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2009 SESSION
098210532Be it enacted by the General Assembly of Virginia:
1. That §§ 8.01-195.10, 8.01-654, 17.1-310, 17.1-406, 18.2-8, 18.2-10, 18.2-22, 18.2-25, 19.2-100, 19.2-102, 19.2-120, 19.2-152.2, 19.2-157, 19.2-159, 19.2-163, 19.2-270.4:1, 19.2-319, 19.2-321.2, 19.2-327.1, 19.2-327.2 and 19.2-327.3 of the Code of Virginia are amended and reenacted as follows:
§ 8.01-195.10. Purpose; action by the General Assembly required; definitions.
A. The purpose of this article is to provide directions and guidelines for the compensation of persons who have been wrongfully incarcerated in the Commonwealth. Compensation for wrongful incarceration is governed by Article IV, Section 14 of the Constitution of Virginia, which prohibits the General Assembly from granting relief in cases in which the courts or other tribunals may have jurisdiction and any individual seeking payment of state funds for wrongful incarceration shall be deemed to have waived all other claims. The payment and receipt of any compensation for wrongful incarceration shall be contingent upon the General Assembly appropriating funds for that purpose. This article shall not provide an entitlement to compensation for persons wrongfully incarcerated or require the General Assembly to appropriate funds for the payment of such compensation. No estate of or personal representative for a decedent shall be entitled to seek a claim for compensation for wrongful incarceration.
B. As used in this article:
"Incarceration" or "incarcerated" means confinement in a local or regional correctional facility, juvenile correctional center, state correctional facility, residential detention center, or facility operated pursuant to the Corrections Private Management Act (§ 53.1-261 et seq.).
"Wrongful incarceration" or "wrongfully
incarcerated" means incarceration for a felony conviction for which (i)
the conviction has been vacated pursuant to Chapter 19.2 (§ 19.2-327.2 et seq.)
of Title 19.2, (ii) the person incarcerated mustshall
have entered a final plea of not guilty, or regardless of the plea, any person sentenced
to death, or convicted of a Class 1 felony, a Class 2 felony, or
any felony for which the maximum penalty is imprisonment for life, and (iii)
the person incarcerated did not by any act or omission on his part
intentionally contribute to his conviction for the felony for which he was
incarcerated.
§ 8.01-654. When and by whom writ granted; what petition to contain.
A. 1. The writ of habeas corpus ad subjiciendum shall be granted forthwith by the Supreme Court or any circuit court, to any person who shall apply for the same by petition, showing by affidavits or other evidence probable cause to believe that he is detained without lawful authority.
2. A petition for writ of habeas corpus ad subjiciendum, other
than a petition challenging a criminal conviction or sentence, shall be brought
within one year after the cause of action accrues. A habeas corpus petition
attacking a criminal conviction or sentence, except as provided in
§ 8.01-654.1 for cases in which a death sentence has been imposed,
shall be filed within two years from the date of final judgment in the trial
court or within one year from either final disposition of the direct appeal in
state court or the time for filing such appeal has expired, whichever is later.
B. 1. With respect to any such petition filed by a petitioner held under criminal process, and subject to the provisions of subsection C of this section and of § 17.1-310, only the circuit court which entered the original judgment order of conviction or convictions complained of in the petition shall have authority to issue writs of habeas corpus. If a district court entered the original judgment order of conviction or convictions complained of in the petition, only the circuit court for the city or county wherein the district court sits shall have authority to issue writs of habeas corpus. Hearings on such petition, where granted in the circuit court, may be held at any circuit court within the same circuit as the circuit court in which the petition was filed, as designated by the judge thereof.
2. Such petition shall contain all allegations the facts of which are known to petitioner at the time of filing and such petition shall enumerate all previous applications and their disposition. No writ shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition. The provisions of this section shall not apply to a petitioner's first petition for a writ of habeas corpus when the sole allegation of such petition is that the petitioner was deprived of the right to pursue an appeal from a final judgment of conviction or probation revocation, except that such petition shall contain all facts pertinent to the denial of appeal that are known to the petitioner at the time of the filing, and such petition shall certify that the petitioner has filed no prior habeas corpus petitions attacking the conviction or probation revocation.
