19.2-327.5 - Relief under writ. - Virginia Statutes

§ 19.2-327.5. Relief under writ.

Upon consideration of the petition, the response by the Commonwealth,previous records of the case, the record of any hearing held under thischapter and the record of any hearings held pursuant to § 19.2-327.1, and ifapplicable, any findings certified from the circuit court pursuant to §19.2-327.4, the Court shall either dismiss the petition for failure to statea claim or assert grounds upon which relief shall be granted; or upon ahearing the Court shall (i) dismiss the petition for failure to establishallegations sufficient to justify the issuance of the writ, or (ii) only upona finding of clear and convincing evidence that the petitioner has proven allof the allegations contained in clauses (iv) through (viii) of subsection Aof § 19.2-327.3, and upon a finding that no rational trier of fact could havefound proof of guilt beyond a reasonable doubt, grant the writ, and vacatethe conviction, or in the event that the Court finds that no rational trierof fact could have found sufficient evidence beyond a reasonable doubt as toone or more elements of the offense for which the petitioner was convicted,but the Court finds that there remains in the original trial record evidencesufficient to find the petitioner guilty beyond a reasonable doubt of alesser included offense, the court shall modify the conviction accordinglyand remand the case to the circuit court for resentencing. The burden ofproof in a proceeding brought pursuant to this chapter shall be upon theconvicted person seeking relief. If a writ vacating a conviction is granted,the Court shall forward a copy of the writ to the circuit court, where anorder of expungement shall be immediately granted.

(2001, cc. 873, 874; 2007, cc. 465, 824, 883, 905; 2009, cc. 139, 320.)