                                 CODE OF VIRGINIA

RELIEF UNDER WRIT (§ 19.2-327.13)

Upon consideration of the petition, the response by the Commonwealth, previous
records of the case, the record of any hearing held under this chapter, and, if
applicable, any findings certified from the circuit court pursuant to an order
issued under this chapter, the Court of Appeals, if it has not already summarily
dismissed the petition, shall either dismiss the petition for failure to state a
claim or assert grounds upon which relief shall be granted, or the Court shall
(i) dismiss the petition for failure to establish previously unknown,
unavailable, or untested evidence sufficient to justify the issuance of the
writ, or (ii) only upon a finding that the petitioner has proven by a
preponderance of the evidence all of the allegations contained in clauses (iv)
through (viii) of subsection A of § 19.2-327.11, and upon a finding that no
rational trier of fact would have found proof of guilt or delinquency beyond a
reasonable doubt, grant the writ, and vacate the conviction or finding of
delinquency, or in the event that the Court finds that no rational trier of fact
would have found sufficient evidence beyond a reasonable doubt as to one or more
elements of the offense for which the petitioner was convicted or adjudicated
delinquent, but the Court finds that there remains in the original trial record
evidence sufficient to find the petitioner guilty or delinquent beyond a
reasonable doubt of a lesser included offense, the Court shall modify the order
of conviction or delinquency accordingly and remand the case to the circuit
court that entered the conviction or adjudication of delinquency for
resentencing. The burden of proof in a proceeding brought pursuant to this
chapter shall be upon the convicted or delinquent person seeking relief. If a
writ vacating a conviction or adjudication of delinquency is granted, and no
appeal is made to the Supreme Court, or the Supreme Court denies the
Commonwealth&#8217;s petition for appeal or upholds the decision of the Court of
Appeals to grant the writ, the Court of Appeals shall forward a copy of the writ
to the circuit court, where an order of expungement shall be immediately
granted.

HISTORY: 2004, c. 1024; 2007, cc. 465, 824, 883, 905; 2013, cc. 170, 180; 2020,
cc. 993, 994.