Fraud; court may vacate judgment of criminal conviction or adjudication of person. (SB840)

Introduced By

Sen. Mamie Locke (D-Hampton) with support from co-patron Sen. Richard Stuart (R-Westmoreland)


Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law


Vacation of criminal conviction for fraud upon the court. Provides that notwithstanding any provision of the code or any rule of court to the contrary, upon hearing of a motion by a person convicted of a felony or adjudicated delinquent of a felony offense in the proper court of the jurisdiction where the person was convicted, following notice to the Commonwealth, a court may at any time after the person's conviction or adjudication vacate the judgment of the criminal conviction or adjudication of the person when the court finds that the conviction or adjudication was obtained by the commission of a material fraud upon the court or perjured testimony. Read the Bill »


Bill Has Failed


01/02/2013Prefiled and ordered printed; offered 01/09/13 13101271D
01/02/2013Referred to Committee for Courts of Justice
01/18/2013Impact statement from DPB (SB840)
01/30/2013Reported from Courts of Justice with substitute (14-Y 0-N 1-A) (see vote tally)
01/30/2013Committee substitute printed 13104826D-S1
01/31/2013Incorporates SB836
02/01/2013Constitutional reading dispensed (39-Y 0-N) (see vote tally)
02/04/2013Read second time
02/04/2013Reading of substitute waived
02/04/2013Committee substitute agreed to 13104826D-S1
02/04/2013Engrossed by Senate - committee substitute SB840S1
02/04/2013Constitutional reading dispensed (40-Y 0-N) (see vote tally)
02/04/2013Passed Senate (40-Y 0-N) (see vote tally)
02/06/2013Placed on Calendar
02/06/2013Read first time
02/06/2013Referred to Committee for Courts of Justice
02/08/2013Assigned Courts sub: #1 Criminal
02/11/2013Subcommittee failed to recommend reporting (3-Y 3-N)
02/18/2013Left in Courts of Justice


This bill was discussed on the floor of the General Assembly. Below is all of the video that we have of that discussion, 1 clip in all, totaling 44 seconds.


Mary Devoy writes:

Kudos to Senator Locke for sponsoring this bill and Senator Stuart for Co-Sponsoring it. I had previously missed it in the list of writs of innocence since it’s under fraud.

The House Courts of Justice Committee already killed HB1355 sadly because AG Cuccinelli’s version HB1432 sponsored by Albo is the GOP’s preferred fix to the 21 Day Rule. HB1920 and HB1919 were also tabled/ died in the House sub-committee for the Ag’s bill to survive.

That leaves this version as SB823 by Senator Alexander was withdrawn at his request probably for this version to carry on. The big question is, will the House kill this one when it reaches their chamber since the majority is pushing for Cuccinelli?
Why are these bills even needed?

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 phrasing of all the proposed bills 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.

None of this years proposed bills would 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.