2006 Code of Virginia § 19.2-316.3 - Eligibility for participation in diversion center incarceration program; evaluation; sentencing; wi...

19.2-316.3. Eligibility for participation in diversion center incarcerationprogram; evaluation; sentencing; withdrawal or removal from program; paymentfor costs.

A. A defendant (i) who otherwise would have been sentenced to incarcerationfor a nonviolent felony as defined in 19.2-316.1 and who the courtdetermines requires more security or supervision than provided by intensiveprobation supervision or (ii) whose suspension of sentence would otherwise berevoked after a finding that the defendant has violated the terms andconditions of probation for a nonviolent felony as defined in 19.2-316.1,may be considered for commitment to a diversion center established under 53.1-67.7 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 45 days from the date of commitmentfor evaluation and diagnosis by the Department to determine suitability forparticipation in the Diversion Center Incarceration Program. The evaluationand diagnosis 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 commitment is in the best interest of theCommonwealth and the defendant and (ii) facilities are available for theconfinement of the defendant, the Department shall recommend to the court inwriting that the defendant be committed to the Diversion 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 pursuant to this section or (ii) following a findingthat the defendant has violated the terms and conditions of his probationpreviously ordered, shall place the defendant on probation pursuant to thissection. Such probation shall be conditioned upon the defendant's entry intoand successful completion of the Diversion Center Incarceration Program. Thecourt shall order that, upon successful completion of the program, thedefendant shall be released from confinement and be under intensive probationsupervision for a period to be specified by the court followed by anadditional period of regular probation of not less than one year. The courtshall further order that the defendant, prior to release from confinement,shall (a) make reasonable efforts to secure and maintain employment, (b)comply with a plan of restitution or community service, (c) comply with aplan for payment of fines, if any, and costs of court, and (d) undergosubstance abuse treatment, if necessary. The court may impose such otherterms and conditions of probation as it deems appropriate. A sentence to theDiversion Center Incarceration Program shall not be imposed in addition to anactive sentence 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 the occurrence of a new felony or Class 1 or Class 2 misdemeanor,has been determined under 53.1-165, may be considered by the Parole Boardfor commitment to a diversion center as established under 53.1-67.7 asfollows:

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 theDiversion 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 Diversion 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 and if the violator would otherwise be committed to theDepartment, the Parole Board shall restore the violator to parole supervisionconditioned upon entry into and successful completion of the Diversion CenterIncarceration Program. The Parole Board shall order that, upon successfulcompletion of the program, the violator shall be placed under parolesupervision for a period of not less than one year. The Parole Board mayimpose such other terms and conditions of parole or mandatory release as itdeems appropriate. The time spent in the program shall not be counted asservice of any part of a term of imprisonment for which he was sentenced uponhis conviction.

4. Upon the violator'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 parole or mandatory release, the Parole Board may revoke paroleor mandatory release and recommit the violator as provided in 53.1-165.

C. A person sentenced pursuant to this article shall be required to pay anamount to be determined by the Board of Corrections pursuant to regulation todefray the cost of his keep.

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