the essential questions whether the defendant will appear at further proceedings when required to do so and whether defendant represents an unreasonable danger to himself and the public. Dowell v. Commonwealth, 6 Va. App. 225, 367 S.E.2d 742 (1988).

And need not be for any specific length of time. - The trial court need not suspend the judgment for any specific length of time, but it should, upon request, suspend it for such length of time as, under all the circumstances, will enable the accused to obtain a copy of the record and present his petition for a writ of error to one of the judges of the Supreme Court. Ramey v. Commonwealth, 145 Va. 848 , 133 S.E. 755 (1926).

Bail after conviction of felony. - While the trial court, by this section, is vested with discretion as to granting bail after conviction of a felony, it is not an arbitrary discretion but a sound judicial discretion. Judd, No. 2 v. Commonwealth, 146 Va. 276 , 135 S.E. 713 (1926).

Discretion as to bail pending appeal. - This section grants the trial court discretion in felony cases whether to admit a convicted defendant to bail pending appeal. This power to grant bail contemplates that it will be exercised with a reasonable discretion, and unless it appears to an appellate court that such discretion has been abused, the appellate court should not disturb the action of the trial court. Commonwealth v. Smith, 230 Va. 354 , 337 S.E.2d 278 (1985).

Appeal suspends execution of sentence. - Appeal of a criminal conviction does not affect the finality of the judgment, it only suspends execution of the sentence. Peterson v. Commonwealth, 225 Va. 289 , 302 S.E.2d 520, cert. denied, 464 U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 176 (1983).

Review based on trial court record. - As in any appellate proceeding, review of the trial court's decision whether to admit the defendant to bail pending appeal must be based on the record made in the trial court. The appellate court must not conduct a de novo hearing or substitute its judgment for that of the trial court. Commonwealth v. Smith, 230 Va. 354 , 337 S.E.2d 278 (1985).

Postconviction bail held properly refused. - The trial court did not abuse its discretion in refusing postconviction bail, considering the nature and circumstances of the offense, the fact of conviction, the quantum of punishment assessed, defendant's lack of employment, defendant's record of escape, and defendant's apparent propensity for violence. Commonwealth v. Smith, 230 Va. 354 , 337 S.E.2d 278 (1985).

Given the seriousness of the offense of rape and the punishment imposed, defendant, who wanted to return to Senegal, posed a danger to the community and of absconding if he remained at liberty while he appealed; thus, defendant was not entitled to a bail pending appeal. Sene v. Commonwealth,, 2009 Va. App. LEXIS 333 (July 28, 2009).

Denial of bail not based upon exercise of sound judicial discretion. - Denial of bail based upon a conclusion that, although the defendant was not such a threat, his well-being and the peace of mind of the victim were reasons not based upon an exercise of sound judicial discretion and the trial judge erred in using these criteria as bases for his consideration of this matter. Dowell v. Commonwealth, 6 Va. App. 225, 367 S.E.2d 742 (1988).

Requisites of recognizance. - A recognizance under this section must comply with §§ 19.2-135 and 19.2-136 . Cannon v. Commonwealth, 96 Va. 573 , 32 S.E. 33 (1899).

Applied in Grant v. Commonwealth, 223 Va. 680 , 292 S.E.2d 348 (1982).

CIRCUIT COURT OPINIONS

Discretion as to bail pending appeal. - As defendant had been sentenced to confinement in an adult detention center, not a state correctional facility the trial court had the discretion, but was not mandated, to postpone execution of her sentence pending appeal. Commonwealth v. Wright, 72 Va. Cir. 215, 2006 Va. Cir. LEXIS 220 (Fairfax County 2006).

Bond pending appeal. - Defendant's petition for bond pending an appeal by the Commonwealth of Virginia, after the appellate court had reversed defendant's conviction, was granted where defendant's original sentence had been suspended, in part, for any other cause pursuant to this section. Commonwealth v. Smith, 54 Va. Cir. 629, 1999 Va. Cir. LEXIS 727 (Richmond 1999).

§ 19.2-320. Petitioner for writ of error to comply with Rules of Court.

Any party for whom a writ of error lies may apply therefor by complying with the provisions of the Rules of the Supreme Court of Virginia relative to the appeal of criminal cases to the Court of Appeals, or where an appeal is taken to the Supreme Court, with the Rules of the Supreme Court relative to appeal of criminal cases to the Supreme Court.

(Code 1950, § 19.1-284; 1960, c. 366; 1975, c. 495; 1984, c. 703.)

Cross references. - As to appeal to the Supreme Court, see Rule 5:1 et seq.

As to appeal to the Court of Appeals, see Rule 5A:1 et seq.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 207.

CASE NOTES

The record must affirmatively show that all essential formalities in procedure have been complied with, and a failure to do so constitutes error on the face of the record of which advantage may be taken on a writ of error, even though objection was not made by the accused in the trial court. Spurgeon v. Commonwealth, 86 Va. 652 , 10 S.E. 979 (1890).

A writ of error will not lie where the record does not show the judgment of the trial court, but merely recites that judgment was entered. Read v. Commonwealth, 90 Va. 168 , 17 S.E. 855 (1893).

Omitted parts of record. - This section and § 8.01-673 authorize the court in any case to award certiorari by which the clerk of the court below is directed to send to the appeals court any and all parts of the record which have been omitted from the record transmitted. Washington v. Commonwealth, 216 Va. 185 , 217 S.E.2d 815 (1975).

For the requirements of a sufficient assignment of error the court must look to decisions construing and implying the statutes. Harlow v. Commonwealth, 195 Va. 269 , 77 S.E.2d 851 (1953).

§ 19.2-321. With whom petition for writ of error filed.

  1. The petition to the Court of Appeals shall be filed with the Clerk of the Court in the manner and within the time provided by law.
  2. The petition in a case wherein a writ of error lies from the Supreme Court shall be filed with the Clerk of that Court in the manner and within the time provided by law.

    (Code 1950, § 19.1-285; 1960, c. 366; 1975, c. 495; 1976, c. 615; 1984, c. 703.)

Cross references. - As to manner and time of filing petitions for appeal, see § 8.01-674 .

Law review. - For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

§ 19.2-321.1. (Effective until January 1, 2022) Motion in the Court of Appeals for delayed appeal in criminal cases.

  1. 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 circuit court or an officer or employee thereof, an appeal, in whole or in part, 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; or (iii) 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 Court of Appeals within six months after the appeal has been dismissed or denied, the conviction has been affirmed, or the circuit court judgment sought to be appealed has become final, whichever is later. Such motion shall identify the circuit court and the style, date, and circuit court record number of the judgment sought to be appealed, and, if one was assigned in a prior attempt to appeal the judgment, shall give the Court of Appeals record number 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.
  2. 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 original attempt to appeal, upon the Attorney General, in accordance with the Rules of 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 Court of Appeals shall, if the motion meets the requirements of this section, grant appellant leave to initiate or re-initiate pursuit of the appeal.
  3. 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 Court of Appeals 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.
  4. 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.

    (2005, c. 836; 2011, c. 278; 2017, cc. 77, 79.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 19.2-321.1 .

The 2011 amendments. - The 2011 amendment by c. 278, in the first sentence of subsection A, added clause (iii) and made related changes, and inserted "or denied, the conviction has been affirmed," following "after the appeal has been dismissed."

The 2017 amendments. - The 2017 amendments by cc. 77 and 79 are nearly identical, and inserted "in whole or in part" near the beginning of subsection A and twice substituted "Rules of Supreme Court" for "Rules of the Supreme Court." The section is set out in the form above at the direction of the Virginia Code Commission.

Law review. - For article, "Professional Responsibility," see 43 U. Rich. L. Rev. 255 (2008).

CASE NOTES

Relationship with Rule 5A:8. - In a case in which defendant appealed his convictions for abduction with intent to defile, rape and use of a firearm in the commission of rape, arguing that the Commonwealth's use of its peremptory strikes to strike three African-American jurors violated the Equal Protection Clause of the Fourteenth Amendment, defendant failed to comply with both Va. Sup. Ct. R. 5A:8 and § 19.2-321.1 . Defendant, who had been granted a delayed appeal, was required to file the transcripts by June 24, 2008, which was 60 days after counsel had been appointed, and he did not file the transcript of the voir dire until August 27, 2008, which was 124 days after counsel was appointed. Gilliam v. Commonwealth,, 2009 Va. App. LEXIS 450 (Oct. 6, 2009).

Applied in Whitt v. Commonwealth, No. 0885-11-3, 61 Va. App. 637, 739 S.E.2d 254, 2013 Va. App. LEXIS 100 (2013).

§ 19.2-321.1. (Effective January 1, 2022) Motion in the Court of Appeals for delayed appeal in criminal cases.

  1. 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 circuit court or an officer or employee thereof, an appeal, in whole or in part, 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; or (iii) affirmed the conviction, 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 Court of Appeals within six months after the appeal has been dismissed, the conviction has been affirmed, or the circuit court judgment sought to be appealed has become final, whichever is later. Such motion shall identify the circuit court and the style, date, and circuit court record number of the judgment sought to be appealed, and, if one was assigned in a prior attempt to appeal the judgment, shall give the Court of Appeals record number 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.
  2. Service, response, and disposition. Such motion shall be served on the attorney for the Commonwealth and the Attorney General, in accordance with the Rules of 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 Court of Appeals shall, if the motion meets the requirements of this section, grant appellant leave to initiate or re-initiate pursuit of the appeal.
  3. 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 Court of Appeals 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.
  4. 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.

    (2005, c. 836; 2011, c. 278; 2017, cc. 77, 79; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 19.2-321.1 .

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, in subsection A, substituted "affirmed the conviction" for "been denied or the conviction has been affirmed" in clause (iii) and deleted "or denied" following "has been dismissed"; and substituted "and" for "or, if a petition for appeal was granted in the original attempt to appeal, upon" preceding "the Attorney General."

§ 19.2-321.2. (Effective until January 1, 2022) Motion in the Supreme Court for delayed appeal in criminal cases.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

    (2005, c. 836; 2011, c. 278; 2017, cc. 77, 79; 2021, Sp. Sess. I, cc. 344, 345.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 19.2-321.2 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2011 amendments. - The 2011 amendment by c. 278, in the first sentence of subsection A, added clause (iii) and made related changes, and inserted "or denied, the conviction has been affirmed," following "after the appeal has been dismissed."

The 2017 amendments. - The 2017 amendments by cc. 77 and 79 are identical, and in subsection A, inserted clause (iii) and redesignated former clause (iii) as clause (iv); and twice substituted "Rules of Supreme Court" for "Rules of the Supreme Court."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "nor shall it apply in cases in which a sentence of death has been imposed" from the end of subsection D.

§ 19.2-321.2. (Effective January 1, 2022) Motion in the Supreme Court for delayed appeal in criminal cases.

  1. 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.
  2. Service, response, and disposition. Such motion shall be served on the attorney for the Commonwealth and 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.
  3. 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.
  4. 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.

    (2005, c. 836; 2011, c. 278; 2017, cc. 77, 79; 2021, Sp. Sess. I, cc. 344, 345, 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 19.2-321.2 .

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, substituted "and" for "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" preceding "the Attorney General" in subsection B.

§ 19.2-322.

Repealed by Acts 1984, c. 703.

Cross references. - As to suspension of execution of judgment on appeal, see now § 19.2-322.1 .

§ 19.2-322.1. (Effective until January 1, 2022) Suspension of execution of judgment on appeal.

Execution of a judgment from which an appeal to the Court of Appeals or the Supreme Court is sought may be suspended during an appeal provided the appeal is timely prosecuted and an appeal bond is filed as provided in § 8.01-676.1 .

(1984, c. 703.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 19.2-322.1 .

Law review. - For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

CASE NOTES

Scope of relief. - Trial court erred in denying defendant's motion for bail pending appeal after the trial court concluded that it lacked jurisdiction to consider the motion because defendant had already filed his notice of appeal in defendant's criminal case prior to filing the motion for bail; the trial court was either required to suspend execution of defendant's sentence upon defendant's indication that defendant would be filing a writ of error, at which point the trial court could consider whether to grant bail pursuant to § 19.2-319 , or the trial court could otherwise suspend execution of the sentence at any time during the pendency of appeal and then consider a bail request pursuant to § 19.2-322.1 . Askew v. Commonwealth, 49 Va. App. 127, 638 S.E.2d 118, 2006 Va. App. LEXIS 558 (2006).

§ 19.2-322.1. (Effective January 1, 2022) Suspension of execution of judgment on appeal.

Execution of a judgment from which an appeal to the Court of Appeals or the Supreme Court is sought may be suspended during an appeal provided the appeal is timely prosecuted.

(1984, c. 703; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 19.2-322.1 .

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, deleted "and an appeal bond is filed as provided in § 8.01-676.1 " at the end.

§ 19.2-323. Denial by judge or justice no bar to allowance by Court.

The denial of a writ of error by a judge or justice of an appellate court, in the vacation of that court, shall not prevent the allowance of the writ by the Court, if by it deemed proper, on presentation of the petition to that Court at its next term.

(Code 1950, § 19.1-287; 1960, c. 366; 1975, c. 495; 1976, c. 615; 1984, c. 703.)

§ 19.2-324. Decision of appellate court.

The court from which a writ of error lies shall affirm the judgment, if there be no error therein, and reverse the same in whole or in part, if erroneous, and enter such judgment as the court whose error is sought to be corrected ought to have entered; or remand the cause and direct a new trial; affirming in those cases where the voices on both sides are equal.

(Code 1950, § 19.1-288; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 313, 328; 5B M.J. Criminal Procedure, §§ 53, 69.

CASE NOTES

Practice controlled by this section. - Section 8-352 (now § 8.01-430 ), with reference to the order to be entered by a trial court upon setting aside a verdict, and § 8-493 (now § 8.01-681 ), in reference to the order of reversal to be entered in the Supreme Court, do not apply to criminal cases. As to such cases the practice remains unchanged and is controlled by this section. Henderson v. Commonwealth, 130 Va. 761 , 107 S.E. 700 (1921).

Reversal of judgment. - Where the presentment does not charge the offense, the appellate court will reverse the judgment against the accused, though no motion in arrest of judgment was made in the court below. Old v. Commonwealth, 59 Va. (18 Gratt.) 915 (1867).

Where act charged not criminal. - Where in a criminal case the Supreme Court reverses a judgment overruling a demurrer to the indictment on the ground that the act charged in the indictment did not constitute a crime, it may enter the order which the lower court ought to have entered, sustaining the demurrer and discharging the prisoner from further detention or prosecution under the indictment. Wise v. Commonwealth, 135 Va. 757 , 115 S.E. 508 (1923).

Affirmance where no error in judgment. - A case was submitted to the Supreme Court upon a verdict of guilty of a violation of the Sunday law, accompanied by a certificate of facts. From these facts reasonably fair-minded men might draw different conclusions as to whether the work done was one of necessity. The court was not able to say that the verdict, approved by the trial court, was erroneous, and affirmed the judgment. Pirkey Bros. v. Commonwealth, 134 Va. 713 , 114 S.E. 764 (1922).

Or court equally divided. - A point in a cause, in which the judges of the Supreme Court are equally divided, stands affirmed by virtue of this section, as well where it is a ruling of the court below in the progress of the cause, as where it is the final judgment of the court in the case. This decision is final and irreversible, and cannot be changed upon a second appeal in the cause. Chahoon v. Commonwealth, 62 Va. (21 Gratt.) 822 (1871).

Remand for variance between verdict and judgment. - On a trial for a felony, for which the shortest term of imprisonment was five years, the jury found the prisoner guilty, and fixed the term of his imprisonment in the state correctional facility at three years. Upon a writ of error, on the application of the prisoner, the judgment was reversed and the prisoner remanded for another trial. Jones v. Commonwealth, 61 Va. (20 Gratt.) 848 (1871). For other cases where there was a variance between verdict and judgment, see Brooks v. Commonwealth, 31 Va. (4 Leigh) 669 (1833); Sykes v. Moran, 31 O.I.C. 224 (1949); Mason v. Fairfax County Fire & Rescue Services, 60 O.I.C. 298 (1981); Smith v. Imperial Woven Label Co., 51 O.I.C. 255 (1969).

§ 19.2-324.1. Erroneously admitted evidence; appeal.

In appeals to the Court of Appeals or the Supreme Court, when a challenge to a conviction rests on a claim that the evidence was insufficient because the trial court improperly admitted evidence, the reviewing court shall consider all evidence admitted at trial to determine whether there is sufficient evidence to sustain the conviction. If the reviewing court determines that evidence was erroneously admitted and that such error was not harmless, the case shall be remanded for a new trial if the Commonwealth elects to have a new trial.

(2013, c. 675.)

Law review. - For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

CASE NOTES

Necessity of new trial because of evidentiary error. - Reversal and remand for a new trial was necessary, as to the criminal charges against defendant, which were affected by the testimony of a witness, because the trial court erred in admitting hearsay testimony by the witness as to the cost of repairs for damage to a burglarized property and the admission of the testimony was not harmless error. Gilliam v. Commonwealth,, 2014 Va. App. LEXIS 231 (May 27, 2014).

Statement made before defendant was charged is admissible. - Trial court did not err in admitting into evidence defendant's statement that he flipped his vehicle because the statement was voluntary as it was not responsive to any question propounded by the State trooper, and its admissibility was not barred by the Fifth Amendment; the trooper was reading the informed consent form, as he was required by law to do, when defendant blurted out the statement. Wilson v. Commonwealth,, 2015 Va. App. LEXIS 308 (Nov. 3, 2015).

Trial court did not err in admitting into evidence defendant's statement that he flipped his vehicle because admission of the statement did not violate defendant's right to counsel under the Sixth Amendment; adversarial judicial proceedings had not begun, and the conversation between defendant and a State trooper took place at a time when defendant had not been charged and was not being confronted by the procedural intricacies or expert adversaries of the judicial process. Wilson v. Commonwealth,, 2015 Va. App. LEXIS 308 (Nov. 3, 2015).

Exclusion of evidence held harmless error. - Circuit court's error in excluding defendant's statement to the victim was not harmless because by refusing to admit the proffered testimony, the circuit court effectively prevented defendant from offering relevant and admissible evidence in support of his defense that he lacked the criminal intent alleged by the Commonwealth. Bethel v. Commonwealth, No. 1095-16-1, 2017 Va. App. LEXIS 120 (May 2, 2017).

Evidence held sufficient. - Evidence was sufficient to convict defendant of two counts of carnal knowledge and two counts of indecent liberties because, notwithstanding any impeachment, the trial court accepted the 14-year-old victim's testimony of a sexual relationship between herself and defendant; the victim's testimony was supported by her pregnancy and subsequent abortion; the stepfather's and girlfriend's statements were admissible under the recent complaint exception to the hearsay rule as they were utilized to corroborate the victim's independent testimony; and defendant's statements regarding the victim's pregnancy and abortion constituted a waiver of his assertion that the Commonwealth's testimony on those issues was inadmissible. Pickett v. Commonwealth, No. 1320-14-2, 2015 Va. App. LEXIS 219 (July 21, 2015).

Evidence was sufficient to support the circuit court's finding that defendant maliciously wounded the victim and used a firearm to commit that malicious wounding because the circuit court explicitly weighed a number of factors in making its credibility determination; the fact that the victim used crack cocaine and consumed alcohol sometime before the shooting did not render his testimony inadmissible but were relevant factors for the circuit court to weigh in assigning credibility. McClain v. Commonwealth, No. 1838-16-2, 2017 Va. App. LEXIS 259 (Oct. 17, 2017).

Sufficient evidence supported defendant's conviction under § 18.2-248 given his statements to the police, a detective's testimony that he had observed the interaction between defendant and a driver of the SUV, illegal narcotics were subsequently found in the driver's SUV, and residue on a scale was confirmed to be cocaine upon forensic analysis. Arencibia v. Commonwealth, No. 0427-20-2, 2020 Va. App. LEXIS 313 (Dec. 22, 2020).

Evidence held insufficient. - Circuit court was plainly wrong in finding there was sufficient evidence to convict defendant of petit larceny because the Commonwealth failed to prove that the video an officer viewed was of the incident and that there was a willful concealment of merchandise by defendant that was done with the intent to convert the merchandise; the circuit court had to make a number of inferences because no evidence was provided actually establishing that the items concealed were merchandise or goods. Wright v. Commonwealth, No. 1373-17-3, 2018 Va. App. LEXIS 293 (Oct. 30, 2018).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality. - Acts 2013, c. 675, as codified in § 19.2-324.1 , is constitutional; the enactment does not infringe upon any protection afforded by either the Fifth Amendment to the U.S. Constitution or Article I, § 8, of the Constitution of Virginia. The Constitution of Virginia expressly permits the General Assembly to legislate on matters of procedural as well as substantive law; therefore, no amendment to the Constitution of Virginia was necessary for this enactment to take effect on July 1, 2013. See opinion of Attorney General to the Honorable Scott A. Surovell, Member, House of Delegates, 13-027, 2013 Va. AG LEXIS 73 (8/23/13).

§ 19.2-325. Provisions which apply to criminal as well as civil cases; when plaintiff in error unable to pay printing costs.

Sections 8.01-675.1 , 8.01-675.2 , 8.01-675.3 , 8.01-684 and 17.1-328 shall apply as well to criminal cases as to civil cases. In a felony case in the Court of Appeals or the Supreme Court, if the plaintiff in error files with the Clerk of the Court an affidavit that he is unable to pay or secure to be paid the costs of printing the record in the case, together with a certificate of the judge of the trial court to the effect that he has investigated the matter and is of opinion that the plaintiff in error is unable to pay, or secure to be paid, such costs, the printing shall be done as if the costs had been paid and the clerk shall not be required to account for and pay the same into the state treasury. However, if the costs are not paid or secured to be paid and upon the hearing of the case the judgment of the court below is wholly affirmed by the Court of Appeals and no appeal granted by the Supreme Court, or wholly affirmed by the Supreme Court where appeal is granted, the Court in affirming the judgment shall also give judgment in behalf of the Commonwealth against the plaintiff in error for the amount of the costs to be taxed by its clerk.

(Code 1950, § 19.1-289; 1960, c. 366; 1975, c. 495; 1984, c. 703.)

Cross references. - For rule of decision in Supreme Court, see § 8.01-680 .

As to fees charged by clerk of Supreme Court, see § 17.1-328 .

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 208; 5B M.J. Criminal Procedure, § 99.

CASE NOTES

Statutory construction. - Once defendant indicated defendant's intention to apply for a writ of error, which he was required to do within 30 days of defendant's conviction becoming final pursuant to § 19.2-325 and Va. Sup. Ct. R. 5A:6(a), defendant's sentence could be suspended pursuant to § 19.2-319 and, thus, the trial court erred in concluding that it was divested of jurisdiction to consider defendant's motion for bail because defendant had already filed defendant's notice of appeal in defendant's criminal case. Askew v. Commonwealth, 49 Va. App. 127, 638 S.E.2d 118, 2006 Va. App. LEXIS 558 (2006).

§ 19.2-326. Payment of expenses of appeals of indigent defendants.

In any felony or misdemeanor case wherein the judge of the circuit court, from the affidavit of the defendant or any other evidence certifies that the defendant is financially unable to pay his attorneys' fees, costs and expenses incident to an appeal, the court to which an appeal is taken shall order the payment of such attorneys' fees in an amount not less than $300, costs or necessary expenses of such attorneys in an amount deemed reasonable by the court, by the Commonwealth out of the appropriation for criminal charges. If the conviction is upheld on appeal, the attorney's fees, costs and necessary expenses of such attorney paid by the Commonwealth under the provisions hereof shall be assessed against the defendant.

(Code 1950, § 17-30.2; 1962, c. 419; 1964, c. 651; 1975, c. 495; 1980, c. 626; 1984, c. 703.)

Editor's note. - Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 39 B, effective for the biennium ending June 30, 2022, provides: "Notwithstanding the provisions of § 19.2-326 , Code of Virginia, the amount of attorney's fees allowed counsel for indigent defendants in appeals to the Supreme Court shall be in the discretion of the Supreme Court."

Law review. - For note on the indigent in Virginia, see 51 Va. L. Rev. 163 (1965).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 204; 5B M.J. Criminal Procedure, §§ 41, 99.

CASE NOTES

Right to counsel at both appellate levels. - Section 19.2-157 , when considered with this section, provides an indigent with a statutory right to court-appointed counsel at both appellate levels. Dodson v. Director of Dep't of Cors., 233 Va. 303 , 355 S.E.2d 573 (1987).

§ 19.2-327. How judgment of appellate court certified and entered.

The judgment of the Court of Appeals or of the Supreme Court shall be certified to the court to whose judgment the writ of error was allowed. The court or the clerk thereof shall cause the same to be entered on its order book as its own judgment.

(Code 1950, § 19.1-290; 1960, c. 366; 1975, c. 495; 1984, c. 703.)

Law review. - For essay, "The Court of Appeals of Virginia Celebrates Thirty Years of Service to the Commonwealth," see 50 U. Rich. L. Rev. 217 (2015).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 11.5.

CASE NOTES

This section is substantially complied with by simply transcribing the judgment of the Supreme Court on the order book of the trial court. Reed v. Commonwealth, 98 Va. 817 , 36 S.E. 399 (1900).

§ 19.2-327.01.

Repealed by Acts 2004, c. 337.

Editor's note. - Acts 2003, c. 1017, which enacted this section provided: "That the provisions of this act shall become effective on July 1, 2004." Acts 2004, c. 337, repealed Acts 2003, c. 1017, effective July 1, 2004. Thus, this section never became effective.

Chapter 19.1. Scientific Analysis of Newly Discovered or Untested Scientific Evidence.

Sec.

§ 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.

  1. 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; (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 generally accepted within the relevant scientific community; 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.
  2. 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.
  3. 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.
  4. 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.
  5. The court shall order the tests to be performed by:
    1. A laboratory mutually selected by the Commonwealth and the applicant; or
    2. A laboratory selected by the court that ordered the testing if the Commonwealth and the applicant are unable to agree on a laboratory.

      If the testing is conducted by the Department of Forensic Science, the court shall 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 results of any tests performed and any hearings held pursuant to this section shall become a part of the record.

      If the testing is not conducted by the Department of Forensic Science, it shall be conducted by a laboratory that is accredited by an accrediting body that requires conformance to forensic-specific requirements and that is a signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement with a scope of accreditation that covers the testing being performed and follows the appropriate Quality Assurance Standards issued by the Federal Bureau of Investigation.

  6. 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.
  7. 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. (2001, cc. 873, 874; 2005, cc. 868, 881; 2013, c. 170; 2020, c. 1282; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to Supreme Court of Virginia rules governing petitions for writ of actual innocence, see Rule 5:7B, Rules of the Virginia Supreme Court.

Editor's note. - Acts 2001, cc. 873 and 874, cl. 3, provide: "That an emergency exists and the provisions of this act, except for the provisions of Chapter 19.2, consisting of sections 19.2-327.2 through 19.2-327.6 , are in force from its passage [May 2, 2001]."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "Department" for "Division" three times in subsection A, once in subsection D, and three times in subsection E; and made minor stylistic changes.

The 2013 amendments. - The 2013 amendment by c. 170, in subsection A, inserted "or any person who was adjudicated delinquent by a circuit court of an offense that would be a felony if committed by an adult," "or the adjudication of delinquency," and "or adjudication of delinquency" in three places, and substituted "actual innocence of the convicted person or the person adjudicated delinquent" for "convicted person's actual innocence," and "person convicted or adjudicated delinquent" for "convicted person"; in the first sentence of subsection B, inserted "or adjudicated delinquent" in clauses (i) and (iii), and "or adjudication of delinquency" in clause (ii), and inserted "and" following "petitions" in the last sentence; substituted "clause (iii) or (iv) of § 53.1-232.1" for " § 53.1-232.1 (iii) or (iv)" in subsection F; and in subsection H, substituted "petitioner" for "defendant" and deleted "of this title" at the end.

The 2020 amendments. - The 2020 amendment by c. 1282, in subsection A, deleted "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" at the end of clause (i), substituted "generally accepted within the relevant scientific community" for "employed by the Department of Forensic Science" at the end of clause (iv), and deleted "at the Department of Forensic Science" at the end of clause (v); in subsection D, deleted "by the Department of Forensic Science based on a finding of clear and convincing evidence that the requirements of subsection A have been met" at the end; in subsection E, inserted subdivisions 1 and 2, inserted "If the testing is conducted by," substituted "the court shall" for "and" and added the last paragraph; and made a stylistic change.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted the former last sentence in subsection C, which read: "Motions made by a petitioner under a sentence of death shall be given priority on the docket"; deleted the former third sentence in the second paragraph of subdivision E 2, which read: "The Department of Forensic Science shall give testing priority to cases in which a sentence of death has been imposed"; deleted former subsection F, which read: "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," and redesignated the remaining subsections accordingly.

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For note, "How Wide Should the Actual Innocence Gateway Be? An Attempt to Clarify the Miscarriage of Justice Exception for Federal Habeas Corpus Proceedings," see 50 Wm. and Mary L. Rev. 669 (2008).

Michie's Jurisprudence. - For related discussion, see 9A M.J. Habeas Corpus, § 15.

CASE NOTES

Jurisdiction to hear appeals. - State supreme court held that it did not have jurisdiction to hear appeals from proceedings that were conducted in the circuit courts, pursuant to § 19.2-327.1 , either on direct appeal or when the person seeking review filed a petition for a writ of habeas corpus, and it dismissed an inmate's petition for a writ of habeas corpus challenging a certificate of analysis and related test results that the Virginia Division of Forensic Science [now the Department of Forensic Science] filed in the circuit court. Harvey v. Warden of the Coffeewood Corr. Ctr., 268 Va. 5 , 597 S.E.2d 58, 2004 Va. LEXIS 82 (2004).

Proving actual innocence. - Because an inmate's discovery that no Physical Evidence Recovery Kit was performed upon a victim by a forensic nurse and that vaginal swabs had been destroyed did not constitute evidence proving his innocence, a court summarily dismissed defendant's petition for a writ of actual innocence under § 19.2-327.1 . In re Pierce, 44 Va. App. 611, 606 S.E.2d 536, 2004 Va. App. LEXIS 633 (2004).

In a capital murder case, a habeas petitioner's assertions of actual innocence were governed by §§ 19.2-327.1 to 19.2-327.6 , 19.2-327.10 to 19.2-327.14 , and were outside the scope of habeas corpus review. Juniper v. Warden of the Sussex I State Prison, 281 Va. 277 , 707 S.E.2d 290, 2011 Va. LEXIS 61, cert. denied, 132 S. Ct. 822, 2011 U.S. LEXIS 8795, 181 L. Ed. 2d 532 (U.S. 2011).

Defendant was not entitled to a writ of actual innocence because defendant did not shoulder the burden of proving that the evidence submitted in the writ proceeding - DNA test results from a private laboratory, the factual proffers in defendant's petition, the post-trial evidence presented in the Commonwealth of Virginia's response, and the evidence presented at the original trial - provided, in the aggregate, clear-and-convincing proof that no rational trier of fact would have found proof of guilt beyond a reasonable doubt. In re Brown, 295 Va. 202 , 810 S.E.2d 444, 2018 Va. LEXIS 26 (2018).

Defendant was not entitled to a writ of actual innocence because a rational, properly instructed jury would have considered the demonstrably false assertions that defendant did not learn of the evidence upon which he relied in the petition until after trial in assessing the credibility of defendant's claim of innocence and would weigh them against defendant. Knight v. Commonwealth, 71 Va. App. 492, 837 S.E.2d 106, 2020 Va. App. LEXIS 10 (2020).

No bad faith in destruction of trial exhibits. - Petition for a writ of habeas corpus was dismissed because the chief court clerk, who obtained an order to destroy the trial exhibits in the defendant's case after the defendant's conviction was affirmed by the Supreme Court of Virginia in order to create storage space, did not act in bad faith in destroying the evidence, was not aware that the new statute had gone into effect, and was not aware that potentially exculpatory DNA evidence was destroyed in the destruction of the exhibits. Lovitt v. Warden, 266 Va. 216 , 585 S.E.2d 801, 2003 Va. LEXIS 81 (2003), cert. denied, 541 U.S. 1006, 124 S. Ct. 2018, 158 L. Ed. 2d 523 (2004); habeas corpus dismissed, stay vacated sub nom. Lovitt v. True, 330 F. Supp. 2d 603 (E.D. Va. 2004).

Expert witness testimony. - Non-Virginia Department of Forensic Science experts are not prohibited from analyzing and interpreting the DNA test results certified by the Department of Forensic Science. In re Scott, 297 Va. 166 , 824 S.E.2d 1, 2019 Va. LEXIS 19 (Mar. 7, 2019).

CIRCUIT COURT OPINIONS

Denial of motion. - Defendant's motion was denied because it was not properly before the court as it was not filed by his counsel; furthermore, the defendant was unable to produce any facts to even suggest that any evidence was still extant, and the Commonwealth represented that the evidence sought by the defendant was no longer in its custody or control. Commonwealth v. McClelland, 60 Va. Cir. 436, 2003 Va. Cir. LEXIS 64 (Richmond 2003).

Request denied where results of new testing would not change outcome. - Defendant's request, after his conviction for statutory burglary and attempted grand larceny, for new scientific testing of hair samples found at the scene of the crime, pursuant to § 19.2-327.1 , was denied where the results thereof would not have resulted in a changed outcome because the trial court had given no weight to the prior analysis of such hair fragments and there was sufficient other evidence to support the conviction; however, the court granted defendant's motion to store, preserve, and retain his human biological evidence for a period of 15 years pursuant to § 19.2-270.4:1 . Neal v. Commonwealth's Atty. of Roanoke City, 60 Va. Cir. 440, 2002 Va. Cir. LEXIS 305 (Roanoke 2002).

Relief denied where no proof of actual innocence. - Because no relief is provided if the results of the new scientific testing are potentially helpful to defendant, but do not tend to prove his actual innocence, and because there was no usable DNA or fingerprint evidence on the knife, defendant's motion to set aside the verdict and dismiss the case or order a new trial was denied. Commonwealth v. Hasan,, 2013 Va. Cir. LEXIS 82 (Fairfax County Aug. 1, 2013).

Chapter 19.2. Issuance of Writ of Actual Innocence.

Sec.

Research References. - Virginia Forms (Matthew Bender). No. 9-3017. Petition for Writ of Actual Innocence - Instructions, et seq.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 11.5, 15, 129.

§ 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 or who was adjudicated delinquent by a circuit court of an offense that would be a felony if committed by an adult, 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.

(2001, cc. 873, 874; 2009, cc. 139, 320; 2013, c. 170; 2020, cc. 993, 994.)

Cross references. - As to punishment for felonies, see § 18.2-10 .

As to Supreme Court of Virginia rules governing petitions for writ of actual innocence, see Rule 5:7B, Rules of the Virginia Supreme Court.

As to Court of Appeals rules governing petitions for writ of actual innocence, see Rule 5A:5(b), Rules of the Virginia Supreme Court.

Editor's note. - Acts 2001, cc. 873 and 874, cl. 2, provide: "That the provisions of Chapter 19.2 of Title 19.2, consisting of sections 19.2-327.2 through 19.2-327.6 , of this act shall become effective on November 15, 2002."

The 2009 amendments. - The 2009 amendments by cc. 139 and 320 are identical, and deleted "incarcerated" following "petition of a person."

The 2013 amendments. - The 2013 amendment by c. 170, in the first sentence, inserted "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" and "or adjudicated delinquent"; and inserted "or adjudication of delinquency" in the last sentence.

The 2020 amendments. - The 2020 amendments by cc. 993 and 994 are identical, and in the first sentence, substituted "or who was adjudicated delinquent" for "upon a plea of not guilty or who was adjudicated delinquent upon a plea of not guilty" and deleted "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" preceding "the Supreme Court."

Law review. - For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

For survey, "Innocent Suffering: The Unavailability of Post-Conviction Relief in Virginia Courts," see 51 U. Rich. L. Rev. 299 (2016).

CASE NOTES

Petition for writ of actual innocence granted. - Defendant, who had pleaded guilty, proved by clear and convincing evidence that no rational trier of fact would have found defendant guilty beyond a reasonable doubt because, considering the new DNA evidence and testimony of witnesses, it was highly unlikely that any rational factfinder would have found defendant guilty beyond a reasonable doubt of the rape of the victim. The Commonwealth of Virginia could not establish that defendant was at a vacant house on the day of the crime, or that defendant was one of the perpetrators of the crime. In re Watford, 295 Va. 114 , 809 S.E.2d 651, 2018 Va. LEXIS 11 (2018).

Insufficient evidence of actual innocence. - Defendant was not entitled to a writ of actual innocence because defendant did not shoulder the burden of proving that the evidence submitted in the writ proceeding - DNA test results from a private laboratory, the factual proffers in defendant's petition, the post-trial evidence presented in the Commonwealth of Virginia's response, and the evidence presented at the original trial - provided, in the aggregate, clear-and-convincing proof that no rational trier of fact would have found proof of guilt beyond a reasonable doubt. In re Brown, 295 Va. 202 , 810 S.E.2d 444, 2018 Va. LEXIS 26 (2018).

Applied in Lovitt v. Warden, 266 Va. 216 , 585 S.E.2d 801, 2003 Va. LEXIS 81 (2003); In re Scott, 297 Va. 166 , 824 S.E.2d 1, 2019 Va. LEXIS 19 (Mar. 7, 2019).

§ 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 .

(2015, c. 66; 2020, cc. 993, 994.)

The 2020 amendments. - The 2020 amendments by cc. 993 and 994 are identical, and inserted "or adjudication of delinquency" in the first sentence.

§ 19.2-327.3. Contents and form of the petition based on previously unknown or untested human biological evidence of actual innocence.

  1. 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; (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.
  2. 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 .
  3. 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.
  4. 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.
  5. 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. (2001, cc. 873, 874; 2003, c. 131; 2005, cc. 868, 881; 2009, cc. 139, 320; 2013, cc. 170, 180; 2020, cc. 993, 994; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to punishment for felonies, see § 18.2-10 .

As to Supreme Court of Virginia rules governing petitions for writ of actual innocence, see Rule 5:7B, Rules of the Virginia Supreme Court.

Editor's note. - Acts 2001, cc. 873 and 874, cl. 2, provide: "That the provisions of Chapter 19.2 of Title 19.2, consisting of sections 19.2-327.2 through 19.2-327.6 , of this act shall become effective on November 15, 2002."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2003 amendments. - The 2003 amendment by c. 131 substituted "60" for "sixty" in clause (vi) of the first sentence of subsection A; and in subsection C, substituted "in the form of a verification" for "verifying," inserted "or an acceptance of service signed by these officials, or any combination thereof," substituted "30" for "thirty," and inserted "by the clerk of the Supreme Court."

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "9.1-1104" for "9.1-121" at the end of the first sentence of subsection A.

The 2009 amendments. - The 2009 amendments by cc. 139 and 320 are identical, and in the first sentence of subsection A, deleted former clause (vii), which read: "that the petitioner is currently incarcerated" and redesignated former clauses (viii) and (ix) as clauses (vii) and (viii).

The 2013 amendments. - The 2013 amendment by c. 170, in clause (i) of the first sentence in subsection A, inserted "or the offense for which the petitioner was adjudicated delinquent" and "or adjudication of delinquency," redesignated subclauses (1) through (3) as subclauses (a) through (c), inserted "or adjudicated delinquent" at the end of clause (ii), "or adjudication of delinquency" in clauses (iv) and (viii), and "or delinquency" in clause (vii), and substituted "clause (iii) or (iv) of § 53.1-232.1" for " § 53.1-232.1 (iii) or (iv)" at the end in the last sentence; inserted "and" following "petition" in the first sentence of subsection B; in subsection C, inserted "or adjudication of delinquency" in the first sentence and substituted "guilt or delinquency of the petitioner" for "guilt of the defendant" in the last sentence; and in subsection E, substituted "petitioner" for "defendant" and deleted "of this title" at the end.

The 2013 amendment by c. 180, in the first sentence of subsection A, redesignated subclauses (1) through (3) as subclauses (a) through (c) in clause (i) and substituted "would have found proof" for "could have found proof" in clause (vii) and "clause (iii) or (iv) of § 53.1-232.1" for " § 53.1-232.1 (iii) or (iv)" in the last sentence; inserted "or innocence" following "guilt" in the last sentence of subsection C; deleted "of this title" at the end of subsection E; and made a minor stylistic change.

The 2020 amendments. - The 2020 amendments by cc. 993 and 994 are identical, and deleted "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" at the end in subsection A, first sentence, clause (i).

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted the former last sentence in subsection A, which read: "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."

Law review. - For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

CASE NOTES

Legislative intent. - General Assembly intended that a petition for a writ of actual innocence be deemed a proceeding that is criminal in nature, as opposed to one that is civil. In re Phillips, 296 Va. 433 , 822 S.E.2d 1, 2018 Va. LEXIS 182 (2018).

Results of tests conducted by private laboratory. - Prisoner's petition for a writ of actual innocence relied on the results of tests conducted by a private laboratory, upon which the Supreme Court had no authority to issue a writ of actual innocence. Consequently, the prisoner's petition was subject to dismissal for failure to state a claim. In re Phillips, 296 Va. 433 , 822 S.E.2d 1, 2018 Va. LEXIS 182 (2018).

Petition for writ of actual innocence granted. - Defendant, who had pleaded guilty, proved by clear and convincing evidence that no rational trier of fact would have found defendant guilty beyond a reasonable doubt because, considering the new DNA evidence and testimony of witnesses, it was highly unlikely that any rational factfinder would have found defendant guilty beyond a reasonable doubt of the rape of the victim. The Commonwealth of Virginia could not establish that defendant was at a vacant house on the day of the crime, or that defendant was one of the perpetrators of the crime. In re Watford, 295 Va. 114 , 809 S.E.2d 651, 2018 Va. LEXIS 11 (2018).

Defendant was entitled to a writ of actual innocence because defendant proved, by clear and convincing evidence, all of the allegations required, and no rational trier of fact would have found defendant guilty beyond a reasonable doubt, despite the victim's eyewitness identification of defendant, as the victim was attacked by a single perpetrator and defendant scientifically proved by DNA analysis that defendant was not the source of the sperm found on the rape victim's jeans or the male DNA found on a vaginal swab obtained from the victim. In re Scott, 297 Va. 166 , 824 S.E.2d 1, 2019 Va. LEXIS 19 (Mar. 7, 2019).

Insufficient evidence of actual innocence. - Defendant was not entitled to a writ of actual innocence because defendant did not shoulder the burden of proving that the evidence submitted in the writ proceeding - DNA test results from a private laboratory, the factual proffers in defendant's petition, the post-trial evidence presented in the Commonwealth of Virginia's response, and the evidence presented at the original trial - provided, in the aggregate, clear-and-convincing proof that no rational trier of fact would have found proof of guilt beyond a reasonable doubt. In re Brown, 295 Va. 202 , 810 S.E.2d 444, 2018 Va. LEXIS 26 (2018).

CIRCUIT COURT OPINIONS

Relief denied where no proof of actual innocence. - Because no relief is provided if the results of the new scientific testing are potentially helpful to defendant, but do not tend to prove his actual innocence, and because there was no usable DNA or fingerprint evidence on the knife, defendant's motion to set aside the verdict and dismiss the case or order a new trial was denied. Commonwealth v. Hasan,, 2013 Va. Cir. LEXIS 82 (Fairfax County Aug. 1, 2013).

§ 19.2-327.4. Determination by the Supreme Court for findings of fact by the circuit court.

If the Supreme 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 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. 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.

(2001, cc. 873, 874; 2005, cc. 868, 881.)

Editor's note. - Acts 2001, cc. 873 and 874, cl. 2, provide: "That the provisions of Chapter 19.2 of Title 19.2, consisting of sections 19.2-327.2 through 19.2-327.6 , of this act shall become effective on November 15, 2002."

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "9.1-1104" for "9.1-121"; and made minor stylistic changes.

Law review. - For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

CASE NOTES

Petition for writ of actual innocence granted. - Defendant, who had pleaded guilty, proved by clear and convincing evidence that no rational trier of fact would have found defendant guilty beyond a reasonable doubt because, considering the new DNA evidence and testimony of witnesses, it was highly unlikely that any rational factfinder would have found defendant guilty beyond a reasonable doubt of the rape of the victim. The Commonwealth of Virginia could not establish that defendant was at a vacant house on the day of the crime, or that defendant was one of the perpetrators of the crime. In re Watford, 295 Va. 114 , 809 S.E.2d 651, 2018 Va. LEXIS 11 (2018).

Necessity of remand. - When defendant and the Commonwealth of Virginia proffered extensive post-trial evidence in the writ proceeding, and neither party objected to the court's consideration of any of the proffers, the Supreme Court of Virginia, because resolution of the case did not require further development of the facts, declined to enter a remand order. In re Brown, 295 Va. 202 , 810 S.E.2d 444, 2018 Va. LEXIS 26 (2018).

§ 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 the circuit court pursuant to § 19.2-327.4 , the Supreme 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 shall (i) dismiss the petition for failure to establish allegations sufficient to justify the issuance of the writ or (ii) only upon a finding by a preponderance of the 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 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 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 shall modify the conviction or adjudication of delinquency accordingly and remand the case to the circuit court 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 an order of expungement shall be immediately granted.

(2001, cc. 873, 874; 2007, cc. 465, 824, 883, 905; 2009, cc. 139, 320; 2013, cc. 170, 180; 2020, cc. 993, 994.)

Editor's note. - Acts 2001, cc. 873 and 874, cl. 2, provide: "That the provisions of Chapter 19.2 of Title 19.2, consisting of sections 19.2-327.2 through 19.2-327.6 , of this act shall become effective on November 15, 2002."

The 2007 amendments. - The 2007 amendments by cc. 465, 824, 883, and 905 are identical, and added the last sentence.

The 2009 amendments. - The 2009 amendments by cc. 139 and 320 are identical, and substituted "clauses (iv) through (viii)" for "clauses (iv) through (ix)" in clause (ii) of the first sentence.

The 2013 amendments. - The 2013 amendment by c. 170 inserted "or delinquency," "or adjudication of delinquency" in three places, "or adjudicated delinquent," and "or delinquent" in two places.

The 2013 amendment by c. 180, in the first sentence, inserted "Supreme" preceding "Court" near the beginning, substituted "would have found proof" for "could have found proof" and "would have found sufficient evidence" for "could have found sufficient evidence" and made minor stylistic changes.

The 2020 amendments. - The 2020 amendments by cc. 993 and 994 are identical, and substituted "by a preponderance of the" for "of clear and convincing" in the first sentence in clause (ii).

Law review. - For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

CASE NOTES

Results of tests conducted by private laboratory. - Prisoner's petition for a writ of actual innocence relied on the results of tests conducted by a private laboratory, upon which the Supreme Court had no authority to issue a writ of actual innocence. Consequently, the prisoner's petition was subject to dismissal for failure to state a claim. In re Phillips, 296 Va. 433 , 822 S.E.2d 1, 2018 Va. LEXIS 182 (2018).

Petition for writ of actual innocence granted. - Defendant, who had pleaded guilty, proved by clear and convincing evidence that no rational trier of fact would have found defendant guilty beyond a reasonable doubt because, considering the new DNA evidence and testimony of witnesses, it was highly unlikely that any rational factfinder would have found defendant guilty beyond a reasonable doubt of the rape of the victim. The Commonwealth of Virginia could not establish that defendant was at a vacant house on the day of the crime, or that defendant was one of the perpetrators of the crime. In re Watford, 295 Va. 114 , 809 S.E.2d 651, 2018 Va. LEXIS 11 (2018).

Defendant was entitled to a writ of actual innocence because defendant showed by clear and convincing evidence that (1) another's confession to the crimes made years after defendant was convicted was unknown to defendant and counsel when the convictions became final, as the confession did not exist, (2) the evidence could not have been discovered before the convictions became final, (3) the evidence was material, as the nature of the evidence as an unprompted confession to the crimes supported finding the evidence was true, and the confession established a high probability of defendant's acquittal, so no rational trier of fact would have found defendant guilty, and (4) the newly-discovered evidence was not merely cumulative, corroborative or collateral. Bush v. Commonwealth, 68 Va. App. 797, 813 S.E.2d 582, 2018 Va. App. LEXIS 139 (2018).

Defendant was entitled to a writ of actual innocence because defendant proved, by clear and convincing evidence, all of the allegations required, and no rational trier of fact would have found defendant guilty beyond a reasonable doubt, despite the victim's eyewitness identification of defendant, as the victim was attacked by a single perpetrator and defendant scientifically proved by DNA analysis that defendant was not the source of the sperm found on the rape victim's jeans or the male DNA found on a vaginal swab obtained from the victim. In re Scott, 297 Va. 166 , 824 S.E.2d 1, 2019 Va. LEXIS 19 (Mar. 7, 2019).

Insufficient evidence of actual innocence. - Defendant was not entitled to a writ of actual innocence because defendant did not shoulder the burden of proving that the evidence submitted in the writ proceeding - DNA test results from a private laboratory, the factual proffers in defendant's petition, the post-trial evidence presented in the Commonwealth of Virginia's response, and the evidence presented at the original trial - provided, in the aggregate, clear-and-convincing proof that no rational trier of fact would have found proof of guilt beyond a reasonable doubt. In re Brown, 295 Va. 202 , 810 S.E.2d 444, 2018 Va. LEXIS 26 (2018).

CIRCUIT COURT OPINIONS

Relief denied where no proof of actual innocence. - Because no relief is provided if the results of the new scientific testing are potentially helpful to defendant, but do not tend to prove his actual innocence, and because there was no usable DNA or fingerprint evidence on the knife, defendant's motion to set aside the verdict and dismiss the case or order a new trial was denied. Commonwealth v. Hasan,, 2013 Va. Cir. LEXIS 82 (Fairfax County Aug. 1, 2013).

§ 19.2-327.6. Claims of relief.

An action under this chapter or the performance of any attorney representing the petitioner under this chapter shall not form the basis for relief in any habeas corpus or appellate proceeding. Nothing in this chapter 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.

(2001, cc. 873, 874.)

Editor's note. - Acts 2001, cc. 873 and 874, cl. 2, provide: "That the provisions of Chapter 19.2 of Title 19.2, consisting of sections 19.2-327.2 through 19.2-327.6 , of this act shall become effective on November 15, 2002."

Chapter 19.3. Issuance of Writ of Actual Innocence Based on Nonbiological Evidence.

Sec.

Research References. - Virginia Forms (Matthew Bender). No. 9-3017. Petition for Writ of Actual Innocence - Instructions, et seq.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 11.5, 129, 135.

§ 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, or the petition of a person who was adjudicated delinquent by a circuit court of an offense that would be a felony if committed by an adult, the Court of Appeals shall have the authority to issue writs of actual innocence under this chapter. 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.

(2004, c. 1024; 2013, c. 170; 2020, cc. 993, 994.)

Cross references. - As to Court of Appeals rules governing petitions for writ of actual innocence, see Rule 5A:5(b), Rules of the Virginia Supreme Court.

Editor's note. - Acts 2004, c. 1024, cl. 2, provides: "That the Office of the Executive Secretary of the Supreme Court of Virginia shall report to the Chairmen of the Senate and House Courts of Justice Committees on January 1 of each year the number of petitions filed for writs of actual innocence pursuant to Chapter 19.3 of Title 19.2 and the dispositions thereof."

The 2013 amendments. - The 2013 amendment by c. 170 inserted "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" in the first sentence, "or adjudication of delinquency" in the second sentence, and "or the adjudication of delinquency" in the third sentence.

The 2020 amendments. - The 2020 amendments by cc. 993 and 994 are identical, and in the first sentence, deleted "upon a plea of not guilty" twice, once following "of a felony" and once following "delinquent" and deleted the second sentence, which read, "Only one such writ based upon such conviction or adjudication of delinquency may be filed by a petitioner."

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For survey, "Innocent Suffering: The Unavailability of Post-Conviction Relief in Virginia Courts," see 51 U. Rich. L. Rev. 299 (2016).

CASE NOTES

Standards of review. - State's highest court is bound by the factual findings of the trial court with regard to a petition for a writ of actual innocence based on nonbiological evidence, as approved by the appellate court, unless they are plainly wrong or without evidence to support them; the conclusions of law and conclusions based on mixed questions of law and fact of the appellate court disposing of a petition for a writ of actual innocence based on nonbiological evidence, in accordance with general principles of appellate review, are subject to de novo review. Carpitcher v. Commonwealth, 273 Va. 335 , 641 S.E.2d 486, 2007 Va. LEXIS 36 (2007).

Petition denied. - Under the provisions of § 19.2-327.12 , the Court of Appeals of Virginia did not abuse its discretion in certifying issues of fact to the circuit court regarding the credibility of a codefendant's recantation testimony that had to be resolved before it could determine the merits of an inmate's petition for a writ of actual innocence based on non-biological evidence, and after reviewing the same, properly denied said petition, as: (1) this kind of inquiry fell squarely within the scope of § 19.2-327.12 ; and (2) such did not erroneously add a credibility requirement to the statutes governing writs of actual innocence based on non-biological evidence. Moreover, because the inmate failed to meet his statutory burden of proof by showing the elements of subsection A of § 19.2-327.11 , his petition for said writ was properly denied. Johnson v. Commonwealth, 273 Va. 315 , 641 S.E.2d 480, 2007 Va. LEXIS 33 (2007).

Petition for a writ of actual innocence based on non-biological evidence was properly dismissed because the inmate failed to carry his burden of proof that the recantations from the victims, the inmate's sons, were true. The testimony of the boys at trial regarding the sodomy by their father was graphic and explicit and abundantly corroborated by physician testimony, photographs, and the inmate's admission that he sometimes slept with the boys. Haas v. Commonwealth, 283 Va. 284 , 721 S.E.2d 479, 2012 Va. LEXIS 16 (2012).

Petition for a writ of actual innocence was denied because, inter alia, the victim's declaration, made 26 years after the incident, was not a recantation, and, in any event, it was not sufficient to discredit the victim's original in-court identification of petitioner at trial such that no rational fact finder could have found petitioner guilty. Phillips v. Commonwealth, 69 Va. App. 555, 820 S.E.2d 892, 2018 Va. App. LEXIS 330 (2018).

Defendant in a petition for a writ of actual innocence did not ask the appellate court to consider any newly discovered evidence that was not available at the time of defendant's trial, but only advanced an argument on the legal effect of subsequent judicial decisions. Accordingly, summary dismissal of defendant's petition was appropriate because review was allowed solely of previously unknown or unavailable non-biological evidence. Waller v. Commonwealth, 70 Va. App. 772, 833 S.E.2d 484, 2019 Va. App. LEXIS 230 (2019).

Defendant was not entitled to a writ of actual innocence because a rational, properly instructed jury would have considered the demonstrably false assertions that defendant did not learn of the evidence upon which he relied in the petition until after trial in assessing the credibility of defendant's claim of innocence and would weigh them against defendant. Knight v. Commonwealth, 71 Va. App. 492, 837 S.E.2d 106, 2020 Va. App. LEXIS 10 (2020).

Petition granted. - Because a certificate of analysis excluding the item tested from the statutory definition of "firearm" under subsection A of § 18.2-308.2 was issued after defendant's conviction became final, defendant's petition for a writ of actual innocence under § 19.2-327.10 et seq., was granted, and the conviction was ordered expunged pursuant to § 19.2-327.13 . Copeland v. Commonwealth, 52 Va. App. 529, 664 S.E.2d 528, 2008 Va. App. LEXIS 381 (2008).

Defendant was entitled to a writ of actual innocence because no rational fact finder could find proof of defendant's guilt of driving under the influence third beyond a reasonable doubt where his conviction for second offense DUI was ultimately dismissed before going to trial and could not serve as a predicate offense, and the record thus revealed one, not two, prior convictions. Conley v. Commonwealth, No. 0575-10-1, 2011 Va. App. LEXIS 416 (June 15, 2011).

Applied in In re Lima, 44 Va. App. 571, 605 S.E.2d 794, 2004 Va. App. LEXIS 614 (2004); Bell v. True, 413 F. Supp. 2d 657, 2006 U.S. Dist. LEXIS 4608 (W.D. Va. 2006); In re Brown, 295 Va. 202 , 810 S.E.2d 444, 2018 Va. LEXIS 26 (2018).

§ 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 .

(2015, c. 66; 2020, cc. 993, 994.)

The 2020 amendments. - The 2020 amendments by cc. 993 and 994 are identical, and inserted "or adjudication of delinquency" in the second sentence.

§ 19.2-327.11. Contents and form of the petition based on previously unknown or unavailable evidence of actual innocence.

  1. 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; (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 (a) the previously unknown or unavailable evidence supporting the allegation of innocence or (b) the previously untested evidence and the scientific testing supporting the allegation of innocence; (iv)(a) 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 or (b) if known, the reason that the evidence was not subject to scientific testing set forth in the petition; (v) the date (a) the previously unknown or unavailable evidence became known or available to the petitioner and the circumstances under which it was discovered or (b) the results of the scientific testing of previously untested evidence became known to the petitioner or any attorney of record; (vi)(a) 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 or (b) that the testing procedure was not available at the time the conviction or adjudication of delinquency became final in the circuit court; (vii) that the previously unknown, unavailable, or untested 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, unavailable, or untested evidence is not merely cumulative, corroborative, or collateral. Nothing in this chapter shall constitute grounds 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.
  2. 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 .
  3. 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.
  4. 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, unavailable, or untested 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.
  5. 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. (2004, c. 1024; 2013, cc. 170, 180; 2020, cc. 993, 994; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to Court of Appeals rules governing petitions for writ of actual innocence, see Rule 5A:5(b), Rules of the Virginia Supreme Court.

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2013 amendments. - The 2013 amendment by c. 170, in subsection A, inserted "or the offense for which the petitioner was adjudicated delinquent" in clause (i), "or adjudication of delinquency" in clauses (i) and (iv), "or the offense for which he was adjudicated delinquent" in clause (ii), substituted "or adjudication of delinquency by the circuit court" for "by the court" in clause (vi), and inserted "or delinquency" near the end in clause (vii), substituted "clause (iii) or (iv) of § 53.1-232.1 or to delay or stay any other appeals following conviction or adjudication of delinquency" for "clause (iii) or clause (iv) of § 53.1-232.1 or to delay or stay any other post-conviction appeals" in the next-to-last sentence; inserted "and" following "petitions" in the first sentence of subsection B; in subsection C, inserted "or adjudication of delinquency" following "conviction" in the first and second sentences and "or delinquency" following "guilt" in the last sentence; and in the first sentence of subsection E, substituted "petitioner" for "defendant" and deleted "of this title" at the end.

The 2013 amendment by c. 180 substituted "would have found proof" for "could have found proof" in clause (vii) of the first sentence in subsection A; inserted "or innocence" following "guilt" in the last sentence of subsection C; and substituted "Article 4 ( § 19.2-163.3 et seq.) of Chapter 10" for "Article 4 ( § 19.2-163.1 et seq.) of Chapter 10 of this title" in the first sentence of subsection E.

The 2020 amendments. - The 2020 amendments by cc. 993 and 994 are identical, and in subsection A in the first sentence, did the following: in clause (i), deleted "and that such conviction or adjudication of delinquency was upon a plea of not guilty" at the end; rewrote clauses (iii) through (vi), which read, "(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" and in clauses (vii) and (viii), substituted "that the previously unknown, unavailable, or untested evidence" for "the previously unknown or unavailable evidence"

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "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" in the next-to-last sentence in subsection A.

CASE NOTES

Previously unknown or unavailable evidence. - To obtain relief under § 19.2-327.11 , the evidence supporting the allegation of innocence must have been previously unknown or unavailable to the petitioner or his trial attorney of record at the time the conviction became final in the circuit court; defendant's arguments, which could have been raised on direct appeal and a certificate of analysis which predated defendant's convictions and was introduced into evidence at trial, did not provide a basis for a Writ of Actual Innocence, and defendant's petition was dismissed. In re Neal, 44 Va. App. 89, 603 S.E.2d 170, 2004 Va. App. LEXIS 482 (2004).

Defendant was entitled to a writ of actual innocence because defendant showed by clear and convincing evidence that (1) another's confession to the crimes made years after defendant was convicted was unknown to defendant and counsel when the convictions became final, as the confession did not exist, (2) the evidence could not have been discovered before the convictions became final, (3) the evidence was material, as the nature of the evidence as an unprompted confession to the crimes supported finding the evidence was true, and the confession established a high probability of defendant's acquittal, so no rational trier of fact would have found defendant guilty, and (4) the newly-discovered evidence was not merely cumulative, corroborative or collateral. Bush v. Commonwealth, 68 Va. App. 797, 813 S.E.2d 582, 2018 Va. App. LEXIS 139 (2018).

Petitioner was not entitled to a writ of actual innocence because he failed to show by clear and convincing evidence that the testimony of a suspect's ex-girlfriend was material; the ex-girlfriend did not observe any weapons on the suspect, and hearsay rumors, combined with the ex-girlfriend's bias against the suspect, did not unambiguously establish through admissible evidence the allegation that the suspect committed the offenses instead of petitioner. Dennis v. Commonwealth, No. 0774-17-1, 71 Va. App. 626, 838 S.E.2d 576, 2020 Va. App. LEXIS 61 (Mar. 10, 2020).

Petitioner was not entitled to a writ of actual innocence because he failed to establish by clear and convincing evidence that if a suspect's statements to witnesses had been known and introduced at trial, a reasonable jury would not find him guilty; the witnesses' testimony would be given less weight by a jury because any jury would note the significant inconsistencies between the suspect's statements to them and the unchallenged details of the assault from the trial record. Dennis v. Commonwealth, No. 0774-17-1, 71 Va. App. 626, 838 S.E.2d 576, 2020 Va. App. LEXIS 61 (Mar. 10, 2020).

Information provided by an accomplice was not evidence that was previously unknown or unavailable to defendant or such as could not have been discovered before defendant's conviction became final because the accomplice testified at the evidentiary hearing that he was a student at Norfolk State University in 1997 and did not indicate he had moved away before the trial, and he admitted that the address where a subpoena for the trial was served was his address for some time. Madison v. Commonwealth, 71 Va. App. 678, 839 S.E.2d 129, 2020 Va. App. LEXIS 80 (2020).

Perjury analysis improper. - Appellate court erred by conducting an additional perjury analysis with regard to an inmate's petition for a writ of actual innocence based on non-biological evidence; a perjury analysis is not part of the "materiality" inquiry under subdivision A (vii) of § 19.2-327.11 , which focuses on the truth of the evidence presented in support of a petition for a writ of actual innocence based on non-biological evidence. Carpitcher v. Commonwealth, 273 Va. 335 , 641 S.E.2d 486, 2007 Va. LEXIS 36 (2007).

Must demonstrate that no rational trier of fact could have found him guilty. - Where a defendant's writ of actual innocence was construed to challenge the amendment of the warrant and the sufficiency of the evidence presented at trial, such claims provided him no valid basis for relief; further, the petition failed to explain how the existence of a police document indicating a different date of the offense would have affected the evidence proving his guilt. In re Bui, 44 Va. App. 91, 603 S.E.2d 171, 2004 Va. App. LEXIS 481 (2004).

Construction. - In choosing such a nuanced change of a single word from "could" to "would," the General Assembly did not intend to alter the underlying purpose of the actual innocence statute; the amendment did not alter the holding that any newly-discovered evidence must be material to a factual conclusion regarding the elements of the offense(s) for which the petitioner was convicted, rather than merely the credibility of the witnesses. Altizer v. Commonwealth, 63 Va. App. 317, 757 S.E.2d 565, 2014 Va. App. LEXIS 161 (2014).

Finding that no rational trier of fact would have found proof of guilt beyond a reasonable doubt requires a finding that a petitioner affirmatively established factual innocence, and the statute, as amended, mandates that the standard of review is if provided with all of the evidence, both old and new, any reasonable jury is obliged to conclude as much; newly-discovered evidence that merely casts some measure of doubt on the verdict and judgment remains an insufficient basis to grant a writ. Altizer v. Commonwealth, 63 Va. App. 317, 757 S.E.2d 565, 2014 Va. App. LEXIS 161 (2014).

Inmate failed to satisfy burden of proof. - Inmate's claim that because it could not be determined which, if any, version of a victim's testimony was true, the inmate met the burden of proving that the inmate was entitled to relief because "no rational trier of fact could have found proof of guilt beyond a reasonable doubt" was rejected as the requirements of subdivision A (vii) of § 19.2-327.11 were stated in the conjunctive; to meet the inmate's statutory burden, the inmate was required to prove both that the recantation evidence was true and that, when considered with all the other evidence in the current record, no rational trier of fact could have found the inmate guilty of the crimes. As the inmate failed to meet the inmate's burden of establishing the first component of the two-part statutory burden, the inmate failed to satisfy the inmate's burden of proof. Carpitcher v. Commonwealth, 273 Va. 335 , 641 S.E.2d 486, 2007 Va. LEXIS 36 (2007).

Petition for a writ of actual innocence based on non-biological evidence was properly dismissed because the inmate failed to carry his burden of proof that the recantations from the victims, the inmate's sons, were true. The testimony of the boys at trial regarding the sodomy by their father was graphic and explicit and abundantly corroborated by physician testimony, photographs, and the inmate's admission that he sometimes slept with the boys. Haas v. Commonwealth, 283 Va. 284 , 721 S.E.2d 479, 2012 Va. LEXIS 16 (2012).

Petition for a writ of actual innocence was denied because, inter alia, the victim's declaration, made 26 years after the incident, was not a recantation, and, in any event, it was not sufficient to discredit the victim's original in-court identification of petitioner at trial such that no rational fact finder could have found petitioner guilty. Phillips v. Commonwealth, 69 Va. App. 555, 820 S.E.2d 892, 2018 Va. App. LEXIS 330 (2018).

Material evidence has to be true. - To be "material," within the meaning of § 19.2-327.11 , evidence supporting a petition for a writ of actual innocence based on non-biological evidence has to be true; evidence that is false cannot be "material." Carpitcher v. Commonwealth, 273 Va. 335 , 641 S.E.2d 486, 2007 Va. LEXIS 36 (2007).

Increased understanding of English does not prove actual innocence. - Where defendant did not proffer new evidence in support of his actual innocence, but merely alleged that his better understanding of the English language and the judicial system since his conviction warranted a remedy, such progress was not evidence proving or disproving any fact in issue as to whether he committed the crimes for which he was convicted. In re Lima, 44 Va. App. 571, 605 S.E.2d 794, 2004 Va. App. LEXIS 614 (2004).

Recantation of testimony by witness. - Petition for writ of actual innocence was denied because the inmate did not prove which, if any, of the victim's three versions of her testimony was truthful; other than the recantation, there was no additional evidence tending to establish that the victim perjured herself during trial. Considering that the victim was threatened, intimidated and coerced to comply with the various demands that she change her trial testimony, a reasonable fact finder could disregard the recantation and conclude that the victim, during her trial testimony, was telling the truth; accordingly, the recantation, standing alone, was insufficient to prove that the victim's trial testimony was perjured. In re Carpitcher, 47 Va. App. 513, 624 S.E.2d 700, 2006 Va. App. LEXIS 33 (2006).

Under the provisions of § 19.2-327.12 , the Court of Appeals of Virginia did not abuse its discretion in certifying issues of fact to the circuit court regarding the credibility of a co-defendant's recantation testimony that had to be resolved before it could determine the merits of an inmate's petition for a writ of actual innocence based on nonbiological evidence, and after reviewing the same, properly denied said petition, as: (1) this kind of inquiry fell squarely within the scope of § 19.2-327.12 ; and (2) such did not erroneously add a credibility requirement to the statutes governing writs of actual innocence based on nonbiological evidence. Moreover, because the inmate failed to meet his statutory burden of proof by showing the elements of subsection A of 19.2-327.11 , his petition for said writ was properly denied. Johnson v. Commonwealth, 273 Va. 315 , 641 S.E.2d 480, 2007 Va. LEXIS 33 (2007).

Victim's recantation testimony was not material under subdivision A (vii) of § 19.2-327.11 as the trial court was unable to determine whether the victim's recantation was true, and concluded that the victim was "threatened, intimidated, and coerced" to change the victim's trial testimony; the appellate court did not err in holding that an inmate was required, and failed, to prove that the victim's recantation was true since the victim's recantation testimony did no more than establish that the victim spoke falsely on one or more occasions. Carpitcher v. Commonwealth, 273 Va. 335 , 641 S.E.2d 486, 2007 Va. LEXIS 36 (2007).

Defendant's petition for a writ of actual innocence based on newly-discovered, non-biological evidence was denied, although the codefendant's confession that he acted alone in killing the victim was credible, because the recantation did not provide the court with clear and convincing evidence that no rational fact finder could have found that defendant used deception to abduct the victim with the intent to have sexual intercourse with her against her will. Turner v. Commonwealth, 56 Va. App. 391, 694 S.E.2d 251, 2010 Va. App. LEXIS 263 (2010).

Defendant was entitled to a writ of actual innocence, because the complaining witness recanted her claim that defendant sexually assaulter her and was convicted of perjury in connection therewith, establishing with legal certainty that her trial testimony, upon which defendant's conviction was based, was false. Montgomery v. Commonwealth, 62 Va. App. 656, 751 S.E.2d 692, 2013 Va. App. LEXIS 392 (2013).

Recantation of testimony by victim. - In light of the strong corroborating evidence of the inmate's guilt in the current record, aside from the victim's testimony, and the trial court's consideration of the victim's recantations in 1992, the inmate did not meet his burden of showing that the victim's 2004 recantation, made almost 12 years after the inmate's trial, was true and not merely cumulative. The victim's trial testimony was found credible not based solely on its contents and the victim's demeanor, but rather in light of the strong corroborating evidence, which included the inmate's admission to the victim's mother that he had sex with her son and direct eyewitness testimony of sexual activity between the inmate and the victim. Moore v. Commonwealth, 53 Va. App. 334, 671 S.E.2d 429, 2009 Va. App. LEXIS 34 (2009).

Merely corroborative evidence insufficient. - Petitioner's request for a writ of actual innocence was dismissed with regard to his burglary conviction where the alleged newly discovered evidence found by petitioner merely corroborated testimony given at his trial and did not establish an alibi for him. In re Barron, 44 Va. App. 536, 605 S.E.2d 777, 2004 Va. App. LEXIS 607 (2004).

Writ of actual innocence denied. - Where a petitioning inmate failed to claim to have discovered any new evidence that demonstrated he was actually innocent of the crimes for which he was convicted and given suspended sentences, and proffered no evidence that was previously unknown or unavailable to him, his request for a writ of actual innocence was summarily denied. In re Adams, 44 Va. App. 266, 604 S.E.2d 746, 2004 Va. App. LEXIS 553 (2004).

Petition for a writ of actual innocence was dismissed because petitioner did not meet his burden to establish previously unavailable evidence sufficient to justify issuance of the writ. His witness did not establish an alibi for him, and through diligence petitioner could have produced this witness at trial. In re Bowling, 46 Va. App. 50, 615 S.E.2d 489, 2005 Va. App. LEXIS 269 (2005).

Petition for a writ of actual innocence was denied because the coconspirator's contention that he lied about the inmate's wanting to kill the victim was not credible; the coconspirator was unable to provide logical explanations for why he and another acted as he alleged after trial, and other evidence corroborated details of trial testimony that inmate orchestrated murder, including evidence of his proximity to the victim's house at the time of the murder. In re Johnson, 47 Va. App. 503, 624 S.E.2d 696, 2006 Va. App. LEXIS 31 (2006).

State inmate was not entitled to a writ of actual innocence on his claims that the prosecution withheld Brady material with respect to four witnesses where the inmate had access to the witnesses and could have interviewed them at any time, but failed to do so. Bell v. True, 413 F. Supp. 2d 657, 2006 U.S. Dist. LEXIS 4608 (W.D. Va. 2006).

Appeals court did not improperly dismiss defendant's petition for a writ of actual innocence and deny defendant's request to vacate defendant's convictions for murder and abduction with intent to defile, as nothing in a co-defendant's recantation or a circuit court's finding had any bearing on the question in defendant's petition; the evidentiary record on the issue, with and without the recantation, was essentially the same. Turner v. Commonwealth, 282 Va. 227 , 717 S.E.2d 111, 2011 Va. LEXIS 192 (2011).

Because the evidence that petitioner proffered in support of his application for a writ of actual innocence based on non-biological evidence did not tend to prove or disprove whether petitioner was guilty of the crime for which he was convicted, arguably, that evidence was collateral to his factual innocence. Altizer v. Commonwealth, 63 Va. App. 317, 757 S.E.2d 565, 2014 Va. App. LEXIS 161 (2014).

Application for a writ of actual innocence based on non-biological evidence was dismissed because petitioner failed to offer evidence that no rational trier of fact would have found proof of guilt beyond a reasonable doubt since witnesses' affidavits, even if certified as true, only served to challenge the victim's veracity; newly-discovered evidence that serves to merely impeach the credibility of unrecanted witness testimony may not serve as a basis for a writ of actual innocence. Altizer v. Commonwealth, 63 Va. App. 317, 757 S.E.2d 565, 2014 Va. App. LEXIS 161 (2014).

Defendant in a petition for a writ of actual innocence did not ask the appellate court to consider any newly discovered evidence that was not available at the time of defendant's trial, but only advanced an argument on the legal effect of subsequent judicial decisions. Accordingly, summary dismissal of defendant's petition was appropriate because review was allowed solely of previously unknown or unavailable non-biological evidence. Waller v. Commonwealth, 70 Va. App. 772, 833 S.E.2d 484, 2019 Va. App. LEXIS 230 (2019).

Because defendant expressly argued the point he raised in the instant petition to the trial court at prior hearings, defendant was not eligible for the writ of actual innocence, as the evidence upon which he relied was available to him before his conviction became final in the circuit court. Johnson v. Commonwealth, 72 Va. App. 587, 850 S.E.2d 413, 2020 Va. App. LEXIS 291 (2020).

Applied in In re Watford, 295 Va. 114 , 809 S.E.2d 651, 2018 Va. LEXIS 11 (2018); In re Brown, 295 Va. 202 , 810 S.E.2d 444, 2018 Va. LEXIS 26 (2018).

§ 19.2-327.12. Determination by Court of Appeals for findings of fact by the circuit court.

If the Court of Appeals 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 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. 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.

(2004, c. 1024; 2013, c. 170.)

Cross references. - As to Court of Appeals rules governing petitions for writ of actual innocence, see Rule 5A:5(b), Rules of the Virginia Supreme Court.

The 2013 amendments. - The 2013 amendment by c. 170 inserted "or the adjudication of delinquency" following "conviction" in the first sentence.

CASE NOTES

Inmate's procedural due process rights not violated. - Appellate court did not deny an inmate procedural due process in refusing to permit the inmate to file an additional brief challenging the trial court's certified findings of fact as the trial court's findings were evaluative in nature, addressing the victim's veracity and whether the victim's recantation testimony was the product of duress; any briefing challenging these evaluations would have been unlikely to have provided analysis of substantive benefit to the appellate court. Carpitcher v. Commonwealth, 273 Va. 335 , 641 S.E.2d 486, 2007 Va. LEXIS 36 (2007).

Applicability. - Under the provisions of § 19.2-327.12 , the Court of Appeals of Virginia did not abuse its discretion in certifying issues of fact to the circuit court regarding the credibility of a codefendant's recantation testimony that had to be resolved before it could determine the merits of an inmate's petition for a writ of actual innocence based on nonbiological evidence, and after reviewing the same, properly denied said petition, as: (1) this kind of inquiry fell squarely within the scope of § 19.2-327.12 ; and (2) such did not erroneously add a credibility requirement to the statutes governing writs of actual innocence based on nonbiological evidence. Moreover, because the inmate failed to meet his statutory burden of proof by showing the elements of subsection A of § 19.2-327.11 , his petition for said writ was properly denied. Johnson v. Commonwealth, 273 Va. 315 , 641 S.E.2d 480, 2007 Va. LEXIS 33 (2007).

It was an abuse of discretion for the Court of Appeals to decline to order an evidentiary hearing on an inmate's petition for a writ of actual innocence based on nonbiological evidence because the inmate offered previously unknown and untested affidavits tending to exonerate the inmate and implicate another, which the Commonwealth countered with similarly unknown and untested affidavits, requiring a factual determination by a trial court after an evidentiary hearing, as the Court of Appeals had no basis for finding from the record alone that the inmate did not prove the truth of the inmate's affidavits while crediting the Commonwealth's equally untested affidavits. Dennis v. Commonwealth, 297 Va. 104 , 823 S.E.2d 490, 2019 Va. LEXIS 10 (Feb. 21, 2019).

Applied in Haas v. Commonwealth, 283 Va. 284 , 721 S.E.2d 479, 2012 Va. LEXIS 16 (2012).

§ 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 the circuit court pursuant to an order issued under this chapter, the Court of Appeals, 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 shall (i) dismiss the petition for failure to establish previously unknown, unavailable, or untested evidence sufficient to justify the issuance of the writ, or (ii) only upon a finding that the petitioner has proven by a preponderance of the 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 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 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 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 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, the Court of Appeals shall forward a copy of the writ to the circuit court, where an order of expungement shall be immediately granted.

(2004, c. 1024; 2007, cc. 465, 824, 883, 905; 2013, cc. 170, 180; 2020, cc. 993, 994.)

Cross references. - As to Court of Appeals rules governing petitions for writ of actual innocence, see Rule 5A:5(b), Rules of the Virginia Supreme Court.

The 2007 amendments. - The 2007 amendments by cc. 465, 824, 883, and 905 are identical, and added the last sentence.

The 2013 amendments. - The 2013 amendment by c. 170, in clause (ii) of the first sentence, inserted "or delinquency" in two places, "or finding of delinquency" following "conviction," "or adjudicated delinquent" following "convicted," "or delinquent" in two places, and "that entered the conviction or adjudication of delinquency," and "or adjudication of delinquency" near the beginning of the last sentence.

The 2013 amendment by c. 180, in the first sentence, substituted "would have found proof" for "could have found proof" and "would have found sufficient evidence" for "could have found sufficient evidence" and made a minor stylistic change.

The 2020 amendments. - The 2020 amendments by cc. 993 and 994 are identical, and in the first sentence, substituted "unknown, unavailable, or untested evidence" for "unknown or unavailable evidence" in clause (i) and "a preponderance of the" for "clear and convincing" in clause (ii).

CASE NOTES

Construction. - In choosing such a nuanced change of a single word from "could" to "would," the General Assembly did not intend to alter the underlying purpose of the actual innocence statute; the amendment did not alter the holding that any newly-discovered evidence must be material to a factual conclusion regarding the elements of the offense(s) for which the petitioner was convicted, rather than merely the credibility of the witnesses. Altizer v. Commonwealth, 63 Va. App. 317, 757 S.E.2d 565, 2014 Va. App. LEXIS 161 (2014).

Finding that no rational trier of fact would have found proof of guilt beyond a reasonable doubt requires a finding that a petitioner affirmatively established factual innocence, and the statute, as amended, mandates that the standard of review is if provided with all of the evidence, both old and new, any reasonable jury is obliged to conclude as much; newly-discovered evidence that merely casts some measure of doubt on the verdict and judgment remains an insufficient basis to grant a writ. Altizer v. Commonwealth, 63 Va. App. 317, 757 S.E.2d 565, 2014 Va. App. LEXIS 161 (2014).

Petition granted. - Defendant was entitled to a writ of actual innocence because defendant showed by clear and convincing evidence that (1) another's confession to the crimes made years after defendant was convicted was unknown to defendant and counsel when the convictions became final, as the confession did not exist, (2) the evidence could not have been discovered before the convictions became final, (3) the evidence was material, as the nature of the evidence as an unprompted confession to the crimes supported finding the evidence was true, and the confession established a high probability of defendant's acquittal, so no rational trier of fact would have found defendant guilty, and (4) the newly-discovered evidence was not merely cumulative, corroborative or collateral. Bush v. Commonwealth, 68 Va. App. 797, 813 S.E.2d 582, 2018 Va. App. LEXIS 139 (2018).

Petition denied. - Petition for writ of actual innocence, based on an allegation that the detective's interview with a suspect in an unrelated crime implicated codefendant, was denied because the interrogation did not affect the sufficiency of evidence to support defendant's convictions or establish his innocence; there was a reasonable inference of concertive action by all three men there. In re Dicks, 46 Va. App. 44, 614 S.E.2d 677, 2005 Va. App. LEXIS 247 (2005).

Under the provisions of § 19.2-327.12 , the Court of Appeals of Virginia did not abuse its discretion in certifying issues of fact to the circuit court regarding the credibility of a codefendant's recantation testimony that had to be resolved before it could determine the merits of an inmate's petition for a writ of actual innocence based on nonbiological evidence, and after reviewing the same, properly denied said petition, as: (1) this kind of inquiry fell squarely within the scope of § 19.2-327.12 ; and (2) such did not erroneously add a credibility requirement to the statutes governing writs of actual innocence based on nonbiological evidence. Moreover, because the inmate failed to meet his statutory burden of proof by showing the elements of subsection A of § 19.2-327.11 , his petition for said writ was properly denied. Johnson v. Commonwealth, 273 Va. 315 , 641 S.E.2d 480, 2007 Va. LEXIS 33 (2007).

