SEARCH SITE
VIRGINIA LAW PORTAL
- Code of Virginia
- Virginia Administrative Code
- Constitution of Virginia
- Charters
- Authorities
- Compacts
- Uncodified Acts
- RIS Users (account required)
SEARCHABLE DATABASES
- Bills & Resolutions
session legislation - Bill Summaries
session summaries - Reports to the General Assembly
House and Senate documents - Legislative Liaisons
State agency contacts
ACROSS SESSIONS
- Subject Index: Since 1995
- Bills & Resolutions: Since 1994
- Summaries: Since 1994
Developed and maintained by the Division of Legislative Automated Systems.
2023 SESSION
23101624DBe it enacted by the General Assembly of Virginia:
1. That §§ 19.2-327.10, 19.2-327.10:1, 19.2-327.11, and 19.2-327.13 of the Code of Virginia are amended and reenacted as follows:
§ 19.2-327.10. Issuance of writ of actual innocence based on nonbiological evidence; statute of limitations on filing of petition.
A. Notwithstanding any other provision of law or rule of court, upon a petition of a person who was convicted of a felony, or the petition of a person who was adjudicated delinquent by a circuit court of an offense that would be a felony if committed by an adult, the Court of Appeals shall have the authority to issue writs of actual innocence under this chapter. The writ shall lie to the circuit court that entered the conviction or the adjudication of delinquency and that court shall have the authority to conduct hearings, as provided for in this chapter, on such a petition as directed by order from the Court of Appeals. In accordance with §§ 17.1-411 and 19.2-317, either party may appeal a final decision of the Court of Appeals to the Supreme Court of Virginia. Upon an appeal from the Court of Appeals, the Supreme Court of Virginia shall have the authority to issue writs in accordance with the provisions of this chapter.
B. A petition pursuant to this chapter shall be filed within two years of the later of:
1. The date on which the conviction or adjudication of delinquency becomes final; or
2. The date on which the petitioner discovers previously unknown or unavailable evidence or scientific testing method.
§ 19.2-327.10:1. Petition for writ of actual innocence joined by Attorney General; release of prisoner; bond hearing.
The Attorney General may join in a petition for a writ of actual innocence made pursuant to § 19.2-327.10 after providing written notice of such intent to the local attorney for the Commonwealth in the jurisdiction of conviction or adjudication of delinquency. When such petition is so joined, the petitioner may file a copy of the petition and attachments thereto and the Attorney General's answer with the circuit court that entered the felony conviction or adjudication of delinquency and move the court for a hearing to consider release of the person on bail pursuant to Chapter 9 (§ 19.2-119 et seq.). Upon hearing and for good cause shown, the court may order the person released from custody subject to the terms and conditions of bail so established, pending a ruling by the Court of Appeals on the writ under § 19.2-327.13.
§ 19.2-327.11. Contents and form of the petition based on previously unknown or unavailable evidence of actual innocence.
A. The petitioner shall allege categorically and with
specificity, under oath, all of the following: (i) the crime for which the
petitioner was convicted or the offense for which the petitioner was
adjudicated delinquent; (ii) that the petitioner is actually innocent of the
crime for which he was convicted or the offense for which he was adjudicated
delinquent; (iii) an exact description of (a) the previously unknown or
unavailable evidence supporting the allegation of innocence or (b) the
previously untested evidence and the scientific testing supporting the
allegation of innocence; (iv)(a) that such evidence was previously unknown or
unavailable to the petitioner or his trial attorney of record at the time the
conviction or adjudication of delinquency became final in the circuit court or
(b) if known, the reason that the evidence was not subject to scientific
testing set forth in the petition; (v) the date (a) the previously unknown or
unavailable evidence became known or available to the petitioner and the
circumstances under which it was discovered or (b) the results of the
scientific testing of previously untested evidence became known to the
petitioner or any attorney of record; (vi)(a) that the previously unknown or
unavailable evidence is such as could not, by the exercise of diligence, have
been discovered or obtained before the time the conviction or adjudication of
delinquency became final in the circuit court or (b) that the testing procedure
was not available at the time the conviction or adjudication of delinquency
became final in the circuit court; (vii) that the previously unknown,
unavailable, or untested evidence is material and, when considered with all of
the other evidence in the current record, will prove that no rational trier of
fact would have found proof of guilt or delinquency beyond a reasonable doubt;
and (viii) that the previously unknown, unavailable, or untested evidence is
not merely cumulative, corroborative, or collateral. Petitions by persons who previously pled not guilty
shall be evaluated under the preponderance of the evidence standard. Petitions
by persons who previously pled guilty or nolo contendere shall be evaluated
under the clear and convincing evidence standard. Nothing
in this chapter shall constitute grounds to delay or stay any other appeals
following conviction or adjudication of delinquency, or petitions to any court. Human
Neither human biological evidence may not nor the recantation of testimony by a witness against
the petitioner shall be used as the
sole basis for seeking relief under this writ but may be used in
conjunction with other evidence.
