writing requirement in Virginia

2024The legislature’s recent restoration of the writing requirement following a century-long hiatus supports the notion that it “chooses statutory language with care.” Eley v. Commonwealth, 70 Va. App. 158, 166 (2019) (quoting Spratley v. Commonwealth, 69 Va. App. 314, 319 (2018), aff’d, 298 Va. 187 (2019)).

2024The legislature’s recent restoration of the writing requirement following a century-long hiatus supports the notion that it “chooses statutory language with care.” Eley v. Commonwealth, 70 Va. App. 158, 166 (2019) (quoting Spratley v. Commonwealth, 69 Va. App. 314, 319 (2018), aff’d, 298 Va. 187 (2019)).

2024The General Assembly purposefully reinstituted the requirement that, in a summary contempt proceeding, a court must state expressly the basis for its finding of contempt. -8- of the court.” Robertson, 181 Va. at 529 .8 The Court further noted that to contend otherwise would “deprive the courts of their ‘inherent power of self-defense and self-preservation,’ and would ‘so far diminish their authority’ ‘as to render them incapable of the efficient exercise of their functions.’” Id. at 531 (quoting Yoder v. Commonwealth, 107 Va. 823, 828-31 (1907)).

2024See Cunningham v. Smith, 205 Va. 205, 208 (1964) (establishing that the “record spoken of in [the Virginia Constitution] is that [order book in which are kept the proceedings, orders and judgments of a court] which distinguishes a court of record from one not of record,” and therefore “[a] court speaks only through its orders”); Russell v. Commonwealth, 79 Va. App. 618 , 623-24 (2024) (recognizing that the finality provisions of Rule 1:1 support the “firmly 8 Of course, at the time the Supreme Court decided Robertson v. Commonwealth, Code § 4521 (1942) (predecessor to Code § 18.2-456) did not

2022Cf. Winslow v. Commonwealth, 62 Va. App. 539, 546-47 (2013) (finding that the violation of the writing requirement in Rule 3A:8(c)(2) does not render a conviction void ab initio, although it might render the order voidable on direct appeal, and refusing to decide whether a court’s transcript of the plea agreement terms may fulfill the writing requirement). -8- and be sentenced based on his open plea of guilt, or to withdraw his guilty plea and proceed to trial.

2021See Freeman v. Commonwealth, 14 Va. App. 126, 128 (1992), overruled in part on other grounds by United States v. Dixon, 509 U.S. 688, 712 (1993).

2021See Freeman v. Commonwealth, 14 Va. App. 126, 128 (1992), overruled in part on other grounds by United States v. Dixon, 509 U.S. 688, 712 (1993).

2021Failure to fulfill this writing requirement “constitutes reversible error.” Robinson v. Robinson, 50 Va. App. 189, 194 (2007). -5- In this case, the circuit court identified the statutory factors that impacted its decision and made numerous written findings of facts.

2020Courts “are not lightly to interfere” with lawful exercises of the “freedom of contract.” 3 Atlantic Greyhound Lines v. Skinner, 172 Va. 428, 439 (1939); see, e.g., Cooley v. Cooley, 220 Va. 749, 752 (1980) (“[M]arital property settlements entered into by competent parties upon valid consideration for lawful purposes are favored in the law and such will be enforced unless their illegality is clear and certain.”). - 11 - Here, the exception to the writing requirement in Code § 20-155 applies because the terms of the agreement were recorded and transcribed into the record by a court reporter, an

2020Courts “are not lightly to interfere” with lawful exercises of the “freedom of contract.” 3 Atlantic Greyhound Lines v. Skinner, 172 Va. 428, 439 (1939); see, e.g., Cooley v. Cooley, 220 Va. 749, 752 (1980) (“[M]arital property settlements entered into by competent parties upon valid consideration for lawful purposes are favored in the law and such will be enforced unless their illegality is clear and certain.”). - 11 - Here, the exception to the writing requirement in Code § 20-155 applies because the terms of the agreement were recorded and transcribed into the record by a court reporter, an

2015Co., 241 F.R.D. 534, 577 (D.Md.2007); State v. Espiritu, 117 Hawai'i 127 , 176 P.3d 885, 893 (2008) (noting that the best evidence rule is “particularly suited” to electronic evidence and admitting testimony about text messages under the best evidence rule when original messages and cell phone were unavailable and there was no evidence of proponent’s bad faith); Laughner v. State, 769 N.E.2d 1147, 1159 (Ind.Ct.App.2002) (holding that text messages sent between computers through an internet chat room were subject to the original writing rule and a printout of the messages was an original for pu

