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2005 SESSION

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054411348
HOUSE BILL NO. 1977 AMENDMENT IN THE NATURE OF A SUBSTITUTE (Proposed by the House Committee for Courts of Justice on February 4, 2005) (Patrons Prior to Substitute--Delegates Janis, McDonnell [HB 2813], and Moran [HB 2778]) A BILL to amend and reenact § 19.2-398 of the Code of Virginia, relating to defense pretrial motions and appeals by the Commonwealth.

Be it enacted by the General Assembly of Virginia:

1.  That § 19.2-398 of the Code of Virginia is amended and reenacted as follows:

§ 19.2-398. When appeal by the Commonwealth allowed.

A. 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 United States Constitution, Article I, Section 8 of the Constitution of Virginia, or § 19.2-243; (ii) the defendant would be subjected to double 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) a statute upon which it was based is unconstitutional; 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.

B. 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.

C. 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.

D. 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.