Writ of actual innocence; revises one of allegations necessary to petition. (HB1432)

Introduced By

Del. Dave Albo (R-Springfield) with support from co-patron Sen. Joe Morrissey (D-Richmond)


Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law


Writ of actual innocence. Revises one of the allegations necessary to a petition for a writ of actual innocence from "[the evidence] will prove that no rational trier of fact have found proof of guilt beyond a reasonable doubt" to "[the evidence] will prove that no rational trier of fact would have found proof of guilt beyond a reasonable doubt." Read the Bill »


Bill Has Passed


12/20/2012Prefiled and ordered printed; offered 01/09/13 13102060D
12/20/2012Referred to Committee for Courts of Justice
01/15/2013Assigned Courts sub: #1 Criminal
01/16/2013Subcommittee recommends reporting (9-Y 0-N)
01/23/2013Reported from Courts of Justice (17-Y 0-N) (see vote tally)
01/25/2013Read first time
01/28/2013Read second time
01/28/2013No action taken on amendment by Delegate Morrissey
01/28/2013Motion to rerefer to committee agreed to
01/28/2013Rereferred to Courts of Justice
02/01/2013Reported from Courts of Justice (15-Y 0-N) (see vote tally)
02/02/2013Read first time
02/04/2013Read second time and engrossed
02/05/2013Read third time and passed House BLOCK VOTE (100-Y 0-N)
02/05/2013VOTE: BLOCK VOTE PASSAGE (100-Y 0-N) (see vote tally)
02/06/2013Constitutional reading dispensed
02/06/2013Referred to Committee for Courts of Justice
02/15/2013Reported from Courts of Justice (13-Y 2-N) (see vote tally)
02/18/2013Constitutional reading dispensed (40-Y 0-N) (see vote tally)
02/19/2013Read third time
02/19/2013Passed by for the day
02/20/2013Read third time
02/20/2013Passed by for the day
02/21/2013Read third time
02/21/2013Passed by temporarily
02/21/2013Passed Senate (37-Y 2-N) (see vote tally)
02/23/2013Bill text as passed House and Senate (HB1432ER)
02/23/2013Signed by Speaker
02/23/2013Signed by President
03/12/2013G Approved by Governor-Chapter 180 (effective 7/1/13)
03/12/2013G Acts of Assembly Chapter text (CHAP0180)


This bill was discussed on the floor of the General Assembly. Below is all of the video that we have of that discussion, 3 clips in all, totaling 17 minutes.


Mary Devoy writes:

HB1355 is a much better fix for the "21 Day Rule" the shame of the Commonwealth. This version is just changing "could" to "would", AG Cucinelli stated this was his proposal back in November, looks like Albo's sponsoring this for Cucinelli. NO to HB1432, YES to HB1355 if they amend it to add misdemeanors.

ACLU-VA Prisoners' Rights, tracking this bill in Photosynthesis, notes:

The ACLU of Virginia supports legislation that expands the use of writs of actual innocence. No person should be deprived of liberty for crimes he or she did not commit nor held any longer than necessary once known to innocent.

ACLU-VA Criminal Justice, tracking this bill in Photosynthesis, notes:

The ACLU of Virginia strongly supports this and other legislation that seeks to mitigate the effect of the 21 day rule depriving circuit courts of jurisdiction to hear writs of actual innocence.

Mary Devoy writes:

01-13-13: there are 4 proposed versions so far.
SB823 looks to be the most effective in fixing the 21 Day Rule.
HB1355 comes in second if SB823 gets “tabled or killed” by the House.
HB1432 and HB1920 seem to do the least but might get the most steam because both patrons are on the House Courts of Justice Committee and HB1432 is actually Attorney General Cuccinelli’s “fix” changing could to would.

With the recent recant in the Jonathan Montgomery case (Oct/Nov ’12) and the problems with Virginia’s 21 Day rule finally becoming crystal clear after asking Delegates and Senators to patron a bill for the last 4 GA sessions it looks like 2013 might finally be the year to fix it, or maybe not.

Based on the current wording of §§ 19.2-327 and all proposed bills at the upcoming session it seems a large segment of citizens are being forgotten, the misdemeanors.

A misdemeanor sexual offense is nothing like a misdemeanor drug, theft or assault conviction.
A Virginian who is convicted or pleads to a misdemeanor sexual offense is mandated to register as a sex offender for a minimum of 15 years in Virginia before they are even allowed to petition the court to be removed, and even then the majority of them are denied by the judge.

For 15+ years the opportunities for a registered sex offender are seriously limited when it comes to obtaining an education, housing, employment and even your movement in public places and your participation in your family’s lives. Just being a registered sex offender can result in a ban from seeing your own children. Ignoring a recant in such cases would be denying an innocent parent the right to participate in their child's life and that child's chance to know their parent who was wrongly convicted by the state.

Also any violation of the Virginia registry and the restrictions/requirements will result in a new felony charge even for an administrative issue. A felony penalty when the original conviction that mandated registration was a misdemeanor and you’re not even on probation.

A sexual misdemeanor conviction in reality is very close to a lifetime sentence in the Commonwealth, because of the registry.

So all 4 proposed changes to the statute wouldn’t apply to our citizens with a misdemeanor conviction who is required to register as a sex offender even if a witness or victim recants 22 days, 22 months or 12 years later. And so that Virginian would remain on the Virginia Sex Offender Registry and would be facing a new felony conviction for any failures even if new evidence proved they were innocent and should never have been convicted. Not to mention all the state resources being wasted monitoring and registering this innocent citizen each year.

The 21 day rule needs a complete overhaul. For four years I’ve suggested either repealing it entirely or changing the 21 days to be 21 years.

Right now Jonathan Montgomery has been freed from prison but he’s still required to register as a sex offender and abide by all the regulations and restrictions that go along with it. Just like Thomas Haynesworth had to and the Norfolk 4 still do. A conditional pardon, a partial pardon, a full pardon should all eliminate the mandate to register as a sex offender. But, no they must hire an attorney, go to court and wait (months or years) for a judge to decide if they can be freed from the undeserved label of sexual predator.

A recant should not only apply to a felony conviction if the 21 Day Rule is amended, it should include the misdemeanors too.

There should be no deadline on the truth or on justice being served in the Commonwealth and every recant should be taken seriously. The state took the original claim seriously, so why not the recant? If the state got it wrong the first time around by convicting an innocent person, they should want to get it right even if it's a whopping 22 days later.

ACLU-VA Legislative Agenda, tracking this bill in Photosynthesis, notes:

The ACLU of Virginia strongly supports this and other legislation that seeks to mitigate the effect of the 21 day rule depriving circuit courts of jurisdiction to hear writs of actual innocence.

James Renwick Manship, Sr. writes:

LONG, LONG, LONG, overdue. Now We the People PRAY Governor McDonnell will sign the bill, and then We pray on how the judges in OUR courts will "interpret" this law, how narrowly, or how openly. Let us pray this will help restore Liberty to that innocent Army Veteran 18 year inmate Jeffrey Franklin Washington whose Prosecutor (Paul Thomson, now in Federal Prison) committed Brady violations to scare Washington's mother to beg her son to accept Thomson's offered Alford Plea, where Washington was encouraged to take it by his "Strickland v. Washington" deficient Defense attorney, (John Prosser, now "retired early" the same day a Petition for Special Grand Jury was filed with Prosser and Thomson, the disgusting duo, mentioned.)