3. Such petition may allege detention without lawful authority through challenge to a conviction, although the sentence imposed for such conviction is suspended or is to be served subsequently to the sentence currently being served by petitioner.
4. In the event the allegations of illegality of the petitioner's detention can be fully determined on the basis of recorded matters, the court may make its determination whether such writ should issue on the basis of the record.
5. The court shall give findings of fact and conclusions of law following a determination on the record or after hearing, to be made a part of the record and transcribed.
6. If petitioner alleges as a ground for illegality of his detention the inadequacy of counsel, he shall be deemed to waive his privilege with respect to communications between such counsel and himself to the extent necessary to permit a full and fair hearing for the alleged ground.
C. 1. With respect to any such petition filed by a
petitioner held under the sentence of death, and subject to the provisions of
this subsection, the Supreme Court shall have exclusive jurisdiction to
consider and award writs of habeas corpus. The circuit court which entered the
judgment order setting the sentence of death shall have authority to conduct an
evidentiary hearing on such a petition only if directed to do so by order of
the Supreme Court.
2. Hearings conducted in a circuit court pursuant
to an order issued under the provisions of subdivision 1 of this subsection
shall be limited in subject matter to the issues enumerated in the order.
3. The circuit court shall conduct such a hearing
within 90 days after the order of the Supreme Court has been received and shall
report its findings of fact and recommend conclusions of law to the Supreme
Court within 60 days after the conclusion of the hearing. Any objection to the
report of the circuit court must be filed in the Supreme Court within 30 days
after the report is filed.
§ 17.1-310. Habeas corpus, appeals, writs of error and supersedeas.
The Supreme Court shall also have jurisdiction to award writs
of habeas corpus and of such appeals, writs of error and supersedeas as may be
legally docketed in or transferred to the Court. In accordance with §
8.01-654, the Court shall have exclusive jurisdiction to award writs of habeas
corpus upon petitions filed by prisoners held under the sentence of death.
§ 17.1-406. Petitions for appeal; cases over which Court of Appeals does not have jurisdiction.
A. Any aggrieved party may present a petition for appeal to the Court of Appeals from (i) any final conviction in a circuit court of a traffic infraction or a crime, except where a sentence of death has been imposed, (ii) any final decision of a circuit court on an application for a concealed weapons permit pursuant to subsection D of § 18.2-308, (iii) any final order of a circuit court involving involuntary treatment of prisoners pursuant to § 53.1-40.1, or (iv) any final order for declaratory or injunctive relief under § 57-2.02. The Commonwealth or any county, city or town may petition the Court of Appeals for an appeal pursuant to this subsection in any case in which such party previously could have petitioned the Supreme Court for a writ of error under § 19.2-317. The Commonwealth may also petition the Court of Appeals for an appeal in a criminal case pursuant to § 19.2-398.
B. In accordance with other applicable provisions of law,
appeals lie directly to the Supreme Court from a conviction in
which a sentence of death is imposed, from a final decision,
judgment or order of a circuit court involving a petition for a writ of habeas
corpus, from any final finding, decision, order, or judgment of the State
Corporation Commission, and from proceedings under §§ 54.1-3935 and 54.1-3937.
Complaints of the Judicial Inquiry and Review Commission shall be filed with
the Supreme Court of Virginia. The Court of Appeals shall not have jurisdiction
over any cases or proceedings described in this subsection.
§ 18.2-8. Felonies, misdemeanors and traffic infractions defined.
Offenses are either felonies or misdemeanors. Such offenses as
are punishable with death or
confinement in a state correctional facility are felonies; all other offenses
are misdemeanors. Traffic infractions are violations of public order as defined
in § 46.2-100 and not deemed to be criminal in nature.
§ 18.2-10. Punishment for conviction of felony; penalty.