B. Such petition shall contain all relevant allegations of facts that are known to the petitioner at the time of filing; shall be accompanied by all relevant documents, affidavits, and test results; and shall enumerate and include all relevant previous records, applications, petitions, and appeals and their dispositions. The petition shall be filed on a form provided by the Supreme Court. If the petitioner fails to submit a completed form, the Court of Appeals may dismiss the petition or return the petition to the petitioner pending the completion of such form. Any false statement in the petition, if such statement is knowingly or willfully made, shall be a ground for prosecution of perjury as provided for in § 18.2-434.
C. In cases brought by counsel for the petitioner, the Court of Appeals 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 have been served on the attorney for the Commonwealth of the jurisdiction where the conviction or adjudication of delinquency occurred and the Attorney General, or an acceptance of service signed by these officials, or any combination thereof. In cases brought by petitioners pro se, the Court of Appeals shall not accept the petition unless it is accompanied by a certificate that a copy of the petition and all attachments have been sent, by certified mail, to the attorney for the Commonwealth of the jurisdiction where the conviction or adjudication of delinquency occurred and the Attorney General. The Court of Appeals shall summarily dismiss any second or subsequent petition for failure to identify new or different evidence in support of the factual innocence claim or, if new and different grounds are alleged, failure of the petitioner to assert those grounds in a prior petition filed pursuant to this section under circumstances that constitute an abuse of the writ. If the Court of Appeals does not summarily dismiss the petition, it shall so notify in writing the Attorney General, the attorney for the Commonwealth, and the petitioner. The Attorney General shall have 60 days after receipt of such notice in which to file a response to the petition that may be extended for good cause shown; however, nothing shall prevent the Attorney General from filing an earlier response. The response may contain a proffer of any evidence pertaining to the guilt or delinquency or innocence of the petitioner that is not included in the record of the case, including evidence that was suppressed at trial.
D. The Court of Appeals may 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. If, in the judgment of the Court, the petition fails to state a claim, or if the assertions of previously unknown, unavailable, or untested evidence, even if true, would fail to qualify for the granting of relief under this chapter, the Court may dismiss the petition summarily, without any hearing or a response from the Attorney General.
E. In any petition filed pursuant to this chapter that is not summarily dismissed, the petitioner is entitled to representation by counsel subject to the provisions of Article 3 (§ 19.2-157 et seq.) and Article 4 (§ 19.2-163.3 et seq.) of Chapter 10. The Court of Appeals may, in its discretion, appoint counsel prior to deciding whether a petition should be summarily dismissed.
F. Upon the scheduling of a hearing pursuant to § 19.2-327.12 or any subsequent oral argument, the Attorney General shall notify the victim or the victim's representative of the hearing. The victim or victim's representative shall have the right to attend any such hearing. For purposes of this subsection, "victim" means the same as defined in § 19.2-11.01(B).
§ 19.2-327.13. Relief under writ.
Upon consideration of the petition, the response by the
Commonwealth, previous records of the case, the record of any hearing held
under this chapter, and, if applicable, any findings certified from the circuit
court pursuant to an order issued under this chapter, the Court of Appeals, if
it has not already summarily dismissed the petition, shall either dismiss the
petition for failure to state a claim or assert grounds upon which relief shall
be granted, or the Court shall (i) dismiss the petition for failure to
establish previously unknown, unavailable, or untested evidence sufficient to
justify the issuance of the writ, or (ii) only upon a finding that the
petitioner has proven by a preponderance of
the evidence to the particular standard of proof applicable
under subsection A of § 19.2-327.11 all of the allegations
contained in clauses (iv) through (viii) of subsection A of § 19.2-327.11, and
upon a finding that no rational trier of fact would have found proof of guilt
or delinquency beyond a reasonable doubt, grant the writ, and vacate the
conviction or finding of delinquency, or in the event that the Court finds that
no rational trier of fact would have found sufficient evidence beyond a
reasonable doubt as to one or more elements of the offense for which the
petitioner was convicted or adjudicated delinquent, but the Court finds that
there remains in the original trial record evidence sufficient to find the
petitioner guilty or delinquent beyond a reasonable doubt of a lesser included
offense, the Court shall modify the order of conviction or delinquency
accordingly and remand the case to the circuit court that entered the
conviction or adjudication of delinquency for resentencing. The burden of proof
in a proceeding brought pursuant to this chapter shall be upon the convicted or
delinquent person seeking relief. If a writ vacating a conviction or
adjudication of delinquency is granted, and no appeal is made to the Supreme
Court, or the Supreme Court denies the Commonwealth's petition for appeal or
upholds the decision of the Court of Appeals to grant the writ, the Court of
Appeals shall forward a copy of the writ to the circuit court, where an order
of expungement shall be immediately granted.