Because the evidence that petitioner proffered in support of his application for a writ of actual innocence based on non-biological evidence did not tend to prove or disprove whether petitioner was guilty of the crime for which he was convicted, arguably, that evidence was collateral to his factual innocence. Altizer v. Commonwealth, 63 Va. App. 317, 757 S.E.2d 565, 2014 Va. App. LEXIS 161 (2014).

Application for a writ of actual innocence based on non-biological evidence was dismissed because petitioner failed to offer evidence that no rational trier of fact would have found proof of guilt beyond a reasonable doubt since witnesses' affidavits, even if certified as true, only served to challenge the victim's veracity; newly-discovered evidence that serves to merely impeach the credibility of unrecanted witness testimony may not serve as a basis for a writ of actual innocence. Altizer v. Commonwealth, 63 Va. App. 317, 757 S.E.2d 565, 2014 Va. App. LEXIS 161 (2014).

Petition for a writ of actual innocence was denied because, inter alia, the victim's declaration, made 26 years after the incident, was not a recantation, and, in any event, it was not sufficient to discredit the victim's original in-court identification of petitioner at trial such that no rational fact finder could have found petitioner guilty. Phillips v. Commonwealth, 69 Va. App. 555, 820 S.E.2d 892, 2018 Va. App. LEXIS 330 (2018).

Petitioner was not entitled to a writ of actual innocence because he failed to show by clear and convincing evidence that the testimony of a suspect's ex-girlfriend was material; the ex-girlfriend did not observe any weapons on the suspect, and hearsay rumors, combined with the ex-girlfriend's bias against the suspect, did not unambiguously establish through admissible evidence the allegation that the suspect committed the offenses instead of petitioner. Dennis v. Commonwealth, No. 0774-17-1, 71 Va. App. 626, 838 S.E.2d 576, 2020 Va. App. LEXIS 61 (Mar. 10, 2020).

Petitioner was not entitled to a writ of actual innocence because he failed to establish by clear and convincing evidence that if a suspect's statements to witnesses had been known and introduced at trial, a reasonable jury would not find him guilty; the witnesses' testimony would be given less weight by a jury because any jury would note the significant inconsistencies between the suspect's statements to them and the unchallenged details of the assault from the trial record. Dennis v. Commonwealth, No. 0774-17-1, 71 Va. App. 626, 838 S.E.2d 576, 2020 Va. App. LEXIS 61 (Mar. 10, 2020).

Defendant's evidence did not establish that he was entitled to a writ of actual innocence because he failed to prove that the victim's statement that he was "no longer confident" in his identification was true since the statement directly contradicted his testimony at trial describing defendant, a detective's testimony at trial, and the detective's recollection as stated in his affidavit. Madison v. Commonwealth, 71 Va. App. 678, 839 S.E.2d 129, 2020 Va. App. LEXIS 80 (2020).

Expungement appropriate. - Because a certificate of analysis excluding the item tested from the statutory definition of "firearm" under subsection A of § 18.2-308.2 was issued after defendant's conviction became final, defendant's petition for a writ of actual innocence under § 19.2-327.10 et seq., was granted, and the conviction was ordered expunged pursuant to § 19.2-327.13 . Copeland v. Commonwealth, 52 Va. App. 529, 664 S.E.2d 528, 2008 Va. App. LEXIS 381 (2008).

Evidence insufficient. - Petition for a writ of actual innocence was dismissed because petitioner did not meet his burden under § 19.2-327.11 to establish previously unavailable evidence sufficient to justify issuance of the writ. His witness did not establish an alibi for him, and through diligence petitioner could have produced this witness at trial. In re Bowling, 46 Va. App. 50, 615 S.E.2d 489, 2005 Va. App. LEXIS 269 (2005).

In light of the strong corroborating evidence of the inmate's guilt in the current record, aside from the victim's testimony, and the trial court's consideration of the victim's recantations in 1992, the inmate did not meet his burden of showing that the victim's 2004 recantation, made almost 12 years after the inmate's trial, was true and not merely cumulative. The victim's trial testimony was found credible not based solely on its contents and the victim's demeanor, but rather in light of the strong corroborating evidence, which included the inmate's admission to the victim's mother that he had sex with her son and direct eyewitness testimony of sexual activity between the inmate and the victim. Moore v. Commonwealth, 53 Va. App. 334, 671 S.E.2d 429, 2009 Va. App. LEXIS 34 (2009).

Petition for a writ of actual innocence based on non-biological evidence was properly dismissed because the inmate failed to carry his burden of proof that the recantations from the victims, the inmate's sons, were true. The testimony of the boys at trial regarding the sodomy by their father was graphic and explicit and abundantly corroborated by physician testimony, photographs, and the inmate's admission that he sometimes slept with the boys. Haas v. Commonwealth, 283 Va. 284 , 721 S.E.2d 479, 2012 Va. LEXIS 16 (2012).

Applied in In re Bui, 44 Va. App. 91, 603 S.E.2d 171, 2004 Va. App. LEXIS 481 (2004); In re Barron, 44 Va. App. 536, 605 S.E.2d 777, 2004 Va. App. LEXIS 607 (2004); In re Watford, 295 Va. 114 , 809 S.E.2d 651, 2018 Va. LEXIS 11 (2018); In re Brown, 295 Va. 202 , 810 S.E.2d 444, 2018 Va. LEXIS 26 (2018); In re Phillips, 296 Va. 433 , 822 S.E.2d 1, 2018 Va. LEXIS 182 (2018).

§ 19.2-327.14. Claims of relief.

An action under this chapter or the actions of any attorney representing the petitioner under this chapter shall not form the basis for relief in any habeas corpus proceeding. Nothing in this chapter shall create any cause of action for damages against the Commonwealth or any of its political subdivisions.

(2004, c. 1024.)

Applied in Johnson v. Commonwealth, 273 Va. 315 , 641 S.E.2d 480, 2007 Va. LEXIS 33 (2007).

Chapter 19.4. Issuance of Writ of Vacatur for Victims of Commercial Sex Trafficking.

Sec.

Effective date. - This chapter is effective July 1, 2021.

§ 19.2-327.15. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Qualifying offense" means a conviction or adjudication of delinquency for any violation of § 18.2-346 or 18.2-347 .

"Victim of sex trafficking" means any person convicted or adjudicated delinquent of a qualifying offense in the Commonwealth who committed such offense as a direct result of being solicited, invited, recruited, encouraged, forced, intimidated, or deceived by another to engage in acts of prostitution or unlawful sexual intercourse for money or its equivalent, as described in subsection A of § 18.2-346 , regardless of whether any other person has been charged or convicted of an offense related to the sex trafficking of such person.

(2021, Sp. Sess. I, c. 543.)

Effective date. - This section is effective July 1, 2021.

§ 19.2-327.16. Issuance of writ of vacatur for victims of commercial sex trafficking.

  1. Notwithstanding any other provision of law or rule of court, upon a petition of a person who was convicted or adjudicated delinquent of a qualifying offense, the circuit court of the county or city in which the conviction or adjudication of delinquency was entered shall have the authority to issue writs of vacatur under this chapter.
  2. The Rules of Supreme Court of Virginia governing practice and procedures in civil actions shall be applicable to proceedings under this chapter.
  3. The circuit court shall have the authority to conduct hearings on petitions for vacatur.
  4. Any party aggrieved by the decision of the circuit court may appeal the decision to the Supreme Court of Virginia.

    (2021, Sp. Sess. I, c. 543.)

Effective date. - This section is effective July 1, 2021.

§ 19.2-327.17. Contents and form of the petition for vacatur.

  1. Any victim of sex trafficking may file a petition for vacatur setting forth the relevant facts and requesting that the judgment of a conviction or adjudication of delinquency be vacated. Such petition shall allege categorically and with specificity, under oath, all of the following:
    1. The petitioner was convicted or adjudicated delinquent of a qualifying offense, including the date on which the qualifying offense occurred, the date of final disposition on which the conviction or adjudication of delinquency was entered, the petitioner's date of birth, and the full name used by the petitioner at the time of the offense;
    2. The petitioner committed the qualifying offense as a direct result of being a victim of sex trafficking; and
    3. Whether the petitioner has previously filed any other petition in accordance with this chapter in any circuit court and, if so, the disposition of such petition.
  2. Such petition shall contain all relevant allegations of facts that are known to the petitioner at the time of filing. The petition shall be filed on a form provided by the Supreme Court. If the petitioner fails to submit a completed form, the circuit court may allow the petitioner to amend the petition to correct any deficiency. If the petitioner fails to submit a completed form containing the allegations set forth in subsection A, or if the circuit court has previously dismissed a petition for vacatur from the same petitioner for the same qualifying offense following a hearing conducted pursuant to § 19.2-327.18 , the court may dismiss the petition. 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 .
  3. The petitioner shall obtain from a law-enforcement agency one complete set of the petitioner's fingerprints and shall file those fingerprints with the circuit court with the petition.
  4. The Commonwealth shall be made party defendant to the proceeding. The petitioner shall provide a copy of the petition by delivery or by first-class mail, postage prepaid, to the attorney for the Commonwealth of the city or county in which the petition is filed. The attorney for the Commonwealth may file an objection or answer to the petition or may give written notice to the court that he does not object to the petition within 30 days after receipt of the petition. Upon the motion of the attorney for the Commonwealth and for good cause shown, the court may allow the attorney for the Commonwealth up to an additional 30 days to respond to the petition.
  5. A person convicted or adjudicated delinquent of multiple qualifying offenses shall include all qualifying offenses in one petition, if such convictions or adjudications were all entered in the same city or county. A person convicted or adjudicated delinquent of qualifying offenses in different cities or counties shall file petitions in the circuit courts of the cities or counties in which the convictions or adjudications of delinquency were entered.

    (2021, Sp. Sess. I, c. 543.)

Effective date. - This section is effective July 1, 2021.

§ 19.2-327.18. Hearing on petition for vacatur.

  1. If the attorney for the Commonwealth of the county or city in which the petition is filed (i) gives written notice to the court that he does not object to the petition and (ii) stipulates in such written notice that the petitioner was convicted or adjudicated delinquent of a qualifying offense and that the petitioner committed the qualifying offense as a direct result of being a victim of sex trafficking, the circuit court may grant the writ and vacate the qualifying offense without conducting a hearing.
  2. If the attorney for the Commonwealth of the county or city in which the petition is filed objects to the petition or does not file an answer, the court shall conduct a hearing on the petition after reasonable notice has been provided to both the petitioner and the attorney for the Commonwealth. The attorney for the Commonwealth shall make reasonable efforts to notify any victim, as defined in § 19.2-11.01 , of any qualifying offense of such hearing. The circuit court shall not be required to conduct a hearing if it has previously dismissed a petition for vacatur from the same petitioner for the same qualifying offense.
  3. Upon finding that the petitioner has by a preponderance of the evidence proven the elements contained in subsection A of § 19.2-327.17 , the circuit court shall grant the writ and vacate the qualifying offense. If the petitioner fails to prove any of these elements, the court shall dismiss the petition.
  4. The court may grant the writ and vacate the qualifying offense regardless of whether any person other than the petitioner has been charged or convicted of an offense related to the petitioner being a victim of sex trafficking.

    (2021, Sp. Sess. I, c. 543.)

Effective date. - This section is effective July 1, 2021.

§ 19.2-327.19. Relief under writ of vacatur.

  1. Upon granting a writ of vacatur pursuant to subsection C of § 19.2-327.18 , the circuit court shall provide the petitioner with a copy of the writ, and such copy shall be sufficient proof that the person named in the writ is no longer under any disability, disqualification, or other adverse consequence resulting from the vacated conviction or adjudication of delinquency.
  2. If a writ of vacatur is granted, and no appeal is made to the Supreme Court, or the Supreme Court refuses or denies the Commonwealth's petition for appeal or upholds the decision of the circuit court, an order of expungement for the qualifying offense shall be entered by the circuit court. Upon entry of the order of expungement, the clerk of court shall cause a copy of the writ of vacatur, the order of expungement, and the complete set of petitioner's fingerprints to be forwarded to the Department of State Police, which shall expunge the qualifying offense.
  3. The writ to vacate the qualifying offense shall not be expunged pursuant to subsection B and shall be maintained by the circuit court. Access to the writ may be provided only upon court order. Any person seeking access to the writ may file a written motion setting forth why such access is needed. The court shall issue an order to disclose the writ upon the written motion of the petitioner named in the writ. The court may issue an order to disclose the writ if it finds that such disclosure best serves the interests of justice.
  4. Costs shall be as provided in § 17.1-275 but shall not be recoverable against the Commonwealth. If the circuit court enters a writ of vacatur, the clerk of the court shall refund to the petitioner such costs paid by the petitioner.
  5. If the court enters a writ of vacatur, the petitioner shall be entitled to a refund of all fines, costs, forfeitures, and penalties paid in relation to the qualifying offense that was vacated. If the clerk of the court where the conviction was entered is in possession of any records detailing any fines, costs, forfeitures, and penalties paid by the petitioner for a qualifying offense that was vacated, the petitioner shall be entitled to a refund of such amount. If the clerk of the court where the conviction was entered is no longer in possession of any records detailing any fines, costs, forfeitures, and penalties paid by the petitioner for a qualifying offense that was vacated, a refund shall be provided only upon a showing by the petitioner of the amount of fines, costs, forfeitures, and penalties paid.

    (2021, Sp. Sess. I, c. 543.)

Effective date. - This section is effective July 1, 2021.

§ 19.2-327.20. Claims of relief.

Except for appeals to the Supreme Court of Virginia as authorized by subsection D of § 19.2-327.16 , an action under this chapter or the performance of any attorney representing the petitioner under this chapter shall not form the basis for relief in any habeas corpus or appellate proceeding. Nothing in this chapter 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.

(2021, Sp. Sess. I, c. 543.)

Effective date. - This section is effective July 1, 2021.

Chapter 20. Taxation and Allowance of Costs.

Sec.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 100, 102, 104.

§ 19.2-328. When jailers and sheriffs to summon or employ guards and other persons; allowances therefor.

Whenever in the discretion of the court it is necessary for the safekeeping of a prisoner under charge of, or sentence for, crime, whether the prisoner be in jail, hospital, court or elsewhere, the court may order the jailer to summon a sufficient guard, and whenever ordered by the court to do so, the sheriff of any county or city shall summon or employ temporarily such person or persons as may be needed to preserve proper order or otherwise to aid the court in its proper operation and functioning, and for such guard or other service the court may allow therefor so much as it deems proper, not exceeding the hourly equivalent of the minimum annual salary paid a full-time deputy sheriff who performs like services in the same county or city; in addition, mileage and other expenses for rendering the services shall be paid for each person, the same to be paid out of the budget allotted to the sheriff as approved by the Compensation Board, except when payment for such guard is otherwise provided under the provisions of § 53.1-94 of the Code of Virginia.

(Code 1950, § 19.1-308; 1960, c. 366; 1972, c. 225; 1973, c. 401; 1975, c. 495; 1981, c. 386; 1985, c. 321.)

§ 19.2-329. Allowance to witnesses.

Sections 17.1-612 to 17.1-616 , inclusive, shall apply to a person attending as a witness, under a recognizance or summons in a criminal case, as well as to a person attending under a summons in a civil case, except that a person residing out of this Commonwealth, who attends a court therein as a witness, shall be allowed by the court a proper compensation for attendance and travel to and from the place of his abode, the amount of the same to be fixed by the court.

(Code 1950, § 19.1-312; 1960, c. 366; 1975, c. 495; 1977, c. 483.)

§ 19.2-330. Compensation to witnesses from out of Commonwealth.

Any witness from without the Commonwealth whose attendance is compelled under the provisions of Chapter 16, Article 2 (§ 19.2-272 et seq.) of this title shall be deemed to render a service within the meaning of § 19.2-332 and the compensation and expenses of such witness, whether on behalf of the Commonwealth or the accused, may be paid out of the state treasury in accordance with the provisions of such section. But the compensation and expenses of any witness summoned on behalf of an accused shall not be certified to the state treasury as a compensation under such section except in cases when the court or judge thereof is satisfied that the defendant is without means to pay same and is unable to provide the costs incident thereto.

(Code 1950, § 19.1-313; 1960, c. 366; 1975, c. 495.)

Research References. - Virginia Forms (Matthew Bender). No. 9-2409. Motion for Out-of-State Witness.

§ 19.2-331. When Commonwealth pays witnesses in case of misdemeanor.

Payment shall not be made out of the state treasury to a witness attending for the Commonwealth in any prosecution for a misdemeanor unless it appears that the sum to which the witness is entitled cannot be obtained:

  1. If it be a case wherein there is a prosecutor and the defendant is convicted, by reason of the insolvency of the defendant, or
  2. If it be a case in which there is no prosecutor, by reason of the acquittal or insolvency of the defendant or other cause.

    (Code 1950, § 19.1-314; 1960, c. 366; 1975, c. 495.)

§ 19.2-332. Compensation to officer or other person for services not otherwise compensable.

Whenever in a criminal case an officer or other person renders any service required by law for which no specific compensation is provided, or whenever any other service has been rendered pursuant to the request or prior approval of the court, the court shall allow therefor such sum as it deems reasonable, including mileage at a rate provided by law, and such allowance shall be paid out of the state treasury from the appropriation for criminal charges on the certificate of the court stating the nature of the service. This section shall not prevent any payment under § 2.2-816 , which could have been made if this section had not been enacted.

This section shall not be construed to authorize the payment of any additional compensation to an officer or other employee of the Commonwealth who is compensated for his services exclusively by salary unless it be otherwise expressly provided by law.

(Code 1950, § 19.1-315; 1960, c. 366; 1972, c. 719; 1975, c. 495.)

Cross references. - As to expert assistance for indigent defendants, see § 19.2-266.4 .

CASE NOTES

Compensation for investigative services for indigent defendants not mandated. - Denial of defendant's request for appointment of an investigator was affirmed because neither § 19.2-332 nor § 19.2-163 mandated the appointment of experts to assist indigent defendants and their counsel. Dowdy v. Commonwealth, 278 Va. 577 , 686 S.E.2d 710, 2009 Va. LEXIS 108 (2009).

§ 19.2-333. No state fees to attorney for the Commonwealth.

No fee to an attorney for the Commonwealth shall be payable out of the state treasury, unless it be expressly so provided.

(Code 1950, § 19.1-316; 1960, c. 366; 1975, c. 495.)

§ 19.2-334. By whom certificate of allowance to be made; vouchers to accompany it; proof of correctness; what entry to state.

Any other expense incident to a proceeding in a criminal case which is payable out of the state treasury otherwise than under §§ 2.2-816 , 19.2-330 or § 19.2-332 shall be certified by the court. If it be a judge of a district court exercising jurisdiction, it shall be certified by such judge to the Supreme Court. With the certificate of allowance there shall be transmitted to the Supreme Court the vouchers on which it is made. The court, in passing upon any account for fees or expenses required to be certified by it under this section, before certifying the account, may, in its discretion, require proof of the correctness of any item thereof.

The entry of such certificate of allowance shall state how much thereof is on account of each person prosecuted.

(Code 1950, §§ 19.1-317, 19.1-318; 1960, c. 366; 1975, c. 495; 1978, c. 195; 1979, c. 465.)

§ 19.2-335. Judge of district court to certify to clerk of circuit court costs of proceedings in criminal cases before him.

A judge of a district court before whom there is any proceeding in a criminal case, including any proceeding that has been deferred upon probation of the defendant pursuant to § 16.1-278.8, 16.1-278.9, 18.2-61 , 18.2-67.1 , 18.2-67.2 , 18.2-251 , 19.2-298.02 , 19.2-303.2 , or 19.2-303.6 , shall certify to the clerk of the circuit court of his county or city, and a judge or court before whom there is, in a criminal case, any proceeding preliminary to conviction in another court, upon receiving information of the conviction from the clerk of the court wherein it is, shall certify to such clerk, all the expenses incident to such proceedings which are payable out of the state treasury.

(Code 1950, § 19.1-319; 1960, c. 366; 1968, c. 639; 1975, c. 495; 1995, c. 485; 2005, c. 631; 2020, c. 1004; 2020, Sp. Sess. I, c. 21.)

The 2005 amendments. - The 2005 amendment by c. 631 deleted "18.2-67.2:1" preceding "18.2-251" and made minor stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 1004, substituted "19.2-303.2, or 19.2-303.6 " for "or 19.2-303.2 " and made a stylistic change.

The 2020 Sp. Sess. I amendments. - The 2020 amendment by Sp. Sess. I, c. 21, effective March 1, 2021, inserted "19.2-298.02."

§ 19.2-336. Clerk to make up statement of whole cost, and issue execution therefor.

In every criminal case the clerk of the circuit court in which the accused is found guilty or is placed on probation during deferral of the proceedings pursuant to § 16.1-278.8, 16.1-278.9, 18.2-61 , 18.2-67.1 , 18.2-67.2 , 18.2-251 , 19.2-298.02 , 19.2-303.2 , or 19.2-303.6 or, if the conviction is in a district court, the clerk to which the judge thereof certifies as aforesaid, shall, as soon as may be, make up a statement of all the expenses incident to the prosecution, including such as are certified under § 19.2-335 , and execution for the amount of such expenses shall be issued and proceeded with. Chapter 21 (§ 19.2-339 et seq.) shall apply thereto in like manner as if, on the day of completing the statement, there was a judgment in such court in favor of the Commonwealth against the accused for such amount as a fine. However, in any case in which an accused waives trial by jury, at least 10 days before trial, but the Commonwealth or the court trying the case refuses to so waive, then the cost of the jury shall not be included in such statement or judgment recorded pursuant to § 17.1-275.5 .

(Code 1950, § 19.1-320; 1960, c. 366; 1970, c. 429; 1975, c. 495; 1978, c. 716; 1995, c. 485; 2005, c. 631; 2012, c. 714; 2020, c. 1004; 2020, Sp. Sess. I, c. 21.)

Cross references. - As to costs on order discharging recognizance, see § 19.2-152 .

As to expense of publication of process against corporation being taxed as costs, see § 19.2-238 .

The 2005 amendments. - The 2005 amendment by c. 631 deleted "18.2-67.2:1" preceding "18.2-251"; substituted "10" for "ten"; and made minor stylistic changes.

The 2012 amendments. - The 2012 amendment by c. 714 deleted "of this title" following "( § 19.2-339 et seq.)" in the second sentence, and added "recorded pursuant to § 17.1-275.5 " at the end of the third sentence.

The 2020 amendments. - The 2020 amendment by c. 1004, substituted "19.2-303.2, or 19.2-303.6 " for "or 19.2-303.2 " in the first sentence.

The 2020 Sp. Sess. I amendments. - The 2020 amendment by Sp. Sess. I, c. 21, effective March 1, 2021, inserted "19.2-298.02" in the first sentence.

CASE NOTES

Constitutionality. - Virginia's recoupment statutes, §§ 19.2-336 and 19.2-358 , did not violate defendant's right to due process even though they placed the burden of proof on him to show that he was unable to pay court costs, or violate his right to equal protection even though they did not require that the trial court project his future ability to pay court costs before imposing the duty. Roads v. Commonwealth,, 2013 Va. App. LEXIS 92 (Mar. 26, 2013).

Virginia's recoupment statutes, §§ 19.2-336 and 19.2-358 , did not violate defendant's due process or equal protection rights as defendant would not be subject to enhanced punishment for a failure to pay court costs solely due to his future indigence, should it occur, since the penalties defendant feared would be imposed if he did not pay the costs could not be imposed absent an intentional refusal to obey the sentence or a failure to make a good faith effort to obtain the necessary funds under subsection B of § 19.2-358 ; if the default was excusable, the court could allow defendant additional time for payment, reduce the amount due or of each installment, or remit the unpaid portion in whole or in part under subsection C of § 19.2-358. Roads v. Commonwealth,, 2013 Va. App. LEXIS 92 (Mar. 26, 2013).

Under this section the accused is liable for the costs of his conviction, without any formal entry of judgment therefor. Commonwealth v. McCue's Ex'rs, 109 Va. 302 , 63 S.E. 1066 (1909).

Section does not invade right of trial by jury. - The taxing of the costs of the jury to a defendant in a criminal case is not an invasion of the constitutional right of the accused to a trial by jury. Kincaid v. Commonwealth, 200 Va. 341 , 105 S.E.2d 846 (1958).

Defendant's understanding of the cost of a jury trial and her desire to avoid this expense did not constitute coercion rendering her waiver of a jury involuntary. Ohree v. Commonwealth, 26 Va. App. 299, 494 S.E.2d 484 (1998).

Costs are no part of the punishment of the accused. Anglea v. Commonwealth, 51 Va. (10 Gratt.) 696 (1853); Commonwealth v. McCue's Ex'rs, 109 Va. 302 , 63 S.E. 1066 (1909).

But they are exacted simply to reimburse the State for necessary expenditures in the enforcement of its violated laws. Anglea v. Commonwealth, 51 Va. (10 Gratt.) 696 (1853); Commonwealth v. McCue's Ex'rs, 109 Va. 302 , 63 S.E. 1066 (1909); Kincaid v. Commonwealth, 200 Va. 341 , 105 S.E.2d 846 (1958).

This statute only subjects the accused to such costs as the Commonwealth is bound to pay. Anglea v. Commonwealth, 51 Va. (10 Gratt.) 696 (1853). See Finch v. Commonwealth, 55 Va. (14 Gratt.) 643 (1858).

Authorized fees. - Court was authorized to assess a fee against defendant for the Commonwealth's attorney fee, the clerks fee, and the recording fee under this section. Ohree v. Commonwealth, 26 Va. App. 299, 494 S.E.2d 484 (1998).

Court was authorized to assess a fee for the Criminal Injuries Compensation Fund against a defendant convicted of welfare fraud; the Commonwealth and its citizens were injured by the defendant's commission of the crime. Ohree v. Commonwealth, 26 Va. App. 299, 494 S.E.2d 484 (1998).

An individual convicted of a crime against the Commonwealth can be said to have caused the Commonwealth to incur the expense of the prosecution of that individual; therefore the imposition of a courthouse maintenance fee upon a defendant convicted of welfare fraud furthered the legislature's goal of reimbursement and was valid. Ohree v. Commonwealth, 26 Va. App. 299, 494 S.E.2d 484 (1998).

Costs are not affected by a pardon. - A pardon releasing a prisoner from all pains, penalties and forfeitures incurred by his conviction and sentence was held not to release him from the costs incurred in his prosecution by the Commonwealth. Anglea v. Commonwealth, 51 Va. (10 Gratt.) 696 (1853).

The only officer empowered to institute proceedings for the collection of costs due the State in a criminal prosecution is the Comptroller. See § 8-758 (now § 8.01-196 ). If the claim for such costs be asserted in a chancery suit by the local attorney for the Commonwealth, without the consent and approval of the Comptroller, it is a proceeding without authority, the State does not thereby become a party, and is not bound by any decree affecting her rights. Commonwealth v. McCue's Ex'rs, 109 Va. 302 , 63 S.E. 1066 (1909).

Applied in In re Thompson, 145 Bankr. 848 (Bankr. E.D. Va. 1992).

CIRCUIT COURT OPINIONS

Responsibility for costs. - Defendant's appeal of a district court conviction for unreasonably failing to permit his blood or breath to be tested when charged with driving while intoxicated was a criminal matter to which the same procedures applied as appeals from misdemeanor convictions, and defendant was therefore responsible for the jury expense incurred in the circuit court when defendant withdrew his appeal on the day of trial when a jury had been assembled and resolved his case via plea bargain; to avoid the charge, defendant would have had to have withdrawn his jury demand at least 10 days prior to trial. Commonwealth v. Franklin, 54 Va. Cir. 214, 2000 Va. Cir. LEXIS 579 (Northampton County 2000).

§ 19.2-337. Claims not presented in time to be disallowed.

If by reason of the failure of a person to present his claim in due time a sum be not included in such execution which would have been included if so presented, such claim, unless there be good cause for the failure, shall be disallowed.

(Code 1950, § 19.1-321; 1960, c. 366; 1975, c. 495.)

§ 19.2-338. Collection by town of cost of transporting prisoners.

  1. Notwithstanding any provision of any charter or any law to the contrary, any town may provide that any person convicted of violating any ordinance of the town may be charged, in addition to all other costs, fines, fees and charges, the costs of transporting such person so convicted to and from a jail or other penal institution outside the corporate limits of such town designated by the town as a place of confinement for persons arrested for violating the ordinances of the town and required to be held in jail pending trial upon such charge. The cost of such transportation shall be taxed as a part of the costs payable by persons convicted of violating such ordinances.
  2. No officer transporting any person convicted of violating any ordinance of the town, as provided in subsection (1) hereof, shall charge or be paid, nor shall such town receive directly or indirectly, more than the cost of transporting such person when more than one person is transported.

    (Code 1950, § 19.1-322; 1960, c. 366; 1975, c. 495; 1995, c. 51.)

Chapter 21. Recovery of Fines and Penalties.

Proceedings to Recover.

Reports, etc., of Fines and Costs.

Collection and Disposition of Fines.

Payment of Fines and Costs on Installment Basis, etc.

Receipts for Fines.

Relief from Fines and Penalties.

Article 1. Proceedings to Recover.

§ 19.2-339. Word "fine" construed.

Whenever the word "fine" is used in this chapter, it shall be construed to refer solely to the pecuniary penalty imposed by a court or jury upon a defendant who has been found guilty of a crime. The word "fine" shall not include other forfeitures, penalties, costs, amercements or the like, even though they follow as a consequence of conviction of crime.

(Code 1950, § 19.1-323; 1960, c. 366; 1975, c. 495.)

Cross references. - As to prohibition of excessive fines, see Va. Const., Art. I, § 9.

As to power of Governor to remit fines, see Va. Const., Art. V, § 12, and § 19.2-363 .

Law review. - For a note, "The Supreme Court's Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards," see 86 Va. L. Rev. 1249 (2000).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 90.

CASE NOTES

This section has no application to an action to recover statutory penalty for failure of telegraph company to promptly deliver a telegram. Western Union Tel. Co. v. Tyler, 90 Va. 297 , 18 S.E. 280 (1893), appeal dismissed, 17 S. Ct. 1002, 41 L. Ed. 1180 (1896). See § 56-469.

Nor does this section apply to an action to recover statutory penalty for failure to construct cattle guards. Russell v. Louisville & N.R.R., 93 Va. 322 , 25 S.E. 99 (1896).

Scope of authority of Workers' Compensation Commission. - Workers' Compensation Commission has the same authority as a court to punish for noncompliance with its discovery orders and it has the inherent authority to strike a party's defenses for failure to comply with a discovery order. Jeff Coal, Inc. v. Phillips, 16 Va. App. 271, 430 S.E.2d 712 (1993).

OPINIONS OF THE ATTORNEY GENERAL

Collection of unpaid tolls. - A Commonwealth's Attorney may collect civil penalties, unpaid tolls, and administrative fees awarded to a private toll facility operator under § 46.2-819.3:1 , but is not obligated to do so. A court is not authorized to compel a Commonwealth's Attorney to undertake such a discretionary act, nor to undertake collection of such a monetary judgment on its own initiative. See opinion of Attorney General to Honorable Stephen E. Heretick, Member, Virginia House of Delegates, 18-021, 2019 Va. AG LEXIS 13 (6/28/19).

§ 19.2-340. Fines; how recovered; in what name.

When any statute or ordinance prescribes a fine, unless it is otherwise expressly provided or would be inconsistent with the manifest intention of the General Assembly, it shall be paid to the Commonwealth if prescribed by a statute and recoverable by presentment, indictment, information, or warrant and paid to the locality if prescribed by an ordinance and recoverable by warrant. Whenever any warrant or summons is issued pursuant to § 19.2-72 or 19.2-74 for an offense in violation of any county, city, or town ordinance that is similar to any provision of this Code, and such warrant or summons references the offense using both the citation corresponding to the county, city, or town ordinance and the specific provision of this Code, any fine prescribed by the county, city, or town ordinance shall be paid to the locality. Fines imposed and costs taxed in a criminal or traffic prosecution, including a prosecution for a violation of an ordinance adopted pursuant to § 46.2-1220 , for committing an offense shall constitute a judgment and, if not paid at the time they are imposed, execution may issue thereon in the same manner as upon any other monetary judgment, subject to the period of limitations provided by § 19.2-341 .

(Code 1950, § 19.1-324; 1960, c. 366; 1975, c. 495; 1995, c. 438; 2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 524 and 542, effective July 1, 2021, are identical, and inserted the second sentence.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 92, 95-97, 100, 104; 18 M.J. Trespass, § 1.

Applied in Holt v. Virginia, 567 F. Supp. 210 (W.D. Va. 1983).

OPINIONS OF THE ATTORNEY GENERAL

Limitations on fines/costs. - Civil enforcement of a fine or costs imposed by a circuit court in a traffic or criminal prosecution, the statute of limitations is twenty years, beginning on the date of offense or delinquency, and is not tolled when the debtor is incarcerated. See opinion of Attorney General to The Honorable Richard L. Francis, Clerk, County of Southampton/City of Franklin Circuit Court, 16-022, 2017 Va. AG LEXIS 13 (4/27/17).

Collection of unpaid tolls. - A Commonwealth's Attorney may collect civil penalties, unpaid tolls, and administrative fees awarded to a private toll facility operator under § 46.2-819.3:1 , but is not obligated to do so. A court is not authorized to compel a Commonwealth's Attorney to undertake such a discretionary act, nor to undertake collection of such a monetary judgment on its own initiative. See opinion of Attorney General to Honorable Stephen E. Heretick, Member, Virginia House of Delegates, 18-021, 2019 Va. AG LEXIS 13 (6/28/19).

§ 19.2-340.1. Disposition of fines in criminal cases.

When a law-enforcement officer of (i) the Department of State Police or (ii) any other division of the state government makes an arrest or issues a summons for a violation of a provision of the Code of Virginia, the person arrested or summoned shall be charged with a violation of that Code provision and shall not be charged with a substantially similar local ordinance. All fines collected upon conviction of any person so arrested or summoned shall be credited to the Literary Fund.

(2012, c. 749.)

§ 19.2-341. Penalties other than fines; how recovered; in what name; limitation of actions.

When any statute or ordinance prescribes a monetary penalty other than a fine, unless it is otherwise expressly provided or would be inconsistent with the manifest intention of the General Assembly, it shall be paid to the Commonwealth if prescribed by a statute and paid to the locality if prescribed by an ordinance and recoverable by warrant, presentment, indictment, or information. Penalties imposed and costs taxed in any such proceeding shall constitute a judgment and, if not paid at the time they are imposed, execution may issue thereon in the same manner as upon any other monetary judgment. No such proceeding of any nature, however, shall be brought or had for the recovery of such a penalty or costs due the Commonwealth or any political subdivision thereof, unless within 60 years from the date of the offense or delinquency giving rise to imposition of such penalty if imposed by a circuit court or within 30 years if imposed by a general district court.

(Code 1950, § 19.1-324; 1960, c. 366; 1975, c. 495; 1983, c. 499; 1995, c. 438; 2018, c. 736.)

The 2018 amendments. - The 2018 amendment by c. 736 substituted "60 years" for "twenty years" and "30 years" for "ten years" in the last sentence.

OPINIONS OF THE ATTORNEY GENERAL

Limitations on fines/costs. - Civil enforcement of a fine or costs imposed by a circuit court in a traffic or criminal prosecution, the statute of limitations is twenty years, beginning on the date of offense or delinquency, and is not tolled when the debtor is incarcerated. See opinion of Attorney General to The Honorable Richard L. Francis, Clerk, County of Southampton/City of Franklin Circuit Court, 16-022, 2017 Va. AG LEXIS 13 (4/27/17).

Collection of unpaid tolls. - A Commonwealth's Attorney may collect civil penalties, unpaid tolls, and administrative fees awarded to a private toll facility operator under § 46.2-819.3:1 , but is not obligated to do so. A court is not authorized to compel a Commonwealth's Attorney to undertake such a discretionary act, nor to undertake collection of such a monetary judgment on its own initiative. See opinion of Attorney General to Honorable Stephen E. Heretick, Member, Virginia House of Delegates, 18-021, 2019 Va. AG LEXIS 13 (6/28/19).

§ 19.2-342. Where and in what court proceeding to be.

In a proceeding under § 19.2-341 , such warrant, presentment, indictment or information shall be in the county or city wherein the offense was committed or the delinquency occurred.

(Code 1950, § 19.1-325; 1960, c. 366; 1975, c. 495.)

§§ 19.2-343, 19.2-344.

Reserved.

Article 2. Reports, etc., of Fines and Costs.

§§ 19.2-345, 19.2-346.

Repealed by Acts 1988, c. 509.

§ 19.2-347.

Repealed by Acts 1983, c. 499.

Article 3. Collection and Disposition of Fines.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 91-93, 95, 96, 100, 104.

§ 19.2-348. Attorneys for Commonwealth or clerks to superintend issue of executions, etc.

The attorney for the Commonwealth or the clerk of the circuit court shall superintend the issuing of all executions or judgments for fines and penalties going wholly or in part to the Commonwealth or a county, city or town, in the circuit court or appropriate district court of his county or city.

(Code 1950, § 19.1-341.1; 1960, c. 366; 1975, c. 495; 1983, c. 499; 1992, c. 623; 1994, c. 811.)

CASE NOTES

Exclusive authority transferred to attorneys for the Commonwealth. - This section and § 19.2-349 transferred exclusive authority from the Comptroller to attorneys for the Commonwealth to institute proceedings to collect fines, costs and forfeitures which have been imposed by the courts. Commonwealth v. Holland, 211 Va. 530 , 178 S.E.2d 506 (1971).

§ 19.2-349. Responsibility for collections; clerks to report unsatisfied fines, etc.; duty of attorneys for Commonwealth; duties of Department of Taxation.

  1. The clerk of the circuit court and district court of every county and city shall submit to the judge of his court, the Department of Taxation, the State Compensation Board and the attorney for the Commonwealth of his county or city a monthly report of all fines, costs, forfeitures and penalties which are delinquent more than 90 days, including court-ordered restitution of a sum certain, imposed in his court for a violation of state law or a local ordinance which remain unsatisfied, including those which are delinquent in installment payments. The monthly report shall include the social security number or driver's license number of the defendant, if known, and such other information as the Department of Taxation and the Compensation Board deem appropriate. The Executive Secretary shall make the report required by this subsection on behalf of those clerks who participate in the Supreme Court's automated information system.
  2. The clerk of the circuit court and district court of every county and city shall submit quarterly to the attorney for the Commonwealth of his county or city and any probation agency that serves such county or city:
    1. A list of all defendants with an outstanding balance of restitution ordered by the court served by such clerk. Such report shall include the defendant's name, case number, total amount of restitution ordered, amount of restitution remaining due, and last date of payment; and
    2. A list of all accounts where more than 90 days have passed since an account was sent to collections and no payments have been made toward fines, costs, forfeitures, penalties, or restitution. For accounts where restitution is owed, such report shall include the defendant's name, case number, and total amount of restitution and restitution interest due.
  3. It shall be the duty of the attorney for the Commonwealth to cause proper proceedings to be instituted for the collection and satisfaction of all fines, costs, forfeitures, penalties and restitution. The attorney for the Commonwealth shall determine whether it would be impractical or uneconomical for such service to be rendered by the office of the attorney for the Commonwealth. If the defendant does not enter into an installment payment agreement under § 19.2-354 , the attorney for the Commonwealth and the clerk may agree to a process by which collection activity may be commenced 90 days after judgment. If the attorney for the Commonwealth does not undertake collection, he shall contract with (i) private attorneys or private collection agencies, (ii) enter into an agreement with a local governing body, (iii) enter into an agreement with the county or city treasurer, or (iv) use the services of the Department of Taxation, upon such terms and conditions as may be established by guidelines promulgated by the Office of the Attorney General, the Executive Secretary of the Supreme Court with the Department of Taxation and the Compensation Board. If the attorney for the Commonwealth undertakes collection, he shall follow the procedures established by the Department of Taxation and the Compensation Board. Such guidelines shall not supersede contracts between attorneys for the Commonwealth and private attorneys and collection agencies when active collection efforts are being undertaken. As part of such contract, private attorneys or collection agencies shall be given access to the social security number of the defendant in order to assist in the collection effort. Any such private attorney shall be subject to the penalties and provisions of § 18.2-186.3 . The fees of any private attorneys or collection agencies shall be paid on a contingency fee basis out of the proceeds of the amounts collected. However, in no event shall such attorney or collection agency receive a fee for amounts collected by the Department of Taxation under the Setoff Debt Collection Act (§ 58.1-520 et seq.). A local treasurer undertaking collection pursuant to an agreement with the attorney for the Commonwealth may collect the administrative fee authorized by § 58.1-3958 .
  4. The Department of Taxation and the State Compensation Board shall be responsible for the collection of any judgment which remains unsatisfied or does not meet the conditions of § 19.2-354 . Persons owing such unsatisfied judgments or failing to comply with installment payment agreements under § 19.2-354 shall be subject to the delinquent tax collection provisions of Title 58.1. The Department of Taxation and the State Compensation Board shall establish procedures to be followed by clerks of courts, attorneys for the Commonwealth, other state agencies and any private attorneys or collection agents and may employ private attorneys or collection agencies, or engage other state agencies to collect the judgment. The Department of Taxation and the Commonwealth shall be entitled to deduct a fee for services from amounts collected for violations of local ordinances. The Department of Taxation and the State Compensation Board shall annually report to the Governor and the General Assembly the total of fines, costs, forfeitures and penalties assessed, collected, and unpaid and those which remain unsatisfied or do not meet the conditions of § 19.2-354 by each circuit and district court. The report shall include the procedures established by the Department of Taxation and the State Compensation Board pursuant to this section and a plan for increasing the collection of unpaid fines, costs, forfeitures and penalties. The Auditor of Public Accounts shall annually report to the Governor, the Executive Secretary of the Supreme Court and the General Assembly as to the adherence of clerks of courts, attorneys for the Commonwealth and other state agencies to the procedures established by the Department of Taxation and the State Compensation Board. The Office of the Executive Secretary of the Supreme Court shall annually report to the Governor, the General Assembly, the Chairmen of the House Committee for Courts of Justice and Senate Committee on the Judiciary, and the Virginia State Crime Commission on the total of restitution assessed, collected, and unpaid for each circuit and district court and the total of restitution collected and deposited into the Criminal Injuries Compensation Fund pursuant to subsection I of § 19.2-305.1 by each circuit and district court.
  5. The provisions of this section shall not apply to any orders of restitution docketed in the name of the victim or when it is ordered that an assignment of the judgment for restitution to the victim be docketed.

    (Code 1950, § 19.1-341.2; 1960, c. 366; 1975, c. 495; 1979, c. 469; 1983, cc. 415, 499; 1988, cc. 742, 750, 770, 852; 1991, c. 202; 1992, c. 623; 1993, c. 269; 1994, cc. 841, 945; 2001, c. 414; 2003, c. 262; 2006, c. 359; 2007, c. 551; 2012, c. 615; 2017, cc. 786, 802, 806, 814; 2018, cc. 724, 725; 2021, Sp. Sess. I, cc. 190, 393.)

Editor's note. - Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 72 C, effective for the biennium ending June 30, 2022, provides: "Consistent with the provisions of § 19.2-349 , Code of Virginia, attorneys for the Commonwealth may, in addition to the options otherwise provided by law, employ individuals to assist in collection of outstanding fines, costs, forfeitures, penalties, and restitution. Notwithstanding any other provision of law, beginning on the date upon which the order or judgment is entered, the costs associated with employing such individuals may be paid from the proceeds of the amounts collected provided that the cost is apportioned on a pro rata basis according to the amount collected which is due the state and that which is due the locality. The attorneys for the Commonwealth shall account for the amounts collected and apportion costs associated with the collections consistent with procedures issued by the Auditor of Public Accounts.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 72 H, effective for the biennium ending June 30, 2022, provides: "In accordance with the provisions of § 19.2-349 , Code of Virginia,attorneys for the Commonwealth may employ individuals, or contract with private attorneys, private collection agencies, or other state or local agencies, to assist in collection of delinquent fines, costs, forfeitures, penalties, and restitution. If the attorney for the Commonwealth employs individuals, the costs associated with employing such individuals may be paid from the proceeds of the amounts collected provided that the cost is apportioned on a pro rata basis according to the amount collected which is due the state and that which is due the locality. If the attorney for the Commonwealth does not undertake collection, the attorney for the Commonwealth shall, as soon as practicable, take steps to ensure that any agreement or contract with an individual, attorney or agency complies with the terms of the current Master Guidelines Governing Collection of Unpaid Delinquent Court-Ordered Fines and Costs Pursuant to Virginia Code § 19.2-349 promulgated by the Office of the Attorney General, the Executive Secretary of the Supreme Court, the Department of Taxation, and the Compensation Board ('the Master Guidelines'). Notwithstanding any other provision of law, the delinquent amounts owed shall be increased by seventeen (17) percent to help offset the costs associated with employing such individuals or contracting with such agencies or individuals. If such increase would exceed the contracted collection agent's fee, then the delinquent amount owed shall be increased by the percentage or amount of the collection agent's fee. Effective July 1, 2015, as provided in § 19.2-349 , Code of Virginia, treasurers not being compensated on a contingency basis as of January 1, 2015 shall be prohibited from being compensated on a contingency basis but shall instead be compensated for administrative costs pursuant to § 58.1-3958 , Code of Virginia. Treasurers currently collecting a contingency fee shall be eligible to contract on a contingency fee basis. Effective July 1, 2015, any treasurer collecting a contingency fee shall retain only the expenses of collection, and the excess collection shall be divided between the state and the locality in the same manner as if the collection had been done by the attorney for the Commonwealth. The attorneys for the Commonwealth shall account for the amounts collected and the fees and costs associated with the collections consistent with procedures issued by the Auditor of Public Accounts."

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 73 C, effective for the biennium ending June 30, 2022, provides: "Each clerk of the circuit court shall submit to the Compensation Board a copy of the report required pursuant to § 19.2-349 , Code of Virginia, at the same time that it is submitted to the Commonwealth's attorney."

The Virginia Code Commission authorized the substitution of "the Chairmen of the House Committee for Courts of Justice and Senate Committee on the Judiciary" for "the Chairmen of the House and Senate Committees for Courts of Justice." March 10, 2021.

The 2001 amendments. - The 2001 amendment by c. 414 substituted "fifteen days" for "ten days" near the end of the first paragraph of subsection B.

The 2003 amendments. - The 2003 amendment by c. 262 substituted "30" for "thirty" in subsection A; substituted "15" for "fifteen" in subsection B; and in the first sentence of the second paragraph of subsection B, deleted "or" at the end of clause (ii), inserted present clause (iii), and redesignated former clause B (iii) as present clause (iv).

The 2006 amendments. - The 2006 amendment by c. 359 added the last sentence in the last paragraph of subsection B.

The 2007 amendments. - The 2007 amendment by c. 551 added the last two sentences in the second paragraph of subsection B.

The 2012 amendments. - The 2012 amendment by c. 615 substituted "30 days" for "15 days" in the first paragraph of subsection B.

The 2017 amendments. - The 2017 amendments by cc. 786 and 814 are identical, and inserted subsection B and redesignated remaining subsections accordingly.

The 2017 amendments by cc. 802 and 806 are identical, and substituted "90 days" for "30 days" in subsections A and C.

The 2018 amendments. - The 2018 amendments by cc. 724 and 725 are identical, and added the third paragraph in subsection D.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 190 and 393, effective July 1, 2021, are identical, and added subsection E.

OPINIONS OF THE ATTORNEY GENERAL

City may enter into agreement with Commonwealth's Attorney for collection and receive a contingent collection fee. - A city treasurer is authorized to enter into an agreement with the local Commonwealth's Attorney for the collection of delinquent court debt. The city treasurer is authorized to receive a contingent collection fee provided the percentage amount of this fee is no higher than 35 percent of any amounts recovered. The city treasurer may receive an administrative fee under § 58.1-3958 in addition to the contingent collection fee. See opinion of Attorney General to the Honorable Barbara O. Carraway, CPA, Chesapeake City Treasurer, 13-044, 2013 Va. AG LEXIS 74 (8/30/13).

Collection of unpaid tolls. - A Commonwealth's Attorney may collect civil penalties, unpaid tolls, and administrative fees awarded to a private toll facility operator under § 46.2-819.3:1 , but is not obligated to do so. A court is not authorized to compel a Commonwealth's Attorney to undertake such a discretionary act, nor to undertake collection of such a monetary judgment on its own initiative. See opinion of Attorney General to Honorable Stephen E. Heretick, Member, Virginia House of Delegates, 18-021, 2019 Va. AG LEXIS 13 (6/28/19).

Section 19.2-349 does not require the Commonwealth's Attorney to collect a judgment of civil penalties, unpaid tolls, administrative fees, and court costs awarded under § 46.2-819.3:1 for toll violations occurring at a private toll facility. See opinion of Attorney General to The Honorable Stephanie N. Morales, Commonwealth's Attorney, City of Portsmouth, 18-034, 2019 Va. AG LEXIS 14 (6/28/19).

Use of warrant in debt. - Court proceeding for a toll violation brought under § 46.2-819.3:1 is initiated by summons, not by the filing of a warrant in debt. See opinion of Attorney General to Honorable Stephen E. Heretick, Member, Virginia House of Delegates, 18-021, 2019 Va. AG LEXIS 13 (6/28/19).

Payment plans and notification of DMV. - There is no provision exempting the court or toll facility operator from giving notice to DMV in cases where the offender has entered into an installment or payment plan for the unpaid toll; furthermore, if unpaid tolls, administrative fees, and civil penalties are not paid in full, the court or the toll facility operator is required to notify the Commissioner of DMV. See opinion of Attorney General to Honorable Stephen E. Heretick, Member, Virginia House of Delegates, 18-021, 2019 Va. AG LEXIS 13 (6/28/19).

§ 19.2-349.1. Receipt of unpaid fines, costs, forfeitures, penalties, or restitution by Department of Motor Vehicles.

At the direction of the Committee on District Courts or at the request of a circuit court clerk, the Executive Secretary of the Supreme Court may enter into an agreement with the Commissioner of the Department of Motor Vehicles authorizing the Department of Motor Vehicles to receive, on behalf of a district or circuit court, payment of any delinquent fines, costs, forfeitures, and penalties, including any court-ordered restitution of a sum certain, imposed by a court for the violation of a state law or a local ordinance. However, in no case shall the Department of Motor Vehicles be authorized to establish an installment plan for any such payments or to receive partial payment of the full amount imposed by the court for the violation of a state law or a local ordinance.

For each such payment it receives, the Department of Motor Vehicles may impose and collect a processing fee, to be used to defray the costs of the transaction to the Department. Such transaction fee shall be $2, unless payment is made by credit card or debit card and the merchant's fees and other transaction costs imposed by the card issuer are charged to the Department of Motor Vehicles, in which case the processing fee shall be the greater of (i) $2 or (ii) an amount not to exceed four percent of the amount of the payment. The Department may also collect any processing fee charged by a private vendor operating under contract to distribute to the court payments received by the Department. All processing fees imposed and collected by the Department of Motor Vehicles under this section shall be in addition to the other fees specified in this chapter. All such processing fees collected by the Department of Motor Vehicles shall be paid into the state treasury as provided in § 46.2-206 and used to meet the expenses of the Department of Motor Vehicles. The service charge provided under § 46.2-212.1 shall not be added to the processing fee authorized under this section. Other fees specified in this chapter, including those payable pursuant to collections contracts made by attorneys for the Commonwealth, shall not be diminished or offset due to receipt of payments by the Department of Motor Vehicles.

(2015, c. 228.)

Editor's note. - Acts 2015, c. 228, cl. 2 provides: "That the Commissioner of the Department of Motor Vehicles and the Executive Secretary of the Supreme Court shall submit a report of their progress in implementing the provisions of this act by December 1 of each year to the Chairmen of the House and Senate Committees for Courts of Justice and the House and Senate Committees on Transportation." Acts 2021, Sp. Sess. I, c. 379, cl. 1 repealed Acts 2015, c. 228, cl. 2.

§ 19.2-350. When sheriff not to receive fines.

No sheriff or other law-enforcement officer shall receive any fine, penalty or costs imposed by a court not of record, except under process duly issued.

(Code 1950, § 19.1-342; 1960, c. 366; 1975, c. 495.)

Cross references. - As to payment of fine by person committed to jail until he pays a fine, see § 53.1-116 .

§ 19.2-351. How fines disposed of; informer.

Although a law may allow an informer or person prosecuting to have part of a fine or penalty, the whole thereof shall go to the Commonwealth, unless the name of such informer or prosecutor be endorsed on, or written at the foot of, the presentment at the time it is made, or of the indictment before it is presented to the grand jury, or of the information before it is filed, or of the writ issued in the action, or the process on the warrant, or the notice of the motion before service of such writ, process, or notice.

(Code 1950, § 19.1-344; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Informers, § 2.

§ 19.2-352. Officers to pay fines to clerks; default; forfeiture, etc.

Every sheriff or other officer receiving money under a writ of fieri facias or capias pro fine shall pay the same to the clerk of the court from which such process issued, on or before the return day of such process; and if such sheriff or other officer fail to pay the money, or fail to return such writ of fieri facias or capias pro fine, he shall, for every such failure, unless good cause be shown therefor, forfeit twenty dollars; and the clerk shall, within ten days from the return day of such process, report the failure to pay such money, or to return such process, to the attorney for the Commonwealth, who shall proceed at once against such officer in default to recover such money and the forfeiture aforesaid.

(Code 1950, § 19.1-345; 1960, c. 366; 1975, c. 495.)

§ 19.2-353. Certain fines paid into Literary Fund.

The proceeds of all fines and penalties collected for offenses committed against the Commonwealth, and directed by Article VIII, Section 8 of the Constitution of Virginia to be set apart as a part of a perpetual and permanent literary fund, shall be paid and collected only in lawful money of the United States, and shall be paid into the state treasury to the credit of the Literary Fund, and shall be used for no other purpose whatsoever.

(Code 1950, § 19.1-346; 1960, c. 366; 1971, Ex. Sess., c. 1; 1975, c. 495.)

Cross references. - As to monetary penalties for violation of Private Security Services Advisory Board regulations credited under this section, see § 9.1-150 .

§ 19.2-353.1. Fieri facias and proceedings thereon.

Any writ of fieri facias issued under this chapter and the proceedings on the same shall conform to the writ of fieri facias and proceedings thereon under Article 19 (§ 8.01-196 et seq.) of Chapter 3 of Title 8.01.

(Code 1950, § 19.1-347; 1960, c. 366; 1975, c. 495.)

§ 19.2-353.2.

Repealed by Acts 1988, cc. 770, 852.

§ 19.2-353.3. Acceptance of checks and credit or debit cards in lieu of money; additional fee.

Notwithstanding the provisions of § 19.2-353 , personal checks and credit or debit cards shall be accepted in lieu of money to collect and secure all fees, fines, restitution, forfeiture, penalties and costs collected for offenses tried in a district court, including motor vehicle violations, committed against the Commonwealth or against any county, city or town. Notwithstanding the provisions of § 19.2-353 , personal checks shall be accepted in lieu of money to collect and secure all fees, fines, restitution, forfeiture, penalties and costs collected for offenses tried in a circuit court, including motor vehicle violations, committed against the Commonwealth or against any county, city or town. The clerk of any circuit court shall not be required to but may, in his discretion, accept credit or debit card payment in lieu of money to collect and secure all fees, including filing fees, fines, restitution, forfeitures, penalties, and costs collected. The Committee on District Courts shall devise a procedure for approving and accepting checks and credit or debit cards that shall be accepted by the district courts. Court personnel shall not be held to be guarantors of the payment made in such manner and shall not be personally liable for any sums uncollected. The clerk of the court, in addition to any fees, fines, restitution, forfeiture, penalties or costs, may add to such payment a sum not to exceed four percent of the amount paid for the transaction, or a flat fee not to exceed $2 per transaction, as a reasonable convenience fee for the acceptance of a credit or debit card.

If a check is returned unpaid by the financial institution on which it is drawn or notice is received from the credit or debit card issuer that payment will not be made, for any reason, the fees, fine, restitution, forfeiture, penalty or costs shall be treated as unpaid, and the court may pursue all available remedies to obtain payment. The clerk of the court to whom the dishonored check or credit or debit card was tendered may impose a fee of $50 or 10 percent of the value of the payment, whichever is greater, in addition to the fine and costs already imposed.

The clerk of court may refuse acceptance of checks or credit or debit cards of an individual if (i) he has been convicted of a violation of Chapter 6 (§ 18.2-168 et seq.) of Title 18.2 in which a check, credit or debit card, or credit or debit card information was used to commit the offense, (ii) he has previously tendered to the court a check which was not ultimately honored or a credit or debit card or credit or debit card information which did not ultimately result in payment by the credit or debit card issuer, (iii) authorization of payment is not given by the bank or credit or debit card issuer, (iv) the validity of the check or credit or debit card cannot be verified, or (v) the payee of the check is other than the court.

(1979, c. 525; 1988, cc. 770, 852; 1990, c. 899; 1994, cc. 432, 841, 945; 1997, c. 819; 1998, cc. 720, 731; 2001, cc. 481, 501; 2009, c. 594; 2012, cc. 420, 714.)

Cross references. - As to authority of public body responsible for revenue collection to accept revenue by commercially acceptable means, see § 2.2-614.1 .

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2001 amendments. - The 2001 amendments by cc. 481 and 501 are identical, and in the first paragraph, in the third sentence, inserted "including filing fees," and deleted "for such offenses" at the end of the sentence; and inserted "fees" in the first sentence of the second paragraph.

The 2009 amendments. - The 2009 amendment by c. 594 substituted "reasonable convenience fee" for "service charge" in the last sentence of the first paragraph.

The 2012 amendments. - The 2012 amendment by c. 420 substituted "impose a fee of $50 or 10 percent of the value of the payment" for "impose a fee of twenty dollars or ten percent of the value of the payment" near the end of the second paragraph.

The 2012 amendment by c. 714 substituted "credit or debit cards" for "credit cards" and "credit or debit card" for "credit or debit card" throughout the section; and inserted "for the transaction, or a flat fee not to exceed $2 per transaction," near the end of the first paragraph.

Applied in West v. Costen, 558 F. Supp. 564 (W.D. Va. 1983).

OPINIONS OF THE ATTORNEY GENERAL

Returned check fee. - The clerk of a circuit court cannot collect a returned check fee in a civil case. See opinion of Attorney General to The Honorable Eugene C. Wingfield, Clerk of Court, Lynchburg Circuit Court, 12-028, 2012 Va. AG LEXIS 24 (6/8/2012).

§ 19.2-353.4.

Repealed by Acts 1988, cc. 770, 852.

Editor's note. - The repealed section was enacted by Acts 1985, c. 200, and amended by Acts 1988, c. 757.

§ 19.2-353.5. Interest on fines and costs.

  1. For purposes of this section, "incarcerated" or "incarceration" means confinement in a local or regional correctional facility, juvenile correctional facility, state correctional facility, residential detention center, or facility operated pursuant to the Corrections Private Management Act (§ 53.1-261 et seq.).
  2. No interest shall accrue on any fine or costs imposed in a criminal case or in a case involving a traffic infraction (i) for a period of 180 days following the date of the final judgment imposing such fine or costs; (ii) during any period the defendant is incarcerated; and (iii) for a period of 180 days following the date of the defendant's release from incarceration if the sentence includes an active term of incarceration.
  3. A person who owes fines and costs on which interest has accrued during a period of incarceration may move any court in which he owes fines and costs to waive the interest that accrued on such fines and costs during such period of incarceration. Upon certification of the period of incarceration by the superintendent, warden, or other official in charge of a correctional facility on a form developed by the Office of the Executive Secretary of the Supreme Court, such interest shall be waived.
  4. In no event shall interest accrue during any period in which a fine, costs, or both a fine and costs are being paid in deferred or installment payments pursuant to an order of the court. Whenever interest on any unpaid fine or costs accrues, it shall accrue at the judgment rate of interest set forth in § 6.2-302 . (1987, c. 648; 1988, cc. 106, 508; 1995, cc. 375, 566; 1996, c. 226; 2016, c. 282; 2021, Sp. Sess. I, c. 388.)

Editor's note. - Effective October 1, 2010, "6.2-302" was substituted for "6.1-330.54" to conform to the recodification of Title 6.1 by Acts 2010, c. 794.

The 2016 amendments. - The 2016 amendment by c. 282 substituted "40" for "forty" and deleted "as a result of that case" at the end of the first sentence and added the second and third sentences.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 388, effective July 1, 2021, added subsection A and designated the existing paragraphs as subsections B-D; in subsection B, substituted "180 days following" for "40 days from", added "and (iii) for a period of 180 days following the date of the defendant's release from incarceration if the sentence includes an active term of incarceration," added the clause designations (i) and (ii), and deleted "or" following "imposing such fine or costs"; and deleted "in such cases" following "shall interest accrue" in subsection D.

Michie's Jurisprudence. - For related discussion, see 5A M.J. Costs, § 17.

Article 4. Payment of Fines and Costs on Installment Basis, etc.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 92, 98, 99.

§ 19.2-354. Authority of court to order payment of fine, costs, forfeitures, penalties or restitution in installments or upon other terms and conditions; community work in lieu of payment.

  1. Any defendant convicted of a traffic infraction or a violation of any criminal law of the Commonwealth or of any political subdivision thereof, or found not innocent in the case of a juvenile, who is sentenced to pay a fine, restitution, forfeiture, or penalty may pay such fine, restitution, forfeiture, or penalty and any costs that the defendant may be required to pay in deferred payments or installments. The court assessing the fine, restitution, forfeiture, or penalty and costs shall authorize the clerk to establish and approve individual deferred or installment payment agreements. If the defendant owes court-ordered restitution and enters into a deferred or installment payment agreement, any moneys collected pursuant to such agreement shall be used first to satisfy such restitution order and any collection costs associated with restitution prior to being used to satisfy any other fine, forfeiture, penalty, or cost owed, unless an order for restitution is docketed in the name of the victim or it is ordered that an assignment of the judgment to the victim be docketed. Any payment agreement authorized under this section shall be consistent with the provisions of § 19.2-354.1 . The requirements set forth in § 19.2-354.1 shall be posted in the clerk's office and on the court's website, if a website is available. As a condition of every such agreement, a defendant who enters into an installment or deferred payment agreement shall promptly inform the court of any change of mailing address during the term of the agreement. If the defendant is unable to make payment within 90 days of sentencing, the court may assess a one-time fee not to exceed $10 to cover the costs of management of the defendant's account until such account is paid in full. This one-time fee shall not apply to cases in which costs are assessed pursuant to § 17.1-275.1 , 17.1-275.2 , 17.1-275.3 , 17.1-275.4 , 17.1-275.7 , 17.1-275.8 , or 17.1-275.9 . Installment or deferred payment agreements shall include terms for payment if the defendant participates in a program as provided in subsection B or C. The court, if such sum or sums are not paid in full by the date ordered, shall proceed in accordance with § 19.2-358 .
  2. When a person sentenced to the Department of Corrections or a local correctional facility owes any fines, costs, forfeitures, restitution, or penalties, he shall be required as a condition of participating in any work release, home/electronic incarceration, or nonconsecutive days program as set forth in § 53.1-60 , 53.1-131 , 53.1-131 .1, or 53.1-131.2 to either make full payment or make payments in accordance with his installment or deferred payment agreement while participating in such program. If, after the person has an installment or deferred payment agreement, the person fails to pay as ordered, his participation in the program may be terminated until all fines, costs, forfeitures, restitution, and penalties are satisfied. The Director of the Department of Corrections and any sheriff or other administrative head of any local correctional facility shall withhold such ordered payments from any amounts due to such person. Distribution of the moneys collected shall be made in the following order of priority to:
    1. Meet the obligation of any judicial or administrative order to provide support and such funds shall be disbursed according to the terms of such order;
    2. Pay any restitution as ordered by the court;
    3. Pay any fines or costs as ordered by the court;
    4. Pay travel and other such expenses made necessary by his work release employment or participation in an education or rehabilitative program, including the sums specified in § 53.1-150 ; and
    5. Defray the offender's keep. The balance shall be credited to the offender's account or sent to his family in an amount the offender so chooses. The State Board of Local and Regional Jails shall promulgate regulations governing the receipt of wages paid to persons sentenced to local correctional facilities participating in such programs, the withholding of payments, and the disbursement of appropriate funds. The Director of the Department of Corrections shall prescribe rules governing the receipt of wages paid to persons sentenced to state correctional facilities participating in such programs, the withholding of payments, and the disbursement of appropriate funds.
  3. The court shall establish a program and may provide an option to any person upon whom a fine and costs have been imposed to discharge all or part of the fine or costs by earning credits for the performance of community service work (i) before or after imprisonment or (ii) in accordance with the provisions of § 19.2-316.4 , 53.1-59 , 53.1-60 , 53.1-128 , 53.1-129 , or 53.1-131 during imprisonment. The program shall specify the rate at which credits are earned and provide for the manner of applying earned credits against the fine or costs. The court assessing the fine or costs against a person shall inform such person of the availability of earning credit toward discharge of the fine or costs through the performance of community service work under this program and provide such person with written notice of terms and conditions of this program. The court shall have such other authority as is reasonably necessary for or incidental to carrying out this program.
  4. When the court has authorized deferred payment or installment payments, the clerk shall give notice to the defendant that upon his failure to pay as ordered he may be fined or imprisoned pursuant to § 19.2-358 .
  5. The failure of the defendant to enter into a deferred payment or installment payment agreement with the court or the failure of the defendant to make payments as ordered by the agreement shall allow the Tax Commissioner to act in accordance with § 19.2-349 to collect all fines, costs, forfeitures, and penalties. (Code 1950, § 19.1-347.1; 1971 Ex. Sess., c. 250; 1975, c. 495; 1977, c. 585; 1982, c. 244; 1984, c. 32; 1986, c. 230; 1988, cc. 770, 852; 1994, cc. 841, 945; 1995, cc. 380, 441; 1996, c. 273; 1998, c. 831; 1999, c. 9; 2001, c. 414; 2002, c. 831; 2009, c. 741; 2012, c. 615; 2015, c. 265; 2016, c. 282; 2017, cc. 757, 802, 806; 2018, c. 61; 2020, cc. 25, 188, 759, 964, 965; 2021, Sp. Sess. I, cc. 190, 388, 393.)

The 1999 amendment inserted "This one-time fee shall not apply to cases in which costs are assessed pursuant to §§ 17.1-275.1 , 17.1-275.2 , 17.1-275.3 or § 17.1-275.4 " in subsection A.

The 2001 amendments. - The 2001 amendment by c. 414 substituted "fifteen days" for "ten days" twice in subsection A.

The 2002 amendments. - The 2002 amendment by c. 831, effective July 1, 2003, substituted "17.1-275.4, 17.1-275.7 , 17.1-275.8 or § 17.1-275.9 " for "or 17.1-275.4 " in the next-to-last sentence in subsection A.

The 2009 amendments. - The 2009 amendment by c. 741 substituted "and may provide" for "to provide" in subsection C and made minor stylistic changes.

The 2012 amendments. - The 2012 amendment by c. 615, in subsection A, substituted "30 days" for "fifteen days" in the first and fourth sentences, and made a minor stylistic change.

The 2015 amendments. - The 2015 amendment by c. 265 inserted "and such guidelines shall be reduced to writing as well as posted in the clerk's office and on the court's website, if a website is available" at the end of the second sentence of subsection A.

The 2016 amendments. - The 2016 amendment by c. 282, in subsection A, inserted "assessing the fine, restitution, forfeiture, or penalty and costs," substituted "individual" for "the conditions of all" and deleted "pursuant to guidelines established by the court, and such guidelines shall be reduced to writing as well as" at the end of the second sentence, added the third sentence, and inserted "The requirements established by the Rules of Supreme Court of Virginia shall be" at the beginning of the fourth sentence.

The 2017 amendments. - The 2017 amendment by c. 757, in subsection A, inserted the third sentence; in subdivision B 2, deleted "fines," preceding "restitution" and "or costs" preceding "as ordered by"; inserted subdivision B 3 and redesignated remaining subdivisions accordingly.

The 2017 amendments by cc. 802 and 806 are identical, and in subsection A, substituted "provisions of § 19.2-354.1 " for "Rules of Supreme Court of" in the fourth sentence, substituted "set forth in § 19.2-354.1 " for "established by the Rules of Supreme Court of Virginia" in the fifth sentence, and substituted "90 days" for "30 days" in the seventh sentence.

The 2018 amendments. - The 2018 amendment by c. 61 inserted the third sentence in subsection C.

The 2020 amendments. - The 2020 amendments by cc. 25 and 188 are identical, and substituted "(i) before or after imprisonment or (ii) in accordance with the provisions of § 19.2-316.4 , 53.1-59 , 53.1-60 , 53.1-128 , 53.1-129 , or 53.1-131 during imprisonment" for "before or after imprisonment" in subsection C.

The 2020 amendments by c. 759, in subsection B in the last paragraph, substituted "State Board of Local and Regional Jails" for "State Board of Corrections" and inserted "sentenced to local correctional facilities" in the first sentence and inserted the last sentence.

The 2020 amendments by cc. 964 and 965 are identical, and deleted "and his privilege to operate a motor vehicle will be suspended pursuant to § 46.2-395 " in subsection D at the end.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 190 and 393, effective July 1, 2021, are identical, and inserted "unless an order for restitution is docketed in the name of the victim or it is ordered that an assignment of the judgment to the victim be docketed" in subsection A.

The 2021 amendment by Sp. Sess. I, c. 388, effective July 1, 2021, substituted "moneys" for "money" in subsection A and in subsection B in the introductory language; in subsection A in the first sentence, substituted "Any" for "Whenever (i) a", inserted "who", deleted "and (ii) the defendant is unable to make payment of the fine, restitution, forfeiture, or penalty and costs within 30 days of sentencing, the court shall order the defendant to" following "to pay a fine, restitution, forfeiture, or penalty," "may pay such fine" for "pay such fine"; substituted "shall" for "may" in subsection A in the second sentence; deleted "including any required minimum payments or other required conditions" in subsection A at the end of the third sentence; and made a stylistic change.

Law review. - For article, "Explaining Restitution," see 71 Va. L. Rev. 65 (1985).

CASE NOTES

Restitution. - Compliance with a restitution plan may be enforceable through § 19.2-306 , if incorporated into a sentencing order as a condition of a suspended sentence, or it may be enforceable through § 19.2-358 , regardless of whether the restitution plan stated that it was entered into pursuant to § 19.2-354 . The enforcement mechanisms of §§ 19.2-306 and 19.2-358 are not mutually exclusive. Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).

Section 19.2-358 plainly applies to any payment or installment payment plans, not only those entered pursuant to this section. Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).

OPINIONS OF THE ATTORNEY GENERAL

Applicability. - Subsection C of § 19.2-354 only applies to offenders performing community service work before or after their imprisonment, not for community service work performed while confined in a state prison, state detention center or diversion center, or local correctional facility. See opinion of Attorney General to Honorable Joseph W. Milam Jr. and the Honorable James J. Reynolds, Judges of the Circuit Court for the City of Danville, 18-007, 2018 Va. AG LEXIS 21 (12/7/18).

Establishment of time frame within which defendant may make deferred or installment payments of unpaid fines or costs. - The statute permits the court to establish a time frame within which a defendant may make deferred or installment payments of unpaid fines or costs. See opinion of Attorney General to The Honorable George W. Harris Jr., Judge, Twenty-Third Judicial District, 00-063 (11/28/00).

Authority of clerk to grant or deny request. - A clerk may grant or deny a request for time to pay when the guidelines established by the court authorize such a practice, and such decisions are final and are not appealable. See opinion of Attorney General to The Honorable George W. Harris Jr., Judge, Twenty-Third Judicial District, 00-063 (11/28/00).

No appeal of court decision regarding deferred or installment payments. - There is no authority for appeal of a court decision regarding deferred or installment payments. See opinion of Attorney General to The Honorable George W. Harris Jr., Judge, Twenty-Third Judicial District, 00-063 (11/28/00).

Restoration of driver's license after payment of reinstatement fee and entry into agreement for deferred or installment payments. - The court must restore the driver's license of a defendant after the defendant has paid the reinstatement fee to the Department of Motor Vehicles and an agreement has been entered to make deferred or installment payments of unpaid fines or costs ordered by the court. See opinion of Attorney General to The Honorable George W. Harris Jr., Judge, Twenty-Third Judicial District, 00-063 (11/28/00).

§ 19.2-354.1. Deferred or installment payment agreements.

  1. For purposes of this section:

    "Deferred payment agreement" means an agreement in which no installment payments are required and the defendant agrees to pay the full amount of the fines and costs at the end of the agreement's stated term.

    "Fines and costs" means all fines, court costs, forfeitures, and penalties assessed in any case by a single court against a defendant for the commission of any crime or traffic infraction. "Fines and costs" includes restitution unless the court orders a separate payment schedule for restitution.

    "Installment payment agreement" means an agreement in which the defendant agrees to make monthly or other periodic payments until the fines and costs are paid in full.

    "Modified deferred payment agreement" means a deferred payment agreement in which the defendant also agrees to use best efforts to make monthly or other periodic payments.

  2. The court shall give a defendant ordered to pay fines and costs written notice of the availability of deferred, modified deferred, and installment payment agreements and, if a community service program has been established, the availability of earning credit toward discharge of fines and costs through the performance of community service work. The court shall offer any defendant the opportunity to enter into a deferred payment agreement, modified deferred payment agreement, or installment payment agreement.
  3. The court shall not deny a defendant the opportunity to enter into a deferred, modified deferred, or installment payment agreement solely (i) because of the category of offense for which the defendant was convicted or found not innocent, (ii) because of the total amount of all fines and costs, (iii) because the defendant previously defaulted under the terms of a payment agreement, (iv) because the fines and costs have been referred for collections pursuant to § 19.2-349 , or (v) because the defendant has not established a payment history.
  4. In determining the length of time to pay under a deferred, modified deferred, or installment payment agreement and the amount of the payments, a court shall take into account the defendant's financial resources and obligations, including any fines and costs owed by the defendant in other courts. In assessing the defendant's ability to pay, the court shall use a written financial statement, on a form developed by the Executive Secretary of the Supreme Court, setting forth the defendant's financial resources and obligations or conduct an oral examination of the defendant to determine his financial resources and obligations. The length of a payment agreement and the amount of the payments shall be reasonable in light of the defendant's financial resources and obligations and shall not be based solely on the amount of fines and costs. The court may offer a payment agreement combining an initial period during which no payment of fines and costs is required followed by a period of installment payments.
  5. No court shall require a defendant to make a down payment upon entering a deferred, modified deferred, or installment payment agreement, other than a subsequent payment agreement, in which case the court may require a down payment pursuant to subsection I. Nothing in this section shall prevent a defendant from voluntarily making a down payment upon entering any payment agreement.
  6. All fines and costs that a defendant owes for all cases in any single court may be incorporated into one payment agreement, unless otherwise ordered by the court in specific cases. A payment agreement shall include only those outstanding fines and costs for which the limitations period set forth in § 19.2-341 has not run.
  7. Any payment received within 10 days of its due date shall be considered to be timely made.
  8. At any time during the duration of a payment agreement, the defendant may request a modification of the agreement in writing on a form provided by the Executive Secretary of the Supreme Court, and the court may grant such modification based on a good faith showing of need.
  9. A defendant who has defaulted on a payment agreement may petition the court for a subsequent payment agreement. In determining whether to approve the request for a subsequent payment agreement, the court shall consider any change in the defendant's circumstances. A court may require a down payment to enter into a subsequent payment agreement, provided that the down payment required to enter into a subsequent payment agreement shall not exceed (i) if the fines and costs owed are $500 or less, 10 percent of such amount or (ii) if the fines and costs owed are more than $500, five percent of such amount or $50, whichever is greater. When a defendant enters into a subsequent payment agreement, a court shall not require a defendant to establish a payment history on the subsequent payment agreement before restoring the defendant's driver's license.

    (2017, cc. 802, 806; 2020, cc. 964, 965; 2021, Sp. Sess. I, c. 388.)

The 2020 amendments. - The 2020 amendments by cc. 964 and 965 are identical, and in subsection C, deleted "or (vi) because the defendant is eligible for a restricted driver's license under subsection E of § 46.2-395 " at the end; and in subsection D, deleted the third sentence, which read: "The court may require the defendant to present a summary prepared by the Department of Motor Vehicles of the other courts in which the defendant also owes fines and costs."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 388, effective July 1, 2021, deleted "who is unable to pay in full the fines and costs within 30 days of sentencing" following "any defendant" in subsection B; rewrote subsection E, which read: "A court may require a down payment as a condition of a defendant entering a deferred, modified deferred, or installment payment agreement. Any down payment shall be a minimal amount to demonstrate the defendant's commitment to paying the fines and costs. In the case of an installment payment agreement, the required down payment may not exceed (i) if the fines and costs owed are $500 or less, 10 percent of such amount or (ii) if the fines and costs owed are more than $500, five percent of such amount or $50, whichever is greater. A defendant may make a larger down payment than what is provided by this subsection"; and in subsection I, substituted the first sentence for "A court shall consider a request by a defendant who has defaulted on a payment agreement to enter into a subsequent payment agreement" and "may require" for "shall require."

§ 19.2-355. Petition of defendant.

  1. The court may require any defendant entering a deferred, modified deferred, or installment payment agreement to file a petition, under oath, with the court, upon a form provided by the court, setting forth the financial condition of the defendant.
  2. Such form shall be a questionnaire, and shall include, but shall not be limited to: the name and residence of the defendant; his occupation, if any; his family status and the number of persons dependent upon him; his monthly income; whether or not his dependents are employed and, if so, their approximate monthly income; his banking accounts, if any; real estate owned by the defendant, or any interest he may have in real estate; income produced therefrom; any independent income accruing to the defendant; tangible and intangible personal property owned by the defendant, or in which he may have an interest; and a statement listing the approximate indebtedness of the defendant to other persons. Such form shall also include a payment plan of the defendant. At the end of such form there shall be printed in bold face type, in a distinctive color the following: THIS STATEMENT IS MADE UNDER OATH, ANY FALSE STATEMENT OF A MATERIAL FACT TO ANY QUESTION CONTAINED HEREIN SHALL CONSTITUTE PERJURY UNDER THE PROVISIONS OF § 18.2-434 OF THE CODE OF VIRGINIA. THE MAXIMUM PENALTY FOR PERJURY IS CONFINEMENT IN THE PENITENTIARY FOR A PERIOD OF TEN YEARS. A copy of the petition shall be retained by the defendant.
  3. If the defendant is unable to read or write, the court, or the clerk, may assist the defendant in completing the petition and require him to affix his mark thereto. The consequences of the making of a false statement shall be explained to such defendant.

    (Code 1950, § 19.1-347.2; 1971, Ex. Sess., c. 250; 1975, c. 495; 2021, Sp. Sess. I, c. 388.)

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 388, effective July 1, 2021, in subsection (a), substituted "The court" for "In determining whether the defendant is unable to pay such fine forthwith, the court" and "any defendant entering a deferred, modified deferred, or installment payment agreement" for "such defendant"; and deleted "if the court should exercise its discretion in permitting the payment of such fine and costs in installments or other conditions to be fixed by the court" in subsection (b) at the end of the second sentence.

OPINIONS OF THE ATTORNEY GENERAL

Petitions under statute are traffic matters, rather than civil cases. - Petitions filed by defendants under § 19.2-355 , as permitted by the amended language in subsection B of § 46.2-395 , are considered to be traffic matters, and are not to be considered civil cases. See opinion of Attorney General to The Honorable George W. Harris Jr., Judge, Twenty-Third Judicial District, 00-063 (11/28/00).

§ 19.2-356. Payment of fine or costs as condition of probation or suspension of sentence.

If a defendant is placed on probation, or imposition or execution of sentence is suspended, or both, the court may make payment of any fine, or costs, or fine and costs, either on a certain date or on an installment basis, a condition of probation or suspension of sentence.

(Code 1950, § 19.1-347.3; 1971, Ex. Sess., c. 250; 1975, c. 495; 1987, c. 238.)

CASE NOTES

Court costs nondischargeable in bankruptcy. - The fact that in some instances punishment will be contingent on court costs is sufficient, for definitional purposes, to lift Virginia's requirement that convicted defendants pay court costs into the nondischargeability provisions of 11 U.S.C. § 523(a)(7). Thompson v. Virginia, 16 F.3d 576 (4th Cir.), cert. denied, 512 U.S. 1221 114 S. Ct. 2709, 129 L. Ed. 2d 836 (1994).

§ 19.2-357. Requiring that defendant be of peace and good behavior until fine and costs are paid.

If a defendant is permitted to pay a fine or fine and costs on an installment basis, or under such other conditions as the court shall fix under the provisions of § 19.2-354 , the court may require as a condition that the defendant be of peace and good behavior until the fine and costs are paid.

(Code 1950, § 19.1-347.4; 1971, Ex. Sess., c. 250; 1975, c. 495.)

