A. Any person convicted of two or more separate acts of violence when such offenses were not part of a common act, transaction or scheme, and who has been at liberty as defined in § 53.1-151 between each conviction, shall, upon conviction of a third or subsequent act of violence, be sentenced to life imprisonment and shall not have all or any portion of the sentence suspended, provided it is admitted, or found by the jury or judge before whom he is tried, that he has been previously convicted of two or more such acts of violence. For the purposes of this section, "act of violence" means (i) any one of the following violations of Chapter 4 (§ 18.2-30 et seq.) of Title 18.2:
a. First and second degree murder and voluntary manslaughter under Article 1 (§ 18.2-30 et seq.);
b. Mob-related felonies under Article 2 (§ 18.2-38 et seq.);
c. Any kidnapping or abduction felony under Article 3 (§ 18.2-47 et seq.);
d. Any malicious felonious assault or malicious bodily wounding under Article 4 (§ 18.2-51 et seq.);
e. Robbery under § 18.2-58 and carjacking under § 18.2-58.1;
f. Except as otherwise provided in § 18.2-67.5:2 or § 18.2-67.5:3, criminal sexual assault punishable as a felony under Article 7 (§ 18.2-61 et seq.); or
g. Arson in violation of § 18.2-77 when the structure burned was occupied or a Class 3 felony violation of § 18.2-79.
(ii) conspiracy to commit any of the violations enumerated in clause (i) of this section; and (iii) violations as a principal in the second degree or accessory before the fact of the provisions enumerated in clause (i) of this section.
B. Prior convictions shall include convictions under the laws of any state or of the United States for any offense substantially similar to those listed under "act of violence" if such offense would be a felony if committed in the Commonwealth.
The Commonwealth shall notify the defendant in writing, at least thirty days prior to trial, of its intention to seek punishment pursuant to this section.
C. Any person sentenced to life imprisonment pursuant to this section shall not be eligible for parole and shall not be eligible for any good conduct allowance or any earned sentence credits under Chapter 6 (§ 53.1-186 et seq.) of Title 53.1. However, any person subject to the provisions of this section, other than a person who was sentenced under subsection A of § 18.2-67.5:3 for criminal sexual assault convictions specified in subdivision f, (i) who has reached the age of sixty-five or older and who has served at least five years of the sentence imposed or (ii) who has reached the age of sixty or older and who has served at least ten years of the sentence imposed may petition the Parole Board for conditional release. The Parole Board shall promulgate regulations to implement the provisions of this subsection.
1994, cc. 828, 860, 862, 881; 1994, 2nd Sp. Sess., cc. 1, 2; 1995, c. 834; 1996, c. 539.
Notes of Decisions
Cited in
53
cases (
18 in the last 5 years), 1999–2026 · leading case:
Washington v. Com., 634 S.E.2d 310 (Va. 2006).
Washington v. Com., 634 S.E.2d 310 (Va. 2006).
· cites it 50× “Finding that Code § 19.2-297.1 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.”
Washington v. Commonwealth, 616 S.E.2d 774 (Va. Ct. App. 2005).
· cites it 92× “The trial court disagreed, holding that Code § 19.2-297.1—like all other Virginia recidivism statutes—permitted the introduction of the prior convictions during the guilt phase.”
Wendell Kirk Dean v. Commonwealth of Virginia, 734 S.E.2d 673 (Va. Ct. App. 2012).
· cites it 22× “On appeal, he contends the trial court erred in admitting evidence of two prior Maryland convictions for robbery because these convictions were not for offenses “substantially similar” to those listed in *212 Code § 19.2-297.1. We agree. Thus, we reverse appellant’s convictions…”
Muhammad v. Com., 619 S.E.2d 16 (Va. 2005).
· cites it 9× “Code § 19.2-297.1 includes, among the acts of violence the offenses of first and second degree murder, voluntary manslaughter, malicious wounding, and robbery.”
Curtis Lee Mason v. Commonwealth of Virginia, 770 S.E.2d 239 (Va. Ct. App. 2015).
· cites it 8× “Under Code § 19.2-297.1, prior convictions include “convictions under the laws of any state or of the United States for any offense substantially similar to those listed under ‘act of violence.”
Johnson v. Commonwealth, 712 S.E.2d 751 (Va. Ct. App. 2011).
