Bill Text: VA SB1259 | 2023 | Regular Session | Chaptered
Bill Title: Criminal appeals; duties of the Attorney General and attorney for the Commonwealth.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2023-03-23 - Governor: Acts of Assembly Chapter text (CHAP0315) [SB1259 Detail]
Download: Virginia-2023-SB1259-Chaptered.html
Be it enacted by the General Assembly of Virginia:
1. That §§2.2-511, 15.2-1627, 17.1-406, 19.2-402, and 19.2-404 of the Code of Virginia are amended and reenacted as follows:
§2.2-511. Criminal cases.
A. Unless specifically requested by the Governor to do so, the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth except in cases involving (i) violations of the Alcoholic Beverage Control Act (§4.1-100 et seq.), (ii) violation of laws relating to elections and the electoral process as provided in §24.2-104, (iii) violation of laws relating to motor vehicles and their operation, (iv) the handling of funds by a state bureau, institution, commission or department, (v) the theft of state property, (vi) violation of the criminal laws involving child pornography and sexually explicit visual material involving children, (vii) the practice of law without being duly authorized or licensed or the illegal practice of law, (viii) violations of § 3.2-4212 or 58.1-1008.2, (ix) with the concurrence of the local attorney for the Commonwealth, violations of the Virginia Computer Crimes Act (§18.2-152.1 et seq.), (x) with the concurrence of the local attorney for the Commonwealth, violations of the Air Pollution Control Law (§10.1-1300 et seq.), the Virginia Waste Management Act (§10.1-1400 et seq.), and the State Water Control Law (§ 62.1-44.2 et seq.), (xi) with the concurrence of the local attorney for the Commonwealth, violations of Chapters 2 (§18.2-18 et seq.), 3 (§18.2-22 et seq.), and 10 (§18.2-434 et seq.) of Title 18.2, if such crimes relate to violations of law listed in clause (x) of this subsection, (xii) with the concurrence of the local attorney for the Commonwealth, criminal violations by Medicaid providers or their employees in the course of doing business, or violations of Chapter 13 (§18.2-512 et seq.) of Title 18.2, in which cases the Attorney General may leave the prosecution to the local attorney for the Commonwealth, or he may institute proceedings by information, presentment or indictment, as appropriate, and conduct the same, (xiii) with the concurrence of the local attorney for the Commonwealth, violations of Article 9 (§ 18.2-246.1 et seq.) of Chapter 6 of Title 18.2, (xiv) with the concurrence of the local attorney for the Commonwealth, assisting in the prosecution of violations of §§18.2-186.3 and 18.2-186.4, (xv) with the concurrence of the local attorney for the Commonwealth, assisting in the prosecution of violations of §18.2-46.2, 18.2-46.3, or 18.2-46.5 when such violations are committed on the grounds of a state correctional facility, and (xvi) with the concurrence of the local attorney for the Commonwealth, assisting in the prosecution of violations of Article 10 (§18.2-246.6 et seq.) of Chapter 6 of Title 18.2.
In all other criminal cases in the circuit courts, except
where the law provides otherwise, the authority of the Attorney General to
appear or participate in the proceedings shall not attach unless and
until a notice of appeal has been filed with when the appellate court
receives the record after a notice of appeal has been filed with the clerk
of the circuit court noting an appeal to the Court of Appeals or the Supreme
Court. In all criminal cases before the Court of Appeals or the Supreme Court
in which the Commonwealth is a party or is directly interested, the Attorney
General shall appear and represent the Commonwealth upon receipt of the
record in the appellate court, unless, and with the consent of the Attorney
General, the attorney for the Commonwealth who prosecuted the underlying
criminal case files a notice of appearance to represent the Commonwealth in any
such appeal. However, in an appeal regarding bail, bond, or recognizance
pursuant to Article 1 (§19.2-119 et seq.) of Chapter 9 of Title 19.2 or
subsection B of §19.2-398, the attorney for the Commonwealth who prosecuted
the underlying criminal case shall continue to represent the Commonwealth on
appeal.
B. The Attorney General shall, upon request of a person who was the victim of a crime and subject to such reasonable procedures as the Attorney General may require, ensure that such person is given notice of the filing, of the date, time and place and of the disposition of any appeal or habeas corpus proceeding involving the cases in which such person was a victim. For the purposes of this section, a victim is an individual who has suffered physical, psychological or economic harm as a direct result of the commission of a crime; a spouse, child, parent or legal guardian of a minor or incapacitated victim; or a spouse, child, parent or legal guardian of a victim of a homicide. Nothing in this subsection shall confer upon any person a right to appeal or modify any decision in a criminal, appellate or habeas corpus proceeding; abridge any right guaranteed by law; or create any cause of action for damages against the Commonwealth or any of its political subdivisions, the Attorney General or any of his employees or agents, any other officer, employee or agent of the Commonwealth or any of its political subdivisions, or any officer of the court.
§15.2-1627. Duties of attorneys for the Commonwealth and their assistants.
