9.11 Pleas

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

9.11 PLEAS

9.1101 Permissible Pleas.

A. In General. An accused may plead not guilty, guilty, or nolo contendere, whether to a misdemeanor or felony. ⁵⁰³ The court may not refuse to accept a plea of guilty to the whole of an indictment tendered at any time before verdict. ⁵⁰⁴ Nor may the court refuse to accept a plea of nolo contendere. ⁵⁰⁵

B. Failure to Plead. If the accused fails to plead in a felony case, the court must enter a plea of not guilty. ⁵⁰⁶ It is thus not possible to make a nolo contendere plea to a felony charge by having the accused stand mute when asked how he or she pleads. Nor does the absence of the accused charged with a felony empower the court to enter a plea for him or her, since the defendant must be personally present at every stage of his or her felony trial. ⁵⁰⁷ In misdemeanor cases, if the defendant does not appear, or makes no plea, the case is tried as upon a plea of not guilty. ⁵⁰⁸

C. Effect of No Proper Plea. In a felony case when no proper plea has been made (for example, when the court neglects to enter a plea for a silent defendant) the judgment is void and on a habeas corpus petition it will be vacated. ⁵⁰⁹ It has long been held that no plea is necessary in a misdemeanor case. ⁵¹⁰

D. Plea to a Lesser Offense. The court may refuse to accept a plea of guilty to a lesser-included offense. ⁵¹¹ This is true even when the

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commonwealth's attorney consents, since the acceptance of the plea is in the discretion of the court and is tantamount to an amendment of the indictment.

E. Conditional Plea of Guilty. With the consent of the court and the commonwealth's attorney, an accused may enter a conditional plea of guilty in a misdemeanor or felony case in circuit court, reserving the right on appeal to review an adverse ruling on any specified pretrial motion. If successful on appeal, the accused may withdraw the plea of guilty. ⁵¹² However, defense counsel must make sure that the Commonwealth's statutorily required consent to a conditional plea is express. Where defense counsel notified the trial judge of his intent to appeal a suppression ruling, and the Commonwealth was silent, the court ruled that there was no conditional plea, and appeal was waived. ⁵¹³ If the court enters a conditional plea without the express consent of the Commonwealth, the defendant's appeal will be dismissed. ⁵¹⁴

9.1102 Procedure for Entering Guilty Plea. In felony cases, the guilty plea must be made personally by the accused, after...