Bill Text: VA HB758 | 2022 | Regular Session | Prefiled
Bill Title: Probation, revocation, and suspension of sentence; penalty.
Spectrum: Partisan Bill (Republican 21-0)
Status: (Engrossed - Dead) 2022-03-07 - Defeated by Senate (18-Y 21-N) [HB758 Detail]
Download: Virginia-2022-HB758-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§19.2-303, 19.2-303.1, and 19.2-306 of the Code of Virginia are amended and reenacted as follows:
§19.2-303. Suspension or modification of sentence; probation; taking of fingerprints and blood, saliva, or tissue sample as condition of probation.
After conviction, whether with or without jury, the court may
suspend imposition of sentence or suspend the sentence in whole or part and in
addition may place the defendant on probation under such conditions as the
court shall determine, including monitoring by a GPS (Global Positioning
System) tracking device, or other similar device, or may, as a condition of a
suspended sentence, require the defendant to make at least partial restitution
to the aggrieved party or parties for damages or loss caused by the offense for
which convicted, or to perform community service, or both, under terms and
conditions which shall be entered in writing by the court.
The court may fix the period of probation for up to the statutory maximum
period for which the defendant might originally have been sentenced to be
imprisoned for any felony offense
and up to five years for any offense punishable as a Class 1 or Class 2
midemeanor. Any period of supervised probation
ordered pursuant to this section shall
not exceed five years from the release of the defendant from any active period
of incarceration. The limitation on the period of
probation or supervised probation shall not apply to the extent that an additional period of
probation is necessary (i) for the defendant to participate in a court-ordered
program or (ii) if a defendant owes restitution and is still subject to
restitution compliance review hearings in accordance with §19.2-305.1.
The defendant may be ordered by the court to pay the cost of the GPS tracking
device or other similar device. If, however, the court suspends or modifies any
sentence fixed by a jury pursuant to §19.2-295, the court shall file a
statement of the reasons for the suspension or modification in the same manner
as the statement required pursuant to subsection B of §19.2-298.01. The judge,
after convicting the defendant of any offense for which a report to the Central
Criminal Records Exchange is required in accordance with subsection A of §
19.2-390, shall determine whether a copy of the defendant's fingerprints or
fingerprint identification information has been provided by a law-enforcement
officer to the clerk of court for each such offense. In any case where
fingerprints or fingerprint identification information has not been provided by
a law-enforcement officer to the clerk of court, the judge shall require that
fingerprints and a photograph be taken by a law-enforcement officer as a
condition of probation or of the suspension of the imposition or execution of
any sentence for such offense. Such fingerprints shall be submitted to the
Central Criminal Records Exchange under the provisions of subsection D of §
19.2-390.
In those courts having electronic access to the Local Inmate Data System (LIDS) within the courtroom, prior to or upon sentencing, the clerk of court shall also determine by reviewing LIDS whether a blood, saliva, or tissue sample has been taken for DNA analysis and submitted to the DNA data bank maintained by the Department of Forensic Science pursuant to Article 1.1 (§19.2-310.2 et seq.) of Chapter 18 of this title. In any case in which the clerk has determined that a DNA sample or analysis is not stored in the DNA data bank, or in any case in which electronic access to LIDS is not available in the courtroom, the court shall order that the defendant appear within 30 days before the sheriff or probation officer and allow the sheriff or probation officer to take the required sample. The order shall also require that, if the defendant has not appeared and allowed the sheriff or probation officer to take the required sample by the date stated in the order, then the sheriff or probation officer shall report to the court the defendant's failure to appear and provide the required sample.
After conviction and upon sentencing of an active participant or member of a criminal street gang, the court may, as a condition for suspending the imposition of the sentence in whole or in part or for placing the accused on probation, place reasonable restrictions on those persons with whom the accused may have contact. Such restrictions may include prohibiting the accused from having contact with anyone whom he knows to be a member of a criminal street gang, except that contact with a family or household member, as defined in §16.1-228, shall be permitted unless expressly prohibited by the court.
Notwithstanding any other provision of
law, in any case where a defendant is convicted of a violation of §
18.2-48, 18.2-61, 18.2-63, 18.2-67.1, 18.2-67.2, 18.2-67.3, 18.2-370, or
18.2-370.1, committed on or after July 1, 2006, or §18.2-361
committed on or after July 1, 2022, and some portion of the
sentence is suspended, the judge shall order that the period of suspension
shall be for a length of time at least
equal to the statutory maximum period for which the defendant might originally
have been sentenced to be imprisoned, and the defendant shall be placed on
probation for that period of suspension subject to revocation by the court. The
conditions of probation may include such conditions as the court shall
determine, including active supervision. Where the conviction is for a
violation of clause (iii) of subsection A of §18.2-61, subdivision A 1 of §
18.2-67.1, or subdivision A 1 of §18.2-67.2, the court shall order that at
least three years of the probation include active supervision of the defendant
under a postrelease supervision program operated by the Department of
Corrections, and for at least three years of such active supervision, the
defendant shall be subject to electronic monitoring by means of a GPS (Global
Positioning System) tracking device, or other similar device.
If a person is sentenced to jail upon conviction of a misdemeanor or a felony, the court may, at any time before the sentence has been completely served, suspend the unserved portion of any such sentence, place the person on probation in accordance with the provisions of this section, or otherwise modify the sentence imposed.
