SB615: Conditions of sentence suspension; allows credits to be applied toward reducing offender's time.

SENATE BILL NO. 615
Offered January 15, 2010
A BILL to amend and reenact § 19.2-303 of the Code of Virginia, relating to conditions of sentence suspension, etc.; credits toward reducing length of probation.
Patron-- Howell

Referred to Committee for Courts of Justice

Be it enacted by the General Assembly of Virginia:

1.  That § 19.2-303 of the Code of Virginia is 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 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. 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 a felony, shall determine whether a copy of the defendant's fingerprints are on file at the Central Criminal Records Exchange. In any case where fingerprints are not on file, the judge shall require that fingerprints be taken as a condition of probation. 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.

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, 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, as a condition of the suspension of sentence and placement on probation, an offender is placed under active supervision of the district probation and parole office, the offender may earn credits toward the reduction of the period of supervision. The credits may be earned upon achievement of specified goals. In any case in which an offender is placed on supervised probation, the Department of Corrections shall develop a supervision plan specifically for that offender, taking into account his offense and the results of any assessment conducted by the Department. The plan shall set out specific goals for the offender to achieve and the credits toward reduction of the period of active supervision that may be earned upon completion of each goal. In addition to any other goals developed specifically for the offender, any such plan shall include the goals of avoiding the use of illegal substances, obtaining a job, and retaining a job for a specified period of time. The court shall have the option of reviewing the plan and approving it or modifying it. When an offender achieves a specified goal, the period of active supervision shall be reduced in accordance with the credit associated with that goal. For an offender for whom the court has specified a period of supervision, the maximum reduction in the period of active supervision that the offender may earn in this manner shall be 50 percent. For an offender for whom the court has not set a definite period of supervision, the chief probation and parole officer shall, after the offender has achieved the goals in the plan and has been under supervised probation for at least 12 months, remove the offender from active supervision unless he feels that doing so would pose a risk to public safety. In such a case, the chief probation and parole officer shall keep the offender under active supervision until he feels that he can be taken off such supervision without endangering public safety. In any case, the court may reduce the period of active supervision further. However, the period of active supervision of any offender 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 shall not be reduced in accordance with the provisions of this paragraph. Furthermore, any reduction in active supervision shall have no effect on the suspension of sentence or on the period under which the offender is under probation.

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 for such time as the court shall determine, or otherwise modify the sentence imposed.

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. The court may place the person on probation for such time as the court shall determine.