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2017 SESSION

17103071D
HOUSE BILL NO. 1655
Offered January 11, 2017
Prefiled January 5, 2017
A BILL to amend and reenact 19.2-298.01 of the Code of Virginia, relating to discretionary sentencing guidelines; appeals.
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Patrons-- Lindsey (By Request), Bell, John J., Boysko, Hester, Levine, Plum and Simon; Senator: Wexton
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Referred to Committee for Courts of Justice
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Be it enacted by the General Assembly of Virginia:

1. That 19.2-298.01 of the Code of Virginia is amended and reenacted as follows:

19.2-298.01. Use of discretionary sentencing guidelines.

A. 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.

B. 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.

C. 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.

D. 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.

E. 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.

F. 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, except that the failure of a court to impose a sentence within the range recommended by the discretionary guidelines shall be reviewable on appeal if (i) the court failed to file a written explanation of the departure as required by subsection B and (ii) the sentence imposed exceeded the maximum of the range recommended by the discretionary guidelines by more than 12 months. In reviewing such a sentence, the appellate court shall first determine whether there exists evidence of potential bias by the court that imposed the sentence and, if such evidence is found, shall review the sentence for abuse of discretion by such court.

G. 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 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 shall be deemed to be sentenced to a term of incarceration.