If a person has been sentenced for a felony to the Department of Corrections (the Department), the court that heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, or within 60 days of such transfer, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation in accordance with the provisions of this section.
§19.2-303.1. Fixing period of suspension of sentence.
In any case where a court suspends the imposition or execution of a sentence, it may fix the period of suspension for up to the statutory maximum period for which the defendant might originally have been sentenced to be imprisoned for any felony offense and up to five years for any offense punishable as a Class 1 or Class 2 misdemeanor. The limitation on the period of suspension shall not apply to the extent that an additional period of suspension is necessary for the defendant to participate in a court-ordered program.
§19.2-306. Revocation of suspension of sentence and probation.
A. In any case in which the court has suspended the execution or imposition of sentence, the court may revoke the suspension of sentence for any cause the court deems sufficient that occurred at any time within the probation period, or within the period of suspension of imposition of sentence fixed by the court. If neither a probation period nor a period of suspension of imposition of sentence was fixed by the court, then the court may revoke the suspension for any cause the court deems sufficient that occurred within the maximum period for which the defendant might originally have been sentenced to be imprisoned.
B. The court may not conduct a hearing to revoke the suspension of sentence unless the court issues process to notify the accused or to compel his appearance before the court within 90 days of receiving notice of the alleged violation or within one year after the expiration of the period of probation or the period of suspension of imposition of sentence, whichever is sooner, or, in the case of a failure to pay restitution, within three years after such expiration. If neither a probation period nor a period of suspension of imposition of sentence was fixed by the court, then the court shall issue process within six months after the expiration of the maximum period for which the defendant might originally have been sentenced to be incarcerated. Such notice and service of process may be waived by the defendant, in which case the court may proceed to determine whether the defendant has violated the conditions of suspension.
C. If the court, after hearing, finds good cause to believe
that the defendant has violated the terms of suspension
solely by committing a first technical violation, then the court may revoke the suspension and
impose a sentence in accordance with the provisions of §19.2-306.1 (i) if the court originally suspended the imposition
of sentence, the court shall revoke the suspension, and the court may pronounce
whatever sentence might have been originally imposed or (ii) if the court
originally suspended the execution of the sentence, the court shall revoke the
suspension and the original sentence shall be in full force and effect.
The court may shall
again suspend all or any part
of this sentence for the
same period of time as pronounced in the original sentencing order or for a period up to the statutory maximum period for which the
defendant might originally have been sentenced to be imprisoned, less any time already served whichever is less, and may place the defendant upon terms and conditions
or probation. The court shall measure the period of any
suspension of sentence from the date of the entry of the original sentencing
order. However, if a court
finds that a defendant has absconded from the jurisdiction of the court, the
court may extend the period of probation or suspended sentence for a period not
to exceed the length of time that such defendant absconded The limitation on the period of probation or
supervised probation shall not apply to the extent that an additional period of
probation is necessary (a) for
the defendant to participate in a court-ordered program or (b) if a
defendant owes restitution and is still subject to restitution compliance
review hearings in accordance with §19.2-305.1.
D. If the court, after hearing, finds good cause to believe that the defendant has violated the terms of suspension by committing a second or subsequent technical violation, or any other violation, including a violation of any specific or special term or condition imposed by the court in the original or any subsequent sentencing order, then: (i) if the court originally suspended the imposition of sentence, the court shall revoke the suspension, and the court may pronounce whatever sentence might have been originally imposed or (ii) if the court originally suspended the execution of the sentence, the court shall revoke the suspension and the original sentence shall be in full force and effect. The court may again suspend all or any part of this sentence and may place the defendant upon terms and conditions or probation as deemed appropriate by the court.
E. If any court has, after hearing, found no cause to impose a sentence that might have been originally imposed, or to revoke a suspended sentence or probation, then any further hearing to impose a sentence or revoke a suspended sentence or probation, based solely on the alleged violation for which the hearing was held, shall be barred.
E. F. Nothing contained herein
shall be construed to deprive any person of his right to appeal in the manner
provided by law to the circuit court having criminal jurisdiction from a
judgment or order revoking any suspended sentence.
G. For the purposes of this section, "technical violation" means a violation based on the probationer's failure to (i) report any arrest, including traffic tickets, within three days to the probation officer; (ii) maintain regular employment or notify the probation officer of any changes in employment; (iii) report within three days of release from incarceration; (iv) permit the probation officer to visit his home and place of employment; (v) follow the instructions of the probation officer, be truthful and cooperative, and report as instructed; (vi) refrain from the use of alcoholic beverages to the extent that it disrupts or interferes with his employment or orderly conduct; (vii) refrain from the use of controlled substances or related paraphernalia; (viii) gain permission to change his residence or remain in the Commonwealth or other designated area without permission of the probation officer; or (ix) a good behavior violation that did not result in a criminal conviction. "Technical violation" does not include a violation of any specific or special term or condition imposed by the court in the original or any subsequent sentencing order. Multiple technical violations arising from a single course of conduct or a single incident or considered at the same revocation hearing shall not be considered separate technical violations for the purposes of sentencing pursuant to this section.
2. That §19.2-306.1 of the Code of Virginia is repealed.
3. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to §30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 552 of the Acts of Assembly of 2021, Special Session I, requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to §30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.