2015Co., 241 F.R.D. 534, 577 (D.Md.2007); State v. Espiritu, 117 Hawai'i 127 , 176 P.3d 885, 893 (2008) (noting that the best evidence rule is “particularly suited” to electronic evidence and admitting testimony about text messages under the best evidence rule when original messages and cell phone were unavailable and there was no evidence of proponent’s bad faith); Laughner v. State, 769 N.E.2d 1147, 1159 (Ind.Ct.App.2002) (holding that text messages sent between computers through an internet chat room were subject to the original writing rule and a printout of the messages was an original for pu

2015Co., 241 F.R.D. 534, 577 (D.Md.2007); State v. Espiritu, 117 Hawai'i 127 , 176 P.3d 885, 893 (2008) (noting that the best evidence rule is “particularly suited” to electronic evidence and admitting testimony about text messages under the best evidence rule when original messages and cell phone were unavailable and there was no evidence of proponent’s bad faith); Laughner v. State, 769 N.E.2d 1147, 1159 (Ind.Ct.App.2002) (holding that text messages sent between computers through an internet chat room were subject to the original writing rule and a printout of the messages was an original for pu

2015Co., 241 F.R.D. 534, 577 (D.Md.2007); State v. Espiritu, 117 Hawai'i 127 , 176 P.3d 885, 893 (2008) (noting that the best evidence rule is “particularly suited” to electronic evidence and admitting testimony about text messages under the best evidence rule when original messages and cell phone were unavailable and there was no evidence of proponent’s bad faith); Laughner v. State, 769 N.E.2d 1147, 1159 (Ind.Ct.App.2002) (holding that text messages sent between computers through an internet chat room were subject to the original writing rule and a printout of the messages was an original for pu

2013See, e.g., Pilati v. Pilati, 59 Va.App. 176, 181-82 , 717 S.E.2d 807, 809-10 (2011) (recognizing the statutory requirement that a court make "written findings and conclusions” can be satisfied by reciting them from the bench and reducing them to writing in an official transcript); accord 1974 Advisory Committee Notes to Fed.R.Crim.P. 11 (noting "four possible methods” of incorporating the plea agreement into the record, including that "the bargain could be stated orally and recorded by the court reporter, whose notes then must be preserved or transcribed”) (quoting People v. *548 West, 3 Cal.3

2013See, e.g., Pilati v. Pilati, 59 Va.App. 176, 181-82 , 717 S.E.2d 807, 809-10 (2011) (recognizing the statutory requirement that a court make "written findings and conclusions” can be satisfied by reciting them from the bench and reducing them to writing in an official transcript); accord 1974 Advisory Committee Notes to Fed.R.Crim.P. 11 (noting "four possible methods” of incorporating the plea agreement into the record, including that "the bargain could be stated orally and recorded by the court reporter, whose notes then must be preserved or transcribed”) (quoting People v. *548 West, 3 Cal.3

2013See, e.g., Pilati v. Pilati, 59 Va.App. 176, 181-82 , 717 S.E.2d 807, 809-10 (2011) (recognizing the statutory requirement that a court make "written findings and conclusions” can be satisfied by reciting them from the bench and reducing them to writing in an official transcript); accord 1974 Advisory Committee Notes to Fed.R.Crim.P. 11 (noting "four possible methods” of incorporating the plea agreement into the record, including that "the bargain could be stated orally and recorded by the court reporter, whose notes then must be preserved or transcribed”) (quoting People v. *548 West, 3 Cal.3

2013See, e.g., Pilati v. Pilati, 59 Va.App. 176, 181-82 , 717 S.E.2d 807, 809-10 (2011) (recognizing the statutory requirement that a court make "written findings and conclusions” can be satisfied by reciting them from the bench and reducing them to writing in an official transcript); accord 1974 Advisory Committee Notes to Fed.R.Crim.P. 11 (noting "four possible methods” of incorporating the plea agreement into the record, including that "the bargain could be stated orally and recorded by the court reporter, whose notes then must be preserved or transcribed”) (quoting People v. *548 West, 3 Cal.3

1991Richardson v. Richardson, 10 Va. App. 391, 398 (1990), deals with the writing requirement under Sections 20-155 and 20-149.