ex post facto clause in Virginia

1988He opines that in deciding the change was procedural and not an ex post facto violation, we incorrectly relied *550 upon Dobbert v. Florida, 432 U.S. 282 (1977), when Thompson v. Utah, 170 U.S. 343 (1898), was the controlling authority.

1984Pertinent to the ex post facto inquiry is whether the defendant had “fair warning as Jo the degree of culpability which the State ascribed to the act of murder.” Dobbert v. Florida, 432 U.S. 282, 297 (1977); Smith v. Commonwealth, 219 Va. 455, 475 , 248 S.E.2d 135, 147 (1978), cert, denied, 441 U.S. 967 (1979).

2018The Commonwealth also relied upon Smith v. Doe, 538 U.S. 84 (2003), in which the United States Supreme Court held that Alaska’s -2- sex offender registration statutes were not punitive in either intent or effect and, thus, their retroactive application did not violate the ex post facto clause of the United States Constitution.

2015See Smith v. Doe, 538 U.S. 84, 92 , 123 S.Ct. 1140, 1146-47 , 155 L.Ed.2d 164 (2003) (holding that in an ex post facto inquiry, the Court must first “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings,” but “[i]f the intention of the legislature was to impose punishment, that ends the inquiry” and ex post facto concerns are applicable; “[i]f however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State’s] intention to

2025To state a claim for a violation of the ex post facto clause, a plaintiff must plead facts showing the retroactive application of a new rule that “‘by its own terms’ or through ‘practical implementation’ creates a ‘significant risk’ of extending the period of incarceration to which he is subject.” Burnette v. Fahey, 687 F.3d 171, 184 (4th Cir. 2012) (quoting Garner v. Jones, 529 U.S. 244, 255 (2000)).

2025To state a claim for a violation of the ex post facto clause, a plaintiff must plead facts showing the retroactive application of a new rule that “‘by its own terms’ or through ‘practical implementation’ creates a ‘significant risk’ of extending the period of incarceration to which he is subject.” Burnette v. Fahey, 687 F.3d 171, 184 (4th Cir. 2012) (quoting Garner v. Jones, 529 U.S. 244, 255 (2000)).

2025To state a claim for a violation of the ex post facto clause, a plaintiff must plead facts showing the retroactive application of a new rule that “‘by its own terms’ or through ‘practical implementation’ creates a ‘significant risk’ of extending the period of incarceration to which he is subject.” Burnette v. Fahey, 687 F.3d 171, 184 (4th Cir. 2012) (quoting Garner v. Jones, 529 U.S. 244, 255 (2000)).

2025To state a claim for a violation of the ex post facto clause, a plaintiff must plead facts showing the retroactive application of a new rule that “‘by its own terms’ or through ‘practical implementation’ creates a ‘significant risk’ of extending the period of incarceration to which he is subject.” Burnette v. Fahey, 687 F.3d 171, 184 (4th Cir. 2012) (quoting Garner v. Jones, 529 U.S. 244, 255 (2000)).

2023The decision in Lynce relied upon Weaver v. Graham, which held that a Florida law, which reduced the availability of so-called good conduct credits from the levels that were available when the inmate had committed his offense, ran “afoul of the prohibition against ex post facto laws” because “the new provision constricts the inmate’s opportunity to earn early release, and thereby makes more onerous the punishment for crimes committed before its enactment.” 450 U.S. 24, 35-36 (1981).

1984“Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver v. Graham, 450 U.S. 24, 30 (1981).

2003Rose v. Lee, 252 F.3d 676, 684 (4th Cir.2001).

2003Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001).

2023Ex post facto Article I, § 10 of the United States Constitution provides that “[n]o state shall . . . pass any . . . ex post facto law[.]” A statute violates the ex post facto clause of Article I, § 10 when it “punishes as a crime an act previously committed, which was innocent when done; . . . makes more burdensome the punishment for a crime, after its commission, or . . . deprives one charged with crime of any defense available according to law at the time when the act was committed[.]” Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)).

2003"Although the Latin phrase 'ex post facto' literally encompasses any law passed 'after the fact,' it has long been recognized by [the Supreme] Court that the constitutional prohibition on ex post facto laws applied only to penal statutes which disadvantage the offender affected by them." Collins, 497 U.S. at 41 .