§ 19.2-358. Procedure on default in deferred payment or installment payment of fine, costs, forfeiture, restitution or penalty.

  1. When an individual obligated to pay a fine, costs, forfeiture, or penalty defaults in the payment or any installment payment, the court upon the motion of the Commonwealth in the case of a conviction of a violation of a state law, or attorney for a locality or for the Commonwealth in the event of a conviction of a violation of a local law or ordinance, or upon its own motion, may require him to show cause why he should not be confined in jail or fined for nonpayment. A show cause proceeding shall not be required prior to issuance of a capias if an order to appear on a date certain in the event of nonpayment was issued pursuant to subsection A of § 19.2-354 and the defendant failed to appear.
  2. Following the order to show cause or following a capias issued for a defendant's failure to comply with a court order to appear issued pursuant to subsection A of § 19.2-354 , unless the defendant shows that his default for the payment of fines, costs, forfeitures, or penalties was not attributable to an intentional refusal to obey the sentence of the court, or not attributable to a failure on his part to make a good faith effort to obtain the necessary funds for payment, or unless the defendant shows that any failure to appear was not attributable to an intentional refusal to obey the order of the court, the court may order the defendant confined as for a contempt for a term not to exceed sixty days or impose a fine not to exceed $500. The court may provide in its order that payment or satisfaction of the amounts in default for the payment of fines, costs, forfeitures, or penalties at any time will entitle the defendant to his release from such confinement or, after entering the order, may at any time reduce the sentence for good cause shown, including payment or satisfaction of such amounts.
  3. If it appears that the default for the payment of fines, costs, forfeitures, or penalties is excusable under the standards set forth in subsection B, the court may enter an order allowing the defendant additional time for payment, reducing the amount due or of each installment, or remitting the unpaid portion in whole or in part.
  4. When an individual obligated to pay restitution defaults in the payment or any installment payment, the court upon the motion of the Commonwealth in the case of a conviction of a violation of a state law, or attorney for a locality or for the Commonwealth in the event of a conviction of a violation of a local law or ordinance, or upon its own motion, may proceed in accordance with the procedures set forth in subsection E.
  5. If, pursuant to subsection D or at a hearing conducted pursuant to subsection F of § 19.2-305.1 , the court finds that a defendant is not in compliance with a restitution order, the court may order the defendant confined as for a contempt for a term not to exceed 60 days unless the defendant shows that his default was not attributable to an intentional refusal to obey the sentence of the court, or not attributable to a failure on his part to make a good faith effort to obtain the necessary funds for payment, or unless the defendant shows that any failure to appear was not attributable to an intentional refusal to obey the order of the court. The court may provide in its order that payment or satisfaction of the amounts in default at any time will entitle the defendant to his release from such confinement or, after entering the order, may at any time reduce the sentence for good cause shown, including payment or satisfaction of such amounts. If it appears that the defendant's default for the payment of restitution is excusable under the standards set forth in this subsection, the court may modify the terms for payment of restitution, except that the court may not modify the amount of restitution owed by the defendant.
  6. Nothing in this section shall be deemed to alter or interfere with the collection of fines by any means authorized for the enforcement of money judgments rendered in favor of the Commonwealth or any locality within the Commonwealth.

    (Code 1950, § 19.1-347.6; 1973, c. 342; 1975, c. 495; 1977, c. 223; 1987, c. 238; 1988, cc. 770, 852; 1992, c. 485; 1994, c. 546; 2018, cc. 316, 671.)

The 2018 amendments. - The 2018 amendments by cc. 316 and 671 are identical, and in subsection A, deleted "restitution" following "forfeiture"; inserted "for the payment of fines, costs, forfeitures, or penalties" twice in subsection B and once in subsection C; added subsections D and E; and made stylistic changes.

CASE NOTES

Constitutionality. - Virginia's recoupment statutes, §§ 19.2-336 and 19.2-358 , did not violate defendant's due process or equal protection rights as defendant would not be subject to enhanced punishment for a failure to pay court costs solely due to his future indigence, should it occur, since the penalties defendant feared would be imposed if he did not pay the costs could not be imposed absent an intentional refusal to obey the sentence or a failure to make a good faith effort to obtain the necessary funds under subsection B of § 19.2-358 ; if the default was excusable, the court could allow defendant additional time for payment, reduce the amount due or of each installment, or remit the unpaid portion in whole or in part under subsection C of § 19.2-358. Roads v. Commonwealth,, 2013 Va. App. LEXIS 92 (Mar. 26, 2013).

Virginia's recoupment statutes, §§ 19.2-336 and 19.2-358 , did not violate defendant's right to due process even though they placed the burden of proof on him to show that he was unable to pay court costs, or violate his right to equal protection even though they did not require that the trial court project his future ability to pay court costs before imposing the duty. Roads v. Commonwealth,, 2013 Va. App. LEXIS 92 (Mar. 26, 2013).

Confinement constituted involuntary servitude and was proscribed by Thirteenth Amendment. - Where the state's sole ground for detaining defendant at a state farm was his failure to pay costs of the criminal prosecution, defendant's confinement constituted involuntary servitude and his imprisonment for nonpayment of costs contravened the Thirteenth Amendment. Wright v. Matthews, 209 Va. 246 , 163 S.E.2d 158 (1968) (Case construed former § 53-221 which was repealed by Acts 1982, c. 638. Former § 53-221 applied specifically to persons held to labor for the nonpayment of fines and costs).

Imposition of fine. - Because defendant failed to provide a record that sufficiently established that defendant was convicted of traffic infractions and not crimes, pursuant to Va. Sup. Ct. R. 5A:8(b)(4)(ii), defendant waived the argument on appeal that the trial court erred in imposing a fine under § 19.2-358 . Turnbull v. County of Spotsylvania,, 2012 Va. App. LEXIS 24 (Jan. 31, 2012).

This section plainly applies to any payment or installment payment plans, not only those entered pursuant to § 19.2-354 . Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).

Compliance with a restitution plan may be enforceable through § 19.2-306 , if incorporated into a sentencing order as a condition of a suspended sentence, or it may be enforceable through § 19.2-358 , regardless of whether the restitution plan stated that it was entered into pursuant to § 19.2-354 . The enforcement mechanisms of §§ 19.2-306 and 19.2-358 are not mutually exclusive. Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).

Statute of limitations inapplicable. - Trial court did not err in ruling that the contempt charge against defendant was not time-barred; a violation of the statute is not classified as a misdemeanor, and thus, § 19.2-8 does not apply. Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).

Trial court did not err in ruling that the contempt charge against defendant was not time-barred; as contempt proceedings are not "criminal prosecutions," statutes of limitation for crimes do not apply to bar them. Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).

Restitution. - Trial court properly found that defendant was in contempt for violating the statute because the sentencing order requiring her to pay restitution constituted a condition of her suspended sentence and a freestanding obligation to pay and she failed to pay; despite the fact that defendant's probation expired, rendering enforcement of the restitution plan through § 19.2-306 untenable, the restitution plan remained enforceable through this section. Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).

CIRCUIT COURT OPINIONS

Motion for remittance denied. - Because payment of the costs associated with the Sex Offender Polygraph, Sex Offender Treatment, and GPS did not reimburse to the public treasury the precise amount that the conduct of defendant had rendered it necessary should be expended for the vindication of the public justice of the state and its violated laws, and because each of those conditions was imposed as an alternative to depriving defendant of his liberty, § 19.2-358 was applicable only to defendant's $1,602.17 in fines and costs, and was not applicable to the Sex Offender Polygraph, Sex Offender Treatment, and GPS; thus, defendant's motion to remit fines and costs as to those conditions was denied. Commonwealth v. Greenway, 100 Va. Cir. 252, 2018 Va. Cir. LEXIS 617 (Chesterfield County Oct. 29, 2018).

Article 5. Receipts for Fines.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 92; 11B M.J. Justices and Magistrates, § 33.

§ 19.2-359. Official receipts to be given for fines.

Every officer collecting a fine, fine and costs or costs when no fine is imposed shall give an official receipt therefor to the person making the payment, and the clerk of the court shall use the official receipt in receipting to a court not of record for payments made to the clerk; and when the fine, fine and costs or costs are collected by execution, the clerk shall receipt to the officer making payment to him upon the official receipts.

(Code 1950, § 19.1-348; 1960, c. 366; 1975, c. 495.)

§ 19.2-360. Forms of receipts; distribution; record of disposition.

The Executive Secretary of the Supreme Court shall prescribe and prepare forms of official receipts for fines and distribute them to the clerks of the circuit courts and to the clerks of the district courts for their use. A record of the disposition of each receipt form shall be maintained as prescribed by the Executive Secretary.

(Code 1950, § 19.1-349; 1960, c. 366; 1972, c. 97; 1975, c. 495; 1977, c. 465.)

§ 19.2-361. Misuse, misappropriation or willful failure to account for fines is embezzlement.

If any officer misuse, misappropriate, or willfully fail to return or account for, a fine collected by him he shall be deemed guilty of embezzlement and shall be punished as for the embezzlement of public funds and the failure, without good cause, to produce or account for any receipt form received by him shall be prima facie evidence of his embezzlement of the amount represented thereby.

(Code 1950, § 19.1-350; 1960, c. 366; 1975, c. 495.)

Article 6. Relief from Fines and Penalties.

Michie's Jurisprudence. - For related discussion, see 4A M.J. Contempt, § 5; 5B M.J. Criminal Procedure, § 92.

§ 19.2-362. Court not to remit fine or penalty, other than fine for contempt, except as provided in § 19.2-358.

No court shall remit any fine or penalty, except for a contempt, which the court during the same term may remit either wholly or in part, and except as provided in § 19.2-358 . This section shall not impair the judicial power of the court to set aside a verdict or judgment, or to grant a new trial.

(Code 1950, § 19.1-351; 1960, c. 366; 1971, Ex. Sess., c. 250; 1975, c. 495.)

§ 19.2-363. Authority of Governor to grant relief from fines and penalties.

The Governor shall have power, in his discretion, to remit, in whole or in part, fines and penalties, in all cases of felony or misdemeanor, after conviction, whether paid into the state treasury or not, except when judgment shall have been rendered against any person for contempt of court, for nonperformance of or disobedience to some order, decree or judgment of such court, or when the fine or penalty has been imposed by the State Corporation Commission, or when the prosecution has been carried on by the House of Delegates. The Governor may, in his discretion, remit, refund or release, in whole or in part, any forfeited recognizance or any judgment rendered thereon, provided, in the opinion of the Governor, the evidence accompanying such application warrants the granting of the relief asked for. But the provisions of the three following sections and § 19.2-368 shall be complied with as a condition precedent to such action by the Governor; provided, that when the party against whom the fine or penalty has been imposed and judgment rendered therefor has departed this life leaving a spouse or children surviving, the Governor may remit such fine or penalty upon the certificate of the judge of the circuit court of the county or city wherein such fine or penalty was imposed and judgment rendered, that to enforce the same against the estate, real or personal, of the decedent, would impose hardship upon the spouse or children. In any case when the Governor remits, in whole or in part, a fine or penalty, if the same has been paid into the state treasury, on the order of the Governor such fine or penalty or so much thereof as is remitted shall be paid by the State Treasurer, on the warrant of the Comptroller, out of the fund into which the fine or penalty was paid.

(Code 1950, § 19.1-352; 1960, c. 366; 1975, c. 495.)

Cross references. - For constitutional authority, see Va. Const., Art. V, § 12.

CASE NOTES

The revocation of a driver's license under former § 46.1-417 (now § 46.2-389 ) is not a part of the penalty inflicted within the meaning of this section which empowers the Governor to "remit fines and penalties," and a pardon granted to a driver under this section does not restore to him the right to operate an automobile free of the conditions which were imposed upon him when his license was renewed. Prichard v. Battle, 178 Va. 455 , 17 S.E.2d 393 (1941).

§ 19.2-364. Petition for relief; in what court filed; notice to attorney for Commonwealth.

Such person or his personal representative, as the case may be, shall file a petition in the clerk's office of the circuit court of the county or city wherein such fine or penalty was imposed, or such liability established, at least fifteen days before the term of the court at which the same is to be heard, and shall set forth the grounds upon which relief is asked. Ten days' notice thereof in writing shall be given to the attorney for the Commonwealth of the county or city.

(Code 1950, § 19.1-353; 1960, c. 366; 1975, c. 495.)

§ 19.2-365. Duties of attorney for Commonwealth upon filing of such petition.

The attorney for the Commonwealth, at or before the hearing of such petition, shall file an answer to the same. He shall cause to be summoned such witnesses and shall introduce all such testimony as may be necessary and proper to protect the interest of the Commonwealth; and the petitioner may cause to be summoned such witnesses and shall introduce all such testimony as may be necessary and proper to protect his interest.

(Code 1950, § 19.1-354; 1960, c. 366; 1975, c. 495.)

§ 19.2-366. Duty of court in which petition filed; certificate and opinion.

The court wherein such petition is filed shall hear all such testimony as may be offered, either by the petitioner or attorney for the Commonwealth, and after the evidence has been heard shall cause to be made out by the clerk of the court a certificate of the facts proved, and file with the same an opinion, in writing, as to the propriety of granting the relief prayed for.

(Code 1950, § 19.1-355; 1960, c. 366; 1975, c. 495.)

§ 19.2-367. Proceedings to be according to common law.

All proceedings had before the court under the provisions of the three preceding sections shall be according to the course of the common-law practice, except that no formal pleadings shall be necessary.

(Code 1950, § 19.1-356; 1960, c. 366; 1975, c. 495.)

§ 19.2-368. Course of proceeding when relief asked of the Governor.

Whenever application shall be made to the Governor by or on behalf of any person desiring to be relieved, in whole or in part, of any such fine or penalty, the petition, answer, certificate of facts, and opinion of the court provided for in §§ 19.2-364 , 19.2-365 and 19.2-366 , duly authenticated by the clerk of the court, shall accompany the application, which shall be in writing. In all cases in which the Governor shall remit a fine or penalty he shall issue his order to the clerk of the court by which such fine or penalty was imposed; or if such fine or penalty was imposed by a court not of record, to the clerk of the circuit court of the county or city in which the judge of such court not of record holds office, and such court shall, at its next term, or immediately, if then in session, cause such order to be spread upon the law order book of its court; and the clerk of such court shall immediately, upon the receipt of such order, mark the judgment for such fine or penalty, and costs, or so much thereof as the person may have been relieved of, "remitted by the Governor," upon the Judgment Lien Docket of the court of the county or city in which it may have been recorded. The Governor shall communicate to the General Assembly at each session the particulars of every case of fine or penalty remitted, with his reason for remitting the same.

(Code 1950, § 19.1-357; 1960, c. 366; 1975, c. 495.)

Chapter 21.1. Compensating Victims of Crime.

Sec.

§ 19.2-368.1. Findings; legislative intent.

The General Assembly finds that many innocent persons suffer personal physical injury or death as a result of criminal acts or in their efforts to prevent crime or apprehend persons committing or attempting to commit crimes. Such persons or their dependents may thereby suffer disability, incur financial hardships or become dependent upon public assistance. The General Assembly finds and determines that there is a need for governmental financial assistance for such victims of crime. Therefore, it is the intent of the General Assembly that aid, care and support be provided by the Commonwealth as a matter of moral responsibility for such victims of crime.

(1976, c. 605.)

Law review. - For survey of Virginia criminal law for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976). For article discussing victims' rights litigation, see 11 U. Rich. L. Rev. 447 (1977). For discussion of the elements of compensation and restitution in this chapter, see 11 U. Rich. L. Rev. 679 (1977). For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978). For article, "Victimology and Mental Health Law: An Agenda," see 66 Va. L. Rev. 681 (1980).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 11, 78, 90.

CASE NOTES

Order of statute follows a scheme which is significant and carries out the stated intentions of the legislature. Jennings v. Division of Crime Victims' Comp., 5 Va. App. 536, 365 S.E.2d 241 (1988).

Analysis in determining claims. - The analysis the director and the commission should have applied in determining claims was as follows: (1) determine eligibility; (2) determine whether the award is allowed; (3) determine the amount of the award; (4) apportion the award, if necessary; and (5) reduce the award to each claimant by the amount of payments received or to be received by that claimant from any collateral source as a result of the injury. Jennings v. Division of Crime Victims' Comp., 5 Va. App. 536, 365 S.E.2d 241 (1988).

Applied in Marchand v. Division of Crime Victims' Comp., 230 Va. 460 , 339 S.E.2d 175 (1986).

NOTES FROM WORKERS' COMPENSATION COMMISSION

The Virginia Victims of Crime Act is remedial in nature. It provides a system of redress for specified individuals who have suffered loss due to the commission of a crime. Prior to its enactment, no such remedy existed, and the addition of this form of compensation was calculated to fill what was perceived to be agap in available remedies. This being the case, it is axiomatic that the statute be liberally construed to promote its beneficent purpose, and its provisions should be read so as to promote the ability of the enactment to remedy the mischief at which it is directed. Bailey v. Criminal Injuries Compensation Fund, 77 O.W.C. 150 (1998).

The Criminal Injuries Compensation Fund is remedial in nature. provides a system of redress for specified individuals who have suffered loss due to the commission of a crime. Prior to its enactment, no such remedy existed, and the addition of this form of compensation was calculated to fill what was perceived to be agap in available remedies. This being the case, it is axiomatic that the statute be liberally construed to promote its beneficent purpose. Its provisions should be read so as to promote the ability of the enactment to remedy the mischief at which it is directed. Morrison v. Victims of Crimes Compensation Act, 77 O.W.C. 239 (1998).

In evaluating a claim under the Virginia Victims of Crime Act, the Commission is to apply the following analysis: (1) determine eligibility; (2) determine whether the award is allowed; (3) determine the amount of the award; (4) apportion the award if necessary; and (5) reduce the award to each claimant as may be required under the Act. Bailey v. Criminal Injuries Compensation Fund, 77 O.W.C. 150 (1998).

Under the Compensation Victims of Crime Act, benefits are awarded to innocent persons who suffer personal physical injury or death because of criminal acts. Benefits may be reduced or rejected if the victim contributes to the infliction of the injuries. Creed v. Criminal Injuries Comp. Fund, 76 O.W.C. 173 (1997).

Where the police report of the crime does not indicate that the victim was engaged in any criminal conduct, or that he was armed, or that he contributed in any way to the infliction of his own injury, but at most suggests that he was present in someone's home where marijuana may have been sold, there is no basis for denying or reducing the claim. Bailey v. Criminal Injuries Compensation Fund, 77 O.W.C. 150 (1998).

The Commission adopted a policy on November 4, 1998, which provided that "[t]he Fund may pay up to one thousand dollars for crime scene clean-up when a crime resulting in physical injury occurs in a residence . . .. Requests for Awards for Crime Scene Clean-Up involving automobiles will be decided by the Commission judicially on a case-by-case basis." Montgomery v. Criminal Injuries Compensation Fund, 78 O.W.C. 276 (1999).

The Commission interprets its crime scene clean-up policy to cover replacement and clean-up of items damaged by stains resulting from the police use of graphite at the crime scene. However, it does not cover payment for items taken by the police as evidence. Montgomery v. Criminal Injuries Compensation Fund, 78 O.W.C. 276 (1999).

§ 19.2-368.2. Definitions.

For the purpose of this chapter:

"Claimant" means the person filing a claim pursuant to this chapter.

"Commission" means the Virginia Workers' Compensation Commission.

"Crime" means an act committed by any person in the Commonwealth of Virginia which would constitute a crime as defined by the Code of Virginia or at common law. However, no act involving the operation of a motor vehicle which results in injury shall constitute a crime for the purpose of this chapter unless the injuries (i) were intentionally inflicted through the use of such vehicle or (ii) resulted from a violation of § 18.2-51.4 or 18.2-266 or from a felony violation of § 46.2-894 .

"Family," when used with reference to a person, means (i) any person related to such person within the third degree of consanguinity or affinity, (ii) any person residing in the same household with such person, or (iii) a spouse.

"Sexual abuse" means sexual abuse as defined in subdivision 6 of § 18.2-67.10 and acts constituting rape, sodomy, object sexual penetration or sexual battery as defined in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2.

"Victim" means a person who suffers personal physical injury or death as a direct result of a crime including a person who is injured or killed as a result of foreign terrorism or who suffers personal emotional injury as a direct result of being the subject of a violent felony offense as defined in subsection C of § 17.1-805 , or stalking as described in § 18.2-60.3 , or attempted robbery or abduction.

(1976, c. 605; 1984, c. 619; 1988, c. 748; 1990, c. 620; 1997, cc. 528, 691; 1998, c. 484; 1999, c. 286; 2001, c. 855; 2008, c. 590; 2012, c. 38.)

The 1999 amendment substituted "17.1-805" for "17.237" in the paragraph defining "Victim."

The 2001 amendments. - The 2001 amendment by c. 855 inserted the paragraph defining "Sexual abuse."

The 2008 amendments. - The 2008 amendment by c. 590 deleted the section symbol preceding "18.2-266" at the end of the definition of "Crime" and inserted "or stalking as described in § 18.2-60.3 " near the end of the definition of "Victim."

The 2012 amendments. - The 2012 amendment by c. 38 added "or from a felony violation of § 46.2-894 " at the end of the paragraph defining "Crime."

CASE NOTES

Analysis in determining claims. - The analysis the director and the commission should have applied in determining claims was as follows: (1) determine eligibility; (2) determine whether the award is allowed; (3) determine the amount of the award; (4) apportion the award, if necessary; and (5) reduce the award to each claimant by the amount of payments received or to be received by that claimant from any collateral source as a result of the injury. Jennings v. Division of Crime Victims' Comp., 5 Va. App. 536, 365 S.E.2d 241 (1988).

§ 19.2-368.3. Powers and duties of Commission.

The Commission shall have the following powers and duties in the administration of the provisions of this chapter:

  1. To adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions and purposes of this chapter, to include a distinct policy (i) for the payment of physical evidence recovery kit examinations and (ii) to require each health care provider as defined in § 8.01-581.1 that provides services under this chapter to negotiate with the Commission or its designee to establish prospective agreements relating to rates for payment of claims for such services allowed under § 19.2-368.11:1 , such rates to discharge the obligation to the provider in full except where the provider is an agency of the Commonwealth and the claimant receives a third party recovery in addition to the payment from the Fund.
  2. Notwithstanding the provisions of §§ 2.2-3706 and 2.2-3706.1 , to acquire from the attorneys for the Commonwealth, State Police, local police departments, sheriffs' departments, and the Chief Medical Examiner such investigative results, information and data as will enable the Commission to determine if, in fact, a crime was committed or attempted, and the extent, if any, to which the victim or claimant was responsible for his own injury. These data shall include prior adult arrest records and juvenile court disposition records of the offender. For such purposes and in accordance with § 16.1-305, the Commission may also acquire from the juvenile and domestic relations district courts a copy of the order of disposition relating to the crime. The use of any information received by the Commission pursuant to this subdivision shall be limited to carrying out the purposes set forth in this section, and this information shall be confidential and shall not be disseminated further. The agency from which the information is requested may submit original reports, portions thereof, summaries, or such other configurations of information as will comply with the requirements of this section.
  3. To hear and determine all claims for awards filed with the Commission pursuant to this chapter, and to reinvestigate or reopen cases as the Commission deems necessary.
  4. To require and direct medical examination of victims.
  5. To hold hearings, administer oaths or affirmations, examine any person under oath or affirmation and to issue summonses requiring the attendance and giving of testimony of witnesses and require the production of any books, papers, documentary or other evidence. The powers provided in this subsection may be delegated by the Commission to any member or employee thereof.
  6. To take or cause to be taken affidavits or depositions within or without the Commonwealth.
  7. To render each year to the Governor and to the General Assembly a written report of its activities. This report shall include a detailed section on all unclaimed restitution collected and disbursed to the victim from the Criminal Injuries Compensation Fund pursuant to subsection I of § 19.2-305.1 .
  8. To accept from the government of the United States grants of federal moneys for disbursement under the provisions of this chapter.
  9. To collect and disburse unclaimed restitution pursuant to subsection I of § 19.2-305.1 and develop, in consultation with circuit court clerks and the Office of the Executive Secretary of the Supreme Court of Virginia, policies and procedures for the receipt, collection, and disbursement of unclaimed restitution to victims of crime.
  10. To identify and locate victims of crime for whom restitution owed to such victims has been deposited into the Criminal Injuries Compensation Fund pursuant to subsection I of § 19.2-305.1 . Notwithstanding the provisions of §§ 2.2-3706 and 2.2-3706.1 , the Commission may acquire from the attorneys for the Commonwealth, State Police, local police departments, and sheriffs' departments such information as will enable the Commission to identify and locate such victims. The use of any information received by the Commission pursuant to this subdivision shall be limited to carrying out the purposes set forth in this section, and this information shall be confidential and shall not be disseminated further. (1976, c. 605; 1984, c. 619; 1986, c. 422; 1990, c. 551; 1992, c. 547; 1998, c. 484; 1999, cc. 703, 726; 2008, cc. 203, 251; 2010, c. 780; 2018, cc. 724, 725; 2021, Sp. Sess. I, c. 483.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 1999 amendments. - The 1999 amendments by cc. 703 and 726 are identical, and substituted " § 2.1-342.2" for "subdivision B 1 of § 2.1-342" in subdivision 2.

The 2008 amendments. - The 2008 amendments by cc. 203 and 251 are identical and added "and to include a distinct policy for the payment of physical evidence recovery kit examinations" at the end of subdivision 1.

The 2010 amendments. - The 2010 amendment by c. 780, in subdivision 1, added the clause (i) designator and added clause (ii) and made a related change; and deleted subsection B, which read: "For the purpose of this section, 'debt collection activities' means repeatedly calling or writing to the claimant and threatening either to turn the matter over to a debt collection agency or to an attorney for collection, enforcement or filing of other process. The term shall not include routine billing or inquiries about the status of the claim."

The 2018 amendments. - The 2018 amendments by cc. 724 and 725 are identical, and added the second sentence in subdivision 7 and added subdivisions 9 and 10.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 483, effective July 1, 2021, in subdivisions 2 and 10, substituted " §§ 2.2-3706 and 2.2-3706.1 " for " § 2.2-3706 ."

Law review. - For survey of Virginia criminal law for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976).

Michie's Jurisprudence. - For related discussion, see 16 M.J. Right of Privacy, § 1.

CASE NOTES

Analysis in determining claims. - The analysis the director and the commission should have applied in determining claims was as follows: (1) determine eligibility; (2) determine whether the award is allowed; (3) determine the amount of the award; (4) apportion the award, if necessary; and (5) reduce the award to each claimant by the amount of payments received or to be received by that claimant from any collateral source as a result of the injury. Jennings v. Division of Crime Victims' Comp., 5 Va. App. 536, 365 S.E.2d 241 (1988).

Applied in Marchand v. Division of Crime Victims' Comp., 230 Va. 460 , 339 S.E.2d 175 (1986).

OPINIONS OF THE ATTORNEY GENERAL

Use of funds. - The Commission is not authorized under current law to use funds in the Criminal Injuries Compensation Fund to purchase a new office building in which to house the headquarters of the Commission and the Director of CICF and her staff. There is no constitutional or other legal impediment to the introduction of future legislation that would enable the Commission to utilize the Fund for such purposes. Effective July 1, 2013, the Commission is permitted to locate its headquarters outside the City of Richmond, provided the facility remains within the Commonwealth. See opinion of Attorney General to Ms. Evelyn McGill, Executive Director, Virginia Workers' Compensation Commission, 11-101, 2013 Va. AG LEXIS 21 (4/12/13).

NOTES FROM WORKERS' COMPENSATION COMMISSION

The Commission has broad latitude in the information and data obtained through various police agencies that shall be used to decide whether a victim is responsible for his or her own injury. Creed v. Criminal Injuries Comp. Fund, 76 O.W.C 173 (1997).

Code § 19.2-368.3 authorizes the Commission to reinvestigate or reopen cases as it deems necessary, and it is appropriate to reopen this case where the accuracy of statements made to police investigators is questioned. Creed v. Criminal Injuries Comp. Fund, 76 O.W.C 173 (1997).

The Commission must determine whether the claimant has established by a preponderance of the evidence that he was the victim of a "crime." The fact that charges against the alleged perpetrator were dropped by the Commonwealth does not conclusively establish that the claimant was not a victim of a "crime." The evidence before the Deputy Commissioner clearly established that the claimant suffered injuries after an altercation meeting the legal definition of criminal battery. The Commission observed that the prosecution's apparent inability to secure a conviction was evidence that the acts were something other than criminal, but found the claimant's testimony about the altercation more compelling. In Re: Claim of John Doxey, CV File No. 02-0296 (October 28, 2002).

§ 19.2-368.3:1. Crime victims' ombudsman.

  1. The Commission shall employ a crime victims' ombudsman and adequate staff to facilitate the prompt review and resolution of crime victim compensation claims and to assure that crime victims' rights are safeguarded and protected during the claims process. The ombudsman shall report directly to the Commission.
  2. The ombudsman shall ensure that all parties, including service providers and Criminal Injuries Compensation Fund personnel, are acting in the best interests of the crime victim. The ombudsman shall also provide assistance to crime victims in filling out the necessary forms for compensation and obtaining necessary documentation.

    (1998, c. 484.)

OPINIONS OF THE ATTORNEY GENERAL

Use of funds. - The Commission is not authorized under current law to use funds in the Criminal Injuries Compensation Fund to purchase a new office building in which to house the headquarters of the Commission and the Director of CICF and her staff. There is no constitutional or other legal impediment to the introduction of future legislation that would enable the Commission to utilize the Fund for such purposes. Effective July 1, 2013, the Commission is permitted to locate its headquarters outside the City of Richmond, provided the facility remains within the Commonwealth. See opinion of Attorney General to Ms. Evelyn McGill, Executive Director, Virginia Workers' Compensation Commission, 11-101, 2013 Va. AG LEXIS 21 (4/12/13).

§ 19.2-368.4. Persons eligible for awards.

  1. The following persons shall be eligible for awards pursuant to this chapter unless the award would directly and unjustly benefit the person who is criminally responsible:
    1. A victim of a crime or the parent or guardian of a minor who is the victim of a crime.
    2. A surviving spouse, parent, grandparent, sibling, grandchild who is alive at the time of the commission of the crime, or child, including posthumous children, of a victim of a crime who died as a direct result of such crime.
    3. Any person, except a law-enforcement officer engaged in the performance of his duties, who is injured or killed while trying to prevent a crime or an attempted crime from occurring in his presence, or trying to apprehend a person who had committed a crime in his presence or had, in fact, committed a felony.
    4. A surviving spouse, parent, grandparent, sibling, grandchild who is alive at the time of the commission of the crime, or child, including posthumous children, of any person who dies as a direct result of trying to prevent a crime or attempted crime from occurring in his presence, or trying to apprehend a person who had committed a crime in his presence or had, in fact, committed a felony.
    5. Any other person legally dependent for his principal support upon a victim of crime who dies as a result of such crime, or legally dependent for his principal support upon any person who dies as a direct result of trying to prevent a crime or an attempted crime from occurring in his presence or trying to apprehend a person who had committed a crime in his presence or had, in fact, committed a felony.
  2. A person who is criminally responsible for the crime upon which a claim is based, or an accomplice or accessory of such person, shall not be eligible to receive an award with respect to such claim.
  3. A resident of Virginia who is the victim of a crime occurring outside Virginia and any other person as defined in subsection A who is injured as a result of a crime occurring outside Virginia shall be eligible for an award pursuant to this chapter if (i) the person would be eligible for benefits had the crime occurred in Virginia and (ii) the state, country or territory in which the crime occurred does not have a crime victims' compensation program deemed eligible pursuant to the provisions of the federal Victims of Crime Act and does not compensate nonresidents.

    (1976, c. 605; 1977, c. 215; 1978, c. 210; 1981, c. 592; 1984, c. 747; 1985, c. 446; 1986, c. 422; 1988, c. 406; 1990, c. 550; 1996, c. 86; 2002, c. 665; 2020, c. 446.)

The 2002 amendments. - The 2002 amendment by c. 665 added "or the parent or guardian of a minor who is a victim of a crime" at the end of subdivision A 1; and inserted "country or territory" preceding "in which the crime occurred" in subsection C.

The 2020 amendments. - The 2020 amendment by c. 446, in subdivisions A 2 and 4, inserted "sibling, grandchild who is alive at the time of the commission of the crime, or child."

Law review. - For survey of Virginia criminal law for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976). For article discussing victims' rights litigation, see 11 U. Rich. L. Rev. 447 (1977). For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978).

CASE NOTES

Analysis in determining claims. - The analysis the director and the commission should have applied in determining claims was as follows: (1) determine eligibility; (2) determine whether the award is allowed; (3) determine the amount of the award; (4) apportion the award, if necessary; and (5) reduce the award to each claimant by the amount of payments received or to be received by that claimant from any collateral source as a result of the injury. Jennings v. Division of Crime Victims' Comp., 5 Va. App. 536, 365 S.E.2d 241 (1988).

NOTES FROM WORKERS' COMPENSATION COMMISSION

Persons who fail to fully cooperate with law-enforcement authorities, or who are criminally responsible for the crime upon which the claim is based, are not eligible for an award. Bailey v. Criminal Injuries Compensation Fund, 77 O.W.C 150 (1998).

The Commission must determine whether the claimant has established by a preponderance of the evidence that he was the victim of a "crime." The fact that charges against the alleged perpetrator were dropped by the Commonwealth does not conclusively establish that the claimant was not a victim of a "crime." The evidence before the Deputy Commissioner clearly established that the claimant suffered injuries after an altercation meeting the legal definition of criminal battery. The Commission observed that the prosecution's apparent inability to secure a conviction was evidence that the acts were something other than criminal, but found the claimant's testimony about the altercation more compelling. In Re: Claim of John Doxey, CV File No. 02-0296 (October 28, 2002).

§ 19.2-368.5. Filing of claims; deferral of proceedings; restitution.

  1. A claim may be filed by a person eligible to receive an award, as provided in § 19.2-368.4 , or if such person is a minor, by his parent or guardian. In any case in which the person entitled to make a claim is incapacitated, the claim may be filed on his behalf by his guardian, conservator or such other individual authorized to administer his estate.
  2. A claim shall be filed by the claimant not later than one year after the occurrence of the crime upon which such claim is based, or not later than one year after the death of the victim. However, (i) in cases involving claims made on behalf of a minor or a person who is incapacitated, the provisions of subsection A of § 8.01-229 shall apply to toll the one-year period; (ii) in cases involving claims made by a victim against profits of crime held in escrow pursuant to Chapter 21.2 (§ 19.2-368.19 et seq.) of this title, the claim shall be filed within five years of the date of the special order of escrow; and (iii) in cases involving claims of sexual abuse of a minor, the claim shall be filed within 10 years after the minor's eighteenth birthday. For good cause shown, the Commission may extend the time for filing for a crime committed on or after July 1, 2001. In the case of a crime committed on or after July 1, 1977, and before July 1, 2001, for which a claim was not filed in a timely manner, the Commission may, for good cause shown, extend the time for filing if the attorney for the Commonwealth sends written notification to the Commission that the crime is being investigated as a result of newly discovered evidence. For any claim filed pursuant to this paragraph, the Commission shall only consider expenses and loss of earnings that the claimant accrues after the date of newly discovered evidence as stipulated in the written notification by the attorney for the Commonwealth.
  3. Claims shall be filed in the office of the Commission in person, by mail, or by electronic means in accordance with standards approved by the Commission. The Commission shall accept for filing all claims submitted by persons eligible under subsection A of this section and alleging the jurisdictional requirements set forth in this chapter and meeting the requirements as to form in the rules and regulations of the Commission.
  4. Upon filing of a claim pursuant to this chapter, the Commission shall promptly notify the attorney for the Commonwealth of the jurisdiction wherein the crime is alleged to have occurred. If, within 10 days after such notification, the attorney for the Commonwealth so notified advises the Commission that a criminal prosecution is pending upon the same alleged crime, the Commission shall defer all proceedings under this chapter until such time as such criminal prosecution has been concluded in the circuit court unless notification is received from the attorney for the Commonwealth that no objection is made to a continuation of the investigation and determination of the claim. When such criminal prosecution has been concluded in the circuit court the attorney for the Commonwealth shall promptly so notify the Commission. Nothing in this section shall be construed to mean that the Commission is to defer proceedings upon the filing of an appeal, nor shall this section be construed to limit the authority of the Commission to grant emergency awards as hereinafter provided. Upon awarding a claim pursuant to this chapter, the Commission shall promptly notify the attorney for the Commonwealth of the jurisdiction wherein the crime is alleged to have occurred. If a criminal prosecution occurs regarding the same alleged crime, the attorney for the Commonwealth shall request the court to order restitution. However, neither the lack of a restitution order, nor the failure of the attorney for the Commonwealth to request such an order, shall preclude the Fund from exercising its subrogation rights pursuant to § 19.2-368.15 . Any such restitution shall be paid over to the Comptroller for deposit into the Criminal Injuries Compensation Fund to the extent of the amount of the award paid from the Fund. (1976, c. 605; 1977, c. 215; 1978, c. 122; 1986, c. 457; 1992, c. 681; 1997, c. 801; 1998, c. 484; 2001, cc. 363, 855; 2002, c. 665; 2005, c. 683; 2006, c. 414; 2009, c. 381; 2014, cc. 251, 665; 2016, c. 456.)

Editor's note. - Acts 1997, c. 801, cl. 2, provides: "That the provisions of this act shall become effective on January 1, 1998. The powers granted and duties imposed pursuant to this act shall apply prospectively to guardians and conservators appointed by court order entered on or after that date, or modified on or after that date if the court so directs, without regard to when the petition was filed. The procedures specified in this act governing proceedings for appointment of a guardian or conservator or termination or other modification of a guardianship shall apply on and after that date without regard to when the petition therefor was filed or the guardianship or conservatorship created."

Acts 2014, c. 665, cl. 2 provides: "That the Virginia State Crime Commission shall convene a stakeholder workgroup to include state and local representatives from the sexual and domestic violence coalition; representatives from the Department of Criminal Justice Services, the Department of Social Services, the Department of Health and the Criminal Injuries Compensation Fund; and representatives from other relevant state or local entities to support an efficient and comprehensive streamlining of current federal and state sexual and domestic violence victim service agency funding, including general fund, non-general fund, and special fund monies. The workgroup shall complete its work no later than September 30, 2014."

Acts 2016, c. 456, cl. 2 provides: "That the provisions of this act shall apply to claims filed with the Criminal Injuries Compensation Fund on or after July 1, 2014."

The 2001 amendments. - The 2001 amendment by c. 363, in subsection B, in the last sentence, substituted "For" for "In all other cases, upon," and deleted "for a period not exceeding, under any circumstances, two years after such occurrence" from the end.

The 2001 amendment by c. 855, in subsection B, in the second sentence, deleted "and" preceding "(ii)," inserted "; and" following "forfeiture," and added clause (iii); and made the same changes in the last sentence as c. 363.

The 2002 amendments. - The 2002 amendment by c. 665 added the last three sentences in subsection D.

The 2005 amendments. - The 2005 amendment by c. 683 inserted the next-to-last sentence in subsection D; and made minor stylistic changes.

The 2006 amendments. - The 2006 amendment by c. 414, in subsection B, deleted "forfeited and" following "crime" and substituted "special order of escrow" for "order of forfeiture" in clause (ii).

The 2009 amendments. - The 2009 amendment by c. 381, in subsection C, in the first sentence, deleted "or" following "Commission in person" and inserted "or by electronic means in accordance with standards approved by the Commission."

The 2014 amendments. - The 2014 amendments by cc. 251 and 665 are identical, and in subsection B inserted "for a crime committed on or after July 1, 2001" and added the second paragraph.

The 2016 amendments. - The 2016 amendment by c. 456, in the second paragraph of subsection B, inserted "and loss of earnings" and "newly discovered evidence as stipulated in the." For applicability, see Editor's note.

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

NOTES FROM WORKERS' COMPENSATION COMMISSION

Victim whose claim initially denied in April 2002 because value of claim less than $100 allowed to petition for review of denial in June 2003, although crime occurred in December 2000 and Act prevented claims from being filed more than two years after crime; Fund continued to solicit medical information after denial and thus victim reasonably believed timely claim was being processed. In Re: Thomas, CV File No. 01-0420 (Nov. 17, 2003).

Victim assaulted on April 27, 2000, and filed claim on April 30, 2003; at time of crime, Act precluded claims filed more than two years after date of crime, but was amended in 2001 to enlarge period of filing 'for good cause shown'; Commission found that amendment was not retroactive and that claim thus was time-barred. In Re: Fell, CV File No. 00-1501 (Nov. 12, 2003).

In 2001, the General Assembly amended Code § 19.2-368.5 , granting the Commission discretion to extend indefinitely, when good cause is shown, the date for filing a claim under the Act. The legislation did not include language declaring the General Assembly's intent that the new provision apply to claims arising before the statute was amended. Because retroactive effect will be given only where such intent is stated in clear, explicit and unequivocal terms, the Commission found that the amendment is to be applied prospectively only. The claimant's claim was governed by the statute effective on the date of her injury, and found to be untimely. May v. Criminal Injuries Compensation Fund, CV File No. 90-1399 (October 28, 2002).

§ 19.2-368.5:1. Failure to perfect claim; denial.

Notwithstanding the provisions of § 19.2-368.5 , if, following the initial filing of a claim, a claimant fails to take such further steps to support or perfect the claim as may be required by the Commission within 180 days after written notice of such requirement is sent by the Commission to the claimant, the claimant shall be deemed in default. If the claimant is in default, the Commission shall notify the claimant that the claim is denied and the claimant shall be forever barred from reasserting it; however, the Commission may reopen the proceeding upon a showing by claimant that the failure to do the acts required by the Commission was beyond the control of the claimant.

(1981, c. 302; 1998, c. 484.)

§ 19.2-368.5:2. Effect of filing a claim; stay of debt collection activities by health care providers.

  1. Whenever a person files a claim under this chapter, all health care providers, as defined in § 8.01-581.1 that have been given notice of a pending claim, shall refrain from all debt collection activities relating to medical treatment received by the person in connection with such claim until an award is made on the claim or until a claim is determined to be noncompensable pursuant to § 19.2-368.11:1 . The statute of limitations for collection of such debt shall be tolled during the period in which the applicable health care provider is required to refrain from debt collection activities hereunder.
  2. For the purpose of this section, "debt collection activities" means repeatedly calling or writing to the claimant and threatening either to turn the matter over to a debt collection agency or to an attorney for collection, enforcement or filing of other process. The term shall not include routine billing or inquiries about the status of the claim.

    (2005, c. 683.)

§ 19.2-368.6. Assignment of claims; investigation; hearing; confidentiality of records; decisions.

  1. A claim, when accepted for filing, shall be properly investigated, and, if necessary, assigned by the chairman to a commissioner, deputy commissioner or other proper party for disposition. All claims arising from the death of an individual shall be considered together by the same person.
  2. The person to whom such claim is assigned shall examine the papers filed in support of the claim and shall thereupon cause an investigation to be conducted into the validity of the claim. The investigation shall include, but not be limited to, an examination of police, court and official records and reports concerning the crime, and an examination of medical and hospital reports relating to the injury upon which the claim is based. Health care providers, as defined in § 8.01-581.1 , shall provide medical and hospital reports relating to the diagnosis and treatment of the injury upon which the claim is based to the Commission, upon request.
  3. Claims shall be investigated and determined, regardless of whether the alleged criminal has been apprehended or prosecuted for, or convicted of, any crime based upon the same incident, or has been acquitted, or found not guilty of the crime in question owing to a lack of criminal responsibility or other legal exemption.
  4. There shall be a rebuttable presumption that the claimant did not contribute to and was not responsible for the infliction of his injury.
  5. The person to whom a claim is assigned may decide the claim in favor of a claimant on the basis of the papers filed in support thereof and the report of the investigation of the claim. If he is unable to decide the claim, upon the basis of the said papers and report, he shall order a hearing. At the hearing any relevant evidence, not legally privileged, shall be admissible. The hearing of any claim involving a claimant or victim who is a juvenile shall be closed. All records, papers, and reports involving such claim shall be confidential except as to the amount of the award and nonidentifying information concerning the claimant or victim.
  6. For purposes of this chapter, confidentiality provided for by law applicable to a claimant's or victim's juvenile court records shall not be applicable to the extent that the Commission shall have access to those records only for the purposes set forth in this chapter.
  7. After examining the papers filed in support of the claim, and the report of investigation, and after a hearing, if any, a decision shall be made either granting an award pursuant to § 19.2-368.11:1 of this chapter or denying the claim.
  8. The person making a decision shall issue a written report setting forth such decision and his reasons therefor, and shall notify the claimant and furnish him a copy of such report.

    (1976, c. 605; 1977, c. 215; 1994, c. 834; 1997, c. 528; 1998, c. 484.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

NOTES FROM WORKERS' COMPENSATION COMMISSION

The Commission has broad latitude to consider information and data obtained through various police agencies, and the director properly considered such statements in denying the claim. However, a factual dispute arises when the claimant challenges the accuracy of such statements, and that the Commission found it was necessary to refer the case to the evidentiary docket for findings of fact and credibility determinations. Migliorini v. Criminal Injuries Compensation Fund, 78 O.W.C. 218 (1999).

To qualify as a crime while operating a motor vehicle, the injury must have been intentionally inflicted through the vehicle's use or resulted from a violation of § 18.2-51.4 or § 18.2-266 . These criminal code sections pertain to operating a motor vehicle while intoxicated by alcohol or drugs. Knoff v. Criminal Injuries Compensation Fund, 78 O.W.C. 106 (1999).

Where the record confirmed that the motor vehicle driver suffered a diabetic seizure and blacked out, and the driver's blood and alcohol tests revealed that he was not under the influence of drugs or alcohol, the record contains no evidence that the accident was intentional, and the Commission held that the accident was not within the definition of a crime for the purpose of compensating the victim of a crime. Knoff v. Criminal Injuries Compensation Fund, 78 O.W.C. 106 (1999).

The Commission must determine whether the claimant has established by a preponderance of the evidence that he was the victim of a "crime." The fact that charges against the alleged perpetrator were dropped by the Commonwealth does not conclusively establish that the claimant was not a victim of a "crime." The evidence before the Deputy Commissioner clearly established that the claimant suffered injuries after an altercation meeting the legal definition of criminal battery. The Commission observed that the prosecution's apparent inability to secure a conviction was evidence that the acts were something other than criminal, but found the claimant's testimony about the altercation more compelling. In Re: Claim of John Doxey, CV File No. 02-0296 (October 28, 2002).

§ 19.2-368.7. Review by Commission.

  1. The claimant may, within forty-five days from the date of the report, apply in writing to the Commission for review of the decision by the full Commission. The Commission may extend the time for filing under this section for good cause shown.
  2. Upon receipt of an application pursuant to subsection A of this section, or upon its own motion, the Commission shall review the record and affirm or modify the decision of the person to whom the claim was assigned. The action of the Commission in affirming or modifying such decision shall be final. If the Commission receives no application pursuant to subsection A of this section, or takes no action upon its own motion, the decision of the person to whom the claim was assigned shall become the final decision of the Commission.
  3. The Commission shall promptly notify the claimant and the Comptroller of the final decision of the Commission and furnish each with a copy of the report setting forth the decision.

    (1976, c. 605; 1977, c. 215; 1986, c. 457; 1989, c. 335; 2000, c. 455; 2001, c. 363.)

The 2000 amendments. - The 2000 amendment by c. 455 substituted "forty-five days" for "twenty days" in subsection A.

The 2001 amendments. - The 2001 amendment by c. 363 substituted "for good cause shown" for "upon good cause shown, for a period not to exceed two years from the date of the occurrence" at the end of subsection A.

NOTES FROM WORKERS' COMPENSATION COMMISSION

The statutory provisions relating to requests for review from decisions of the Crime Victims Director are not as rigid as those contained in other statutes and rules relating to appellate procedure. Code § 19.2-368.7 (A) states that, "The Commission may extend the time for filing under this section, upon good cause shown, for a period not to exceed two years from the date of the occurrence." Also, Code § 19.2-368.8 (A) allows the Commission to reinvestigate or reopen a decision making or denying an award, except that the Commission shall not reopen or reinvestigate a case after the expiration of two years from the date of occurrence of the crime upon which the claim is based. Migliorini v. Criminal Injuries Compensation Fund, 78 O.W.C. 218 (1999).

Where the claimant had filed a timely request for reconsideration of the decision of the Crime Victims Director, and thereafter filed her request for review within twenty days of the date that request was denied, the Commission held that there was good cause to consider the claimant's review request. Migliorini v. Criminal Injuries Compensation Fund, 78 O.W.C. 218 (1999).

§ 19.2-368.8. Reinvestigation of decision; reconsideration of award; judicial review.

  1. The Commission, on its own motion, or upon request of the claimant, may reinvestigate or reopen a decision making or denying an award. Except for claims of sexual abuse that occurred while the victim was a minor, the Commission shall not reopen or reinvestigate a case after the expiration of two years from the date of submission of the original claim. Any claim involving the sexual abuse of a minor that has been denied before July 1, 2001, because it was not timely filed may, upon application filed with the Commission, be reconsidered provided the application for reconsideration is filed within ten years after the minor's eighteenth birthday.
  2. The Commission shall reconsider, at least annually, every award upon which periodic payments are being made. An order or reconsideration of an award shall not require refund of amounts previously paid unless the award was obtained by fraud. The right of reconsideration does not affect the finality of a Commission decision for the purposes of judicial review.
  3. Within thirty days of the date of the report containing the final decision of the Commission, the claimant may, if in his judgment the award is improper, appeal such decision to the Court of Appeals, as provided in § 65.2-706 . The Attorney General may appear in such proceedings as counsel for the Commission. (1976, c. 605; 1977, c. 215; 1984, c. 703; 2001, c. 855; 2002, c. 665.)

The 2001 amendments. - The 2001 amendment by c. 855, in subsection A, substituted "Except for claims of sexual abuse that occurred while the victim was a minor, the Commission shall not" for "Under no circumstances shall the Commission" at the beginning of the second sentence, and added the last sentence.

The 2002 amendments. - The 2002 amendment by c. 665 substituted "submission of the original claim" for "occurrence of the crime upon which the claim is based" in the second sentence of subsection A.

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

CASE NOTES

Commission should have flexibility in implementing decisions. - The provision for reconsideration indicates that once the decision is made, the commission should have flexibility in implementing it. Therefore, if an award is reduced because payments are to be received in the future but those payments are never received or not received in full, the commission need not reopen or reinvestigate the case pursuant to subsection A to order that payments be made. It need only consider that the collateral source funds were never paid or not paid in full and that the award already entered, or the balance after reduction by collateral payments, should be paid from the Crime Victims' Compensation Fund. Jennings v. Division of Crime Victims' Comp., 5 Va. App. 536, 365 S.E.2d 241 (1988).

Social security payments are funds to be received as a result of the injury from any other public source; as provided by subsection C of § 19.2-368.12 , however, if the social security payments were to cease before the limit of the award is reached, the claimant would be entitled to the balance of an award from the Crime Victims' Compensation Fund. Jennings v. Division of Crime Victims' Comp., 5 Va. App. 536, 365 S.E.2d 241 (1988).

NOTES FROM WORKERS' COMPENSATION COMMISSION

The statutory provisions relating to requests for review from decisions of the Crime Victims Director are not as rigid as those contained in other statutes and rules relating to appellate procedure. Code § 19.2-368.7 (A) states that, "The Commission may extend the time for filing under this section, upon good cause shown, for a period not to exceed two years from the date of the occurrence." Also, Code § 19.2-368.8 (A) allows the Commission to reinvestigate or reopen a decision making or denying an award, except that the Commission shall not reopen or reinvestigate a case after the expiration of two years from the date of occurrence of the crime upon which the claim is based. Migliorini v. Criminal Injuries Compensation Fund, 78 O.W.C. 218 (1999).

Where the claimant had filed a timely request for reconsideration of the decision of the Crime Victims Director, and thereafter filed her request for review within twenty days of the date that request was denied, the Commission held that there was good cause to consider the claimant's review request. Migliorini v. Criminal Injuries Compensation Fund, 78 O.W.C. 218 (1999).

§ 19.2-368.9. Emergency awards.

Notwithstanding any other provisions of this chapter, if it appears to the Commission, that (1) such claim is one with respect to which an award probably will be made, and (2) undue hardship will result to the claimant if immediate payment is not made, the Commission may make an emergency award to the claimant, pending a final decision in the case, provided that (i) the amount of such emergency award shall not exceed $3,000, (ii) the amount of such emergency award shall be deducted from any final award made to the claimant, and (iii) the excess of the amount of such emergency award over the final award, or the full amount of the emergency award if no final award is made, shall be repaid by the claimant to the Commission.

(1976, c. 605; 1977, c. 215; 1985, c. 446; 2014, c. 665.)

Editor's note. - Acts 2014, c. 665, cl. 2 provides: "That the Virginia State Crime Commission shall convene a stakeholder workgroup to include state and local representatives from the sexual and domestic violence coalition; representatives from the Department of Criminal Justice Services, the Department of Social Services, the Department of Health and the Criminal Injuries Compensation Fund; and representatives from other relevant state or local entities to support an efficient and comprehensive streamlining of current federal and state sexual and domestic violence victim service agency funding, including general fund, non-general fund, and special fund monies. The workgroup shall complete its work no later than September 30, 2014."

The 2014 amendments. - The 2014 amendment by c. 665 substituted "$3,000" for "$2,000."

Law review. - For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

§ 19.2-368.10. When awards to be made; reporting crime and cooperation with law enforcement.

No award shall be made unless the Commission finds that:

  1. A crime was committed;
  2. Such crime directly resulted in an individual becoming a victim as defined in § 19.2-368.2 , on whose behalf a claim is filed; and
  3. Police records show that such crime was promptly reported to the proper authorities. In no case may an award be made where the police records show that such report was made more than 120 hours after the occurrence of such crime, unless the Commission, for good cause shown, finds the delay to have been justified. The provisions of this subdivision shall not apply to claims of sexual abuse.

    The Commission, upon finding that any claimant or award recipient has not fully cooperated with all law-enforcement agencies, may deny, reduce or withdraw any award, as the case may be.

    (1976, c. 605; 1977, c. 215; 1985, c. 446; 2001, c. 855; 2005, c. 683; 2021, Sp. Sess. I, c. 178.)

The 2001 amendments. - The 2001 amendment by c. 855 redesignated subdivisions (1), (2), and (3) as subdivisions 1, 2, and 3; in present paragraph 3, substituted a period for "and" following "authorities," substituted "In" for "in" preceding "no case," and added the last sentence in the paragraph.

The 2005 amendments. - The 2005 amendment by c. 683 rewrote subdivision 2.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 178, effective July 1, 2021, deleted "that occurred while the victim was a minor" from the end of subdivision 3.

Law review. - For survey of Virginia criminal law for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976).

CASE NOTES

Analysis in determining claims. - The analysis the director and the commission should have applied in determining claims was as follows: (1) determine eligibility; (2) determine whether the award is allowed; (3) determine the amount of the award; (4) apportion the award, if necessary; and (5) reduce the award to each claimant by the amount of payments received or to be received by that claimant from any collateral source as a result of the injury. Jennings v. Division of Crime Victims' Comp., 5 Va. App. 536, 365 S.E.2d 241 (1988).

NOTES FROM WORKERS' COMPENSATION COMMISSION

Persons who fail to fully cooperate with law-enforcement authorities, or who are criminally responsible for the crime upon which the claim is based, are not eligible for an award. Bailey v. Criminal Injuries Compensation Fund, 77 O.W.C 150 (1998).

The Commission may reduce the award or reject a crime victim's claim altogether, if the victim's conduct "contributed to the infliction of the injury." This latter criterion established the substantive basis for the Commission's inquiry, rather than the merely precatory reference to "innocence" found in the preamble at Section 19.2-368.1 , since a provision specifically addressing the circumstances in question controls as opposed to a provision with an oblique reference. Bailey v. Criminal Injuries Compensation Fund, 77 O.W.C. 150 (1998).

Where the police report of the crime does not indicate that the victim was engaged in any criminal conduct, or that he was armed, or that he contributed in any way to the infliction of his own injury, but at most suggests that he was present in someone's home where marijuana may have been sold, there is no basis for denying or reducing the claim. Bailey v. Criminal Injuries Compensation Fund, 77 O.W.C. 150 (1998).

§ 19.2-368.11.

Repealed by Acts 1986, c. 457.

§ 19.2-368.11:1. Amount of award.

  1. Compensation for Total Loss of Earnings: An award made pursuant to this chapter for total loss of earnings that results directly from incapacity incurred by a crime victim shall be payable during total incapacity to the victim or to such other eligible person, at a weekly compensation rate equal to 66-2 /3 percent of the victim's average weekly wages. The victim's average weekly wages shall be determined as provided in § 65.2-101 .
  2. Compensation for Partial Loss of Earnings: An award made pursuant to this chapter for partial loss of earnings which results directly from incapacity incurred by a crime victim shall be payable during incapacity at a weekly rate equal to 66-2 /3 percent of the difference between the victim's average weekly wages before the injury and the weekly wages which the victim is able to earn thereafter. The combined total of actual weekly earnings and compensation for partial loss of earnings shall not exceed $600 per week.
  3. Compensation for Loss of Earnings of Parent of Minor Victim: The parent or guardian of a minor crime victim may receive compensation for loss of earnings, calculated as specified in subsections A and B, for time spent obtaining medical treatment for the child and for accompanying the child to, attending or participating in investigative, prosecutorial, judicial, adjudicatory and post-conviction proceedings.
  4. Compensation for Dependents of a Victim Who Is Killed: If death results to a victim of crime entitled to benefits, dependents of the victim shall be entitled to compensation in accordance with the provisions of §§ 65.2-512 and 65.2-515 in an amount not to exceed the maximum aggregate payment or the maximum weekly compensation which would have been payable to the deceased victim under this section.
  5. Compensation for Unreimbursed Medical Costs, Funeral Expenses, Services, etc.: Awards may also be made on claims or portions of claims based upon the claimant's actual expenses incurred as are determined by the Commission to be appropriate, for (i) unreimbursed medical expenses or indebtedness reasonably incurred for medical expenses; (ii) expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those the victim would have performed, for the benefit of himself and his family, if he had not been a victim of crime; (iii) expenses directly related to funeral or burial, not to exceed $10,000; (iv) expenses attributable to pregnancy resulting from forcible rape; (v) mental health counseling for survivors as defined under subdivisions A 2 and A 4 of § 19.2-368.4 , not to exceed $3,500 per claim; (vi) reasonable and necessary moving expenses, not to exceed $2,000, incurred by a victim or survivors as defined under subdivisions A 2 and A 4 of § 19.2-368.4 ; and (vii) any other reasonable and necessary expenses and indebtedness incurred as a direct result of the injury or death upon which such claim is based, not otherwise specifically provided for. Notwithstanding any other provision of law, a person who is not eligible for an award under subsection A of § 19.2-368.4 who pays expenses directly related to funeral or burial is eligible for reimbursement subject to the limitations of this section.
  6. Notwithstanding the provisions of subdivision 3 of § 19.2-368.10 , §§ 19.2-368.5 , 19.2-368.5:1 , 19.2-368.6 , 19.2-368.7 , and 19.2-368.8 , subsection G of this section, and § 19.2-368.16 , the Criminal Injuries Compensation Fund shall pay for physical evidence recovery kit examinations conducted on victims of sexual assault. Any individual that submits to and completes a physical evidence recovery kit examination shall be considered to have met the reporting and cooperation requirements of this chapter. Funds paid for physical evidence recovery kit collection shall not be offset against the Fund's maximum allowable award as provided in subsection H. Payments may be subject to negotiated agreements with the provider. Health care providers that complete physical evidence recovery kit examinations may bill the Fund directly subject to the provisions of § 19.2-368.5 :2. The Commission shall develop policies for a distinct payment process for physical evidence recovery kit examination expenses as required under subdivision 1 of § 19.2-368.3 . In order for the Fund to consider additional crime-related expenses, victims shall file with the Fund following the provisions of this chapter and Criminal Injuries Compensation Fund policy.
  7. Any claim made pursuant to this chapter shall be reduced by the amount of any payments received or to be received as a result of the injury from or on behalf of the person who committed the crime or from any other public or private source, including an emergency award by the Commission pursuant to § 19.2-368.9 .
  8. To qualify for an award under this chapter, a claim must have a minimum value of $100, and payments for injury or death to a victim of crime, to the victim's dependents or to others entitled to payment for covered expenses, after being reduced as provided in subsection G, shall not exceed $35,000 in the aggregate.

    (1986, c. 457; 1988, c. 748; 1989, c. 335; 1990, c. 552; 1992, c. 687; 1996, c. 86; 1998, c. 484; 2000, c. 847; 2002, c. 665; 2005, c. 683; 2007, c. 381; 2008, cc. 203, 251; 2014, c. 665; 2019, c. 524.)

Editor's note. - Acts 2014, c. 665, cl. 2 provides: "That the Virginia State Crime Commission shall convene a stakeholder workgroup to include state and local representatives from the sexual and domestic violence coalition; representatives from the Department of Criminal Justice Services, the Department of Social Services, the Department of Health and the Criminal Injuries Compensation Fund; and representatives from other relevant state or local entities to support an efficient and comprehensive streamlining of current federal and state sexual and domestic violence victim service agency funding, including general fund, non-general fund, and special fund monies. The workgroup shall complete its work no later than September 30, 2014."

The 2000 amendments. - The 2000 amendment by c. 847, in subsection D, substituted "$2,500" for "$1,000" in clause (v).

The 2002 amendments. - The 2002 amendment by c. 665 substituted "$600" for "$200" in subsections A and B; inserted subsection C and redesignated former subsections C through F as present subsections D through G; in present subsection E, substituted "directly" for "in any way" in clause (iii), substituted "$1,000" for "$500" in clause (vi), and added the last sentence; and, in present subsection G, substituted "subsection F" for "subsection E."

The 2005 amendments. - The 2005 amendment by c. 683 substituted "$5,000" for "$3,500" in clause (iii) in subsection E; and made minor stylistic changes.

The 2007 amendments. - The 2007 amendment by c. 381 substituted "$25,000" for "$15,000" in subsection G.

The 2008 amendments. - The 2008 amendments by cc. 203 and 251 are identical, and inserted subsection F; redesignated former subsections F and G as subsections G and H; and substituted "subsection G" for "subsection F" in subsection H.

The 2014 amendments. - The 2014 amendment by c. 665, in subsection E, substituted "$3,500" for "$2,500" and "$2,000" for "$1,000."

The 2019 amendment. - The 2019 amendment by c. 524, in subsection A, deleted the third sentence, which read: "The total amount of weekly compensation shall not exceed $600"; in subsection E, substituted "$10,000" for "$5,000" in clause (iii); in subsection H, substituted "$35,000" for "$25,000"; and made stylistic changes.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 2.

CASE NOTES

The language of former § 19.2-368.11 was mandatory rather than discretionary. It required compensation for loss of earnings in accordance with the Workers' Compensation Act schedule. Marchand v. Division of Crime Victims' Comp., 230 Va. 460 , 339 S.E.2d 175 (1986).

Under the mandatory provision of former § 19.2-368.11 , victim was entitled to receive the compensation for lost earnings prescribed in former § 65.1-56 (now § 65.2-503 ) for the loss of sight in his eye, subject of course to the statutory limitation of $12,500 in the aggregate. Marchand v. Division of Crime Victims' Comp., 230 Va. 460 , 339 S.E.2d 175 (1986).

Limited purpose to provide some assistance to victims with no other source of aid. - The provision for reducing the award indicates that the statute has a limited purpose to provide some assistance for those victims or dependents who have no other source of aid. The statute plainly does not intend that payment from a collateral source to a claimant who may have no legal obligation to provide assistance to other dependents of the crime victim will preclude an award to other claimants. Jennings v. Division of Crime Victims' Comp., 5 Va. App. 536, 365 S.E.2d 241 (1988) (decided under § 19.2-368.12 (c) before the version of that subsection was deleted by Acts 1989, c. 335).

Amounts received from collateral sources more than maximum allowable amounts. - When one claimant receives from collateral sources more than the maximum allowable amount under subsection C it does not preclude an award to other claimants regardless of whether any other claimants receive collateral funds or not. Jennings v. Division of Crime Victims' Comp., 5 Va. App. 536, 365 S.E.2d 241 (1988) (decided under § 19.2-368.12 (c) before the version of that subsection was deleted by Acts 1989, c. 335).

Social security payments are funds to be received as a result of the injury from any other public source; as provided by subsection C of § 19.2-368.12 , however, if the social security payments were to cease before the limit of the award is reached, the claimant would be entitled to the balance of an award from the Crime Victims' Compensation Fund. Jennings v. Division of Crime Victims' Comp., 5 Va. App. 536, 365 S.E.2d 241 (1988) (decided under § 19.2-368.12 (c) before the version of that subsection was deleted by Acts 1989, c. 335).

Analysis in determining claims. - The analysis the director and the commission should have applied in determining claims was as follows: (1) determine eligibility; (2) determine whether the award is allowed; (3) determine the amount of the award; (4) apportion the award, if necessary; and (5) reduce the award to each claimant by the amount of payments received or to be received by that claimant from any collateral source as a result of the injury. Jennings v. Division of Crime Victims' Comp., 5 Va. App. 536, 365 S.E.2d 241 (1988).

NOTES FROM WORKERS' COMPENSATION COMMISSION

The Act governing the Criminal Injuries Compensation Fund is remedial in nature. It provides a system of redress for specified individuals who have suffered loss due to the commission of a crime. The addition of this form of compensation was calculated to fill what was perceived to be a gap in available remedies. This being the case, it is axiomatic that "the statute ... be liberally construed to promote its beneficent purpose," and its provisions "should be read so as to promote the ability of the enactment to remedy the mischief at which it is directed." Albrecht v. Criminal Injuries Compensation Fund, 78 O.W.C. 42 (1999).

Wage-loss benefits not appropriate where victim presented no medical evidence showing that a medical condition caused by the crime limited the amount of work the victim could perform. In Re: Mooring, CV File No. 01-0365 (Aug. 20, 2003).

A crime victim may be entitled to an award of compensation for partial loss of earnings equal to two-thirds of the difference between the victim's average weekly wage before the injury, and what the victim "is able to earn thereafter." The Commission observed that the quoted language is identical to that used by the legislature in Code § 65.2-502 , and construed it accordingly. Before the Commission will award benefits for partial loss of earnings, the victim must prove that he has reasonably marketed his residual capacity, thereby affirmatively establishing the extent of his economic disability. Mooring v. Criminal Injuries Compensation Fund, CV File No. 01-0365 (September 19, 2002).

Eligibility for a Crime Victim's award is decided in the following fashion: (1) is the claimant eligible for an award; (2) is an award allowed; (3) what is the amount of the award; and (4) must the award amount be reduced or rescinded. Albrecht v. Criminal Injuries Compensation Fund, 78 O.W.C. 42 (1999).

Subsections (A) and (B) of § 19.2-368.11:1 provide that awards for total or partial loss of earnings must result directly from "incapacity incurred by a crime victim." Subsections (A) and (B) of § 19.2-368.11:1 apply only to loss of earnings incurred by victims who survive a crime but are incapacitated by the crime. These subsections are inapplicable to loss of earnings for the victim of a homicide. Cincotta v. Criminal Injuries Compensation Fund, 78 O.W.C. 132 (1999).

Subsection (C) of § 19.2-368.11:1 provides compensation for loss of support for surviving dependents of a victim who is killed as a result of the crime. However, where the claimant is a 25-year-old adult and was not dependent upon his mother, the homicide victim, he does not qualify for this benefit. Cincotta v. Criminal Injuries Compensation Fund, 78 O.W.C. 132 (1999).

The statutes governing the Criminal Injuries Compensation Fund do not specifically address the issue of pre-authorization of medical services. Virginia Code § 19.2-368.11:1 (D), which specifies that awards may be made on claims or portions of claims based upon the claimant's actual expenses incurred as are determined by the Commission to be appropriate, does not prohibit pre-authorization of payment prior to the receipt of medical treatment. Pre-authorization is simply a representation to the health care provider that the Fund will pay reasonable and necessary costs of treatment related to the assault at the usual and customary rate. Morrison v. Victims of Crimes Compensation Act, 77 O.W.C. 239 (1998).

Claims for psychological services for survivors of a homicide victim are limited to a maximum amount of $1,000, but that amount must be reduced for any payments [collateral resources] received or to be received as a result of the injury from or on behalf of the person who committed the crime or from any other public or private source. Albrecht v. Criminal Injuries Compensation Fund, 78 O.W.C. 42 (1999).

Where the crime victim is otherwise precluded from receiving necessary reconstructive dental work, and it is likely that an award will be issued, it is appropriate for the Criminal Injuries Compensation Fund to issue a statement of pre-authorization. Morrison v. Victims of Crimes Compensation Act, 77 O.W.C. 239 (1998).

The Commission adopted a policy on November 4, 1998, which provided that "[t]he Fund may pay up to one thousand dollars for crime scene clean-up when a crime resulting in physical injury occurs in a residence.... Requests for Awards for Crime Scene Clean-Up involving automobiles will be decided by the Commission judicially on a case-by-case basis." Montgomery v. Criminal Injuries Compensation Fund, 78 O.W.C. 276 (1999).

The Commission interprets its crime scene clean-up policy to cover replacement and clean-up of items damaged by stains resulting from the police use of graphite at the crime scene. However, it does not cover payment for items taken by the police as evidence. Montgomery v. Criminal Injuries Compensation Fund, 78 O.W.C. 276 (1999).

Expenses for damages to a stolen automobile and loss of use of the victim's dwelling during the police department's investigation are not compensable under the Crime Victim's Compensation Act. The Act makes no provision for reimbursement for property loss. Cincotta v. Criminal Injuries Compensation Fund, 78 O.W.C. 132 (1999).

The Commission has made several policy determinations regarding collateral payments. Aid to Families with Dependent Children (AFDC) benefits and food stamps will no longer be deducted from a criminal injuries award as a collateral resource. Similarly, annual leave or paid vacation time will not be deducted from a claimant's criminal injuries award for lost wages, although sick leave will be considered a collateral resource. Finally, when the Criminal Injuries Compensation Fund suspects that a claim may be compensable under the Virginia Workers' Compensation Act, the claim will no longer be denied on that basis. Rather, the claim will be deferred until a decision under the Virginia Workers' Compensation Act is made. At that point, the issue of collateral payments will be addressed by the Criminal Injuries Compensation Fund. Albrecht v. Criminal Injuries Compensation Fund, 78 O.W.C. 42 (1999).

In this case, the claimants request that they be reimbursed for their out-of-pocket expenses incurred for psychological counseling necessitated by the death of their son, who was a homicide victim. These expenses are in the nature of medical expenses, and the claimants established that their health insurance company will not pay for the first $1,000.00 of psychological counseling. While each has received proceeds of life insurance policies on the death of their son, the Commission noted that life insurance is generally designed to compensate for loss of companionship and financial support, not medical expenses. The Commission held, therefore, that the life insurance proceeds should not be deducted as a collateral resource from the awards for psychological counseling. Albrecht v. Criminal Injuries Compensation Fund, 78 O.W.C. 42 (1999).

Subsection (E) of § 19.2-368.11:1 , informally referred to as the "collateral resource" rule, provides that any claim for crime victim's benefits shall be reduced by the amount of any payments received or to be received as a result of the injury from or on behalf of the person who committed the crime or from any other public or private source, including an emergency award by the Commission. The Commission has held that life insurance proceeds should not be considered a collateral resource to be deducted from the costs of survivor's psychological counseling. Cincotta v. Criminal Injuries Compensation Fund, 78 O.W.C. 132 (1999).

With respect to victims' estates, the Commission has held that only that amount of a deceased victim's estate that both (i) exceeds $10,000 and (ii) is actually received by the claimant may be deducted from an award for lost wages under the Act. Neither life insurance proceeds nor the value of a deceased victim's estate will be deducted from awards for funeral expenses. Cincotta v. Criminal Injuries Compensation Fund, 78 O.W.C. 132 (1999).

The Commission policy of awarding no more than $1,000.00 towards crime-scene clean-up costs described in In Re: Montgomery, 78 OWC 276 (1999), may be overcome. If the costs associated with crime-scene clean up exceed $1,000.00, and the clean-up costs directly flowed from the crime itself, not from police investigative methods, the Commission may award more than $1,000.00 as "other reasonable and necessary expenses and indebtedness incurred as a direct result of the injury or death upon which such claim is based." In Re: Constance D. Yount, CV File No. 01-0330 (October 16, 2001).

The collateral source rule did not prevent the claimant from recovering medical expenses in this matter. Recovery of those amounts paid by a private health insurer, over and above the victim's co-payment, would be barred by the rule. However, amounts received by the claimant pursuant to a policy of life insurance or inheritance of the victim's estate, are not considered collateral sources. In Re: Constance D. Yount, CV File No. 01-0330 (October 16, 2001).

§ 19.2-368.12. Awards not subject to execution or attachment; apportionment; reductions.

  1. No award made pursuant to this chapter shall be subject to execution or attachment other than for expenses resulting from the injury which is the basis for the claim.
  2. If there are two or more persons entitled to an award as a result of the death of a person which is the direct result of a crime, the award shall be apportioned among the claimants.
  3. In determining the amount of an award, the Commission shall determine whether, because of his conduct, the victim of such crime contributed to the infliction of his injury, and the Commission shall reduce the amount of the award or reject the claim altogether, in accordance with such determination; provided, however, that the Commission may disregard for this purpose the responsibility of the victim for his own injury where the record shows that such responsibility was attributable to efforts by the victim to prevent a crime or an attempted crime from occurring in his presence, or to apprehend a person who had committed a crime in his presence or had, in fact, committed a felony.

    (1976, c. 605; 1977, c. 215; 1989, c. 335.)

Law review. - For article on the need for reform of and a proposed revision of Virginia's Exemption Statutes, see 37 Wash. & Lee L. Rev. 127 (1980).

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 18 Enforcement of Judgments and Decrees. § 18.02 Common Law. Bryson. Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 22 Enforcement of Judgments. § 22.08 Garnishment. Friend.

CASE NOTES

Analysis in determining claims. - The analysis the director and the commission should have applied in determining claims was as follows: (1) determine eligibility; (2) determine whether the award is allowed; (3) determine the amount of the award; (4) apportion the award, if necessary; and (5) reduce the award to each claimant by the amount of payments received or to be received by that claimant from any collateral source as a result of the injury. Jennings v. Division of Crime Victims' Comp., 5 Va. App. 536, 365 S.E.2d 241 (1988).

Illustrative cases. - Where record disclosed that although bad blood existed between victim and assailant, victim confronted assailant under circumstances involving the consumption of alcohol and intoxication, engaged in an argument with assailant, smacked assailant in the face, and later approached assailant outside and laid his hand upon assailant's shoulder, and it was then that assailant stabbed victim, these circumstances sufficiently demonstrated a contributory chain of causation flowing from the initial confrontation to the ultimate stabbing of victim by assailant, and thus supported the commission's determination that victim contributed to the infliction of his injuries. Hoban v. Virginia Workers' Comp. Comm'n, No. 2236-94-1 (Ct. of Appeals Nov. 7, 1995).

NOTES FROM WORKERS' COMPENSATION COMMISSION

§ 19.2-368.6 (D) creates a rebuttable presumption that the victim did not contribute to her injury. Garwacke v. Criminal Injuries Compensation Fund, 78 O.W.C. 253 (1999).

The Commission may reduce the award or reject a crim victim's claim altogether, if the victim's conduct "contributed to the infliction of the injury . . ." This latter criterion establishes the substantive basis for the Commission's inquiry, rather than the merely precatory reference to "innocence" found in the preamble at Section 19.2-368.1 , since a provision specifically addressing the circumstances in question controls as opposed to a provision with an oblique reference. Bailey v. Criminal Injuries Compensation Fund, 77 O.W.C. 150 (1998).

Where the police report of the crime does not indicate that the victim was engaged in any criminal conduct, or that he was armed, or that he contributed in any way to the infliction of his own injury, but at most suggests that he was present in someone's home where marijuana may have been sold, there is no basis for denying or reducing the claim. Bailey v. Criminal Injuries Compensation Fund, 77 O.W.C. 150 (1998).

The claimant, a minor, attended a party and drank some beer. Without her knowledge, the beer was spiked with a hallucinogen. Because of a reaction to that drug, the claimant required medical treatment. The Commission found that there was no evidence that her actions proximately contributed to her injury. She was not intoxicated, she did not consent to ingesting the drug, nor was she aware of, or able to reasonably foresee, that another person at the party would illegally and secretly place drugs into her drink. The Commission concluded that being at the party and drinking beer were not such acts as would alert the claimant that she was placing herself in imminent danger, and concluded that her actions did not proximately contribute to her injury. Garwacke v. Criminal Injuries Compensation Fund, 78 O.W.C. 253 (1999).

In determining the amount of an award, the Commission must determine whether the crime victim contributed to the infliction of his injury. If it determines that the victim contributed to the infliction of his injury to some degree, the Commission is required to reduce the amount of the award, or reject the claim altogether. In this case, the Commission reduced the claimant's award by 50%, noting that the victim was apparently aware of the possibility of a fight with his assailant, and had been threatened with physical violence. Nevertheless, the victim decided to confront the assailant, was beaten during the confrontation, and died later from massive head trauma. In Re: Claim of Tiffany D. Compton, CV File No. 01-0211 (June 12, 2001).

The Commission reduced the victim's award by 25%, pursuant to Code § 19.2-368.12 (C), for actions taken that contributed to the injury for which benefits are sought. The victim was drinking and wagering on a game of pool. When the assailant refused to pay on his wagering losses, the victim removed his jacket and challenged the assailant to a fight. Because the victim was engaged in illegal betting, and the evidence showed he provoked the attack that resulted, the Commission agreed that reducing the award by 25% was appropriate. In Re: Claim of Randy E. Grimstead, CV File No. 01-0460 (July 24, 2001).

§ 19.2-368.13.

Repealed by Acts 1984, c. 619.

§ 19.2-368.14. Public record; exception.

Except as provided in § 19.2-368.6 concerning juvenile claimants or victims, the record of any proceedings under this chapter shall be a public record; provided, however, that any record or report obtained by the Commission, the confidentiality of which is protected by any other law or regulation, shall remain confidential, subject to such law or regulation.

(1976, c. 605; 1994, c. 834.)

§ 19.2-368.15. Subrogation of Commonwealth to claimant's right of action; lien in favor of the Commonwealth; disposition of funds collected.

Acceptance of an award made pursuant to this chapter shall subrogate the Commonwealth, to the extent of such award, to any right or right of action accruing to the claimant or the victim to recover payments on account of losses resulting from the crime with respect to which the award is made. However, except as otherwise provided in subsection J of § 19.2-305.1 , the Commonwealth shall not institute any proceedings in connection with its right of subrogation under this section within one year from the date of commission of the crime, unless any claimant or victim's right or action shall have been previously terminated. All funds collected by the Commonwealth in a proceeding instituted pursuant to this section shall be paid over to the Comptroller for deposit into the Criminal Injuries Compensation Fund.

Whenever any person receives an award from the Criminal Injuries Compensation Fund, the Commonwealth shall have a lien for the total amount paid by the Fund, or any portion thereof compromised pursuant to the authority granted under § 2.2-514 , on the claim of such injured person or his personal representative against the person, firm, or corporation who is alleged to have caused such injuries. The Fund's lien shall be inferior to any lien for payment of reasonable attorney fees and costs, but shall be superior to all other liens created by § 8.01-66.2 . The injured person may file a petition or motion to reduce the lien and apportion the recovery pursuant to § 8.01-66.9 . The Fund's lien shall become effective when notice is provided pursuant to § 8.01-66.5 and liability shall attach pursuant to § 8.01-66.6 .

(1976, c. 605; 1983, c. 227; 2013, c. 273; 2017, cc. 786, 814; 2018, cc. 316, 671.)

The 2013 amendments. - The 2013 amendment by c. 273 inserted "except as otherwise provided in subsection G of § 19.2-305.1 " in the second sentence of the first paragraph, and added the second paragraph.

The 2017 amendments. - The 2017 amendments by cc. 786 and 814, are identical, and substituted "subsection I" for "subsection G" in the introductory paragraph.

The 2018 amendments. - The 2018 amendments by cc. 316 and 671 are identical, and substituted "subsection J" for "subsection I" in the first paragraph.

NOTES FROM WORKERS' COMPENSATION COMMISSION

Fund's right of subrogation extends to victim's personal representative; Act establishes right of subrogation to rights accruing to claimant or victim, but not explicitly victim's personal representative; Act defines "victim" as person injured or killed by crime, and thus subrogation rights found to extend to both living victim and deceased victim, through personal representative. In Re: Debt Set-Off Matter of Fitzgerald, CV File No. 00-705 (Apr. 30, 2003).

Fund's subrogation right based on rights accruing to victim, and because victim's receipt of homeowner's insurance benefits from tortfeasor's policy would not diminish tortfeasor's liability in civil claim by victim by action of collateral-source rule, Fund's subrogation right similarly not diminished. In Re: Debt Set-Off Matter of Bradsher, CV File No. 00-545 (Jan. 24, 2003).

