If the charge against the accused is a crime the penalty for which may be incarceration, and the accused is not represented by counsel, the court shall ascertain by oral examination of the accused whether or not the accused desires to waive his right to counsel.
In the event the accused desires to waive his right to counsel, and the court ascertains that such waiver is voluntary and intelligently made, then the court shall provide the accused with a statement to be executed by the accused to document his waiver. The statement shall be in a form designed and provided by the Supreme Court. Any executed statement herein provided for shall be filed with and become a part of the record of such proceeding.
In the absence of a waiver of counsel by the accused, and if he shall claim that he is indigent, the court shall proceed in the same manner as is provided in § 19.2-159.
Should the defendant refuse or otherwise fail to sign either of the statements described in this section and § 19.2-159, the court shall note such refusal on the record. Such refusal shall be deemed to be a waiver of the right to counsel, and the court, after so advising the accused and offering him the opportunity to rescind his refusal shall, if such refusal is not rescinded and the accused's signature given, proceed to hear and decide the case. However, if, prior to the commencement of the trial, the court states in writing, either upon the request of the attorney for the Commonwealth or, in the absence of the attorney for the Commonwealth, upon the court's own motion, that a sentence of incarceration will not be imposed if the defendant is convicted, the court may try the case without appointing counsel, and in such event no sentence of incarceration shall be imposed.
Code 1950, § 19.1-241.9; 1973, c. 316; 1975, c. 495; 1978, c. 365; 1979, c. 468; 1983, c. 97; 1989, c. 385.
Notes of Decisions
Cited in
20
cases (
4 in the last 5 years), 1978–2025 · leading case:
Watkins v. Commonwealth, 494 S.E.2d 859 (Va. Ct. App. 1998).
Watkins v. Commonwealth, 494 S.E.2d 859 (Va. Ct. App. 1998).
· cites it 2× “Code § 19.2-160 provides, in relevant part: If the charge against the accused is a crime the penalty for which may be incarceration, and the accused is not represented by counsel, the court shall ascertain by oral examination of the accused whether or not the accused desires to…”
Sargent v. Commonwealth, 360 S.E.2d 895 (Va. Ct. App. 1987).
· cites it 4× “2-160 provided: If the charge against the accused is a misdemeanor the penalty for which may be by confinement in jail, and the accused is not represented by counsel, the court shall ascertain by oral examination of the accused whether or not the accused desires to waive his…”
Bolden v. Commonwealth, 397 S.E.2d 534 (Va. Ct. App. 1990).
· cites it 4× “Former Code § 19.2-160 (in effect at the time of Bolden's trial) provides: If the charge against the accused is a misdemeanor the penalty for which may be by confinement in jail, and the accused is not represented by counsel, the court shall ascertain by oral examination of the…”
Van Sant v. Commonwealth, 295 S.E.2d 883 (Va. 1982).
· cites it 6× “*274 Code § 19.2-160 provides that in misdemeanor cases where the punishment of confinement in jail may be imposed the court shall determine by oral examination whether the accused desires to waive his right to counsel.”
Bobby Ray Edwards v. Commonwealth, 462 S.E.2d 566 (Va. Ct. App. 1995).
· cites it 4× “Code § 19.2-160, in pertinent part, provides: If the charge against the accused is a crime the penalty for which may be incarceration, and the accused is not represented by counsel, the court shall ascertain by oral examination of the accused whether or not the accused desires…”
Lemke v. Commonwealth, 241 S.E.2d 789 (Va. 1978).
· cites it 2× “No waiver was signed by Lemke in the form prescribed by Code § 19.2-160. The trial court merely determined that the attorney whom Lemke sought to employ had not been employed and was not available.”
Van Sant v. Gondles, 596 F. Supp. 484 (E.D. Va. 1983).
· cites it 2× “The Code of Virginia, Section 19.2-160, provides that in misdemeanor cases in which imprisonment is possible, “the court shall ascertain by oral examination of the accused whether or not the accused desires to waive his right to counsel”, and provides that the accused sign a…”
Victor Jermaine Russell Jackson v. Commonwealth of Virginia (Va. Ct. App. 2023).
· cites it 6× ““In the absence of a waiver of counsel by the accused, and if he shall claim that he is indigent, the court shall proceed in the same manner as is provided in [Code] § 19.2-159.” Id. If the defendant then refuses or otherwise fails to sign either the waiver form under Code § 19.”
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