2006 Code of Virginia § 19.2-316.2 - Eligibility for participation in detention center incarceration program; evaluation; sentencing; wi...

19.2-316.2. Eligibility for participation in detention center incarcerationprogram; evaluation; sentencing; withdrawal or removal from program.

A. A defendant who otherwise would have been sentenced to incarceration for anonviolent felony as defined in 19.2-316.1 or who has been previouslyincarcerated for a nonviolent felony as defined in 19.2-316.1 but otherwisemeets the following criteria and (i) who is determined by the court to needmore security or supervision than provided by the diversion centerincarceration program under 53.1-67.7, (ii) whose age or physical conditiondisqualifies him from the Boot Camp Incarceration Program under 53.1-67.1,and (iii) who can benefit from a regimented environment and structuredprogram, may be considered for commitment to a detention center establishedunder 53.1-67.8 as follows:

1. Following conviction and prior to imposition of sentence or following afinding that the defendant's probation should be revoked, upon motion of thedefendant or the attorney for the Commonwealth or upon the court's ownmotion, the court may order such defendant committed to the Department ofCorrections for a period not to exceed 60 days from the date of commitmentfor evaluation and diagnosis by the Department to determine suitability forparticipation in the Detention Center Incarceration Program. The evaluationand diagnosis shall include a complete physical and mental examination of thedefendant and may be conducted by the Department at any state or localcorrectional facility, probation and parole office, or other location deemedappropriate by the Department.

2. Upon determination that (i) such defendant is physically and emotionallysuited for the program, (ii) such commitment is in the best interest of theCommonwealth and the defendant, and (iii) facilities are available for theconfinement of the defendant, the Department shall recommend to the court inwriting that the defendant be committed to the Detention Center IncarcerationProgram.

3. Upon receipt of such a recommendation and a determination by the courtthat the defendant will benefit from the program and is capable of returningto society as a productive citizen following successful completion of theprogram, and if the defendant would otherwise be committed to the Department,the court (i) shall impose sentence, suspend the sentence, and place thedefendant on probation or (ii) following a finding that the defendant hasviolated the terms and conditions of his probation previously ordered, shallplace the defendant on probation pursuant to this section. Such probationshall be conditioned upon the defendant's entry into and successfulcompletion of the Detention Center Incarceration Program. The court shallorder that, upon successful completion of the program, the defendant shall bereleased from confinement and be under intensive probation supervision for aperiod to be specified by the court followed by an additional period ofregular probation of not less than one year. The court shall further orderthat the defendant, following release from confinement, shall (a) makereasonable efforts to secure and maintain employment, (b) comply with a planof restitution or community service, (c) comply with a plan for payment offines, if any, and costs of court, and (d) undergo appropriate substanceabuse treatment, if necessary. The court may impose such other terms andconditions of probation as it deems appropriate. A sentence to the DetentionCenter Incarceration Program shall not be imposed as an addition to an activesentence to a state correctional facility.

4. Upon the defendant's (i) voluntary withdrawal from the program, (ii)removal from the program by the Department for intractable behavior asdefined in 19.2-316.1, or (iii) failure to comply with the terms andconditions of probation, the court shall cause the defendant to show causewhy his probation and suspension of sentence should not be revoked. Upon afinding that the defendant voluntarily withdrew from the program, was removedfrom the program by the Department for intractable behavior, or failed tocomply with the terms and conditions of probation, the court may revoke allor part of the probation and suspended sentence and commit the defendant asotherwise provided in this chapter.

B. Any offender as described in 19.2-316.1 paroled under 53.1-155 ormandatorily released under 53.1-159 and for whom probable cause that aviolation of parole or of the terms and conditions of mandatory release,other than for the occurrence of a new felony or Class 1 or Class 2misdemeanor, has been determined under 53.1-165, may be considered by theParole Board for commitment to a detention center as established under 53.1-67.8 as follows:

1. The Parole Board or its authorized hearing officer, with the violator'sconsent, may order the violator to be evaluated and diagnosed by theDepartment of Corrections to determine suitability for participation in theDetention Center Incarceration Program. The evaluation and diagnosis may beconducted by the Department at any state or local correctional facility,probation or parole office, or other location deemed appropriate by theDepartment.

2. Upon determination that (i) such commitment is in the best interest of theCommonwealth and the violator and (ii) facilities are available for theconfinement of the violator, the Department shall recommend to the ParoleBoard in writing that the violator be committed to the Detention CenterIncarceration Program. The Department shall have the final authority todetermine an individual's suitability for the program.

3. Upon receipt of such a recommendation and a determination by the ParoleBoard that the violator will benefit from the program and is capable ofreturning to society as a productive citizen following successful completionof the program, the violator shall be placed under parole supervision for aperiod of not less than one year. The Parole Board may impose such otherterms and conditions of parole or mandatory release as it deems appropriate.The time spent in the program shall not be counted as service of any part ofa term of imprisonment for which he was sentenced upon his conviction.

4. Upon the violator's (i) voluntary withdrawal from the program, (ii)removal from the program for intractable behavior as defined in 19.2-316.1,or (iii) failure to comply with the terms and conditions of parole ormandatory release, the Department shall conduct a preliminary paroleviolation hearing to determine if probable cause exists to revoke his paroleor mandatory release. Upon a finding that the violator voluntarily withdrewfrom the program, was removed from the program by the Department forintractable behavior, or failed to comply with the terms and conditions ofparole or mandatory release, the Parole Board shall revoke parole ormandatory release and recommit the violator as provided in 53.1-165.

(1994, 2nd Sp. Sess., cc. 1, 2; 1995, cc. 502, 574; 2000, c. 338; 2002, c.604; 2005, cc. 512, 580.)