General Assembly>Division of Legislative Services>Publications>Session Summaries>2004>Criminal Procedure

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Criminal Procedure

Passed

P HB71

Property bail bondsmen. Provides that a property bail bondsman needs to obtain a certificate from only one circuit court judge in order to operate statewide, rather than from a circuit court judge in each jurisdiction in which he intends to write bonds. This bill is a recommendation of the Judicial Council.
Patron - Melvin

P HB118

Attorney General; wiretap orders. Expands the list of crimes for which the Attorney General may seek a wiretap order to include crimes by mobs and crimes by gangs. Criminal sexual assault is included only for felony offenses that are not Class 6.
Patron - Albo

P HB120

Discovery in misdemeanor cases in circuit court. Provides that in any criminal prosecution for a misdemeanor by trial de novo in circuit court, the attorney for the Commonwealth shall have a duty to adequately and fully provide discovery as provided under Rule 7C:5 (district court criminal discovery rule) of the Rules of the Supreme Court. Currently, by law or rule, no discovery is available on appeal of misdemeanor convictions to circuit court.
Patron - Albo

P HB570

Arrest and detention; illegal aliens. Provides that all law-enforcement officers have the authority to enforce immigration laws and that a law-enforcement officer may, in the course of acting upon reasonable suspicion that an individual has committed or is committing a crime, arrest the individual without a warrant upon receiving confirmation from the Bureau of Immigration and Customs Enforcement that the individual is an illegal alien, and has previously been convicted of a felony in the United States and deported or left the United States after such conviction. A magistrate may issue a warrant and the person may be detained for not more than 72 hours or until taken into federal custody, whichever occurs first. The bill creates a presumption that an individual shall not be admitted to bail if he is detained pursuant to this provision. This bill is identical to SB 493.
Patron - Albo

P HB594

Reports to be made by local law-enforcement officers to the Central Criminal Records Exchange (CCRE). Includes DUI as a reportable offense to CCRE by law-enforcement officers upon arrest. Currently, DUI is specifically excluded.
Patron - Janis

P HB650

Crimes; wiretaps. Corrects an oversight in the wording of the current provision making it a crime to intentionally use, or endeavor to use, the contents of any electronic communication, knowing or having reason to know that the information was obtained through the interception of an electronic communication.
Patron - Bell

P HB755

Capital murder sentencing order. Provides that when a court sets aside a sentence of death and imposes a sentence of imprisonment for life, it shall include in the sentencing order an explanation for the reduction in sentence.
Patron - Hurt

P HB776

Attempted violent felonies. Provides that persons arrested for attempted violent felonies and burglary must have a DNA sample taken. Currently, attempts are not included.
Patron - McDougle

P HB889

Presumption against bail; repeat DUI offenders. Provides a rebuttable presumption against bail for a person charged with a DUI-related offense if the person has been convicted of three such offenses within the past five years on different dates and has been at liberty between each conviction. This bill is identical to HB 1132 and an identical provision is in SB 442.
Patron - Bell

P HB916

Criminal history records search; justices; judges and substitute judges; magistrates. Requires criminal history records checks of all persons elected by the General Assembly as justices of the Supreme Court, judges of the Court of Appeals, and judges of the circuit and district courts, and of all persons appointed by the circuit courts as magistrates or substitute judges. The bill also prohibits the appointment of substitute judges and magistrates with certain criminal backgrounds in the same manner as the prohibitions for appointment of special conservators of the peace.
Patron - Phillips

P HB942

Summoning of grand jurors. Allows the judge or judges of the circuit court who sit in a county or city to prepare the list of grand jurors. Current law seems to require that all the judges of a circuit participate in the selection and the signing of the court orders, etc.
Patron - Pollard

P HB1012

Criminal procedure; admission to bail. Creates a rebuttable presumption against bail for any person who is held in custody when such person is charged with participating in a criminal street gang or the soliciting of a juvenile to participate in a criminal street gang. The bill adds the participation in and the recruitment for a criminal street gang to the list of felonies for which there must be a presentence report unless waived by the court and the defendant and the attorney for the Commonwealth. The bill specifies information regarding gang membership that may be included in the presentence report. This bill is identical to SB 492.
Patron - Rust