A person, against whom subrogation recovery is sought by setting-off the subrogation amount against the person's tax refund, is entitled to a hearing before the Commission to determine if the underlying debt is valid. The mere fact that the person was convicted of the underlying crime, from which the debt to the state arose, does not eliminate the need for a hearing as to the validity of the debt for which a tax refund set-off is claimed. The alleged debtor was not a party to the proceeding before the Criminal Injuries Compensation Fund ("C.I.C.F."), and did not have notice of it. Accepting the debt determination of the C.I.C.F., without allowing the putative debtor a hearing on its validity, would result in an unlawful taking of property, and would deprive him of his due process rights. In Re: Debt Set-Off Matter of Christopher R. Kowalski, CV File No. 99-1056 (December 29, 2000).

The Commission is charged in subrogation cases involving tax refund forfeitures, pursuant to Virginia Code §§ 58.1-520 et seq., to determine whether the claim against the debtor is "valid." A conviction of the underlying crime does not preclude the defendant from challenging the underlying facts in a subsequent action for civil damages. A conviction or acquittal in the criminal action does not establish in a subsequent civil action the truth of the facts upon which such conviction was based. The conviction is inadmissible evidence for this purpose. Therefore, when the underlying debt is challenged by the defendant, the Commission must give him an opportunity to be heard, and the evidence presented should be considered before rendering a final decision. In Re: Claim of Michael D. McFarland, CV File No. 97-970 (February 22, 2001).

The Commission rejected the debtor's argument that any set-off against his tax return should be limited to the amount of restitution he was ordered to pay as a part of his conviction. The victim's right to seek civil redress under Code § 8.01-243 (B) is not affected by any sentence imposed by the court resulting from a criminal conviction. The Fund's rights following entry of an award are coextensive with the victim's, and the fund is subrogated to the victim's right to redress. Accordingly, the Circuit Court's restitution order does not preclude the Fund from seeking to setoff any amounts paid by the Fund exceeding the restitution order. McFarland v. Criminal Injuries Compensation Fund, CV File No. 97-970 (August 29, 2002).

§ 19.2-368.16. Claims to be made under oath.

All claims shall be made under oath. Any person who asserts a false claim under the provisions of this chapter shall be guilty of perjury and, in addition, shall be subject to prosecution under the provisions of Article 3 (§ 18.2-95 et seq.) of Chapter 5 of Title 18.2, and shall further forfeit any benefit received and shall reimburse and repay the Commonwealth for payments received or paid on his behalf pursuant to any of the provisions hereunder.

(1976, c. 605.)

§ 19.2-368.17. Public information program.

The Commission shall establish and conduct a public information program to assure extensive and continuing publicity and public awareness of the provisions of this chapter. The public information program shall include brochures, posters and public service advertisements for television, radio and print media for dissemination to the public of information regarding the right to compensation for innocent victims of crime, including information on the right to file a claim, the scope of coverage, and the procedures to be utilized incident thereto.

Whenever a crime which directly resulted in personal physical injury to, or death of, an individual is reported within the time required by § 19.2-368.10 , the law-enforcement agency to which the report is made shall make reasonable efforts, where practicable, to notify the victim or other potential claimant in writing on forms prepared by the Commission of his or her possible right to file a claim under this chapter. In any event, no liability or cause of action shall arise from the failure to so notify a victim of crime or other potential claimant.

(1976, c. 605; 1986, cc. 457, 472.)

§ 19.2-368.18. Criminal Injuries Compensation Fund.

  1. There is hereby created a special fund to be administered by the Comptroller, known as the Criminal Injuries Compensation Fund.
  2. Whenever the costs provided for in §§ 17.1-275.1 , 17.1-275.2 , 17.1-275.3 , 17.1-275.4 , 17.1-275.7 , 17.1-275.8 , or § 17.1-275.9 or subsections B or C of § 16.1-69.48:1 are assessed, a portion of the costs, as specified in those sections, shall be paid over to the Comptroller to be deposited into the Criminal Injuries Compensation Fund. Under no condition shall a political subdivision be held liable for the payment of this sum.
  3. No claim shall be accepted under the provisions of this chapter when the crime that gave rise to such claim occurred prior to July 1, 1977.
  4. Sums available in the Criminal Injuries Compensation Fund shall be used for the purpose of payment of the costs and expenses necessary for the administration of this chapter and for the payment of claims pursuant to this chapter.
  5. All revenues deposited into the Criminal Injuries Compensation Fund, and appropriated for the purposes of this chapter, shall be immediately available for the payment of claims.

    (1976, c. 605; 1978, c. 413; 1980, c. 521; 1985, c. 230; 1988, c. 748; 1993, c. 434; 1996, cc. 760, 976; 2002, c. 831.)

Cross references. - As to the authority to deposit unclaimed court ordered restitution payments into the Criminal Injuries Compensation Fund, see § 19.2-305.1 .

For provision that commissions shall not be allowed to a clerk of court on costs collected pursuant to this section, see § 58.1-3176 .

The 2002 amendments. - The 2002 amendment by c. 831, effective July 1, 2003, rewrote the first sentence in subsection B; and substituted "that" for "which" in subsection C.

Law review. - For survey of Virginia criminal law for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976). For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 99.

CASE NOTES

Purpose of 1985 amendment to subsection E. - Subsection E of this section was rewritten in 1985, apparently to remove any limitations on the receipt of federal funds, federal assistance having become available with the passage of the Comprehensive Crime Control Act of 1984. Another reason for the 1985 amendment to subsection E of this section may simply have been that the limitation of using funds from prior years could have proved burdensome. United States v. Robertson, 638 F. Supp. 1202 (E.D. Va. 1986).

"Additional costs" are form of punishment. - The "additional costs" mandated by the Virginia victim compensation statute are a form of punishment. United States v. Robertson, 638 F. Supp. 1202 (E.D. Va. 1986).

Special assessment inapplicable to drunk-driving offense committed on federal enclave. - As drunken driving offenses are excepted from Virginia's "additional cost" provision in this section, no punishment exists in state law similar to the federal assessments in the Assimilative Crimes Act, 18 U.S.C. § 13, and for that reason the special assessment cannot apply to drunken driving offenses committed in Virginia on a federal enclave. United States v. Robertson, 638 F. Supp. 1202 (E.D. Va. 1986).

OPINIONS OF THE ATTORNEY GENERAL

Use of funds. - The Commission is not authorized under current law to use funds in the Criminal Injuries Compensation Fund to purchase a new office building in which to house the headquarters of the Commission and the Director of CICF and her staff. There is no constitutional or other legal impediment to the introduction of future legislation that would enable the Commission to utilize the Fund for such purposes. Effective July 1, 2013, the Commission is permitted to locate its headquarters outside the City of Richmond, provided the facility remains within the Commonwealth. See opinion of Attorney General to Ms. Evelyn McGill, Executive Director, Virginia Workers' Compensation Commission, 11-101, 2013 Va. AG LEXIS 21 (4/12/13).

Chapter 21.2. Profits From Crime.

Sec.

§ 19.2-368.19. Definitions.

For purposes of this chapter, the following terms shall have the following meanings unless the context requires otherwise:

"Defendant" means any person who pleads guilty to, is convicted of, or is found not guilty by reason of insanity with respect to a felony resulting in physical injury to or death of another person.

"Division" means the Division of Crime Victims' Compensation.

"Interested party" means the victim, the defendant, and any transferee of proceeds due the defendant under a contract, the person with whom the defendant has contracted, the prosecuting attorney for the Commonwealth, and the Division of Crime Victims' Compensation.

"Victim" means a person who suffers personal, physical, mental, emotional, or pecuniary loss as a direct result of a crime and includes the spouse, parent, child, or sibling of the victim.

(1990, c. 549; 1992, c. 681.)

Michie's Jurisprudence. - For related discussion, see 14B M.J. Penalties and Forfeitures, § 4.

§ 19.2-368.20. Special order of escrow.

  1. Any proceeds or profits received or to be received directly or indirectly, except property that may be forfeited to the Commonwealth pursuant to §§ 19.2-386.15 through 19.2-386.31 , by a defendant or a transferee of that defendant from any source, as a direct or indirect result of his crime or sentence, or the notoriety which such crime or sentence has conferred upon him, shall be subject to a special order of escrow.
  2. Income from the defendant's employment in a position unrelated to his crime or the notoriety which such crime has conferred upon him but obtained through the assistance of or rehabilitative training by correctional or mental health programs or personnel shall not be subject to a special order of escrow under this section, and nothing in this section shall be construed to prohibit or hinder the return of property belonging to victims of crime to its rightful owners. Any proceeds from a contract relating to a depiction or discussion of the defendant's crime in a movie, book, newspaper, magazine, radio or television production, or live entertainment or publication of any kind shall not be subject to a special order of escrow unless an integral part of the work is a depiction or discussion of the defendant's crime or an impression of the defendant's thoughts, opinions, or emotions regarding such crime.
  3. Upon petition of the attorney for the Commonwealth filed at any time after conviction of such defendant or his acquittal by reason of insanity and after notice to the interested parties, a hearing upon the motion and a finding for the Commonwealth, for good cause shown, any circuit court in which the petition is filed shall order that such proceeds be subject to a special order of escrow.
    1. The petition shall be filed in the circuit court of the jurisdiction where the defendant was convicted or acquitted by reason of insanity.
    2. The petition shall set forth in general terms the causes for entry of the special order of escrow, and be signed by the attorney for the Commonwealth.
    3. Upon the filing of the petition, the clerk shall forthwith issue a warrant directed to the sheriff or other law-enforcement officer of the county or city, commanding him to take the property into his possession and hold the same subject to further proceedings in the cause. If for any cause the warrant was not executed, other like warrants may be successively issued until one is executed. The officer serving the warrant shall take the property into his possession and forthwith return the warrant and report to the clerk in writing.
    4. Any person concerned in interest may appear and make defense to the petition, which may be done by answer on oath.
    5. When the case is ready for trial, such issues of fact as are made by the pleadings, or as the court may direct, the court shall determine the whole matter of law and fact.
    6. Expenses and costs incurred in the proceedings shall be paid as the court, in its discretion, shall determine; except that no costs shall be adjudged against the Commonwealth.

      An order issued under this section shall require that the defendant and the person with whom the defendant contracts pay to the Division any proceeds due the defendant under the contract and the proceeds shall be placed in a special escrow account for the victims of the defendant's crime.

      (1990, c. 549; 1992, c. 681; 2006, c. 414.)

The 2006 amendments. - The 2006 amendment by c. 414 substituted "Special order of escrow" for "Order of special forfeiture" in the section heading; inserted the subsection designators; in subsection A, inserted "except property that may be forfeited to the Commonwealth pursuant to §§ 19.2-386.15 through 19.2-386.31 " and substituted "a special order of escrow" for "forfeiture pursuant to Chapter 22 ( § 19.2-369 et seq.) of this title"; in subsection B, substituted "a special order of escrow" for "forfeiture" in the first and second sentences; in subsection C, substituted "subject to a special order of escrow" for "forfeited," inserted subdivisions C 1 through C 6 and added "and the proceeds shall be placed in a special escrow account for the victims of the defendant's crime" to the end of the last paragraph.

Law review. - For note, "Son of Sam Laws: A Victim of the First Amendment?," see 49 Wash. & Lee L. Rev. 629 (1992).

Michie's Jurisprudence. - For related discussion, see 7A M.J. Escrow, § 13.

§ 19.2-368.21. Distribution.

  1. Proceeds paid to the Division under § 19.2-368.20 shall be retained in escrow in the Criminal Injuries Compensation Fund for five years after the date of the order, but during that five-year period may be levied upon to satisfy a money judgment rendered by a court or award of the Workers' Compensation Commission in favor of a victim of an offense for which the defendant has been convicted or acquitted by reason of insanity, or a legal representative of the victim.
  2. If ordered by a circuit court in the interest of justice, after motion, notice to all interested parties, and opportunity for hearing, such escrow fund shall be used to:
    1. First, satisfy court ordered restitution against a defendant and in favor of a victim;
    2. Satisfy a money judgment rendered in the court hearing the matter, in favor of a victim of any offense for which the defendant has been convicted;
    3. Pay for legal representation of the defendant in criminal proceedings, including the appeals process, to the extent the defendant's representation was paid for by the Commonwealth or an agency thereof. No more than 25% of the total proceeds in escrow may be used for legal representation; and
    4. Pay any fines or costs assessed against the defendant by a court of the Commonwealth.
  3. At the end of the five-year period, the remaining proceeds shall be paid into the Literary Fund. However, (i) if a civil action under this section is pending against the defendant, the proceeds shall be held in escrow until completion of the action or (ii) if the defendant has appealed his conviction and the appeals process is not final, the proceeds shall be held in escrow until the appeals process is final, and upon disposition of the charges favorable to the defendant, the Division shall immediately pay any money in the escrow account to the defendant.

    (1990, c. 549; 1992, c. 681; 2006, c. 414.)

The 2006 amendments. - The 2006 amendment by c. 414, in subsection A, deleted former subdivision A 2, which read: "Any fines or costs assessed against the defendant by a court of this Commonwealth" and made related changes; in subsection B, inserted subdivision B 1 and redesignated former subdivisions B 1 and B 2 as subdivisions B 2 and B 3, and added subdivision B 4; in subdivision B 3, inserted "to the extent the defendant's representation was paid for by the Commonwealth or an agency thereof" in the first sentence; in subsection C, substituted "Literary" for "Criminal Injuries Compensation" in the first sentence; and made minor stylistic changes.

§ 19.2-368.22. Actions to defeat chapter void.

Any action taken by any person convicted of a felony, whether by way of execution of a power of attorney, creation of corporate entities, or otherwise, to defeat the purpose of this chapter shall be void.

(1990, c. 549; 1992, c. 59.)

Chapter 22. Enforcement of Forfeitures.

Sec.

§§ 19.2-369 through 19.2-386.

Repealed by Acts 2012, cc. 283 and 756, cl. 2.

Cross references. - For current provisions as to enforcement of forfeitures, see Chapter 22 ( § 19.2-386.1 et seq.).

Editor's note. - Former §§ 19.2-369 through 19.2-386, pertaining to enforcement of forfeitures, derived from: 19.2-369 : Code 1950, §§ 19.1-17, 19.1-358; Acts 1960, c. 366; 1975, c. 495. 19.2-370: Code 1950, § 19.1-359; Acts 1960, c. 366; 1975, c. 495. 19.2-371: Code 1950, § 19.1-360; Acts 1960, c. 366; 1975, c. 495. 19.2-372: Code 1950, § 19.1-361; Acts 1960, c. 366; 1975, c. 495. 19.2-373: Code 1950, § 19.1-362; Acts 1960, c. 366; 1975, c. 495. 19.2-374: Code 1950, § 19.1-363; Acts 1960, c. 366; 1975, c. 495. 19.2-375: Code 1950, § 19.1-363.1; Acts 1960, c. 366; 1975, c. 495. 19.2-376: Code 1950, § 19.1-363.2; Acts 1960, c. 366; 1975, c. 495. 19.2-377: Code 1950, § 19.1-364; Acts 1960, c. 366; 1975, c. 495. 19.2-378: Code 1950, § 19.1-365; Acts 1960, c. 366; 1975, c. 495. 19.2-379: Code 1950, § 19.1-366; Acts 1960, c. 366; 1975, c. 495. 19.2-380: Code 1950, § 19.1-367; Acts 1960, c. 366; 1975, c. 495. 19.2-381: Code 1950, § 19.1-368; Acts 1960, c. 366; 1975, c. 495. 19.2-382: Code 1950, § 19.1-369; Acts 1960, c. 366; 1975, c. 495. 19.2-383: Code 1950, § 19.1-370; Acts 1960, c. 366; 1975, c. 495. 19.2-384: Code 1950, § 19.1-371; Acts 1960, c. 366; 1975, c. 495. 19.2-385: Code 1950, § 19.1-372; Acts 1960, c. 366; 1975, c. 495; 2005, c. 681. 19.2-386: Code 1950, § 19.1-373; Acts 1960, c. 366; 1975, c. 495.

Chapter 22.1. Enforcement of Forfeitures.

Sec.

§ 19.2-386.1. Commencing an action of forfeiture.

  1. Except as otherwise specifically provided by law, whenever any property is forfeited to the Commonwealth by reason of the violation of any law, or if any statute provides for the forfeiture of any property or money, or if any property or money be seized as forfeited for a violation of any of the provisions of this Code, the Commonwealth shall follow the procedures set forth in this chapter.
  2. An action against any property subject to seizure under the provisions of Chapter 22.2 (§ 19.2-386.15 et seq.) shall be commenced by the filing of an information in the clerk's office of the circuit court. Any information shall be filed in the name of the Commonwealth by the attorney for the Commonwealth or may be filed by the Attorney General if so requested by the attorney for the Commonwealth. Venue for an action of forfeiture shall lie in the county or city where (i) the property is located, (ii) the property is seized, or (iii) an owner of the property or the person in whose custody the property is found could be prosecuted for the illegal conduct alleged to give rise to the forfeiture. Such information shall (a) name as parties defendant all owners and lienholders then known or of record and the trustees named in any deed of trust securing such lienholder, (b) specifically describe the property, (c) set forth in general terms the grounds for forfeiture of the named property, (d) pray that the same be condemned and sold or otherwise be disposed of according to law, and (e) ask that all persons concerned or interested be notified to appear and show cause why such property should not be forfeited. In all cases, an information shall be filed within three years of the date of actual discovery by the Commonwealth of the last act giving rise to the forfeiture or the action for forfeiture will be barred.
  3. Any action of forfeiture commenced under this section shall be stayed until the court in which the owner of the property or the person in whose custody the property is found is being prosecuted for an offense authorizing the forfeiture finds the owner or the person in whose custody the property is found guilty of any offense that authorizes forfeiture of such property, and any property eligible for forfeiture under the provisions of any statute shall be forfeited only upon such finding of guilt of the owner or the person in whose custody the property is found, regardless of whether the owner or the person in whose custody the property is found has been sentenced. If no such finding is made by the court, all property seized shall be released from seizure no later than 21 days from the date the stay terminates. However, property that has been seized may be forfeited pursuant to the procedures set forth in this chapter even though no finding of guilt is made if (i) such forfeiture is ordered by a court pursuant to a lawful plea agreement or (ii) the owner of the property or the person in whose custody the property was found has not submitted a written demand for the return of the property with the law-enforcement agency that seized the property within 21 days from the date the stay terminates.

    (1989, c. 690; 1991, c. 560; 2002, cc. 588, 623; 2004, c. 995; 2012, cc. 283, 756; 2020, c. 1000.)

Cross references. - As to seizure of property used in connection with or derived from terrorism, see §§ 19.2-386.15 , 57-59 .

As to forfeiture for violation of the Virginia Computer Crimes Act, §§ 18.2-152.1 et seq., see § 19.2-386.17 .

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and inserted " § 18.2-46.9 or" in the first sentence.

The 2004 amendments. - The 2004 amendment by c. 995 substituted "19.2-386.16" for "18.2-46.9" and "19.2-386.22" for "18.2-249."

The 2012 amendments. - The 2012 amendments by c. 283 and 756 are identical, and substituted "Enforcement of Forfeitures" for "Forfeitures in Drug Cases" in the chapter heading; added the first paragraph hereof; and in the present second paragraph, substituted "Chapter 22.2 ( § 19.2-386.15 et seq.)" for " § 19.2-386.15 or § 19.2-386.22 " in the first sentence, and substituted the clause (a) through (e) designators for the former (i) through (v) designators in the fourth sentence.

The 2020 amendments. - The 2020 amendment by c. 1000, added subsection designations; inserted "or the person in whose custody the property is found" in clause (iii) of subsection B; and added subsection C.

Law review. - For note, "Applying the Eighth Amendment to Civil Forfeiture After Austin v. United States: Excessiveness and Proportionality," see 36 Wm. & Mary L. Rev. 235 (1994).

For note, "Civil Asset Forfeiture in Virginia: An Imperfect System," see 74 Wash & Lee L. Rev. 1295 (2017).

Michie's Jurisprudence. - For related discussion, see 4A M.J. Commonwealth's and State's Attorney, § 2; 14B M.J. Penalties and Forfeitures, § 4.

CASE NOTES

Language of section is mandatory. - The language of §§ 18.2-249 [now 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 is plain, unambiguous, and mandatory. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Court's authority dependent upon adherence to provisions of section. - The subject matter jurisdiction necessary to forfeiture is conferred upon the trial court only through these several statutes ( §§ 18.2-249 [now 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 ) and the court's authority is dependent upon scrupulous adherence to their provisions. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Jurisdiction contingent on filing of information. - If the Commonwealth wishes to obtain title to property through the forfeiture provisions of §§ 19.2-386.1 through 19.2-386.14 , it must file an information for forfeiture within 90 days of the date it physically takes the property into its possession. Failure to do so deprives a trial court of jurisdiction to consider the information for forfeiture. Commonwealth v. Brunson, 248 Va. 347 , 448 S.E.2d 393 (1994).

CIRCUIT COURT OPINIONS

Invocation of right against self-incrimination. - In a civil forfeiture action, where defendant had previously pleaded guilty to gambling activities, defendant was not entitled to subsequently invoke his Fifth Amendment rights to avoid self-incrimination in the subsequent civil action because the records sought by the State were germane to defendant's illegal gambling activities and, in particular, the issue of whether the items seized from his residence were used in connection with, or derived from, those activities; the State's motion to compel production was granted. Commonwealth v. $71,919.00 United States Currency, 65 Va. Cir. 118, 2004 Va. Cir. LEXIS 151 (Fairfax County 2004).

§ 19.2-386.2. Seizure of named property.

  1. When any property subject to seizure under Chapter 22.2 (§ 19.2-386.15 et seq.) or other provision under the Code has not been seized at the time an information naming that property is filed, the clerk of the circuit court or a judge of the circuit court, upon motion of the attorney for the Commonwealth wherein the information is filed, shall issue a warrant to the sheriff or other state or local law-enforcement officer authorized to serve criminal process in the jurisdiction where the property is located, describing the property named in the complaint and authorizing its immediate seizure.
  2. In all cases of seizure of real property, a notice of lis pendens shall be filed with the clerk of the circuit court of the county or city wherein the property is located and shall be indexed in the land records in the name or names of those persons whose interests appear to be affected thereby.
  3. When any property is seized for the purposes of forfeiture under Chapter 22.2 (§ 19.2-386.15 et seq.) or other forfeiture provision under the Code, the agency seizing the property shall, as soon as practicable after the seizure, conduct an inventory of the seized property and shall, as soon as practicable, provide a copy of the inventory to the owner. An agency's failure to provide a copy of an inventory pursuant to this subsection shall not invalidate any forfeiture.
  4. When any property is seized for the purposes of forfeiture under Chapter 22.2 (§ 19.2-386.15 et seq.) or other forfeiture provision under the Code, and an information naming that property has not been filed, neither the agency seizing the property nor any other law-enforcement agency may request, require, or in any manner induce any person who asserts ownership, lawful possession, or any lawful right to the property to waive his interest in or rights to the property until an information has been filed. (1989, c. 690; 2002, cc. 588, 623; 2004, c. 995; 2006, c. 766; 2012, cc. 283, 756; 2015, c. 769; 2016, cc. 203, 423.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and inserted " § 18.2-46.9 or" in subsection A.

The 2004 amendments. - The 2004 amendment by c. 995, in subsection A, substituted "19.2-386.15" for "18.2-46.9" and "19.2-386.22" for "18.2-249."

The 2006 amendments. - The 2006 amendment by c. 766 inserted "or a judge of the circuit court" in subsection A.

The 2012 amendments. - The 2012 amendments by cc. 283 and 756 are identical, and substituted "Chapter 22.2 ( § 19.2-386.15 et seq.) or other provision under the Code" for " § 19.2-386.15 or § 19.2-386.22 " near the beginning of subsection A.

The 2015 amendments. - The 2015 amendment by c. 769 added subsection C.

The 2016 amendments. - The 2016 amendments by cc. 203 and 423 are identical, and added subsection D.

CASE NOTES

Language of section is mandatory. - The language of §§ 18.2-249 [now 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 is plain, unambiguous, and mandatory. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Court's authority dependent upon adherence to provisions of section. - The subject matter jurisdiction necessary to forfeiture is conferred upon the trial court only through these several statutes ( §§ 18.2-249 [now 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 ) and the court's authority is dependent upon scrupulous adherence to their provisions. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

§ 19.2-386.2:1. Notice to Commissioner of Department of Motor Vehicles; duties of Commissioner.

If the property seized is a motor vehicle required by the motor vehicle laws of Virginia to be registered, the attorney for the Commonwealth shall forthwith notify the Commissioner of the Department of Motor Vehicles, by certified mail, or electronically in a format prescribed by the Commissioner, of such seizure and the motor number of the vehicle so seized, and the Commissioner shall promptly certify to such attorney for the Commonwealth the name and address of the person in whose name such vehicle is registered, together with the name and address of any person holding a lien thereon. The Commissioner shall also forthwith notify such registered owner and lienor, in writing, of the reported seizure and the county or city wherein such seizure was made.

The certificate of the Commissioner, concerning such registration and lien, shall be received in evidence in any proceeding, either civil or criminal, under any provision of this chapter, in which such facts may be material to the issue involved.

(2012, cc. 283, 756; 2016, cc. 203, 423.)

The 2016 amendments. - The 2016 amendments by cc. 203 and 423 are identical, and inserted "or electronically in a format prescribed by the Commissioner" and deleted "and the amount thereof" at the end of the first sentence.

Editor's note. - The annotations below were decided under prior law.

CASE NOTES

Nature of proceeding. - A proceeding under former § 4-56 to have an automobile condemned and sold because of a violation of the Alcoholic Beverage Control Act was a proceeding in rem rather than in personam, and was a civil action against an automobile and not a criminal action against a person. Ives v. Commonwealth, 182 Va. 17 , 27 S.E.2d 906 (1943).

Former § 4-56 did not contemplate that there shall be two informations filed at the same time. It made no provision for an untimely information filed by the attorney for the Commonwealth. Such information being a nullity, the situation was the same as if there had been no information filed. Cason v. Commonwealth, 181 Va. 297 , 24 S.E.2d 435 (1943).

An information filed by the Attorney General does not take the place of any other information. It is filed because of the lack of a previous information. Cason v. Commonwealth, 181 Va. 297 , 24 S.E.2d 435 (1943).

Information need not designate time of appearance. - Subsection (d) of former § 4-56 did not contemplate that the information to be filed by the attorney for the Commonwealth should designate the day or time when the persons cited therein should appear. Ives v. Commonwealth, 182 Va. 17 , 27 S.E.2d 906 (1943).

Variance between information and notice not fatal. - In a proceeding under former § 4-56 to have an automobile condemned and sold, there was no fatal variance because the time set for the confiscation as set out in the information and the time set out in the published notice are not the same, since the time for the hearing is fixed by the notice, which is the process. Ives v. Commonwealth, 182 Va. 17 , 27 S.E.2d 906 (1943).

Commonwealth's failure to file its information within the statutory 60-day period was fatal to the forfeiture proceeding of an automobile suspected to have been used in illegal drug business. Haina v. Commonwealth, 235 Va. 571 , 369 S.E.2d 401 (1988).

Notice to owner by registered mail not necessary. - In a proceeding under former § 4-56, there was no merit in a contention that a registered letter should have been mailed to the owner of the automobile at his last known address, where the automobile bore a New York license and the attorney for the Commonwealth had no means of knowing and did not know who was the owner of the vehicle or the last known address of such owner. Ives v. Commonwealth, 182 Va. 17 , 27 S.E.2d 906 (1943).

No affidavit is required as a basis for publication, it being entirely different from the order of publication which is required under § 8.01-316 . Ives v. Commonwealth, 182 Va. 17 , 27 S.E.2d 906 (1943).

Two weeks' requirement met. - Where there were two publications of the notice required by subsection (d) of former § 4-56, one on March 25th and one on April 1st and the return day of the latter was on April 24th, the two weeks' requirement of the section was met. Ives v. Commonwealth, 182 Va. 17 , 27 S.E.2d 906 (1943).

§ 19.2-386.3. Notice of seizure for forfeiture and notice of motion for judgment.

  1. If an information has not been filed, then upon seizure of any property under Chapter 22.2 (§ 19.2-386.15 et seq.) or other provision under the Code, the agency seizing the property shall forthwith notify in writing the attorney for the Commonwealth in the county or city in which the seizure occurred, who shall, within 21 days of receipt of such notice, file a notice of seizure for forfeiture with the clerk of the circuit court. Such notice of seizure for forfeiture shall specifically describe the property seized, set forth in general terms the grounds for seizure, identify the date on which the seizure occurred, and identify all owners and lien holders then known or of record, including the treasurer of the locality in which the seized property is located. The clerk shall forthwith mail by first-class mail notice of seizure for forfeiture to the last known address of all identified owners and lien holders. When property has been seized under Chapter 22.2 (§ 19.2-386.15 et seq.) or other provision under the Code prior to filing an information, then an information against that property shall be filed within 90 days of the date of seizure or the property shall be released to the owner or lien holder.
  2. Except as to corporations, all parties defendant shall be served, in accordance with § 8.01-296 , with a copy of the information and a notice to appear prior to any motion for default judgment on the information. The notice shall contain a statement warning the party defendant that his interest in the property shall be subject to forfeiture to the Commonwealth unless within 30 days after service on him of the notice, or before the date set forth in the order of publication with respect to the notice, an answer under oath is filed in the proceeding setting forth (i) the nature of the defendant's claim, (ii) the exact right, title or character of the ownership or interest in the property and the evidence thereof, and (iii) the reason, cause, exemption or defense he may have against the forfeiture of his interest in the property, including but not limited to the exemptions set forth in § 19.2-386.8 . Service upon corporations shall be made in accordance with § 8.01-299 or subdivision 1 or 2 of § 8.01-301 ; however, if such service cannot be thus made, it shall be made by publication in accordance with § 8.01-317 . (1989, c. 690; 1991, c. 560; 1996, c. 673; 2002, cc. 588, 623; 2004, c. 995; 2011, c. 83; 2012, cc. 283, 756.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and inserted " § 18.2-46.9 or" twice in subsection A.

The 2004 amendments. - The 2004 amendment by c. 995, in subsection A, substituted "19.2-386.15" for "18.2-46.9" twice, "19.2-386.22" for "18.2-249" twice, "21" for "twenty-one," and "90" for "ninety"; and substituted "30" for "thirty" in subsection B.

The 2011 amendments. - The 2011 amendment by c. 83 added "including the treasurer of the locality in which the seized property is located" in the second sentence in subsection A.

The 2012 amendments. - The 2012 amendments by cc. 283 and 756 are identical, and substituted "Chapter 22.2 ( § 19.2-386.15 et seq.) or other provision under the Code" for " § 19.2-386.15 or § 19.2-386.22 " twice in subsection A.

CASE NOTES

Notice and hearing required before forfeiture. - Forfeitures of rights and property cannot be adjudged by legislative act, and confiscation without a judicial hearing after due notice would be void as not being by due process of law. Boggs v. Commonwealth, 76 Va. 989 (1882).

Language of section is mandatory. - The language of §§ 18.2-249 [now 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 is plain, unambiguous, and mandatory. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Court's authority dependent upon adherence to provisions of section. - The subject matter jurisdiction necessary to forfeiture is conferred upon the trial court only through these several statutes ( §§ 18.2-249 [now 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 and the court's authority is dependent upon scrupulous adherence to their provisions. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Jurisdiction contingent upon filing of information. - If the Commonwealth wishes to obtain title to property through the forfeiture provisions of §§ 19.2-386.1 through 19.2-386.14 , it must file an information for forfeiture within 90 days of the date it physically takes the property into its possession. Failure to do so deprives a trial court of jurisdiction to consider the information for forfeiture. Commonwealth v. Brunson, 248 Va. 347 , 448 S.E.2d 393 (1994).

Jurisdiction not contingent on filing timely notice with clerk. - The provision in this statute which states that the Commonwealth's attorney "shall" file a notice of seizure for forfeiture with the clerk of the circuit court within 21 days from the date the Commonwealth's attorney receives notice of the seizure is directory, not mandatory, and the failure to file such notice within the time provided does not deprive the circuit court of jurisdiction. Commonwealth v. Wilks, 260 Va. 194 , 530 S.E.2d 665, 2000 Va. LEXIS 89 (2000), distinguishing Commonwealth v. Brunson, 248 Va. 347 , 448 S.E.2d 393 (1994), which dealt with the time limitation for filing the information when property had already been seized.

CIRCUIT COURT OPINIONS

Police officer was not immune from liability for failure to file information. - City police officer was not immune from liability in a car owner's action for damages and injunctive relief arising out of his seizure of her car in alleged violation of the notification requirements of § 19.2-386.3 because the cloak of sovereign governmental immunity does not extend to intentional torts. Mallory v. City of Richmond, 69 Va. Cir. 100, 2005 Va. Cir. LEXIS 340 (Richmond 2005).

City is immune from respondeat superior liability for failure to file information. - City was immune from respondeat superior liability in a car owner's action for damages and injunctive relief arising out of the seizure of her car by a city police officer in alleged violation of the notification requirements of § 19.2-386.3 because municipalities were immune from liability for intentional torts committed by employees during the performance of a governmental function. Mallory v. City of Richmond, 69 Va. Cir. 100, 2005 Va. Cir. LEXIS 340 (Richmond 2005).

Claims in conversion and trespass arose from failure to file information. - Vehicle owner stated a claim against a city police officer in conversion and trespass to chattels by alleging that the officer's seizure of her vehicle without complying with the notice requirements of § 19.2-386.3 or notifying her before turning the vehicle over to the lienholder damaged her by depriving her of the opportunity to secure her property by establishing one of the exemptions outlined in § 19.2-386.8 ; the officer's demurrer and plea of sovereign immunity were therefore overruled. Mallory v. City of Richmond, 69 Va. Cir. 100, 2005 Va. Cir. LEXIS 340 (Richmond 2005).

§ 19.2-386.4. Records and handling of seized property.

Any agency seizing property under § 19.2-386.2 , Chapter 22.2 (§ 19.2-386.15 et seq.), or other provision under the Code, pending forfeiture and final disposition, may do any of the following:

  1. Place the property under constructive seizure by posting notice of seizure for forfeiture on the property or by filing notice of seizure for forfeiture in any appropriate public record relating to property;
  2. Remove the property to a storage area for safekeeping or, if the property is a negotiable instrument or money, deposit it in an interest-bearing account;
  3. Remove the property to a place designated by the circuit court in the county or city wherein the property was seized; or
  4. Provide for another custodian or agency to take custody of the property and remove it to an appropriate location within or without the jurisdiction of the circuit court in the county or city wherein the property was seized or in which the complaint was filed. A report regarding the type of property subject to forfeiture and its handling pursuant to this section and § 19.2-386.5 , and the final disposition of the property shall be filed by the seizing agency with the Department of Criminal Justice Services in accordance with regulations promulgated by the Board. (1989, c. 690; 1991, c. 560; 2002, cc. 588, 623; 2004, c. 995; 2012, cc. 283, 756.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and substituted " §§ 18.2-46.9 , 18.2-249 or" for " § 18.2-249 or under" in the introductory paragraph.

The 2004 amendments. - The 2004 amendment by c. 995 substituted "19.2-386.2, 19.2-386.15 or § 19.2-386.22 " for "18.2-46.9, 18.2-249 or § 19.2-386.2 " in the introductory paragraph.

The 2012 amendments. - The 2012 amendments by cc. 283 and 756 are identical, and substituted "under § 19.2-386.2 , Chapter 22.2 ( § 19.2-386.15 et seq.), or other provision under the Code" for " §§ § 19.2-386.2 , 19.2-386.15 or § 19.2-386.22 " in the introductory paragraph.

CASE NOTES

Language of section is mandatory. - The language of §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 is plain, unambiguous, and mandatory. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Court's authority dependent upon adherence to provisions of section. - The subject matter jurisdiction necessary to forfeiture is conferred upon the trial court only through these several statutes ( §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 ) and the court's authority is dependent upon scrupulous adherence to their provisions. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

§ 19.2-386.5. Release of seized property.

At any time prior to the filing of an information, the attorney for the Commonwealth in the county or city in which the property has been seized pursuant to Chapter 22.2 (§ 19.2-386.15 et seq.) or other provision under the Code may, in his discretion, upon the payment of costs incident to the custody of the seized property, return the seized property to an owner or lien holder, without requiring that the owner or lien holder post bond as provided in § 19.2-386.6 , if he believes the property is properly exempt from forfeiture pursuant to § 19.2-386.8 .

(1989, c. 690; 2002, cc. 588, 623; 2004, c. 995; 2012, cc. 283, 756.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and inserted " § 18.2-46.9 or."

The 2004 amendments. - The 2004 amendment by c. 995 substituted "19.2-386.15 or § 19.2-386.22 " for "18.2-46.9 or § 18.2-249 ."

The 2012 amendments. - The 2012 amendments by cc. 283 and 756 are identical, and substituted "Chapter 22.2 ( § 19.2-386.15 et seq.) or other provision under the Code" for " § 19.2-386.15 or § 19.2-386.22 ."

CASE NOTES

Language of section is mandatory. - The language of §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 is plain, unambiguous, and mandatory. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Court's authority dependent upon adherence to provisions of section. - The subject matter jurisdiction necessary to forfeiture is conferred upon the trial court only through these several statutes ( §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 ) and the court's authority is dependent upon scrupulous adherence to their provisions. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

§ 19.2-386.6. Bond to secure possession.

If the owner or lien holder of the named property desires to obtain possession thereof before the hearing on the information filed against the same, such property shall be appraised by the clerk of the court where such information is filed. The clerk shall promptly cause the property to be appraised at its fair cash value, and forthwith make return thereof in writing to the court. Any appraisal fee shall be taxed as costs as provided in § 19.2-386.12 . Upon the return of the appraisal, the owner or lien holder may give a bond payable to the Commonwealth, in a penalty of the amount equal to the appraised value of the property plus the court costs which may accrue, with security to be approved by the clerk and conditioned for the performance of the final judgment of the court, on the trial of the information. A further condition shall be that, if upon the hearing on the information, the judgment of the court is that such property, or any part thereof, or such interest and equity as the owner or lien holder may have therein, is forfeited, judgment may thereupon be entered against the obligors on such bond for the penalty thereof, without further or other proceedings against them thereon, to be discharged by the payment of the appraised value of the property so seized and forfeited, and costs. Upon such judgment, execution may issue, on which the clerk shall endorse, "No security to be taken." Upon giving of the bond, the property shall be delivered to the owner or lien holder.

(1989, c. 690.)

CASE NOTES

Language of section is mandatory. - The language of §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 is plain, unambiguous, and mandatory. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Court's authority dependent upon adherence to provisions of section. - The subject matter jurisdiction necessary to forfeiture is conferred upon the trial court only through these several statutes ( §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 ) and the court's authority is dependent upon scrupulous adherence to their provisions. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Discharge of bond. - An automobile belonging to defendant was seized, while being used by persons other than defendant in the illegal transportation of whiskey. Upon request of defendant and in compliance with former § 4-56, an appraisal was made, defendant was required to execute a bond, and the automobile was returned to him. But before the hearing he made an attempt to surrender the vehicle to the authorities in an effort to escape liability on the bond, whereupon the court properly held that the bond was conditioned upon the parties' abiding by the order of the court, and was to be discharged under the authority of former § 4-56 by the payment of the appraised value of the vehicle. Wray v. Commonwealth, 191 Va. 738 , 62 S.E.2d 889 (1951)(decided under former § 4-56).

§ 19.2-386.7. Sale of property liable to deterioration.

If the property seized is perishable or liable to deterioration, decay, or injury by being detained in custody pending the proceedings, the circuit court for the county or city in which the information is filed or in which the property is located, may order the same to be sold upon such notice as the court, in its discretion, may deem proper and hold the proceeds of sale pending the final disposition of such proceedings.

(1989, c. 690.)

CASE NOTES

Language of section is mandatory. - The language of §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 is plain, unambiguous, and mandatory. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Court's authority dependent upon adherence to provisions of section. - The subject matter jurisdiction necessary to forfeiture is conferred upon the trial court only through these several statutes ( §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 ) and the court's authority is dependent upon scrupulous adherence to their provisions. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

§ 19.2-386.8. Exemptions.

The following exemptions shall apply to property otherwise subject to forfeiture:

  1. No conveyance used by any person as a lawfully certified common carrier in the transaction of business as a common carrier may be forfeited under the provisions of this section unless the owner of the conveyance was a consenting party or privy to the conduct giving rise to forfeiture or knew or had reason to know of it.
  2. No conveyance may be forfeited under the provisions of this section for any conduct committed by a person other than the owner while the conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of this Commonwealth, or any other state, the District of Columbia, the United States or any territory thereof.
  3. No owner's interest may be forfeited under this chapter if the court finds that:
    1. He did not know and had no reason to know of the conduct giving rise to forfeiture;
    2. He was a bona fide purchaser for value without notice;
    3. The conduct giving rise to forfeiture occurred without his connivance or consent, express or implied; or
    4. The conduct giving rise to forfeiture was committed by a tenant of a residential or commercial property owned by a landlord, and the landlord did not know or have reason to know of the tenant's conduct.
  4. No lien holder's interest may be forfeited under this chapter if the court finds that:
    1. The lien holder did not know of the conduct giving rise to forfeiture at the time the lien was granted;
    2. The lien holder held a bona fide lien on the property subject to forfeiture and had perfected the same in the manner prescribed by law prior to seizure of the property; and
    3. The conduct giving rise to forfeiture occurred without his connivance or consent, express or implied.

      In the event the interest has been sold to a bona fide purchaser for value in order to avoid the provisions of this chapter, the Commonwealth shall have a right of action against the seller of the property for the proceeds of the sale.

      (1989, c. 690; 2005, c. 883.)

The 2005 amendments. - The 2005 amendment by c. 883 inserted subdivision 3 d, and made a related change.

Law review. - For note, "Civil Asset Forfeiture in Virginia: An Imperfect System," see 74 Wash & Lee L. Rev. 1295 (2017).

Editor's note. - The cases noted below were decided under former § 4-56, now repealed, which covered the same subject matter as this section.

CASE NOTES

He must show he was ignorant of illegal use. - Under subsection (i) of former § 4-56 it was not required that it be shown that the lienor knew of the use to be made of the vehicle at the time the lien was created. Before a lien can be established against the interest of the Commonwealth, in the seized vehicle, the lien claimant must show that he was ignorant of its illegal use when it was so seized. Bandy v. Commonwealth, 185 Va. 1044 , 41 S.E.2d 71 (1947).

Evidence necessary for conviction of bad faith. - A conviction of bad faith on the part of the automobile owner should be based upon some evidence of his criminal knowledge, connivance or consent to the unlawful use of his vehicle, or upon circumstances from which there may be fairly inferred such knowledge or consent. Patterson v. Commonwealth, 187 Va. 913 , 48 S.E.2d 357 (1948), holding claimant had fully sustained the burden of proof (decided under former § 4-56).

Recording the lien of a North Carolina motor company on the face of a North Carolina title was insufficient where the alleged lien had not been perfected by registration of the chattel mortgage under the laws of North Carolina and there was no statutory provision in that state similar to subsection (i) of former § 4-56. Williams v. Commonwealth, 190 Va. 280 , 56 S.E.2d 537 (1949).

Instance of innocent lienor. - Finance company, assignee of conditional sales contract under which a car had been sold to a reputed bootlegger, held an innocent lienor within the definition of subsection (i) of former § 4-56. Universal C.I.T. Credit Corp. v. Commonwealth, 196 Va. 72 , 82 S.E.2d 593 (1954).

CIRCUIT COURT OPINIONS

Vehicle owner was deprived of opportunity to establish exemption. - Vehicle owner stated a claim against a city police officer in conversion and trespass to chattels by alleging that the officer's seizure of her vehicle without complying with the notice requirements of § 19.2-386.3 or notifying her before turning the vehicle over to the lienholder damaged her by depriving her of the opportunity to secure her property by establishing one of the exemptions outlined in this section; the officer's demurrer and plea of sovereign immunity were therefore overruled. Mallory v. City of Richmond, 69 Va. Cir. 100, 2005 Va. Cir. LEXIS 340 (Richmond 2005).

§ 19.2-386.9. Appearance by owner or lien holder.

Any person claiming to be an owner or lien holder of the named property may appear at any time within thirty days after service on him of notice to appear or on or before the date certain set forth in any order of publication under § 8.01-317 or such longer time as the court in its discretion may allow to prevent a miscarriage of justice. Any person without actual or constructive notice of the forfeiture proceedings claiming to be an owner or lienholder may appear at any time before final judgment of the trial court and be made a party to the action. Such appearance shall be by answer, under oath, which shall clearly set forth (i) the nature of the defendant's claim; (ii) the exact right, title or character of the ownership or interest in the property and the evidence thereof; and (iii) the reason, cause, exemption or defense he may have against the forfeiture of the property.

(1989, c. 690; 1991, c. 560.)

CASE NOTES

Priority of federal tax lien perfected at time of seizure. - Where the United States had no knowledge of the illegal use being made of property forfeited because of being used in a lottery and had properly perfected a tax lien thereon at the time of the seizure, said lien had priority over the forfeiture to the extent of the balance due thereon. Tri-Pharmacy, Inc. v. United States, 203 Va. 723 , 127 S.E.2d 89 (1962) cert. denied, 371 U.S. 962, 83 S. Ct. 542, 9 L. Ed. 2d 509 (1963) (decided under prior law).

Ignorance of owner or lienor formerly no defense. - See Boggs v. Commonwealth, 76 Va. 989 (1882) (decided under prior law); Quidley v. Commonwealth, 190 Va. 1029 , 59 S.E.2d 52 (1950) (decided under prior law).

§ 19.2-386.10. Forfeiture; default judgment; remission; trial.

  1. A party defendant who fails to appear as provided in § 19.2-386.9 shall be in default. The forfeiture shall be deemed established as to the interest of any party in default upon entry of judgment as provided in § 19.2-386.11 . Within 21 days after entry of judgment, any party defendant against whom judgment has been so entered may petition the Department of Criminal Justice Services for remission of his interest in the forfeited property. For good cause shown and upon proof by a preponderance of the evidence that the party defendant's interest in the property is exempt under subdivision 2, 3, or 4 of § 19.2-386.8 , the Department of Criminal Justice Services shall grant the petition and direct the state treasury to either (i) remit to the party defendant an amount not exceeding the party defendant's interest in the proceeds of sale of the forfeited property after deducting expenses incurred and payable pursuant to subsection B of § 19.2-386.12 or (ii) convey clear and absolute title to the forfeited property in extinguishment of such interest. If any party defendant appears in accordance with § 19.2-386.9 , the court shall proceed to trial of the case, unless trial by jury is demanded by the Commonwealth or any party defendant. At trial, the Commonwealth has the burden of proving by clear and convincing evidence that the property is subject to forfeiture under this chapter. Upon such a showing by the Commonwealth, the claimant has the burden of proving by a preponderance of the evidence that the claimant's interest in the property is exempt under subdivision 2, 3, or 4 of § 19.2-386.8 .
  2. The information and trial thereon shall be independent of any criminal proceeding against any party or other person for violation of law.

    (1989, c. 690; 1991, c. 560; 2016, cc. 203, 423, 664; 2020, c. 1000.)

The 2016 amendments. - The 2016 amendments by cc. 203 and 423 are identical, and in subsection A, substituted "21" for "twenty-one"; and in subsection B, inserted "warrant."

The 2016 amendment by c. 664, in subsection A, inserted "by a preponderance of the evidence" in the first paragraph, and in the second paragraph, inserted "by clear and convincing evidence" in the second sentence, inserted "by a preponderance of the evidence" in the third sentence, and deleted the former last sentence, which read: "The proof of all issues shall be by a preponderance of the evidence."

The 2020 amendments. - The 2020 amendment by c. 1000, deleted the second sentence in subsection B, which read: "However, upon motion and for good cause shown, the court may stay a forfeiture proceeding that is related to any warrant, indictment, or information."

Law review. - For note, "Substantial Connection and The Illusive Facilitation Element for Civil Forfeiture of Narcoband in Drug Felony Cases," see 25 U. Rich. L. Rev. 171 (1991).

CASE NOTES

For case in which the order of the trial court confiscating and appropriating defendant's funds as an incidence of his criminal prosecution did not comply with statutory procedure and most significantly, the court did not act pursuant to an "information," with attendant rights, including notice right of trial "independent of any criminal proceeding," see Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

§ 19.2-386.11. Judgment of condemnation; destruction.

  1. If the forfeiture is established, the judgment shall be that the property be condemned as forfeited to the Commonwealth subject to any remission granted under subsection A of § 19.2-386.10 and further that the same be sold, unless (i) a sale thereof has been already made under § 19.2-386.7 , (ii) the court determines that the property forfeited is of such minimal value that the sale would not be in the best interest of the Commonwealth or (iii) the court finds that the property may be subject to return to a participating agency.  If the court finds that the property may be subject to return to an agency participating in the seizure in accordance with subsection C of § 19.2-386.14 , the order shall provide for storage of the property until the determination to return it is made or, if return is not made, for sale of the property as provided in this section and § 19.2-386.12 .  If sale has been made, the judgment shall be against the proceeds of sale, subject to the rights of any lien holder whose interest is not forfeited.  If the property condemned has been delivered to the claimant under § 19.2-386.6 , further judgment shall be against the obligors in the bond for the penalty thereof, to be discharged by the payment of the appraised value of the property, upon which judgment, process of execution shall be awarded and the clerk shall endorse thereon, "No security is to be taken."
  2. Forfeited cash and negotiable instruments shall be disposed of pursuant to the provisions of § 19.2-386.12 .
  3. Contraband, the sale or possession of which is unlawful, weapons and property not sold because of the minimal value thereof, may be ordered destroyed by the court.

    (1989, c. 690; 1991, c. 560; 1993, c. 484.)

CASE NOTES

Language of section is mandatory. - The language of §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 is plain, unambiguous, and mandatory. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Court's authority dependent upon adherence to provisions of section. - The subject matter jurisdiction necessary to forfeiture is conferred upon the trial court only through these several statutes ( §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 ) and the court's authority is dependent upon scrupulous adherence to their provisions. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

§ 19.2-386.12. Sale of forfeited property.

  1. Any sale of forfeited property shall be made for cash, after due advertisement.  The sale shall be by public sale or other commercially feasible means authorized by the court in the order of forfeiture and shall vest in the purchaser a clear and absolute title to the property sold subject to the rights of any lien holder whose interest is not forfeited.  The proceeds of sale, and whatever may be realized on any bond given under § 19.2-386.6 , and any money forfeited shall be paid over to the state treasury into a special fund of the Department of Criminal Justice Services in accordance with § 19.2-386.14 .
  2. In all cases of forfeiture under this section, the actual expenses incident to the custody, preservation, and management of the seized property prior to forfeiture, the actual expenses incident to normal legal proceedings to perfect the Commonwealth's interest in the seized property through forfeiture, and the actual expenses incident to the sale thereof, including commissions, shall be taxed as costs and shall be paid to the person or persons who incurred these costs out of the net proceeds from the sale of such property. If there are no proceeds, the actual expenses shall be paid by the Commonwealth from the Criminal Fund.  Actual expenses in excess of the available net proceeds shall be paid by the Commonwealth from the Criminal Fund.  The party or parties in interest to any forfeiture proceeding commenced under this section shall be entitled to reasonable attorney's fees and costs if the forfeiture proceeding is terminated in favor of such party or parties. Such fees and costs shall be paid by the Commonwealth from the Criminal Fund. The residue, if any, shall be paid and disbursed as provided in subsection A of § 19.2-386.10 and § 19.2-386.14 and regulations promulgated by the Criminal Justice Services Board. (1989, c. 690; 1991, c. 560.)

Law review. - For note, "Civil Asset Forfeiture in Virginia: An Imperfect System," see 74 Wash & Lee L. Rev. 1295 (2017).

CASE NOTES

Language of section is mandatory. - The language of §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 is plain, unambiguous, and mandatory. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Court's authority dependent upon adherence to provisions of section. - The subject matter jurisdiction necessary to forfeiture is conferred upon the trial court only through these several statutes ( §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 ) and the court's authority is dependent upon scrupulous adherence to their provisions. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Right of interested persons to contest forfeiture. - It is unquestioned that the legislature has the power to provide for the forfeiture of property used in the violation of a penal statute. In former § 4-56 the legislature exercised its power in that respect. However, before such forfeiture can be had, all persons interested in the seized property, whether owner or lienor, are made parties defendant to the information filed by the Commonwealth, and afforded an opportunity to contest the right of forfeiture. McNelis v. Commonwealth, 171 Va. 471 , 198 S.E. 493 (1938).

But such proof need not be perfect or complete. - Former § 4-56 put upon the claimant the burden of satisfying the court that he was ignorant of the illegal use of his car, and that such use was without his connivance or consent, express or implied. But this does not mean that perfect or complete proof of innocence is required. The degree to which the proof ought to satisfy the court need be reasonable only. Patterson v. Commonwealth, 187 Va. 913 , 48 S.E.2d 357 (1948); Cleek v. Commonwealth, 189 Va. 14 , 52 S.E.2d 89 (1949); Universal C.I.T. Credit Corp. v. Commonwealth, 196 Va. 72 , 82 S.E.2d 593 (1954).

Setting aside finding of trial court. - A finding of the trial court that a lien claimant has not successfully carried the required burden of proof cannot be set aside unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it. Bandy v. Commonwealth, 185 Va. 1044 , 41 S.E.2d 71 (1947).

CIRCUIT COURT OPINIONS

Generally. - Both the "fruits" and "instrumentalities" of illegal drug transactions were to be subject to the same procedure for sale and compensation should the forfeiture proceeding be terminated in favor of one party; where defendant was entitled to return of illegally seized money, he was awarded attorney's fees. Commonwealth v. Turner, 58 Va. Cir. 576, 2000 Va. Cir. LEXIS 627 (Charlottesville 2000).

§ 19.2-386.13. (Effective until January 1, 2022) Writ of error and supersedeas.

For the purpose of review on a writ of error or supersedeas, a final judgment or order in the cause shall be deemed a final judgment or order within the meaning of subsection A of § 8.01-670 .

(1989, c. 690; 2005, c. 681.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 19.2-386.13 .

The 2005 amendments. - The 2005 amendment by c. 681, effective January 1, 2006, deleted "in a civil case (not in chancery)" following "order."

§ 19.2-386.13. (Effective January 1, 2022) Writ of error and supersedeas.

For the purpose of review on a writ of error or supersedeas, a final judgment or order in the cause shall be deemed a final judgment and may be appealed to the Court of Appeals.

(1989, c. 690; 2005, c. 681; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 19.2-386.13 .

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, substituted "and may be appealed to the Court of Appeals" for "or order within the meaning of subsection A of § 8.01-670 ."

§ 19.2-386.14. Sharing of forfeited assets.

  1. All cash, negotiable instruments, and proceeds from a sale conducted pursuant to § 19.2-386.7 or 19.2-386.12 , after deduction of expenses, fees, and costs as provided in § 19.2-386.12 , shall, as soon after entry of the forfeiture as is practicable, be distributed in a manner consistent with this chapter and Article VIII, Section 8 of the Constitution of Virginia. A1. All cash, negotiable instruments and proceeds from a sale conducted pursuant to § 19.2-386.7 or 19.2-386.12, after deduction of expenses, fees and costs as provided in § 19.2-386.12, shall, as soon after entry of the forfeiture as is practicable, be paid over to the state treasury into a special fund of the Department of Criminal Justice Services for distribution in accordance with this section. The forfeited property and proceeds, less 10 percent, shall be made available to federal, state and local agencies to promote law enforcement in accordance with this section and regulations adopted by the Criminal Justice Services Board to implement the asset-sharing program. The 10 percent retained by the Department shall be held in a nonreverting fund, known as the Asset Sharing Administrative Fund. Administrative costs incurred by the Department to manage and operate the asset-sharing program shall be paid from the Fund. Any amounts remaining in the Fund after payment of these costs shall be used to promote state or local law-enforcement activities. Distributions from the Fund for these activities shall be based upon need and shall be made from time to time in accordance with regulations promulgated by the Board.
  2. Any federal, state or local agency or office that directly participated in the investigation or other law-enforcement activity which led, directly or indirectly, to the seizure and forfeiture shall be eligible for, and may petition the Department for, return of the forfeited asset or an equitable share of the net proceeds, based upon the degree of participation in the law-enforcement effort resulting in the forfeiture, taking into account the total value of all property forfeited and the total law-enforcement effort with respect to the violation of law on which the forfeiture is based. Upon finding that the petitioning agency is eligible for distribution and that all participating agencies agree on the equitable share of each, the Department shall distribute each share directly to the appropriate treasury of the participating agency.

    If all eligible participating agencies cannot agree on the equitable shares of the net proceeds, the shares shall be determined by the Criminal Justice Services Board in accordance with regulations which shall specify the criteria to be used by the Board in assessing the degree of participation in the law-enforcement effort resulting in the forfeiture.

  3. After the order of forfeiture is entered concerning any motor vehicle, boat, aircraft, or other tangible personal property, any seizing agency may (i) petition the Department for return of the property that is not subject to a grant or pending petition for remission or (ii) request the circuit court to order the property destroyed. Where all the participating agencies agree upon the equitable distribution of the tangible personal property, the Department shall return the property to those agencies upon finding that (a) the agency meets the criteria for distribution as set forth in subsection B and (b) the agency has a clear and reasonable law-enforcement need for the forfeited property.

    If all eligible participating agencies cannot agree on the distribution of the property, distribution shall be determined by the Criminal Justice Services Board as in subsection B, taking into consideration the clear and reasonable law-enforcement needs for the property which the agencies may have. In order to equitably distribute tangible personal property, the Criminal Justice Services Board may require the agency receiving the property to reimburse the Department in cash for the difference between the fair market value of the forfeited property and the agency's equitable share as determined by the Criminal Justice Services Board.

    If a seizing agency has received property for its use pursuant to this section, when the agency disposes of the property (1) by sale, the proceeds shall be distributed as set forth in this section; or (2) by destruction pursuant to a court order, the agency shall do so in a manner consistent with this section.

  4. All forfeited property, including its proceeds or cash equivalent, received by a participating state or local agency pursuant to this section shall be used to promote law enforcement but shall not be used to supplant existing programs or funds. The Board shall promulgate regulations establishing an audit procedure to ensure compliance with this section.
  5. On or after July 1, 2012, but before July 1, 2014, local seizing agencies may contribute cash funds and proceeds from forfeited property to the Virginia Public Safety Foundation to support the construction of the Commonwealth Public Safety Memorial. Any funds contributed by seizing agencies shall be contributed only after an internal analysis to determine that such contributions will not negatively impact law-enforcement training or operations.
  6. The Department shall report annually on or before December 31 to the Governor and the General Assembly the amount of all cash, negotiable instruments, and proceeds from sales conducted pursuant to § 19.2-386.7 or 19.2-386.1 2 that were forfeited to the Commonwealth, including the amount of all forfeitures distributed to the Literary Fund. Such report shall also detail the amount distributed by the Department to each federal, state, or local agency or office pursuant to this section, and the amount each state or local agency or office received from federal asset forfeiture proceedings. Any state or local agency that receives a forfeited asset or an equitable share of the net proceeds of a forfeited asset from the Department or from a federal asset forfeiture proceeding shall inform the Department, in a manner prescribed by the Department, of (i) the offense on which the forfeiture is based listed in the information filed pursuant to § 19.2-386.1 , (ii) any criminal charge brought against the owner of the forfeited asset, and (iii) if a criminal charge was brought against the owner of the forfeited asset, the status of the charge, including whether the charge is pending or resulted in a conviction. The Department shall include such information in the annual report. The Department shall ensure that such report is available to the public. (1991, c. 560; 2012, cc. 126, 283, 373, 756; 2016, cc. 203, 423; 2018, c. 666.)

Editor's note. - Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 425 E 1, effective for the biennium ending June 30, 2022, provides: "Notwithstanding the provisions of §§ 19.2-386.14 , 38.2-415 , 46.2-1167 and 52-4.3 , Code of Virginia, the Department of State Police may use revenue from the State Asset Forfeiture Fund, the Insurance Fraud Fund, the Drug Investigation Trust Account - State, and the Safety Fund to modify, enhance or procure automated systems that focus on the Commonwealth's law enforcement activities and information gathering processes."

The 2012 amendments. - The 2012 amendments by cc. 126 and 373 are identical, and added subsection E and made minor stylistic changes.

The 2012 amendments by cc. 283 and 756 are identical, and added present subsection A and redesignated former subsection A as subsection A1; in subsection C, rewrote the first paragraph and added the third paragraph; and made minor stylistic changes.

The 2016 amendments. - The 2016 amendments by cc. 203 and 423 are identical, and added subsection F.

The 2018 amendments. - The 2018 amendment by c. 666 inserted the third and fourth sentences in subsection F.

CASE NOTES

Language of section is mandatory. - The language of §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 is plain, unambiguous, and mandatory. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Court's authority dependent upon adherence to provisions of section. - The subject matter jurisdiction necessary to forfeiture is conferred upon the trial court only through these several statutes ( §§ 18.2-249 [now § 19.2-386.22 ] and 19.2-386.1 through 19.2-386.14 ) and the court's authority is dependent upon scrupulous adherence to their provisions. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

OPINIONS OF THE ATTORNEY GENERAL

The county treasurer is responsible for receiving any asset forfeiture funds, which must be held and used only for law-enforcement purposes; a sheriff may not establish a separate account or "treasury" for such funds separate and apart from the locality he serves. See opinion of Attorney General to The Honorable H. Roger Zurn, Jr., Treasurer, County of Loundon, 08-040 (8/26/08).

Guidelines of the Department of Criminal Justice Services do not require that asset forfeiture funds be paid only to law-enforcement agencies, but such funds only may be used for law-enforcement purposes. See opinion of Attorney General to The Honorable H. Roger Zurn, Jr., Treasurer, County of Loundon, 08-040 (8/26/08).

Chapter 22.2. Miscellaneous Forfeiture Provisions.

Sec.

Research References. - Virginia Forms (Matthew Bender). No. 9-108. Warrant for Seizure of Property Subject to Forfeiture, et seq.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Escrow, § 13

§ 19.2-386.15. Seizure of property used in connection with or derived from terrorism.

  1. The following property shall be subject to lawful seizure by any law-enforcement officer charged with enforcing the provisions of Article 2.2 (§ 18.2-46.4 et seq.) of Chapter 4 of Title 18.2: all moneys or other property, real or personal, together with any interest or profits derived from the investment of such money and used in substantial connection with an act of terrorism as defined in § 18.2-46.4 .
  2. All seizures and forfeitures under this section shall be governed by the procedures contained in Chapter 22.1 (§ 19.2-386.1 et seq.) of this title. (2002, cc. 588, 623, § 18.2-46.9 ; 2004, c. 995.)

Effective date. - This chapter became effective April 21, 2004.

§ 19.2-386.16. Forfeiture of motor vehicles used in commission of certain crimes.

  1. Any vehicle knowingly used by the owner thereof or used by another with his knowledge of and during the commission of, or in an attempt to commit, a second or subsequent offense of § 18.2-346 , 18.2-346.01 , 18.2-347 , 18.2-348 , 18.2-348 .1, 18.2-349 , 18.2-355 , 18.2-356 or 18.2-357 or of a similar ordinance of any county, city or town or knowingly used for the transportation of any stolen goods, chattels or other property, when the value of such stolen goods, chattels or other property is $1,000 or more, or any stolen property obtained as a result of a robbery, without regard to the value of the property, shall be forfeited to the Commonwealth. The vehicle shall be seized by any law-enforcement officer arresting the operator of such vehicle for the criminal offense, and delivered to the sheriff of the county or city in which the offense occurred. The officer shall take a receipt therefor.
  2. Any vehicle knowingly used by the owner thereof or used by another with his knowledge of and during the commission of, or in an attempt to commit, a misdemeanor violation of subsection D of § 18.2-47 or a felony violation of (i) Article 3 (§ 18.2-47 et seq.) of Chapter 4 of Title 18.2 or (ii) § 18.2-357 where the prostitute is a minor, shall be forfeited to the Commonwealth. The vehicle shall be seized by any law-enforcement officer arresting the operator of such vehicle for the criminal offense, and delivered to the sheriff of the county or city in which the offense occurred. The officer shall take a receipt therefor.
  3. Forfeiture of such vehicle shall be enforced as is provided in Chapter 22.1 (§ 19.2-386.1 et seq.). (Code 1950, §§ 18.1-103, 18.1-107.1; 1960, c. 358; 1966, c. 247; 1970, c. 353; 1975, cc. 14, 15, § 18.2-110 ; 1981, c. 188; 1982, c. 509; 1992, cc. 310, 725; 1993, cc. 609, 866; 2004, c. 995; 2010, c. 710; 2011, cc. 818, 852; 2012, cc. 283, 756; 2018, cc. 764, 765; 2019, c. 458; 2020, cc. 89, 401; 2021, Sp. Sess. I, c. 188.)

The 2010 amendments. - The 2010 amendment by c. 710 inserted the subsection A, C, and D designations; and inserted subsection B.

The 2011 amendments. - The 2011 amendments, by cc. 818 and 852 are nearly identical, and in subsection B, inserted "a misdemeanor violation of subsection D of § 18.2-47 or" and substituted "Article 3 ( § 18.2-47 et seq.) of Chapter 4 of Title 18.2" for "Article 3, Chapter 4 of Title 18.2 ( §§ 18.2-47 et seq.)."

The 2012 amendments. - The 2012 amendments by cc. 283 and 756 are identical, and rewrote subsection C and deleted former subsection D pertaining to use and operation of the vehicle after forfeiture.

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" in subsection A.

The 2019 amendments. - The 2019 amendment by c. 458 inserted "18.2-348.1" in subsection A.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000 or more" for "$500 or more" in subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, inserted "18.2-346.01" in subsection A.

§ 19.2-386.17. Forfeitures for computer crimes.

All moneys and other income, including all proceeds earned but not yet received by a defendant from a third party as a result of the defendant's violations of Article 7.1 (§ 18.2-152.1 et seq.) of Chapter 5 of Title 18.2, and all computer equipment, all computer software, and all personal property used in connection with any violation of such article known by the owner thereof to have been used in violation of such article, shall be subject to lawful seizure by a law-enforcement officer and forfeiture by the Commonwealth in accordance with the procedures set forth in Chapter 22.1 (§ 19.2-386.1 et seq.) of this title, applied mutatis mutandis.

(2003, cc. 987, 1016, § 18.2-152.16 ; 2004, c. 995.)

Law review. - For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).

§ 19.2-386.18. Forfeiture of unlawful electronic communication devices.

Any unlawful electronic communication device possessed, manufactured or sold in violation of §§ 18.2-190.2 , 18.2-190.3 or § 18.2-190.4 may be seized and forfeited to the Commonwealth, and turned over to the circuit court in the city or county in which it was seized and such property shall be disposed of as provided by law.

(2002, c. 671, § 18.2-190.7 ; 2003, c. 354; 2004, c. 995.)

§ 19.2-386.19. Seizure of property used in connection with money laundering.

The following property shall be subject to lawful seizure by any officer charged with enforcing the provisions of Article 9 (§ 18.2-246.1 et seq.) of Chapter 6 of Title 18.2: (i) all money, equipment, motor vehicles, and all other personal and real property of any kind or character used in substantial connection with the laundering of proceeds of some form of activity punishable as a felony under the laws of the Commonwealth, another state or territory of the United States, the District of Columbia, or the United States; (ii) all money or other property, real or personal, traceable to the proceeds of some form of activity punishable as a felony under the laws of the Commonwealth, another state or territory of the United States, the District of Columbia, or the United States, together with any interest or profits derived from the investment of such proceeds or other property; and (iii) all money, equipment, motor vehicles, and all other personal and real property of any kind or character used to or intended to be used to promote money laundering. Real property shall not be subject to seizure unless the minimum prescribed punishment for the violation is a term of imprisonment of not less than five years. All seizures and forfeitures under this section shall be governed by Chapter 22.1 (§ 19.2-386.1 et seq.), and the procedures specified therein shall apply, mutatis mutandis, to all forfeitures under Article 9 (§ 18.2-246.1 et seq.) of Chapter 6 of Title 18.2.

(1999, c. 348, § 18.2-246.4 ; 2003, cc. 541, 549; 2004, c. 995; 2012, cc. 283, 756.)

The 2012 amendments. - The 2012 amendments by cc. 283 and 756 are identical, and inserted clause (iii) of the first sentence, and made related changes.

§ 19.2-386.20. Forfeiture of cigarettes sold or attempted to be sold in an unlawful delivery sale.

Any cigarettes sold or attempted to be sold in a delivery sale in violation of Article 10 (§ 18.2-246.6 et seq.) of Chapter 6 of Title 18.2 shall be forfeited to the Commonwealth and destroyed. All fixtures, equipment, materials and personal property used in substantial connection with a delivery sale or attempted delivery sale in a knowing and intentional violation of such article shall be subject to seizure and forfeiture according to the procedures contained in Chapter 22.1 (§ 19.2-386.1 et seq.) of this title, applied mutatis mutandis.

(2004, c. 995.)

§ 19.2-386.21. Forfeiture of counterfeit and contraband cigarettes.

Counterfeit cigarettes possessed in violation of § 18.2-246.14 and cigarettes possessed in violation of § 58.1-1017 or 58.1-1017.1 shall be subject to seizure, forfeiture, and destruction or court-ordered assignment for use by a law-enforcement undercover operation by the Virginia Alcoholic Beverage Control Authority or any law-enforcement officer of the Commonwealth. However, any undercover operation that makes use of counterfeit cigarettes shall ensure that the counterfeit cigarettes remain under the control and command of law enforcement and shall not be distributed to a member of the general public who is not the subject of a criminal investigation. All fixtures, equipment, materials, and personal property used in substantial connection with (i) the sale or possession of counterfeit cigarettes in a knowing and intentional violation of Article 10 (§ 18.2-246.6 et seq.) of Chapter 6 of Title 18.2 or (ii) the sale or possession of cigarettes in a knowing and intentional violation of § 58.1-1017 or 58.1-1017.1 shall be subject to seizure and forfeiture according to the procedures contained in Chapter 22.1 (§ 19.2-386.1 et seq.), applied mutatis mutandis.

(2004, c. 995; 2013, c. 627; 2014, cc. 422, 458; 2015, cc. 38, 730.)

Editor's note. - Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: "That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019."

The 2013 amendments. - The 2013 amendment by c. 627 inserted "and cigarettes possessed in violation of § 58.1-1017 or 58.1-1017.1 " in the first sentence; and in the second sentence inserted "(i) the" and "or (ii) the sale or possession of cigarettes in a knowing and intentional violation of § 58.1-1017 or 58.1-1017.1 ," and made a stylistic change.

The 2014 amendments. - The 2014 amendments by cc. 422 and 458 are identical, and inserted "or court-ordered assignment for use by a law-enforcement undercover operation," and added the second sentence.

The 2015 amendments. - The 2015 amendment by cc. 38 and 730, effective January 15, 2018, are identical, and substituted "Authority" for "Board" in the first sentence.

§ 19.2-386.22. Seizure of property used in connection with or derived from illegal drug transactions.

  1. The following property shall be subject to lawful seizure by any officer charged with enforcing the provisions of Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2: (i) all money, medical equipment, office equipment, laboratory equipment, motor vehicles, and all other personal and real property of any kind or character, used in substantial connection with (a) the illegal manufacture, sale or distribution of controlled substances or possession with intent to sell or distribute controlled substances in violation of § 18.2-248 , (b) the sale or distribution of marijuana or possession with intent to distribute marijuana in violation of subdivisions (a)(2), (a)(3) and (c) of § 18.2-248.1 , or (c) a drug-related offense in violation of § 18.2-474.1 ; (ii) everything of value furnished, or intended to be furnished, in exchange for a controlled substance in violation of § 18.2-248 or for marijuana in violation of § 18.2-248.1 or for a controlled substance or marijuana in violation of § 18.2-474.1 ; and (iii) all moneys or other property, real or personal, traceable to such an exchange, together with any interest or profits derived from the investment of such money or other property. Under the provisions of clause (i), real property shall not be subject to lawful seizure unless the minimum prescribed punishment for the violation is a term of not less than five years.
  2. All seizures and forfeitures under this section shall be governed by the procedures contained in Chapter 22.1 (§ 19.2-386.1 et seq.). (Code 1950, § 18.1-346; 1960, c. 358; 1970, c. 650; 1972, c. 799; 1973, c. 171; 1975, cc. 14, 15, § 18.2-249 ; 1976, c. 132; 1979, c. 435; 1982, c. 462; 1985, c. 569; 1986, cc. 449, 485; 1988, cc. 575, 753; 1989, cc. 638, 690; 1993, c. 825; 1999, c. 269; 2004, c. 995; 2011, cc. 384, 410; 2014, cc. 674, 719.)

Editor's note. - Acts 2014, cc. 674 and 719, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $66,663 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and in subsection A, inserted clause (i) (c), redesignated former (i) (c) as (i) (d), and in (ii), inserted "or for synthetic cannabinoids in violation of § 18.2-248.1:1 " and "synthetic cannabinoids," and made related changes.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "the sale or distribution of synthetic cannabinoids or possession with intent to distribute or manufacture synthetic cannabinoids in violation of subsections C and E of § 18.2-248.1:1 , or (d)" following "(c)," "for synthetic cannabinoids in violation of § 18.2-248.1:1 or" following " § 18.2-248.1 or," and "synthetic cannabinoids" following "marijuana" in subsection A, and made stylistic changes; and in subsection B deleted "of this title" at the end.

CASE NOTES

The language of this section is plain, unambiguous, and mandatory. - The language of this section and §§ 19.2-386.1 through 19.2-386.14 is plain, unambiguous, and mandatory. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

The subject matter jurisdiction necessary to forfeiture is conferred upon the trial court only through these several statutes (this section and §§ 19.2-386.1 through 19.2-386.14 ) and the court's authority is dependent upon scrupulous adherence to their provisions. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Forfeiture is appropriate. - It is well established that forfeiture is appropriate to afford the Commonwealth relief against property employed in defiance of the laws of the State. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Civil forfeiture under subsection A of § 19.2-386.22 does not require a certain number of uses but instead requires that the vehicle be used, whether one or several times, in substantial connection with illegal drug activity. Commonwealth v. Hall, 297 Va. 143 , 823 S.E.2d 485, 2019 Va. LEXIS 14 (2019).

Forfeiture is not a criminal proceeding. - Forfeiture is, however, not a criminal proceeding but a "civil" action against "res" unlawfully employed by its owner or other person. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Forfeiture is neither penalty nor punishment. - Although related to criminal activity, forfeiture is neither "penalty" nor "punishment" for an offense and remains entirely separate and distinct from a prosecution of its owner or other individual. Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

Commonwealth's failure to file information within the statutory 60-day period was fatal to the forfeiture proceeding of an automobile suspected used in illegal drug business. Haina v. Commonwealth, 235 Va. 571 , 369 S.E.2d 401 (1988).

"Substantial connection" existed between defendant's activity as a drug dealer and automobile used by him, even though it was registered to his sister, where he considered himself to be the owner of the vehicle and admitted to undercover officer that he regularly sold cocaine and in doing so used the vehicle; forfeiture was thus justified. Lee v. Commonwealth, 253 Va. 222 , 482 S.E.2d 802 (1997).

"Substantial connection" existed between cash confiscated from defendant's apartment and defendant's illegal drug trafficking where defendant admitted the money was his and that he sold "eight to nine ounces" of cocaine per week, justifying forfeiture. Lee v. Commonwealth, 253 Va. 222 , 482 S.E.2d 802 (1997).

Connection consequential. - Trial court erred in declaring a vehicle not subject to forfeiture under subsection A of § 19.2-386.22 where the single incident in which defendant transported himself and the drugs to a parking lot, exchanged cash for the drugs, and left the scene occurred while defendant was seated in the truck, and thus, the connection between the use of the vehicle and the illegal activity was consequential and purposeful. Commonwealth v. Hall, 297 Va. 143 , 823 S.E.2d 485, 2019 Va. LEXIS 14 (2019).

For case in which the order of the trial court confiscating and appropriating defendant's funds as an incidence of his criminal prosecution did not comply with statutory procedure and most significantly, the court did not act pursuant to an "information," with attendant rights, including notice right of trial "independent of any criminal proceeding," see Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991).

CIRCUIT COURT OPINIONS

Illegally seized property. - Exclusionary rule of the Fourth Amendment applied to the suppressed evidence of a criminal action in the quasi-criminal forfeiture action; defendant was entitled to the return of money illegally seized. Commonwealth v. Turner, 58 Va. Cir. 576, 2000 Va. Cir. LEXIS 627 (Charlottesville 2000).

"Substantial connection" did not exist between criminal activity and automobile. - In a forfeiture action for a vehicle, the Commonwealth was ordered to return the vehicle to the owner because the vehicle only appeared to have been used once in connection with drug activity; and the evidence did not establish that the vehicle had any other connection to illegal activity except that the drugs were discovered during a routine traffic stop for a moving violation; thus, the vehicle's use was incidental or fortuitously associated with the criminal activity, and was not subject to forfeiture. Commonwealth v. One 1997 Acura VIN, 97 Va. Cir. 418, 2013 Va. Cir. LEXIS 217 (Chesapeake June 20, 2013).

Forfeiture grossly disproportionate to offense. - Proposed civil forfeiture of the owner's vehicle worth $53,000 was grossly disproportional to the offense of distribution of less than 3 grams of cocaine with a street value of $200 and was unconstitutional because, although the amount of the forfeiture fell well within the maximum fine of $500,000, the owner was not regularly engaged in the business of distributing drugs; had it not been for the involvement of her ex-husband claiming he was seeking help for a friend, it was unlikely that she would have committed the offense; she sold the cocaine for the same amount as she paid for it, and never intended to benefit financially or otherwise from the transaction; and her criminal conduct presented little risk of harm. Commonwealth v. One 2016 Chevrolet Tahoe, 102 Va. Cir. 174, 2019 Va. Cir. LEXIS 162 (Fairfax County May 24, 2019).

Vehicle owner lacked standing to seek injunctive relief. - In an action against a city and a city police officer for the allegedly improper seizure of an owner's vehicle when the owner's son was arrested for possession of illegal drugs, the owner could not obtain a temporary and permanent injunction barring the city from handling vehicles seized pursuant to the authority granted by § 19.2-386.22 in any manner other than that set forth in the Virginia Code; she lacked standing to seek such relief. Mallory v. City of Richmond, 69 Va. Cir. 100, 2005 Va. Cir. LEXIS 340 (Richmond 2005).

§ 19.2-386.23. Disposal of seized controlled substances, marijuana, and paraphernalia.

  1. All controlled substances, imitation controlled substances, marijuana, or paraphernalia, the lawful possession of which is not established or the title to which cannot be ascertained, which have come into the custody of a peace officer or have been seized in connection with violations of Chapter 7 (§ 18.2-247 et seq.) of Title 18.2, shall be forfeited and disposed of as follows:
    1. Upon written application by (i) the Department of Forensic Science, (ii) the Department of State Police, or (iii) any police department or sheriff's office in a locality, the court may order the forfeiture of any such substance or paraphernalia to the Department of Forensic Science, the Department of State Police, or to such police department or sheriff's office for research and training purposes and for destruction pursuant to regulations of the United States Department of Justice Drug Enforcement Administration and of the Board of Pharmacy once these purposes have been fulfilled.
    2. In the event no application is made under subdivision 1, the court shall order the destruction of all such substances or paraphernalia, which order shall state the existence and nature of the substance or paraphernalia, the quantity thereof, the location where seized, the person or persons from whom the substance or paraphernalia was seized, if known, and the manner whereby such item shall be destroyed. However, the court may order that paraphernalia identified in subdivision 5 of § 18.2-265.1 not be destroyed and that it be given to a person or entity that makes a showing to the court of sufficient need for the property and an ability to put the property to a lawful and publicly beneficial use. A return under oath, reporting the time, place and manner of destruction shall be made to the court by the officer to whom the order is directed. A copy of the order and affidavit shall be made a part of the record of any criminal prosecution in which the substance or paraphernalia was used as evidence and shall, thereafter, be prima facie evidence of its contents. In the event a law-enforcement agency recovers, seizes, finds, is given or otherwise comes into possession of any such substances or paraphernalia that are not evidence in a trial in the Commonwealth, the chief law-enforcement officer of the agency or his designee may, with the written consent of the appropriate attorney for the Commonwealth, order destruction of same; provided that a statement under oath, reporting a description of the substances and paraphernalia destroyed and the time, place and manner of destruction, is made to the chief law-enforcement officer by the officer to whom the order is directed.
  2. No such substance or paraphernalia used or to be used in a criminal prosecution under Chapter 7 (§ 18.2-247 et seq.) of Title 18.2 shall be disposed of as provided by this section until all rights of appeal have been exhausted, except as provided in § 19.2-386.24 .
  3. The amount of any specific controlled substance, or imitation controlled substance, retained by any law-enforcement agency pursuant to a court order issued under this section shall not exceed five pounds, or 25 pounds in the case of marijuana. Any written application to the court for controlled substances, imitation controlled substances, or marijuana, shall certify that the amount requested shall not result in the requesting agency's exceeding the limits allowed by this subsection.
  4. A law-enforcement agency that retains any controlled substance, imitation controlled substance, or marijuana, pursuant to a court order issued under this section shall (i) be required to conduct an inventory of such substance on a monthly basis, which shall include a description and weight of the substance, and (ii) destroy such substance pursuant to subdivision A 1 when no longer needed for research and training purposes. A written report outlining the details of the inventory shall be made to the chief law-enforcement officer of the agency within 10 days of the completion of the inventory, and the agency shall detail the substances that were used for research and training pursuant to a court order in the immediately preceding fiscal year. Destruction of such substance shall be certified to the court along with a statement prepared under oath, reporting a description of the substance destroyed, and the time, place, and manner of destruction. (Code 1950, § 54-524.101:5; 1973, c. 470; 1974, c. 113; 1975, cc. 14, 15, 607, § 18.2-253 ; 1979, cc. 435, 646; 1982, c. 462; 1990, c. 825; 1995, c. 578; 2001, c. 195; 2004, c. 995; 2005, cc. 868, 881; 2006, c. 107; 2011, cc. 384, 410; 2014, cc. 99, 254, 674, 686, 719; 2015, c. 429.)

