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SVP Should Be Supervised in Virginia

A Virginia circuit court did not have authority under the Sexually Violent Predators Act to conditionally release appellee, an SVP, to a court-supervised agency in the District of Columbia; the Virginia Supreme Court says no provision of the SVPA authorizes the conditional release of an SVP outside the commonwealth, and the circuit erred in conditionally releasing appellee to the D.C. agency.

Appellee was convicted of attempted rape in Virginia circuit court in 1999, and released from prison in 2000. In 2002, while he was on probation for the 1999 offense, he pleaded guilty to second-degree child sexual abuse and was sentenced to three years’ imprisonment and three years’ supervised probation. After he completed his sentence for the 2002 offense, he was transferred from the federal system back to the Virginia state system to serve the remainder of his sentence for the 1999 offense, as his probation had been revoked. When he was due to be released from Virginia state prison, two conditional release plans were presented; one had appellee residing in Virginia and being supervised by the Department of Behavioral Health and Developmental Services (DBHDS), and the other had him residing in Washington, D.C., and being supervised by the D.C. Court Services and Offender Supervision Agency (CSOSA).

Appellee argued in the trial court that he should be conditionally released, as opposed to civilly committed, because, after successfully completing state and federal sex offender treatment programs, he no longer needed secure inpatient treatment. After taking a recess to contact CSOSA, the circuit judge informed counsel a supervisor at CSOSA said the agency had accepted appellee under the Interstate Compact and that it would enforce all the conditions of his release as set forth in the circuit court order including any condition requiring notice to DBHDS in the event of a violation. The court ordered appellee’s conditional release to CSOSA.

A court may not go beyond the authority granted in the SVPA in determining the proper course of action for an SVP, even if it believes that doing so would best meet his need for treatment and supervision and best serve the interests of justice and society.

Although the SVPA does not define “parole or probation officer,” we think it clear that the General Assembly was only referring to Virginia parole and probation officers. The act also does not define “Department of Corrections,” “Attorney General,” “community service boards,” “judicial officer,” and “law-enforcement officer.” It is, however, manifest from the context in which those terms are used that they only refer to Virginia entities and personnel.

Appellee reads too much into Code § 37.2-909(A), which refers only to placement of SVPs who are civilly committed, not conditionally released. Had the General Assembly intended to allow DBHDS to contract with an entity outside the commonwealth to monitor or supervise a conditionally released SVP, then it certainly knew how to include such a provision.

Finally, when the SVPA is read as a whole, we believe it evident that the act does not provide for the conditional release of an SVP outside the commonwealth. Had the General Assembly intended to permit the conditional release of an SVP outside the commonwealth, we would expect a provision of the SVPA addressing the emergency custody of an SVP who was conditionally released outside the commonwealth – but there is no such provision.

Reversed and remanded.

Commonwealth v. Amerson (Millette) No. 100840, March 4, 2011; Va. Beach Cir.Ct. (Shockley) VLW 011-6-042, 12 pp.

VLW 011-6-042

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