P HB1056

Indigent Defense Commission. Establishes the Indigent Defense Commission, which will establish criteria for court-appointed lawyers as well as assume the duties of the existing Public Defender Commission, which is abolished by this bill. All of the existing Public Defender offices are retained and no new ones are added. This bill is identical to SB 330.
Patron - Moran

P HB1058

Transfer of forfeiture statutes to the criminal procedure code. Moves forfeiture provisions from Title 18.2 (criminal law) to Title 19.2 (criminal procedure) without substantive change.
Patron - McDonnell

P HB1083

Admission of victim impact testimony. Clarifies that victim impact testimony is to be heard by the trier of fact whether the defendant is found guilty after trial or upon a guilty plea.
Patron - Scott, E.T.

P HB1095

Exclusion of witnesses in criminal trials. Provides that any victim who is to be called as a witness in a criminal trial shall be exempt from the rule authorizing the exclusion of all witnesses unless, in accordance with the provisions of § 19.2-265.01 (presence of victim would cause impairment of conduct of a fair trial), his exclusion is specifically required.
Patron - Moran

P HB1132

Admission to bail for multiple DUI offenders. Provides a presumption against bail for a person arrested for a DUI crime if the person has been convicted three times of a DUI crime within the past five years. This bill is identical to HB 889.
Patron - McDonnell

P HB1139

Appointment of magistrates. Provides that the authority of the chief circuit court judge to appoint magistrates and chief magistrates is to be exercised in consultation with the chief general district and juvenile court judges and that all appointments of magistrates are for four-year terms even if the appointment is to fill a vacancy.
Patron - McDonnell

P HB1234

Virginia Domestic Violence Victim Fund. Creates the Virginia Domestic Violence Victim Fund. The Fund is to be administered by the Department of Criminal Justice Services, and the resources used to support the prosecution of domestic violence cases and victim services. The Fund shall be supported by dedication of a portion of increased court fees. The bill provides that $10 of the $20 tax on marriage licenses goes to the Department of Social Services for providing services to victims of domestic violence. The Department of Criminal Justice Services, in cooperation with the Statewide Facilitator for Victims of Domestic Violence within the Office of the Attorney General, is required to make all reasonable efforts to secure federal funds or other grant monies for domestic violence prosecution and services.
Patron - Griffith

P HB1308

Pretrial programs. Clarifies that pretrial service programs are for adults and juveniles transferred for trial as adults. The bill also repeals cross-references that are no longer necessary.
Patron - Hurt

P HJ288

Rules of Court. Encourages the Supreme Court of Virginia to amend the Rules of Court on electronic filing to allow electronic filing by election of any party of the litigation. This resolution is identical to SJR 130.
Patron - Phillips

P SB162

Duties of the attorney for the Commonwealth; magistrates. Repeals the provision requiring attorneys for the Commonwealth to provide legal advice and training to magistrates due to the potential conflict raised by the prosecutor advising a judicial officer. Magistrates receive training from the Supreme Court's Executive Secretary's Office, as provided by law.
Patron - Marsh

P SB177

Appointed counsel in capital cases. Provides that at least two attorneys shall be appointed in a capital case (2002 legislation requires that as of July 1, 2004, an attorney from a capital defense unit of the Public Defender Commission be appointed). The bill allows the capital defense unit attorney to make a motion to the circuit court to withdraw as counsel if prior to the indictment the Commonwealth declares in writing that it will not seek the death penalty. The court is to allow the capital attorney to withdraw and to appoint a regular court-appointed attorney.
Patron - Stolle

P SB298

Criminal procedure; conservators of the peace. Adds special agents of the Department of Homeland Security to the list of those who are conservators of the peace.
Patron - O'Brien