Editor's note. - Acts 2014, cc. 674 and 719, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $66,663 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and in subdivision A 1, substituted "Department" for "Division" two times.

The 2006 amendments. - The 2006 amendment by c. 107 inserted "or his designee" in the last sentence of subdivision A 2.

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and inserted "synthetic cannabinoids as defined in § 18.2-248.1:1 " in the introductory language of subsection A.

The 2014 amendments. - The 2014 amendment by cc. 99 and 254 are identical, and in subdivision A 1, added clause (i) designator; added clauses (ii) and (iii); inserted "of Forensic Science, the Department of State Police, or to such police department or sheriff's office"; and inserted subsections C and D. Subsections C and D are set out in the form above at the direction of the Virginia Code Commission.

The 2014 amendment by c. 686 deleted "and to the Board of Pharmacy" twice following "made to the court" and "law-enforcement officer" in subdivision A 2.

The 2014 amendments by cc. 674 and 719 are identical, and deleted "synthetic cannabinoids as defined in § 18.2-248.1:1 " following "marijuana" in subsection A, and made a minor stylistic change.

The 2015 amendments. - The 2015 amendment by c. 429 in subdivision A 2, deleted "of this subsection" following "subdivision 1"; and in subsection D, substituted "pursuant to subdivision A 1 when no longer needed for research and training purposes" for "within 12 months of obtaining it through a court order for use in training" at the end of the first sentence and inserted "research and" preceding "training" in the second sentence.

Research References. - Virginia Forms (Matthew Bender). No. 9-2109. Order and Certificate of Destruction of Controlled/Confiscated Items.

CASE NOTES

Violation under section did not violate due process. - Where sheriff loaded marijuana on his private truck after police harvested it from fields, and where notice, as required by this section, was given to defendant, and no hearing was held as to propriety of destruction, due process clause was not violated since record contained no evidence that Commonwealth attempted to conceal from defendant fact of destruction of marijuana, since representative sample of 10 pounds was preserved and made available to him, and since reason for destruction was reasonable. Slayton v. Commonwealth, No. 0817-87-2 (Ct. of Appeals Mar. 7, 1989) (decided under prior law).

§ 19.2-386.24. Destruction of seized controlled substances or marijuana prior to trial.

Where seizures of controlled substances or marijuana are made in excess of 10 pounds in connection with any prosecution or investigation under Chapter 7 (§ 18.2-247 et seq.) of Title 18.2, the appropriate law-enforcement agency may retain 10 pounds of the substance randomly selected from the seized substance for representative purposes as evidence and destroy the remainder of the seized substance.

Before any destruction is carried out under this section, the law-enforcement agency shall cause the material seized to be photographed with identification case numbers or other means of identification and shall prepare a report identifying the seized material. It shall also notify the accused, or other interested party, if known, or his attorney, at least five days in advance that the photography will take place and that they may be present. Prior to any destruction under this section, the law-enforcement agency shall also notify the accused or other interested party, if known, and his attorney at least seven days prior to the destruction of the time and place the destruction will occur. Any notice required under the provisions of this section shall be by first-class mail to the last known address of the person required to be notified. In addition to the substance retained for representative purposes as evidence, all photographs and records made under this section and properly identified shall be admissible in any court proceeding for any purposes for which the seized substance itself would have been admissible.

(1979, c. 646, § 18.2-253.1; 1980, c. 179; 2004, c. 995; 2011, cc. 384, 410; 2014, cc. 674, 719.)

Editor's note. - Acts 2014, cc. 674 and 719, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $66,663 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and inserted "synthetic cannabinoids" and made a related change in the first paragraph.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "or synthetic cannabinoids" following "marijuana" in the first paragraph, and made a stylistic change.

§ 19.2-386.25. Judge may order law-enforcement agency to maintain custody of controlled substances, etc.

Upon request of the clerk of any court, a judge of the court may order a law-enforcement agency to take into its custody or to maintain custody of substantial quantities of any controlled substances, imitation controlled substances, chemicals, marijuana, or paraphernalia used or to be used in a criminal prosecution under Chapter 7 (§ 18.2-247 et seq.) of Title 18.2. The court in its order may make provision for ensuring integrity of these items until further order of the court.

(1985, c. 377, § 18.2-253.2; 2004, c. 995; 2011, cc. 384, 410; 2014, cc. 674, 719.)

Editor's note. - Acts 2014, cc. 674 and 719, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $66,663 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and inserted "synthetic cannabinoids."

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "or synthetic cannabinoids" following "marijuana."

§ 19.2-386.26. Seizure and forfeiture of drug paraphernalia.

All drug paraphernalia as defined in Article 1.1 (§ 18.2-265.1 et seq.) of Chapter 7 of Title 18.2 shall be forfeited to the Commonwealth and may be seized and disposed of in the same manner as provided in § 19.2-386.23 , subject to the rights of an innocent lienor, to be recognized as under § 19.2-386.8 .

(1981, c. 598, § 18.2-265.4 ; 1993, c. 866; 2004, c. 995; 2012, cc. 283, 756.)

Editor's note. - At the direction of the Virginia Code Commission, substituted " § 18.2-265.1 et seq." for " § 18.2-247 et seq."

The 2012 amendments. - The 2012 amendments by cc. 283 and 756 are identical, and substituted " § 19.2-386.8 " for " § 4.1-343."

§ 19.2-386.27. Forfeiture of firearms carried in violation of Article 6.1 (§ 18.2-307.1 et seq.).

Any weapon used in the commission of a violation of Article 6.1 (§ 18.2-307.1 et seq.) of Chapter 7 of Title 18.2 shall be forfeited to the Commonwealth and may be seized by an officer as forfeited, and such as may be needed for police officers, conservators of the peace, and the Department of Forensic Science shall be devoted to that purpose, subject to any registration requirements of federal law, and the remainder shall be disposed of as provided in § 19.2-386.29 .

(2004, c. 995; 2005, cc. 868, 881; 2013, c. 746.)

Editor's note. - Acts 2013, c. 746, cl. 2 provides: "That the provisions of this act are declaratory of existing law."

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "Department" for "Division."

The 2013 amendments. - The 2013 amendment by c. 746 substituted "Article 6.1 ( § 18.2-307.1 et seq.) of Chapter 7 of Title 18.2" for " § 18.2-308 ."

§ 19.2-386.28. Forfeiture of weapons that are concealed, possessed, transported or carried in violation of law.

Any firearm, stun weapon as defined by § 18.2-308.1 , or any weapon concealed, possessed, transported or carried in violation of § 18.2-283.1 , 18.2-287.01 , 18.2-287.4 , 18.2-308.1:2 , 18.2-308.1 :3, 18.2-308.1:4 , 18.2-308.1:8 , 18.2-308.2 , 18.2-308.2 :01, 18.2-308.2:1 , 18.2-308.4 , 18.2-308.5 , 18.2-308.7 , or 18.2-308.8 shall be forfeited to the Commonwealth and disposed of as provided in § 19.2-386.29 .

(2004, c. 995; 2007, c. 519; 2013, c. 746; 2021, Sp. Sess. I, c. 555.)

Editor's note. - Acts 2013, c. 746, cl. 2 provides: "That the provisions of this act are declaratory of existing law."

Acts 2021, c. 555, cl. 2 provides: "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 $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2007 amendments. - The 2007 amendment by c. 519 deleted "or taser" following "stun weapon."

The 2013 amendments. - The 2013 amendment by c. 746 inserted "18.2-287.01" and made minor stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 555, effective July 1, 2021, inserted "18.2-308.1:8”.

§ 19.2-386.29. Forfeiture of certain weapons used in commission of criminal offense.

All pistols, shotguns, rifles, dirks, bowie knives, switchblade knives, ballistic knives, razors, slingshots, brass or metal knucks, blackjacks, stun weapons, and other weapons used by any person in the commission of a criminal offense, shall be forfeited to the Commonwealth by order of the court trying the case. The court shall dispose of such weapons as it deems proper by entry of an order of record. Such disposition may include the destruction of the weapons or, subject to any registration requirements of federal law, sale of the firearms to a licensed dealer in such firearms in accordance with the provisions of Chapter 22.1 (§ 19.2-386.1 et seq.) regarding sale of property forfeited to the Commonwealth.

The court may authorize the seizing law-enforcement agency to use the weapon for a period of time as specified in the order. When the seizing agency ceases to so use the weapon, it shall be disposed of as otherwise provided in this section.

However, upon petition to the court and notice to the attorney for the Commonwealth, the court, upon good cause shown, shall return any such weapon to its lawful owner after conclusion of all relevant proceedings if such owner (i) did not know and had no reason to know of the conduct giving rise to the forfeiture and (ii) is not otherwise prohibited by law from possessing the weapon. The owner shall acknowledge in a sworn affidavit to be filed with the record in the case or cases that he has retaken possession of the weapon involved.

(Code 1950, § 18.1-270; 1960, c. 358; 1975, cc. 14, 15, § 18.2-310 ; 1986, cc. 445, 641; 1988, c. 359; 1990, cc. 556, 944; 2004, c. 995; 2007, c. 519; 2012, cc. 283, 756; 2020, c. 1000.)

Cross references. - As to disposal of unclaimed firearms in possession of Division of Capitol Police, see § 30-34.2:2.

The 2007 amendments. - The 2007 amendment by c. 519 deleted "and tasers" following "stun weapons" in the first sentence of the first paragraph.

The 2012 amendments. - The 2012 amendments by cc. 283 and 756 are identical, and substituted "Chapter 22.1 ( § 19.2-386.1 et seq.)" for "Chapter 22 ( § 19.2-369 et seq.) of this title" near the end of the first paragraph; and in the second paragraph, deleted the former first sentence, which read: "The proceeds of any sale of such weapon shall be paid in accordance with the provisions of Article VIII, Section 8 of the Constitution of Virginia." and deleted "In addition," from the beginning of the first sentence.

The 2020 amendments. - The 2020 amendment by c. 1000, deleted "upon conviction of such person" preceding "be forfeited to the Commonwealth" in the first sentence of the first paragraph.

OPINIONS OF THE ATTORNEY GENERAL

Applicable statute in forfeiture of firearm used by person convicted under § 18.2-286 . - Subsection A of § 29.1-521.2 , with very rare possible exceptions, establishes the procedure to be used in forfeiting a firearm used by a person convicted of violating § 18.2-286 , rather than § 19.2-386.29 , which applies generally to criminal offenses. See opinion of Attorney General to The Honorable Phillip C. Steele, Commonwealth's Attorney for Giles County, 05-047 (8/19/05).

§ 19.2-386.30. Forfeiture of money, gambling devices, etc., seized from illegal gambling enterprise; innocent owners or lienors.

All money, gambling devices, office equipment and other personal property used in connection with an illegal gambling enterprise or activity, and all money, stakes and things of value received or proposed to be received by a winner in any illegal gambling transaction, which are lawfully seized by any law-enforcement officer or which shall lawfully come into his custody, shall be forfeited to the Commonwealth in accordance with the procedures contained in Chapter 22.1 (§ 19.2-386.1 et seq.).

(Code 1950, §§ 18.1-321, 18.1-323, 18.1-333, 18.1-341; 1960, c. 358; 1975, cc. 14, 15, 576, § 18.2-336 ; 2004, c. 995; 2012, cc. 283, 756.)

The 2012 amendments. - The 2012 amendments by cc. 283 and 756 are identical, and rewrote the section.

Michie's Jurisprudence. - For related discussion, see 12A M.J. Lotteries, §§ 3, 4; 18 M.J. Taxation, § 86.

CASE NOTES

Nature of proceeding. - The proceeding to forfeit property under this section is against the property and not against the owner of the property or any other person. It is in rem wholly and not in personam. It is not a criminal proceeding. It is a civil case. Quidley v. Commonwealth, 190 Va. 1029 , 59 S.E.2d 52 (1950) (decided under prior law).

For a forfeiture of money to be sustained, the Commonwealth must show a connection between the lottery operation and the money. Plummer v. Commonwealth, 215 Va. 185 , 207 S.E.2d 861 (1974) (decided under prior law).

Mere possession of money and its availability and accessibility are not sufficient to sustain its forfeiture. Plummer v. Commonwealth, 215 Va. 185 , 207 S.E.2d 861 (1974) (decided under prior law).

Forfeiture of property to the Commonwealth under this section occurred when it was seized. The subsequent forfeiture proceeding was required, not to complete the forfeiture, but to prove the illegal use for which the forfeiture was suffered. Therefore, a federal tax lien perfected after seizure was subordinate to the Commonwealth's interest. Tri-Pharmacy, Inc. v. United States, 203 Va. 723 , 127 S.E.2d 89 (1962), cert. denied, 371 U.S. 962, 83 S. Ct. 542, 9 L. Ed. 2d 509 (1963) (decided under prior law).

Section 19.2-294 does not apply. - Section 19.2-294 , providing that where the same act is a violation of two or more statute or ordinances, conviction under one statute or ordinance shall be a bar to prosecution under the other or others, does not apply to a proceeding under this section. Quidley v. Commonwealth, 190 Va. 1029 , 59 S.E.2d 52 (1950) (decided under prior law).

Priority of federal tax lien perfected at time of seizure. - Where the United States had no knowledge of the illegal use being made of forfeited property and had properly perfected a tax lien thereon at the time of the seizure, said lien had priority over the forfeiture to the extent of the balance due thereon. Tri-Pharmacy, Inc. v. United States, 203 Va. 723 , 127 S.E.2d 89 (1962), cert. denied, 371 U.S. 962, 83 S. Ct. 542, 9 L. Ed. 2d 509 (1963) (decided under prior law).

Evidence sufficient to prove property used in operation of lottery. - Evidence of the Commonwealth was sufficient to prove that certain forfeited property was used in the operation of a lottery. Tri-Pharmacy, Inc. v. United States, 203 Va. 723 , 127 S.E.2d 89 (1962), cert. denied, 371 U.S. 962, 83 S. Ct. 542, 9 L. Ed. 2d 509 (1963) (decided under prior law).

§ 19.2-386.31. Seizure and forfeiture of property used in connection with the exploitation and solicitation of children.

All audio and visual equipment, electronic equipment, devices and other personal property used in connection with the possession, production, distribution, publication, sale, possession with intent to distribute or making of child pornography that constitutes a violation of § 18.2-374.1 or 18.2-374.1:1 , or in connection with the solicitation of a person less than 18 years of age that constitutes a violation of § 18.2-374.3 shall be subject to lawful seizure by a law-enforcement officer and shall be subject to forfeiture to the Commonwealth pursuant to Chapter 22.1 (§ 19.2-386.1 et seq.). The Commonwealth shall file an information and notice of seizure in accordance with the procedures in Chapter 22.1 (§ 19.2-386.1 et seq.).

(1986, c. 596, § 18.2-374.2 ; 1999, c. 659; 2004, c. 995; 2007, cc. 134, 386; 2012, cc. 283, 756; 2020, c. 1000.)

The 2007 amendments. - The 2007 amendments by cc. 134 and 386 are identical, and in the first paragraph, inserted "possession," substituted "making of child pornography that constitutes a violation of § 18.2-374.1 or 18.2-374.1:1 , or in connection with the solicitation of a person less than 18 years of age that constitutes a violation of § 18.2-374.3 shall be subject" for "making of sexually explicit visual material having a person less than 18 years of age as a subject shall be subject," and inserted "18.2-374.1:1, or 18.2-374.3 " in the first sentence, and inserted "to the agency seizing such property" in the second sentence.

The 2012 amendments. - The 2012 amendments by cc. 283 and 756 are identical, and rewrote the section.

The 2020 amendments. - The 2020 amendment by c. 1000, deleted "however, any forfeiture action shall be stayed until conviction of the person whose property is subject to forfeiture. Upon his conviction, the court may dispose of the issue of forfeiture or may continue the civil case allowing the defendant time to answer, at the court's discretion" at the end of the section.

§ 19.2-386.32. Seizure and forfeiture of property used in connection with the abduction of children.

All moneys and other property, real and personal, owned by a person and used to further the abduction of a child in violation of § 18.2-47 , 18.2-48 , or 18.2-48.1 are subject to lawful seizure by a law-enforcement officer and are subject to forfeiture to the Commonwealth pursuant to Chapter 22.1 (§ 19.2-386.1 et seq.).

(2011, cc. 818, 852; 2012, cc. 283, 756; 2020, c. 1000.)

The 2012 amendments. - The 2012 amendments by cc. 283 and 756 are identical, and substituted "Chapter 22.1 ( § 19.2-386.1 et seq.)" for "Chapter 22 ( § 19.2-369 et seq.)."

The 2020 amendments. - The 2020 amendment by c, 1000, deleted "by order of the court in which a conviction under § 18.2-47 , 18.2-48 , or 18.2-48.1 is obtained" at the end of the section.

§ 19.2-386.33. Forfeiture of money, etc., derived from violation of §§ 2.2-3103 through 2.2-3112.

In addition to any other fine or penalty provided by law, any money or other thing of value derived by an officer or employee from a violation of §§ 2.2-3103 through 2.2-3112 shall be forfeited, in accordance with the procedures contained in Chapter 22.1 (§ 19.2-386.1 et seq.). If the thing of value received by the officer or employee in violation of §§ 2.2-3103 through 2.2-3112 increases in value between the time of the violation and the time of discovery of the violation, the greater value shall determine the amount of forfeiture.

(2012, cc. 283, 756.)

§ 19.2-386.34. Forfeiture of vehicle used in a felony violation of § 18.2-266.

The vehicle solely owned and operated by the accused during the commission of a felony violation of § 18.2-266 shall be subject to seizure and forfeiture. After an arrest upon a felony violation of § 18.2-266 , the vehicle may be forfeited to the Commonwealth pursuant to the procedures set forth in Chapter 22.1 (§ 19.2-386.1 et seq.).

An immediate family member of the owner of any motor vehicle for which an information has been filed under this section who was not the driver at the time of the violation may petition the court in which such information was filed for the release of the motor vehicle. If the immediate family member proves by a preponderance of the evidence that his immediate family has only one motor vehicle and will suffer a substantial hardship if that motor vehicle is seized and forfeited, the court, in its discretion, may release the vehicle.

In the event that the vehicle was sold to a bona fide purchaser subsequent to the arrest but prior to seizure in order to avoid seizure and forfeiture, the Commonwealth shall have a right of action against the seller for the proceeds of the sale.

(2012, cc. 283, 756; 2020, c. 1000.)

Editor's note. - Acts 2012, cc. 283 and 756, which enacted this section are nearly identical. The section has been set out in the form above at the direction of the Virginia Code Commission.

The 2020 amendments. - The 2020 amendment by c. 1000, deleted the third sentence in the first paragraph, which read: "Any seizure shall be stayed until conviction and the exhaustion of all appeals at which time, if the information has been filed, the Commonwealth shall give notice of seizure to all appropriate parties pursuant to § 19.2-386.3 " and inserted "that" following "event" in the last paragraph.

§ 19.2-386.35. Seizure of property used in connection with certain offenses.

All money, equipment, motor vehicles, and other personal and real property of any kind or character together with any interest or profits derived from the investment of such proceeds or other property that (i) was used in connection with the commission of, or in an attempt to commit, a violation of subsection B of § 18.2-47 , § 18.2-48 , 18.2-59 , 18.2-346.01 , 18.2-347 , 18.2-348 , 18.2-348 .1, 18.2-349 , 18.2-355 , 18.2-356 , 18.2-357 , 18.2-357.1 , 40.1-29 , 40.1-100.2 , or 40.1-103 ; (ii) is traceable to the proceeds of some form of activity that violates subsection B of § 18.2-47 , § 18.2-48 , 18.2-59 , 18.2-346.01 , 18.2-347 , 18.2-348, 18.2-348.1 , 18.2-349 , 18.2-355 , 18.2-356 , 18.2-357 , 40.1-29 , 40.1-100.2 , or 40.1-103 ; or (iii) was used to or intended to be used to promote some form of activity that violates subsection B of § 18.2-47, § 18.2-48, 18.2-59, 18.2-346.01, 18.2-347, 18.2-348, 18.2-348.1 , 18.2-349, 18.2-355, 18.2-356, 18.2-357, 40.1-29, 40.1-100.2, or 40.1-103 is subject to lawful seizure by a law-enforcement officer and subject to forfeiture to the Commonwealth pursuant to Chapter 22.1 (§ 19.2-386.1 et seq.).

Real property shall not be subject to seizure unless the minimum prescribed punishment for the violation is a term of imprisonment of not less than five years.

All seizures and forfeitures under this section shall be governed by Chapter 22.1 (§ 19.2-386.1 et seq.), and the procedures specified therein shall apply, mutatis mutandis, to all forfeitures under this section.

(2014, c. 658; 2015, cc. 690, 691; 2019, c. 458; 2020, c. 1000; 2021, Sp. Sess. I, c. 188.)

Editor's note. - Acts 2015, cc. 690 and 691, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 2 of the Acts of Assembly of 2014, Special Session I, requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2015 amendments. - The 2015 amendments by cc. 690 and 691 are identical and inserted "18.2-357.1" in clause (i) of the first paragraph.

The 2019 amendments. - The 2019 amendment by c. 458 inserted "18.2-348.1" in clauses (i) through (iii) of the first paragraph.

The 2020 amendments. - The 2020 amendment by c. 1000, deleted the former last sentence in the first paragraph, which read: "Any forfeiture action under this section shall be stayed until conviction, and property eligible for forfeiture pursuant to this section shall be forfeited only upon the entry of a final judgment of conviction for an offense listed in this section; if no such judgment is entered, all property seized pursuant to this section shall be released from seizure."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, in clauses (i) through (iii) of the first paragraph, substituted "18.2-346.01" for "subsection B of § 18.2-346 , or § " and made stylistic changes.

Chapter 23. Central Criminal Records Exchange.

Sec.

§ 19.2-387. Exchange to operate as a division of Department of State Police; authority of Superintendent of State Police.

  1. The Central Criminal Records Exchange shall operate as a separate division within the Department of State Police and shall be the sole criminal recordkeeping agency of the Commonwealth, except for (i) the Department of Juvenile Justice pursuant to Chapter 10 (§ 16.1-222 et seq.) of Title 16.1, (ii) the Department of Motor Vehicles, (iii) for purposes of the DNA data bank, the Department of Forensic Science, and (iv) for the purpose of making parole determinations pursuant to subdivisions 1, 2, 3, 4, and 6 of § 53.1-136 , the Virginia Parole Board.
  2. The Superintendent of State Police is hereby authorized to employ such personnel, establish such offices, and acquire such equipment as shall be necessary to carry out the purposes of this chapter and is also authorized to enter into agreements with other state agencies for services to be performed for it by employees of such other agencies.

    (Code 1950, § 19.1-19.1:1; 1970, c. 101; 1975, c. 495; 1988, c. 541; 1990, c. 669; 1993, c. 313; 2001, cc. 203, 215; 2003, c. 431; 2005, cc. 868, 881; 2020, cc. 2, 529.)

Cross references. - As to definitions relating to this chapter, see § 9.1-101 .

As to civil remedies for violation of this chapter, see § 9.1-135 .

As to criminal penalty for violation of this chapter, see § 9.1-136 .

The 2001 amendments. - The 2001 amendment by cc. 203 and 215 are identical, and substituted "Juvenile Justice" for "Corrections" in subsection A.

The 2003 amendments. - The 2003 amendment by c. 431 substituted "Division" for "Bureau" in clause A (iii).

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "Department" for "Division" in subsection A.

The 2020 amendments. - The 2020 amendments by cc. 2 and 529 are identical, and substituted "recordkeeping" for "record-keeping" and substituted "subdivisions 1, 2, 3, 4, and 6" for "subdivisions 1, 2, 3, and 5" in subsection A.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 2.

OPINIONS OF THE ATTORNEY GENERAL

State Police may provide mental health information to FBI to determine a person's eligibility to possess, purchase, or transfer a firearm. - The Department of State Police has the authority to provide certain mental health information maintained in the Central Criminal Records Exchange to the Federal Bureau of Investigation, so long as it is (i) kept confidential; and (ii) used only to determine a person's eligibility to possess, purchase or transfer a firearm. See opinion of Attorney General to Colonel W. Gerald Massengill, Superintendent, Department of State Police, 01-062 (4/4/02).

Duty of clerk of court when issuing concealed weapon permit. - When issuing a concealed weapon permit, the clerk of court has no duty to verify with the general district or the juvenile and domestic relations district court whether the applicant has any criminal charges or protective orders pending against him in those courts. The failure of a clerk to detect any existing protective orders or criminal charges does not constitute gross negligence, provided the clerk has followed the statutory requirements governing the issuance of a concealed weapon permit. See opinion of Attorney General to The Honorable Jack Kennedy, Clerk of the Circuit Court, Wise County and City of Norton, 11-018, 2011 Va. AG LEXIS 26 (5/13/11).

Disclosure of arrest photographs. - Local law-enforcement agencies must disclose adult arrestee photographs pursuant to a valid FOIA request if they are contained in a database maintained by the local law-enforcement agency, regardless of whether the defendant is still incarcerated or has been released, unless disclosing them will jeopardize a felony investigation. However, photographs may not be drawn from the Central Criminal Records Exchange for disclosure at any time to comply with a FOIA request. See opinion of Attorney General to The Honorable Jim O'Sullivan, Sheriff, City of Chesapeake, No. 14-063, 2015 Va. AG LEXIS 5 (2/5/15).

§ 19.2-387.1. Protective Order Registry; maintenance; access.

  1. The Department of State Police shall keep and maintain a computerized Protective Order Registry. The purpose of the Registry shall be to assist the efforts of law-enforcement agencies to protect their communities and their citizens. The Department of State Police shall make Registry information available, upon request, to criminal justice agencies, including local law-enforcement agencies, through the Virginia Criminal Information Network (VCIN). Registry information provided under this section shall be used only for the purposes of the administration of criminal justice.
  2. No liability shall be imposed upon any law-enforcement official who disseminates information or fails to disseminate information in good faith compliance with the requirements of this section, but this provision shall not be construed to grant immunity for gross negligence or willful misconduct.

    (2002, cc. 810, 818.)

OPINIONS OF THE ATTORNEY GENERAL

Duty of clerk of court when issuing concealed weapon permit. - When issuing a concealed weapon permit, the clerk of court has no duty to verify with the general district or the juvenile and domestic relations district court whether the applicant has any criminal charges or protective orders pending against him in those courts. The failure of a clerk to detect any existing protective orders or criminal charges does not constitute gross negligence, provided the clerk has followed the statutory requirements governing the issuance of a concealed weapon permit. See opinion of Attorney General to The Honorable Jack Kennedy, Clerk of the Circuit Court, Wise County and City of Norton, 11-018, 2011 Va. AG LEXIS 26 (5/13/11).

§ 19.2-387.2. National Crime Prevention and Privacy Compact of 1998.

The National Crime Prevention and Privacy Compact of 1998 is hereby enacted and entered into with all other jurisdictions legally joining therein in the form substantially as follows:

NATIONAL CRIME PREVENTION AND PRIVACY COMPACT.

The Contracting Parties agree to the following:

Overview.

  1. In general. This Compact organizes an electronic information sharing system among the Federal Government and the States to exchange criminal history records for noncriminal justice purposes authorized by Federal or State law, such as background checks for governmental licensing and employment.
  2. Obligations of parties. Under this Compact, the FBI and the Party States agree to maintain detailed databases of their respective criminal history records, including arrests and dispositions, and to make them available to the Federal Government and to Party States for authorized purposes. The FBI shall also manage the Federal data facilities that provide a significant part of the infrastructure for the system.

ARTICLE I.

DEFINITIONS.

In this Compact:

"Attorney General" means the Attorney General of the United States.

"Compact officer" means:

  1. With respect to the Federal Government, an official so designated by the Director of the FBI; and
  2. With respect to a Party State, the chief administrator of the State's criminal history record repository or a designee of the chief administrator who is a regular full-time employee of the repository.

    "Council" means the Compact Council established under Article VI.

    "Criminal history records" means information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, or other formal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision, or release. "Criminal history records" does not include identification information such as fingerprint records if such information does not indicate involvement of the individual with the criminal justice system.

    "Criminal history record repository" means the State agency designated by the Governor or other appropriate executive official or the legislature of a State to perform centralized recordkeeping functions for criminal history records and services in the State.

    "Criminal justice" includes activities relating to the detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders. The administration of criminal justice includes criminal identification activities and the collection, storage, and dissemination of criminal history records.

    "Criminal justice agency" means (i) courts; and (ii) a governmental agency or any subunit thereof that (a) performs the administration of criminal justice pursuant to a statute or Executive order; (b) allocates a substantial part of its annual budget to the administration of criminal justice; and (c) includes Federal and State inspectors general offices.

    "Criminal justice services" means services provided by the FBI to criminal justice agencies in response to a request for information about a particular individual or as an update to information previously provided for criminal justice purposes.

    "Criterion offense" means any felony or misdemeanor offense not included on the list of nonserious offenses published periodically by the FBI.

    "Direct access" means access to the National Identification Index by computer terminal or other automated means not requiring the assistance of or intervention by any other party or agency.

    "Executive order" means an order of the President of the United States or the chief executive officer of a State that has the force of law and that is promulgated in accordance with applicable law.

    "FBI" means the Federal Bureau of Investigation.

    "Interstate Identification Index System" or "III System" means the cooperative Federal-State system for the exchange of criminal history records and includes the National Identification Index, the National Fingerprint File and, to the extent of their participation in such system, the criminal history record repositories of the States and the FBI.

    "National Fingerprint File" means a database of fingerprints, or other uniquely personal identifying information, relating to an arrested or charged individual maintained by the FBI to provide positive identification of record subjects indexed in the III System.

    "National Identification Index" means an index maintained by the FBI consisting of names, identifying numbers, and other descriptive information relating to record subjects about whom there are criminal history records in the III System.

    "National indices" means the National Identification Index and the National Fingerprint File.

    "Noncriminal justice purposes" means uses of criminal history records for purposes authorized by Federal or State law other than purposes relating to criminal justice activities, including employment suitability, licensing determinations, immigration and naturalization matters, and national security clearances.

    "Nonparty State" means a State that has not ratified this Compact.

    "Party State" means a State that has ratified this Compact.

    "Positive identification" means a determination, based upon a comparison of fingerprints or other equally reliable biometric identification techniques, that the subject of a record search is the same person as the subject of a criminal history record or records indexed in the III System. Identifications based solely upon a comparison of subjects' names or other nonunique identification characteristics or numbers, or combinations thereof, shall not constitute positive identification.

    "Sealed record information" means:

    1. With respect to adults, that portion of a record that is (i) not available for criminal justice uses; (ii) not supported by fingerprints or other accepted means of positive identification; or (iii) subject to restrictions on dissemination for noncriminal justice purposes pursuant to a court order related to a particular subject or pursuant to a Federal or State statute that requires action on a sealing petition filed by a particular record subject; and

    2. With respect to juveniles, whatever each State determines is a sealed record under its own law and procedure.

    "State" means any State, territory, or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.

ARTICLE II.

PURPOSES.

The purposes of this Compact are to:

  1. Provide a legal framework for the establishment of a cooperative Federal-State system for the interstate and Federal-State exchange of criminal history records for noncriminal justice uses;
  2. Require the FBI to permit use of the National Identification Index and the National Fingerprint File by each Party State, and to provide, in a timely fashion, Federal and State criminal history records to requesting States, in accordance with the terms of this Compact and with rules, procedures, and standards established by the Council under Article VI;
  3. Require Party States to provide information and records for the National Identification Index and the National Fingerprint File and to provide criminal history records, in a timely fashion, to criminal history record repositories of other States and the Federal Government for noncriminal justice purposes, in accordance with the terms of this Compact and with rules, procedures, and standards established by the Council under Article VI;
  4. Provide for the establishment of a Council to monitor III System operations and to prescribe system rules and procedures for the effective and proper operation of the III System for noncriminal justice purposes; and
  5. Require the FBI and each Party State to adhere to III System standards concerning record dissemination and use, response times, system security, data quality, and other duly established standards, including those that enhance the accuracy and privacy of such records.

ARTICLE III.

RESPONSIBILITIES OF COMPACT PARTIES.

  1. FBI responsibilities. The Director of the FBI shall:
    1. Appoint an FBI Compact officer who shall:
      1. Administer this Compact within the Department of Justice and among Federal agencies and other agencies and organizations that submit search requests to the FBI pursuant to subsection C of Article V;
      2. Ensure that Compact provisions and rules, procedures, and standards prescribed by the Council under Article VI are complied with by the Department of Justice and the Federal agencies and other agencies and organizations referred to in subdivision A 1 a; and
      3. Regulate the use of records received by means of the III System from Party States when such records are supplied by the FBI directly to other Federal agencies;
    2. Provide to Federal agencies and to State criminal history record repositories, criminal history records maintained in its database for the noncriminal justice purposes described in Article IV, including:
      1. Information from Nonparty States; and
      2. Information from Party States that is available from the FBI through the III System, but is not available from the Party State through the III System;
    3. Provide a telecommunications network and maintain centralized facilities for the exchange of criminal history records for both criminal justice purposes and the noncriminal justice purposes described in Article IV, and ensure that the exchange of such records for criminal justice purposes has priority over exchange for noncriminal justice purposes; and
    4. Modify or enter into user agreements with Nonparty State criminal history record repositories to require them to establish record request procedures conforming to those prescribed in Article V.
  2. State responsibilities. Each Party State shall:
    1. Appoint a Compact officer who shall:
      1. Administer this Compact within that State;
      2. Ensure that Compact provisions and rules, procedures, and standards established by the Council under Article VI are complied with in the State; and
      3. Regulate the in-State use of records received by means of the III System from the FBI or from other Party States;
    2. Establish and maintain a criminal history record repository, which shall provide:
      1. Information and records for the National Identification Index and the National Fingerprint File; and
      2. The State's III System-indexed criminal history records for noncriminal justice purposes described in Article IV;
    3. Participate in the National Fingerprint File; and
    4. Provide and maintain telecommunications links and related equipment necessary to support the services set forth in this Compact.
  3. Compliance with III System standards. In carrying out their responsibilities under this Compact, the FBI and each Party State shall comply with III System rules, procedures, and standards duly established by the Council concerning record dissemination and use, response times, data quality, system security, accuracy, privacy protection, and other aspects of III System operation.
  4. Maintenance of record services.
    1. Use of the III System for noncriminal justice purposes authorized in this Compact shall be managed so as not to diminish the level of services provided in support of criminal justice purposes.
    2. Administration of Compact provisions shall not reduce the level of service available to authorized noncriminal justice users on the effective date of this Compact.

ARTICLE IV.

AUTHORIZED RECORD DISCLOSURES.

  1. State criminal history record repositories. To the extent authorized by 5 U.S.C. § 552a (commonly known as the "Privacy Act of 1974"), the FBI shall provide on request criminal history records (excluding sealed records) to State criminal history record repositories for noncriminal justice purposes allowed by Federal statute, Federal Executive order, or a State statute that has been approved by the Attorney General and that authorizes national indices checks.
  2. Criminal justice agencies and other governmental or nongovernmental agencies. The FBI, to the extent authorized by 5 U.S.C. § 552a (commonly known as the "Privacy Act of 1974"), and State criminal history record repositories shall provide criminal history records (excluding sealed records) to criminal justice agencies and other governmental or nongovernmental agencies for noncriminal justice purposes allowed by Federal statute, Federal Executive order, or a State statute that has been approved by the Attorney General, that authorizes national indices checks.
  3. Procedures. Any record obtained under this Compact may be used only for the official purposes for which the record was requested. Each Compact officer shall establish procedures, consistent with this Compact, and with rules, procedures, and standards established by the Council under Article VI, which procedures shall protect the accuracy and privacy of the records, and shall:
    1. Ensure that records obtained under this Compact are used only by authorized officials for authorized purposes;
    2. Require that subsequent record checks are requested to obtain current information whenever a new need arises; and
    3. Ensure that record entries that may not legally be used for a particular noncriminal justice purpose are deleted from the response and, if no information authorized for release remains, an appropriate "no record" response is communicated to the requesting official.

ARTICLE V.

RECORD REQUEST PROCEDURES.

  1. Positive identification. Subject fingerprints or other approved forms of positive identification shall be submitted with all requests for criminal history record checks for noncriminal justice purposes.
  2. Submission of State requests. Each request for a criminal history record check utilizing the national indices made under any approved State statute shall be submitted through that State's criminal history record repository. A State criminal history record repository shall process an interstate request for noncriminal justice purposes through the national indices only if such request is transmitted through another State criminal history record repository or the FBI.
  3. Submission of Federal requests. Each request for criminal history record checks utilizing the national indices made under Federal authority shall be submitted through the FBI or, if the State criminal history record repository consents to process fingerprint submissions, through the criminal history record repository in the State in which such request originated. Direct access to the National Identification Index by entities other than the FBI and State criminal history records repositories shall not be permitted for noncriminal justice purposes.
  4. Fees. A State criminal history record repository or the FBI:
    1. May charge a fee, in accordance with applicable law, for handling a request involving fingerprint processing for noncriminal justice purposes; and
    2. May not charge a fee for providing criminal history records in response to an electronic request for a record that does not involve a request to process fingerprints.
  5. Additional search.
    1. If a State criminal history record repository cannot positively identify the subject of a record request made for noncriminal justice purposes, the request, together with fingerprints or other approved identifying information, shall be forwarded to the FBI for a search of the national indices.
    2. If, with respect to a request forwarded by a State criminal history record repository under subdivision 1, the FBI positively identifies the subject as having a III System-indexed record or records:
      1. The FBI shall so advise the State criminal history record repository; and
      2. The State criminal history record repository shall be entitled to obtain the additional criminal history record information from the FBI or other State criminal history record repositories.

ARTICLE VI.

ESTABLISHMENT OF COMPACT COUNCIL.

  1. Establishment.
    1. In general. There is established a council to be known as the "Compact Council," which shall have the authority to promulgate rules and procedures governing the use of the III System for noncriminal justice purposes, not to conflict with FBI administration of the III System for criminal justice purposes.
    2. Organization. The Council shall:
      1. Continue in existence as long as this Compact remains in effect;
      2. Be located, for administrative purposes, within the FBI; and
      3. Be organized and hold its first meeting as soon as practicable after the effective date of this Compact.
  2. Membership. The Council shall be composed of 15 members, each of whom shall be appointed by the Attorney General, as follows:
    1. Nine members, each of whom shall serve a two-year term, who shall be selected from among the Compact officers of Party States based on the recommendation of the Compact officers of all Party States, except that, in the absence of the requisite number of Compact officers available to serve, the chief administrators of the criminal history record repositories of Nonparty States shall be eligible to serve on an interim basis.
    2. Two at-large members, nominated by the Director of the FBI, each of whom shall serve a three-year term, of whom:
      1. One shall be a representative of the criminal justice agencies of the Federal Government and may not be an employee of the FBI; and
      2. One shall be a representative of the noncriminal justice agencies of the Federal Government.
    3. Two at-large members, nominated by the Chairman of the Council, once the Chairman is elected pursuant to subsection C, each of whom shall serve a three-year term, of whom:
      1. One shall be a representative of State or local criminal justice agencies; and
      2. One shall be a representative of State or local noncriminal justice agencies.
    4. One member, who shall serve a three-year term, and who shall simultaneously be a member of the FBI's advisory policy board on criminal justice information services, nominated by the membership of that policy board.
    5. One member, nominated by the Director of the FBI, who shall serve a three-year term, and who shall be an employee of the FBI.
  3. Chairman and Vice Chairman.
    1. In general. From its membership, the Council shall elect a Chairman and a Vice Chairman of the Council, respectively. Both the Chairman and Vice Chairman of the Council:
      1. Shall be a Compact officer, unless there is no Compact officer on the Council who is willing to serve, in which case the Chairman may be an at-large member; and
      2. Shall serve a two-year term and may be reelected to only one additional two-year term.
    2. Duties of Vice Chairman. The Vice Chairman of the Council shall serve as the Chairman of the Council in the absence of the Chairman.
  4. Meetings.
    1. In general. The Council shall meet at least once each year at the call of the Chairman. Each meeting of the Council shall be open to the public. The Council shall provide prior public notice in the Federal Register of each meeting of the Council, including the matters to be addressed at such meeting.
    2. Quorum. A majority of the Council or any committee of the Council shall constitute a quorum of the Council or of such committee, respectively, for the conduct of business. A lesser number may meet to hold hearings, take testimony, or conduct any business not requiring a vote.
  5. Rules, procedures, and standards. The Council shall make available for public inspection and copying at the Council office within the FBI, and shall publish in the Federal Register, any rules, procedures, or standards established by the Council.
  6. Assistance from FBI. The Council may request from the FBI such reports, studies, statistics, or other information or materials as the Council determines to be necessary to enable the Council to perform its duties under this Compact. The FBI, to the extent authorized by law, may provide such assistance or information upon such a request.
  7. Committees. The Chairman may establish committees as necessary to carry out this Compact and may prescribe their membership, responsibilities, and duration.

ARTICLE VII.

RATIFICATION OF COMPACT.

This Compact shall take effect upon being entered into by two or more States as between those States and the Federal Government. Upon subsequent entering into this Compact by additional States, it shall become effective among those States and the Federal Government and each Party State that has previously ratified it. When ratified, this Compact shall have the full force and effect of law within the ratifying jurisdictions. The form of ratification shall be in accordance with the laws of the executing State.

ARTICLE VIII.

MISCELLANEOUS PROVISIONS

  1. Relation of Compact to certain FBI activities. Administration of this Compact shall not interfere with the management and control of the Director of the FBI over the FBI's collection and dissemination of criminal history records and the advisory function of the FBI's advisory policy board chartered under the Federal Advisory Committee Act (5 U.S.C. App.) for all purposes other than noncriminal justice.
  2. No authority for nonappropriated expenditures. Nothing in this Compact shall require the FBI to obligate or expend funds beyond those appropriated to the FBI.
  3. Relating to Public Law 92 544. Nothing in this Compact shall diminish or lessen the obligations, responsibilities, and authorities of any State, whether a Party State or a Nonparty State, or of any criminal history record repository or other subdivision or component thereof, under the Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriation Act, 1973 (Public Law 92 544), or regulations and guidelines promulgated thereunder, including the rules and procedures promulgated by the Council under subsection A of Article VI, regarding the use and dissemination of criminal history records and information.

ARTICLE IX.

RENUNCIATION.

  1. In general. This Compact shall bind each Party State until renounced by the Party State.
  2. Effect. Any renunciation of this Compact by a Party State shall:
    1. Be effected in the same manner by which the Party State ratified this Compact; and
    2. Become effective 180 days after written notice of renunciation is provided by the Party State to each other Party State and to the Federal Government.

ARTICLE X.

SEVERABILITY.

The provisions of this Compact shall be severable, and if any phrase, clause, sentence, or provision of this Compact is declared to be contrary to the constitution of any participating State, or to the Constitution of the United States, or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this Compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If a portion of this Compact is held contrary to the constitution of any Party State, all other portions of this Compact shall remain in full force and effect as to the remaining Party States and in full force and effect as to the Party State affected, as to all other provisions.

ARTICLE XI.

ADJUDICATION OF DISPUTES.

  1. In general. The Council shall:
    1. Have initial authority to make determinations with respect to any dispute regarding:
      1. Interpretation of this Compact;
      2. Any rule or standard established by the Council pursuant to Article V; and
      3. Any dispute or controversy between any parties to this Compact; and
    2. Hold a hearing concerning any dispute described in subdivision 1 at a regularly scheduled meeting of the Council and only render a decision based upon a majority vote of the members of the Council. Such decision shall be published pursuant to the requirements of subsection E of Article VI.
  2. Duties of FBI. The FBI shall exercise immediate and necessary action to preserve the integrity of the III System, maintain system policy and standards, protect the accuracy and privacy of records, and to prevent abuses, until the Council holds a hearing on such matters.
  3. Right of appeal. The FBI or a Party State may appeal any decision of the Council to the Attorney General, and thereafter may file suit in the appropriate district court of the United States, which shall have original jurisdiction of all cases or controversies arising under this Compact. Any suit arising under this Compact and initiated in a State court shall be removed to the appropriate district court of the United States in the manner provided by 28 U.S.C. § 1446, or other statutory authority.

    (2017, c. 319.)

§ 19.2-387.3. Substantial Risk Order Registry; maintenance; access.

  1. The Department of State Police shall keep and maintain a computerized Substantial Risk Order Registry (the Registry) for the entry of orders issued pursuant to § 19.2-152.13 or 19.2-152.14 .. The Department of State Police shall make the Registry information available, upon request, to criminal justice agencies, including local law-enforcement agencies, through the Virginia Criminal Information Network. The Department of State Police may make the Registry information available upon request to institutions of higher education and other research organizations or institutions in the Commonwealth. The Department of State Police shall remove the names and other personal identifying information from the data before it is released to the institution of higher education or research organization or other institution. Registry information provided under this section shall be used only for the purposes of the administration of criminal justice as defined in § 9.1-101 , except as otherwise provided in this subsection.
  2. No liability shall be imposed upon any law-enforcement official who disseminates information or fails to disseminate information in good faith compliance with the requirements of this section, but this provision shall not be construed to grant immunity for gross negligence or willful misconduct.

    (2020, cc. 887, 888; 2021, Sp. Sess. I, c. 461.)

Editor's note. - Acts 2020, cc. 887 and 888, in cl. 2 provide: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, cc. 887 and 888, in cl. 3 provide: "That the Supreme Court shall create standard forms to implement the intent of this act."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 461, effective July 1, 2021, in subsection A, deleted the former second sentence, which read: "The purpose of the Registry shall be to assist the efforts of law-enforcement agencies to protect their communities and their citizens", inserted the present third sentence, and added "except as otherwise provided in this subsection" at the end of the last sentence.

§ 19.2-388. Duties and authority of Exchange.

  1. It shall be the duty of the Central Criminal Records Exchange to receive, classify, and file criminal history record information as defined in § 9.1-101 and other records required to be reported to it by §§ 16.1-299 and 19.2-390 . The Exchange is authorized to prepare and furnish to all state and local law-enforcement officials and agencies; to clerks of circuit courts, general district courts, and juvenile and domestic relations district courts; and to corrections and penal officials, forms that shall be used for the making of such reports.
  2. Juvenile records received pursuant to § 16.1-299 shall be maintained separately from adult records.
  3. The Exchange shall submit periodic reports to the Office of the Executive Secretary of the Supreme Court of Virginia, the clerk of each circuit court and district court, attorneys for the Commonwealth, and law-enforcement agencies containing a list of offenses with unapplied criminal history record information. Reports to the Office of the Executive Secretary of the Supreme Court of Virginia shall be quarterly and shall include all such offenses within the Commonwealth identified by jurisdiction and by court. Reports to the clerk of each circuit court and district court shall be quarterly and shall include only such offenses that were submitted by the respective clerk of court. Reports to attorneys for the Commonwealth shall be quarterly and shall include only such offenses that were submitted by law-enforcement agencies and courts in the county or city served by the respective attorney for the Commonwealth. Reports to law-enforcement agencies shall be monthly and shall include only such offenses for which the respective law-enforcement agency executed the arrest or issued the summons. For each offense, the report shall include, if known, the name and any other identifying information of the defendant, any identifying court case information, the date of submission to the Exchange, and the reason the offense could not be applied to the criminal history record.
  4. The Exchange shall review offenses containing unapplied criminal history record information and shall make reasonable efforts to ensure that such information, including any offense of which the Exchange is notified pursuant to subdivision A 12 of § 9.1-176.1 , subdivision F 7 or 8 of § 19.2-305.1 , subsection B of § 53.1-23 , or subdivision 13 or 14 of § 53.1-145 , is applied to criminal history records. The Exchange may request and shall receive from the clerk of each circuit court and district court, attorneys for the Commonwealth, law-enforcement agencies, the Department of Corrections, the Department of Forensic Science, and local probation and community corrections agencies cooperation and assistance to obtain positive identification or to reconcile any inconsistencies, errors, or omissions within such unapplied criminal history record information.
  5. The Exchange shall submit a report to the Governor and General Assembly on or before November 1 of each year on the status of unapplied criminal history record information and any updates to fingerprinting policies and procedures. The report shall include the following, if known: (i) the total number of offenses submitted to the Exchange, identified by the year of the offense and the year the charge was filed for such offense, that contain unapplied criminal history record information and cannot be applied to criminal history records; (ii) the number of such offenses submitted to the Exchange without fingerprints or positive identification and the law-enforcement agencies that submitted those offenses; (iii) the number of such offenses submitted to the Exchange with an inconsistency, error, or omission and, for those offenses, the jurisdiction from which the offense was submitted; and (iv) efforts made by the Exchange to ensure that unapplied criminal history record information is applied to criminal history records, including any offenses of which the Exchange was notified pursuant to subdivision A 12 of § 9.1-176.1 , subdivision F 7 or 8 of § 19.2-305.1 , subsection B of § 53.1-23 , or subdivision 13 or 14 of § 53.1-145 . (Code 1950, § 19.1-19.2; 1966, c. 669; 1968, c. 537; 1970, c. 118; 1975, c. 495; 1976, c. 771; 1982, c. 33; 1993, cc. 468, 926; 1996, cc. 755, 914; 2019, cc. 782, 783.)

Editor's note. - Acts 1996, cc. 755 and 914, cl. 7, provide: "[t]hat the provisions of this act shall apply to offenses committed and to records created and proceedings held with respect to those offenses on or after July 1, 1996."

The 2019 amendments. - The 2019 amendments by cc. 782 and 783 are identical, and added subsections C through E; and made a stylistic change.

OPINIONS OF THE ATTORNEY GENERAL

Disclosure of arrest photographs. - Local law-enforcement agencies must disclose adult arrestee photographs pursuant to a valid FOIA request if they are contained in a database maintained by the local law-enforcement agency, regardless of whether the defendant is still incarcerated or has been released, unless disclosing them will jeopardize a felony investigation. However, photographs may not be drawn from the Central Criminal Records Exchange for disclosure at any time to comply with a FOIA request. See opinion of Attorney General to The Honorable Jim O'Sullivan, Sheriff, City of Chesapeake, No. 14-063, 2015 Va. AG LEXIS 5 (2/5/15).

§ 19.2-388.1. Fingerprints submitted by Live Scan device.

  1. The Department of State Police (the Department) shall accept requests for background checks through the use of a Live Scan device certified by the Federal Bureau of Investigation by any agency or organization located within the Commonwealth that (i) is authorized to receive criminal history record information pursuant to § 19.2-392.02 and (ii) utilizes a fingerprint background check as a condition of licensure, certification, employment, or volunteer service. Any such agency or organization transmitting requests for background checks to the Department pursuant to this section shall be responsible for all costs associated with capturing, formatting, encrypting, and transmitting all required information in a manner prescribed by the Department.
  2. The Department shall only provide the criminal history record information to the extent authorized by state or federal law, rules, and regulations. The Department may deny any such agency or organization access to criminal history record information if the Department finds that such agency or organization has failed to comply with state or federal law, rules, or regulations.
  3. Participating agencies or organizations shall be required to enter into an agreement with the Department for the purposes of carrying out this section and may be required to submit other information or forms as prescribed by the Department.

    (2019, c. 620.)

§ 19.2-389. (Effective until January 1, 2022) Dissemination of criminal history record information.

  1. Criminal history record information shall be disseminated, whether directly or through an intermediary, only to:
    1. Authorized officers or employees of criminal justice agencies, as defined by § 9.1-101 , for purposes of the administration of criminal justice and the screening of an employment application or review of employment by a criminal justice agency with respect to its own employees or applicants, and dissemination to the Virginia Parole Board, pursuant to this subdivision, of such information on all state-responsible inmates for the purpose of making parole determinations pursuant to subdivisions 1, 2, 3, 4, and 6 of § 53.1-136 shall include collective dissemination by electronic means every 30 days. For purposes of this subdivision, criminal history record information includes information sent to the Central Criminal Records Exchange pursuant to §§ 37.2-819 and 64.2-2014 when disseminated 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 the purposes of the administration of criminal justice;
    2. Such other individuals and agencies that require criminal history record information to implement a state or federal statute or executive order of the President of the United States or Governor that expressly refers to criminal conduct and contains requirements or exclusions expressly based upon such conduct, except that information concerning the arrest of an individual may not be disseminated to a noncriminal justice agency or individual if an interval of one year has elapsed from the date of the arrest and no disposition of the charge has been recorded and no active prosecution of the charge is pending;
    3. Individuals and agencies pursuant to a specific agreement with a criminal justice agency to provide services required for the administration of criminal justice pursuant to that agreement which shall specifically authorize access to data, limit the use of data to purposes for which given, and ensure the security and confidentiality of the data;
    4. Individuals and agencies for the express purpose of research, evaluative, or statistical activities pursuant to an agreement with a criminal justice agency that shall specifically authorize access to data, limit the use of data to research, evaluative, or statistical purposes, and ensure the confidentiality and security of the data;
    5. Agencies of state or federal government that are authorized by state or federal statute or executive order of the President of the United States or Governor to conduct investigations determining employment suitability or eligibility for security clearances allowing access to classified information;
    6. Individuals and agencies where authorized by court order or court rule;
    7. Agencies of any political subdivision of the Commonwealth, public transportation companies owned, operated or controlled by any political subdivision, and any public service corporation that operates a public transit system owned by a local government for the conduct of investigations of applicants for employment, permit, or license whenever, in the interest of public welfare or safety, it is necessary to determine under a duly enacted ordinance if the past criminal conduct of a person with a conviction record would be compatible with the nature of the employment, permit, or license under consideration; 7a. Commissions created pursuant to the Transportation District Act of 1964 (§ 33.2-1900 et seq.) of Title 33.2 and their contractors, for the conduct of investigations of individuals who have been offered a position of employment whenever, in the interest of public welfare or safety and as authorized in the Transportation District Act of 1964, it is necessary to determine if the past criminal conduct of a person with a conviction record would be compatible with the nature of the employment under consideration;
    8. Public or private agencies when authorized or required by federal or state law or interstate compact to investigate (i) applicants for foster or adoptive parenthood or (ii) any individual, and the adult members of that individual's household, with whom the agency is considering placing a child or from whom the agency is considering removing a child due to abuse or neglect, on an emergency, temporary, or permanent basis pursuant to §§ 63.2-901.1 and 63.2-1505 , subject to the restriction that the data shall not be further disseminated to any party other than a federal or state authority or court as may be required to comply with an express requirement of law;
    9. To the extent permitted by federal law or regulation, public service companies as defined in § 56-1, for the conduct of investigations of applicants for employment when such employment involves personal contact with the public or when past criminal conduct of an applicant would be incompatible with the nature of the employment under consideration;
    10. The appropriate authority for purposes of granting citizenship and for purposes of international travel, including, but not limited to, issuing visas and passports;
    11. A person requesting a copy of his own criminal history record information as defined in § 9.1-101 at his cost, except that criminal history record information shall be supplied at no charge to a person who has applied to be a volunteer with (i) a Virginia affiliate of Big Brothers•ig Sisters of America; (ii) a volunteer fire company; (iii) the Volunteer Emergency Families for Children; (iv) any affiliate of Prevent Child Abuse, Virginia; (v) any Virginia affiliate of Compeer; or (vi) any board member or any individual who has been offered membership on the board of a Crime Stoppers, Crime Solvers or Crime Line program as defined in § 15.2-1713.1 ;
    12. Administrators and board presidents of and applicants for licensure or registration as a child welfare agency as defined in § 63.2-100 for dissemination to the Commissioner of Social Services' representative pursuant to § 63.2-1702 for the conduct of investigations with respect to employees of and volunteers at such facilities, caretakers, and other adults living in family day homes or homes approved by family day systems, and foster and adoptive parent applicants of private child-placing agencies, pursuant to §§ 63.2-1719 , 63.2-1720 , 63.2-1720.1 , 63.2-1721 , and 63.2-1721 .1, subject to the restriction that the data shall not be further disseminated by the facility or agency to any party other than the data subject, the Commissioner of Social Services' representative, or a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination;
    13. The school boards of the Commonwealth for the purpose of screening individuals who are offered or who accept public school employment and those current school board employees for whom a report of arrest has been made pursuant to § 19.2-83.1 ;
    14. The Virginia Lottery for the conduct of investigations as set forth in the Virginia Lottery Law (§ 58.1-4000 et seq.) and casino gaming as set forth in Chapter 41 (§ 58.1-4100 et seq.) of Title 58.1, and the Department of Agriculture and Consumer Services for the conduct of investigations as set forth in Article 1.1:1 (§ 18.2-340.15 et seq.) of Chapter 8 of Title 18.2;
    15. Licensed nursing homes, hospitals and home care organizations for the conduct of investigations of applicants for compensated employment in licensed nursing homes pursuant to § 32.1-126.01 , hospital pharmacies pursuant to § 32.1-126.02 , and home care organizations pursuant to § 32.1-162.9:1 , subject to the limitations set out in subsection E;
    16. Licensed assisted living facilities and licensed adult day care centers for the conduct of investigations of applicants for compensated employment in licensed assisted living facilities and licensed adult day care centers pursuant to § 63.2-1720 , subject to the limitations set out in subsection F;
    17. The Virginia Alcoholic Beverage Control Authority for the conduct of investigations as set forth in § 4.1-103.1 ;
    18. The State Board of Elections and authorized officers and employees thereof and general registrars appointed pursuant to § 24.2-110 in the course of conducting necessary investigations with respect to voter registration, limited to any record of felony convictions;
    19. The Commissioner of Behavioral Health and Developmental Services for those individuals who are committed to the custody of the Commissioner pursuant to §§ 19.2-169.2 , 19.2-169.6 , 19.2-182.2 , 19.2-182.3 , 19.2-182.8 , and 19.2-182.9 for the purpose of placement, evaluation, and treatment planning;
    20. Any alcohol safety action program certified by the Commission on the Virginia Alcohol Safety Action Program for (i) interventions with first offenders under § 18.2-251 or (ii) services to offenders under § 18.2-51.4 , 18.2-266 , or 18.2-266 .1;
    21. Residential facilities for juveniles regulated or operated by the Department of Social Services, the Department of Education, or the Department of Behavioral Health and Developmental Services for the purpose of determining applicants' fitness for employment or for providing volunteer or contractual services;
    22. The Department of Behavioral Health and Developmental Services and facilities operated by the Department for the purpose of determining an individual's fitness for employment pursuant to departmental instructions;
    23. Pursuant to § 22.1-296.3, the governing boards or administrators of private elementary or secondary schools which are accredited pursuant to § 22.1-19 or a private organization coordinating such records information on behalf of such governing boards or administrators pursuant to a written agreement with the Department of State Police;
    24. Public institutions of higher education and nonprofit private institutions of higher education for the purpose of screening individuals who are offered or accept employment;
    25. Members of a threat assessment team established by a local 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, for the purpose of assessing or intervening with an individual whose behavior may present a threat to safety; however, no member of a threat assessment team shall redisclose any criminal history 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;
    26. Executive directors of community services boards or the personnel director serving the community services board for the purpose of determining an individual's fitness for employment, approval as a sponsored residential service provider, permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permission for any person under contract with the community services board to serve in a direct care position on behalf of the community services board pursuant to §§ 37.2-506 and 37.2-607 ;
    27. Executive directors of behavioral health authorities as defined in § 37.2-600 for the purpose of determining an individual's fitness for employment, approval as a sponsored residential service provider, permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permission for any person under contract with the behavioral health authority to serve in a direct care position on behalf of the behavioral health authority pursuant to §§ 37.2-506 and 37.2-607 ;
    28. The Commissioner of Social Services for the purpose of locating persons who owe child support or who are alleged in a pending paternity proceeding to be a putative father, provided that only the name, address, demographics and social security number of the data subject shall be released;
    29. Authorized officers or directors of agencies licensed pursuant to Article 2 (§ 37.2-403 et seq.) of Chapter 4 of Title 37.2 by the Department of Behavioral Health and Developmental Services for the purpose of determining if any applicant who accepts employment in any direct care position or requests approval as a sponsored residential service provider, permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permission for any person under contract with the provider to serve in a direct care position has been convicted of a crime that affects his fitness to have responsibility for the safety and well-being of individuals with mental illness, intellectual disability, or substance abuse pursuant to §§ 37.2-416 , 37.2-506 , and 37.2-607;
    30. The Commissioner of the Department of Motor Vehicles, for the purpose of evaluating applicants for and holders of a motor carrier certificate or license subject to the provisions of Chapters 20 (§ 46.2-2000 et seq.) and 21 (§ 46.2-2100 et seq.) of Title 46.2;
    31. The Chairman of the Senate Committee on the Judiciary or the Chairman of the House Committee for Courts of Justice for the purpose of determining if any person being considered for election to any judgeship has been convicted of a crime;
    32. Heads of state agencies in which positions have been identified as sensitive for the purpose of determining an individual's fitness for employment in positions designated as sensitive under Department of Human Resource Management policies developed pursuant to § 2.2-1201.1 ;
    33. The Office of the Attorney General, for all criminal justice activities otherwise permitted under subdivision A 1 and for purposes of performing duties required by the Civil Commitment of Sexually Violent Predators Act (§ 37.2-900 et seq.);
    34. Shipyards, to the extent permitted by federal law or regulation, engaged in the design, construction, overhaul, or repair of nuclear vessels for the United States Navy, including their subsidiary companies, for the conduct of investigations of applications for employment or for access to facilities, by contractors, leased laborers, and other visitors;
    35. Any employer of individuals whose employment requires that they enter the homes of others, for the purpose of screening individuals who apply for, are offered, or have accepted such employment;
    36. Public agencies when and as required by federal or state law to investigate (i) applicants as providers of adult foster care and home-based services or (ii) any individual with whom the agency is considering placing an adult on an emergency, temporary, or permanent basis pursuant to § 63.2-1601.1 , subject to the restriction that the data shall not be further disseminated by the agency to any party other than a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination, subject to limitations set out in subsection G;
    37. The Department of Medical Assistance Services, or its designee, for the purpose of screening individuals who, through contracts, subcontracts, or direct employment, volunteer, apply for, are offered, or have accepted a position related to the provision of transportation services to enrollees in the Medicaid Program or the Family Access to Medical Insurance Security (FAMIS) Program, or any other program administered by the Department of Medical Assistance Services;
    38. The State Corporation Commission for the purpose of investigating individuals who are current or proposed members, senior officers, directors, and principals of an applicant or person licensed under Chapter 16 (§ 6.2-1600 et seq.) or Chapter 19 (§ 6.2-1900 et seq.) of Title 6.2. Notwithstanding any other provision of law, if an application is denied based in whole or in part on information obtained from the Central Criminal Records Exchange pursuant to Chapter 16 or 19 of Title 6.2, the Commissioner of Financial Institutions or his designee may disclose such information to the applicant or its designee;
    39. The Department of Professional and Occupational Regulation for the purpose of investigating individuals for initial licensure pursuant to § 54.1-2106.1 ;
    40. The Department for Aging and Rehabilitative Services and the Department for the Blind and Vision Impaired for the purpose of evaluating an individual's fitness for various types of employment and for the purpose of delivering comprehensive vocational rehabilitation services pursuant to Article 11 (§ 51.5-170 et seq.) of Chapter 14 of Title 51.5 that will assist the individual in obtaining employment;
    41. Bail bondsmen, in accordance with the provisions of § 19.2-120 ;
    42. The State Treasurer for the purpose of determining whether a person receiving compensation for wrongful incarceration meets the conditions for continued compensation under § 8.01-195.12 ;
    43. The Department of Social Services and directors of local departments of social services for the purpose of screening individuals seeking to enter into a contract with the Department of Social Services or a local department of social services for the provision of child care services for which child care subsidy payments may be provided;
    44. The Department of Juvenile Justice to investigate any parent, guardian, or other adult members of a juvenile's household when completing a predispositional or postdispositional report required by § 16.1-273 or a Board of Juvenile Justice regulation promulgated pursuant to § 16.1-233;
    45. The State Corporation Commission, for the purpose of screening applicants for insurance licensure under Chapter 18 (§ 38.2-1800 et seq.) of Title 38.2; and
    46. Other entities as otherwise provided by law. Upon an ex parte motion of a defendant in a felony case and upon the showing that the records requested may be relevant to such case, the court shall enter an order requiring the Central Criminal Records Exchange to furnish the defendant, as soon as practicable, copies of any records of persons designated in the order on whom a report has been made under the provisions of this chapter. Notwithstanding any other provision of this chapter to the contrary, upon a written request sworn to before an officer authorized to take acknowledgments, the Central Criminal Records Exchange, or the criminal justice agency in cases of offenses not required to be reported to the Exchange, shall furnish a copy of conviction data covering the person named in the request to the person making the request; however, such person on whom the data is being obtained shall consent in writing, under oath, to the making of such request. A person receiving a copy of his own conviction data may utilize or further disseminate that data as he deems appropriate. In the event no conviction data is maintained on the data subject, the person making the request shall be furnished at his cost a certification to that effect.
  2. Use of criminal history record information disseminated to noncriminal justice agencies under this section shall be limited to the purposes for which it was given and may not be disseminated further.
  3. No criminal justice agency or person shall confirm the existence or nonexistence of criminal history record information for employment or licensing inquiries except as provided by law.
  4. Criminal justice agencies shall establish procedures to query the Central Criminal Records Exchange prior to dissemination of any criminal history record information on offenses required to be reported to the Central Criminal Records Exchange to ensure that the most up-to-date disposition data is being used. Inquiries of the Exchange shall be made prior to any dissemination except in those cases where time is of the essence and the normal response time of the Exchange would exceed the necessary time period. A criminal justice agency to whom a request has been made for the dissemination of criminal history record information that is required to be reported to the Central Criminal Records Exchange may direct the inquirer to the Central Criminal Records Exchange for such dissemination. Dissemination of information regarding offenses not required to be reported to the Exchange shall be made by the criminal justice agency maintaining the record as required by § 15.2-1722 .
  5. Criminal history information provided to licensed nursing homes, hospitals and to home care organizations pursuant to subdivision A 15 shall be limited to the convictions on file with the Exchange for any offense specified in §§ 32.1-126.01 , 32.1-126.02 , and 32.1-162.9:1 .
  6. Criminal history information provided to licensed assisted living facilities and licensed adult day care centers pursuant to subdivision A 16 shall be limited to the convictions on file with the Exchange for any offense specified in § 63.2-1720 .
  7. Criminal history information provided to public agencies pursuant to subdivision A 36 shall be limited to the convictions on file with the Exchange for any offense set forth in clause (i) of the definition of barrier crime in § 19.2-392.02 .
  8. Upon receipt of a written request from an employer or prospective employer, the Central Criminal Records Exchange, or the criminal justice agency in cases of offenses not required to be reported to the Exchange, shall furnish at the employer's cost a copy of conviction data covering the person named in the request to the employer or prospective employer making the request, provided that the person on whom the data is being obtained has consented in writing to the making of such request and has presented a photo-identification to the employer or prospective employer. In the event no conviction data is maintained on the person named in the request, the requesting employer or prospective employer shall be furnished at his cost a certification to that effect. The criminal history record search shall be conducted on forms provided by the Exchange.
  9. Nothing in this section shall preclude the dissemination of a person's criminal history record information pursuant to the rules of court for obtaining discovery or for review by the court.

    (Code 1950, § 19.1-19.2; 1966, c. 669; 1968, c. 537; 1970, c. 118; 1975, c. 495; 1976, c. 771; 1977, c. 626; 1978, c. 350; 1979, c. 480; 1981, c. 207; 1985, c. 360; 1987, cc. 130, 131; 1988, c. 851; 1989, c. 544; 1990, c. 766; 1991, c. 342; 1992, cc. 422, 641, 718, 746, 791, 844; 1993, cc. 48, 313, 348; 1994, cc. 34, 670, 700, 830; 1995, cc. 409, 645, 731, 781, 809; 1996, cc. 428, 432, 747, 881, 927, 944; 1997, cc. 169, 177, 606, 691, 721, 743, 796, 895; 1998, cc. 113, 405, 445, 882; 1999, cc. 383, 685; 2001, cc. 552, 582; 2002, cc. 370, 587, 606; 2003, c. 731; 2005, cc. 149, 914, 928; 2006, cc. 257, 277, 644; 2007, cc. 12, 361, 495, 572; 2008, cc. 387, 689, 863; 2009, cc. 667, 813, 840; 2010, cc. 189, 340, 406, 456, 524, 563, 862; 2011, cc. 432, 449; 2012, cc. 40, 189, 386, 476, 507, 803, 835; 2013, cc. 165, 176, 261, 407, 491, 582; 2014, cc. 225, 454; 2015, cc. 38, 343, 540, 730, 758, 770; 2016, cc. 454, 554, 574; 2017, cc. 421, 431, 809; 2018, c. 49; 2019, c. 675; 2020, cc. 2, 529, 860, 861, 1197, 1198, 1248, 1250; 2021, Sp. Sess. I, cc. 463, 475.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 19.2-389 .

Cross references. - As to Criminal Justice Services Board regulations and procedures for the interstate dissemination of criminal history record information, see § 9.1-128 .

As to Department of Criminal Justice Services licensing, certification, and registration requirements for Private Security Services Businesses, see § 9.1-139 .

As to background checks required for certain employees of localities, see § 15.2-1503.1 .

As to applicant preemployment information in localities, see § 15.2-1505.1 .

As to requirement of a search of the central registry maintained pursuant to § 63.2-1515 and a criminal records check as provided in subdivision A 11 of § 19.2-389 for employees or volunteers of a child day center that is exempt from licensure pursuant to § 63.2-1716 , see § 63.2-1724 .

Editor's note. - Acts 1990, c. 766, cl. 2 repeals cl. 2, c. 851 of Acts 1988, which provided for the expiration of the 1988 act.

Acts 2020, cc. 860 and 861, cl. 3 provides: "That the provisions of the first and second enactments of this act shall become effective on July 1, 2021, except that § 22.1-289.04 of the Code of Virginia, as created by this act, shall become effective in due course."

Acts 2020, c. 1167, c. 3 provides: "That the provisions of this act shall become effective in due course, unless the amendments to Rule 3A:11 and 3A:12 of the Rules of Virginia Supreme Court adopted on September 5, 2018, become effective on July 1, 2020." At the time of publication, the amendments to Rules 3A:11 and 3A:12 of the Supreme Court of Virginia appeared likely to take effect July 1, 2020, preventing this act from taking effect.

Acts 2020, cc. 1198 and 1250, cl. 2, provides: "That the provisions of the first enactment of this act shall become effective on July 1, 2021."

At the direction of the Code Commission, Acts 1994, c. 700, which amended this section, was not given effect due to a conflict. The amendment would have conflicted with the amendment to this section in Acts 1994, c. 830.

Acts 2005, c. 175, amended subdivision A 11 by adding clauses (vi) and (vii) as follows: "(vi) a council of Girl Scouts of the USA that serves Girl Scout troops in Virginia; or (vii) a council of Boy Scouts of America that serves Boy Scout troops in Virginia." The amendments were contingent on funding pursuant to Acts 2005, c. 175, cl. 2. The funding was not provided, so subdivision A 11 is set out above without the amendments by c. 175 at the direction of the Virginia Code Commission.

Acts 2006, c. 644, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

At the direction of the Virginia Code Commission, subdivision A 39 as added by Acts 2010, c. 862 was renumbered as subdivision A 40. In addition, Title 6.2 references in subdivision A 38 were substituted for Title 6.1 references to conform to Acts 2010, c. 794, effective October 1, 2010.

Acts 2014, c. 225, cl. 2 provides: "That wherever in the Code of Virginia the terms "State Lottery Department," "State Lottery Fund," or "State Lottery Board" are used, they shall be deemed to mean the "Virginia Lottery," the "Virginia Lottery Fund," and the "Virginia Lottery Board," respectively." In subdivision A 14, "Virginia Lottery Law" was substituted for "State Lottery Law" at the direction of the Virginia Code Commission.

References in this section were updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: "That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019."

At the direction of the Virginia Code Commission, "23.1-805" was substituted for "23-9.2:10" to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

At the direction of the Virginia Code Commission, "Public institutions of higher education and nonprofit private institutions of higher education" was substituted for "Public and nonprofit private colleges and universities" in subdivision A 24 to conform to Acts 2016, c. 588.

Acts 2019, c. 675, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2021."

Acts 2020, c. 1167, cl. 3 provides: "That the provisions of this act shall become effective in due course, unless the amendments to Rule 3A:11 and 3A:12 of the Rules of Virginia Supreme Court adopted on September 5, 2018, become effective on July 1, 2020." The amendments to Rules 3A:11 and 3A:12 of the Supreme Court of Virginia took effect July 1, 2020, preventing this act from taking effect.

The Virginia Code Commission authorized the substitution of "the Chairman of the Senate Committee on the Judiciary or the Chairman of the House Committee for Courts of Justice" for "the Chairmen of the Committees for Courts of Justice of the Senate or the House of Delegates." March 10, 2021.

The 1999 amendments. - The 1999 amendment by c. 383, in subsection A 11, deleted "or" preceding clause (iii) designation, and added "or (iv) with any affiliate of Prevent Child Abuse, Virginia."

The 1999 amendment by c. 685 deleted "and" following "shall be released" in subdivision A 27, added present subdivision A 28, and redesignated former subdivision A 28 as subdivision A 29.

The 2001 amendments. - The 2001 amendment by c. 552, in subsection A, deleted "and" at the end of subdivision 28, added subdivision 29, and redesignated former subdivision 29 as 30 (now 31).

The 2001 amendment by c. 582, in subsection A, deleted "and" at the end of subdivision 28, added present subdivision 30, and redesignated former subdivision 29 as 30 (now 31).

The 2002 amendments. - The 2002 amendment by c. 370, in subdivision A 11, inserted "with" preceding clause (i), deleted "with" following clauses (i) through (iv), and added clause (v).

The 2002 amendments by cc. 587 and 606 are identical, and substituted "that" for "which" in subdivisions A 2, A 4 and A 5; in subdivision A 8, inserted the clause "(i)" designation and inserted clause (ii); substituted "subdivision 15 of subsection A" for "subdivision A 15" in subsection E; and substituted "subdivision 16 of subsection A" for "subdivision A 16" in subsection F.

The 2003 amendments. - The 2003 amendment by c. 731 substituted "30 days" for "thirty days" at the end of subdivision A 1, deleted "and" at the end of subdivision A 31, added present subdivision A 32, and redesignated former substituted A 31 as present substituted A 32.

The 2005 amendments. - The 2005 amendment by c. 149 added clause (vi) in subdivision A 11 and made minor stylistic changes.

The 2005 amendment by c. 914, effective April 6, 2005, added subdivision A 32 and made a related change; and made a minor stylistic change.

The 2005 amendment by c. 928 substituted "or" for "and/or" in subdivision A 2; substituted "through" for "to" in subdivision A 12; substituted "religious" for "parochial" in subdivision A 23; and made a minor stylistic change.

The 2006 amendments. - The 2006 amendment by c. 257 inserted subdivision A 33, and redesignated the remaining subdivision accordingly.

The 2006 amendment by c. 277 inserted subdivision A 34 and redesignated the remaining subdivision accordingly.

The 2006 amendment by c. 644 added the language beginning "and the Department of Charitable Gaming" to the end of subdivision A 14.

The 2007 amendments. - The 2007 amendment by c. 12 deleted "and" at the end of subdivision A 34; added subdivision A 35 [now A 36]; and redesignated the remaining subsection accordingly.

The 2007 amendment by c. 361 added subsection G [now H] and made minor stylistic changes.

The 2007 amendment by c. 495, in subdivision A 8, substituted "authorized or" for "and as," inserted "and the adult members of that individual's household," "or from whom the agency is considering removing a child due to abuse or neglect" and "and 63.2-1505 " and deleted "by the agency" following "disseminated" and "for such further dissemination" from the end.

The 2007 amendment by c. 572, in subsection A, added subdivision A 35 and redesignated former subdivision A 35 as present subdivision A 36 [now A 37]; and added subsection G.

The 2008 amendments. - The 2008 amendments by cc. 387 and 689 are identical, and substituted "Agriculture and Consumer Services" for "Charitable Gaming" in subdivision A 14.

The 2008 amendment by c. 863 deleted "and" at the end of subdivision A 36; inserted subdivision A 37 and redesignated former subdivision A 37 as subdivision A 38.

The 2009 amendments. - The 2009 amendment by c. 667 inserted subdivision A 38 and redesignated former subdivision A 38 as subdivision A 39 and made a related change.

The 2009 amendments by cc. 813 and 840 are identical, and substituted "Commissioner of Behavioral Health and Developmental Services" for "Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services" in subdivision A 19 and "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in subdivisions A 21, A 22, and A 28.

The 2010 amendments. - The 2010 amendments by cc. 189 and 563 are nearly identical, and in subdivision A 7, inserted "public transportation companies owned, operated or controlled by any political subdivision, and any public service corporation that operates a public transit system owned by a local government" and deleted "public" following "applicants for"; and added subdivision A 7a.

The 2010 amendments by cc. 340 and 406 are identical, and deleted "19.2-176, 19.2-177.1 ," following "19.2-169.6" in subdivision A 19.

The 2010 amendments by cc. 456 and 524 are identical, and redesignated former subdivisions A 25 through A 39 as subdivisions A 26 through A 40, respectively; added subdivision A 25; in subsection E, substituted "subdivision A 15" for "subdivision 15 of subsection A"; in subsection F, substituted "subdivision A 16" for "subdivision 16 of subsection A"; and in subsection G, substituted "subdivision A 36" for "subdivision 35 of subsection A."

The 2010 amendment by c. 862 added subdivision A 39, made a related change, and redesignated former subdivision A 39 as subdivision A 40.

The 2011 amendments. - The 2011 amendments by cc. 432 and 449 are nearly identical, and added subdivision A 40 and redesignated the remaining subdivisions accordingly.

The 2012 amendments. - The 2012 amendment by c. 40 added subdivision A 42, redesignated former subdivision A 42 as A 43, and made a related change.

The 2012 amendment by c. 189 substituted " §§ 63.2-1719 , 63.2-1720 , and 63.2-1721 " for " §§ 63.2-1719 through 63.2-1721 " in subdivision A 12, and rewrote subdivision A 38.

The 2012 amendment by c. 386 substituted "pursuant to §§ 63.2-1719 , 63.2-1720 , and 63.2-1721 " for "pursuant to §§ 63.2-1719 through 63.2-1721 " in subdivision A 12; and in subdivision A 25, inserted "or by a private nonprofit institution of higher education" and added the language beginning "however, no member of a threat assessment team" at the end.

The 2012 amendments by cc. 476 and 507 are identical, and substituted " §§ 63.2-1719 , 63.2-1720 , and 63.2-1721 ," for " §§ 63.2-1719 through 63.2-1721 ," in subdivision A 12; and in subdivision A 29, substituted "direct care position" for "direct consumer care position," "his fitness" for "their fitness," and "individuals with mental illness, intellectual disability, or substance abuse" for "persons with mental illness, mental retardation and substance abuse."

The 2012 amendments by cc. 803 and 835, cl. 59, are identical, and in subdivision A 28, deleted "of the Department" following "Commissioner"; and in subdivision A 40, substituted "Department for Aging and Rehabilitative Services" for "Department of Rehabilitative Services" and "Article 11 ( § 51.5-170 et seq.) of Chapter 14 of Title 51.5" for "Chapter 5 ( § 51.5-15 et seq.) of Title 51.5."

The 2013 amendments. - The 2013 amendments by cc. 165 and 582 are identical, and inserted "and holders of" preceding "a motor carrier certificate" in subdivision A 30.

The 2013 amendments by cc. 176 and 407 are identical, and deleted "or volunteer rescue squad" from the end of clause (ii) in subdivision A 11; and substituted "day care" for "day-care" in two places in subdivisions A 12 and A 16 and in subsection F.

