2006 Code of Virginia § 19.2-316.1 - Eligibility for participation; evaluation; sentencing; withdrawal or removal from program

19.2-316.1. Eligibility for participation; evaluation; sentencing;withdrawal or removal from program.

An individual may be eligible to be sentenced as provided herein if he (i) isconvicted on or after January 1, 1991, of a nonviolent felony, or is deemedby the court to be nonviolent in character, (ii) is no older than twenty-fourat the time of conviction for the offense, (iii) has never before beenincarcerated upon a felony conviction in a correctional facility of anystate, the District of Columbia, the United States or its territories, and(iv) has not been confined for more than twelve months nor for more than oneterm of confinement in a local correctional facility of any suchjurisdiction; however, confinement for misdemeanor traffic convictions shallnot be considered in determining eligibility.

Following conviction and prior to sentencing, upon motion of the defendant,the court may order such defendant committed to the Department of Correctionsfor a period not to exceed sixty days from the date of referral or the dateof revocation of ordinary probation, as the case may be, for evaluation anddiagnosis by the Department to determine suitability for participation in theBoot Camp Incarceration Program established pursuant to 53.1-67.1. Theevaluation and diagnosis shall include a complete physical and mentalexamination of the defendant and may be conducted by the Department ofCorrections at any state or local facility, probation and parole office, orother location deemed appropriate by the Department.

The Department of Corrections shall conduct the evaluation and diagnosis andshall review all aspects of the case within sixty days from the date ofconviction or revocation of ordinary probation and shall recommend that thedefendant be committed to the Boot Camp Incarceration Program upon findingthat (i) such defendant is physically and emotionally suitable for theprogram, (ii) such commitment is in the best interest of the Commonwealth andthe defendant, and (iii) facilities are available for confinement of thedefendant.

Upon receipt of such a recommendation and written consent of the defendant toparticipate in the program, and a determination by the court that thedefendant will benefit from the program and is capable of returning tosociety as a productive citizen following a reasonable amount of intensivesupervision and rehabilitation including program components set forth in 53.1-67.1, and the defendant would otherwise be committed to the Departmentof Corrections for a period of confinement, the court shall impose suchsentence of confinement as authorized by law and suspend the sentence andplace the defendant on probation. Such probation shall be conditioned uponthe defendant's entry into and successful completion of a Boot CampIncarceration Program established by the Department of Corrections pursuantto 53.1-67.1. The court may impose such other terms and conditions ofprobation as it deems appropriate.

Upon the defendant's (i) voluntary withdrawal from the program, (ii) removalfrom the program by the Department of Corrections for intractable behavior,or (iii) refusal to comply with the terms and conditions of probation imposedby the court, the defendant shall be brought before the court for hearing.Upon a finding that the defendant voluntarily chooses to withdraw from theprogram, exhibited intractable behavior as defined herein, or refused tocomply with terms and conditions of probation, the court may revoke all orpart of the suspended sentence and probation. Upon revocation of thesuspension and probation, the provisions of 53.1-191, 53.1-196 and53.1-198 through 53.1-201 shall apply retroactively to the date of sentencing.

Upon the defendant's failure to complete the program or to comply with theterms and conditions of probation imposed by the court through no fault ofhis own, the defendant shall be brought before the court for hearing.Notwithstanding the provisions for pronouncement of sentence as set forth in 19.2-306, the court, after hearing, may pronounce whatever sentence wasoriginally imposed, pronounce a reduced sentence, or impose such other termsand conditions of probation as it deems appropriate.

"Intractable behavior" means that behavior which, in the determination ofthe Department of Corrections, (i) indicates an inmate's unwillingness orinability to conform his behavior to that necessary to his successfulcompletion of the program or (ii) is so disruptive as to threaten thesuccessful completion of the program by other participants.

"Nonviolent felony" means any felony except those considered an "act ofviolence" pursuant to 19.2-297.1 or any attempt to commit any of thosecrimes.

(1990, c. 474; 1992, c. 861; 1994, c. 926; 1995, c. 117; 1996, cc. 809, 938;2000, c. 769.)

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