P SB330

P SB333

Issuance of writ of actual innocence for nonbiological evidence. Establishes a one-opportunity procedure for a convicted felon to petition the Court of Appeals for a writ of actual innocence based on nonbiological previously unknown or unavailable evidence. The Court of Appeals may summarily dismiss the petition but if it determines that a resolution of the case requires further development of the facts, it may order the circuit court to conduct a hearing to certify findings of fact on certain issues. After considering the petition and the Commonwealth's response, the previous records of the case and the record of any hearing, the Court may dismiss the case or grant relief. A petitioner whose writ is not summarily dismissed by the Court of Appeals is entitled to court-appointed counsel in the same manner as an indigent defendant in a criminal case. The bill establishes a process similar to the one that already exists in the Code for previously unknown or untested biological evidence.
Patron - Stolle

P SB384

Enhanced punishment for third DUI, etc. Increases the mandatory minimum sentence for a second DUI within five years from five to 20 days, establishes a mandatory minimum for a second within ten years to 10 days, a third within 10 years from 60 to 90 days and a third within five years from 30 to 180 days. The blood alcohol level required for additional mandatory minimum penalties is lowered by .05 percent. The bill also extends the seven-day administrative operator's license suspension for a DUI arrest to 60 days for a second alleged offense, and until trial for a third alleged offense. In addition, the sentence of a person convicted of DUI while driving on a revoked license who has previously been convicted of DUI is to run concurrently with any other sentence.
Patron - Norment

P SB390

Conservators of the peace. Provides that all conservator of the peace appointments are void on September 15, 2004, unless the conservator has obtained a valid registration issued by the Department of Criminal Justice Services. In addition, each conservator must provide a temporary registration letter issued by the Department of Criminal Justice Services prior to seeking appointment by the circuit court. A circuit court appointment letter must be filed with the Department of Criminal Justice Services in order to receive a special conservator of the peace photo registration card.
Patron - Norment

P SB442

Admission to bail; DUI. Creates a rebuttable presumption that bail shall be denied to a person arrested for DUI if he has three previous convictions within the past five years for any combination of the following: DUI, DUI manslaughter or DUI maiming. The bill also includes DUI as a reportable offense to the Central Criminal Records Exchange (CCRE) by law-enforcement officers upon arrest. Currently, it is specifically excluded.
Patron - Rerras

P SB492

P SB493

P SB550

Family abuse. Changes the term primary physical aggressor to predominant physical aggressor in section that requires arrest in most family abuse cases when the law-enforcement officer has probable cause to believe that family assault or violation of a protective order occurred. The officer is required to arrest and take into custody the person he has probable cause to believe, based on the totality of the circumstances, was the primary (now predominant) physical aggressor (unless there are special circumstances that would dictate a course of action other than an arrest). The bill sets standards for determining who is the predominant physical aggressor. This bill is a recommendation of the Family Violence Subcommittee of the Virginia State Crime Commission.
Patron - Howell

P SB551

Juvenile courts; distribution of protective order information. Requires juvenile court intake officers to provide to a person seeking a protective order a written explanation of the conditions, procedures and time limits applicable to the issuance of protective orders for family and household members. The Virginia State Crime Commission, in conjunction with the Office of the Executive Secretary of the Supreme Court and the Department of Juvenile Justice, is required to develop the written explanation and the Executive Secretary must make the explanation available to law enforcement and to each court service unit for distribution.
Patron - Howell

P SB575

Sex Offender and Crimes Against Minors Registry Act. Adds to the list of those required to register under the Act, any person who has solicited or has attempted to solicit, by use of a communications system, certain acts that constitute violations of the taking indecent liberties with children statute. This bill is identical to HB 759.
Patron - Obenshain

P SB609

Final judgments in circuit court; when modifiable and appealable. Repeals the provision enacted during the 2003 General Assembly Session that final judgments in circuit court criminal cases remain under the control of the circuit court for 90 days rather than the current 21 days. The filing deadlines for appeals and the transfer of the trial record to the Court of Appeals are proportionately increased to maintain consistency with current practice. The provision was scheduled to become effective on July 1, 2004, so it has never been in effect.
Patron - Stolle