The 2013 amendment by c. 261 added subdivision A 43, redesignated former subdivision A 43 as A 44, and made a related change.

The 2013 amendment by c. 491, in subdivision A 18, inserted "and general registrars appointed pursuant to § 24.2-110 " and substituted "voter registration" for "registered voters."

The 2014 amendments. - The 2014 amendment by c. 225 substituted "Virginia Lottery" for "State Lottery Department" in subdivision A 14.

The 2014 amendment by c. 454, in subdivision A 38, inserted "or Chapter 19 ( § 6.2-1900 et seq.)" and substituted "Chapter 16 or 19 of Title 6.2" for " § 6.2-1605 ."

The 2015 amendments. - The 2015 amendments by cc. 38 and 730, effective January 15, 2018, are identical, and substituted "Virginia Alcoholic Beverage Control Authority" for "Alcoholic Beverage Control Board" in subdivision A 17.

The 2015 amendment by c. 343 added subdivision A 44; redesignated former subdivision A 44 as subdivision A 45; and made related changes.

The 2015 amendment by c. 540 added the second sentence of subdivision A 1.

The 2015 amendments by cc. 758 and 770 are identical, and in subdivision A 12, deleted "care" following "family day" twice, and inserted "63.2-1720.1" and "63.2-1721.1"; in subdivision A 16, substituted "Licensed assisted living facilities" for "Licensed homes for adults, licensed district homes for adults" and "in licensed assisted living facilities and licensed" for "in licensed homes for adults pursuant to § 63.2-1720 , in licensed district homes for adults pursuant to § 63.1-189.1, and in"; and in subsection F, deleted "licensed district homes for adults" following "facilities" and "63.1-189.1 or" preceding "63.2-1720"; and made minor stylistic changes.

The 2016 amendments. - The 2016 amendment by c. 454, in subdivision A 23, deleted "or religious" preceding "elementary" and substituted "pursuant to § 22.1-19" for "by a statewide accrediting organization recognized, prior to January 1, 1996, by the State Board of Education."

The 2016 amendments by c. 554, in subdivision 25, inserted "by a local school board pursuant to § 22.1-79.4."

The 2016 amendment by c. 574, inserted "approval as a sponsored residential service provider, or permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver" or similar language in subdivisions A 26, 27, and 29.

The 2017 amendments. - The 2017 amendments by cc. 421 and 431 are identical, effective March 13, 2017, and deleted the second sentence in subdivision A 32, which formerly read: "Dissemination of criminal history record information to the agencies shall be limited to those positions generally described as directly responsible for the health, safety and welfare of the general populace or protection of critical infrastructures."

The 2017 amendment by c. 809 substituted "set forth in clause (i) of the definition of barrier crime in § 19.2-392.02 " for "specified in § 63.2-1719 " in subsection G.

The 2018 amendments. - The 2018 amendment by c. 49 added subsection I.

The 2019 amendments. - The 2019 amendment by c. 675, effective January 1, 2021, inserted subdivision A 45; and made related changes.

The 2020 amendments. - The 2020 amendments by cc. 2 and 529 are identical, and substituted "subdivisions 1, 2, 3, 4, and 6" for "subdivisions 1, 2, 3, and 5" in subdivision A 1.

The 2020 amendments by cc. 860 and 861, effective July 1, 2021, are identical, and in subdivision A 12, deleted "and other adults living in family day homes or homes approved by family day systems," following "caretakers" and substituted " §§ 63.2-1719 , 63.2-1720 , and 63.2-1721 " for " §§ 63.2-1719 , 63.2-1720 , 63.2-1720.1 , 63.2-1721 .1, and 63.2-1721.1 "; in subdivision A 43, substituted "Education or its agents or designees" once for "Social Services and directors of local departments of social services" and the other time for "Social Services or a local department of social services"; inserted subdivision A 46; redesignated existing provisions as subdivision A 47 and made stylistic changes.

The 2020 amendment by c. 1167 inserted "or Article 4.2 ( § 19.2-264.6 et seq.) of Chapter 15" in subsection I. For effective date, see Editor's note.

The 2020 amendment by cc. 1197 and 1248, are identical, and inserted "and casino gaming as set forth in Chapter 41 ( § 58.1-4100 et seq.) of Title 58.1," in A. 14.

The 2020 amendments by cc. 1198 and 1250, effective July 1, 2021, are identical, and in subdivision A 38 in the first sentence, inserted "or Chapter 26 ( § 6.2-2600 et seq.)" and in the last sentence, inserted "or 26" and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 463, effective July 1, 2021, in subdivision A 20, deleted former clause (i), which read: "assessments of habitual offenders under § 46.2-360," and redesignated former clauses (ii) and (iii) as clauses (i) and (ii).

The 2021 amendment by Sp. Sess. I, c. 475, effective July 1, 2021, inserted "or permission for any person under contract with the community services board to serve in a direct care position on behalf of the community services board" in subdivision A 26; substituted "or permission for any person under contract with the behavioral health authority to serve in a direct care position on behalf of the behavioral health authority" in subdivision A 27; inserted "or permission for any person under contract with the provider to serve in a direct care position" in subdivision A 29; substituted "Chairman of the Senate Committee on the Judiciary or the House Committee for Courts of Justice" for "chairmen of the Committees for Courts of Justice of the Senate or the House of Delegates" in subdivision A 31; and made a stylistic change.

Law review. - For 2007 annual survey article, "Labor and Employment Law," see 42 U. Rich. L. Rev. 489 (2007).

Michie's Jurisprudence. - For related discussion, see 11B M.J. Jury, § 17.

CASE NOTES

Commonwealth's attorney authorized to review criminal background records of prospective jurors. - Because the Office of the Commonwealth's attorney is a criminal justice agency, and because the "administration of justice" includes the prosecution of criminal cases, subdivision A 1 of this section authorizes the Commonwealth's attorney to review the criminal background records of prospective jurors. Salmon v. Commonwealth, 32 Va. App. 586, 529 S.E.2d 815, 2000 Va. App. LEXIS 428 (2000).

Harmless error in refusal to require production of records. - Defendant's convictions for first-degree murder and use of a firearm in the commission of a felony were proper because, although defendant contended that she should have been provided the adult records of several of the Commonwealth's witnesses pursuant to subdivision A 38 of § 19.2-389 , she failed to identify in the trial court or on appeal any prejudice allegedly flowing from the trial court's refusal to require production of those records; consequently, any error in such ruling was harmless as a matter of law. Thomas v. Commonwealth, 279 Va. 131 , 688 S.E.2d 220, 2010 Va. LEXIS 11, cert. denied, 131 S. Ct. 143, 178 L. Ed. 2d 8, 2010 U.S. LEXIS 6109 (U.S. 2010).

Applied in Wheeler v. Gilmore, 998 F. Supp. 666 (E.D. Va. 1998).

OPINIONS OF THE ATTORNEY GENERAL

A commissioner of accounts is not permitted access to criminal history records of delinquent fiduciaries through the Virginia Criminal Information Network, unless such records are released pursuant to a circuit court order or rule. See opinion of Attorney General to The Honorable Thomas D. Horne, Judge, Twentieth Judicial Circuit, 00-011 (4/8/02).

State Police may provide mental health information to FBI to determine a person's eligibility to possess, purchase, or transfer a firearm. - The Department of State Police has the authority to provide certain mental health information maintained in the Central Criminal Records Exchange to the Federal Bureau of Investigation, so long as it is: (i) kept confidential; and (ii) used only to determine a person's eligibility to possess, purchase or transfer a firearm. See opinion of Attorney General to Colonel W. Gerald Massengill, Superintendent, Department of State Police, 01-062 (4/4/02).

Access to criminal justice information by nonlaw-enforcement personnel. - Nonlaw-enforcement personnel, such as E-911 dispatchers, may access criminal justice information generated from VCIN/NCIC terminals, provided the county E-911 office and the proposed agreement between the county sheriff's office, the county board of supervisors, and the local E-911 office satisfy the requirements of this section, and, further, that such access is authorized by the State Police. See opinion of Attorney General to The Honorable Clarence E. Phillips, Member, House of Delegates, 02-065 (8/20/02).

Private, nonprofit institutions of higher education may require criminal background searches as a condition of employment and may request that candidates for admission consent to a criminal background check as a condition of matriculation. See opinion of Attorney General to The Honorable Phillip P. Puckett, Member, Senate of Virginia, 06-046 (8/8/06).

Duty of clerk of court when issuing concealed weapon permit. - When issuing a concealed weapon permit, the clerk of court has no duty to verify with the general district or the juvenile and domestic relations district court whether the applicant has any criminal charges or protective orders pending against him in those courts. The failure of a clerk to detect any existing protective orders or criminal charges does not constitute gross negligence, provided the clerk has followed the statutory requirements governing the issuance of a concealed weapon permit. See opinion of Attorney General to The Honorable Jack Kennedy, Clerk of the Circuit Court, Wise County and City of Norton, 11-018, 2011 Va. AG LEXIS 26 (5/13/11).

Disclosure of arrest photographs. - Local law-enforcement agencies must disclose adult arrestee photographs pursuant to a valid FOIA request if they are contained in a database maintained by the local law-enforcement agency, regardless of whether the defendant is still incarcerated or has been released, unless disclosing them will jeopardize a felony investigation. However, photographs may not be drawn from the Central Criminal Records Exchange for disclosure at any time to comply with a FOIA request. See opinion of Attorney General to The Honorable Jim O'Sullivan, Sheriff, City of Chesapeake, No. 14-063, 2015 Va. AG LEXIS 5 (2/5/15).

§ 19.2-389. (Effective January 1, 2022) Dissemination of criminal history record information.

  1. Criminal history record information shall be disseminated, whether directly or through an intermediary, only to:
    1. Authorized officers or employees of criminal justice agencies, as defined by § 9.1-101 , for purposes of the administration of criminal justice and the screening of an employment application or review of employment by a criminal justice agency with respect to its own employees or applicants, and dissemination to the Virginia Parole Board, pursuant to this subdivision, of such information on all state-responsible inmates for the purpose of making parole determinations pursuant to subdivisions 1, 2, 4, and 6 of § 53.1-136 shall include collective dissemination by electronic means every 30 days. For purposes of this subdivision, criminal history record information includes information sent to the Central Criminal Records Exchange pursuant to §§ 37.2-819 and 64.2-2014 when disseminated 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 the purposes of the administration of criminal justice;
    2. Such other individuals and agencies that require criminal history record information to implement a state or federal statute or executive order of the President of the United States or Governor that expressly refers to criminal conduct and contains requirements or exclusions expressly based upon such conduct, except that information concerning the arrest of an individual may not be disseminated to a noncriminal justice agency or individual if an interval of one year has elapsed from the date of the arrest and no disposition of the charge has been recorded and no active prosecution of the charge is pending;
    3. Individuals and agencies pursuant to a specific agreement with a criminal justice agency to provide services required for the administration of criminal justice pursuant to that agreement which shall specifically authorize access to data, limit the use of data to purposes for which given, and ensure the security and confidentiality of the data;
    4. Individuals and agencies for the express purpose of research, evaluative, or statistical activities pursuant to an agreement with a criminal justice agency that shall specifically authorize access to data, limit the use of data to research, evaluative, or statistical purposes, and ensure the confidentiality and security of the data;
    5. Agencies of state or federal government that are authorized by state or federal statute or executive order of the President of the United States or Governor to conduct investigations determining employment suitability or eligibility for security clearances allowing access to classified information;
    6. Individuals and agencies where authorized by court order or court rule;
    7. Agencies of any political subdivision of the Commonwealth, public transportation companies owned, operated or controlled by any political subdivision, and any public service corporation that operates a public transit system owned by a local government for the conduct of investigations of applicants for employment, permit, or license whenever, in the interest of public welfare or safety, it is necessary to determine under a duly enacted ordinance if the past criminal conduct of a person with a conviction record would be compatible with the nature of the employment, permit, or license under consideration; 7a. Commissions created pursuant to the Transportation District Act of 1964 (§ 33.2-1900 et seq.) of Title 33.2 and their contractors, for the conduct of investigations of individuals who have been offered a position of employment whenever, in the interest of public welfare or safety and as authorized in the Transportation District Act of 1964, it is necessary to determine if the past criminal conduct of a person with a conviction record would be compatible with the nature of the employment under consideration;
    8. Public or private agencies when authorized or required by federal or state law or interstate compact to investigate (i) applicants for foster or adoptive parenthood or (ii) any individual, and the adult members of that individual's household, with whom the agency is considering placing a child or from whom the agency is considering removing a child due to abuse or neglect, on an emergency, temporary, or permanent basis pursuant to §§ 63.2-901.1 and 63.2-1505 , subject to the restriction that the data shall not be further disseminated to any party other than a federal or state authority or court as may be required to comply with an express requirement of law;
    9. To the extent permitted by federal law or regulation, public service companies as defined in § 56-1, for the conduct of investigations of applicants for employment when such employment involves personal contact with the public or when past criminal conduct of an applicant would be incompatible with the nature of the employment under consideration;
    10. The appropriate authority for purposes of granting citizenship and for purposes of international travel, including, but not limited to, issuing visas and passports;
    11. A person requesting a copy of his own criminal history record information as defined in § 9.1-101 at his cost, except that criminal history record information shall be supplied at no charge to a person who has applied to be a volunteer with (i) a Virginia affiliate of Big Brothers•ig Sisters of America; (ii) a volunteer fire company; (iii) the Volunteer Emergency Families for Children; (iv) any affiliate of Prevent Child Abuse, Virginia; (v) any Virginia affiliate of Compeer; or (vi) any board member or any individual who has been offered membership on the board of a Crime Stoppers, Crime Solvers or Crime Line program as defined in § 15.2-1713.1 ;
    12. Administrators and board presidents of and applicants for licensure or registration as a child welfare agency as defined in § 63.2-100 for dissemination to the Commissioner of Social Services' representative pursuant to § 63.2-1702 for the conduct of investigations with respect to employees of and volunteers at such facilities, caretakers, and foster and adoptive parent applicants of private child-placing agencies, pursuant to §§ 63.2-1719 , 63.2-1720 , and 63.2-1721 , subject to the restriction that the data shall not be further disseminated by the facility or agency to any party other than the data subject, the Commissioner of Social Services' representative or a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination; however, nothing in this subdivision shall be construed to prohibit the Commissioner of Social Services' representative from issuing written certifications regarding the results of a background check that was conducted before July 1, 2021, in accordance with subsection J of § 22.1-289.035 or § 22.1-289.039;
    13. The school boards of the Commonwealth for the purpose of screening individuals who are offered or who accept public school employment and those current school board employees for whom a report of arrest has been made pursuant to § 19.2-83.1 ;
    14. The Virginia Lottery for the conduct of investigations as set forth in the Virginia Lottery Law (§ 58.1-4000 et seq.) and casino gaming as set forth in Chapter 41 (§ 58.1-4100 et seq.) of Title 58.1, and the Department of Agriculture and Consumer Services for the conduct of investigations as set forth in Article 1.1:1 (§ 18.2-340.15 et seq.) of Chapter 8 of Title 18.2;
    15. Licensed nursing homes, hospitals and home care organizations for the conduct of investigations of applicants for compensated employment in licensed nursing homes pursuant to § 32.1-126.01 , hospital pharmacies pursuant to § 32.1-126.02 , and home care organizations pursuant to § 32.1-162.9:1 , subject to the limitations set out in subsection E;
    16. Licensed assisted living facilities and licensed adult day care centers for the conduct of investigations of applicants for compensated employment in licensed assisted living facilities and licensed adult day care centers pursuant to § 63.2-1720 , subject to the limitations set out in subsection F;
    17. The Virginia Alcoholic Beverage Control Authority for the conduct of investigations as set forth in § 4.1-103.1 ;
    18. The State Board of Elections and authorized officers and employees thereof and general registrars appointed pursuant to § 24.2-110 in the course of conducting necessary investigations with respect to voter registration, limited to any record of felony convictions;
    19. The Commissioner of Behavioral Health and Developmental Services for those individuals who are committed to the custody of the Commissioner pursuant to §§ 19.2-169.2 , 19.2-169.6 , 19.2-182.2 , 19.2-182.3 , 19.2-182.8 , and 19.2-182.9 for the purpose of placement, evaluation, and treatment planning;
    20. Any alcohol safety action program certified by the Commission on the Virginia Alcohol Safety Action Program for (i) interventions with first offenders under § 18.2-251 or (ii) services to offenders under § 18.2-51.4 , 18.2-266 , or 18.2-266 .1;
    21. Residential facilities for juveniles regulated or operated by the Department of Social Services, the Department of Education, or the Department of Behavioral Health and Developmental Services for the purpose of determining applicants' fitness for employment or for providing volunteer or contractual services;
    22. The Department of Behavioral Health and Developmental Services and facilities operated by the Department for the purpose of determining an individual's fitness for employment pursuant to departmental instructions;
    23. Pursuant to § 22.1-296.3, the governing boards or administrators of private elementary or secondary schools which are accredited pursuant to § 22.1-19 or a private organization coordinating such records information on behalf of such governing boards or administrators pursuant to a written agreement with the Department of State Police;
    24. Public institutions of higher education and nonprofit private institutions of higher education for the purpose of screening individuals who are offered or accept employment;
    25. Members of a threat assessment team established by a local 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, for the purpose of assessing or intervening with an individual whose behavior may present a threat to safety; however, no member of a threat assessment team shall redisclose any criminal history 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;
    26. Executive directors of community services boards or the personnel director serving the community services board for the purpose of determining an individual's fitness for employment, approval as a sponsored residential service provider, permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permission for any person under contract with the community services board to serve in a direct care position on behalf of the community services board pursuant to §§ 37.2-506 and 37.2-607 ;
    27. Executive directors of behavioral health authorities as defined in § 37.2-600 for the purpose of determining an individual's fitness for employment, approval as a sponsored residential service provider, permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permission for any person under contract with the behavioral health authority to serve in a direct care position on behalf of the behavioral health authority pursuant to §§ 37.2-506 and 37.2-607 ;
    28. The Commissioner of Social Services for the purpose of locating persons who owe child support or who are alleged in a pending paternity proceeding to be a putative father, provided that only the name, address, demographics and social security number of the data subject shall be released;
    29. Authorized officers or directors of agencies licensed pursuant to Article 2 (§ 37.2-403 et seq.) of Chapter 4 of Title 37.2 by the Department of Behavioral Health and Developmental Services for the purpose of determining if any applicant who accepts employment in any direct care position or requests approval as a sponsored residential service provider, permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permission for any person under contract with the provider to serve in a direct care position has been convicted of a crime that affects his fitness to have responsibility for the safety and well-being of individuals with mental illness, intellectual disability, or substance abuse pursuant to §§ 37.2-416 , 37.2-506 , and 37.2-607;
    30. The Commissioner of the Department of Motor Vehicles, for the purpose of evaluating applicants for and holders of a motor carrier certificate or license subject to the provisions of Chapters 20 (§ 46.2-2000 et seq.) and 21 (§ 46.2-2100 et seq.) of Title 46.2;
    31. The Chairman of the Senate Committee on the Judiciary or the Chairman of the House Committee for Courts of Justice for the purpose of determining if any person being considered for election to any judgeship has been convicted of a crime;
    32. Heads of state agencies in which positions have been identified as sensitive for the purpose of determining an individual's fitness for employment in positions designated as sensitive under Department of Human Resource Management policies developed pursuant to § 2.2-1201.1 ;
    33. The Office of the Attorney General, for all criminal justice activities otherwise permitted under subdivision A 1 and for purposes of performing duties required by the Civil Commitment of Sexually Violent Predators Act (§ 37.2-900 et seq.);
    34. Shipyards, to the extent permitted by federal law or regulation, engaged in the design, construction, overhaul, or repair of nuclear vessels for the United States Navy, including their subsidiary companies, for the conduct of investigations of applications for employment or for access to facilities, by contractors, leased laborers, and other visitors;
    35. Any employer of individuals whose employment requires that they enter the homes of others, for the purpose of screening individuals who apply for, are offered, or have accepted such employment;
    36. Public agencies when and as required by federal or state law to investigate (i) applicants as providers of adult foster care and home-based services or (ii) any individual with whom the agency is considering placing an adult on an emergency, temporary, or permanent basis pursuant to § 63.2-1601.1 , subject to the restriction that the data shall not be further disseminated by the agency to any party other than a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination, subject to limitations set out in subsection G;
    37. The Department of Medical Assistance Services, or its designee, for the purpose of screening individuals who, through contracts, subcontracts, or direct employment, volunteer, apply for, are offered, or have accepted a position related to the provision of transportation services to enrollees in the Medicaid Program or the Family Access to Medical Insurance Security (FAMIS) Program, or any other program administered by the Department of Medical Assistance Services;
    38. The State Corporation Commission for the purpose of investigating individuals who are current or proposed members, senior officers, directors, and principals of an applicant or person licensed under Chapter 16 (§ 6.2-1600 et seq.), Chapter 19 (§ 6.2-1900 et seq.), or Chapter 26 (§ 6.2-2600 et seq.) of Title 6.2. Notwithstanding any other provision of law, if an application is denied based in whole or in part on information obtained from the Central Criminal Records Exchange pursuant to Chapter 16, 19, or 26 of Title 6.2, the Commissioner of Financial Institutions or his designee may disclose such information to the applicant or its designee;
    39. The Department of Professional and Occupational Regulation for the purpose of investigating individuals for initial licensure pursuant to § 54.1-2106.1 ;
    40. The Department for Aging and Rehabilitative Services and the Department for the Blind and Vision Impaired for the purpose of evaluating an individual's fitness for various types of employment and for the purpose of delivering comprehensive vocational rehabilitation services pursuant to Article 11 (§ 51.5-170 et seq.) of Chapter 14 of Title 51.5 that will assist the individual in obtaining employment;
    41. Bail bondsmen, in accordance with the provisions of § 19.2-120 ;
    42. The State Treasurer for the purpose of determining whether a person receiving compensation for wrongful incarceration meets the conditions for continued compensation under § 8.01-195.12 ;
    43. The Department of Education or its agents or designees for the purpose of screening individuals seeking to enter into a contract with the Department of Education or its agents or designees for the provision of child care services for which child care subsidy payments may be provided;
    44. The Department of Juvenile Justice to investigate any parent, guardian, or other adult members of a juvenile's household when completing a predispositional or postdispositional report required by § 16.1-273 or a Board of Juvenile Justice regulation promulgated pursuant to § 16.1-233;
    45. The State Corporation Commission, for the purpose of screening applicants for insurance licensure under Chapter 18 (§ 38.2-1800 et seq.) of Title 38.2;
    46. Administrators and board presidents of and applicants for licensure or registration as a child day program or family day system, as such terms are defined in § 22.1-289.02, for dissemination to the Superintendent of Public Instruction's representative pursuant to § 22.1-289.013 for the conduct of investigations with respect to employees of and volunteers at such facilities pursuant to §§ 22.1-289.034 through 22.1-289.037, subject to the restriction that the data shall not be further disseminated by the facility or agency to any party other than the data subject, the Superintendent of Public Instruction's representative, or a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination; however, nothing in this subdivision shall be construed to prohibit the Superintendent of Public Instruction's representative from issuing written certifications regarding the results of prior background checks in accordance with subsection J of § 22.1-289.035 or § 22.1-289.039; and
    47. Other entities as otherwise provided by law. Upon an ex parte motion of a defendant in a felony case and upon the showing that the records requested may be relevant to such case, the court shall enter an order requiring the Central Criminal Records Exchange to furnish the defendant, as soon as practicable, copies of any records of persons designated in the order on whom a report has been made under the provisions of this chapter. Notwithstanding any other provision of this chapter to the contrary, upon a written request sworn to before an officer authorized to take acknowledgments, the Central Criminal Records Exchange, or the criminal justice agency in cases of offenses not required to be reported to the Exchange, shall furnish a copy of conviction data covering the person named in the request to the person making the request; however, such person on whom the data is being obtained shall consent in writing, under oath, to the making of such request. A person receiving a copy of his own conviction data may utilize or further disseminate that data as he deems appropriate. In the event no conviction data is maintained on the data subject, the person making the request shall be furnished at his cost a certification to that effect.
  2. Use of criminal history record information disseminated to noncriminal justice agencies under this section shall be limited to the purposes for which it was given and may not be disseminated further, except as otherwise provided in subdivision A 46.
  3. No criminal justice agency or person shall confirm the existence or nonexistence of criminal history record information for employment or licensing inquiries except as provided by law.
  4. Criminal justice agencies shall establish procedures to query the Central Criminal Records Exchange prior to dissemination of any criminal history record information on offenses required to be reported to the Central Criminal Records Exchange to ensure that the most up-to-date disposition data is being used. Inquiries of the Exchange shall be made prior to any dissemination except in those cases where time is of the essence and the normal response time of the Exchange would exceed the necessary time period. A criminal justice agency to whom a request has been made for the dissemination of criminal history record information that is required to be reported to the Central Criminal Records Exchange may direct the inquirer to the Central Criminal Records Exchange for such dissemination. Dissemination of information regarding offenses not required to be reported to the Exchange shall be made by the criminal justice agency maintaining the record as required by § 15.2-1722 .
  5. Criminal history information provided to licensed nursing homes, hospitals and to home care organizations pursuant to subdivision A 15 shall be limited to the convictions on file with the Exchange for any offense specified in §§ 32.1-126.01 , 32.1-126.02 , and 32.1-162.9:1 .
  6. Criminal history information provided to licensed assisted living facilities and licensed adult day care centers pursuant to subdivision A 16 shall be limited to the convictions on file with the Exchange for any offense specified in § 63.2-1720 .
  7. Criminal history information provided to public agencies pursuant to subdivision A 36 shall be limited to the convictions on file with the Exchange for any offense set forth in clause (i) of the definition of barrier crime in § 19.2-392.02 .
  8. Upon receipt of a written request from an employer or prospective employer, the Central Criminal Records Exchange, or the criminal justice agency in cases of offenses not required to be reported to the Exchange, shall furnish at the employer's cost a copy of conviction data covering the person named in the request to the employer or prospective employer making the request, provided that the person on whom the data is being obtained has consented in writing to the making of such request and has presented a photo-identification to the employer or prospective employer. In the event no conviction data is maintained on the person named in the request, the requesting employer or prospective employer shall be furnished at his cost a certification to that effect. The criminal history record search shall be conducted on forms provided by the Exchange.
  9. Nothing in this section shall preclude the dissemination of a person's criminal history record information pursuant to the rules of court for obtaining discovery or for review by the court.

    (Code 1950, § 19.1-19.2; 1966, c. 669; 1968, c. 537; 1970, c. 118; 1975, c. 495; 1976, c. 771; 1977, c. 626; 1978, c. 350; 1979, c. 480; 1981, c. 207; 1985, c. 360; 1987, cc. 130, 131; 1988, c. 851; 1989, c. 544; 1990, c. 766; 1991, c. 342; 1992, cc. 422, 641, 718, 746, 791, 844; 1993, cc. 48, 313, 348; 1994, cc. 34, 670, 700, 830; 1995, cc. 409, 645, 731, 781, 809; 1996, cc. 428, 432, 747, 881, 927, 944; 1997, cc. 169, 177, 606, 691, 721, 743, 796, 895; 1998, cc. 113, 405, 445, 882; 1999, cc. 383, 685; 2001, cc. 552, 582; 2002, cc. 370, 587, 606; 2003, c. 731; 2005, cc. 149, 914, 928; 2006, cc. 257, 277, 644; 2007, cc. 12, 361, 495, 572; 2008, cc. 387, 689, 863; 2009, cc. 667, 813, 840; 2010, cc. 189, 340, 406, 456, 524, 563, 862; 2011, cc. 432, 449; 2012, cc. 40, 189, 386, 476, 507, 803, 835; 2013, cc. 165, 176, 261, 407, 491, 582; 2014, cc. 225, 454; 2015, cc. 38, 343, 540, 730, 758, 770; 2016, cc. 454, 554, 574; 2017, cc. 421, 431, 809; 2018, c. 49; 2019, c. 675; 2020, cc. 2, 529, 860, 861, 1197, 1198, 1248, 1250; 2021, Sp. Sess. I, cc. 251, 463, 475, 510.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 19.2-389 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 251 and 510, cl. 2 provides: "That the provisions of §§ 19.2-389 , as it is currently effective, 63.2-1720.1 , and 63.2-1724 of the Code of Virginia, as amended by this act, (i) shall not become effective unless the provisions of Chapter 14.1 ( § 22.1-289.02 et seq.) of Title 22.1 of the Code of Virginia, except for § 22.1-289.04 of the Code of Virginia, become effective on a date subsequent to July 1, 2021, and (ii) shall expire upon the effective date of such provisions of Chapter 14.1 of Title 22.1 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 251 and 510, cl. 3 provides: "That the provisions of §§ 19.2-389 , as it shall become effective, 22.1-289.035, as it shall become effective, and 22.1-289.039, as it shall become effective, of the Code of Virginia, as amended by this act, shall become effective on January 1, 2022."

The Virginia Code Commission authorized the substitution of "the Chairman of the Senate Committee on the Judiciary or the Chairman of the House Committee for Courts of Justice" for "the Chairmen of the Committees for Courts of Justice of the Senate or the House of Delegates." March 10, 2021.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, cc. 251 and 510, effective January 1, 2022, are identical, and added "however, nothing in this subdivision shall be construed to prohibit the Commissioner of Social Services' representative from issuing written certifications regarding the results of a background check that was conducted before July 1, 2021, in accordance with subsection J of § 22.1-289.035 or § 22.1-289.039" in subdivision A 12, inserted "however, nothing in this subdivision shall be construed to prohibit the Superintendent of Public Instruction's representative from issuing written certifications regarding the results of prior background checks in accordance with subsection J of § 22.1-289.035 or § 22.1-289.039" in subdivision A 46; and added "except as otherwise provided in subdivision A 46" in subsection B.

§ 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 § 19.2-299 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 .

(1993, cc. 468, 926; 1996, cc. 755, 870, 914; 2002, c. 701; 2003, cc. 107, 432; 2005, cc. 868, 881, 914; 2006, c. 502; 2007, c. 133; 2010, cc. 456, 524; 2011, c. 622; 2012, c. 386; 2016, c. 554; 2018, cc. 143, 148; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 1996, cc. 755 and 914, cl. 7, provide: "[t]hat the provisions of this act shall apply to offenses committed and to records created and proceedings held with respect to those offenses on or after July 1, 1996."

At the direction of the Virginia Code Commission, "23.1-805" was substituted for "23-9.2:10" to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendment by c. 701 substituted "pretrial investigation report prepared by a local pretrial services agency established pursuant to Article 5 ( § 19.2-152.2 et seq.) of Chapter 9 of this title, a presentence" for "pre-sentence" in clause (ii), and inserted "local community-based probation programs. . . local-responsible offenders and" in clause (iii).

The 2003 amendments. - The 2003 amendment by c. 107 added clause (vi).

The 2003 amendment by c. 432 added present clause (vii).

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "Department" for "Division" in clause (vii) and made minor stylistic changes.

The 2005 amendment by c. 914, effective April 6, 2005, added clause (viii) and made related changes.

The 2006 amendments. - The 2006 amendment by c. 502 added clause (ix) and made related changes.

The 2007 amendments. - The 2007 amendment by c. 133 substituted "community-based probation services agencies" for "community-based probation programs" in clause (iii).

The 2010 amendments. - The 2010 amendment by c. 456 deleted "of this title" following "of Chapter 9," added clause (x), and made a related change.

The 2010 amendment by c. 524 added "(x) to members of a threat assessment team established by a public institution of higher education pursuant to § 23-9.2:10, to aid in the assessment or intervention with individuals whose behavior may present a threat to safety" and made a related change.

The 2011 amendments. - The 2011 amendment by c. 622 added clause (xi) and made a related change.

The 2012 amendments. - The 2012 amendment by c. 386, in clause (x), inserted "or by a private nonprofit institution of higher education" and "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."

The 2018 amendments. - The 2018 amendments by cc. 143 and 148 are identical, and added clauses (xii) and (xiii) and made related changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "19.2-264.5 or" preceding "19.2-299" in clause (ii) of subsection A.

Law review. - For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

§ 19.2-389.2. Background checks of applicants of the Metropolitan Washington Airports Authority.

The police department of the Metropolitan Washington Airports Authority as established in Chapter 10 (§ 5.1-152 et seq.) of Title 5.1 may require an applicant, upon conditional offer of employment with the Authority, to submit to fingerprinting and to provide personal descriptive information to be forwarded along with the applicant's fingerprints through the Central Criminal Records Exchange and the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding such applicant.

The Central Criminal Records Exchange, upon receipt of an applicant's record or notification that no record exists, shall make a report to the chief of the police department of the Authority or his designee, provided the designee is an employee of the police department of the Authority. In determining whether a criminal conviction directly relates to a position, the Authority shall consider the following criteria: (i) the nature and seriousness of the crime; (ii) the relationship of the crime to the work to be performed in the position applied for; (iii) the extent to which the position applied for might offer an opportunity to engage in further criminal activity of the same type as that in which the applicant had been involved; (iv) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the position being sought; (v) the extent and nature of the applicant's past criminal activity; (vi) the age of the applicant at the time of the commission of the crime; (vii) the amount of time that has elapsed since the applicant's last involvement in the commission of a crime; (viii) the conduct and work activity of the applicant prior to and following the criminal activity; and (ix) evidence of the applicant's rehabilitation or rehabilitative effort while incarcerated or following release.

If an applicant is denied employment because of information appearing in his criminal history record, the Authority shall notify the applicant that information obtained from the Central Criminal Records Exchange contributed to such denial. The criminal history record information obtained pursuant to this section shall be used solely to determine an applicant's eligibility for employment by the Authority and access to restricted areas of Ronald Reagan Washington National Airport and Washington Dulles International Airport in compliance with 49 U.S.C. § 44936 and shall otherwise be confidential.

(2014, c. 57.)

Cross references. - As to the Metropolitan Washington Airports Authority, see § 5.1-158 .

§ 19.2-389.3. (For contingent expiration dates see Acts 2021, Sp. Sess. I, cc. 524, 542, 550, and 551) Marijuana possession; limits on dissemination of criminal history record information; prohibited practices by employers, educational institutions, and state and local governments; penalty.

  1. Records relating to the arrest, criminal charge, or conviction of a person for a misdemeanor violation of § 18.2-248.1 or a violation of § 18.2-250.1 , including any violation charged under §§ 18.2-248.1 or 18.2-250.1 that was deferred and dismissed pursuant to § 18.2-251 , maintained in the Central Criminal Records Exchange shall not be open for public inspection or otherwise disclosed, provided that such records may be disseminated (i) to make the determination as provided in § 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 pre-sentence or post-sentence investigation report pursuant to § 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 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 Virginia Criminal Sentencing Commission for research purposes; (viii) 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; (ix) 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 ; (x) to any full-time or part-time employee of the Department of Forensic Science for the purpose of screening any person for full-time or part-time employment with the Department of Forensic Science; (xi) 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 ; and (xii) to any full-time or part-time employee of the Department of Motor Vehicles, any employer as defined in § 46.2-341.4 , or any medical examiner as defined in 49 C.F.R. § 390.5 for the purpose of complying with the regulations of the Federal Motor Carrier Safety Administration.
  2. An employer or educational institution shall not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose information concerning any arrest, criminal charge, or conviction against him when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection A. An applicant need not, in answer to any question concerning any arrest, criminal charge, or conviction, include a reference to or information concerning any arrest, criminal charge, or conviction when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection A.
  3. Agencies, officials, and employees of the state and local governments shall not, in any application, interview, or otherwise, require an applicant for a license, permit, registration, or governmental service to disclose information concerning any arrest, criminal charge, or conviction against him when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection A. An applicant need not, in answer to any question concerning any arrest, criminal charge, or conviction, include a reference to or information concerning any arrest, criminal charge, or conviction when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection A. Such an application may not be denied solely because of the applicant's refusal to disclose information concerning any such arrest, criminal charge, or conviction.
  4. A person who willfully violates subsection B or C is guilty of a Class 1 misdemeanor for each violation.

    (2020, cc. 1285, 1286; 2021 Sp. Sess. I, cc. 344, 345, 550, 551.)

Section set out twice. - The section above is effective until the amendments by Acts 2021, Sp. Sess. I, cc. 524, 542, 550, and 551 take effect. For the version of this section effective as amended by Acts 2021, Sp. Sess. I, cc. 524, 542, 550, and 551, see the following section, also numbered § 19.2-389.3 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2021, Sp.Sess. I, cc. 550 and 551, cl. 8 provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101 .1, 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I. cc. 550 and 551, cl. 26 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "19.2-264.5 or" preceding "19.2-299" in clause (ii) of subsection A.

The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 2, effective July 1, 2021, are identical, and in subsection A, inserted "misdemeanor violation of § 18.2-248.1 or a" and the second occurrence of "18.2-248.1 or."

§ 19.2-389.3. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524, 542, 550, and 551) Marijuana possession; limits on dissemination of criminal history record information; prohibited practices by employers, educational institutions, and state and local governments; penalty.

  1. Criminal history record information contained in the Central Criminal Records Exchange, including any records relating to an arrest, criminal charge, or conviction, for a misdemeanor violation of § 18.2-248.1 or a violation of § 18.2-250.1 , including any violation charged under §§ 18.2-248.1 or 18.2-250.1 that was deferred and dismissed pursuant to § 18.2-251 , shall not be open for public inspection or otherwise disclosed, provided that such records may be disseminated and used for the following purposes: (i) to make the determination as provided in § 18.2-308.2:2 of eligibility to possess or purchase a firearm; (ii) for fingerprint comparison utilizing the fingerprints maintained in the Automated Fingerprint Information System; (iii) to the Virginia Criminal Sentencing Commission for its research purposes; (iv) 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, or to be a volunteer 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; (v) 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 ; (vi) to any full-time or part-time employee of the Department of Forensic Science for the purpose of screening any person for full-time or part-time employment with the Department of Forensic Science; (vii) 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 ; (viii) to any full-time or part-time employee of the Department of Motor Vehicles, any employer as defined in § 46.2-341.4 , or any medical examiner as defined in 49 C.F.R. § 390.5 for the purpose of complying with the regulations of the Federal Motor Carrier Safety Administration; (ix) to any employer or prospective employer or its designee where federal law requires the employer to inquire about prior criminal charges or convictions; (x) to any employer or prospective employer or its designee where the position that a person is applying for, or where access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any contract with, or statute or regulation of, the United States or any Executive Order of the President; (xi) to any person authorized to engage in the collection of court costs, fines, or restitution under subsection C of § 19.2-349 for purposes of collecting such court costs, fines, or restitution; (xii) to administer and utilize the DNA Analysis and Data Bank set forth in Article 1.1 (§ 19.2-310.2 et seq.) of Chapter 18; (xiii) to publish decisions of the Supreme Court, Court of Appeals, or any circuit court; (xiv) to any full-time or part-time employee of a court, the Office of the Executive Secretary, the Division of Legislative Services, or the Chairs of the House Committee for Courts of Justice and the Senate Committee on the Judiciary for the purpose of screening any person for full-time or part-time employment as a clerk, magistrate, or judge with a court or the Office of the Executive Secretary; (xv) to any employer or prospective employer or its designee where this Code or a local ordinance requires the employer to inquire about prior criminal charges or convictions; (xvi) to any employer or prospective employer or its designee that is allowed access to such sealed records in accordance with the rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 ; (xvii) to any business screening service for purposes of complying with § 19.2-392.16 ; (xviii) to any attorney for the Commonwealth and any person accused of a violation of law, or counsel for the accused, in order to comply with any constitutional and statutory duties to provide exculpatory, mitigating, and impeachment evidence to an accused; (xix) to any party in a criminal or civil proceeding for use as authorized by law in such proceeding; (xx) to any party for use in a protective order hearing as authorized by law; (xxi) to the Department of Social Services or any local department of social services for purposes of performing any statutory duties as required under Title 63.2; (xxii) to any party in a proceeding relating to the care and custody of a child for use as authorized by law in such proceeding; (xxiii) to the attorney for the Commonwealth and the court for purposes of determining eligibility for sealing pursuant to the provisions of § 19.2-392.12 ; (xxiv) to determine a person's eligibility to be empaneled as a juror; and (xxv) to the person arrested, charged, or convicted of the offense that was sealed.
  2. Except as provided in subsection C, agencies, officials, and employees of state and local governments, private employers that are not subject to federal laws or regulations in the hiring process, and educational institutions shall not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose information concerning any arrest, criminal charge, or conviction against him when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection A. An applicant need not, in answer to any question concerning any arrest, criminal charge, or conviction, include a reference to or information concerning any arrest, criminal charge, or conviction when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection A.
  3. The provisions of subsection B shall not apply if:
    1. The person is applying for full-time employment or part-time employment with, or to be a volunteer 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;
    2. This Code requires the employer to make such an inquiry;
    3. Federal law requires the employer to make such an inquiry;
    4. The position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any contract with, or statute or regulation of, the United States or any Executive Order of the President; or
    5. The rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 allow the employer to access such sealed records.
  4. Agencies, officials, and employees of the state and local governments shall not, in any application, interview, or otherwise, require an applicant for a license, permit, registration, or governmental service to disclose information concerning any arrest, criminal charge, or conviction against him when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection A. An applicant need not, in answer to any question concerning any arrest, criminal charge, or conviction, include a reference to or information concerning any arrest, criminal charge, or conviction when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection A. Such an application may not be denied solely because of the applicant's refusal to disclose information concerning any such arrest, criminal charge, or conviction.
  5. No person, as defined in § 36-96.1:1 , shall, in any application for the sale or rental of a dwelling, as defined in § 36-96.1:1 , require an applicant to disclose information concerning any arrest, criminal charge, or conviction against him when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection A. An applicant need not, in answer to any question concerning any arrest, criminal charge, or conviction, include a reference to or information concerning arrests, criminal charges, or convictions when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection A. Such an application may not be denied solely because of the applicant's refusal to disclose information concerning any such arrest, criminal charge, or conviction.
  6. No insurance company, as defined in § 38.2-100 , shall, in any application for insurance, as defined in § 38.2-100 , require an applicant to disclose information concerning any arrest, criminal charge, or conviction against him when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection A. An applicant need not, in answer to any question concerning any arrest, criminal charge, or conviction, include a reference to or information concerning arrests, criminal charges, or convictions when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to subsection A. Such an application may not be denied solely because of the applicant's refusal to disclose information concerning any such arrest, criminal charge, or conviction.
  7. If any entity or person listed under subsection B, D, E, or F includes a question about a prior arrest, criminal charge, or conviction in an application for one or more of the purposes set forth in such subsections, such application shall include, or such entity or person shall provide, a notice to the applicant that an arrest, criminal charge, or conviction that is not open for public inspection pursuant to subsection A does not have to be disclosed in the application. Such notice need not be included on any application for one or more of the purposes set forth in subsection C.
  8. The provisions of this section shall not prohibit the disclosure of any arrest, criminal charge, or conviction that is not open for public inspection pursuant to subsection A or any information from such records among law-enforcement officers and attorneys when such disclosures are made by such officers or attorneys while engaged in the performance of their duties for purposes solely relating to the disclosure or use of exculpatory, mitigating, and impeachment evidence or between attorneys for the Commonwealth when related to the prosecution of a separate crime.
  9. A person who willfully violates subsection B, D, E, or F is guilty of a Class 1 misdemeanor for each violation.

    (2020, cc. 1285, 1286; 2021 Sp. Sess. I, cc. 344, 345, 524, 542, 550, 551.)

Section set out twice. - The section above is set out as amended by Acts 2021, Sp. Sess. I, cc. 524, 542, 550, and 551. For the version of this section effective until the amendments by Acts 2021, Sp. Sess. I, cc. 524, 542, 550, and 551 take effect, see the preceding section, also numbered § 19.2-389.3 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2021, Sp.Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101 .1, 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp.Sess. I, cc. 550 and 551, cl. 8 provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101 .1, 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 9 provides: "That the provisions of the first enactment amending §§ 19.2-389.3 , 19.2-392.1 , and 19.2-392.4 of the Code of Virginia and creating §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia shall become effective on the earlier of (i) the first day of the fourth month following notification to the Chairman of the Virginia Code Commission and the Chairmen of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B of § 17.1-502 of the Code of Virginia have automated systems to exchange information as required by § 19.2-392.2:1 of the Code of Virginia, as created by this act, or (ii) July 1, 2025. The Department of State Police shall first transmit the list required under subsection B of § 19.2-392.2:1 of the Code of Virginia, as created by this act, no later than the earlier of (a) the first day of the third month following the effective date of §§ 19.2-389.3 , 19.2-392.1 , and 19.2-392.4 of the Code of Virginia, as amended by this act, and §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia, as created by this act, or (b) October 1, 2025. The Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B of § 17.1-502 of the Code of Virginia, shall automate systems to exchange information as required by §§ 19.2-392.2:1 of the Code of Virginia, as created by this act, no later than July 1, 2025. If the provisions of this act repealing § 18.2-248.1 of the Code of Virginia are not reenacted by the 2022 Session of the General Assembly, the references to § 18.2-248.1 in §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia, as created by this act, shall not become effective."

Acts 2021, Sp. Sess. I. cc. 550 and 551, cl. 26 "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 524 and 542, are identical, and rewrote the section. For contingent expiration date, see Editor's note.

The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 1, are identical, and rewrote the section. For contingent expiration date, see Editor's note.

The section has been set out in the form above as directed by the Virginia Code Commission.

§ 19.2-390. Reports to be made by local law-enforcement officers, conservators of the peace, clerks of court, Secretary of the Commonwealth and Corrections officials to State Police; material submitted by other agencies.

    1. Every state official or agency having the power to arrest, the sheriffs of counties, the police officials of cities and towns, and any other local law-enforcement officer or conservator of the peace having the power to arrest for a felony shall make a report to the Central Criminal Records Exchange, on forms provided by it, of any arrest, including those arrests involving the taking into custody of, or service of process upon, any person on charges resulting from an indictment, presentment or information, the arrest on capias or warrant for failure to appear, and the service of a warrant for another jurisdiction, for each charge when any person is arrested on any of the following charges: A. 1.  Every state official or agency having the power to arrest, the sheriffs of counties, the police officials of cities and towns, and any other local law-enforcement officer or conservator of the peace having the power to arrest for a felony shall make a report to the Central Criminal Records Exchange, on forms provided by it, of any arrest, including those arrests involving the taking into custody of, or service of process upon, any person on charges resulting from an indictment, presentment or information, the arrest on capias or warrant for failure to appear, and the service of a warrant for another jurisdiction, for each charge when any person is arrested on any of the following charges:
      1. Treason;
      2. Any felony;
      3. Any offense punishable as a misdemeanor under Title 54.1;
      4. Any misdemeanor punishable by confinement in jail (i) under Title 18.2 or 19.2, or any similar ordinance of any county, city or town, (ii) under § 20-61 , or (iii) under § 16.1-253.2; or
      5. Any offense in violation of § 3.2-6570, 4.1-309.1 , 5.1-13, 15.2-1612 , 22.1-289.041, 46.2-339 , 46.2-341.21 , 46.2-341.24 , 46.2-341.26:3 , 46.2-817 , 58.1-3141 , 58.1-4018.1 , 60.2-632 , or 63.2-1509 . The reports shall contain such information as is required by the Exchange and shall be accompanied by fingerprints of the individual arrested for each charge. Effective January 1, 2006, the corresponding photograph of the individual arrested shall accompany the report. Fingerprint cards prepared by a law-enforcement agency for inclusion in a national criminal justice file shall be forwarded to the Exchange for transmittal to the appropriate bureau. Nothing in this section shall preclude each local law-enforcement agency from maintaining its own separate photographic database. Fingerprints and photographs required to be taken pursuant to this subsection or subdivision A 3c of § 19.2-123 may be taken at the facility where the magistrate is located, including a regional jail, even if the accused is not committed to jail. Law-enforcement agencies and clerks of court shall only submit reports to the Central Criminal Records Exchange only for those offenses enumerated in this subsection. Only reports received for those offenses enumerated in this subsection shall be included in the Central Criminal Records Exchange.
    2. For persons arrested and released on summonses in accordance with subsection B of § 19.2-73 or § 19.2-74 , such report shall not be required until (i) a conviction is entered and no appeal is noted or if an appeal is noted, the conviction is upheld upon appeal or the person convicted withdraws his appeal; (ii) the court defers or dismisses the proceeding pursuant to § 18.2-57.3 , 18.2-251 , or 19.2-303.2 ; or (iii) an acquittal by reason of insanity pursuant to § 19.2-182.2 is entered. Upon such conviction or acquittal, the court shall remand the individual to the custody of the office of the chief law-enforcement officer of the county or city. It shall be the duty of the chief law-enforcement officer, or his designee who may be the arresting officer, to ensure that such report is completed for each charge after a determination of guilt or acquittal by reason of insanity. The court shall require the officer to complete the report immediately following the person's conviction or acquittal, and the individual shall be discharged from custody forthwith, unless the court has imposed a jail sentence to be served by him or ordered him committed to the custody of the Commissioner of Behavioral Health and Developmental Services.
    3. For persons arrested on a capias for any allegation of a violation of the terms or conditions of a suspended sentence or probation for a felony offense pursuant to § 18.2-456 , 19.2-306 , or 53.1-165 , a report shall be made to the Central Criminal Records Exchange pursuant to subdivision 1. Upon finding such person in violation of the terms or conditions of a suspended sentence or probation for such felony offense, the court shall order that the fingerprints and photograph of such person be taken by a law-enforcement officer for each such offense and submitted to the Central Criminal Records Exchange.
    4. For any person served with a show cause for any allegation of a violation of the terms or conditions of a suspended sentence or probation for a felony offense pursuant to § 18.2-456 , 19.2-306 , or 53.1-165 , such report to the Central Criminal Records Exchange shall not be required until such person is found to be in violation of the terms or conditions of a suspended sentence or probation for such felony offense. Upon finding such person in violation of the terms or conditions of a suspended sentence or probation for such felony offense, the court shall order that the fingerprints and photograph of such person be taken by a law-enforcement officer for each such offense and submitted to the Central Criminal Records Exchange.
    5. If the accused is in custody when an indictment or presentment is found or made, or information is filed, and no process is awarded, the attorney for the Commonwealth shall so notify the court of such at the time of first appearance for each indictment, presentment, or information for which a report is required upon arrest pursuant to subdivision 1, and the court shall order that the fingerprints and photograph of the accused be taken for each offense by a law-enforcement officer or by the agency that has custody of the accused at the time of first appearance. The law-enforcement officer or agency taking the fingerprints and photograph shall submit a report to the Central Criminal Records Exchange for each offense.
  1. Within 72 hours following the receipt of (i) a warrant or capias for the arrest of any person on a charge of a felony or (ii) a Governor's warrant of arrest of a person issued pursuant to § 19.2-92 , the law-enforcement agency which received the warrant shall enter the person's name and other appropriate information required by the Department of State Police into the "information systems" known as the Virginia Criminal Information Network (VCIN), established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the National Crime Information Center (NCIC), maintained by the Federal Bureau of Investigation. The report shall include the person's name, date of birth, social security number and such other known information which the State Police or Federal Bureau of Investigation may require. Where feasible and practical, the magistrate or court issuing the warrant or capias may transfer information electronically into VCIN. When the information is electronically transferred to VCIN, the court or magistrate shall forthwith forward the warrant or capias to the local police department or sheriff's office. When criminal process has been ordered destroyed pursuant to § 19.2-76.1 , the law-enforcement agency destroying such process shall ensure the removal of any information relating to the destroyed criminal process from the VCIN and NCIC. B1. Within 72 hours following the receipt of a written statement issued by a parole officer pursuant to § 53.1-149 or 53.1-162 authorizing the arrest of a person who has violated the provisions of his post-release supervision or probation, the law-enforcement agency that received the written statement shall enter, or cause to be entered, the person's name and other appropriate information required by the Department of State Police into the "information systems" known as the Virginia Criminal Information Network (VCIN), established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52.
  2. For offenses not charged on a summons in accordance with subsection B of § 19.2-73 or § 19.2-74 , the clerk of each circuit court and district court shall make an electronic report to the Central Criminal Records Exchange of (i) any dismissal, including a dismissal pursuant to § 18.2-57.3 , 18.2-251 , or 19.2-303.2 , indefinite postponement or continuance, charge still pending due to mental incompetency or incapacity, deferral, nolle prosequi, acquittal, or conviction of, including any sentence imposed, or failure of a grand jury to return a true bill as to, any person charged with an offense listed in subsection A, including any action that may have resulted from an indictment, presentment or information, or any finding that the person is in violation of the terms or conditions of a suspended sentence or probation for a felony offense and (ii) any adjudication of delinquency based upon an act that, if committed by an adult, would require fingerprints to be filed pursuant to subsection A. For offenses listed in subsection A and charged on a summons in accordance with subsection B of § 19.2-73 or § 19.2-74 , such electronic report by the clerk of each circuit court and district court to the Central Criminal Records Exchange may be submitted but shall not be required until (a) a conviction is entered and no appeal is noted or, if an appeal is noted, the conviction is upheld upon appeal or the person convicted withdraws his appeal; (b) the court defers or dismisses the proceeding pursuant to § 18.2-57.3 , 18.2-251 , or 19.2-303.2 ; or (c) an acquittal by reason of insanity pursuant to § 19.2-182.2 is entered. The clerk of each circuit court shall make an electronic report to the Central Criminal Records Exchange of any finding that a person charged on a summons is in violation of the terms or conditions of a suspended sentence or probation for a felony offense. Upon conviction of any person, including juveniles tried and convicted in the circuit courts pursuant to § 16.1-269.1, whether sentenced as adults or juveniles, for an offense for which registration is required as defined in § 9.1-902 , the clerk shall within seven days of sentencing submit a report to the Sex Offender and Crimes Against Minors Registry. The report to the Registry shall include the name of the person convicted and all aliases that he is known to have used, the date and locality of the conviction for which registration is required, his date of birth, social security number, and last known address, and specific reference to the offense for which he was convicted. No report of conviction or adjudication in a district court shall be filed unless the period allowed for an appeal has elapsed and no appeal has been perfected. In the event that the records in the office of any clerk show that any conviction or adjudication has been nullified in any manner, he shall also make a report of that fact to the Exchange and, if appropriate, to the Registry. In addition, each clerk of a circuit court, upon receipt of certification thereof from the Supreme Court, shall report to the Exchange or the Registry, or to the law-enforcement agency making the arrest in the case of offenses not required to be reported to the Exchange, on forms provided by the Exchange or Registry, as the case may be, any reversal or other amendment to a prior sentence or disposition previously reported. When criminal process is ordered destroyed pursuant to § 19.2-76.1 , the clerk shall report such action to the law-enforcement agency that entered the warrant or capias into the VCIN.
  3. In addition to those offenses enumerated in subsection A, the Central Criminal Records Exchange may receive, classify, and file any other fingerprints, photographs, and records of confinement submitted to it by any correctional institution or the Department of Corrections. Unless otherwise prohibited by law, any such fingerprints, photographs, and records received by the Central Criminal Records Exchange from any correctional institution or the Department of Corrections may be classified and filed as criminal history record information.
  4. Corrections officials, sheriffs, and jail superintendents of regional jails, responsible for maintaining correctional status information, as required by the regulations of the Department of Criminal Justice Services, with respect to individuals about whom reports have been made under the provisions of this chapter shall make reports of changes in correctional status information to the Central Criminal Records Exchange. The reports to the Exchange shall include any commitment to or release or escape from a state or local correctional facility, including commitment to or release from a parole or probation agency.
  5. Any pardon, reprieve or executive commutation of sentence by the Governor shall be reported to the Exchange by the office of the Secretary of the Commonwealth.
  6. Officials responsible for reporting disposition of charges, and correctional changes of status of individuals under this section, including those reports made to the Registry, shall adopt procedures reasonably designed at a minimum (i) to ensure that such reports are accurately made as soon as feasible by the most expeditious means and in no instance later than 30 days after occurrence of the disposition or correctional change of status and (ii) to report promptly any correction, deletion, or revision of the information.
  7. Upon receiving a correction, deletion, or revision of information, the Central Criminal Records Exchange shall notify all criminal justice agencies known to have previously received the information.
  8. As used in this section:

    "Chief law-enforcement officer" means the chief of police of cities and towns and sheriffs of 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.

    "Electronic report" means a report transmitted to, or otherwise forwarded to, the Central Criminal Records Exchange in an electronic format approved by the Exchange. The report shall contain the name of the person convicted and all aliases which he is known to have used, the date and locality of the conviction, his date of birth, social security number, last known address, and specific reference to the offense including the Virginia Code section and any subsection, the Virginia crime code for the offense, and the offense tracking number for the offense for which he was convicted.

    (Code 1950, § 19.1-19.3; 1966, c. 669; 1968, c. 724; 1970, c. 191; 1971, Ex. Sess., c. 107; 1974, c. 575; 1975, cc. 495, 584; 1976, cc. 336, 572, 771; 1978, cc. 467, 825; 1979, c. 378; 1981, c. 529; 1982, cc. 33, 535; 1990, cc. 100, 692; 1992, c. 391; 1993, cc. 448, 468, 926; 1994, cc. 362, 428, 432; 1996, cc. 429, 755, 806, 914; 1997, cc. 27, 509, 747, 801; 2001, cc. 516, 536, 565; 2003, cc. 27, 584, 727; 2004, cc. 284, 406; 2005, cc. 187, 229; 2008, cc. 73, 246; 2009, cc. 249, 813, 840; 2010, c. 273; 2013, c. 614; 2018, cc. 51, 178; 2019, cc. 115, 782, 783; 2020, cc. 91, 92, 860, 861; 2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - The above section combines former § 19.1-19.3 as amended by Acts 1975, c. 584, and § 19.2-390 as enacted by Acts 1975, c. 495. The first sentence of subsection (a) is set out as amended by c. 584, and the last sentence of subsection (a) has been added pursuant to c. 495. See § 30-152.

Acts 1996, cc. 755 and 914, cl. 7, provide: "[t]hat the provisions of this act shall apply to offenses committed and to records created and proceedings held with respect to those offenses on or after July 1, 1996."

Acts 1997, c. 801, cl. 2, provides: "That the provisions of this act shall become effective on January 1, 1998. The powers granted and duties imposed pursuant to this act shall apply prospectively to guardians and conservators appointed by court order entered on or after that date, or modified on or after that date if the court so directs, without regard to when the petition was filed. The procedures specified in this act governing proceedings for appointment of a guardian or conservator or termination or other modification of a guardianship shall apply on and after that date without regard to when the petition therefor was filed or the guardianship or conservatorship created."

Acts 2008, cc. 73 and 246, cl. 2 provides: "That the amendments to § 19.2-390 of the Code of Virginia of this act that require an electronic report to be made to the Central Criminal Records Exchange shall not become effective as to any circuit court clerks not currently using the case management system of the Supreme Court of Virginia until July 1, 2009. Until July 1, 2009, the circuit court clerks shall forthwith forward the report to the Central Criminal Records Exchange, using such methods as may be established jointly with the Virginia State Police. All circuit court clerks who are using the case management system of the Supreme Court of Virginia shall provide the reports in electronic format pursuant to § 19.2-390 ."

Acts 2019, cc. 782 and 783, cl. 2 provides: " § 1. The Department of State Police shall make reasonable efforts to ensure that criminal history record information that was reported to the Central Criminal Records Exchange pursuant to § 19.2-390 of the Code of Virginia prior to July 1, 2019, and not applied to the criminal history record of a person be applied to the criminal history record of that person. Such efforts shall prioritize identifying any felony convictions that have not been applied to criminal history records and providing such information to the law-enforcement agency that made the arrest and to the attorney for the Commonwealth in the jurisdiction where the conviction was entered. All state and local government agencies shall provide such assistance as may be requested by the Department of State Police to aid in the successful and timely completion of these efforts. Notwithstanding any other provision of law to the contrary, the Department of State Police and other state and local government agencies may receive from and disseminate to individuals, state agencies, and local government agencies any information that may be necessary for the successful and timely completion of these efforts. The Department of State Police shall report on the progress of these efforts to the Governor and the Chairman of the Virginia State Crime Commission by November 1, 2019."

Acts 2020, cc. 860 and 861, cl. 3 provides: "That the provisions of the first and second enactments of this act shall become effective on July 1, 2021, except that § 22.1-289.04 of the Code of Virginia, as created by this act, shall become effective in due course."

Acts 2021, Sp. Sess. I, cc. 524 and 540, cl. 2 provides: "That the Department of State Police shall delete all records from the Central Criminal Records Exchange that were not required to be reported to the Central Criminal Records Exchange under subdivision A 1 of § 19.2-390 of the Code of Virginia, as amended by this act, by July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 524 and 540, cl. 8 provides: "That the Department of State Police shall purchase Criminal History, Expungement, Master Name Index, Rap Back, Civil Commitment, Applicant Tracking, and such other solutions or services as may be necessary to implement this act. The purchase of these solutions or services shall not be subject to the provisions of the Virginia Public Procurement Act ( § 2.2-4300 et seq. of the Code of Virginia)."

Acts 2021, Sp. Sess. I, cc. 524 and 540, cl. 10 provides: "That the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, shall each provide a report to the Virginia State Crime Commission on the progress of implementing automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, by November 1, 2021, and by November 1 of each year thereafter until the automated systems have been fully implemented."

Acts 2021, Sp. Sess. I, c. 524, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2001 amendments. - The 2001 amendments by cc. 516 and 536 are identical, and in subsection B, substituted "information systems" for "information system," inserted "and the National Crime Information Center (NCIC), maintained by the Federal Bureau of Investigation," inserted "or Federal Bureau of Investigation" and substituted "VCIN or NCIC systems" for "VCIN system" in the former last sentence of the subsection.

The 2001 amendment by c. 565, in subsection B, deleted the former last sentence, which read: "Any unexecuted criminal process which has been entered into the VCIN system shall be removed forthwith by the entering law-enforcement agency when the criminal process has been ordered destroyed pursuant to § 19.2-76.1 ," and added the present last three sentences; and in subsection C, deleted "of this section" following "subsection A" in two places.

The 2003 amendments. - The 2003 amendment by cc. 27 and 727 are identical, and in paragraph A 1 d, added the clause (i) designation, and added "or (ii) under § 20-61 "; substituted "72" for "seventy-two" in subsection B; and substituted "30" for "thirty" in subsection G.

The 2003 amendment by c. 585 substituted "72" for "seventy-two" in subsection B; substituted " § 9.1-902 " for " § 19.2-298.1 " in the second sentence of subsection C; and substituted "30" for "thirty" in subsection G.

The 2004 amendments. - The 2004 amendments by cc. 284 and 406 are identical, and deleted "Article 2 ( § 18.2-266 et seq.) of Chapter 7 of Title 18.2" following " § 18.2-119 " in clause (i) of paragraph A 1 d.

The 2005 amendments. - The 2005 amendments by cc. 187 and 229 are identical, and inserted the present second and last sentences in the last paragraph of subdivision A 1 d, and inserted "photographs" following "fingerprints" in subsection D.

The 2008 amendments. - The 2008 amendments by cc. 73 and 246 are identical, and deleted "systems" following "VCIN and NCIC" at the end of subsection B; in subsection C, substituted "shall make an electronic report" for "shall make a report" in the first sentence and deleted "system" following "VCIN" at the end of the subsection; and in subsection H, made a stylistic change and added the paragraph defining "Electronic report." For effective date and applicability, see Editor's note.

The 2009 amendments. - The 2009 amendment by c. 249 added clause (iii) and made related changes in the first paragraph of subdivision A 1 d.

The 2009 amendments by cc. 813 and 840 are identical, and substituted "Commissioner of Behavioral Health and Developmental Services" for "Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services" at the end of subdivision A 2.

The 2010 amendments. - The 2010 amendment by c. 273 added subsection B1 and made a minor stylistic change in subsection G.

The 2013 amendments. - The 2013 amendments by c. 614 added the last sentence in the last paragraph of subdivision A 1 d.

The 2018 amendments. - The 2018 amendments by cc. 51 and 178 are identical, and deleted "except an arrest for a violation of § 18.2-119 , Article 2 ( § 18.2-415 et seq.) of Chapter 9 of Title 18.2" preceding "or any similar" in clause (i) of subdivision A 1 d.

The 2019 amendments. - The 2019 amendment by c. 115 added subdivision A 1 e and made related changes.

The 2019 amendments by cc. 782 and 783 are identical, and in subdivision A 1, inserted "for each charge when any person is arrested"; added subdivisions A 1 e and A 3 through 5; rewrote subsection C regarding offenses not charged on a summons; in subsection D, inserted "or the Department of Corrections" and added the second sentence; and added the designation for subsection I.

The 2020 amendments. - The 2020 amendments by cc. 91 and 92 are identical, and inserted "subsection B of § 19.2-73 or" preceding " § 19.2-74 " once in subdivision A 2 and twice in subsection C.

The 2020 amendments by cc. 860 and 861, both effective July 1, 2021, are identical, and in subdivision A 1 e, inserted "22.1-289.041," deleted "63.2-1727" and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 524 and 542, effective July 1, 2021, are identical, and added the last paragraph in subdivision A 1 e; deleted the former third sentence in subsection C, which read: "In the case of offenses not required to be reported to the Exchange by subsection A, the reports of any of the foregoing dispositions shall be filed by the law-enforcement agency making the arrest with the arrest record required to be maintained by § 15.2-1722 "; substituted "confinement submitted to it by any" for "arrest or confinement submitted to it by any law-enforcement agency or any" in subsection D.

Law review. - For survey of Virginia law on evidence for the year 1972-1973, see 59 Va. L. Rev. 1526 (1973).

CASE NOTES

National Criminal Information Center report as record of prior convictions. - Defendant's claim that a National Criminal Information Center report disclosing his prior convictions was not properly authenticated was rejected. Subsection C has extensive reporting requirements that attest to the regularity of the creation and preparation of the records; moreover, an officer testified that the report was consistent with his own search of defendant's criminal records. Hawes v. Commonwealth, No. 1094-03-4, 2004 Va. App. LEXIS 395 (Ct. of Appeals Aug. 17, 2004).

Copy of arrest report as evidence. - The fact that former § 8-266 provided that a copy of an arrest report filed with the Central Criminal Records Exchange could be admitted in evidence did not mean that all items in the report could be admitted for any purpose. The mere fact that a record or report qualifies as a public document does not automatically overcome the hearsay objection unless the document relates facts or events within the personal knowledge and observation of the recording official to which he could testify should he be called as a witness. Williams v. Commonwealth, 213 Va. 45 , 189 S.E.2d 378 (1972).

Record of prior convictions properly admitted. - As defendant did not claim his two prior convictions listed in a copy of arrest report as evidence. were invalid, and the report's alleged incompleteness went to the weight to be given it, not its admissibility, the trial court properly admitted the report under the public records exception to the hearsay rule. Hawes v. Commonwealth, No. 1094-03-4, 2004 Va. App. LEXIS 395 (Ct. of Appeals Aug. 17, 2004).

OPINIONS OF THE ATTORNEY GENERAL

Information contained in indictments and capiases ordered sealed by a court prior to the arrest of the individual named in such indictments and capiases need not be entered in Network. - Subsection B does not require law-enforcement agencies to enter into the Virginia Criminal Information Network information contained in indictments and capiases ordered sealed by a court prior to the arrest of the individual named in such indictments and capiases. See opinion of Attorney General to The Honorable William W. Davenport, Commonwealth's Attorney for Chesterfield County, 01-119 (4/4/02).

Show cause summons. - Service of a criminal show cause summons does not constitute an "arrest" or trigger the reporting requirements of § 19.2-390 . See opinion of Attorney General to The Honorable Dennis S. Proffitt, Chesterfield County Sheriff, 09-070, 2009 Va. AG LEXIS 48 (10/26/09).

Disclosure of arrest photographs. - Local law-enforcement agencies must disclose adult arrestee photographs pursuant to a valid FOIA request if they are contained in a database maintained by the local law-enforcement agency, regardless of whether the defendant is still incarcerated or has been released, unless disclosing them will jeopardize a felony investigation. However, photographs may not be drawn from the Central Criminal Records Exchange for disclosure at any time to comply with a FOIA request. See opinion of Attorney General to The Honorable Jim O'Sullivan, Sheriff, City of Chesapeake, No. 14-063, 2015 Va. AG LEXIS 5 (2/5/15).

§ 19.2-390.01. Use of Virginia crime code references required.

If any criminal warrant, indictment, information, presentment, petition, summons, charging document issued by a magistrate, or dispositional document from a criminal trial, involves a jailable offense, it shall include the Virginia crime code references for the particular offense or offenses covered. When Virginia crime codes are provided on charging and dispositional documents, the Virginia crime codes shall be recorded and stored for adult offenders in: criminal history computer systems maintained by the State Police; court case management computer systems maintained by the Supreme Court of Virginia; probation and parole case management computer systems maintained by the Department of Corrections and the Virginia Parole Board; pretrial and community-based probation case management computer systems maintained by the Department of Criminal Justice Services; and jail management computer systems maintained by the State Compensation Board. The Department of Juvenile Justice shall record and store Virginia crime codes for particular offenses related to juveniles in case management computer systems.

Virginia crime codes shall only be used to facilitate administration and research, and shall not have any legal standing as they relate to a particular offense or offenses.

(2003, c. 148; 2007, c. 133.)

Editor's note. - Acts 2003, c. 148, cl. 2, provides: "That this act shall become effective on October 1, 2004."

Acts 2003, c. 148, cl. 3, provides: "That the charging and dispositional documents incorporating Virginia crime codes developed pursuant to this act shall indicate clearly that the crime codes are to be entered in a portion of such documents labeled 'for administrative use only' or words to that effect."

The 2007 amendments. - The 2007 amendment by c. 133 substituted "pretrial and community-based probation" for "pretrial and community corrections" near the end of the second sentence.

§ 19.2-390.02. Policies and procedures for law enforcement to conduct in-person and photo lineups.

The Department of State Police and each local police department and sheriff's office shall establish a written policy and procedure for conducting in-person and photographic lineups.

(2005, cc. 187, 229.)

§ 19.2-390.03. Development and dissemination of model policy on fingerprinting and reports to the Central Criminal Records Exchange.

The Department of State Police shall develop a model policy on the collection of fingerprints and reporting of criminal history record information to the Central Criminal Records Exchange as required by § 19.2-390 . The Department shall disseminate such policy to all law-enforcement agencies within the Commonwealth.

(2019, cc. 782, 783.)

§ 19.2-390.04. Custodial interrogations; recording.

  1. For purposes of this section:

    "Custodial interrogation" means any interview conducted by a law-enforcement officer in such circumstances that would lead a reasonable person to consider himself to be in custody associated with arrest and during which the law-enforcement officer takes actions or asks questions that are reasonably likely to elicit responses from the person that could incriminate him.

    "Place of detention" means a police station, sheriff's office, jail, detention center, or other similar facility in which suspects may be detained.

  2. A law-enforcement officer conducting a custodial interrogation of any person at a place of detention shall cause an audiovisual recording of the entirety of such custodial interrogation to be made. If such law-enforcement officer is unable to cause an audiovisual recording of such custodial interrogation to be made, the law-enforcement officer shall cause an audio recording of such custodial interrogation to be made.

    This subsection shall not apply when a law-enforcement officer conducting a custodial interrogation has good cause not to record such custodial interrogation. Good cause shall include those circumstances where (i) the recording equipment fails, (ii) the recording equipment is unavailable, or (iii) exigent circumstances relating to public safety exist that prevent the recording of such custodial interrogation.

  3. The failure of a law-enforcement officer to cause an audiovisual or audio recording to be made in accordance with subsection B shall not affect the admissibility of the statements made by the subject of the custodial interrogation, but such failure may be considered in determining the weight given to such evidence.
  4. Any audiovisual or audio recording made in accordance to subsection B shall be preserved until such time as (i) the person is acquitted or the charges against the person are otherwise dismissed and further prosecution of such charges is prohibited by law or (ii) if convicted or adjudicated delinquent, the person has completed service of his sentence and any modification of his sentence.
  5. Any policies, standards, and guidelines for the maintenance, exchange, storage, use, sharing, distribution, and security of data developed and adopted pursuant to Chapter 20.1 of Title 2.2 (§ 2.2-2005 et. seq.) shall not apply to any audiovisual or audio recording made in accordance with subsection B. Any policies, standards, and guidelines for the maintenance, exchange, storage, use, sharing, distribution, and security of data for any audiovisual or audio recording made in accordance with subsection B shall be developed and adopted by the law-enforcement agency employing the law-enforcement officer causing the audiovisual or audio recording to be made in accordance with subsection B. (2020, c. 1126.)

§ 19.2-390.1. Sex Offender and Crimes Against Minors Registry; maintenance; access.

The Department of State Police shall keep and maintain a Sex Offender and Crimes Against Minors Registry, separate and apart from all other records maintained by it.

The Superintendent of State Police shall organize, equip, and staff, within the Department of State Police, the Sex Offender and Crimes Against Minors Registry. The Superintendent shall appoint and designate personnel as he deems necessary to carry out all duties and assignments related to the Sex Offender and Crimes Against Minors Registry as required by Chapter 9 (§ 9.1-900 et seq.) of Title 9.1.

(1994, c. 362; 1996, cc. 418, 542, 880; 1997, cc. 670, 672, 747; 1998, cc. 785, 834; 2000, c. 250; 2003, c. 584; 2006, cc. 857, 914.)

Cross references. - As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

Editor's note. - At the direction of the Virginia Code Commission, the new subsection E added to § 19.2-390.1 by Acts 2003, c. 391 has been numbered § 9.1-916 and the new subsection H added to § 19.2-390.1 by Acts 2003, c. 391 has been numbered § 9.1-919 . The new subsection G added to § 19.2-390.1 by Acts, 2003, c. 391 is the same as § 9.1-917 added by Acts 2003, c. 584 (renumbered as § 9.1-918 at the direction of the Code Commission.)

Acts 2006, c. 857, cl. 4, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $2,419,496 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2006, c. 914, cl. 5, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $2,419,496 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2000 amendments. - The 2000 amendment by c. 250, in subsection D, deleted "or through" preceding "the State Police" in the second sentence, and added the last sentence.

The 2003 amendment by c. 584, which act enacted Chapter 9 ( §§ 9.1-900 et seq.) of Title 9.1, the Sex Offender and Crimes Against Minors Registry Act, rewrote this section to read as set out above.

The 2006 amendments. - The 2006 amendments by cc. 857 and 914 are identical, and added the last paragraph.

Michie's Jurisprudence. - For related discussion, see 15 M.J. Rape, § 27.

CASE NOTES

Evidence from custodian of records of state police sex registry properly admitted. - Defendant's due process guarantees to confrontation under the Fourteenth Amendment were not violated by the admission of an affidavit of the custodian of records of a state police sex registry in defendant's probation revocation proceeding as: (1) the affidavit was a document establishing the absence of an objective fact; (2) it was prepared in a non-adversarial setting, was not accusatory, and was not prepared in anticipation of litigation; (3) the sex offender registry was a neutral repository that reflected the objective results of a search of public records; (4) the affidavit summarized the official registry, which was mandated by § 19.2-390.1 ; and (5) the affidavit fell within the official records exception to the hearsay rule under subsection B of § 8.01-390 . Dickens v. Commonwealth, 52 Va. App. 412, 663 S.E.2d 548, 2008 Va. App. LEXIS 356 (2008).

§ 19.2-390.2.

Repealed by Acts 2003, c. 584, cl. 2.

Cross references. - For current provisions relating to automatic notification of registration to certain entities, see § 9.1-914 .

§ 19.2-390.3. Child Pornography Registry; maintenance; access.

  1. The Office of the Attorney General, in cooperation with the Department of State Police, shall keep and maintain a Child Pornography Registry (the Registry) to be located within the State Police, separate and apart from all other records maintained by either department. The purpose of the Registry shall be to assist the efforts of law-enforcement agencies statewide to protect their communities from repeat child pornographers and to protect children from becoming victims of criminal offenders by aiding in identifying victims and perpetrators. Criminal justice agencies, including law-enforcement agencies, may request of the State Police a search and comparison of child pornography images contained within the Registry with those images obtained by criminal justice agencies during the course of official investigations.
  2. The Registry shall include copies of all known or suspected "child pornography," as that term is defined in subsection A of § 18.2-374.1 , obtained during the course of a criminal investigation, or presented as evidence and used in any conviction for any offense enumerated in §§ 18.2-374.1 and 18.2-374.1:1 .
  3. Registry information provided under this section shall be used for the purposes of the administration of criminal justice, for victim identification, or for the protection of the public in general and children in particular. Use of the information or the images contained therein for purposes not authorized by this section is prohibited and a willful violation of this section with the intent to harass or intimidate another is a Class 6 felony.
  4. The Virginia Criminal Information Network and any form or document used by the Department of State Police to disseminate information from the Registry shall provide notice that any unauthorized possession, use, or dissemination of the information or images is a crime punishable as a Class 6 felony.

    (2003, cc. 935, 938; 2019, cc. 3, 42.)

Cross references. - As to penalty for Class 6 felony, see § 18.2-10 .

Editor's note. - Acts 2003, cc. 935 and 938, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2003, cc. 935 and 938, cl. 3, provide: "The Superintendent of State Police, in consultation with the Office of the Attorney General, shall promulgate regulations governing the operation and maintenance of the Registry."

Acts 2003, cc. 935 and 938, cl. 4, provide: "On or before January 1, 2004, the Office of the Attorney General and the State Police shall develop and maintain a system for making certain a registry of information and images of child pornography is established, protected, and, where applicable, encrypted. The system shall be secure and not capable of being altered except by the State Police. The State Police shall remove all information that it knows to be inaccurate from the Registry."

Acts 2019, cc. 3 and 42, cl. 2 provides: "That the Department of State Police, in cooperation with the Office of the Attorney General, shall submit a report detailing the implementation plan for changes to the Child Pornography Registry pursuant to this act to the Secretary of Public Safety and Homeland Security and the Chairmen of the House Committee on Appropriations and Senate Committee on Finance by January 1, 2020, as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents, and the report shall be posted on the General Assembly's website."

The 2019 amendments. - The 2019 amendments by cc. 3 and 42 are identical, and in subsection A, inserted "(the Registry)" in the first sentence; in subsection B, substituted "copies of all known or suspected 'child pornography,' as that term is defined in subsection A of § 18.2-374.1 , obtained during the course of a criminal investigation, or" for "images of sexually explicit visual material in any form including any picture, photograph, drawing, sculpture, motion picture film, digital image or similar visual representation"; and in subsection C, inserted "for victim identification" in the first sentence and substituted "is a Class 6" for "shall be punished as a Class 6" in the last sentence.

Law review. - For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

§ 19.2-391. Records to be made available to Exchange by state officials and agencies; duplication of records.

Each state official and agency shall make available to the Central Criminal Records Exchange such of their records as are pertinent to its functions and shall cooperate with the Exchange in the development and use of equipment and facilities on a joint basis, where feasible. No state official or agency shall maintain records which are a duplication of the records on deposit in the Central Criminal Records Exchange, except to the extent necessary for efficient internal administration of such agency. Furthermore, the Virginia Parole Board may receive and use electronically disseminated criminal history record information from the Central Criminal Records Exchange as required to make parole determinations pursuant to subdivisions 1, 2, 3, 4, and 6 of § 53.1-136 , provided the data is (i) temporarily stored with the Board solely for operational purposes, (ii) purged within 30 days of receipt of updated data by the Board, and (iii) accessed and viewed solely by Parole Board members and authorized staff pursuant to §§ 9.1-101 and 9.1-130 .

(Code 1950, § 19.1-19.4; 1966, c. 669; 1975, c. 495; 1993, c. 313; 2020, cc. 2, 529.)

The 2020 amendments. - The 2020 amendments by cc. 2 and 529 are identical, and in the last sentence, substituted "subdivisions 1, 2, 3, 4, and 6" for "subdivisions 1, 2, 3, and 5" and made stylistic changes.

§ 19.2-392. Fingerprints and photographs by police authorities.

  1. All duly constituted police authorities having the power of arrest may take the fingerprints and photographs of: (i) any person arrested by them and charged with a felony or a misdemeanor an arrest for which is to be reported by them to the Central Criminal Records Exchange, (ii) any person who pleads guilty or is found guilty after being summoned in accordance with subsection B of § 19.2-73 or § 19.2-74 , (iii) any person charged with an offense that has been deferred by the court pursuant to §§ 18.2-57.3 , 18.2-251 , or 19.2-303.2 , or (iv) upon the order of a court, any person found in contempt or in violation of the terms or conditions of a suspended sentence or probation for a felony offense pursuant to § 18.2-456 , 19.2-306 , or 53.1-165 . Such authorities shall make such records available to the Central Criminal Records Exchange. Such authorities are authorized to provide, on the request of duly appointed law-enforcement officers, copies of any fingerprint records they may have, and to furnish services and technical advice in connection with the taking, classifying and preserving of fingerprints and fingerprint records.
  2. Such police authorities may establish and collect a reasonable fee not to exceed $10 for the first card and $5 for each successive card for the taking of fingerprints when voluntarily requested by any person for purposes other than criminal violations.