The authorized punishments for conviction of a felony are:
(a) For Class 1 felonies, death, if
the person so convicted was 18 years of age or older at the time of the offense
and is not determined to be mentally retarded pursuant to § 19.2-264.3:1.1, or
imprisonment for life and, subject to subdivision (g), a fine of
not more than $100,000. If the person was under 18 years of age at the time
of the offense or is determined to be mentally retarded pursuant to §
19.2-264.3:1.1, the punishment shall be imprisonment for life and, subject to
subdivision (g), a fine of not more than $100,000.Any
person sentenced to imprisonment for life pursuant to this subdivision shall
not be eligible for parole and shall not be eligible for any good conduct
allowance, any earned sentence credits under Chapter 6 (§ 53.1-186 et seq.) of
Title 53.1, or conditional release pursuant to § 53.1-40.01.
(b) For Class 2 felonies, imprisonment for life or for any term not less than 20 years and, subject to subdivision (g), a fine of not more than $100,000.
(c) For Class 3 felonies, a term of imprisonment of not less than five years nor more than 20 years and, subject to subdivision (g), a fine of not more than $100,000.
(d) For Class 4 felonies, a term of imprisonment of not less than two years nor more than 10 years and, subject to subdivision (g), a fine of not more than $100,000.
(e) For Class 5 felonies, a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
(f) For Class 6 felonies, a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
(g) Except as specifically authorized in subdivision (e) or
(f), or in Class 1 felonies for which a sentence of
death is imposed, the court shall impose either a sentence of
imprisonment together with a fine, or imprisonment only. However, if the
defendant is not a natural person, the court shall impose only a fine.
For any felony offense committed (i) on or after January 1, 1995, the court may, and (ii) on or after July 1, 2000, shall, except in cases in which the court orders a suspended term of confinement of at least six months, impose an additional term of not less than six months nor more than three years, which shall be suspended conditioned upon successful completion of a period of post-release supervision pursuant to § 19.2-295.2 and compliance with such other terms as the sentencing court may require. However, such additional term may only be imposed when the sentence includes an active term of incarceration in a correctional facility.
For a felony offense prohibiting proximity to children as described in subsection A of § 18.2-370.2, the sentencing court is authorized to impose the punishment set forth in that section in addition to any other penalty provided by law.
§ 18.2-22. Conspiracy to commit felony.
(a) If any person shall conspire, confederate or combine with another, either within or without this Commonwealth, to commit a felony within this Commonwealth, or if he shall so conspire, confederate or combine with another within this Commonwealth to commit a felony either within or without this Commonwealth, he shall be guilty of a felony which shall be punishable as follows:
(1) Every person who so conspires to commit an offense which
is punishable by death as a Class 1 felony
shall be guilty of a Class 3 felony;
(2) Every person who so conspires to commit an offense which is a noncapital felony shall be guilty of a Class 5 felony; and
(3) Every person who so conspires to commit an offense the maximum punishment for which is confinement in a state correctional facility for a period of less than five years shall be confined in a state correctional facility for a period of one year, or, in the discretion of the jury or the court trying the case without a jury, may be confined in jail not exceeding twelve months and fined not exceeding $500, either or both.
(b) However, in no event shall the punishment for a conspiracy to commit an offense exceed the maximum punishment for the commission of the offense itself.
(c) Jurisdiction for the trial of any person accused of a conspiracy under this section shall be in the county or city wherein any part of such conspiracy is planned or in the county or city wherein any act is done toward the consummation of such plan or conspiracy.
(d) The penalty provisions of this section shall not apply to any person who conspires to commit any offense defined in Chapter 34 of Title 54.1 or of Article 1 (§ 18.2-247 et seq.), Chapter 7 of this title. The penalty for any such violation shall be as provided in § 18.2-256.
§ 18.2-25. Attempts to commit capital offenses; how punished.
If any person attempts to commit an offense which is
punishable with death as a Class 1 felony,
he shall be guilty of a Class 2 felony.
§ 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 death
or 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 this Commonwealth with all practicable
speed and complaint made against him under oath setting forth the ground for
the arrest as in the preceding section; and thereafter his answer shall be heard
as if he had been arrested on a warrant.
§ 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 death or 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 this 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 this Commonwealth.
§ 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.
