Code of Virginia - Title 19.2 Criminal Procedure - Section 19.2-327.5 Relief under writ

§ 19.2-327.5. Relief under writ

Upon consideration of the petition, the response by the Commonwealth, previous records of the case, the record of any hearing held under this chapter and the record of any hearings held pursuant to § 19.2-327.1, and if applicable, any findings certified from the circuit court pursuant to § 19.2-327.4, the Court shall either dismiss the petition for failure to state a claim or assert grounds upon which relief shall be granted; or upon a hearing the Court shall (i) dismiss the petition for failure to establish allegations sufficient to justify the issuance of the writ, or (ii) only upon a finding of clear and convincing evidence that the petitioner has proven all of the allegations contained in clauses (iv) through (ix) of subsection A of § 19.2-327.3, and upon a finding that no rational trier of fact could have found proof of guilt beyond a reasonable doubt, grant the writ, and vacate the conviction, or in the event that the Court finds that no rational trier of fact could have found sufficient evidence beyond a reasonable doubt as to one or more elements of the offense for which the petitioner was convicted, but the Court finds that there remains in the original trial record evidence sufficient to find the petitioner guilty beyond a reasonable doubt of a lesser included offense, the court shall modify the conviction accordingly and remand the case to the circuit court for resentencing. The burden of proof in a proceeding brought pursuant to this chapter shall be upon the convicted person seeking relief. If a writ vacating a conviction is granted, the Court shall forward a copy of the writ to the circuit court, where an order of expungement shall be immediately granted.

(2001, cc. 873, 874; 2007, cc. 465, 824, 883, 905.)

Sections:  Previous  19.2-327.2  19.2-327.3  19.2-327.4  19.2-327.5  19.2-327.6  Next

Last modified: April 16, 2009