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N Cal Attorney
N Cal Attorney, Lawyer
Category: Criminal Law
Satisfied Customers: 9339
Experience:  Since 1983
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Felony Charge of Sodomy in VA, 30 years ago. Virginia invalidated the

Customer Question

Felony Charge of Sodomy in VA, 30 years ago. Virginia invalidated the sodomy laws in VA in 2014. Can the case be overturned or records expunged
Submitted: 2 years ago.
Category: Criminal Law
Expert:  N Cal Attorney replied 2 years ago.
Thank you for your question.
The answer appears to be Yes.
"A. Collateral Attack of Underlying Conviction
“Generally, a judgment in a criminal case may not be attacked collaterally.” Eagle, Star and British Dominions Inc. Co. v. Heller, 149 Va. 82, 100, 140 S.E. 314, 319 (1927). “However, a party may assail a void judgment at any time, by either direct or collateral assault.” Morse v. Commonwealth, 6 Va.App. 466, 468, 369 S.E.2d 863, 864 (1988) (citing Beck v. Semones' Adm'r, 145 Va. 429, 441, 134 S.E. 677, 680 (1926)). “A court lacks jurisdiction to enter a criminal judgment if the judgment is predicated upon an unconstitutional or otherwise invalid statute or ordinance.” Fraser v. Commonwealth, 16 Va.App. 775, 777, 433 S.E.2d 37, 38 (1993). A judgment or order entered by a court that lacks jurisdiction of the subject matter is a nullity, Morrison v. Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 755–56 (1990), and “may be impeached directly or collaterally by all persons, anywhere, at any time, or in any manner,” Virginia Pilot Media v. Dow Jones & Co., 280 Va. 464, 469, 698 S.E.2d 900, 903 (2010). Upon a statute being declared unconstitutional on its face, convictions based thereon are void. Herrera v. Commonwealth, 24 Va.App. 490, 494, 482 S.E.2d 492, 494 (1997) (in the context of a direct appeal, the jurisdictional bar extended to a conviction obtained before the statute was declared unconstitutional). Retroactive application of a constitutional ruling in the context of a collateral review of a criminal conviction is permitted “if it [the new ruling] places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to prescribe.’ “ Teague v. Lane, 489 U.S. 288, 307, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring)). “We review arguments regarding the constitutionality of a statute de novo.” Yap v. Commonwealth, 49 Va.App. 622, 629, 643 S.E.2d 523, 526 (2007) (citations omitted)."
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