P SB633

Report of arrest of adult school students to school superintendent for certain offenses. Requires that a public school student who is 18 or over and arrested for certain offenses be reported to the division superintendent. The offenses are the same as those for which a juvenile student would be reported (e.g., firearms; homicide, felonious assault, sexual assault; drug offenses; arson; burglary; robbery). The bill extends this list to include criminal street gang related activity.
Patron - Saslaw

P SB669

Criminal procedure; magistrates. Eliminates the prohibition of appointing a person as a magistrate if such person's spouse is a law-enforcement officer or an employee of the clerk of a district court.
Patron - Obenshain

P SJ130

Failed

F HB323

Mental illness; civil commitment. Allows the Department of Corrections to use any nationally recognized, scientifically validated sex offender recidivism instrument to determine if a prisoner should be civilly committed because of his high propensity for recidivism.
Patron - Griffith

F HB492

Compensation of court-appointed counsel. Sets the compensation of court-appointed attorneys at 75 percent of the compensation in United States federal courts.
Patron - Kilgore

F HB590

Arrest in lieu of service of summons in minor misdemeanor case. Allows an officer who has temporary custody of a person who committed a minor misdemeanor to either arrest the person or issue a summons. Currently, only a summons can be issued unless the person refuses to sign it or presents some other danger that gives rise to the officer's right to place the individual under arrest.
Patron - Janis

F HB631

Expungement of criminal records; unjust convictions. Requires, in all cases where the expungement of a criminal record is based on an absolute pardon for the commission of a crime for which the petitioner had been unjustly convicted or a writ of actual innocence has been issued and the petitioner has been confined to a state or local correctional facility for at least six months, that the circuit court also attach an order entitling the petitioner to (i) waiver of tuition and other mandatory fees for any public institution of higher education in the Commonwealth, (ii) lifetime authorization to enter Virginia's state parks for up to seven days per year without having to pay an admittance or parking fee, (iii) assessment and guidance services including, but not limited to, aptitude testing, mental health assessment, substance abuse counseling and job placement service, to be provided by the appropriate state agency at no cost, (iv) lifetime membership to the Virginia Museum of Fine Arts, and (v) a transition assistance grant of $15,000, in all cases. This bill is incorporated into HB 638.
Patron - O'Bannon

F HB647

Forfeiture on recognizance. Clarifies that a criminal defendant's bond may be forfeited not only upon his failure to appear in court as required but upon his failure to meet the conditions of his recognizance, as well.
Patron - Bell

F HB723

Sentencing proceeding by the jury after conviction. Provides that the attorney for the Commonwealth shall advise a sentencing 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. This bill is incorporated into HB 1292.
Patron - Shannon

F HB785

Speedy trial and speedy sentencing. Provides that when a defendant is at liberty pending trial, he shall be tried within six months of arraignment, and that when a defendant is found guilty, the court shall pronounce sentence within six months of a finding of guilt. Currently, a defendant at liberty must be tried within nine months and sentence must be pronounced without unreasonable delay.
Patron - Hurt

F HB865

Issuance of warrants against law-enforcement officers. Provides that, before an arrest warrant or summons may be issued against any law-enforcement officer pursuant to a complaint made to a magistrate alleging that the law-enforcement officer committed a misdemeanor or felony while he was in the performance of his official duties, a hearing shall be held before a district court to determine if sufficient cause exists for the issuance thereof. If the court finds sufficient cause, it shall issue a warrant or summons, as appropriate.
Patron - Byron

F HB1292

Sentencing proceeding by the jury after conviction. Provides that the attorney for the Commonwealth may advise the sentencing jury, after conviction, of a criminal defendant's entitlement to receive a reduction in time served in incarceration for good behavior, of the maximum reduction in time served that may be earned by a person convicted of a felony, and of the availability of geriatric parole.
Patron - Bell

F HB1318

Timeliness of bail review hearing. Provides that every person charged with a criminal offense who is not free on bail shall be brought before a judge on the first day on which such court sits after the person is charged but in no case more than five days following his arrest, at which time the judge shall inform the accused of the amount of his bail and his right to counsel. Currently, there is no five-day limit following arrest.
Patron - Louderback

