A. Whoever, having been released pursuant to this chapter or § 19.2-319 or on a summons pursuant to § 19.2-73 or 19.2-74, willfully fails to appear before any court or judicial officer as required, shall, after notice to all interested parties, incur a forfeiture of any security that may have been given or pledged for his release, unless one of the parties can show good cause for excusing the absence, or unless the court, in its sound discretion, shall determine that neither the interests of justice nor the power of the court to conduct orderly proceedings will be served by such forfeiture. As used in this subsection, "willfully fails to appear" means intentional conduct for the purpose of avoiding the judicial process. Prior isolated instances of nonappearance, including convictions based on such nonappearance, are not evidence that a failure to appear was willful; however, a prior pattern of recurrent and purposeful conduct to evade prosecution may be considered factors in assessing willfulness. In determining whether a nonappearance was willful, the court shall consider mitigating circumstances, including (i) an illness, an injury, or any other unforeseen medical condition; (ii) unforeseen transportation problems; (iii) an inability to obtain adequate dependent care; and (iv) any affirmative steps taken by a person to communicate or remedy his failure to appear before any court or judicial officer as required.
B. Any person (i) charged with a felony offense or (ii) convicted of a felony offense and execution of sentence is suspended pursuant to § 19.2-319 who willfully fails to appear before any court as required is guilty of a Class 6 felony.
C. Any person (i) charged with a misdemeanor offense or (ii) convicted of a misdemeanor offense and execution of sentence is suspended pursuant to § 19.2-319 who willfully fails to appear before any court as required is guilty of a Class 1 misdemeanor.
D. The provisions of this section shall not apply to any person who is (i) incarcerated in any correctional facility or (ii) (a) detained in any state or federal facility or (b) in the custody of a law-enforcement officer at the time such person is required to appear before any court or judicial officer.
Code 1950, § 19.1-109.7; 1973, c. 485; 1975, c. 495; 1981, c. 382; 1982, c. 271; 1999, c. 821; 2024, c. 109; 2026, cc. 241, 242.
Notes of Decisions
Andy Chavez v. Commonwealth of Virginia, 817 S.E.2d 330 (Va. Ct. App. 2018).
· cites it 27× “2-128(B) making timely notice an element of the offense of felony failure to appear, and we will not rewrite the statute based upon this Court’s holding in Thomas, as appellant’s argument would require.”
Alisha Renee Merritt v. Commonwealth of Virginia, 820 S.E.2d 379 (Va. Ct. App. 2018).
· cites it 57× “Alisha Renee Merritt was convicted of failure to appear in violation of Code § 19.2-128. As she did in the trial court, she argues on appeal that the evidence was insufficient to support her conviction.”
Johnson, Ronald v. Commonwealth, 793 S.E.2d 321 (Va. 2016).
· cites it 22× “" The plain language of Code § 19.2-128 indicates that the legislature intended to establish each felony charge as the unit of **742 prosecution for a failure to appear.”
Bowling v. Commonwealth, 654 S.E.2d 354 (Va. Ct. App. 2007).
· cites it 30× “A jury convicted appellant, Curtis Wayne Bowling, of failure to appear pursuant to Code § 19.2-128. Bowling argues that this conviction should be reversed.”
Hunter v. Commonwealth, 427 S.E.2d 197 (Va. Ct. App. 1993).
· cites it 40× “County of Amherst, upon their oaths present that GARY PATRICK HUNTER, heretofore, to-wit: on the 27th day of SEPTEMBER, 1989, in the said County of Amherst, and within the jurisdiction of the Circuit Court of Amherst County did unlawfully and feloniously and willfully fail to…”
Williams v. Commonwealth, 706 S.E.2d 530 (Va. Ct. App. 2011).
· cites it 14× “Tony Williams (appellant) appeals from his convictions for two counts of misdemeanor failure to appear, in violation of Code § 19.2-128, and two counts of failure to provide support for his minor children, in violation of Code § 20-61.”
Thomas v. Commonwealth, 633 S.E.2d 229 (Va. Ct. App. 2006).
· cites it 6× “*609 In this case, Thomas could be found guilty of violating Code § 19.2-128 only if he “received timely notice” of when and where he was supposed to appear for court.”
