9.20 Pronouncement and Allocution

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

9.20 PRONOUNCEMENT AND ALLOCUTION

9.2001 Pronouncement. After a finding of guilty, the sentence or decision to suspend imposition of sentence must be announced without unreasonable delay. A defendant convicted of first-degree murder must be committed to jail. In all other cases, the court may commit the defendant to jail, continue bail, or alter bail. ⁷¹¹

9.2002 Allocution. Before pronouncing sentence, the court must ask the defendant if he or she wants to make a statement or give any reason why the sentence should not be imposed. ⁷¹² Failure of the transcript to show that the court personally extended the right to speak is not dispositive. If the

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final judgment order states that allocution was offered, the appellate court will assume that the right was actually given. ⁷¹³

Omission of allocution is reversible error, but relief may be denied if the omission did not result in prejudice. ⁷¹⁴ Because the error only affects the sentence, a new trial will not be given for this reason alone. The proper procedure is to reverse the judgment as to the sentence alone and remand for proper sentencing. ⁷¹⁵

Failure to comply with the statute is neither a jurisdictional nor a constitutional error. ⁷¹⁶ Therefore, the error must be raised on direct appeal. Collateral attack of the sentence, however, may be proper if the defendant was affirmatively denied an opportunity to speak before sentencing. ⁷¹⁷

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Notes:

^[711] Va. Code § 19.2-298.

^[712] Id.; see Bassett v. Commonwealth, 222 Va. 844, 284 S.E.2d 844 (1981) (the right of allocution is the right to speak after the fact-finder determines guilt but before the judge imposes sentence).

^[713] Stamper v. Commonwealth, 220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979); see cases collected at A.G. Barnett, Annotation, 96 A.L.R.2d 1292, 1325 (1964).

^[714] Barnett, 96 A.L.R.2d at 1335.

^[715] Id. at 1314-16 (federal cases), 1337-38 (state cases).

^[716] Hill v. United States, 368 U.S. 424, 428 (1962) (interpreting Fed. R. Crim. P. 32(a)).

^[717] Cf. id. at 429 (Supreme Court postponed the issue of whether collateral relief under 28 U.S.C. § 2255 is available in that situation).