· cites it 3× “2-38, “[a]ny collection of people, assembled for the purpose and with the intention of committing an assault or a battery upon any person or an act of violence as defined in § 19.2-297.1, without authority of law, shall be deemed a ‘mob.”
Paiz v. Commonwealth, 682 S.E.2d 71 (Va. Ct. App. 2009).
· cites it 10× “He reasons that, under the mob theory of collective responsibility, he can only be convicted of an offense committed by some other member of the mob if that offense is an act of violence as defined in Code § 19.2-297.1. Because Code § 18.2-53.”
Washington v. Commonwealth, 604 S.E.2d 92 (Va. Ct. App. 2004).
· cites it 33× “We hold that the felony convictions, which must be proved to invoke Code § 19.2-297.1, are not elements of the malicious wounding offense proscribed by Code § 18.”
Phillips v. Commonwealth, 694 S.E.2d 805 (Va. Ct. App. 2010).
· cites it 6× “1 defines an act of violence as any of the "felony offenses described in Code § 19.2-297.1." Second-degree murder is one of these offenses.”
Phillip C. BAY, S/K/A Philip C. Bay v. COMMONWEALTH of Virginia, 729 S.E.2d 768 (Va. Ct. App. 2012).
“1 committed with the intent to (i) intimidate the civilian population at large; or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation. Thus, he contends that because each resident of Virginia Beach is a part…”
Johnson v. Commonwealth, 709 S.E.2d 175 (Va. Ct. App. 2011).
“2-38 defines a “mob” as “[a]ny collection of people, assembled for the purpose and with the intention of committing an assault or a battery upon any person or an act of violence as defined in [Code] § 19.2-297.1, without authority of law...”
— Va. Code Ann. § 19.2-297.1(A) — 9 cases
Washington v. Com., 634 S.E.2d 310 (Va. 2006).
“Finding that Code § 19.2-297.1 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.”
Washington v. Commonwealth, 616 S.E.2d 774 (Va. Ct. App. 2005).
“The trial court disagreed, holding that Code § 19.2-297.1—like all other Virginia recidivism statutes—permitted the introduction of the prior convictions during the guilt phase.”
Wendell Kirk Dean v. Commonwealth of Virginia, 734 S.E.2d 673 (Va. Ct. App. 2012).
“On appeal, he contends the trial court erred in admitting evidence of two prior Maryland convictions for robbery because these convictions were not for offenses “substantially similar” to those listed in *212 Code § 19.2-297.1. We agree. Thus, we reverse appellant’s convictions…”
Curtis Lee Mason v. Commonwealth of Virginia, 770 S.E.2d 239 (Va. Ct. App. 2015).
“Under Code § 19.2-297.1, prior convictions include “convictions under the laws of any state or of the United States for any offense substantially similar to those listed under ‘act of violence.”
— Va. Code Ann. § 19.2-297.1(A)(a) — 1 case
Phillips v. Commonwealth, 694 S.E.2d 805 (Va. Ct. App. 2010).
“1 defines an act of violence as any of the "felony offenses described in Code § 19.2-297.1." Second-degree murder is one of these offenses.”
— Va. Code Ann. § 19.2-297.1(A)(i) — 1 case
Johnson v. Commonwealth, 712 S.E.2d 751 (Va. Ct. App. 2011).
“2-38, “[a]ny collection of people, assembled for the purpose and with the intention of committing an assault or a battery upon any person or an act of violence as defined in § 19.2-297.1, without authority of law, shall be deemed a ‘mob.”
— Va. Code Ann. § 19.2-297.1(A)(i)(a) — 1 case
— Va. Code Ann. § 19.2-297.1(A)(i)(e) — 1 case
— Va. Code Ann. § 19.2-297.1(A)(i)(g) — 1 case
— Va. Code Ann. § 19.2-297.1(A)(ii) — 1 case
— Va. Code Ann. § 19.2-297.1(B) — 4 cases
Wendell Kirk Dean v. Commonwealth of Virginia, 734 S.E.2d 673 (Va. Ct. App. 2012).
“On appeal, he contends the trial court erred in admitting evidence of two prior Maryland convictions for robbery because these convictions were not for offenses “substantially similar” to those listed in *212 Code § 19.2-297.1. We agree. Thus, we reverse appellant’s convictions…”
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