    (Code 1950, § 19.1-19.6; 1968, c. 722; 1975, c. 495; 1978, c. 825; 1985, c. 306; 2005, c. 347; 2019, cc. 782, 783; 2020, cc. 91, 92, 93, 189.)

Cross references. - As to fingerprints and photographs of juveniles, see § 16.1-299.

The 2005 amendments. - The 2005 amendment by c. 347 substituted "$10 for the first card and $5 for each successive card" for "five dollars" in subsection B.

The 2019 amendments. - The 2019 amendments by cc. 782 and 783 are identical, and in subsection A, added clause (iii) and made stylistic changes.

The 2020 amendments. - The 2020 amendments by cc. 91 and 92 are identical, and inserted "subsection B of § 19.2-73 or" in clause (ii) of subsection A.

The 2020 amendments by cc. 93 and 189 are identical, and added "or (iv) upon the order of a court, any person found in contempt or in violation of the terms or conditions of a suspended sentence or probation for a felony offense pursuant to § 18.2-456 , 19.2-306 , or 53.1-165 " in subsection A and made related changes.

OPINIONS OF THE ATTORNEY GENERAL

Disclosure of arrest photographs. - Local law-enforcement agencies must disclose adult arrestee photographs pursuant to a valid FOIA request if they are contained in a database maintained by the local law-enforcement agency, regardless of whether the defendant is still incarcerated or has been released, unless disclosing them will jeopardize a felony investigation. However, photographs may not be drawn from the Central Criminal Records Exchange for disclosure at any time to comply with a FOIA request. See opinion of Attorney General to The Honorable Jim O'Sullivan, Sheriff, City of Chesapeake, No. 14-063, 2015 Va. AG LEXIS 5 (2/5/15).

§ 19.2-392.01. Judges may require taking of fingerprints and photographs in certain misdemeanor cases.

The judge of a district court may, in his discretion, on motion of the attorney for the Commonwealth, require the duly constituted police officers of the county, city or town within the territorial jurisdiction of the court to take the fingerprints and photograph of any person who has been arrested and charged with a misdemeanor other than a misdemeanor which is a violation of any provision of Title 46.2.

(1995, c. 407; 1996, cc. 755, 914.)

Editor's note. - Acts 1996, cc. 755 and 914, cl. 7, provide: "[t]hat the provisions of this act shall apply to offenses committed and to records created and proceedings held with respect to those offenses on or after July 1, 1996."

§ 19.2-392.02. National criminal background checks by businesses and organizations regarding employees or volunteers providing care to children or the elderly or disabled.

  1. For purposes of this section: "Barrier crime" means (i) a felony violation of § 16.1-253.2; any violation of § 18.2-31 , 18.2-32 , 18.2-32.1 , 18.2-32.2 , 18.2-33 , 18.2-35 , 18.2-36 , 18.2-36 .1, 18.2-36.2 , 18.2-41 , or 18.2-42 ; any felony violation of § 18.2-46.2 , 18.2-46.3 , 18.2-46.3:1 , or 18.2-46.3:3 ; any violation of § 18.2-46.5 , 18.2-46.6 , or 18.2-46.7 ; any violation of subsection A or B of § 18.2-47 ; any violation of § 18.2-48 , 18.2-49 , or 18.2-50.3 ; any violation of § 18.2-51 , 18.2-51.1 , 18.2-51.2 , 18.2-51.3 , 18.2-51.4 , 18.2-51.5 , 18.2-51.6 , 18.2-52 , 18.2-52.1 , 18.2-53 , 18.2-53.1 , 18.2-54.1 , 18.2-54.2 , 18.2-55 , 18.2-55.1 , 18.2-56 , 18.2-56.1 , 18.2-56 .2, 18.2-57 , 18.2-57.01 , 18.2-57.02 , 18.2-57.2 , 18.2-58 , 18.2-58.1 , 18.2-59 , 18.2-60 , or 18.2-60.1 ; any felony violation of § 18.2-60.3 or 18.2-60 .4; any violation of § 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 , 18.2-67.4:1 , 18.2-67.4:2 , 18.2-67.5 , 18.2-67.5:1 , 18.2-67.5:2 , 18.2-67.5:3 , 18.2-77 , 18.2-79 , 18.2-80 , 18.2-81 , 18.2-82 , 18.2-83 , 18.2-84 , 18.2-85 , 18.2-86 , 18.2-87 , 18.2-87 .1, or 18.2-88 ; any felony violation of § 18.2-279 , 18.2-280 , 18.2-281 , 18.2-282 , 18.2-282.1 , 18.2-286.1 , or 18.2-287.2 ; any violation of § 18.2-289 , 18.2-290 , 18.2-300 , 18.2-308.4 , or 18.2-31 4; any felony violation of § 18.2-346.01 , 18.2-348 , or 18.2-349 ; any violation of § 18.2-35 5, 18.2-356 , 18.2-357 , or 18.2-357 .1; any violation of subsection B of § 18.2-361 ; any violation of § 18.2-366 , 18.2-369 , 18.2-370 , 18.2-370 .1, 18.2-370.2 , 18.2-370.3 , 18.2-370.4 , 18.2-370.5 , 18.2-370.6 , 18.2-371.1 , 18.2-374.1 , 18.2-374.1 :1, 18.2-374.3 , 18.2-374.4 , 18.2-379 , 18.2-386.1 , or 18.2-386.2 ; any felony violation of § 18.2-405 or 18.2-406 ; any violation of § 18.2-408 , 18.2-41 3, 18.2-414 , 18.2-42 3, 18.2-423 .01, 18.2-423.1 , 18.2-423.2 , 18.2-433.2 , 18.2-47 2.1, 18.2-474.1 , 18.2-477 , 18.2-477 .1, 18.2-477.2 , 18.2-478 , 18.2-479 , 18.2-48 0, 18.2-481 , 18.2-484 , 18.2-485 , 37.2-917 , or 53.1-203 ; or any substantially similar offense under the laws of another jurisdiction; (ii) any violation of § 18.2-89 , 18.2-90 , 18.2-91 , 18.2-92 , 18.2-93 , or 18.2-94 or any substantially similar offense under the laws of another jurisdiction; (iii) any felony violation of § 4.1-1101 , 18.2-248 , 18.2-248 .01, 18.2-248.02 , 18.2-248.03 , 18.2-248.1 , 18.2-248.5 , 18.2-251.2 , 18.2-251.3 , 18.2-255 , 18.2-255 .2, 18.2-258 , 18.2-258 .02, 18.2-258.1 , or 18.2-258.2 or any substantially similar offense under the laws of another jurisdiction; (iv) any felony violation of § 18.2-250 or any substantially similar offense under the laws of another jurisdiction; (v) any offense set forth in § 9.1-902 that results in the person's requirement to register with the Sex Offender and Crimes Against Minors Registry pursuant to § 9.1-901 , including any finding that a person is not guilty by reason of insanity in accordance with Chapter 11.1 (§ 19.2-182.2 et seq.) of Title 19.2 of an offense set forth in § 9.1-902 that results in the person's requirement to register with the Sex Offender and Crimes Against Minors Registry pursuant to § 9.1-901 ; any substantially similar offense under the laws of another jurisdiction; or any offense for which registration in a sex offender and crimes against minors registry is required under the laws of the jurisdiction where the offender was convicted; or (vi) any other felony not included in clause (i), (ii), (iii), (iv), or (v) unless five years have elapsed from the date of the conviction. "Barrier crime information" means the following facts concerning a person who has been arrested for, or has been convicted of, a barrier crime, regardless of whether the person was a juvenile or adult at the time of the arrest or conviction: full name, race, sex, date of birth, height, weight, fingerprints, a brief description of the barrier crime or offenses for which the person has been arrested or has been convicted, the disposition of the charge, and any other information that may be useful in identifying persons arrested for or convicted of a barrier crime. "Care" means the provision of care, treatment, education, training, instruction, supervision, or recreation to children or the elderly or disabled. "Department" means the Department of State Police. "Employed by" means any person who is employed by, volunteers for, seeks to be employed by, or seeks to volunteer for a qualified entity. "Identification document" means a document made or issued by or under the authority of the United States government, a state, a political subdivision of a state, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization that, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals. "Provider" means a person who (i) is employed by a qualified entity and has, seeks to have, or may have unsupervised access to a child or to an elderly or disabled person to whom the qualified entity provides care; (ii) is a volunteer of a qualified entity and has, seeks to have, or may have unsupervised access to a child to whom the qualified entity provides care; or (iii) owns, operates, or seeks to own or operate a qualified entity. "Qualified entity" means a business or organization that provides care to children or the elderly or disabled, whether governmental, private, for profit, nonprofit, or voluntary, except organizations exempt pursuant to subdivision A 7 of § 22.1-289.030.
  2. A qualified entity may request the Department of State Police to conduct a national criminal background check on any provider who is employed by such entity. No qualified entity may request a national criminal background check on a provider until such provider has:
    1. Been fingerprinted; and
    2. Completed and signed a statement, furnished by the entity, that includes (i) his name, address, and date of birth as it appears on a valid identification document; (ii) a disclosure of whether or not the provider has ever been convicted of or is the subject of pending charges for a criminal offense within or outside the Commonwealth, and if the provider has been convicted of a crime, a description of the crime and the particulars of the conviction; (iii) a notice to the provider that the entity may request a background check; (iv) a notice to the provider that he is entitled to obtain a copy of any background check report, to challenge the accuracy and completeness of any information contained in any such report, and to obtain a prompt determination as to the validity of such challenge before a final determination is made by the Department; and (v) a notice to the provider that prior to the completion of the background check the qualified entity may choose to deny the provider unsupervised access to children or the elderly or disabled for whom the qualified entity provides care.
  3. Upon receipt of (i) a qualified entity's written request to conduct a background check on a provider, (ii) the provider's fingerprints, and (iii) a completed, signed statement as described in subsection B, the Department shall make a determination whether the provider has been convicted of or is the subject of charges of a barrier crime. To conduct its determination regarding the provider's barrier crime information, the Department shall access the national criminal history background check system, which is maintained by the Federal Bureau of Investigation and is based on fingerprints and other methods of identification, and shall access the Central Criminal Records Exchange maintained by the Department. If the Department receives a background report lacking disposition data, the Department shall conduct research in whatever state and local recordkeeping systems are available in order to obtain complete data. The Department shall make reasonable efforts to respond to a qualified entity's inquiry within 15 business days.
  4. Any background check conducted pursuant to this section for a provider employed by a private entity shall be screened by the Department of State Police. If the provider has been convicted of or is under indictment for a barrier crime, the qualified entity shall be notified that the provider is not qualified to work or volunteer in a position that involves unsupervised access to children or the elderly or disabled.
  5. Any background check conducted pursuant to this section for a provider employed by a governmental entity shall be provided to that entity.
  6. In the case of a provider who desires to volunteer at a qualified entity and who is subject to a national criminal background check, the Department and the Federal Bureau of Investigation may each charge the provider the lesser of $18 or the actual cost to the entity of the background check conducted with the fingerprints.
  7. The failure to request a criminal background check pursuant to subsection B shall not be considered negligence per se in any civil action.

    (2000, c. 860; 2005, c. 217; 2015, cc. 758, 770; 2017, c. 809; 2018, cc. 9, 810; 2019, c. 617; 2020, cc. 860, 861; 2021 Sp. Sess. I, cc. 188, 550, 551.)

Editor's note. - Acts 2018, c. 9, cl. 2 provides: "That the provisions of this act shall expire on July 1, 2020."

Acts 2018, c. 810, cl. 2 provides: "That the provisions of this act shall become effective on July 1, 2019."

Acts 2019, c. 617, cl. 2 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 2 of the Acts of Assembly of 2018, Special Session I, requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, cc. 860 and 861, cl. 3 provides: "That the provisions of the first and second enactments of this act shall become effective on July 1, 2021, except that § 22.1-289.04 of the Code of Virginia, as created by this act, shall become effective in due course."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101 .1, 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8 provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101 .1, 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021.

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

Effective date. - This section is effective January 1, 2001.

The 2005 amendments. - The 2005 amendment by c. 217 deleted "two sets of" following "provided" in subdivision B 1, and made minor stylistic changes.

The 2015 amendments. - The 2015 amendments by cc. 758 and 770 are identical, and in subsection A, inserted "is a volunteer of a qualified entity and has, seeks to have, or may have unsupervised access to a child to whom the qualified entity provides care; or (iii)" in the definition for "Provider"; substituted "A qualified entity" for "Notwithstanding §§ 63.2-1719 to 63.2-1721 and 63.2-1724 , a qualified entity" in subsection B; deleted "at any local or state law-enforcement agency and provided the fingerprints to the qualified entity" following "fingerprinted" in subdivision B 1; and made minor stylistic changes.

The 2017 amendments. - The 2017 amendment by c. 809, in subsection A, rewrote the definition for "Barrier crime," which formerly read: "'Barrier crime' means any offense set forth in § 63.2-1719 or 63.2-1726 ."

The 2018 amendments. - The 2018 amendment by c. 9, expired July 1, 2020, and added subsection H.

The 2018 amendment by c. 810, effective July 1, 2019, in subsection A, substituted "subdivision A 7" for "subdivision A 10" in the definition of "Qualified entity."

The 2019 amendments. - The 2019 amendment by c. 617 inserted "18.2-348, or 18.2-349 " in the definition for "Barrier crime."

The 2020 amendments. - The 2020 amendments by cc. 860 and 861, effective July 1, 2021, are identical, and substituted " § 22.1-289.030" for " § 63.2-1715 " in subsection A in the definition for "Qualified entity."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, substituted " § 18.2-346.01 " for " § 18.2-346 " in the definition for "Barrier crime" in subsection A.

The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 2, effective July 1, 2021, are identical, and deleted subsection H, which read "H. [Expired.]."

Chapter 23.1. Expungement of Criminal Records.

Sec.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 2.

§ 19.2-392.1. (For contingent expiration date, see Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 9) Statement of policy.

The General Assembly finds that arrest records can be a hindrance to an innocent citizen's ability to obtain employment, an education and to obtain credit. It further finds that the police and court records of those of its citizens who have been absolutely pardoned for crimes for which they have been unjustly convicted can also be a hindrance. This chapter is intended to protect such persons from the unwarranted damage which may occur as a result of being arrested and convicted.

(1977, c. 675; 1984, c. 642.)

Section set out twice. - The section above is effective until the amendments by Acts 2021, Sp. Sess. I, cc. 550 and 551 take effect. For the version of this section effective as amended by Acts 2021, Sp. Sess. I, cc. 550 and 551, see the following section, also numbered § 19.2-392.1 .

Law review. - For survey of Virginia criminal procedure for the year 1976-1977, see 63 Va. L. Rev. 1408 (1977).

Applied in Gregg v. Commonwealth, 227 Va. 504 , 316 S.E.2d 741 (1984).

CIRCUIT COURT OPINIONS

"Innocent citizen." - Entering of an order of expungement was improper because, having pleaded guilty to the use of profane language removed defendant from the group of innocent citizens the legislature envisioned as being eligible for expungement; had the incident giving rise to the stalking charge and subsequent conviction of use of profane language been otherwise dismissed, the result would have left defendant as an innocent citizen with a record of the charge being a hindrance to his ability to obtain employment, an education, and to obtain credit. Defendant was not an innocent citizen in regard to the stalking charge and subsequent guilty plea to use of profane language over a telephone. Commonwealth v. Rowe, 85 Va. Cir. 323, 2012 Va. Cir. LEXIS 174 (Hanover County Aug. 31, 2012).

§ 19.2-392.1. (For contingent effective date, see Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 9) Statement of policy.

The General Assembly finds that arrest records can be a hindrance to an innocent a citizen's ability to obtain employment, and an education and to obtain credit. It further finds that the police and court records of those of its citizens who have been absolutely pardoned for crimes for which they have been unjustly convicted or who have demonstrated their rehabilitation can also be a hindrance. This chapter is intended to protect such persons from the unwarranted damage which that may occur as a result of being arrested and convicted.

(1977, c. 675; 1984, c. 642; 2021 Sp. Sess. I, cc. 550, 551.)

Section set out twice. - The section above is set out as amended by Acts 2021, Sp. Sess. I, cc. 550 and 551. For the version of this section effective until the amendments by Acts 2021, Sp. Sess. I, cc. 550 and 551, take effect, see the preceding section, also numbered § 19.2-392.1 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101 .1, 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 9 provides: "That the provisions of the first enactment amending §§ 19.2-389.3 , 19.2-392.1 , and 19.2-392.4 of the Code of Virginia and creating §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia shall become effective on the earlier of (i) the first day of the fourth month following notification to the Chairman of the Virginia Code Commission and the Chairmen of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B of § 17.1-502 of the Code of Virginia have automated systems to exchange information as required by § 19.2-392.2:1 of the Code of Virginia, as created by this act, or (ii) July 1, 2025. The Department of State Police shall first transmit the list required under subsection B of § 19.2-392.2:1 of the Code of Virginia, as created by this act, no later than the earlier of (a) the first day of the third month following the effective date of §§ 19.2-389.3 , 19.2-392.1 , and 19.2-392.4 of the Code of Virginia, as amended by this act, and §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia, as created by this act, or (b) October 1, 2025. The Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B of § 17.1-502 of the Code of Virginia, shall automate systems to exchange information as required by §§ 19.2-392.2:1 of the Code of Virginia, as created by this act, no later than July 1, 2025. If the provisions of this act repealing § 18.2-248.1 of the Code of Virginia are not reenacted by the 2022 Session of the General Assembly, the references to § 18.2-248.1 in §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia, as created by this act, shall not become effective."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 1, are identical, and substituted "a citizen's" for "an innocent citizen's," inserted "or who have demonstrated their rehabilitation"; and made a stylistic change. For effective date see Editor's note.

§ 19.2-392.2. Expungement of police and court records.

  1. If a person is charged with the commission of a crime, a civil offense, or any offense defined in Title 18.2, and
    1. Is acquitted, or
    2. A nolle prosequi is taken or the charge is otherwise dismissed, including dismissal by accord and satisfaction pursuant to § 19.2-151 , he may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge.
  2. If any person whose name or other identification has been used without his consent or authorization by another person who has been charged or arrested using such name or identification, he may file a petition with the court disposing of the charge for relief pursuant to this section. Such person shall not be required to pay any fees for the filing of a petition under this subsection. A petition filed under this subsection shall include one complete set of the petitioner's fingerprints obtained from a law-enforcement agency.
  3. The petition with a copy of the warrant, summons, or indictment if reasonably available shall be filed in the circuit court of the county or city in which the case was disposed of by acquittal or being otherwise dismissed and shall contain, except where not reasonably available, the date of arrest and the name of the arresting agency. Where this information is not reasonably available, the petition shall state the reason for such unavailability. The petition shall further state the specific criminal charge or civil offense to be expunged, the date of final disposition of the charge as set forth in the petition, the petitioner's date of birth, and the full name used by the petitioner at the time of arrest.
  4. A copy of the petition shall be served on the attorney for the Commonwealth of the city or county in which the petition is filed. The attorney for the Commonwealth may file an objection or answer to the petition or may give written notice to the court that he does not object to the petition within 21 days after it is served on him.
  5. The petitioner shall obtain from a law-enforcement agency one complete set of the petitioner's fingerprints and shall provide that agency with a copy of the petition for expungement. The law-enforcement agency shall submit the set of fingerprints to the Central Criminal Records Exchange (CCRE) with a copy of the petition for expungement attached. The CCRE shall forward under seal to the court a copy of the petitioner's criminal history, a copy of the source documents that resulted in the CCRE entry that the petitioner wishes to expunge, if applicable, and the set of fingerprints. Upon completion of the hearing, the court shall return the fingerprint card to the petitioner. If no hearing was conducted, upon the entry of an order of expungement or an order denying the petition for expungement, the court shall cause the fingerprint card to be destroyed unless, within 30 days of the date of the entry of the order, the petitioner requests the return of the fingerprint card in person from the clerk of the court or provides the clerk of the court a self-addressed, stamped envelope for the return of the fingerprint card.
  6. After receiving the criminal history record information from the CCRE, the court shall conduct a hearing on the petition. If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge. Otherwise, it shall deny the petition. However, if the petitioner has no prior criminal record and the arrest was for a misdemeanor violation or the charge was for a civil offense, the petitioner shall be entitled, in the absence of good cause shown to the contrary by the Commonwealth, to expungement of the police and court records relating to the charge, and the court shall enter an order of expungement. If the attorney for the Commonwealth of the county or city in which the petition is filed (i) gives written notice to the court pursuant to subsection D that he does not object to the petition and (ii) when the charge to be expunged is a felony, stipulates in such written notice that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, the court may enter an order of expungement without conducting a hearing.
  7. The Commonwealth shall be made party defendant to the proceeding. Any party aggrieved by the decision of the court may appeal, as provided by law in civil cases.
  8. Notwithstanding any other provision of this section, when the charge is dismissed because the court finds that the person arrested or charged is not the person named in the summons, warrant, indictment or presentment, the court dismissing the charge shall, upon motion of the person improperly arrested or charged, enter an order requiring expungement of the police and court records relating to the charge. Such order shall contain a statement that the dismissal and expungement are ordered pursuant to this subsection and shall be accompanied by the complete set of the petitioner's fingerprints filed with his petition. Upon the entry of such order, it shall be treated as provided in subsection K.
  9. Notwithstanding any other provision of this section, upon receiving a copy pursuant to § 2.2-402 of an absolute pardon for the commission of a crime that a person did not commit, the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. Such order shall contain a statement that the expungement is ordered pursuant to this subsection. Upon the entry of such order, it shall be treated as provided in subsection K.
  10. Upon receiving a copy of a writ vacating a conviction pursuant to § 19.2-327.5 or 19.2-327.13 , the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. Such order shall contain a statement that the expungement is ordered pursuant to this subsection. Upon the entry of the order, it shall be treated as provided in subsection K.
  11. Upon the entry of an order of expungement, the clerk of the court shall cause a copy of such order to be forwarded to the Department of State Police, which shall, pursuant to rules and regulations adopted pursuant to § 9.1-134 , direct the manner by which the appropriate expungement or removal of such records shall be effected.
  12. Costs shall be as provided by § 17.1-275 , but shall not be recoverable against the Commonwealth. If the court enters an order of expungement, the clerk of the court shall refund to the petitioner such costs paid by the petitioner.
  13. Any order entered where (i) the court or parties failed to strictly comply with the procedures set forth in this section or (ii) the court enters an order of expungement contrary to law, shall be voidable upon motion and notice made within three years of the entry of such order.

    (1977, c. 675; 1983, c. 394; 1984, c. 642; 1990, c. 603; 1992, c. 697; 2001, cc. 40, 345; 2007, cc. 465, 824, 883, 905; 2009, c. 618; 2011, c. 362; 2015, c. 426; 2016, c. 617; 2019, c. 181; 2020, cc. 1285, 1286.)

Cross references. - As to petition for relief from identity fraud, see § 18.2-186.5 .

The 2001 amendments. - The 2001 amendment by c. 40 substituted "State Police" for "Criminal Justice Services" in subsection H (now I).

The 2001 amendment by c. 345 substituted "file a petition with" for "petition" in subsection B; added present subsection E and redesignated former subsections E through I as F through J; inserted "After receiving the criminal history record information from the CCRE" at the beginning of subsection F; substituted "subsection I" for "subsection H" at the end of subsection H; and substituted "State Police, which" for "Criminal Justice Services, which Department" in subsection I.

The 2007 amendments. - The 2007 amendments by cc. 465, 824, 883, and 905, inserted "including electronic records" near the end of the second sentence in subsection F; and added subsection J.

In addition, the 2007 amendment by c. 824 added subsections K and L.

In addition, the 2007 amendment by c. 883 deleted "3. Is granted an absolute pardon for the commission of a crime for which he has been unjustly convicted" in subsection A; inserted subsection I and redesignated the remaining subsections accordingly; and made a related change in subsection H.

In addition, the 2007 amendment by c. 905 substituted "or any offense defined in Title 18.2, and" for "and" in subsection A.

The section is set out in the form above at the direction of the Virginia Code Commission.

The 2009 amendments. - The 2009 amendment by c. 618 added the last sentence in subsection B.

The 2011 amendments. - The 2011 amendment by c. 362, added the last sentence of subsection B, and added "and shall be accompanied by the complete set of the petitioner's fingerprints filed with his petition" at the end of the second sentence in subsection H.

The 2015 amendments. - The 2015 amendment by c. 426 inserted "or may give written notice to the court that he does not object to the petition" in subsection D; added the last sentence of subsections E and F; and deleted "hereof" at the end of subsections H through J.

The 2016 amendments. - The 2016 amendment by c. 617 added the second sentence in subsection L.

The 2019 amendments. - The 2019 amendment by c. 181 rewrote subsection I, substituted "upon receiving a copy pursuant to § 2.2-402 of an absolute pardon for the commission of a crime that a person did not commit" for "when a person has been granted an absolute pardon for the commission of a crime that he did not commit, he may file in the circuit court of the county or city in which the conviction occurred a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge and conviction, and."

The 2020 amendments. - The 2020 amendments by cc. 1285 and 1286 are identical, and in subsection A in the introductory language, inserted "a civil offense"; in subsection C in the first sentence, inserted "summons" and in the last sentence, inserted "or civil defense"; in subsection E in the third sentence, inserted "if applicable"; in subsection F in the third sentence, inserted "or the charge was for a civil offense" and made stylistic changes.

Law review. - For survey of Virginia criminal procedure for the year 1976-1977, see 63 Va. L. Rev. 1408 (1977).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

Research References. - Virginia Forms (Matthew Bender). No. 9-4102. Petition for Expungement - Absolute Pardon, et seq.

CASE NOTES

Proceedings appropriate for challenging outstanding judgments. - Expungement order proceedings involve a judicial determination and are therefore quite clearly appropriate vehicles for challenging the validity of outstanding criminal judgments. Snyder v. City of Alexandria, 870 F. Supp. 672 (E.D. Va. 1994).

Charge dismissed under first offender statute not "otherwise dismissed" for purposes of this section. - This section applies to innocent persons, not to those who are guilty. Under § 18.2-251 , probation and ultimate dismissal is conditioned on a plea of guilty or a finding of guilt. One who is "guilty" cannot occupy the status of "innocent" so as to qualify under the expungement statute as a person whose charge has been "otherwise dismissed." Gregg v. Commonwealth, 227 Va. 504 , 316 S.E.2d 741 (1984).

Because defendant's possession charge was not "otherwise dismissed" within the meaning of the expungement statute under subsection A, as the trial court had to find defendant guilty before disposing of her case pursuant to the first offender statute, § 18.2-251 , defendant was not entitled to have the charge expunged from her record. Commonwealth v. Dotson, 276 Va. 278 , 661 S.E.2d 473, 2008 Va. LEXIS 80 (2008).

Deferral of judgment and subsequent dismissal without determination of guilt. - A person deferred from judgment following a determination that the evidence is sufficient to support a conviction is not "innocent" of the offense regardless of the plea originally entered. Nor does a dismissal following satisfaction of the terms of that deferral render the case "otherwise dismissed" for purposes of expungement. Commonwealth v. Jackson, 255 Va. 552 , 499 S.E.2d 276 (1998).

Repeal of the ordinance under which a person was arrested does not render moot his request for expungement. Hearn v. Hudson, 549 F. Supp. 949 (W.D. Va. 1982).

Expungement order from federal court. - The administration of records related to law enforcement is a function close to the core of state government. An expungement order from a federal court would be a significant intrusion - and, in light of the availability of the state court procedure, an unnecessary intrusion - into the State's administration of its record-keeping. Hearn v. Hudson, 549 F. Supp. 949 (W.D. Va. 1982).

No fraud upon court in failing to tell of pending collateral action. - Defendant who was acquitted of charges of aggravated sexual battery of minor daughter did not commit a fraud on the court in his request for expungement of police and court records of the charge by failing to disclose that persons who made the sexual battery allegations were defendants in his civil action then pending for malicious prosecution, conspiracy, and intentional infliction of emotional distress. Ein v. Commonwealth, 246 Va. 396 , 436 S.E.2d 610 (1993).

Charge "otherwise dismissed" for purposes of this section. - Neither petitioner entered a plea; each trial court took the charge under advisement while the petitioner performed agreed upon tasks with the understanding that, on doing so, the charge would be dismissed. As dismissals of the charges took place without a determination of guilt, without a finding of evidence sufficient to establish guilt, and without penalties or conditions imposed by judicial authority, petitioners were "innocent" so as to qualify for expungement of their criminal records under subdivision A 2 of § 19.2-392.2 as persons whose charges were "otherwise dismissed." Brown v. Commonwealth, 278 Va. 92 , 677 S.E.2d 220, 2009 Va. LEXIS 70 (2009).

Trial court erred by finding that defendant could not, under subsection A of § 19.2-392.2 , seek expungement of records pertaining to a possession of marijuana charge as the charge was amended to the completely separate and unrelated charge of reckless driving; since reckless driving was not a lesser-included offense of possession of marijuana, the elements of the offense of which defendant was convicted were not subsumed within the possession of marijuana charge and did not form the sole basis for the conviction. Thus, the possession of marijuana charge was necessarily "otherwise dismissed" within the intendment of subdivision A 2 of § 19.2-392.2 . Dressner v. Commonwealth, 285 Va. 1 , 736 S.E.2d 735, 2013 Va. LEXIS 9 (2013).

Petitioner was eligible to seek expungement of her felony arrest record where disorderly conduct was not a lesser included offense of felony assault and battery of a police officer, the Commonwealth had amended the felony assault and battery charge to misdemeanor disorderly conduct, and thus, her felony arrest record qualified as a charge that was otherwise dismissed under subsection A of § 19.2-392.2 . A.R.A. v. Commonwealth, 295 Va. 153 , 809 S.E.2d 660, 2018 Va. LEXIS 14 (Mar. 1, 2018).

Not guilty by reason of insanity. - Circuit court properly denied appellant's petition for expungement of police and court records following finding that he was not guilty by reason of insanity because, while subdivision A 1 of § 19.2-392.2 permitted a person charged with commission of a crime to seek expungement if he had been acquitted of the crime, the term "acquitted" does not include acquittals by reason of insanity. Eastlack v. Commonwealth, 282 Va. 120 , 710 S.E.2d 723, 2011 Va. LEXIS 126 (2011).

Expungement granted. - Trial court erred by finding that defendant could not, under subsection A of § 19.2-392.2 , seek expungement of records pertaining to a possession of marijuana charge as the charge was necessarily "otherwise dismissed" within the intendment of subdivision A 2 of § 19.2-392.2 , and defendant demonstrated the existence of manifest injustice through her loss of employment as a result of a background check that revealed the possession of marijuana charge; therefore, she had satisfied the requirements of the expungement statute and was entitled to have the records relating to the possession of marijuana charge expunged. Dressner v. Commonwealth, 285 Va. 1 , 736 S.E.2d 735, 2013 Va. LEXIS 9 (2013).

Trial court abused its discretion in denying the petition for expungement where it improperly gave weight to her actual guilt or innocence, and the uncontested facts established a reasonable possibility that a felony arrest record would have hindered her career or her educational opportunities, and had hindered the pursuit of her volunteer interests. A.R.A. v. Commonwealth, 295 Va. 153 , 809 S.E.2d 660, 2018 Va. LEXIS 14 (Mar. 1, 2018).

Applied in Commonwealth v. Hill, 264 Va. 541 , 570 S.E.2d 805, 2002 Va. LEXIS 170 (2002).

CIRCUIT COURT OPINIONS

Construction. - Both the open records law and the expungement law grant the circuit court discretionary authority to close records using the permissive word "may" but judicial records are presumed to be open, persons are presumed innocent, and those who have their cases dismissed thereafter occupy the status of innocent; thus, the presumption against sealing can be lifted when a party points to a real harm that has occurred as opposed to a theoretical, to-be-determined harm. Falkoff v. Falkoff, 103 Va. Cir. 405, 2019 Va. Cir. LEXIS 1168 (Fairfax County Dec. 6, 2019).

Defendant's charge was "otherwise dismissed" because defendant's plea was not guilty, and thus, the presumption of innocence remained with him, and the judge did not check the box indicating that there were facts sufficient to find guilt, but simply wrote "stip to facts." Redacted v. Commonwealth,, 2021 Va. Cir. LEXIS 99 (Fairfax County Apr. 29, 2021).

Intervention. - Father lacked standing to participate in any pending expungement proceedings as he was not a proper party to any of the expungement proceedings, and he would not be considered aggrieved to have standing to pursue a claim in the expungement proceedings since he did not have a direct interest in matters between only the mother and the Commonwealth. Well v. No Defendant,, 2021 Va. Cir. LEXIS 135 (Fairfax County June 14, 2021).

Expungement granted. - Petitioner was entitled to expungement of a sexual battery charge under § 19.2-392.2 because he did not plead guilty to sexual battery and that charge was ultimately dropped; further, petitioner showed that the dissemination of information relating to that charge could cause him manifest injustice by prejudicing his opportunities for employment or housing. D.W. v. Commonwealth, 72 Va. Cir. 132, 2006 Va. Cir. LEXIS 300 (Charlottesville 2006).

Granting of petitioner's motion to expunge police and court records was proper because he neither pled guilty to reckless driving nor was there a finding of guilt as to the reckless driving charge; because improper driving was not a lesser-included offense of reckless driving, the reckless driving charge was "otherwise dismissed" within the meaning of the expungement statute, § 19.2-392.2 . MacDonald v. Commonwealth, 83 Va. Cir. 485, 2011 Va. Cir. LEXIS 192 (Fairfax County Nov. 30, 2011).

Expungement denied. - Inmate's expungement petition, pursuant to this section, was denied where the inmate had a prior criminal record, the unrelated charge sought to be expunged was a felony, and he failed to establish by the greater weight of the evidence that the possible dissemination of such arrest record created a manifest injustice. Miller v. Commonwealth, 55 Va. Cir. 110, 2001 Va. Cir. LEXIS 56 (Fairfax County 2001).

Misdemeanor convictions could not be expunged from an individual's record where the individual pleaded guilty to and was found guilty of the crimes as the individual was not innocent of the crimes. Sanderlin v. Commonwealth, 58 Va. Cir. 375, 2002 Va. Cir. LEXIS 154 (Norfolk 2002).

Where an inmate was charged and convicted of criminal contempt for failing to appear, he was not innocent of the contempt charge for which he sought expungement; therefore, he was not entitled to relief. Brown v. Commonwealth, 60 Va. Cir. 214, 2002 Va. Cir. LEXIS 278 (Fairfax County 2002).

Because defendant pleaded guilty to two counts of burglary, defendant could not occupy the status of "innocent" so as to qualify for expungement under any applicable provision; defendant could not challenge the validity of the guilty pleas through an expungement proceeding.But see Woodward v. Commonwealth, 68 Va. Cir. 66, 2005 Va. Cir. LEXIS 58 (Fairfax County 2005); D.W. v. Commonwealth, 72 Va. Cir. 132, 2006 Va. Cir. LEXIS 300 (Charlottesville 2006).

Defendant failed to establish a right to expunge her record pursuant to § 19.2-392.2 under circumstances in which a court found that the evidence was sufficient to find guilt of a petit larceny charge, deferred judgment, and after defendant completed the terms imposed by the court, dismissed the charges. Newton v. Commonwealth, 71 Va. Cir. 160, 2006 Va. Cir. LEXIS 115 (Fairfax County 2006).

Petition to expunge petitioner's criminal record of petitioner's arrest for petit larceny under § 19.2-392.2 was denied because petitioner was not acquitted of the charge, the charge was not the subject of a nolle prosequi, nor was petitioner given an absolute pardon; the charge was dismissed because petitioner complied with terms of probation. Allman v. Commonwealth, 74 Va. Cir. 170, 2007 Va. Cir. LEXIS 277 (Roanoke County 2007).

Entering of an order of expungement was improper because, having pleaded guilty to the use of profane language removed defendant from the group of innocent citizens the legislature envisioned as being eligible for expungement; had the incident giving rise to the stalking charge and subsequent conviction of use of profane language been otherwise dismissed, the result would have left defendant as an innocent citizen with a record of the charge being a hindrance to his ability to obtain employment, an education, and to obtain credit. Defendant was not an innocent citizen in regard to the stalking charge and subsequent guilty plea to use of profane language over a telephone. Commonwealth v. Rowe, 85 Va. Cir. 323, 2012 Va. Cir. LEXIS 174 (Hanover County Aug. 31, 2012).

§ 19.2-392.2:1. (For contingent effective date, see Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 9) Former marijuana offenses; automatic expungement.

  1. Records relating to the arrest, criminal charge, conviction, or civil offense of a person for a misdemeanor violation of former § 18.2-248.1 or a violation of former § 18.2-250.1 , including any violation charged under either section and the charge was deferred and dismissed, shall be ordered to be automatically expunged in accordance with the provisions of this section.
  2. No later than July 1, 2025, the Department of State Police shall determine which offenses in the Central Criminal Records Exchange meet the criteria for automatic expungement set forth in subsection A. The Department of State Police shall provide an electronic list of all offenses that meet the criteria for automatic expungement to the Executive Secretary of the Supreme Court and to any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B of § 17.1-502 .
  3. Upon receipt of the electronic list from the Department of State Police provided under subsection B, the Executive Secretary of the Supreme Court shall provide an electronic list of all offenses that meet the criteria for automatic expungement set forth in subsection A to the clerk of each circuit court in the jurisdiction where the case was finalized, if such circuit court clerk participates in the case management system maintained by the Executive Secretary.
  4. Upon receipt of the electronic list provided under subsection B or C, the clerk of each circuit court shall prepare an order and the chief judge of that circuit court shall enter such order directing that the offenses that meet the criteria for automatic expungement set forth in subsection A be automatically expunged under the process set forth in subsections E, F, and G. Such order shall contain the names of the persons charged with or convicted of such offenses.
  5. The clerk of each circuit court shall provide an electronic copy of any order entered under subsection D to the Department of State Police. Upon receipt of such order, the Department of State Police (i) shall not disseminate any criminal history record information contained in the Central Criminal Records Exchange, including any records relating to an arrest, charge, or conviction, that was ordered to be expunged, except for purposes set forth in this section and pursuant to rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 and (ii) shall electronically notify those agencies and individuals known to maintain or to have obtained such a record that such record has been ordered to be expunged and may only be disseminated for purposes set forth in this section and pursuant to rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 . Any records maintained electronically that are transformed or transferred by whatever means to an offline system or to a confidential and secure area inaccessible from normal use within the system in which the record is maintained shall be considered expunged, provided that such records are accessible only to the manager of the records or their designee.
  6. Records relating to an arrest, charge, or conviction that was ordered to be expunged pursuant to this section shall not be open for public inspection or otherwise disclosed, provided that such records may be disseminated and used for the following purposes: (i) to make the determination as provided in § 18.2-308.2:2 of eligibility to possess or purchase a firearm; (ii) for fingerprint comparison utilizing the fingerprints maintained in the Automated Fingerprint Information System; (iii) to the Virginia Criminal Sentencing Commission for its research purposes; (iv) 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 employment or part-time employment with, or to be a volunteer 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; (v) 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 ; (vi) to any full-time or part-time employee of the Department of Forensic Science for the purpose of screening any person for full-time or part-time employment with the Department of Forensic Science; (vii) 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 ; (viii) to any full-time or part-time employee of the Department of Motor Vehicles, any employer as defined in § 46.2-341.4 , or any medical examiner as defined in 49 C.F.R. § 390.5 for the purpose of complying with the regulations of the Federal Motor Carrier Safety Administration; (ix) to any employer or prospective employer or its designee where federal law requires the employer to inquire about prior criminal charges or convictions; (x) to any employer or prospective employer or its designee where the position that a person is applying for, or where access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any contract with, or statute or regulation of, the United States or any Executive Order of the President; (xi) to any person authorized to engage in the collection of court costs, fines, or restitution under subsection C of § 19.2-349 for purposes of collecting such court costs, fines, or restitution; (xii) to administer and utilize the DNA Analysis and Data Bank set forth in Article 1.1 (§ 19.2-310.2 et seq.) of Chapter 18; (xiii) to publish decisions of the Supreme Court, Court of Appeals, or any circuit court; (xiv) to any full-time or part-time employee of a court, the Office of the Executive Secretary, the Division of Legislative Services, or the Chairs of the House Committee for Courts of Justice and the Senate Committee on the Judiciary for the purpose of screening any person for full-time or part-time employment as a clerk, magistrate, or judge with a court or the Office of the Executive Secretary; (xv) to any employer or prospective employer or its designee where this Code or a local ordinance requires the employer to inquire about prior criminal charges or convictions; (xvi) to any employer or prospective employer or its designee that is allowed access to such expunged records in accordance with the rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 ; (xvii) to any business screening service for purposes of complying with § 19.2-392.16 ; (xviii) to any attorney for the Commonwealth and any person accused of a violation of law, or counsel for the accused, in order to comply with any constitutional and statutory duties to provide exculpatory, mitigating, and impeachment evidence to an accused; (xix) to any party in a criminal or civil proceeding for use as authorized by law in such proceeding; (xx) to any party for use in a protective order hearing as authorized by law; (xxi) to the Department of Social Services or any local department of social services for purposes of performing any statutory duties as required under Title 63.2; (xxii) to any party in a proceeding relating to the care and custody of a child for use as authorized by law in such proceeding; (xxiii) to the attorney for the Commonwealth and the court for purposes of determining eligibility for expungement pursuant to the provisions of § 19.2-392.12 ; (xxiv) to determine a person's eligibility to be empaneled as a juror; and (xxv) to the person arrested, charged, or convicted of the offense that was expunged.
  7. The Department of Motor Vehicles shall not expunge any conviction or any charge that was deferred and dismissed after a finding of facts sufficient to justify a finding of guilt (i) in violation of federal regulatory record retention requirements or (ii) in violation of federal program requirements if the Department of Motor Vehicles is required to suspend a person's driving privileges as a result of a conviction or deferral and dismissal ordered to be expunged. Upon receipt of an order directing that an offense be expunged, the Department of Motor Vehicles shall expunge all records if the federal regulatory record retention period has run and all federal program requirements associated with a suspension have been satisfied. However, if the Department of Motor Vehicles cannot expunge an offense pursuant to this subsection at the time it is ordered, the Department of Motor Vehicles shall (a) notify the Department of State Police of the reason the record cannot be expunged and cite the authority prohibiting expungement at the time it is ordered; (b) notify the Department of State Police of the date, if known at the time when the expungement is ordered, on which such record can be expunged; (c) expunge such record on that date; and (d) notify the Department of State Police when such record has been expunged within the Department of Motor Vehicles' records.
  8. All electronic lists created in accordance with this section are not subject to further dissemination unless explicitly provided for by this section. Any expungement order issued pursuant to this section shall be sealed and may only be disseminated for the purposes set forth in this section and pursuant to rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 . Any willful and intentional unlawful dissemination is punishable as an unlawful dissemination of criminal history record information in violation of § 9.1-136 . (2021 Sp. Sess. I, c. 550, 551.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101 .1, 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 9 provides: "That the provisions of the first enactment amending §§ 19.2-389.3 , 19.2-392.1 , and 19.2-392.4 of the Code of Virginia and creating §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia shall become effective on the earlier of (i) the first day of the fourth month following notification to the Chairman of the Virginia Code Commission and the Chairmen of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B of § 17.1-502 of the Code of Virginia have automated systems to exchange information as required by § 19.2-392.2:1 of the Code of Virginia, as created by this act, or (ii) July 1, 2025. The Department of State Police shall first transmit the list required under subsection B of § 19.2-392.2:1 of the Code of Virginia, as created by this act, no later than the earlier of (a) the first day of the third month following the effective date of §§ 19.2-389.3 , 19.2-392.1 , and 19.2-392.4 of the Code of Virginia, as amended by this act, and §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia, as created by this act, or (b) October 1, 2025. The Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B of § 17.1-502 of the Code of Virginia, shall automate systems to exchange information as required by §§ 19.2-392.2:1 of the Code of Virginia, as created by this act, no later than July 1, 2025. If the provisions of this act repealing § 18.2-248.1 of the Code of Virginia are not reenacted by the 2022 Session of the General Assembly, the references to § 18.2-248.1 in §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia, as created by this act, shall not become effective."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

§ 19.2-392.2:2. (For contingent effective date, see Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 9) Former marijuana offenses; petition for expungement.

  1. A person who has been convicted or adjudicated delinquent of a felony violation of former § 18.2-248.1 or a violation of subsection A of § 18.2-265.3 as it relates to marijuana, or charged under either section and the charge is deferred and dismissed, may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the arrest, charge, conviction, or adjudication.
  2. The petition with a copy of the warrant, summons, or indictment if reasonably available shall be filed in the circuit court of the county or city in which the case was disposed of and shall contain, except where not reasonably available, the date of arrest and the name of the arresting agency. Where this information is not reasonably available, the petition shall state the reason for such unavailability. The petition shall further state the specific criminal charge, conviction, or adjudication to be expunged, the date of final disposition of the charge, conviction, or adjudication as set forth in the petition, the petitioner's date of birth, and the full name used by the petitioner at the time of arrest.
  3. A copy of the petition shall be served on the attorney for the Commonwealth of the city or county in which the petition is filed. The attorney for the Commonwealth may file an objection or answer to the petition or may give written notice to the court that he does not object to the petition within 21 days after it is served on him.
  4. The petitioner shall obtain from a law-enforcement agency one complete set of the petitioner's fingerprints and shall provide that agency with a copy of the petition for expungement. The law-enforcement agency shall submit the set of fingerprints to the Central Criminal Records Exchange (CCRE) with a copy of the petition for expungement attached. The CCRE shall forward under seal to the court a copy of the petitioner's criminal history, a copy of the source documents that resulted in the CCRE entry that the petitioner wishes to expunge, if applicable, and the set of fingerprints. Upon completion of the hearing, the court shall return the fingerprint card to the petitioner. If no hearing was conducted, upon the entry of an order of expungement or an order denying the petition for expungement, the court shall cause the fingerprint card to be destroyed unless, within 30 days of the date of the entry of the order, the petitioner requests the return of the fingerprint card in person from the clerk of the court or provides the clerk of the court a self-addressed, stamped envelope for the return of the fingerprint card.
  5. After receiving the criminal history record information from the CCRE, the court shall conduct a hearing on the petition. If the court finds that the continued existence and possible dissemination of information relating to the arrest, charge, conviction, or adjudication of the petitioner causes or may cause circumstances that constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the arrest, charge, conviction, or adjudication. Otherwise, it shall deny the petition. However, if the petitioner has no prior criminal record and the arrest, charge, conviction, or adjudication was for a misdemeanor violation of subsection A of § 18.2-265.3 , the petitioner shall be entitled, in the absence of good cause shown to the contrary by the Commonwealth, to expungement of the police and court records relating to the arrest, charge, conviction, or adjudication and the court shall enter an order of expungement. If the attorney for the Commonwealth of the county or city in which the petition is filed (i) gives written notice to the court pursuant to subsection C that he does not object to the petition and (ii) when the arrest, charge, conviction, or adjudication to be expunged is a felony violation of former § 18.2-248.1 , stipulates in such written notice that the continued existence and possible dissemination of information relating to the arrest, charge, conviction, or adjudication of the petitioner causes or may cause circumstances that constitute a manifest injustice to the petitioner, the court may enter an order of expungement without conducting a hearing.
  6. The Commonwealth shall be made party defendant to the proceeding. Any party aggrieved by the decision of the court may appeal, as provided by law in civil cases.
  7. Upon the entry of an order of expungement, the clerk of the court shall cause a copy of such order to be forwarded to the Department of State Police, which shall, pursuant to rules and regulations adopted pursuant to § 9.1-134 , direct the manner by which the appropriate expungement or removal of such records shall be effected.
  8. Records relating to an arrest, charge, conviction, or adjudication that was ordered to be expunged pursuant to this section shall not be open for public inspection or otherwise disclosed, provided that such records may be disseminated and used for the following purposes: (i) to make the determination as provided in § 18.2-308.2:2 of eligibility to possess or purchase a firearm; (ii) for fingerprint comparison utilizing the fingerprints maintained in the Automated Fingerprint Information System; (iii) to the Virginia Criminal Sentencing Commission for its research purposes; (iv) 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 employment or part-time employment with, or to be a volunteer 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; (v) 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 ; (vi) to any full-time or part-time employee of the Department of Forensic Science for the purpose of screening any person for full-time or part-time employment with the Department of Forensic Science; (vii) 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 ; (viii) to any full-time or part-time employee of the Department of Motor Vehicles, any employer as defined in § 46.2-341.4 , or any medical examiner as defined in 49 C.F.R. § 390.5 for the purpose of complying with the regulations of the Federal Motor Carrier Safety Administration; (ix) to any employer or prospective employer or its designee where federal law requires the employer to inquire about prior criminal charges or convictions; (x) to any employer or prospective employer or its designee where the position that a person is applying for, or where access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any contract with, or statute or regulation of, the United States or any Executive Order of the President; (xi) to any person authorized to engage in the collection of court costs, fines, or restitution under subsection C of § 19.2-349 for purposes of collecting such court costs, fines, or restitution; (xii) to administer and utilize the DNA Analysis and Data Bank set forth in Article 1.1 (§ 19.2-310.2 et seq.) of Chapter 18; (xiii) to publish decisions of the Supreme Court, Court of Appeals, or any circuit court; (xiv) to any full-time or part-time employee of a court, the Office of the Executive Secretary, the Division of Legislative Services, or the Chairs of the House Committee for Courts of Justice and the Senate Committee on the Judiciary for the purpose of screening any person for full-time or part-time employment as a clerk, magistrate, or judge with a court or the Office of the Executive Secretary; (xv) to any employer or prospective employer or its designee where this Code or a local ordinance requires the employer to inquire about prior criminal charges or convictions; (xvi) to any employer or prospective employer or its designee that is allowed access to such expunged records in accordance with the rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 ; (xvii) to any business screening service for purposes of complying with § 19.2-392.16 ; (xviii) to any attorney for the Commonwealth and any person accused of a violation of law, or counsel for the accused, in order to comply with any constitutional and statutory duties to provide exculpatory, mitigating, and impeachment evidence to an accused; (xix) to any party in a criminal or civil proceeding for use as authorized by law in such proceeding; (xx) to any party for use in a protective order hearing as authorized by law; (xxi) to the Department of Social Services or any local department of social services for purposes of performing any statutory duties as required under Title 63.2; (xxii) to any party in a proceeding relating to the care and custody of a child for use as authorized by law in such proceeding; (xxiii) to the attorney for the Commonwealth and the court for purposes of determining eligibility for expungement pursuant to the provisions of § 19.2-392.12 ; (xxiv) to determine a person's eligibility to be empaneled as a juror; and (xxv) to the person arrested, charged, convicted, or adjudicated delinquent of the offense that was expunged.
  9. The Department of Motor Vehicles shall not expunge any conviction, adjudication, or any charge that was deferred and dismissed after a finding of facts sufficient to justify a finding of guilt (i) in violation of federal regulatory record retention requirements or (ii) in violation of federal program requirements if the Department of Motor Vehicles is required to suspend a person's driving privileges as a result of a conviction, adjudication, or deferral and dismissal ordered to be expunged. Upon receipt of an order directing that an offense be expunged, the Department of Motor Vehicles shall expunge all records if the federal regulatory record retention period has run and all federal program requirements associated with a suspension have been satisfied. However, if the Department of Motor Vehicles cannot expunge an offense pursuant to this subsection at the time it is ordered, the Department of Motor Vehicles shall (a) notify the Department of State Police of the reason the record cannot be expunged and cite the authority prohibiting expungement at the time it is ordered; (b) notify the Department of State Police of the date, if known at the time when the expungement is ordered, on which such record can be expunged; (c) expunge such record on that date; and (d) notify the Department of State Police when such record has been expunged within the Department of Motor Vehicles' records.
  10. Costs shall be as provided by § 17.1-275 , but shall not be recoverable against the Commonwealth. If the court enters an order of expungement, the clerk of the court shall refund to the petitioner such costs paid by the petitioner.
  11. Any order entered where (i) the court or parties failed to strictly comply with the procedures set forth in this section or (ii) the court enters an order of expungement contrary to law, shall be voidable upon motion and notice made within three years of the entry of such order.

    (2021 Sp. Sess. I, cc. 550, 551.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101 .1, 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 9 provides: "That the provisions of the first enactment amending §§ 19.2-389.3 , 19.2-392.1 , and 19.2-392.4 of the Code of Virginia and creating §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia shall become effective on the earlier of (i) the first day of the fourth month following notification to the Chairman of the Virginia Code Commission and the Chairmen of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B of § 17.1-502 of the Code of Virginia have automated systems to exchange information as required by § 19.2-392.2:1 of the Code of Virginia, as created by this act, or (ii) July 1, 2025. The Department of State Police shall first transmit the list required under subsection B of § 19.2-392.2:1 of the Code of Virginia, as created by this act, no later than the earlier of (a) the first day of the third month following the effective date of §§ 19.2-389.3 , 19.2-392.1 , and 19.2-392.4 of the Code of Virginia, as amended by this act, and §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia, as created by this act, or (b) October 1, 2025. The Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B of § 17.1-502 of the Code of Virginia, shall automate systems to exchange information as required by §§ 19.2-392.2:1 of the Code of Virginia, as created by this act, no later than July 1, 2025. If the provisions of this act repealing § 18.2-248.1 of the Code of Virginia are not reenacted by the 2022 Session of the General Assembly, the references to § 18.2-248.1 in §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia, as created by this act, shall not become effective."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

§ 19.2-392.3. Disclosure of expunged records.

  1. It shall be unlawful for any person having or acquiring access to an expunged court or police record to open or review it or to disclose to another person any information from it without an order from the court which ordered the record expunged.
  2. Upon a verified petition filed by the attorney for the Commonwealth alleging that the record is needed by a law-enforcement agency for purposes of employment application as an employee of a law-enforcement agency or for a pending criminal investigation and that the investigation will be jeopardized or that life or property will be endangered without immediate access to the record, the court may enter an ex parte order, without notice to the person, permitting such access. An ex parte order may permit a review of the record, but may not permit a copy to be made of it.
  3. Any person who willfully violates this section is guilty of a Class 1 misdemeanor.

    (1977, c. 675; 1978, c. 713.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Law review. - For survey of Virginia criminal procedure for the year 1976-77, see 63 Va. L. Rev. 1408 (1977).

CIRCUIT COURT OPINIONS

Access to expunged records. - Father lacked standing to access the mother's expunged criminal records for purposes of a custody modification case as this statute mentioned only one circumstance wherein parties could access expunged files - in the context of law enforcement needing them when hiring police officers and when conducting certain criminal investigations. Well v. No Defendant,, 2021 Va. Cir. LEXIS 135 (Fairfax County June 14, 2021).

Violation not shown. - Detective did not violate the statute by testifying about a naval officer's alleged sexual abuse of a minor because the detective testified from her own notes and memory, not from expunged police or court records relating to the naval officer's arrest and trial. Morris v. Massingill, 61 Va. Cir. 532, 2003 Va. Cir. LEXIS 232 (Norfolk 2003).

§ 19.2-392.4. (For contingent expiration date, see Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 9) Prohibited practices by employers, educational institutions, agencies, etc., of state and local governments.

  1. An employer or educational institution shall not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose information concerning any arrest or criminal charge against him that has been expunged. An applicant need not, in answer to any question concerning any arrest or criminal charge that has not resulted in a conviction, include a reference to or information concerning arrests or charges that have been expunged.
  2. Agencies, officials, and employees of the state and local governments shall not, in any application, interview, or otherwise, require an applicant for a license, permit, registration, or governmental service to disclose information concerning any arrest or criminal charge against him that has been expunged. An applicant need not, in answer to any question concerning any arrest or criminal charge that has not resulted in a conviction, include a reference to or information concerning charges that have been expunged. Such an application may not be denied solely because of the applicant's refusal to disclose information concerning any arrest or criminal charge against him that has been expunged.
  3. A person who willfully violates this section is guilty of a Class 1 misdemeanor for each violation.

    (1977, c. 675.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Section set out twice. - The section above is effective until the amendments by Acts 2021, Sp. Sess. I, cc. 550 and 551 take effect. For the version of this section effective as amended by Acts 2021, Sp. Sess. I, cc. 550 and 551, see the following section, also numbered § 19.2-392.1 .

Law review. - For survey of Virginia criminal procedure for the year 1976-77, see 63 Va. L. Rev. 1408 (1977).

§ 19.2-392.4. (For contingent effective date, see Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 9) Prohibited practices by employers, educational institutions, agencies, etc., of state and local governments.

  1. An employer or educational institution shall not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose information concerning any arrest or, criminal charge against him, conviction, or civil offense that has been expunged. An applicant need not, in answer to any question concerning any arrest or, criminal charge that has not resulted in a, conviction, or civil offense, include a reference to or information concerning arrests or, charges, convictions, or civil offenses that have been expunged.
  2. Agencies, officials, and employees of the state and local governments shall not, in any application, interview, or otherwise, require an applicant for a license, permit, registration, or governmental service to disclose information concerning any arrest or, criminal charge against him, conviction, or civil offense that has been expunged. An applicant need not, in answer to any question concerning any arrest or, criminal charge that has not resulted in a, conviction, or civil offense include a reference to or information concerning an arrest, charges, convictions, or civil offenses that have been expunged. Such an application may not be denied solely because of the applicant's refusal to disclose information concerning any arrest or, criminal charge against him, conviction, or civil offense that has been expunged.
  3. A person who willfully violates this section is guilty of a Class 1 misdemeanor for each violation.

    (1977, c. 675; 2021 Sp. Sess. I, cc. 550, 551.)

Section set out twice. - The section above is set out as amended by Acts 2021, Sp. Sess. I, cc. 550 and 551. For the version of this section effective until the amendments by Acts 2021, Sp. Sess. I, cc. 550 and 551, take effect, see the preceding section, also numbered § 19.2-392.1 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101 .1, 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 9 provides: "That the provisions of the first enactment amending §§ 19.2-389.3 , 19.2-392.1 , and 19.2-392.4 of the Code of Virginia and creating §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia shall become effective on the earlier of (i) the first day of the fourth month following notification to the Chairman of the Virginia Code Commission and the Chairmen of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B of § 17.1-502 of the Code of Virginia have automated systems to exchange information as required by § 19.2-392.2:1 of the Code of Virginia, as created by this act, or (ii) July 1, 2025. The Department of State Police shall first transmit the list required under subsection B of § 19.2-392.2:1 of the Code of Virginia, as created by this act, no later than the earlier of (a) the first day of the third month following the effective date of §§ 19.2-389.3 , 19.2-392.1 , and 19.2-392.4 of the Code of Virginia, as amended by this act, and §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia, as created by this act, or (b) October 1, 2025. The Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B of § 17.1-502 of the Code of Virginia, shall automate systems to exchange information as required by §§ 19.2-392.2:1 of the Code of Virginia, as created by this act, no later than July 1, 2025. If the provisions of this act repealing § 18.2-248.1 of the Code of Virginia are not reenacted by the 2022 Session of the General Assembly, the references to § 18.2-248.1 in §§ 19.2-392.2:1 and 19.2-392.2:2 of the Code of Virginia, as created by this act, shall not become effective."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 1, are identical, and rewrote the section. For effective date, see Editor's note.

Chapter 23.2. Sealing of Criminal History Record Information and Court Records.

Sec.

§ 19.2-392.5. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524 and 542) Sealing defined; effect of sealing.

  1. As used in this chapter, unless the context requires a different meaning, "sealing" means to (i) restricting dissemination of criminal history record information contained in the Central Criminal Records Exchange, including any records relating to an arrest, charge, or conviction, in accordance with the purposes set forth in § 19.2-392.13 and pursuant to the rules and regulations adopted pursuant to § 9.1-128 and the procedures adopted pursuant to § 9.1-134 and (ii) prohibiting dissemination of court records related to an arrest, charge, or conviction, unless such dissemination is authorized by a court order for one or more of the purposes set forth in § 19.2-392.13 . "Sealing" may be required either by the issuance of a court order following the filing of a petition or automatically by operation of law under the processes set forth in this chapter.
  2. The provisions of this chapter shall only apply to adults who were arrested, charged, or convicted of a criminal offense and to juveniles who were tried in circuit court pursuant to § 16.1-269.1.
  3. Records relating to an arrest, charge, or conviction that have been sealed may be disseminated only for purposes set forth in § 19.2-392.13 and pursuant to rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 . The court, except as provided in subsection B of § 19.2-392.14 , and any law-enforcement agency shall reply to any inquiry that no record exists with respect to an arrest, charge, or conviction that has been sealed, unless such information is permitted to be disclosed pursuant to § 19.2-392.13 and pursuant to rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 . A clerk of any court and the Executive Secretary of the Supreme Court shall be immune from any cause of action arising from the production of sealed court records, including electronic records, absent gross negligence or willful misconduct. This subsection shall not be construed to limit, withdraw, or overturn any defense or immunity already existing in statutory or common law or to affect any cause of action accruing prior to the effective date of this section.
  4. Except as otherwise provided in this section, upon entry of an order for sealing, the person who was arrested, charged, or convicted of the offense that was ordered to be sealed may deny or not disclose to any state or local government agency or to any private employer in the Commonwealth that such an arrest, charge, or conviction occurred. Except as otherwise provided in this section, no person as to whom an order for sealing has been entered shall be held thereafter under any provision of law to be guilty of perjury or otherwise giving a false statement by reason of that person's denial or failure to disclose any information concerning an arrest, charge, or conviction that has been sealed.
  5. A person who is the subject of the order of sealing entered pursuant to § 19.2-392.7 , 19.2-392.8 , 19.2-392.9 , 19.2-392.11 , or 19.2-392.12 may not deny or fail to disclose information to any employer or prospective employer about an offense that has been ordered to be sealed if:
    1. The person is applying for full-time employment or part-time employment with, or to be a volunteer 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;
    2. This Code requires the employer to make such an inquiry;
    3. Federal law requires the employer to make such an inquiry;
    4. The position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any contract with, or statute or regulation of, the United States or any Executive Order of the President; or
    5. The rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 allow the employer to access such sealed records. Failure to disclose such sealed arrest, charge, or conviction, if such failure to disclose was knowing or willful, shall be a ground for prosecution of perjury as provided for in § 18.2-434 .
  6. An order to seal an arrest, charge, or conviction entered pursuant to § 19.2-392.7 , 19.2-392.8 , 19.2-392.9 , 19.2-392.11 , or 19.2-392.12 shall not relieve the person who was arrested, charged, or convicted of any obligation to pay all fines, costs, forfeitures, penalties, or restitution in relation to the offense that was ordered to be sealed.
  7. Any arrest, charge, or conviction sealed pursuant to § 19.2-392.7 , 19.2-392.8 , 19.2-392.9 , 19.2-392.11 , or 19.2-392.12 may be admissible and considered in proceedings relating to the care and custody of a child. A person as to whom an order for sealing has been entered may be required to disclose a sealed arrest, charge, or conviction as part of such proceedings. Failure to disclose such sealed arrest, charge, or conviction, if such failure to disclose was knowing or willful, shall be a ground for prosecution of perjury as provided for in § 18.2-434 .
  8. Any arrest, charge, or conviction sealed pursuant to § 19.2-392.7 , 19.2-392.8 , 19.2-392.9 , 19.2-392.11 , or 19.2-392.12 shall not be (i) disclosed in any sentencing report; (ii) considered when ascertaining the punishment of a defendant; or (iii) considered in any hearing on the issue of bail, release, or detention of a defendant.
  9. Any arrest, charge, or conviction sealed pursuant to § 19.2-392.7 , 19.2-392.8 , 19.2-392.9 , 19.2-392.11 , or 19.2-392.12 shall not constitute a barrier crime as defined in § 19.2-392.02 , except as otherwise required under federal law.
  10. A person shall be required to disclose any felony conviction sealed pursuant to § 19.2-392.12 for purposes of determining that person's eligibility to be empaneled as a member of a jury. Failure to disclose such conviction, if such failure to disclose was knowing or willful, shall be a ground for prosecution of perjury as provided for in § 18.2-434 . (2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 8 provides: "That the Department of State Police shall purchase Criminal History, Expungement, Master Name Index, Rap Back, Civil Commitment, Applicant Tracking, and such other solutions or services as may be necessary to implement this act. The purchase of these solutions or services shall not be subject to the provisions of the Virginia Public Procurement Act ( § 2.2-4300 et seq. of the Code of Virginia)."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 9 provides: "That the Virginia State Crime Commission shall consult with stakeholders to determine and recommend methods to educate the public on the sealing process and the effects of an order to seal an arrest, charge, or conviction and shall report on such recommended methods by December 15, 2021."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 10 provides: "That the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, shall each provide a report to the Virginia State Crime Commission on the progress of implementing automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, by November 1, 2021, and by November 1 of each year thereafter until the automated systems have been fully implemented."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 11 provides: "That the Department of State Police shall determine the feasibility and cost of implementing an automated system to review out-of-state criminal history records and report to the Virginia State Crime Commission by November 1, 2021, and by November 1 of each year thereafter until such determination has been made."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 12 provides: "That the Virginia Court Clerks' Association shall determine the necessary staffing and technology costs of implementing the provisions of this act and report to the Virginia State Crime Commission by November 1, 2021, and by November 1 of each year thereafter until such determination has been made."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 15 provides: "That the Virginia State Crime Commission (the Commission) shall continue its current study on expungement; that such study shall include (i) the interplay between the current expungement statute and the sealing of criminal history record information and court records; (ii) the feasibility of destroying or purging expunged or sealed criminal history record information and court records; (iii) permissible uses of criminal history record information and court records; (iv) plea agreements in relation to the expungement or sealing of criminal history record information and court records; and (v) any other relevant matters that arise during the course of the study; and that the Commission shall report its findings by December 15, 2021. Such report shall also include a recommendation on how to create a review process for any proposed changes to the expungement or sealing of criminal history record information and court records."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

§ 19.2-392.6. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524 and 542) Automatic sealing of offenses resulting in a deferred and dismissed disposition or conviction.

  1. If a person was charged with an offense in violation of § 4.1-305 or former § 18.2-250.1 , and such offense was deferred and dismissed as provided in § 4.1-305 or 18.2-251 , such offense, including any records relating to such offense, shall be ordered to be automatically sealed in the manner set forth in § 19.2-392.7 , subject to the provisions of subsections C and D.
  2. If a person was convicted of a violation of any of the following sections, such conviction, including any records relating to such conviction, shall be ordered to be automatically sealed in the manner set forth in § 19.2-392.7 , subject to the provisions of subsections C and D: § 4.1-305 , 18.2-96 , 18.2-103 , 18.2-119 , 18.2-120 , or 18.2-134 ; a misdemeanor violation of § 18.2-248.1 ; or former § 18.2-250.1 or 18.2-415 .
  3. Subject to the provisions of subsection D, any offense listed under subsection A and any conviction listed under subsection B shall be ordered to be automatically sealed if seven years have passed since the date of the dismissal or conviction and the person charged with or convicted of such offense has not been convicted of violating any law of the Commonwealth that requires a report to the Central Criminal Records Exchange under subsection A of § 19.2-390 or any other state, the District of Columbia, or the United States or any territory thereof, excluding traffic infractions under Title 46.2, during that time period.
  4. No offense listed under subsection A shall be automatically sealed if, on the date of the deferral or dismissal, the person was convicted of another offense that is not eligible for automatic sealing under subsection A or B. No conviction listed under subsection B shall be automatically sealed if, on the date of the conviction, the person was convicted of another offense that is not eligible for automatic sealing under subsection A or B.
  5. This section shall not be construed as prohibiting a person from seeking sealing in the circuit court pursuant to the provisions of § 19.2-392.12 . (2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

At the direction of the Virginia Code Commission, "former” was inserted preceding references to "18.2-250.1” to conform to the repeal of that section by Acts 2021, Sp. Sess. I, cc. 550 and 551.

§ 19.2-392.7. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524 and 542) Process for automatic sealing of offenses resulting in a conviction or deferred disposition.

  1. On at least a monthly basis, the Department of State Police shall determine which offenses in the Central Criminal Records Exchange meet the criteria for automatic sealing set forth in § 19.2-392.6 .
  2. After reviewing the offenses under subsection A, the Department of State Police shall provide an electronic list of all offenses that meet the criteria for automatic sealing set forth in § 19.2-392.6 to the Executive Secretary of the Supreme Court and to any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 .
  3. Upon receipt of the electronic list from the Department of State Police provided under subsection B, on at least a monthly basis the Executive Secretary of the Supreme Court shall provide an electronic list of all offenses that meet the criteria for automatic sealing set forth in § 19.2-392.6 to the clerk of each circuit court in the jurisdiction where the case was finalized, if such circuit court clerk participates in the case management system maintained by the Executive Secretary.
  4. Upon receipt of the electronic list provided under subsection B or C, on at least a monthly basis the clerk of each circuit court shall prepare an order and the chief judge of that circuit court shall enter such order directing that the offenses that meet the criteria for automatic sealing set forth in § 19.2-392.6 be automatically sealed under the process described in § 19.2-392.13 . Such order shall contain the names of the persons charged with or convicted of such offenses.
  5. The clerk of each circuit court shall provide an electronic copy of any order entered under subsection D to the Department of State Police on at least a monthly basis. Upon receipt of such order, the Department of State Police shall proceed as set forth in § 19.2-392.13 .
  6. Any order to seal issued pursuant to this section shall be sealed and may only be disseminated for the purposes set forth in § 19.2-392.13 and pursuant to rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 .
  7. If an offense is automatically sealed contrary to law, the automatic sealing of that particular offense shall be voidable upon motion and notice made within two years of the entry of the order to automatically seal such offense.

    (2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 5 provides: "That the Department of State Police shall first transmit the list required under subsection B of § 19.2-392.7 of the Code of Virginia, as created by this act, not later than the earlier of (i) the first day of the third month following the effective date of this act as provided in clause (i) of the fourth enactment of this act or (ii) October 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 6 provides: "That the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, shall automate systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, not later than July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 10 provides: "That the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, shall each provide a report to the Virginia State Crime Commission on the progress of implementing automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, by November 1, 2021, and by November 1 of each year thereafter until the automated systems have been fully implemented."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

§ 19.2-392.8. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524 and 542) Automatic sealing of offenses resulting in acquittal, nolle prosequi, or dismissal.

  1. If a person is charged with the commission of a misdemeanor offense, excluding traffic infractions under Title 46.2, and (i) the person is acquitted, (ii) a nolle prosequi is entered, or (iii) the charge is otherwise dismissed, excluding any charge that is deferred and dismissed after a finding of facts sufficient to justify a finding of guilt, the court disposing of the matter shall, at the time the acquittal, nolle prosequi, or dismissal is entered, order that the charge be automatically sealed under the process described in § 19.2-392.13 , unless the attorney for the Commonwealth or any other person advises the court at the time the acquittal, nolle prosequi, or dismissal is entered that:
    1. The charge is ancillary to another charge that resulted in a conviction or a finding of facts sufficient to justify a finding of guilt;
    2. A nolle prosequi is entered or the charge is dismissed as part of a plea agreement;
    3. Another charge arising out of the same facts and circumstances is pending against the person;
    4. The Commonwealth intends to reinstitute the charge or any other charge arising out of the same facts and circumstances within three months;
    5. Good cause exists, as established by the Commonwealth by a preponderance of the evidence, that such charge should not be automatically sealed; or
    6. The person charged with the offense objects to such automatic sealing.
  2. If a person is charged with the commission of a felony offense and is acquitted, or the charge against him is dismissed with prejudice, he may immediately upon the acquittal or dismissal orally request that the records relating to the charge be sealed. Upon such request and with the concurrence of the attorney for the Commonwealth, the court shall order the automatic sealing of records relating to the arrest or charge under the process described in § 19.2-392.13 .
  3. If the court enters an order of sealing pursuant to subsection A or B, the court shall advise the person that the offense has been ordered to be automatically sealed.
  4. Any denial by the court to enter a sealing order under subsection A or B shall be without prejudice, and the person may seek expungement in the circuit court pursuant to the provisions of § 19.2-392.2 . Entry of a sealing order under subsection A or B shall not prohibit the person from seeking expungement in the circuit court pursuant to the provisions of § 19.2-392.2 .
  5. Any order to seal issued pursuant to this section shall be sealed and may only be disseminated for the purposes set forth in § 19.2-392.13 and pursuant to rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 .
  6. If an offense is automatically sealed contrary to law, the automatic sealing of that particular offense shall be voidable upon motion and notice made within two years of the entry of the order to automatically seal such offense.

    (2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

§ 19.2-392.9. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524 and 542) Automatic sealing for mistaken identity or unauthorized use of identifying information.

  1. If (i) a person is charged or arrested as a result of mistaken identity or (ii) a person's name or other identification is used without his consent or authorization by another person who is charged or arrested using such name or identification, and a nolle prosequi is entered or the charge is otherwise dismissed, the attorney for the Commonwealth or any other person requesting the nolle prosequi or dismissal shall notify the court of the mistaken identity or unauthorized use of identifying information at the time such request is made. Upon such notification, the court disposing of the matter shall, at the time the nolle prosequi or dismissal is entered, order that the charge be automatically sealed under the process described in § 19.2-392.13 , unless the person charged or arrested as a result of the mistaken identity or unauthorized use of identifying information objects to such automatic sealing.
  2. If the court enters an order of sealing pursuant to subsection A, the court shall advise the person charged that the offense has been ordered to be automatically sealed.
  3. Any denial by the court to enter a sealing order under subsection A shall be without prejudice. Entry of a sealing order or the denial of entry of a sealing order under subsection A shall not prohibit the person from seeking expungement in the circuit court pursuant to the provisions of § 19.2-392.2 .
  4. Any order to seal issued pursuant to this section shall be sealed and may only be disseminated for the purposes set forth in § 19.2-392.13 and pursuant to rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 .
  5. If an offense is automatically sealed contrary to law, the automatic sealing of that particular offense shall be voidable upon motion and notice made within two years of the entry of the order to automatically seal such offense.

    (2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

§ 19.2-392.10. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524 and 542) Process for automatic sealing of offenses resulting in acquittal, nolle prosequi, or dismissal.

  1. On at least a monthly basis, the Executive Secretary of the Supreme Court and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 shall provide an electronic list of all offenses in such case management system to the Department of State Police that were ordered to be automatically sealed pursuant to §§ 19.2-392.8 and 19.2-392.9 .
  2. Upon receipt of the electronic lists under subsection A, the Department of State Police shall proceed as set forth in § 19.2-392.13 . (2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 6 provides: "That the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, shall automate systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, not later than July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 10 provides: "That the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, shall each provide a report to the Virginia State Crime Commission on the progress of implementing automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, by November 1, 2021, and by November 1 of each year thereafter until the automated systems have been fully implemented."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

§ 19.2-392.11. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524 and 542) Automatic sealing of misdemeanor offenses resulting in acquittal, nolle prosequi, or dismissal for persons with no convictions or deferred and dismissed offenses on their criminal history record.

  1. On at least an annual basis, the Department of State Police shall review the Central Criminal Records Exchange and identify all persons with finalized misdemeanor case dispositions that resulted in (i) an acquittal, (ii) a nolle prosequi, or (iii) a dismissal, excluding any charge that was deferred and dismissed after a finding of facts sufficient to justify a finding of guilt, where the criminal history record of such person contains no convictions for any criminal offense for a violation of any law of the Commonwealth that requires a report to the Central Criminal Records Exchange under subsection A of § 19.2-390 and where such criminal history record contains no arrests or charges for a violation of any law of the Commonwealth that requires a report to the Central Criminal Records Exchange under subsection A of § 19.2-390 in the past three years, excluding traffic infractions under Title 46.2. For purposes of this subsection, any offense on the person's criminal history record that has previously been ordered to be sealed shall not be deemed a conviction.
  2. Upon identification of the finalized case dispositions under subsection A, the Department of State Police shall provide an electronic list of such offenses to the Executive Secretary of the Supreme Court and to any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 .
  3. Upon receipt of the electronic list from the Department of State Police provided under subsection B, on at least an annual basis the Executive Secretary of the Supreme Court shall provide an electronic list of such offenses to the clerk of each circuit court in the jurisdiction where the case was finalized, if such circuit court clerk participates in the case management system maintained by the Executive Secretary.
  4. Upon receipt of the electronic list provided under subsection B or C, on at least an annual basis the clerk of each circuit court shall prepare an order and the chief judge of that circuit court shall enter such order directing that the offenses be automatically sealed under the process described in § 19.2-392.13 . Such order shall contain the names of the persons charged with such offenses.
  5. The clerk of each circuit court shall provide an electronic copy of any order entered under subsection D to the Department of State Police on at least an annual basis. Upon receipt of such order, the Department of State Police shall proceed as set forth in § 19.2-392.13 .
  6. Any order to seal issued pursuant to this section shall be sealed and may only be disseminated for the purposes set forth in § 19.2-392.13 and pursuant to rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 .
  7. This section shall not be construed as prohibiting a person from seeking expungement in the circuit court pursuant to the provisions of § 19.2-392.2 . Entry of a sealing order pursuant to this section shall not prohibit a person from seeking expungement in the circuit court pursuant to the provisions of § 19.2-392.2 .
  8. If an offense is automatically sealed contrary to law, the automatic sealing of that particular offense shall be voidable upon motion and notice made within two years of the entry of the order to automatically seal such offense.
  9. If an offense is automatically sealed pursuant to the procedure set forth in this section and such offense was not ordered to be automatically sealed at the time of acquittal, nolle prosequi, or dismissal for one or more of the reasons set forth in § 19.2-392.8 , the automatic sealing of such offense shall be voidable upon motion and notice made within two years of the entry of the order to automatically seal such offense. (2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 6 provides: "That the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, shall automate systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, not later than July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 10 provides: "That the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, shall each provide a report to the Virginia State Crime Commission on the progress of implementing automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, by November 1, 2021, and by November 1 of each year thereafter until the automated systems have been fully implemented."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

§ 19.2-392.12. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524 and 542) Sealing of offenses resulting in a deferred and dismissed disposition or conviction by petition.