F HB1356

Criminal procedure; public defender offices. Requires the Public Defender Commission to establish an office in any judicial circuit that does not have one.
Patron - Hamilton

F SB23

Prepayment of traffic infractions. Conforms this section to previous enactments allowing for waiver of appearance and prepayment of traffic fines for infractions resulting in accidents.
Patron - Marsh

F SB250

Interception of wire, electronic or oral communications. Provides that it shall not be a criminal offense for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication and where all of the parties to the communication have given prior consent to such interception. The offense is a Class 1 misdemeanor. Currently, there is no crime if the person intercepting is a party or if one of the parties consents.
Patron - Deeds

F SB496

Deferred disposition; criminal offenses. Provides that a court shall not defer a conviction when the facts found by the court would justify a finding of guilt, unless there is specific statutory authorization for such deferral for the criminal offense with which the defendant is charged.
Patron - Mims

Carried Over

C HB34

Public defenders' offices. Requires the establishment of a public defender's office in the City of Chesapeake.
Patron - Cosgrove

C HB522

Suspension or modification of sentence for cooperation with prosecution. Provides that when a person has been sentenced for a felony to the Department of Corrections, the court that heard the case may, after a hearing upon motion of the Commonwealth and with good cause therefor, suspend all or part, or otherwise modify, the unserved portion of the person's sentence if such a suspension or modification is compatible with the public interest. This intends to accommodate a case where an inmate cooperates and testifies in the prosecution of another person.
Patron - Cosgrove

C HB583

Public defender offices. Requires the establishment of public defender offices in the City of Newport News.
Patron - Hamilton

C HB950

Public defender offices. Requires the establishment of a public defender office in Arlington County and the City of Falls Church.
Patron - Ebbin

C HB1073

Arrest outside county or city where charge is to be tried. Expands arrest jurisdiction of a law-enforcement officer to provide that he may execute anywhere in the Commonwealth a capias or warrant issued by a judicial officer from his jurisdiction. Under current law, a law-enforcement officer may execute within his jurisdiction a warrant, capias or summons issued anywhere in the Commonwealth.
Patron - Armstrong

C HB1169

Sentencing proceeding by the jury after conviction. Provides that if a jury sentences a defendant to less than the mandatory minimum punishment required by law for an offense, the court shall fix punishment at the mandatory minimum.
Patron - Frederick

C HB1454

Public defender offices. Requires the establishment of a public defender office in the City of Hampton.
Patron - Gear

C SB218

Issuance of writ of actual innocence for nonbiological evidence. Establishes a procedure for a convicted felon to petition the Court of Appeals for a writ of actual innocence based on nonbiological evidence that was previously unknown or unavailable. The Court of Appeals may summarily dismiss the petition but if it determines that a resolution of the case requires further development of the facts, it may order the circuit court to conduct a hearing to certify findings of fact on certain issues. After considering the petition and the Commonwealth's response, the previous records of the case and the record of any hearing, the Court may dismiss the case or grant relief. A petitioner whose writ is not summarily dismissed by the Court of Appeals is entitled to court-appointed counsel in the same manner as an indigent defendant in a criminal case. The bill establishes a process similar to the one that already exists in the Code for previously unknown or untested biological evidence.
Patron - Marsh

C SB238

Transmission of prisoner orders. Provides that the certified copies of the orders that the clerk of court must transmit to the Department of Corrections when a person is convicted of a felony shall be transmitted by facsimile or by electronic mail. Under current law the method of transmission is not specified. The bill also clarifies that the 30 days in which the transmission must occur runs from the date the judge enters the final order.
Patron - Norment

C SB450

Public defender offices. Requires the establishment of public defender offices in Arlington County and the City of Falls Church.
Patron - Whipple

C SB640

Mentally ill defendants. Provides that a defendant in a criminal matter may be hospitalized if so seriously mentally ill as to be unable to care for himself. Under current law the standard is "imminently dangerous to self or others."
Patron - Edwards

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General Assembly>Division of Legislative Services>Publications>Session Summaries>2004>Criminal Procedure

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