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2004 SESSION
040904134Be it enacted by the General Assembly of Virginia:
1. That §§ 17.1-805, 18.2-124, [ 18.2-345, 18.2-349, ] 18.2-374.3, and
19.2-299 of the Code of Virginia are amended and reenacted as follows:
§ 17.1-805. Adoption of initial discretionary sentencing guideline midpoints.
A. The Commission shall adopt an initial set of discretionary felony sentencing guidelines which shall become effective on January 1, 1995. The initial recommended sentencing range for each felony offense shall be determined first, by computing the actual time-served distribution for similarly situated offenders, in terms of their conviction offense and prior criminal history, released from incarceration during the base period of calendar years 1988 through 1992, increased by 13.4 percent, and second, by eliminating from this range the upper and lower quartiles. The midpoint of each initial recommended sentencing range shall be the median time served for the middle two quartiles and subject to the following additional enhancements:
1. The midpoint of the initial recommended sentencing range for first degree
murder, second degree murder, rape in violation of § 18.2-61, forcible sodomy,
object sexual penetration, and aggravated sexual battery, shall be further increased
by (i) 125 percent in cases in which the defendant has no previous conviction of a
violent felony offense, (ii) 300 percent in cases in which the defendant has
previously been convicted of a violent felony offense punishable by a maximum
punishment of less than forty 40 years, or (iii) 500 percent in cases in which
the defendant has previously been convicted of a violent felony offense punishable by a maximum
punishment of forty 40 years or more, except that the recommended sentence for
a defendant convicted of first degree murder who has previously been convicted of a violent
felony offense punishable by a maximum term of imprisonment of forty 40 years
or more shall be imprisonment for life;
2. The midpoint of the initial recommended sentencing range for voluntary
manslaughter, robbery, aggravated malicious wounding, malicious wounding, and
any burglary of a dwelling house or statutory burglary of a dwelling house or
any burglary committed while armed with a deadly weapon or any statutory
burglary committed while armed with a deadly weapon shall be further increased
by (i) 100 percent in cases in which the defendant has no previous conviction
of a violent felony offense, (ii) 300 percent in cases in which the defendant
has previously been convicted of a violent felony offense punishable by a
maximum term of imprisonment of less than forty 40 years, or (iii) 500 percent
in cases in which the defendant has previously been convicted of a violent felony offense
punishable by a maximum term of imprisonment of forty 40 years or more;
3. The midpoint of the initial recommended sentencing range for manufacturing,
selling, giving or distributing, or possessing with the intent to manufacture,
sell, give or distribute a Schedule I or II controlled substance shall be
increased by (i) 200 percent in cases in which the defendant has previously
been convicted of a violent felony offense punishable by a maximum punishment
of less than forty 40 years or (ii) 400 percent in cases in which the defendant
has previously been convicted of a violent felony offense punishable by a maximum term of
imprisonment of forty 40 years or more; and
4. The midpoint of the initial recommended sentencing range for felony offenses
not specified in subdivision 1, 2 or 3 shall be increased by 100 percent in
cases in which the defendant has previously been convicted of a violent felony
offense punishable by a maximum punishment of less than forty 40 years, and by
300 percent in cases in which the defendant has previously been convicted of a violent felony
offense punishable by a maximum term of imprisonment of forty 40 years or more.
B. For purposes of this chapter, previous convictions shall include prior adult convictions and juvenile convictions and adjudications of delinquency based on an offense which would have been at the time of conviction a felony if committed by an adult under the laws of any state, the District of Columbia, the United States or its territories.
C. For purposes of this chapter, violent felony offenses shall include any violation of §§ 18.2-31, 18.2-32, 18.2-32.1, 18.2-33, or § 18.2-35; any violation of subsection B of § 18.2-36.1; any violation of § 18.2-40 or § 18.2-41; any Class 5 felony violation of § 18.2-47; any felony violation of §§ 18.2-48, 18.2-48.1 or § 18.2-49; any violation of §§ 18.2-51, 18.2-51.1, 18.2-51.2, 18.2-51.3, 18.2-51.4, 18.2-52, 18.2-52.1, 18.2-53, 18.2-53.1, 18.2-54.1, 18.2-54.2 or § 18.2-55; any felony violation of § 18.2-57.2; any violation of § 18.2-58 or § 18.2-58.1; any felony violation of § 18.2-60.1 or § 18.2-60.3; any violation of §§ 18.2-61, 18.2-64.1, 18.2-67.1, 18.2-67.2, 18.2-67.2:1, 18.2-67.3, 18.2-67.5, or § 18.2-67.5:1 involving a third conviction of either sexual battery in violation of § 18.2-67.4 or attempted sexual battery in violation of subsection C of § 18.2-67.5; any Class 4 felony violation of § 18.2-63; any violation of subsection A of § 18.2-77; any Class 3 felony violation of § 18.2-79; any Class 3 felony violation of § 18.2-80; any violation of §§ 18.2-89, 18.2-90, 18.2-91, 18.2-92 or § 18.2-93; any felony violation of § 18.2-152.7; any Class 4 felony violation of § 18.2-153; any Class 4 felony violation of § 18.2-154; any Class 4 felony violation of § 18.2-155; any felony violation of § 18.2-162; any violation of § 18.2-279 involving an occupied dwelling; any violation of subsection B of § 18.2-280; any violation of §§ 18.2-281, 18.2-286.1, 18.2-289 or § 18.2-290; any felony violation of subsection A of § 18.2-282; any violation of subsection A of § 18.2-300; any felony violation of §§ 18.2-308.1 and 18.2-308.2; any violation of § 18.2-308.2:1, or subsection M or N of § 18.2-308.2:2; any violation of § 18.2-308.3 or § 18.2-312; any violation of subdivision (2) or (3) of § 18.2-355; any violation of former § 18.2-358; any violation of subsection B of § 18.2-361; any violation of subsection B of § 18.2-366; any violation of §§ 18.2-368, 18.2-370 or § 18.2-370.1; any violation of subsection A of § 18.2-371.1; any felony violation of § 18.2-369 resulting in serious bodily injury or disease; any violation of § 18.2-374.1; any felony violation of § 18.2-374.1:1; any violation of § 18.2-374.3; any second or subsequent offense under §§ 18.2-379 and 18.2-381; any felony violation of § 18.2-405 or § 18.2-406; any violation of §§ 18.2-408, 18.2-413, 18.2-414 or § 18.2-433.2; any felony violation of §§ 18.2-460, 18.2-474.1 or § 18.2-477.1; any violation of §§ 18.2-477, 18.2-478, 18.2-480 or § 18.2-485; any violation of § 53.1-203; or any conspiracy or attempt to commit any offense specified in this subsection, and any substantially similar offense under the laws of any state, the District of Columbia, the United States or its territories.