  1. Except for a conviction or deferral and dismissal of a violation of § 18.2-36.1 , 18.2-36.2 , 18.2-51.4 , 18.2-51.5 , 18.2-57.2 , 18.2-266 , or 46.2-341.24 , a person who has been convicted of or had a charge deferred and dismissed for a (i) misdemeanor offense, (ii) Class 5 or 6 felony, or (iii) violation of § 18.2-95 or any other felony offense in which the defendant is deemed guilty of larceny and punished as provided in § 18.2-95 may file a petition setting forth the relevant facts and requesting sealing of the criminal history record information and court records relating to the charge or conviction, provided that such person has (a) never been convicted of a Class 1 or 2 felony or any other felony punishable by imprisonment for life, (b) not been convicted of a Class 3 or 4 felony within the past 20 years, or (c) not been convicted of any other felony within the past 10 years of his petition.
  2. A person shall not be required to pay any fees or costs for filing a petition pursuant to this section if such person files a petition to proceed without the payment of fees and costs, and the court with which such person files his petition finds such person to be indigent pursuant to § 19.2-159 .
  3. The petition with a copy of the warrant, summons, or indictment, if reasonably available, shall be filed in the circuit court of the county or city in which the case was disposed of and shall contain, except when not reasonably available, the date of arrest, the name of the arresting agency, and the date of conviction. When this information is not reasonably available, the petition shall state the reason for such unavailability. The petition shall further state the charge or conviction to be sealed; the date of final disposition of the charge or conviction as set forth in the petition; the petitioner's date of birth, sex, race, and social security number, if available; and the full name used by the petitioner at the time of arrest or summons. A petitioner may only have two petitions granted pursuant to this section within his lifetime.
  4. The Commonwealth shall be made party to the proceeding. The petitioner shall provide a copy of the petition by delivery or by first-class mail, postage prepaid, to the attorney for the Commonwealth of the city or county in which the petition is filed. The attorney for the Commonwealth may file an objection or answer to the petition or may give written notice to the court that he does not object to the petition within 21 days after it is delivered to him or received in the mail.
  5. Upon receipt of the petition, the circuit court shall order that the attorney for the Commonwealth or a law-enforcement officer, as defined in § 9.1-101 , provide the court with a sealed copy of the criminal history record of the petitioner. Upon completion of the hearing, the court shall cause the criminal history record to be destroyed unless, within 30 days of the date of the entry of the final order in the matter, the petitioner or the attorney for the Commonwealth notes an appeal to the Supreme Court of Virginia.
  6. After receiving the criminal history record of the petitioner, the court may conduct a hearing on the petition. The court shall enter an order requiring the sealing of the criminal history record information and court records, including electronic records, relating to the charge or conviction, only if the court finds that all criteria in subdivisions 1 through 4 are met, as follows:
    1. During a period after the date of (i) dismissal of a deferred charge, (ii) conviction, or (iii) release from incarceration of the charge or conviction set forth in the petition, whichever date occurred later, the person has not been convicted of violating any law of the Commonwealth that requires a report to the Central Criminal Records Exchange under subsection A of § 19.2-390 or any other state, the District of Columbia, or the United States or any territory thereof, excluding traffic infractions under Title 46.2, for:
      1. Seven years for any misdemeanor offense; or
      2. Ten years for any felony offense;
    2. If the records relating to the offense indicate that the occurrence leading to the deferral or conviction involved the use or dependence upon alcohol or any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, the petitioner has demonstrated his rehabilitation;
    3. The petitioner has not previously obtained the sealing of two other deferrals or convictions arising out of different sentencing events; and
    4. The continued existence and possible dissemination of information relating to the charge or conviction of the petitioner causes or may cause circumstances that constitute a manifest injustice to the petitioner.
  7. If the attorney for the Commonwealth of the county or city in which the petition is filed (i) gives written notice to the court pursuant to subsection D that he does not object to the petition and (ii) stipulates in such written notice that the petitioner is eligible to have such offense sealed, and the continued existence and possible dissemination of information relating to the charge or conviction of the petitioner causes or may cause circumstances that constitute a manifest injustice to the petitioner, the court may enter an order of sealing without conducting a hearing.
  8. Any party aggrieved by the decision of the court may appeal, as provided by law in civil cases.
  9. Upon the entry of an order of sealing, the clerk of the court shall cause an electronic copy of such order to be forwarded to the Department of State Police. Such electronic order shall contain the petitioner's full name, date of birth, sex, race, and social security number, if available, as well as the petitioner's state identification number from the criminal history record, the court case number of the charge or conviction to be sealed, if available, and the document control number, if available. Upon receipt of such electronic order, the Department of State Police shall seal such records in accordance with § 19.2-392.13 . When sealing such charge or conviction, the Department of State Police shall include a notation on the criminal history record that such offense was sealed pursuant to this section. The Department of State Police shall also electronically notify the Office of the Executive Secretary of the Supreme Court and any other agencies and individuals known to maintain or to have obtained such a record that such record has been ordered to be sealed and may only be disseminated in accordance with § 19.2-392.13 and pursuant to the rules and regulations adopted pursuant to § 9.1-128 and the procedures adopted pursuant to § 9.1-134 .
  10. Costs shall be as provided by § 17.1-275 but shall not be recoverable against the Commonwealth. Any costs collected pursuant to this section shall be deposited in the Sealing Fee Fund created pursuant to § 17.1-205.1 .
  11. Any order entered where (i) the court or parties failed to strictly comply with the procedures set forth in this section or (ii) the court enters an order for the sealing of records contrary to law shall be voidable upon motion and notice made within two years of the entry of such order.
  12. If a petitioner qualifies to file a petition for sealing of records without the payment of fees and costs pursuant to subsection B and has requested court-appointed counsel, the court shall then appoint counsel to file the petition for sealing of records and represent the petitioner in the sealed records proceedings. Counsel appointed to represent such a petitioner shall be compensated for his services subject to guidelines issued by the Executive Secretary of the Supreme Court of Virginia, in a total amount not to exceed $120, as determined by the court, and such compensation shall be paid from the Sealing Fee Fund as provided in § 17.1-205.1 .
  13. A petition filed under this section and any responsive pleadings filed by the attorney for the Commonwealth shall be maintained under seal by the clerk unless otherwise ordered by the court. Any order to seal issued pursuant to this section shall be sealed and may only be disseminated for the purposes set forth in § 19.2-392.13 and pursuant to rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 .
  14. A conviction or deferral and dismissal of § 18.2-36.1 , 18.2-36.2 , 18.2-51.4 , 18.2-51.5 , 18.2-57.2 , 18.2-266 , or 46.2-341.24 is ineligible for the sealing of records under this section.
  15. Nothing in this chapter shall prohibit the circuit court from entering an order to seal a charge or conviction under this section when such charge or conviction is eligible for sealing under some other section of this chapter.

    (2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 6 provides: "That the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, shall automate systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, not later than July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 10 provides: "That the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, shall each provide a report to the Virginia State Crime Commission on the progress of implementing automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, by November 1, 2021, and by November 1 of each year thereafter until the automated systems have been fully implemented."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

§ 19.2-392.13. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524 and 542) Disposition of records when an offense is sealed; permitted uses of sealed records.

  1. Upon electronic notification that a court order for sealing has been entered pursuant to § 19.2-392.7 , 19.2-392.8 , 19.2-392.9 , 19.2-392.11 , or 19.2-392.12 , the Department of State Police shall not disseminate any criminal history record information contained in the Central Criminal Records Exchange, including any records relating to an arrest, charge, or conviction, that was ordered to be sealed, except for purposes set forth in this section and pursuant to rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 . Upon receipt of such electronic notification, the Department of State Police shall electronically notify those agencies and individuals known to maintain or to have obtained such a record that such record has been ordered to be sealed and may only be disseminated for purposes set forth in this section and pursuant to rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 . Any records maintained electronically that are transformed or transferred by whatever means to an offline system or to a confidential and secure area inaccessible from normal use within the system in which the record is maintained shall be considered sealed, provided that such records are accessible only to the manager of the records or their designee.
  2. Upon entry of a court order for sealing pursuant to § 19.2-392.7 , 19.2-392.8 , 19.2-392.9 , 19.2-392.11 , or 19.2-392.12 , the Executive Secretary of the Supreme Court and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 shall ensure that the court record of such arrest, charge, or conviction is not available for public online viewing as directed by subsections B and C of § 17.1-293.1 . Additionally, upon entry of such an order for sealing, the clerk of court shall not disseminate any court record of such arrest, charge, or conviction, except as provided in subsections D and E.
  3. Records relating to an arrest, charge, or conviction that was ordered to be sealed pursuant to § 19.2-392.7 , 19.2-392.8 , 19.2-392.9 , 19.2-392.11 , or 19.2-392.12 shall not be open for public inspection or otherwise disclosed, provided that such records may be disseminated and used for the following purposes: (i) to make the determination as provided in § 18.2-308.2:2 of eligibility to possess or purchase a firearm; (ii) for fingerprint comparison utilizing the fingerprints maintained in the Automated Fingerprint Information System; (iii) to the Virginia Criminal Sentencing Commission for its research purposes; (iv) 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 employment or part-time employment with, or to be a volunteer 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; (v) 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 ; (vi) to any full-time or part-time employee of the Department of Forensic Science for the purpose of screening any person for full-time or part-time employment with the Department of Forensic Science; (vii) 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 ; (viii) to any full-time or part-time employee of the Department of Motor Vehicles, any employer as defined in § 46.2-341.4 , or any medical examiner as defined in 49 C.F.R. § 390.5 for the purpose of complying with the regulations of the Federal Motor Carrier Safety Administration; (ix) to any employer or prospective employer or its designee where federal law requires the employer to inquire about prior criminal charges or convictions; (x) to any employer or prospective employer or its designee where the position that a person is applying for, or where access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any contract with, or statute or regulation of, the United States or any Executive Order of the President; (xi) to any person authorized to engage in the collection of court costs, fines, or restitution under subsection C of § 19.2-349 for purposes of collecting such court costs, fines, or restitution; (xii) to administer and utilize the DNA Analysis and Data Bank set forth in Article 1.1 (§ 19.2-310.2 et seq.) of Chapter 18; (xiii) to publish decisions of the Supreme Court, Court of Appeals, or any circuit court; (xiv) to any full-time or part-time employee of a court, the Office of the Executive Secretary, the Division of Legislative Services, or the Chairs of the House Committee for Courts of Justice and the Senate Committee on the Judiciary for the purpose of screening any person for full-time or part-time employment as a clerk, magistrate, or judge with a court or the Office of the Executive Secretary; (xv) to any employer or prospective employer or its designee where this Code or a local ordinance requires the employer to inquire about prior criminal charges or convictions; (xvi) to any employer or prospective employer or its designee that is allowed access to such sealed records in accordance with the rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 ; (xvii) to any business screening service for purposes of complying with § 19.2-392.16 ; (xviii) to any attorney for the Commonwealth and any person accused of a violation of law, or counsel for the accused, in order to comply with any constitutional and statutory duties to provide exculpatory, mitigating, and impeachment evidence to an accused; (xix) to any party in a criminal or civil proceeding for use as authorized by law in such proceeding; (xx) to any party for use in a protective order hearing as authorized by law; (xxi) to the Department of Social Services or any local department of social services for purposes of performing any statutory duties as required under Title 63.2; (xxii) to any party in a proceeding relating to the care and custody of a child for use as authorized by law in such proceeding; (xxiii) to the attorney for the Commonwealth and the court for purposes of determining eligibility for sealing pursuant to the provisions of § 19.2-392.12 ; (xxiv) to determine a person's eligibility to be empaneled as a juror; and (xxv) to the person arrested, charged, or convicted of the offense that was sealed.
  4. Upon request from any person to access a paper or a digital image of a court record, the clerk of court shall determine whether such record is open to public access and inspection. If the clerk of court determines that the court record has been sealed, such record shall not be provided to the requestor without an order from the court that entered the order to seal the court record. Any order from a court that allows access to a paper or a digital image of a court record that has been sealed shall only be issued for one or more of the purposes set forth in subsection C. Such order to access a paper or a digital image of a court record that has been sealed shall allow the requestor to photocopy such court record. No fee shall be charged to any person filing a motion to access a paper or a digital image of a court record that has been sealed if the person filing such motion is the same person who was arrested, charged, or convicted of the offense that was sealed.
  5. No access shall be provided to electronic records in an appellate court, circuit court, or district court case management system maintained by the Executive Secretary of the Supreme Court or in a case management system maintained by a clerk of the circuit court for any arrest, charge, or conviction that was ordered to be sealed pursuant to § 19.2-392.7 , 19.2-392.8 , 19.2-392.9 , 19.2-392.11 , or 19.2-392.12 , except to the Virginia Criminal Sentencing Commission for its research purposes. Such electronic records may be disseminated to the Virginia Criminal Sentencing Commission without a court order.
  6. If a pleading or case document in a court record that was sealed is included among other court records that have not been ordered to be sealed, the clerk of court shall not be required to prohibit dissemination of that record. The Supreme Court, Court of Appeals, and any circuit court shall not be required to prohibit dissemination of any published or unpublished opinion relating to an arrest, charge, or conviction that was ordered to be sealed.
  7. The Department of Motor Vehicles shall not seal any conviction or any charge that was deferred and dismissed after a finding of facts sufficient to justify a finding of guilt (i) in violation of federal regulatory record retention requirements or (ii) in violation of federal program requirements if the Department of Motor Vehicles is required to suspend a person's driving privileges as a result of a conviction or deferral and dismissal ordered to be sealed. Upon receipt of an order directing that an offense be sealed, the Department of Motor Vehicles shall seal all records if the federal regulatory record retention period has run and all federal program requirements associated with a suspension have been satisfied. However, if the Department of Motor Vehicles cannot seal an offense pursuant to this subsection at the time it is ordered, the Department of Motor Vehicles shall (a) notify the Department of State Police of the reason the record cannot be sealed and cite the authority prohibiting sealing at the time it is ordered; (b) notify the Department of State Police of the date, if known at the time when the sealing is ordered, on which such record can be sealed; (c) seal such record on that date; and (d) notify the Department of State Police when such record has been sealed within the Department of Motor Vehicles' records.
  8. No arrest, charge, or conviction that has been sealed may be used to impeach the credibility of a testifying witness at any hearing or trial unless (i) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect and (ii) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
  9. The provisions of this section shall not prohibit the disclosure of sealed criminal history record information or any information from such records among law-enforcement officers and attorneys when such disclosures are made by such officers or attorneys while engaged in the performance of their duties for purposes solely relating to the disclosure or use of exculpatory, mitigating, and impeachment evidence or between attorneys for the Commonwealth when related to the prosecution of a separate crime.

    (2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 7 provides: "That the Executive Secretary of the Supreme Court of Virginia shall develop a form for requesting and authorizing access to a sealed court record as set forth in subsection D of § 19.2-392.13 of the Code of Virginia, as created by this act, not later than July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 13 provides: "That the Department of State Police shall consult with the Department of Motor Vehicles in determining the form and content of the electronic notice to be provided to the Department of Motor Vehicles as required in subsection A of § 19.2-392.13 of the Code of Virginia, as created by this act."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 14 provides: "That the Department of Criminal Justice Services shall develop regulations governing the dissemination of sealed criminal history record information as directed by subsection D of § 9.1-128 of the Code of Virginia, as amended by this act, and the sealing of criminal history record information as directed by § 9.1-134 of the Code of Virginia, as amended by this act, in accordance with § 19.2-392.13 of the Code of Virginia, as created by this act."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

§ 19.2-392.14. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524 and 542) Disclosure of sealed records; penalty.

  1. It is unlawful for any person having or acquiring access to sealed criminal history record information or a court record, including any records relating to an arrest, charge, or conviction, that was ordered to be sealed pursuant to § 19.2-392.7 , 19.2-392.8 , 19.2-392.9 , 19.2-392.11 , or 19.2-392.12 , to disclose such record or any information from such record to another person, except in accordance with the purposes set forth in § 19.2-392.13 and pursuant to the rules and regulations adopted pursuant to § 9.1-128 and the procedures adopted pursuant to § 9.1-134 .
  2. A clerk of court shall not be in violation of this section if such clerk informs a person requesting access to a sealed court record that such court record has been sealed and can only be accessed pursuant to a court order.
  3. Any person who willfully violates this section is guilty of a Class 1 misdemeanor. Any person who maliciously and intentionally violates this section is guilty of a Class 6 felony.

    (2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

§ 19.2-392.15. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524 and 542) Prohibited practices by employers, educational institutions, agencies, etc., of state and local governments; penalty.

  1. Except as provided in subsection B, agencies, officials, and employees of state and local governments, private employers that are not subject to federal laws or regulations in the hiring process, and educational institutions shall not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose information concerning any arrest, charge, or conviction against him that has been sealed. An applicant need not, in answer to any question concerning any arrest, charge, or conviction, include a reference to or information concerning arrests, charges, or convictions that has been sealed.
  2. The provisions of subsection A shall not apply if:
    1. The person is applying for full-time employment or part-time employment with, or to be a volunteer 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;
    2. This Code requires the employer to make such an inquiry;
    3. Federal law requires the employer to make such an inquiry;
    4. The position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any contract with, or statute or regulation of, the United States or any Executive Order of the President; or
    5. The rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134 allow the employer to access such sealed records.
  3. Agencies, officials, and employees of state and local governments shall not, in any application, interview, or otherwise, require an applicant for a license, permit, registration, or governmental service to disclose information concerning any arrest, charge, or conviction against him that has been sealed. An applicant need not, in answer to any question concerning any arrest, charge, or conviction, include a reference to or information concerning arrests, charges, or convictions that has been sealed. Such an application may not be denied solely because of the applicant's refusal to disclose information concerning any arrest, charge, or conviction against him that has been sealed.
  4. No person, as defined in § 36-96.1:1 , shall, in any application for the sale or rental of a dwelling, as defined in § 36-96.1:1 , require an applicant to disclose information concerning any arrest, charge, or conviction against him that has been sealed. An applicant need not, in answer to any question concerning any arrest, charge, or conviction, include a reference to or information concerning arrests, charges, or convictions that has been sealed. Such an application may not be denied solely because of the applicant's refusal to disclose information concerning any arrest, charge, or conviction against him that has been sealed.
  5. No insurance company, as defined in § 38.2-100 , shall, in any application for insurance, as defined in § 38.2-100 , require an applicant to disclose information concerning any arrest, charge, or conviction against him that has been sealed. An applicant need not, in answer to any question concerning any arrest, charge, or conviction, include a reference to or information concerning arrests, charges, or convictions that has been sealed. Such an application may not be denied solely because of the applicant's refusal to disclose information concerning any arrest, charge, or conviction against him that has been sealed.
  6. If any entity or person listed under subsections A, C, D, or E includes a question about a prior arrest, charge, or conviction in an application for one or more of the purposes set forth in such subsections, such application shall include, or such entity or person shall provide, a notice to the applicant that information concerning an arrest, charge, or conviction that has been sealed does not have to be disclosed in the application. Such notice need not be included on any application for one or more of the purposes set forth in subsection B.
  7. A person who willfully violates this section is guilty of a Class 1 misdemeanor for each violation.

    (2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

§ 19.2-392.16. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524 and 542) Dissemination of criminal history records and traffic history records by business screening services.

  1. For the purposes of this section: "Business screening service" means a person engaged in the business of collecting, assembling, evaluating, or disseminating Virginia criminal history records or traffic history records on individuals. "Business screening service" does not include any government entity or the news media. "Criminal history record" means any information collected by a business screening service on individuals containing any personal identifying information, photograph, or other identifiable descriptions pertaining to an individual and any information regarding arrests, detentions, indictments, or other formal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision, or release. "Delete" means that a criminal history record shall not be disseminated in any manner, except to any entity authorized to receive and use such information pursuant to § 19.2-392.13 and pursuant to the rules and regulations adopted pursuant to § 9.1-128 and the procedures adopted pursuant to § 9.1-134 , but may be retained in order to resolve any disputes relating to this section, the accuracy of the record consistent with the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., or the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq. "Sealed record" means a Virginia criminal history record or a traffic history record that has been sealed pursuant to § 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , or 19.2-392.12 . "Traffic history record" means any information collected by a business screening service on individuals containing any personal identifying information, photograph, or other identifiable descriptions pertaining to an individual and any information regarding arrests, detentions, indictments, or other formal traffic infraction charges, and any disposition arising therefrom.
  2. If a business screening service knows that a criminal history record or a traffic history record has been sealed, the business screening service shall promptly delete the record.
  3. A business screening service shall register with the Department of State Police to electronically receive copies of orders of sealing provided to the Department of State Police pursuant to §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 . The Department of State Police may charge an annual licensing fee to the business screening service for accessing such information, with a portion of such fee to be used to cover the cost of providing such records and the remainder of such fee to be deposited into the Sealing Fee Fund pursuant to § 17.1-205.1 . The contract between the Department of State Police and the business screening service shall prohibit dissemination of the orders of sealing and shall require compliance by the business screening service with the provisions of subsections D, E, and F. The orders of sealing received by the business screening service shall remain confidential and shall not be disseminated or resold. The orders of sealing shall be used for the sole purpose of deleting criminal history records that have been sealed. The business screening service shall destroy the copies of the orders of sealing after deleting the information contained in such orders from sealed records. The Department of State Police shall require that the business screening service seeking access to the information identify themselves, certify the purposes for which the information is sought, and certify that the information will be used for no other purpose. The Department of State Police shall further require that a business screening service acknowledge receipt of all electronic copies of orders of sealing provided by the Department of State Police. The Department of State Police shall maintain a public list within its website identifying the business screening services that are licensed to receive such records.
  4. A business screening service that disseminates a criminal history record or a traffic history record on or after the effective date of this section shall include the date when the record was collected by the business screening service and a notice that the information may include records that have been sealed since that date.
  5. A business screening service shall implement and follow reasonable procedures to assure that it does not maintain or sell criminal history records or traffic history records that are inaccurate or incomplete. If the completeness or accuracy of a criminal history record or traffic history record maintained by a business screening service is disputed by the individual who is the subject of the record, the business screening service shall, without charge, investigate the disputed record. If, upon investigation, the business screening service determines that the record does not accurately reflect the content of the official record, the business screening service shall correct the disputed record so as to accurately reflect the content of the official record. If the disputed record is found to have been sealed pursuant to § 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , or 19.2-392.12 , the business screening service shall promptly delete the record. A business screening service may terminate an investigation of a disputed record if the business screening service reasonably determines that the dispute is frivolous, which may be based on the failure of the subject of the record to provide sufficient information to investigate the disputed record. Upon making a determination that the dispute is frivolous, the business screening service shall inform the subject of the record of the specific reasons why it has determined that the dispute is frivolous and shall provide a description of any information required to investigate the disputed record. The business screening service shall notify the subject of the disputed record of the correction or deletion of the record or of the termination or completion of the investigation related to the record within 30 days of the date when the business screening service receives notice of the dispute from the subject of the record.
  6. A business screening service shall implement procedures for individuals to submit a request to obtain their own criminal history record and traffic history record information maintained by the business screening service and any other information that may be sold to another entity by the business screening service regarding the individual.
  7. A business screening service that violates this section is liable to the person who is the subject of the criminal history record or traffic history record for a penalty of $1,000 or actual damages caused by the violation, whichever is greater, plus costs and reasonable attorney fees. Within 10 days of service of any suit by an individual, the business screening service may make a cure offer in writing to the individual claiming to have suffered a loss as a result of a violation of this section. Such offer shall be in writing and include one or more things of value, including the payment of money. A cure offer shall be reasonably calculated to remedy a loss claimed by the individual, as well as any attorney fees or other fees, expenses, or other costs of any kind that such individual may incur in relation to such loss. No cure offer shall be admissible in any proceeding initiated under this section, unless the cure offer is delivered by the business screening service to the individual claiming loss or to any attorney representing such individual prior to the filing of the business screening service's initial responsive pleading in such proceeding. The business screening service shall not be liable for such individual's attorney fees and court costs incurred following delivery of the cure offer unless the actual damages found to have been sustained and awarded, without consideration of attorney fees and court costs, exceed the value of the cure offer.
  8. The Attorney General may file a civil action to enforce this section. If the court finds that a business screening service has willfully engaged in an act or practice in violation of this section, the Attorney General may recover for the Literary Fund, upon petition to the court, a civil penalty of not more than $2,500 per violation. For the purposes of this section, prima facie evidence of a willful violation may be shown when the Attorney General notifies the alleged violator by certified mail that an act or practice is a violation of this section and the alleged violator, after receipt of said notice, continues to engage in the act or practice. In any civil action pursuant to this subsection, in addition to any civil penalty awarded, the Attorney General may also recover any costs and reasonable expenses incurred by the state in investigating and preparing the case, not to exceed $1,000 per violation, and attorney fees. Such additional costs and expenses shall be paid into the general fund of the Commonwealth.
  9. A business screening service that disseminates criminal history records or traffic history records in the Commonwealth is deemed to have consented to service of process in the Commonwealth and to the jurisdiction of courts of the Commonwealth for actions involving a violation of this section or for the recovery of remedies under this section.
  10. A business screening service that is a consumer reporting agency and that is in compliance with the applicable provisions of the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., or the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq., is considered to be in compliance with the comparable provisions of this section. A business screening service is subject to the state remedies under this section if its actions would violate this section and federal law.
  11. Any business screening service or person who engages in the conduct of a business screening service, as set forth this this section, that fails to register with the Department of State Police as required by subsection C and that disseminates criminal history records or traffic history records in the Commonwealth may be subject to (i) suit by any person injured by such dissemination and (ii) enforcement actions by the Attorney General as set forth in subsection H.

    (2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 16 provides: "That the Department of State Police shall develop a form contract for purposes of providing information regarding sealed criminal history record information to business screening services pursuant to § 19.2-392.16 of the Code of Virginia, as created by this act."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

§ 19.2-392.17. (For contingent effective date see Acts 2021, Sp. Sess. I, cc. 524 and 542) Traffic infractions deemed sealed.

  1. Any record of a traffic infraction under Title 46.2 that is not punishable as a criminal offense shall be deemed to be sealed after 11 years from the date of final disposition of the offense, unless such sealing is prohibited under federal or state law. No record of any such traffic infraction shall be disseminated, unless such dissemination is authorized pursuant to § 19.2-392.13 and pursuant to the rules and regulations adopted pursuant to § 9.1-128 and the procedures adopted pursuant to § 9.1-134 .
  2. The Department of Motor Vehicles shall not seal any traffic infraction under Title 46.2 (i) in violation of federal regulatory record retention requirements or (ii) in violation of federal program requirements if the Department of Motor Vehicles is required to suspend a person's driving privileges as a result of the traffic infraction that was ordered to be sealed. Upon receipt of an order directing that a traffic infraction be sealed, the Department of Motor Vehicles shall seal all records if the federal regulatory record retention period has run and all federal program requirements associated with a suspension have been satisfied. However, if the Department of Motor Vehicles cannot seal a traffic infraction pursuant to this subsection at the time it is ordered, the Department of Motor Vehicles shall (a) notify the Department of State Police of the reason the record cannot be sealed and cite the authority prohibiting sealing at the time it is ordered; (b) notify the Department of State Police of the date, if known at the time when the sealing is ordered, on which such record can be sealed; (c) seal such record on that date; and (d) notify the Department of State Police when such record has been sealed within the Department of Motor Vehicles' records.
  3. The Department of Motor Vehicles shall not seal a record of a traffic infraction if a customer is subject to an administrative suspension order issued pursuant to Driver Improvement Program requirements under § 46.2-498 , 46.2-499 , or 46.2-506 , issued in part or in whole, as a result of an accumulation of traffic infractions, and less than two years has passed since the date that the suspension order was complied with. (2021, Sp. Sess. I, cc. 524, 542.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 4 provides: "That the provisions of §§ 9.1-101 , 9.1-128 , 9.1-134 , 17.1-293.1 , 17.1-502 , 19.2-310.7 , and 19.2-389.3 of the Code of Virginia, as amended by this act, and Chapter 23.2 ( § 19.2-392.5 et seq.) of Title 19.2 of the Code of Virginia, as created by this act, shall become effective on the earlier of (i) the first day of the fourth month following notification of the Chair of the Virginia Code Commission and the Chairs of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the Superintendent of State Police that the Executive Secretary of the Supreme Court of Virginia, the Department of State Police, and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 of the Code of Virginia, as amended by this act, have automated systems to exchange information as required by §§ 19.2-392.7 , 19.2-392.10 , 19.2-392.11 , and 19.2-392.12 of the Code of Virginia, as created by this act, or (ii) July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 7 provides: "That the Executive Secretary of the Supreme Court of Virginia shall develop a form for requesting and authorizing access to a sealed court record as set forth in section D of § 19.2-392.13 of the Code of Virginia, as created by this act, not later than July 1, 2025."

Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "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 cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Chapter 24. Inspection Warrants.

Sec.

§ 19.2-393. Definitions.

An "inspection warrant" is an order in writing, made in the name of the Commonwealth, signed by any judge of the circuit court whose territorial jurisdiction encompasses the property or premises to be inspected or entered, and directed to a state or local official, commanding him to enter and to conduct any inspection, testing or collection of samples for testing required or authorized by state or local law or regulation in connection with the manufacturing, emitting or presence of a toxic substance, and which describes, either directly or by reference to any accompanying or attached supporting affidavit, the property or premises where the inspection, testing or collection of samples for testing is to occur. Such warrant shall be sufficiently accurate in description so that the official executing the warrant and the owner or custodian of the property or premises can reasonably determine from the warrant the activity, condition, circumstance, object or property of which inspection, testing or collection of samples for testing is authorized.

For the purposes of this chapter, "manufacturing" means producing, formulating, packaging, or diluting any substance for commercial sale or resale; "emitting" means the release of any substance, whether or not intentional or avoidable, into the work environment, into the air, into the water, or otherwise into the human environment; and "toxic substance" means any substance, including (i) any raw material, intermediate product, catalyst, final product and by-product of any operation conducted in a commercial establishment and (ii) any biological organism, that has the capacity, through its physical, chemical, or biological properties, to pose a substantial risk to humans, aquatic organisms or any other animal of illness, death or impairment of normal functions, either immediately or over a period of time.

(1976, c. 625; 1979, c. 122.)

Law review. - For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976). For survey of Virginia law on administrative law and utility regulation for the year 1978-1979, see 66 Va. L. Rev. 193 (1980). For article, "Warrantless Searches and Seizures in Virginia," see 17 U. Rich. L. Rev. 721 (1983).

§ 19.2-394. Issuance of warrant.

An inspection warrant may be issued for any inspection, testing or collection of samples for testing or for any administrative search authorized by state or local law or regulation in connection with the presence, manufacturing or emitting of toxic substances, whether or not such warrant be constitutionally required. Nothing in this chapter shall be construed to require issuance of an inspection warrant where a warrant is not constitutionally required or to exclude any other lawful means of search, inspection, testing or collection of samples for testing, whether without warrant or pursuant to a search warrant issued under any other provision of the Code of Virginia. No inspection warrant shall be issued pursuant to this chapter except upon probable cause, supported by affidavit, particularly describing the place, things or persons to be inspected or tested and the purpose for which the inspection, testing or collection of samples for testing is to be made. Probable cause shall be deemed to exist if either reasonable legislative or administrative standards for conducting such inspection, testing or collection of samples for testing are satisfied with respect to the particular place, things or persons or there exists probable cause to believe that there is a condition, object, activity or circumstance which legally justifies such inspection, testing or collection of samples for testing. The supporting affidavit shall contain either a statement that consent to inspect, test or collect samples for testing has been sought and refused or facts or circumstances reasonably justifying the failure to seek such consent in order to enforce effectively the state or local law or regulation which authorizes such inspection, testing or collection of samples for testing. The issuing judge may examine the affiant under oath or affirmation to verify the accuracy of any matter indicated by the statement in the affidavit. After issuing a warrant under this section, the judge shall file the affidavit in the manner prescribed by § 19.2-54 .

(1976, c. 625; 1979, c. 122; 2014, c. 354.)

The 2014 amendments. - The 2014 amendment by c. 354 added the last sentence.

Law review. - For survey of Virginia law on governmental services and social welfare for the year 1978-1979, see 66 Va. L. Rev. 301 (1980).

Applied in Mosher Steel-Virginia v. Teig, 229 Va. 95 , 327 S.E.2d 87 (1985).

§ 19.2-395. Duration of warrant.

An inspection warrant shall be effective for the time specified therein, for a period of not more than ten days, unless extended or renewed by the judicial officer who signed and issued the original warrant, upon satisfying himself that such extension or renewal is in the public interest. Such warrant shall be executed and returned to the clerk of the circuit court of the city or county wherein the inspection was made within the time specified in the warrant or within the extended or renewed time. After the expiration of such time, the warrant, unless executed shall be void.

(1976, c. 625; 2014, c. 354.)

The 2014 amendments. - The 2014 amendment by c. 354 substituted "clerk of the circuit court of the city or county wherein the inspection was made" for "judicial officer by whom it was issued."

Law review. - For article, "Warrantless Searches and Seizures in Virginia," see 17 U. Rich. L. Rev. 721 (1983).

§ 19.2-396. Conduct of inspection, testing or collection of samples for testing; special procedure for dwelling.

An inspection, testing or collection of samples for testing pursuant to such warrant may not be made in the absence of the owner, custodian or possessor of the particular place, things or persons unless specifically authorized by the issuing judge upon a showing that such authority is reasonably necessary to effectuate the purpose of the law or regulation being enforced. An entry pursuant to this warrant shall not be made forcibly, except that the issuing judge may expressly authorize a forcible entry where facts are shown sufficient to create a reasonable suspicion of an immediate threat to public health or safety, or where facts are shown establishing that reasonable attempts to serve a previous warrant have been unsuccessful. In the case of entry into a dwelling, prior consent must be sought and refused and notice that a warrant has been issued must be given at least twenty-four hours before the warrant is executed, unless the issuing judge finds that failure to seek consent is justified and that there is a reasonable suspicion of an immediate threat to public health or safety.

(1976, c. 625; 1979, c. 122.)

Law review. - For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976). For article, "Warrantless Searches and Seizures in Virginia," see 17 U. Rich. L. Rev. 721 (1983).

§ 19.2-397. Refusal to permit authorized inspection; penalty.

Any person who willfully refuses to permit an inspection, testing or collection of samples for testing lawfully authorized by warrant issued pursuant to this chapter shall be guilty of a Class 3 misdemeanor.

(1976, c. 625; 1979, c. 122.)

Cross references. - As to punishment for Class 3 misdemeanors, see § 18.2-11 .

Chapter 25. Appeals by the Commonwealth.

Sec.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1. Courts. § 1.03 Court of Appeals. Friend.

§ 19.2-398. When appeal by the Commonwealth allowed.

  1. In a felony case a pretrial appeal from a circuit court may be taken by the Commonwealth from:
    1. An order of a circuit court dismissing a warrant, information or indictment, or any count or charge thereof on the ground that (i) the defendant was deprived of a speedy trial in violation of the provisions of the Sixth Amendment to the Constitution of the United States, Article I, Section 8 of the Constitution of Virginia, or § 19.2-243 ; or (ii) the defendant would be twice placed in jeopardy in violation of the provisions of the Fifth Amendment to the Constitution of the United States or Article I, Section 8 of the Constitution of Virginia; or
    2. An order of a circuit court prohibiting the use of certain evidence at trial on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia prohibiting illegal searches and seizures and protecting rights against self-incrimination, provided the Commonwealth certifies that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding.
  2. A petition for appeal may be taken by the Commonwealth in a felony case from any order of release on conditions pursuant to Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title.
  3. A petition for appeal may be taken by the Commonwealth in a felony case after conviction where the sentence imposed by the circuit court is contrary to mandatory sentencing or restitution terms required by statute.
  4. Nothing in this chapter shall affect the Commonwealth's right to appeal in civil matters or cases involving a violation of law relating to the state revenue or appeals pursuant to § 17.1-411 or subsection C of § 19.2-317 .
  5. A pretrial appeal may be taken in any criminal case from an order of a circuit court dismissing a warrant, information, summons, delinquency petition, or indictment, or any count or charge thereof, on the ground that a statute or local ordinance on which the order is based is unconstitutional.

    (1985, c. 510; 1987, c. 710; 1998, c. 251; 1999, cc. 829, 846; 2002, cc. 611, 692; 2003, c. 109; 2005, cc. 622, 694; 2006, cc. 571, 876.)

Editor's note. - Acts 1985, c. 510, cl. 2 provided that this chapter would take effect December 1, 1986, provided that a majority of those voting in a referendum in November 1986 voted in favor of an amendment to Va. Const., Art. VI, § 1, relating to the provisions of this chapter. Such an amendment to Va. Const., Art. VI, § 1, was ratified at the election held Nov. 4, 1986.

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and added the subsection A designator; added present subsection B; added the subsection C designator; and substituted "17.1-411" for "17-116.08" in present subsection C.

The 2002 amendments. - The 2002 amendments by cc. 611 and 692 substituted "that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding" for "the evidence is essential to the prosecution" in subdivision A 2. Chapter 611 also inserted present subsection C and redesignated former subsection C as present subsection D.

The 2003 amendments. - The 2003 amendment by c. 109 rewrote the introductory language in subsection A, which formerly read: "A petition for appeal from a circuit court may be taken by the Commonwealth only in felony cases, before a jury is impaneled and sworn in a jury trial, or before the court begins to hear or receive evidence or the first witness is sworn, whichever occurs first, in a nonjury trial. The appeal may be taken from."

The 2005 amendments. - The 2005 amendments by cc. 622 and 694 are identical, and in subdivision A 1, inserted clauses (i) and (ii) and designated "a statute upon which it was based is unconstitutional" as clause (iii).

The 2006 amendments. - The 2006 amendments by cc. 571 and 876 are identical, and in subsection A, deleted former clause (iii), which read: "a statute upon which it was based is unconstitutional" at the end of subdivision A 1 and made a related change; and added subsection E.

Law review. - For note, "Double Jeopardy and the Commonwealth's Right to Writs of Error in Criminal Cases," see 20 U. Rich. L. Rev. 629 (1986). For note, "Commonwealth Right of Appeal in Criminal Proceedings," see 43 Wash. & Lee L. Rev. 295 (1986). For 1987 survey of Virginia criminal procedure, see 21 U. Rich L. Rev. 727 (1987).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For an article, "Final and Interlocutory Appeals in Virginia," see 8 Geo. Mason L. Rev. 337 (1999).

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 57, 73, 85; 2C M.J. Autrefois, Acquit and Convict, § 10; 5B M.J. Criminal Procedure, § 69.

CASE NOTES

Constitutionality. - This section, which provides the Commonwealth a limited right to appeal interlocutory orders, does not violate the United States constitutional guarantee of equal protection. Commonwealth v. Ramey, 19 Va. App. 300, 450 S.E.2d 775 (1994).

The constitutional and statutory authority for Commonwealth appeals is narrowly circumscribed. It was not enacted to allow Commonwealth appeals from all allegedly erroneous pre-trial rulings by the trial court. Even if the trial court's ruling was erroneous, nonresponsive and exceeded the bounds of the relief requested, and even if it was intended to frustrate the Commonwealth's right of appeal, these facts do not provide a basis for the exercise of appellate jurisdiction. Commonwealth v. Brown, 8 Va. App. 41, 378 S.E.2d 623 (1989).

The purpose of Chapter 25 of Title 19.2, § 19.2-398 et. seq., is to afford the Commonwealth a limited right of appeal under certain carefully specified circumstances. Those appeals are pre-trial, and the statutory scheme plainly contemplates that rulings on such appeals are interlocutory and reversible, as are the reviewed trial court rulings. Satchell v. Commonwealth, 20 Va. App. 641, 460 S.E.2d 253 (1995).

Section must be strictly construed against Commonwealth. - This section is in derogation of the general constitutional prohibition against appeals by the Commonwealth. It must be strictly construed against the state and limited in application to cases falling clearly within the language of the statute. Commonwealth v. Hawkins, 10 Va. App. 41, 390 S.E.2d 3 (1990).

This section does not permit appeal of a trial judge's evidentiary rulings at a hearing on a motion to suppress. Commonwealth v. Thornton, 24 Va. App. 478, 483 S.E.2d 487 (1997).

Right to appeal unconstitutional statute whether "facial" or "as applied" challenge. - The plain language of this section gives the Commonwealth the right to appeal whenever a statute is found unconstitutional, whether the finding is based on a "facial" or an "as applied" challenge. Commonwealth v. Johnson, No. 0629-90-4 (Ct. of Appeals Oct. 16, 1990).

Use of "shall" is directory only. - Language in § 19.2-400 stating what a notice of appeal "shall" contain, along with almost identical language in § 19.2-398 , is directory only. Thus, the Commonwealth's failure to timely file the certification described in §§ 19.2-398 and 19.2-400 was not jurisdictional. Commonwealth v. Hackett,, 2008 Va. App. LEXIS 120 (Mar. 11, 2008).

Commonwealth's limited right of appeal. - The legislature has narrowly limited the Commonwealth's right to appeal suppression orders of the trial courts to orders which are based on constitutional violations; therefore, where the Commonwealth appealed an order suppressing certain evidence solely on the grounds that the evidence was obtained in violation of §§ 19.2-59 and 19.2-60 , the court of appeals would not entertain the Commonwealth's appeal. Commonwealth v. Ragland, 7 Va. App. 452, 374 S.E.2d 183 (1988).

Under this section the Commonwealth's right to appeal is limited to suppression orders granted on the basis of violation of specific provisions of the United States and the Virginia Constitutions. Commonwealth v. Rodgers, 21 Va. App. 745, 467 S.E.2d 813 (1996).

Commonwealth had a limited right to appeal the trial court's granting of defendant's motion to suppress, but the trial court's judgment had to be affirmed, as the Commonwealth's argument that the motion to suppress should not have been denied because the evidence showed that there was probable cause to make an arrest and to search incident to that arrest had to be rejected because that argument had not been raised in the trial court and, therefore, could not be considered for the first time on appeal. Commonwealth v. Flythe, No. 0759-03-1, 2003 Va. App. LEXIS 410 (Ct. of Appeals July 18, 2003).

Commonwealth's appeal of the trial court's dismissal of indictments filed against defendant charging him with possession of cocaine with intent to distribute and possession of a firearm while possessing cocaine with intent to distribute was dismissed; the record showed that the Commonwealth had submitted evidence, including sworn testimony, immediately prior to the trial court's ruling on defendant's motion to dismiss and the statute under which the Commonwealth appealed, clause (ii) of subdivision A 1 of § 19.2-398 expressly applied only to "pretrial appeals," which was not involved in the present case. Commonwealth v. Green,, 2006 Va. App. LEXIS 347 (Aug. 1, 2006).

Statute conferring upon the Commonwealth a limited right of appeal does not encompass appeals from evidence excluded under the Rules of Evidence; allowing this appeal based on the Rules of Evidence to proceed would require the court to read into the statute a basis for appeal that the General Assembly had chosen not to include, and thus the trial court's ruling did not fall within the scope of the statute and the appeal was dismissed. Commonwealth v. Massey,, 2014 Va. App. LEXIS 266 (July 25, 2014).

Law of the case. - Law of the case doctrine prevented defendant from challenging the appellate court's first decision because it involved the same case, the same parties, and the same facts, post-trial Commonwealth appeals did not have a right to reconsideration of issues previously decided by the appellate court, and there was a distinction regarding the finality of appellate court decisions in Commonwealth pretrial appeals versus post-trial appeals. Greer v. Commonwealth, 67 Va. App. 324, 796 S.E.2d 422, 2017 Va. App. LEXIS 40 (2017).

Holding by appellate court in pre-trial suppression dispute is not stare decisis as to the admissibility issue raised in the post-trial appeal, and that issue is fully reviewable. Satchell v. Commonwealth, 20 Va. App. 641, 460 S.E.2d 253 (1995).

Grant of a motion to suppress evidence by defendant. - Commonwealth's appeal pursuant to § 19.2-398 of the trial court's grant of defendant's motion to suppress evidence was granted and the suppression was reversed, because the search that uncovered the evidence was a search incident to defendant's lawful arrest for bring drunk in public. Commonwealth v. Hamlet, No. 0256-03-2, 2003 Va. App. LEXIS 334 (Ct. of Appeals June 10, 2003).

Commonwealth's pretrial appeal of a suppression order, etc. was properly filed under this section where the record satisfactorily established that the court's decision was based upon constitutional grounds. Commonwealth v. Wilburn, No. 0884-91-4 (Ct. of Appeals Oct. 29, 1991).

Virginia Sup. Ct. R. 5A:18 did not preclude the court of appeals from considering a certain argument that the Commonwealth made in its appeal from a suppression order, pursuant to § 19.2-398 , even though the Commonwealth admitted that there was merit to defendant's claim that the rule barred the Commonwealth from arguing on appeal, for lack of a proper preservation of the issue, that he had implicitly waived his Miranda rights. The court of appeals was not bound by concessions of law by the parties to a case, the issue of whether an officer had given defendant his Miranda warnings and defendant had chosen not to heed them was laid before the trial court as a factual predicate to the determination of the issue of whether the police had used illegal tactics in the interrogation, and, therefore, the rule did not bar the Commonwealth from advancing its argument of the implied waiver on appeal. Commonwealth v. Kadian,, 2006 Va. App. LEXIS 246 (May 30, 2006).

In a pretrial appeal filed by the state pursuant to this section, the appellate court concluded that the particular positioning of the sport utility vehicle (SUV) defendant was driving and another vehicle in a high crime area at night suggested that their occupants may have been engaged in criminal drug-related activity, and that suspicion was corroborated by evidence lawfully seized from defendant's person and his behavior following the traffic stop. Therefore, the trial court erred by suppressing the evidence obtained from the search of the SUV. Commonwealth v. Garrick, No. 0533-16-1, 2016 Va. App. LEXIS 241 (Ct. of Appeals Sept. 13, 2016).

Commonwealth was statutorily entitled to appeal the trial court's written order stating it was granting defendant's motion to suppress. Commonwealth v. Lemus, No. 1024-17-4, 2017 Va. App. LEXIS 306 (Dec. 5, 2017).

Suppression motion requirements must be followed. - Procedure set forth in § 19.2-266.2 for suppression motions is directly related to the provisions of § 19.2-398 , the Commonwealth's right to appeal evidence excluded as a result of a suppression hearing; the Commonwealth would be prejudiced by allowing a defendant to disregard, without good cause, the dictates of § 19.2-266.2 . Wilson v. Commonwealth, No. 0433-02-2, 2002 Va. App. LEXIS 735 (Ct. of Appeals Dec. 10, 2002).

Interlocutory appeal of suppression determination. - Following an interlocutory appeal by the Commonwealth pursuant to § 19.2-398 A 2, the appellate court determined that the trial court erred in granting defendant's motion to suppress drugs found in a vehicle recently occupied by defendant in relation to charges of possession of cocaine and heroin with intent to distribute, § 18.2-248 , because the automobile exception had no separate exigency requirement, and the search of the vehicle did not violate Virginia constitutional law prohibiting illegal searches and seizures. Commonwealth v. Rogers,, 2003 Va. App. LEXIS 85 (Feb. 25, 2003).

Although Va. Sup. Ct. R. 5A:3(c) allowed the Commonwealth to mail its petition appealing the trial court's judgment granting defendant's motion to suppress evidence to the court of appeals, it required the Commonwealth to obtain an official receipt showing that the petition was mailed on time and to produce that receipt on demand, and the appellate court held that because the Commonwealth could not produce a receipt showing that it mailed its petition on or before the date it was due, and could not otherwise show that its petition was filed on time, the court lacked jurisdiction to hear the Commonwealth's appeal. Commonwealth v. Green, No. 1845-03-2, 2004 Va. App. LEXIS 16 (Ct. of Appeals Jan. 13, 2004).

Commonwealth's interlocutory appeal of the pretrial suppression of defendant's statements, pursuant to § 19.2-398 , was unsuccessful because the factual record supported the trial court's determination that defendant did not knowingly, intelligently, and voluntarily waive his previously invoked right to counsel with comments made after six hours in a windowless interrogation room. Once defendant requested counsel, the detectives should have scrupulously honored that request. Commonwealth v. Tucker,, 2009 Va. App. LEXIS 489 (Nov. 3, 2009).

Court of appeals lacked jurisdiction to review. - Court of Appeals lacked jurisdiction to review a circuit court's dismissal of indictments, based upon the circuit court's conclusion that an attempted prosecution violated the circuit court's interpretation of the immunity provision of a plea agreement, because the Court of Appeals was not statutorily permitted to review the circuit court's interpretation of a plea or immunity agreement. Commonwealth v. Morrissey, No. 0559-15-2, 2015 Va. App. LEXIS 271 (Sept. 22, 2015).

Commonwealth's challenge to the circuit court's refusal to admit an email in determining the speedy trial issue was dismissed for lack of subject matter jurisdiction as the language of § 19.2-398 plainly did not allow the Commonwealth to appeal evidentiary rulings. Commonwealth v. Craighead, No. 0131-18-3, 2018 Va. App. LEXIS 158 (June 12, 2018).

Scope of review. - The prosecutor's certification that "the evidence is essential to the prosecution" was not reviewable on appeal. Commonwealth v. Thomas, 23 Va. App. 598, 478 S.E.2d 715 (1996).

Trial court lacked authority to dismiss indictment after granting motion to suppress. Commonwealth v. Lane, No. 0318-99-2 (Ct. of Appeals Aug. 3, 1999).

Case was remanded to determine whether defendant, who had been sentenced to death, was mentally retarded. The Commonwealth could not use mandamus in the guise of an appeal to challenge the trial court's final judgment setting aside the death sentence based on a Brady violation, as the Commonwealth's appellate rights were strictly prescribed by Va. Const., Art. VI, § 1 and § 19.2-398 . In re Commonwealth, 278 Va. 1 , 677 S.E.2d 236, 2009 Va. LEXIS 78 (2009).

Appeal was outside scope of subdivision 2. - Commonwealth's appeal from an order granting a motion to suppress evidence, based on a finding that defendant's due process rights had been violated by a police identification procedure, was outside the scope of subdivision 2 and could not be maintained, where there was no finding that the evidence suppressed resulted from an illegal search or seizure or from an infringement of defendant's right against self-incrimination. Commonwealth v. Hawkins, 10 Va. App. 41, 390 S.E.2d 3 (1990).

Notice of appeal insufficient. - Record was devoid of a notice of appeal giving the court of appeals the jurisdiction to consider the merits of the Commonwealth's appeal because the docket number and the reference to the statute in the notice of appeal were insufficient to adequately identify the order being appealed; the notice did not include the date of the underlying hearing, the date of the letter opinion of the trial court, or a summary its ruling. Commonwealth v. Dubois, No. 0944-15-4, 2015 Va. App. LEXIS 324 (Nov. 10, 2015).

Writ of mandamus filed by Commonwealth Attorney. - State supreme court granted the petition for writ of mandamus filed by the Commonwealth Attorney, as the trial court did not have the discretion to prohibit the Commonwealth Attorney from seeking the death penalty; the Commonwealth Attorney was entitled to seek the death penalty pursuant to statutory law, his limited right of appeal did not include allowing him to appeal the trial court's prohibition, and the trial court erred by exercising an executive function in determining that the Commonwealth Attorney was prohibited from seeking it in defendant's case where defendant was charged with capital murder pursuant to § 18.2-31 . In re Horan, 271 Va. 258 , 634 S.E.2d 675, 2006 Va. LEXIS 23 (2006).

Double jeopardy. - In an appeal by the Commonwealth of a trial court's order dismissing an indictment against defendant on double jeopardy grounds, the appellate court concluded that the trial court correctly decided that defendant's trial was terminated because there was insufficient evidence to prove that defendant had stolen money from the victim. Defendant was acquitted of grand larceny, and the Commonwealth could not name a different victim and relitigate the issue at a second trial in hopes of achieving a conviction. Commonwealth v. Flythe, No. 0592-15-4, 2015 Va. App. LEXIS 251 (Sept. 1, 2015).

Circuit court erred in holding that defendant's constitutional protections from double jeopardy under U.S. Const. amend. V barred a new trial because defendant by failing to expressly object to a mistrial and implicitly consenting to it, waived defendant's double jeopardy rights. Commonwealth v. Brock, No. 1438-19-2, 2020 Va. App. LEXIS 45 (Feb. 18, 2020).

Fruit of the poisonous tree. - Even assuming, without deciding, that appellee was seized illegally before the police obtained his ID card, the appellate court found that a comparative fingerprint analysis was not "fruit" of an illegal seizure because neither appellee's fingerprints nor a firearm were obtained via any illegal police action. Accordingly, the fingerprint analysis was not "fruit of the poisonous tree" and thus should not have been suppressed. Commonwealth v. Coleman, No. 1017-18-2, 2018 Va. App. LEXIS 322 (Nov. 20, 2018).

Evidence properly suppressed. - Where the court made a credibility determination adverse to the Commonwealth based on inconsistent testimony by police officers as to defendant's driving behavior, there was no probable cause for the detention and search of defendant and the evidence that was found as a result of the warrantless search was correctly suppressed. Commonwealth v. Stallings, No. 1170-16-1, 2016 Va. App. LEXIS 340 (Ct. of Appeals Dec. 13, 2016).

Trial court's conclusion that the Commonwealth had failed in its burden of proving that defendant freely and voluntarily consented to the search was a factual finding and entitled to deference on appeal, and it was not plainly wrong or without evidence to support it. Commonwealth v. Ray, No. 0975-19-3, 2019 Va. App. LEXIS 247 (Ct. of Appeals Nov. 5, 2019).

Grant of a motion to suppress evidence by defendant. - Circuit court erred in dismissing the charges after granting defendants' motions to suppress as the Commonwealth made clear that it was likely to exercise its statutory right to a pretrial appeal. Commonwealth v. Williams, Nos. 0849-19-2, 0850-19-2, 2019 Va. App. LEXIS 240 (Oct. 29, 2019).

Applied in Commonwealth v. Spencer, 21 Va. App. 156, 462 S.E.2d 899 (1995); Commonwealth v. Thornton, 24 Va. App. 478, 483 S.E.2d 487 (1997); Commonwealth v. Benjamin, 28 Va. App. 548, 507 S.E.2d 113 (1998); Commonwealth v. Botkin, 68 Va. App. 177, 805 S.E.2d 412, 2017 Va. App. LEXIS 262 (2017); Nichols v. Commonwealth, No. 0304-17-1, 2018 Va. App. LEXIS 75 (Mar. 20, 2018); Carlson v. Commonwealth, 69 Va. App. 749, 823 S.E.2d 28, 2019 Va. App. LEXIS 36 (2019); Commonwealth v. Vinson, No. 0104-19-2, 2019 Va. App. LEXIS 127 (May 28, 2019).

§ 19.2-399. Defense objections to be raised before trial; hearing; bill of particulars.

Editor's note. - This section is now codified at § 19.2-266.2 .

§ 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 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.

(1987, c. 710; 2003, c. 109; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense 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 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "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 $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2003 amendments. - The 2003 amendment by c. 109 substituted "shall" for "will" in the first paragraph; in the second paragraph, substituted "subsection A of § 19.2-398 " for "this chapter" in the first sentence, substituted "the appeal is not taken for the purpose of delay and that the evidence is substantial proof of a fact material to the proceeding" for "such evidence is essential to the prosecution" at the end of the second sentence, and in the last sentence inserted "pretrial," and deleted "pursuant to § 19.2-403 " following "hearing"; and added the final paragraph.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "an aggravated murder" for "a capital murder" in the first paragraph.

CASE NOTES

Purpose. - Purpose of this section is to prevent a circuit court from defeating the ability of the Commonwealth to pursue its appeal once the appeal is properly noted. West v. Commonwealth, 16 Va. App. 679, 432 S.E.2d 730 (1993).

Use of "shall" is directory only. - Language in § 19.2-400 stating what a notice of appeal "shall" contain, along with almost identical language in § 19.2-398 , is directory only. Thus, the Commonwealth's failure to timely file the certification described in §§ 19.2-398 and 19.2-400 was not jurisdictional. Commonwealth v. Hackett,, 2008 Va. App. LEXIS 120 (Mar. 11, 2008).

Court sees no material difference in the "shall certify" direction found in § 19.2-400 and the "shall file" direction found in § 19.2-405 ; the Commonwealth's failure regarding the notice of filing transcripts in this case did not deprive the court of jurisdiction over the appeal. Commonwealth v. Stanley, No. 0962-19-3, 2019 Va. App. LEXIS 260 (Ct. of Appeals Nov. 12, 2019).

Circuit court may reconsider its order. - This section did not bar circuit court from reconsidering its order granting motion to suppress after the Commonwealth had filed a notice of appeal from that order where trial court granted defendant's motion to suppress evidence in the circuit court. West v. Commonwealth, 16 Va. App. 679, 432 S.E.2d 730 (1993).

Commonwealth's limited right of appeal. - Commonwealth's appeal of the trial court's dismissal of indictments filed against defendant charging him with possession of cocaine with intent to distribute and possession of a firearm while possessing cocaine with intent to distribute was dismissed; the record showed that the Commonwealth had submitted evidence, including sworn testimony, immediately prior to the trial court's ruling on defendant's motion to dismiss and the statute under which the Commonwealth appealed, clause (ii) of subdivision A 1 of § 19.2-398 expressly applied only to "pretrial appeals," which was not involved in the present case. Commonwealth v. Green,, 2006 Va. App. LEXIS 347 (Aug. 1, 2006).

Notice of appeal timely. - Commonwealth had seven days following the entry of the trial court's order in which to file a notice of appeal, and its notice of appeal fell within that time period; because the notice of appeal was timely filed and clearly identified the order being appealed, it was sufficient to confer jurisdiction on the court of appeals. Commonwealth v. Dubois, No. 0944-15-4, 2015 Va. App. LEXIS 324 (Nov. 10, 2015).

Commonwealth's notice of appeal, filed before the trial court entered the order from which the appeal was taken, was timely, as it provided more notice of the intent to appeal than required. Commonwealth v. Jenkins, No. 0212-18-2, 2018 Va. App. LEXIS 183 (July 10, 2018).

Date of entry. - It is the date of the entry of the order by the circuit court, not the circuit court's rendition of a judgment, that matters for purposes of timely filing a notice of appeal. Commonwealth v. Dubois, No. 0944-15-4, 2015 Va. App. LEXIS 324 (Nov. 10, 2015).

Tolling of dismissal order. - Appellate court, after finding that the trial court should not have entered its judgment suppressing evidence against defendant, found that it did not need to address the trial court's subsequent dismissal of the three indictments against defendant. Pursuant to § 19.2-400 and Va. Sup. Ct. R. 1:1, the Commonwealth's appeal of the trial court's ruling on the suppression order suspended the dismissal of the indictments pending the Commonwealth's appeal and since the Commonwealth prevailed, the indictments were treated as not having been dismissed at all. Commonwealth v. DeBusk,, 2008 Va. App. LEXIS 268 (June 3, 2008).

Applied in Brown v. City of Danville, 44 Va. App. 586, 606 S.E.2d 523, 2004 Va. App. LEXIS 627 (2004).

Commonwealth's limited right of appeal. - Circuit court erred in dismissing the charges after granting defendants' motions to suppress as the Commonwealth made clear that it was likely to exercise its statutory right to a pretrial appeal. Commonwealth v. Williams, Nos. 0849-19-2, 0850-19-2, 2019 Va. App. LEXIS 240 (Oct. 29, 2019).

§ 19.2-401. Cross appeal; when allowed; time for filing.

The defendant shall have no independent right of appeal pursuant to § 19.2-398 . If the Commonwealth appeals, the defendant may cross appeal from any orders from which the Commonwealth may appeal, pursuant to § 19.2-398 . The defendant shall be under no obligation to defend an appeal filed by the Commonwealth. However, when an appeal is taken by the Commonwealth, and the defendant wishes to defend or cross appeal, the circuit court shall, where the defendant is indigent, appoint counsel to represent the defendant on appeal. The remuneration to be awarded appointed counsel shall be governed by § 19.2-326 .

In pretrial appeals, the defendant shall file a notice of cross appeal with the clerk of the circuit court within seven days following the notice of appeal filed by the Commonwealth.

Any brief on cross appeal shall be consolidated with the defendant's brief as appellee, if any.

(1987, c. 710; 2003, c. 109.)

The 2003 amendments. - The 2003 amendment by c. 109 inserted "In pretrial appeals" at the beginning of the second paragraph.

CASE NOTES

Law of the case. - Law of the case doctrine prevented defendant from challenging the appellate court's first decision because it involved the same case, the same parties, and the same facts, post-trial Commonwealth appeals did not have a right to reconsideration of issues previously decided by the appellate court, and there was a distinction regarding the finality of appellate court decisions in Commonwealth pretrial appeals versus post-trial appeals. Greer v. Commonwealth, 67 Va. App. 324, 796 S.E.2d 422, 2017 Va. App. LEXIS 40 (2017).

Timeliness. - Appellate court lacked jurisdiction over defendant's appeal because his notice of appeal was untimely where he had a statutory right to challenge his conviction by timely filing his own notice of appeal or by cross-appealing the Government's appeal, but did neither. Greer v. Commonwealth, 67 Va. App. 324, 796 S.E.2d 422, 2017 Va. App. LEXIS 40 (2017).

Applied in Commonwealth v. Thornton, 24 Va. App. 478, 483 S.E.2d 487 (1997).

§ 19.2-402. (Effective until January 1, 2022) Petition for appeal; brief in opposition; time for filing.

  1. When a notice of appeal has been filed pursuant to § 19.2-400 , the Commonwealth may petition the Court of Appeals for an appeal pursuant to § 19.2-398 . The Commonwealth shall be represented by the attorney for the Commonwealth prosecuting the case.
  2. The provisions of this subsection apply only to pretrial appeals. The petition for a pretrial appeal shall be filed with the clerk of the Court of Appeals not more than 14 days after the notice of transcript or written statement of facts required by § 19.2-405 is filed or, if there are objections thereto, within 14 days after the judge signs the transcript or written statement of facts. The accused may file a brief in opposition with the clerk of the Court of Appeals within 14 days after the filing of the petition for pretrial appeal. If the accused has filed a notice of cross appeal, he shall file a petition for cross appeal to be consolidated with, and filed within the same time period as, his brief in opposition. The Commonwealth may file a brief in opposition to any petition for cross appeal within 10 days after the petition for cross appeal is filed. Except as specifically provided in this section, all other requirements for the petition for pretrial appeal and brief in opposition shall conform as nearly as practicable to Part Five A of the Rules of the Supreme Court of Virginia. (1987, c. 710; 2003, c. 109; 2014, cc. 33, 294.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 19.2-402 .

The 2003 amendments. - The 2003 amendment by c. 109 inserted the subsection A and B designations; in subsection B, inserted the first sentence, inserted "pretrial" preceding "appeal" throughout, substituted "14" for "fourteen" throughout, and substituted "10" for "ten" in the next-to-last sentence.

The 2014 amendments. - The 2014 amendments by cc. 33 and 294 are identical, and in the second sentence of subsection B, substituted "the notice of transcript or written statement of facts required by § 19.2-405 is filed or" for "the date that the transcript or written statement of facts is filed, or" and added "of facts" to the end.

CASE NOTES

Time requirement for filing interlocutory appeal by Commonwealth in criminal cases. - In reading §§ 17.1-408 and 19.2-402 and Va. Sup. Ct. R. 5A:12 together and giving effect to as much of their respective provisions as possible, in any interlocutory appeal by the Commonwealth in a criminal case, a petition for appeal that is compliant with the provisions of Va. Sup. Ct. R. 5A:12(c)(1) must be filed within fourteen days of the receipt by the clerk of the trial court of the transcript or written statement of facts or, if there are objections thereto, within fourteen days after the judge signs the transcript or written statement of facts, and, in such cases, the Virginia Court of Appeals has no authority to grant an extension of time for any reason, and any grant of such authority to that Court must come from the general assembly. Commonwealth v. Square, No. 2526-11-2, 2012 Va. App. LEXIS 202 (June 12, 2012).

Fourteen-day time limit in the more specific and more recent expression of legislative intent of § 19.2-402 applies to interlocutory appeals by the Commonwealth in criminal cases, rather than the forty-day time limit of § 17.1-408 . Commonwealth v. Square, No. 2526-11-2, 2012 Va. App. LEXIS 202 (June 12, 2012).

Court of appeals lacked authority to grant extension. - When the Commonwealth's petition for an interlocutory appeal appealing an order granting a motion to suppress did not contain assignments of error, the appellate court erroneously granted an extension of time within which to file a proper petition and had no jurisdiction to consider the petition because (1) the requirement of assignments of error was jurisdictional, (2) the legislature intended in §§ 19.2-402 and 17.1-408 to expeditiously dispose of such appeals, (3) § 19.2-402 did not let the appellate court grant an extension in such cases, (4) § 19.2-402, reducing the time to file an interlocutory petition for appeal to fourteen days, governed, as the statute was a more specific and more recent expression of legislative intent, and (5) § 19.2-402's incorporation of Va. Sup. Ct. R. 5A:12 did not include authority to grant extensions of time, so (6) the general assembly did not intend to grant extensions to file a petition for appeal in these cases. Commonwealth v. Square, No. 2526-11-2, 2012 Va. App. LEXIS 202 (June 12, 2012).

Petition mailed by certified mail, return receipt requested, held untimely. - Although Va. Sup. Ct. R. 5A:3(c) allowed the Commonwealth to mail its petition appealing the trial court's judgment granting defendant's motion to suppress evidence to the court of appeals, it required the Commonwealth to obtain an official receipt showing that the petition was mailed on time and to produce that receipt on demand, and the appellate court held that because the Commonwealth could not produce a receipt showing that it mailed its petition on or before the date it was due, and could not otherwise show that its petition was filed on time, the court lacked jurisdiction to hear the Commonwealth's appeal. Commonwealth v. Green, No. 1845-03-2, 2004 Va. App. LEXIS 16 (Ct. of Appeals Jan. 13, 2004).

Petition timely. - Commonwealth's appeal, filed more than 14 days after the transcript was filed, was timely, as the transcript was filed before the court ruled and the appeal was filed within 14 days of the notice of appeal. Commonwealth v. Mitchell, No. 0741-13-3, 2013 Va. App. LEXIS 251 (Ct. of Appeals Sept. 10, 2013).

Petition for appeal was filed well within the time frame established by the statutes, and thus the Commonwealth's failure regarding the notice of filing transcripts neither caused prejudice to defendant nor deprived the appellate court of jurisdiction by rendering the petition for appeal untimely. Commonwealth v. Stanley, No. 0962-19-3, 2019 Va. App. LEXIS 260 (Ct. of Appeals Nov. 12, 2019).

Incorporation of Va. Sup. Ct. R. 5A:12(a) does not apply to interlocutory appeals by the Commonwealth. - While § 19.2-402 incorporates by reference the requirements of the Rules of the Supreme Court Virginia applicable to the Virginia Court of Appeals, the authority to grant an extension of time as found in Va. Sup. Ct. R. 5A:12(a) does not apply to interlocutory appeals by the Commonwealth because the statute's plain language incorporates by reference only the substantive requirements for the petition as found in other subsections of Va. Sup. Ct. R. 5A:12. Commonwealth v. Square, No. 2526-11-2, 2012 Va. App. LEXIS 202 (June 12, 2012).

§ 19.2-402. (Effective January 1, 2022) Petition for appeal; brief in opposition; time for filing.

  1. When a notice of appeal has been filed pursuant to § 19.2-400 , the Commonwealth may petition the Court of Appeals for an appeal pursuant to § 19.2-398 . The Commonwealth shall be represented by the Attorney General or the attorney for the Commonwealth prosecuting the case if he filed a notice of appearance pursuant to § 2.2-511 .
  2. The provisions of this subsection apply only to pretrial appeals. The petition for a pretrial appeal shall be filed with the clerk of the Court of Appeals not more than 14 days after the notice of transcript or written statement of facts required by § 19.2-405 is filed or, if there are objections thereto, within 14 days after the judge signs the transcript or written statement of facts. The accused may file a brief in opposition with the clerk of the Court of Appeals within 14 days after the filing of the petition for pretrial appeal. If the accused has filed a notice of cross appeal, he shall file a petition for cross appeal to be consolidated with, and filed within the same time period as, his brief in opposition. The Commonwealth may file a brief in opposition to any petition for cross appeal within 10 days after the petition for cross appeal is filed. Except as specifically provided in this section, all other requirements for the petition for pretrial appeal and brief in opposition shall conform as nearly as practicable to Part Five A of the Rules of the Supreme Court of Virginia. (1987, c. 710; 2003, c. 109; 2014, cc. 33, 294; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 19.2-402 .

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, in subsection A, inserted "Attorney General or the" and added "if he filed a notice of appearance pursuant to § 2.2-511 ."

§ 19.2-403. (Effective until January 1, 2022) Procedures on petition for pretrial appeal.

The procedures on a pretrial appeal to the Court of Appeals by the Commonwealth pursuant to § 19.2-398 , and on a cross appeal of a pretrial appeal by the accused pursuant to § 19.2-401 , shall be governed by the provisions of subsections C and D of § 17.1-407 . The Court of Appeals, however, shall grant or deny the petition for a pretrial appeal, and the petition for cross appeal, if any, not later than 30 days after the brief in opposition is timely filed or the time for such filing has expired.

No petition for rehearing may be filed in any pretrial appeal pursuant to this chapter. If the petition for a pretrial appeal pursuant to this chapter is denied, the Court's mandate shall immediately issue and the clerk of the Court of Appeals shall return the record forthwith to the clerk of the trial court.

(1987, c. 710; 2003, c. 109.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 19.2-403 .

The 2003 amendments. - The 2003 amendment by c. 109, in the first paragraph, in the first sentence, substituted "a pretrial" for "an" following "procedures on," inserted "of a pretrial appeal" following "cross appeal," and in the last sentence, inserted "a pretrial" preceding "appeal," and substituted "30" for "thirty"; and in the second paragraph, inserted "in any pretrial appeal pursuant to this chapter" at the end of the first sentence, and substituted "a pretrial appeal pursuant to this chapter" for "appeal" in the second sentence.

§ 19.2-403. (Effective January 1, 2022) Procedures on petition for pretrial appeal.

The procedures on a pretrial appeal to the Court of Appeals by the Commonwealth pursuant to subsections A and E of § 19.2-398 , and on a cross appeal of a pretrial appeal by the accused pursuant to § 19.2-401 , shall be governed by the provisions of subsections C and D of § 17.1-407 . The Court of Appeals, however, shall grant or deny the petition for a pretrial appeal, and the petition for cross appeal, if any, not later than 30 days after the brief in opposition is timely filed or the time for such filing has expired.

No petition for rehearing may be filed in any pretrial appeal pursuant to this chapter. If the petition for a pretrial appeal pursuant to this chapter is denied, the Court's mandate shall immediately issue and the clerk of the Court of Appeals shall return the record forthwith to the clerk of the trial court.

(1987, c. 710; 2003, c. 109; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 19.2-403 .

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, inserted "subsections A and E of" in the first paragraph.

§ 19.2-404. (Effective until January 1, 2022) Procedures on awarded pretrial appeal.

This section applies only to pretrial appeals. If the Court of Appeals grants the Commonwealth's petition for a pretrial appeal, the Attorney General shall thereafter represent the Commonwealth during that appeal.

The Commonwealth shall file its opening brief in the office of the clerk of the Court of Appeals within 25 days after the date of the certificate awarding the appeal. The brief of the appellee shall be filed in the office of the clerk of the Court of Appeals within 25 days after the filing of the Commonwealth's opening brief. The Commonwealth may then file a reply brief, including its response to any cross appeal, in the office of the clerk of the Court of Appeals within 15 days after the filing of the brief of the accused. With the permission of a judge of the Court of Appeals, the time for filing any brief may be extended for good cause shown. Four copies of each brief shall be filed and three copies shall be mailed or delivered to opposing counsel on or before the date of filing. Except as specifically provided in this section, all other requirements of the brief shall conform as nearly as practicable to Part Five A of the Rules of the Supreme Court of Virginia. The Court of Appeals shall accelerate the appeal on its docket and render its decision not later than 60 days after the filing of the appellee's brief or after the time for filing such brief has expired.

When the opinion is rendered by the Court of Appeals, the mandate shall immediately issue and the clerk of the Court of Appeals shall return the record forthwith to the clerk of the trial court. No petition for rehearing may be filed.

(1987, c. 710; 2003, c. 109.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 19.2-404 .

The 2003 amendments. - The 2003 amendment by c. 109, in the first paragraph, added the first sentence, and inserted "a pretrial" in the second sentence; and in the second paragraph, twice substituted "25" for "twenty-five," substituted "15" for "fifteen" in the third sentence, and substituted "60" for "sixty" in the last sentence.

CASE NOTES

Holding by appellate court in pre-trial suppression dispute is not stare decisis as to the admissibility issue raised in the post-trial appeal, and that issue is fully reviewable. Satchell v. Commonwealth, 20 Va. App. 641, 460 S.E.2d 253 (1995).

§ 19.2-404. (Effective January 1, 2022) Procedures on awarded pretrial appeal.

This section applies only to pretrial appeals. If the Court of Appeals grants the Commonwealth's petition for a pretrial appeal, the Attorney General shall represent the Commonwealth during that appeal unless the attorney for the Commonwealth prosecuting the case has filed a notice of appearance pursuant to § 2.2-511 .

The Commonwealth shall file its opening brief in the office of the clerk of the Court of Appeals within 25 days after the date of the certificate awarding the appeal. The brief of the appellee shall be filed in the office of the clerk of the Court of Appeals within 25 days after the filing of the Commonwealth's opening brief. The Commonwealth may then file a reply brief, including its response to any cross appeal, in the office of the clerk of the Court of Appeals within 15 days after the filing of the brief of the accused. With the permission of a judge of the Court of Appeals, the time for filing any brief may be extended for good cause shown. Four copies of each brief shall be filed and three copies shall be mailed or delivered to opposing counsel on or before the date of filing. Except as specifically provided in this section, all other requirements of the brief shall conform as nearly as practicable to Part Five A of the Rules of the Supreme Court of Virginia. The Court of Appeals shall accelerate the appeal on its docket and render its decision not later than 60 days after the filing of the appellee's brief or after the time for filing such brief has expired.

When the opinion is rendered by the Court of Appeals, the mandate shall immediately issue and the clerk of the Court of Appeals shall return the record forthwith to the clerk of the trial court. No petition for rehearing may be filed.

(1987, c. 710; 2003, c. 109; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 19.2-404 .

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, in the first paragraph, deleted "thereafter" preceding "represent" and added "unless the attorney for the Commonwealth prosecuting the case has filed a notice of appearance pursuant to § 2.2-511 ."

§ 19.2-405. Pretrial appeals; record on appeal; transcript; written statement of facts; time for filing.

This section applies only to pretrial appeals. The record on appeal shall conform, as nearly as practicable, to the requirements of Part Five A of the Rules of the Supreme Court for the record on appeal, except as hereinafter provided. The transcript or written statement of facts shall be filed with the clerk of the circuit court from which the appeal is being taken, no later than 25 days following entry of the order of the circuit court. Upon motion of the Commonwealth, the Court of Appeals may grant an extension of up to 45 days for filing the transcript or written statement of facts for good cause shown. If a transcript or written statement of facts is filed, the Commonwealth shall file with the clerk of the circuit court a notice, signed by the attorney for the Commonwealth, who is counsel for the appellant, identifying the transcript or written statement of facts and reciting its filing with the clerk. There shall be appended to the notice a certificate by the attorney for the Commonwealth that a copy of the notice has been mailed or delivered to opposing counsel. The notice of filing of the transcript or written statement of facts shall be filed within three days of the filing of the transcript or written statement of facts or within 14 days of the order of the circuit court, whichever is later.

Any party may object to the transcript or written statement of facts on the ground that it is erroneous or incomplete. Notice of the objection specifying the errors alleged or deficiencies asserted shall be tendered to the trial judge within 10 days after the notice of filing of the transcript or written statement of facts is filed in the office of the clerk. The trial judge shall, within three days after the filing of such objection, either overrule the objection, or take steps deemed necessary to make the record complete or certify the respect in which the record is incomplete, and sign the transcript or written statement of facts to verify its accuracy. The clerk of the trial court shall forthwith transmit the record to the clerk of the Court of Appeals.

(1987, c. 710; 2003, c. 109; 2014, cc. 33, 294.)

The 2003 amendments. - The 2003 amendment by c. 109, in the first paragraph, added the first sentence, substituted "25" for "twenty-five" in the second sentence, substituted "45" for "forty-five" in the third sentence, and substituted "shall" for "must" in the next-to-last sentence; and substituted "10" for "ten" in the second sentence of the second paragraph.

The 2014 amendments. - The 2014 amendment by cc. 33 and 294 are identical, and rewrote first undesignated paragraph; in second undesignated paragraph, added "of facts" in three places; added "notice of filing of the" after "10 days after the" in the second sentence of second undesignated paragraph; and made minor punctuation changes.

CASE NOTES

Construction. - Court sees no material difference in the "shall certify" direction found in § 19.2-400 and the "shall file" direction found in § 19.2-405 ; the Commonwealth's failure regarding the notice of filing transcripts in this case did not deprive the court of jurisdiction over the appeal. Commonwealth v. Stanley, No. 0962-19-3, 2019 Va. App. LEXIS 260 (Ct. of Appeals Nov. 12, 2019).

Petition timely. - Commonwealth's appeal, filed more than 14 days after the transcript was filed, was timely, as the transcript was filed before the court ruled and the appeal was filed within 14 days of the notice of appeal. Commonwealth v. Mitchell, No. 0741-13-3, 2013 Va. App. LEXIS 251 (Ct. of Appeals Sept. 10, 2013).

Petition for appeal was filed well within the time frame established by the statutes, and thus the Commonwealth's failure regarding the notice of filing transcripts neither caused prejudice to defendant nor deprived the appellate court of jurisdiction by rendering the petition for appeal untimely. Commonwealth v. Stanley, No. 0962-19-3, 2019 Va. App. LEXIS 260 (Ct. of Appeals Nov. 12, 2019).

Petition untimely. - Commonwealth's appeal from the granting of defendant's motion to suppress was dismissed, because the notice of filing transcript was not timely filed nor was the petition for appeal filed by the applicable deadline and the deadlines in this section have to be strictly construed against the Commonwealth. Commonwealth v. Spinola, No. 0535-15-4, 2015 Va. App. LEXIS 252 (Sept. 8, 2015).

Issues deemed waived. - Issues the Commonwealth presented on appeal were treated as waived because it failed to timely file a transcript from the motions hearing and thus, failed to provide the court of appeals with a record sufficient to decide the issues presented by the appeal; without the transcript, the court of appeals could not ascertain the basis for the circuit court's decision to suppress defendant's statements, and accordingly, it could not determine whether the circuit court's decision was erroneous. Commonwealth v. Caballero, No. 1883-15-4, 2016 Va. App. LEXIS 174 (Ct. of Appeals May 24, 2016).

CIRCUIT COURT OPINIONS

Request denied where defendant could not file appeal. - Defendant's request for a transcript was denied because, as the defendant could not appeal the decision of the court, the defendant could not show a particularized need for a transcript. Commonwealth v. McClelland, 60 Va. Cir. 436, 2003 Va. Cir. LEXIS 64 (Richmond 2003).

§ 19.2-406. Bail pending pretrial appeal.

This section applies only to pretrial appeals. Upon a pretrial appeal being taken by the Commonwealth pursuant to § 19.2-398 , if the defendant moves the trial court for release on bail, that court shall promptly, but in no event later than three days after the Commonwealth's notice of appeal is filed, hold a hearing to determine the issue of bail. The burden shall be upon the Commonwealth to show good cause why the bail should not be reduced or the accused released on his own recognizance. If it is determined that the accused shall be released on bail, bail shall be set and determined in accordance with Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title.

(1987, c. 710; 1999, cc. 829, 846; 2003, c. 109.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and substituted "Article 1 ( § 19.2-119 et seq.) of Chapter 9 of this title" for " §§ 19.2-119 through 19.2-134 " in the third sentence.

The 2003 amendments. - The 2003 amendment by c. 109 added the first sentence, and inserted "a pretrial" in the second sentence.

CIRCUIT COURT OPINIONS

Bail for murder charge. - Section 19.2-120 presumption against bail for a murder charge applied in a bail determination under § 19.2-406 ; the burden on the Commonwealth to show good cause why bail should not have been reduced or defendant released on his own recognizance during the Commonwealth's pretrial appeal did not eliminate the presumption against bail for defendant's murder charge. Commonwealth v. Ludwig, 69 Va. Cir. 460, 2006 Va. Cir. LEXIS 87 (Loudoun County 2006).

§ 19.2-407. Review by the Supreme Court.

Pursuant to § 17.1-409 , the Supreme Court in its discretion may certify an appeal taken pursuant to § 19.2-398 , or a cross appeal taken pursuant to § 19.2-401 , for expedited review by the Supreme Court before it has been determined by the Court of Appeals. Such certification may be made only when the Supreme Court determines that at least one of the conditions set forth in subsection B of § 17.1-409 exists.

(1987, c. 710.)

§ 19.2-408. Finality of decision of the Court of Appeals in pretrial appeals.

The decision of the Court of Appeals shall be final for purposes of a pretrial appeal pursuant to § 19.2-398 , or a cross appeal of a pretrial appeal taken pursuant to § 19.2-401 , and no further pretrial appeal shall lie to the Supreme Court.

(1987, c. 710; 2003, c. 109.)

The 2003 amendments. - The 2003 amendment by c. 109 substituted "a pretrial" for "an" following "purposes," and inserted "of a pretrial appeal" following "cross appeal."

Law review. - For an article, "Final and Interlocutory Appeals in Virginia," see 8 Geo. Mason L. Rev. 337 (1999).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, §§ 20.1, 85; 5A M.J. Courts, § 36.1.

CASE NOTES

Holding by appellate court in pre-trial suppression dispute is not stare decisis as to the admissibility issue raised in the post-trial appeal, and that issue is fully reviewable. Satchell v. Commonwealth, 20 Va. App. 641, 460 S.E.2d 253 (1995).

§ 19.2-409. Exclusion of pretrial appeal period from time within which accused must be tried; reconsideration of issues after conviction.

This section applies only to pretrial appeals. The provisions of § 19.2-243 shall not apply to the period of time commencing when the Commonwealth's notice of pretrial appeal is filed pursuant to this chapter and ending 60 days after the Court of Appeals or Supreme Court issues its mandate disposing of the pretrial appeal. Such finality of the Court of Appeals' decision shall not preclude a defendant, if he is convicted, from requesting the Court of Appeals or Supreme Court on direct appeal to reconsider an issue which was the subject of the pretrial appeal.

(1987, c. 710; 2003, c. 109; 2007, c. 414.)

The 2003 amendments. - The 2003 amendment by c. 109 added the first sentence and twice inserted "pretrial" preceding "appeal" in the second sentence.

The 2007 amendments. - The 2007 amendment by c. 414 substituted "60 days after" for "when" following "this chapter and ending" in the second sentence.

Law review. - For an article, "Final and Interlocutory Appeals in Virginia," see 8 Geo. Mason L. Rev. 337 (1999).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

CASE NOTES

Reconsideration of pretrial appeal. - Court of appeals was authorized to reconsider the constitutionality of the strip search and the admissibility of the strip search evidence when those questions were presented on direct appeal after defendant's conviction; it erred in failing to do so. Cole v. Commonwealth, 294 Va. 342 , 806 S.E.2d 387 (2017), cert. denied, 139 S. Ct. 2025, 2019 U.S. LEXIS 3250, 204 L. Ed. 2d 228 (2019).

Defendant not deprived of right to speedy trial. - Because defendant's trial was set for a date after the sixty-day mandate period following an interlocutory appeal expired, defendant, therefore, was required to object to continuing the trial date. Accordingly, dismissal based on a violation of the speedy trial statute was inappropriate because defendant's failure to object amounted to acquiescence that the delay in commencing trial would be charged against defendant. Commonwealth v. Amir Fareed Suluki, No. 0540-19-2, 2019 Va. App. LEXIS 194 (Aug. 27, 2019).