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Post-conviction remedies:

Post-Trial Motions:

Before the trial court loses jurisdiction over the case (generally 21 days after the final order is signed by the judge), several motions can be made post-trial, such as motions to vacate based on insufficient evidence or denials of mistrials, motions to withdraw a guilty plea, motions for a new trial based on newly discovered evidence or juror or prosecutorial misconduct, and motions to modify sentence. The filing of some post-trial motions can be crucial to preserve issues for appeal.

Motions for New Trial Based on Newly Discovered Evidence:

A motion for a new trial based on newly discovered evidence must be filed within 21 days after the final order (usually the sentencing order) is signed by the judge. Four requirements must be met for a new trial to be granted upon a claim of newly discovered evidence: (1) the evidence was discovered after trial; (2) it could not have been obtained prior to trial through the exercise of reasonable diligence; (3) it is not merely cumulative, corroborative or collateral; and (4) it is material, and as such, should produce an opposite result on the merits at another trial. (See Mundy v. Commonwealth, 11 Va. App. 461, 480, 390 S.E.2d 525, 535, aff'd on rehearing en banc, 11 Va. App. 461, 399 S.E.2d 29 (1990), cert. denied, 502 U.S. 840 (1991)):

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Motion to Withdraw Guilty Plea

Making such a motion is much easier in theory than in practice. There is a big distinction in the timing of motion. Before sentencing, the plea may be withdrawn if the Parris test is met. After sentencing, the plea may only be withdrawn to correct manifest injustice

Pursuant to Parris, the test for permitting a defendant to withdraw a guilty plea essentially has two prongs: 1.) the guilty plea was entered based on a misconception, misunderstanding, official misrepresentation, or erroneous advice; and, 2.) the defendant has offered any reasonable defense to the charges. (See Parris v. Commonwealth, 189 Va. 321, 322-24, 52 S.E.2d 872, 872-73 (1949).

"Leave should ordinarily be given to withdraw a plea of guilty if it was entered by mistake or under a misconception of the nature of the charge; through a misunderstanding as to its effect; through fear, fraud, or official misrepresentation; was made involuntarily for any reason; or even where it was entered inadvisedly, if any reasonable ground is offered for going to the jury." Parris, 189 Va. at 325, 52 S.E.2d at 874 (quoting 14 Am.Jur.2d. Criminal Law Section 287).

One may argue that a motion to withdraw a guilty plea should be granted "if it appears from the surrounding circumstances that the plea of guilty was submitted in good faith under an honest mistake of material fact or facts, or if it was induced by fraud, coercion or undue influence and would not otherwise have been made." Hoverter v. Commonwealth, 23 Va. App. 454, 464, 477 S.E.2d 771, 775 (1996) (quoting Parris, 189 Va. at 324, 52 S.E.2d at 873).

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Sentence Modification:

There is a common misconception that an inmate's sentence may be reduced (or modified) at any time after conviction. However, courts actually lose jurisdiction to modify or reduce a sentence after a person is transferred to the DOC.

The Virginia statute on point, Virginia Code Section 19.2-303, provides in pertinent part: "If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which 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, suspend or otherwise modify the unserved portion of such a sentence." Va. Code Section 19.2-303.

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Writs of Actual Innocence:

Writ of Actual Innocence Based on Biological Evidence:

The new Virginia statutes on post-conviction DNA testing (most of which went into effect on May 2, 2001), provide a statutory scheme to store, identify, and test previously unknown or untested human biological material. If the new DNA testing is granted and proves innocence, the inmate can file a petition for a writ of actual innocence. The writ of actual innocence is only available to petitioners who can prove innocence with new DNA testing. All other writs of actual innocence are pursued independantly under other standards of review (see the discussion below). Therefore, this writ should be known by its full name: "writ of actual innocence based on previously unknown or untested human biological evidence." See Va. Code Section 19.2-327.1 through 19.2-327.6.

There are four basic steps involved in pursuing such a writ. Only the first step is a matter of right for a defendant, and the other steps are matters to be decided at the discretion of the court. The four steps are as follows:

  1. Upon defendant's motion, the circuit court shall order storage, preservation, and retention of the biological material, (see Va. Code Section 19.2-270.4:1);
  2. Upon defendant's motion and for good cause shown, the circuit court may order a hearing to determine the identification of the biological material which is stored [although not expressly provided in the statute, a defendant can request identification without a hearing by asking that the prosecutor, the sheriff's office, and/or the clerk's office file a detailed and thorough "inventory" to the satisfaction of the court and the defendant, and the defendant should reserve his right to a hearing if the "inventory" is not satisfactory], (see Va. Code Section 19.2-270.4:1);
  3. Upon defendant's motion and for good cause shown, the circuit court may order new DNA testing by the Virginia Division of Forensic Science, (see Va. Code Section 19.2-327.1 through 19.2-327.6);
  4. Upon filing for a writ of actual innocence, the Virginia Supreme Court may grant freedom to those who prove actual innocence through new DNA testing, (see Va. Code Section 19.2-327.1 through 19.2-327.6).

The applicable Virginia code sections include numerous requirements and limitations, and anyone who wants to pursue new DNA testing should study the statutory scheme in its entirety. The Virginia Constitution was amended to permit a writ of actual innocence to be filed directly in the Supreme Court, but only DNA testing has been established by statute as a ground for such a motion. (Art. VI, Sec. 1.)

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Writ of Actual Innocence Based on Non-Biological Evidence:

The Virginia legislature expanded the writ of actual innocence as of July 1, 2004, to allow claims which are based on new evidence other than new DNA testing. However, there are a number of pitfalls for the unwary filer of such a petition. Among other things, only one such petition may ever be filed by an imate. A petition should not be filed unless and until the best possible petition has been assembled. Because there is no time limit, all avenues of potential affidavits and other evidence should be exhausted before filing.

Some keys points in the statutes are:

  1. The writ is not available if the defendant entered a guilty plea, including "no contest" pleas or Alford pleas;
  2. The writ is not available based on evidence that could have been discovered before the convictions became final (21 days after final order, which is usually the sentencing order);
  3. The petition should be filed on the form provided by the Virginia Supreme Court (but you actually need to get the form from the Virginia Court of Appeals);
  4. All statutory requirements must be met, including service on the prosecutor and Attorney General's office; and
  5. The standard is very demanding in that the petition must show that "the previously unknown or unavailable evidence is material and when considered with all of the other evidence in the current record, will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Va. Code 19.2-327.11(A)(vii) and 19.2-327.13.

There is signficantly more that we can provide should you have additional questions about pursuing a writ of actual innocence. Please contact us at the address and phone number listed on this page or make use of our help page. We would be happy to discuss the matter with you.

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David B. Hargett and W. Todd Watson are attorneys licensed to practice law in the Commonwealth of Virginia.