§ 18.2-124. Jurisdiction over offenses committed in Capitol Square.
The Circuit Court of the City of Richmond shall have jurisdiction to try cases
of offenses committed in Capitol Square except as hereinafter provided. The
District Court district court of the City of Richmond shall have
jurisdiction to try misdemeanor cases of misdemeanor arising under §§ 18.2-122
and 18.2-123, and all other offenses committed in the Capitol Square of which
it would have jurisdiction if committed within the corporate limits and
jurisdiction of the city; and the Capitol Police, or any member thereof, shall
have the same authority to arrest and to swear out warrants for offenses
committed on the Capitol Square as policemen of the City of Richmond have to
arrest or to swear out warrants for offenses committed within the jurisdiction
of the city.
[ § 18.2-345. Lewd and lascivious conduct in a public place.
If any persons, not married to each other, lewdly and lasciviously associate
and cohabit together, or, whether married or not, be guilty ofAny person who
engages in open and gross lewdness and lasciviousness lewd and lacivious
behavior in a public place, each of them shall be is guilty of a Class 3
misdemeanor; and upon a repetition of the offense, and for a first conviction
thereof, each of them shall be guilty of and of a Class 1
misdemeanor for any subsequent conviction.
§ 18.2-349. Using vehicles to promote prostitution.
It shall be unlawful for any owner or chauffeur of any vehicle, with knowledge
or reason to believe the same vehicle is to be used for such purpose, to use
the same vehicle or to allow the same vehicle to be used for the purpose of
prostitution or unlawful sexual intercourse, or to aid or promote such
prostitution or unlawful sexual intercourse by the use of any such vehicle. ]
§ 18.2-374.3. Use of communications systems to facilitate certain offenses involving children.
A. It shall be unlawful for any person to use a communications system,
including but not limited to computers or computer networks or bulletin boards,
or any other electronic means for the purposes of procuring or promoting the
use of a minor for any activity in violation of § 18.2-370 or § 18.2-374.1. A
violation of this section shall be punishable as subsection is a Class 6
felony.
B. It shall be unlawful for any person over the age of 18 to use a
communications system, including but not limited to computers or computer
networks or bulletin boards, or any other electronic means, for the purposes of
soliciting any person he knows or has reason to believe is a child less than 18
years of age for (i) any activity in violation of §§ 18.2-355, 18.2-358,
18.2-361 or § 18.2-370, (ii) any activity in violation of § 18.2-374.1, or
(iii) a violation of § 18.2-374.1:1. As used in this subsection, "use a
communications system" means making personal contact or direct contact through any
agent or agency, any print medium, the United States mail, any common carrier or
communication common carrier, any electronic communications system, or any
telecommunications, wire, computer, or radio communications system. A violation
of this section shall be punishable as subsection is a Class 5 felony.
§ 19.2-299. Investigations and reports by probation officers in certain cases.
A. Unless waived by the court and the defendant and the attorney for the
Commonwealth, 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, 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 when the defendant pleads
guilty without a plea agreement or is found guilty by the court after a plea of
not guilty, 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, 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, and all other relevant facts, to fully advise the court
so the court may determine the appropriate sentence to be imposed. 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. The probation officer shall be available to testify from this
report in open court in the presence of the accused, who shall have been
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. 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 is charged with a felony subsequent to
the time of the preparation of the report. 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.
B. As a part of any presentence investigation conducted pursuant to subsection A when the offense for which the defendant was convicted was a felony, the court probation officer shall advise any victim of such offense in writing that he may submit to the Virginia Parole Board a written request (i) to be given the opportunity to submit to the Board a written statement in advance of any parole hearing describing the impact of the offense upon him and his opinion regarding the defendant's release and (ii) to receive copies of such other notifications pertaining to the defendant as the Board may provide pursuant to subsection B of § 53.1-155.
C. As part of any presentence investigation conducted pursuant to subsection A when the offense for which the defendant was convicted was a felony drug offense set forth in Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2, the presentence report shall include any known association of the defendant with illicit drug operations or markets.
D. As a part of any presentence investigation conducted pursuant to subsection A, when the offense for which the defendant was convicted was a felony, not a capital offense, committed on or after January 1, 2000, the defendant shall be required to undergo a substance abuse screening pursuant to § 18.2-251.01.
2. That §§ 18.2-111.1, 18.2-114, 18.2-123, 18.2-161, 18.2-202, 18.2-203,
18.2-211, 18.2-351, 18.2-352, 18.2-353, 18.2-358, [ 18.2-367, and 18.2-386 and
18.2-367 ] of the Code of Virginia are repealed.