A. No attorney for the Commonwealth, or assistant attorney for the Commonwealth, shall be required to carry out any duties as a part of his office in civil matters of advising the governing body and all boards, departments, agencies, officials and employees of his county or city; of drafting or preparing county or city ordinances; of defending or bringing actions in which the county or city, or any of its boards, departments or agencies, or officials and employees thereof, shall be a party; or in any other manner of advising or representing the county or city, its boards, departments, agencies, officials and employees, except in matters involving the enforcement of the criminal law within the county or city.
B. The attorney for the Commonwealth and assistant attorney
for the Commonwealth shall be a part of the department of law enforcement of
the county or city in which he is elected or appointed, and shall have the
duties and powers imposed upon him by general law, including the duty of
prosecuting all warrants, indictments or informations charging a felony, and he
may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other
violation, the conviction of which carries a penalty of confinement in jail, or
a fine of $500 or more, or both such confinement and fine. He shall enforce all
forfeitures, and carry out all duties imposed upon him by §2.2-3126. He may
enforce the provisions of §18.2-268.3, 29.1-738.2, 46.2-341.20:7, or
46.2-341.26:3. He may, in his discretion, file a notice of petition
for appeal with the circuit court for the appeal of a criminal case for
which he was the prosecuting attorney pursuant to Chapter 25 (§19.2-398
et seq.) of Title 19.2 and he may appear and shall continue to
represent the Commonwealth in any criminal case on such appeal
before the Court of Appeals or the Supreme Court for which he was the
prosecuting attorney, provided that the Attorney General consented to such
appearance pursuant to §2.2-511 unless and until the Court of Appeals
grants the petition, except that he shall remain counsel of record in an appeal
regarding bail, bond, or recognizance pursuant to Article 1 (§19.2-119 et
seq.) of Chapter 9 of Title 19.2 or subsection B of §19.2-398.
He shall also represent the Commonwealth in an appeal of a civil matter related to the enforcement of a criminal law or a criminal case for which he was the prosecuting attorney, including a petition for expungement of a defendant's criminal record, an action of forfeiture filed in accordance with the provisions of Chapter 22.1 (§19.2-386.1 et seq.) of Title 19.2, or any matter which he may enforce pursuant to this section.
§17.1-406. Appeals in criminal matters; cases over which Court of Appeals does not have jurisdiction.
A. Any aggrieved party may appeal to the Court of Appeals from any final conviction in a circuit court of a traffic infraction or a crime. 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 final decision, judgment,
or order of a circuit court involving a petition for a writ of habeas corpus,;
from any action collaterally attacking a criminal conviction, including a
motion filed under §8.01-428; 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.
§19.2-402. Petition for appeal; brief in opposition; time for filing.
A. When a notice of appeal has been filed pursuant to §
19.2-400, the Commonwealth may petition the Court of Appeals for an appeal
pursuant to §19.2-398. The Commonwealth shall be represented by the
Attorney General or the attorney for the Commonwealth prosecuting the case
if he filed a notice of appearance pursuant to §2.2-511.
B. The provisions of this subsection apply only to pretrial appeals. The petition for a pretrial appeal shall be filed with the clerk of the Court of Appeals not more than 14 days after the notice of transcript or written statement of facts required by §19.2-405 is filed or, if there are objections thereto, within 14 days after the judge signs the transcript or written statement of facts. The accused may file a brief in opposition with the clerk of the Court of Appeals within 14 days after the filing of the petition for pretrial appeal. If the accused has filed a notice of cross appeal, he shall file a petition for cross appeal to be consolidated with, and filed within the same time period as, his brief in opposition. The Commonwealth may file a brief in opposition to any petition for cross appeal within 10 days after the petition for cross appeal is filed. Except as specifically provided in this section, all other requirements for the petition for pretrial appeal and brief in opposition shall conform as nearly as practicable to Part Five A of the Rules of the Supreme Court of Virginia.
§19.2-404. Procedures on awarded pretrial appeal.
This section applies only to pretrial appeals. If the Court of
Appeals grants the Commonwealth's petition for a pretrial appeal, the Attorney
General shall represent the Commonwealth during that appeal unless the
attorney for the Commonwealth prosecuting the case has filed a notice of
appearance pursuant to §2.2-511.
The Commonwealth shall file its opening brief in the office of
the clerk of the Court of Appeals within 25 days after the date of the
certificate awarding the appeal. The brief of the appellee shall be filed in
the office of the clerk of the Court of Appeals within 25 days after the filing
of the Commonwealth's opening brief. The Commonwealth may then file a reply
brief, including its response to any cross appeal, in the office of the clerk
of the Court of Appeals within 15 days after the filing of the brief of the
accused. With the permission of a judge of the Court of Appeals, the time for
filing any brief may be extended for good cause shown. Four copies of each
brief shall be filed and three copies shall be mailed or delivered to opposing
counsel on or before the date of filing. Except as specifically provided in
this section, all other requirements of the brief shall conform as nearly as
practicable to Part Five A of the Rules of the Supreme Court of Virginia. The
Court of Appeals shall accelerate the appeal on its docket and render its
decision not later than 60 days after the filing of the appellee's brief or
after the time for filing such brief has expired.
When the opinion is rendered by the Court of Appeals, the mandate shall immediately issue and the clerk of the Court of Appeals shall return the record forthwith to the clerk of the trial court. No petition for rehearing may be filed.
