In cases of trial by jury, upon a finding that the defendant is guilty of a felony or a Class 1 misdemeanor, or upon a finding in the trial de novo of an appealed misdemeanor conviction that the defendant is guilty of a Class 1 misdemeanor, a separate proceeding limited to the ascertainment of punishment shall be held as soon as practicable before the same jury when ascertainment of punishment by jury has been requested by the accused as provided in subsection A of § 19.2-295. At such proceeding, the Commonwealth may present any victim impact testimony pursuant to § 19.2-295.3 and shall present the defendant's prior criminal history, including prior convictions and the punishments imposed, by certified, attested, or exemplified copies of the final order, including adult convictions and juvenile convictions and adjudications of delinquency. Prior convictions shall include convictions and adjudications of delinquency under the laws of any state, the District of Columbia, the United States or its territories. The Commonwealth shall provide to the defendant 14 days prior to trial notice of its intention to introduce copies of final orders evidencing the defendant's prior criminal history, including prior convictions and punishments imposed. Such notice shall include (i) the date of each prior conviction, (ii) the name and jurisdiction of the court where each prior conviction was had, (iii) each offense of which he was convicted, and (iv) the punishment imposed. Prior to commencement of the trial, the Commonwealth shall provide to the defendant photocopies of certified copies of the final orders that it intends to introduce at sentencing. After the Commonwealth has introduced in its case-in-chief of the sentencing phase such evidence of prior convictions or victim impact testimony, or both, or if no such evidence is introduced, the defendant may introduce relevant, admissible evidence related to punishment. Nothing in this section shall prevent the Commonwealth or the defendant from introducing relevant, admissible evidence in rebuttal.
If the jury cannot agree on a punishment, the court shall fix punishment.
If the sentence imposed pursuant to this section is subsequently set aside or found invalid solely due to an error in the sentencing proceeding, the court shall impanel a different jury to ascertain punishment, unless the defendant, the attorney for the Commonwealth and the court agree, in the manner provided in § 19.2-257, that the court shall fix punishment.
1994, cc. 828, 860, 862, 881; 1995, c. 567; 1996, c. 664; 2001, c. 389; 2007, cc. 388, 478; 2012, c. 134; 2020, Sp. Sess. I, c. 43.
Notes of Decisions
Cited in
166
cases (
21 in the last 5 years), 1995–2026 · leading case:
Auer v. Commonwealth, 621 S.E.2d 140 (Va. Ct. App. 2005).
Auer v. Commonwealth, 621 S.E.2d 140 (Va. Ct. App. 2005).
· cites it 48× “Rejecting Auer’s argument that evidence of a prior conviction based on a city ordinance was inadmissible under Code § 19.2-295.1, the trial court admitted the order into evidence.”
Booker v. Commonwealth, 723 S.E.2d 621 (Va. Ct. App. 2012).
· cites it 126× “He argued that Code § 19.2-295.1 allowed the Commonwealth to present in its case-in-chief at resentencing only the defendant's prior criminal history and a victim impact statement.”
Young v. Com., 643 S.E.2d 491 (Va. 2007).
· cites it 43× “In this appeal, we consider whether the Court of Appeals erred in remanding a robbery conviction for a new sentencing proceeding under Code § 19.2-295.1, rather than ordering a new trial on all issues, based *492 on the erroneous admission of evidence of other crimes during the…”
Washington v. Com., 634 S.E.2d 310 (Va. 2006).
· cites it 26× “1 did not specifically state whether a defendant's prior convictions should be introduced in the guilt or punishment phase of a trial, the en banc majority noted that neither Code § 19.2-295.1, which allows for bifurcated felony trials, nor Rule 3A:17.”
Walker v. Commonwealth, 486 S.E.2d 126 (Va. Ct. App. 1997).
· cites it 44× “1 provides, in pertinent part: In cases of trial by jury, upon a finding that the defendant is guilty of a felony, a separate proceeding limited to the ascertainment of punishment shall be held as soon as practicable before the same jury.... After the Commonwealth has introduced…”
Gillespie v. Commonwealth, 636 S.E.2d 430 (Va. 2006).
· cites it 36× “This appeal requires us to construe the language of Code § 19.2-295.1 concerning bifurcated trials in criminal cases.”
Seaton v. Commonwealth, 595 S.E.2d 9 (Va. Ct. App. 2004).
· cites it 12× “Rather, Seaton argues the orders are inadmissible as a matter of law under various statutes (Code § 19.2-295.1, § 17.1-123 and § 19.2-307) because the trial judge’s signature nowhere appears on the orders.”
Donald Dravell Robinson v. Commonwealth of Virginia, 811 S.E.2d 861 (Va. Ct. App. 2018).
· cites it 16× “The prosecutor argued that the entire, unredacted final order should be admitted in compliance with Code § 19.2-295.1. Appellant's counsel argued that leaving information about the felony charge would be "misleading" to the jury.”
Ngomondjami v. Commonwealth, 678 S.E.2d 281 (Va. Ct. App. 2009).
· cites it 36× “2-943, arguing the Commonwealth failed to comply with the notice requirements of Code § 19.2-295.1. I. Background “Where the sufficiency of the evidence is challenged after conviction, it is our duty to consider it in the light most favorable to the Commonwealth and give it all…”
Commonwealth of Virginia v. Rayshawn Torrell Greer, 760 S.E.2d 132 (Va. Ct. App. 2014).
· cites it 12× “She argued that the jury did not agree on a punishment authorized by the legislature and averred that unless the defendant and the court agreed to imposition of the mandatory sentence of five years, Code § 19.2-295.1 required the trial court to impanel a new sentencing jury.”
Bunn v. Commonwealth, 466 S.E.2d 744 (Va. Ct. App. 1996).
· cites it 24× “He contends that the trial court erred in its application of the bifurcated sentencing statute, Code § 19.2-295.1, by admitting evidence of three prior convictions for offenses that were committed after the charged offense.”
Gilliam v. Commonwealth, 465 S.E.2d 592 (Va. Ct. App. 1996).
· cites it 16× “Following conviction by the jury during the guilt phase of defendant’s bifurcated trial, a “separate proceeding limited to the ascertainment of punishment” was commenced in accordance with Code § 19.2-295.1, during which the Commonwealth sought to introduce certified copies of a…”
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