2023But see, Martin v. Commonwealth, 64 Va. App. 666, 674-75 (2015) (declining to reach claim based upon the ex post facto clause of the Virginia Constitution because appellant exclusively relied upon federal authority and made no argument based on the specific text or history of the Virginia clause). 12 previously had earned and had used to effectuate his release violated the clause because it “disadvantaged” the inmate and “resulted in his rearrest and prolonged his imprisonment.” 519 U.S. 433, 446-47 (1997).

2018See Rule 5A:20(e); see also Martin v. Commonwealth, 64 Va. App. 666, 674-75 , 770 S.E.2d 795, 798-99 (2015) (declining to consider appellant’s argument that a retroactive re-categorization of his burglary conviction violated the ex post facto clause of Article I, § 9 when appellant failed to provide any authority to support that argument). -3- constitutionality of properly enacted laws, we have recognized that it is possible for a statute or ordinance to be facially valid, and yet unconstitutional as applied in a particular case.” Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 336 , 689 S.E.2d

2025“The United States Constitution, article 1, § 10, and the Virginia Constitution, article 1, § 9, prohibit the Commonwealth from enacting ex post facto laws.” Kitze v. Commonwealth, 23 Va. App. 213, 216 (1996). “[T]he ex post facto prohibition forbids the Congress and the States to enact any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Baugh, 68 Va. App. at 442 .

2025See Baugh, 68 Va. App. 437 ; Kitze, 23 Va. App. 213 .

2025“The United States Constitution, article 1, § 10, and the Virginia Constitution, article 1, § 9, prohibit the Commonwealth from enacting ex post facto laws.” Kitze v. Commonwealth, 23 Va. App. 213, 216 (1996). “[T]he ex post facto prohibition forbids the Congress and the States to enact any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Baugh, 68 Va. App. at 442 .

2025See Baugh, 68 Va. App. 437 ; Kitze, 23 Va. App. 213 .

2023Ex post facto Article I, § 10 of the United States Constitution provides that “[n]o state shall . . . pass any . . . ex post facto law[.]” A statute violates the ex post facto clause of Article I, § 10 when it “punishes as a crime an act previously committed, which was innocent when done; . . . makes more burdensome the punishment for a crime, after its commission, or . . . deprives one charged with crime of any defense available according to law at the time when the act was committed[.]” Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)).

2018See Rule 5A:20(e); see also Martin v. Commonwealth, 64 Va. App. 666, 674-75 , 770 S.E.2d 795, 798-99 (2015) (declining to consider appellant’s argument that a retroactive re-categorization of his burglary conviction violated the ex post facto clause of Article I, § 9 when appellant failed to provide any authority to support that argument). -3- constitutionality of properly enacted laws, we have recognized that it is possible for a statute or ordinance to be facially valid, and yet unconstitutional as applied in a particular case.” Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 336 , 689 S.E.2d

2018See Rule 5A:20(e); see also Martin v. Commonwealth, 64 Va. App. 666, 674-75 , 770 S.E.2d 795, 798-99 (2015) (declining to consider appellant’s argument that a retroactive re-categorization of his burglary conviction violated the ex post facto clause of Article I, § 9 when appellant failed to provide any authority to support that argument). -3- constitutionality of properly enacted laws, we have recognized that it is possible for a statute or ordinance to be facially valid, and yet unconstitutional as applied in a particular case.” Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 336 , 689 S.E.2d

1984Pertinent to the ex post facto inquiry is whether the defendant had “fair warning as Jo the degree of culpability which the State ascribed to the act of murder.” Dobbert v. Florida, 432 U.S. 282, 297 (1977); Smith v. Commonwealth, 219 Va. 455, 475 , 248 S.E.2d 135, 147 (1978), cert, denied, 441 U.S. 967 (1979).

1984Pertinent to the ex post facto inquiry is whether the defendant had “fair warning as Jo the degree of culpability which the State ascribed to the act of murder.” Dobbert v. Florida, 432 U.S. 282, 297 (1977); Smith v. Commonwealth, 219 Va. 455, 475 , 248 S.E.2d 135, 147 (1978), cert, denied, 441 U.S. 967 (1979).