A. 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 or the public.
B. 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 if the person is currently charged with:
1. An act of violence as defined in § 19.2-297.1;
2. An offense for which the maximum sentence is life
imprisonment or death;
3. A violation of § 18.2-248, 18.2-248.01, 18.2-255, or 18.2-255.2 involving a Schedule I or II controlled substance if (i) the maximum term of imprisonment is 10 years or more and the person was previously convicted of a like offense or (ii) the person was previously convicted as a "drug kingpin" as defined in § 18.2-248;
4. A violation of § 18.2-308.1, 18.2-308.2, or 18.2-308.4 and which relates to a firearm and provides for a mandatory minimum sentence;
5. Any felony, if the person has been convicted of two or more offenses described in subdivision 1 or 2, whether under the laws of the Commonwealth or substantially similar laws of the United States;
6. Any felony committed while the person is on release pending trial for a prior felony under federal or state law or on release pending imposition or execution of sentence or appeal of sentence or conviction;
7. An offense listed in subsection B of § 18.2-67.5:2 and the person had previously been convicted of an offense listed in § 18.2-67.5:2 or a substantially similar offense under the laws of any state or the United States and the judicial officer finds probable cause to believe that the person who is currently charged with one of these offenses committed the offense charged;
8. A violation of § 18.2-374.1 or 18.2-374.3 where the offender has reason to believe that the solicited person is under 15 years of age and the offender is at least five years older than the solicited person;
9. A violation of § 18.2-46.2, 18.2-46.3, 18.2-46.5, or 18.2-46.7;
10. A violation of § 18.2-36.1, 18.2-51.4, 18.2-266, or 46.2-341.24 and the person has, within the past five years of the instant offense, been convicted three times on different dates of a violation of any combination of these Code sections, or any ordinance of any county, city, or town or the laws of any other state or of the United States substantially similar thereto, and has been at liberty between each conviction;
11. A second or subsequent violation of § 16.1-253.2 or a substantially similar offense under the laws of any state or the United States; or
12. A violation of subsection B of § 18.2-57.2.
C. 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 if the person is being arrested pursuant to § 19.2-81.6.
D. The court shall consider the following factors and such others as it deems appropriate in determining, for the purpose of rebuttal of the presumption against bail described in subsection B, whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of the public:
1. The nature and circumstances of the offense charged;
2. The history and characteristics of the person, including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, membership in a criminal street gang as defined in § 18.2-46.1, and record concerning appearance at court proceedings; and
3. The nature and seriousness of the danger to any person or the community that would be posed by the person's release.
E. 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.
§ 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 of this title. 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 by death 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.
§ 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 death or 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.
§ 19.2-159. Determination of indigency; guidelines; statement of indigence; appointment of counsel.
A. If the accused shall claim that he is indigent, and the
charge against him is a criminal offense which may be punishable by death
or 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.
B. 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 paragraph subdivision 3 above.
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.
C. 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:
"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)
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.
D. 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.
§ 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 felony charge that may be punishable by death 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 (iiiv)
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 may be punishable by death, 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 felony that may not be punishable by death, 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 may be punishable by death.
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 Appropriations Committee, and members of the Senate Finance Committee on a quarterly basis.
§ 19.2-270.4:1. Storage, preservation and retention of human biological evidence in felony cases.
A. Notwithstanding any provision of law or rule of court, upon motion of a person convicted of a felony but not sentenced to death 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.
B. 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.
C. 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.
D. 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.
E. 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.
§ 19.2-319. When execution of sentence to be suspended; bail; appeal from denial.
If a person sentenced by a circuit court to death
or 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, except that in any case where a person has been
sentenced to death, a writ of error shall lie from the Supreme Court.
Upon review by the Court of Appeals or the Supreme Court, if the decision by
the trial court to deny bail is overruled, the appellate court shall either set
bail or remand the matter to circuit court for such further action regarding
bail as the appellate court directs.
§ 19.2-321.2. Motion in the Supreme Court for delayed appeal in criminal cases.
A. 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 either (i) never been initiated; or (ii) been dismissed for failure to adhere to proper form, procedures, or time limits in the perfection of the appeal as required by law or by the Rules of the 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 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.