Edmonds v. Commonwealth, 597 S.E.2d 210 (Va. Ct. App. 2004).
· cites it 12× “2-104, and for felony failure to appear, in violation of Code § 19.2-128. She was found guilty on both counts in a bench trial on December 18, 2002 and sentenced to serve five years in prison, four years suspended, on the larceny charge and three years in prison, two years and…”
Charles Dean Lawson v. Commonwealth of VA, 561 S.E.2d 775 (Va. Ct. App. 2002).
· cites it 20× “, as required after notice, on a felony charge,” in violation of Code § 19.2-128. At trial, the prosecutor informed the judge that on December 16, 1999, Lawson “came to court, but then left before his case was called that day.”
Cruz v. Commonwealth, 482 S.E.2d 880 (Va. Ct. App. 1997).
· cites it 8× “Code § 19.2-128. [15] *892 Furthermore, the costs incurred by our system of justice must be balanced against the constitutional framework of its operation.”
Nelson v. Commonwealth, 650 S.E.2d 562 (Va. Ct. App. 2007).
· cites it 6× “Marquise Leon Nelson (“Nelson”) appeals his conviction for failure to appear, in violation of Code § 19.2-128(B). He argues the evidence was insufficient to prove that he willfully failed to appear in court and that the trial court erred in instructing the members of the jury…”
Riley v. Commonwealth, 412 S.E.2d 724 (Va. Ct. App. 1992).
· cites it 4× “The document was the only evidence offered by Riley or the Commonwealth relating to the charge of willfully failing to appear in general district court. The jury convicted Riley of the charges of possession of cocaine in violation of Code § 18.”
Va. Code Ann. § 19.2-128(A): 1 case
Va. Code Ann. § 19.2-128(B): 47 cases
Andy Chavez v. Commonwealth of Virginia, 817 S.E.2d 330 (Va. Ct. App. 2018).
“2-128(B) making timely notice an element of the offense of felony failure to appear, and we will not rewrite the statute based upon this Court’s holding in Thomas, as appellant’s argument would require.”
Hunter v. Commonwealth, 427 S.E.2d 197 (Va. Ct. App. 1993).
“County of Amherst, upon their oaths present that GARY PATRICK HUNTER, heretofore, to-wit: on the 27th day of SEPTEMBER, 1989, in the said County of Amherst, and within the jurisdiction of the Circuit Court of Amherst County did unlawfully and feloniously and willfully fail to…”
Johnson, Ronald v. Commonwealth, 793 S.E.2d 321 (Va. 2016).
“" The plain language of Code § 19.2-128 indicates that the legislature intended to establish each felony charge as the unit of **742 prosecution for a failure to appear.”
Bowling v. Commonwealth, 654 S.E.2d 354 (Va. Ct. App. 2007).
“A jury convicted appellant, Curtis Wayne Bowling, of failure to appear pursuant to Code § 19.2-128. Bowling argues that this conviction should be reversed.”
Alisha Renee Merritt v. Commonwealth of Virginia, 820 S.E.2d 379 (Va. Ct. App. 2018).
“Alisha Renee Merritt was convicted of failure to appear in violation of Code § 19.2-128. As she did in the trial court, she argues on appeal that the evidence was insufficient to support her conviction.”
Va. Code Ann. § 19.2-128(B)(i): 1 case
Charles Dean Lawson v. Commonwealth of VA, 561 S.E.2d 775 (Va. Ct. App. 2002).
“, as required after notice, on a felony charge,” in violation of Code § 19.2-128. At trial, the prosecutor informed the judge that on December 16, 1999, Lawson “came to court, but then left before his case was called that day.”
Va. Code Ann. § 19.2-128(C): 4 cases
Alisha Renee Merritt v. Commonwealth of Virginia, 820 S.E.2d 379 (Va. Ct. App. 2018).
“Alisha Renee Merritt was convicted of failure to appear in violation of Code § 19.2-128. As she did in the trial court, she argues on appeal that the evidence was insufficient to support her conviction.”
Williams v. Commonwealth, 706 S.E.2d 530 (Va. Ct. App. 2011).
“Tony Williams (appellant) appeals from his convictions for two counts of misdemeanor failure to appear, in violation of Code § 19.2-128, and two counts of failure to provide support for his minor children, in violation of Code § 20-61.”
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