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2004 SESSION
040935502Be it enacted by the General Assembly of Virginia:
1. That § 19.2-295.1 of the Code of Virginia is amended and reenacted as follows:
§ 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. At such proceeding,
the Commonwealth shall present the defendant's prior criminal convictions by
certified, attested or exemplified copies of the record of conviction,
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
fourteen days prior to trial notice of its intention to introduce evidence of
the defendant's prior criminal convictions. 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, and (iii) each offense of which he was
convicted. Prior to commencement of the trial, the Commonwealth shall provide
to the defendant photocopies of certified copies of the defendant's prior
criminal convictions which that it intends to introduce at sentencing. After
the Commonwealth has introduced such evidence of prior convictions, or if no such evidence is
introduced, the defendant may introduce relevant, admissible evidence related to
punishment. The Commonwealth shall also advise the jury that a criminal
defendant is entitled to receive a reduction in time served in incarceration
for good behavior and shall advise the jury of the maximum reduction in time
served that may be earned by a person convicted of a felony or, if applicable,
a person convicted of a Class 1 misdemeanor. 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 and if the defendant, the attorney for the Commonwealth, and the court agree, in the manner provided in § 19.2-257, then 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.