B. 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.
C. Time limits when motion granted. - If the motion is granted, all computations of time under the Rules of the 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.
D. 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, nor
shall it apply in cases in which a sentence of death has been imposed.
§ 19.2-327.1. Motion by a convicted felon for scientific analysis of newly discovered or previously untested scientific evidence; procedure.
A. Notwithstanding any other provision of law or rule of court, any person convicted of a felony may, by motion to the circuit court that entered the original conviction, apply for a new scientific investigation of any human biological evidence related to the case that resulted in the felony conviction if: (i) the evidence was not known or available at the time the conviction became final in the circuit court or the evidence was not previously subjected to testing because the testing procedure was not available at the Department of Forensic Science at the time the conviction became final in the circuit court; (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 convicted person's actual innocence; (iv) the testing requested involves a scientific method employed by the Department of Forensic Science; and (v) the convicted person has not unreasonably delayed the filing of the petition after the evidence or the test for the evidence became available at the Department of Forensic Science.
B. 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, (ii) the reason or reasons the evidence was not known or tested by the time the conviction 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. 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, appeals and their dispositions.
C. 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. Motions
made by a petitioner under a sentence of death shall be given priority on the
docket.
D. 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 by the Department of Forensic Science based on a finding of clear and convincing evidence that the requirements of subsection A have been met.
E. The court shall order the tests to be performed by the
Department of Forensic Science and 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 Department of Forensic Science shall give
testing priority to cases in which a sentence of death has been imposed. The
results of any tests performed and any hearings held pursuant to this section
shall become a part of the record.
F. 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 § 53.1-232.1 (iii) or (iv).
G. 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.
HG. In any
petition filed pursuant to this chapter, the defendant is entitled to
representation by counsel subject to the provisions of Article 3 (§ 19.2-157 et
seq.) of Chapter 10 of this title.
§ 19.2-327.2. Issuance of writ of actual innocence.
Notwithstanding any other provision of law or rule of court,
upon a petition of a person incarcerated who was convicted of a felony upon a
plea of not guilty, or for any person, regardless of the plea, sentenced
to death, or convicted of (i) a Class 1 felony, (ii) a Class 2
felony or (iii) any felony for which the maximum penalty is imprisonment for
life, the Supreme Court 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; 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.
§ 19.2-327.3. Contents and form of the petition based on previously unknown or untested human biological evidence of actual innocence.
A. The petitioner shall allege categorically and with
specificity, under oath, the following: (i) the crime for which the petitioner
was convicted, and that such conviction was upon a plea of not guilty or that
the person is under a sentence of death or convicted of (1) a
Class 1 felony, (2) a Class 2 felony or (3) any felony for which the maximum
penalty is imprisonment for life; (ii) that the petitioner is actually innocent
of the crime for which he was convicted; (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
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) that the petitioner is currently incarcerated; (viii) the
reason or reasons the evidence will prove that no rational trier of fact could
have found proof of guilt beyond a reasonable doubt; and (ix) for any
conviction 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. 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 § 53.1-232.1 (iii) or (iv).
B. Such petition shall contain all relevant allegations of facts that are known to the petitioner at the time of filing and shall enumerate and include all previous records, applications, petitions, 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.
C. 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 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 of the defendant that is not included in the record of the case, including evidence that was suppressed at trial.
D. 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.
E. In any petition filed pursuant to this chapter, the defendant is entitled to representation by counsel subject to the provisions of Article 3 (§ 19.2-157 et seq.) of Chapter 10 of this title.
2. That §§ 8.01-654.1, 8.01-654.2, 17.1-313, 18.2-17, Article 4.1 (§ 19.2-163.7 and 19.2-163.8) of Chapter 10 of Title 19.2, Article 4.1 (§§ 19.2-264.2 through 19.2-264.5) of Chapter 15 of Title 19.2 of the Code of Virginia and Chapter 13 (§§ 53.1-232 through 53.1-236) of Title 53.1 are repealed.
3. That the provisions of this act shall apply to Class 1 felonies committed on or after July 1, 2009.
4. 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 $70,220 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.