(a)Pleadings and Motions. Pleadings in a criminal proceeding are the indictment, information, warrant or summons on which the accused is to be tried and the plea of not guilty, guilty or nolo contendere. Defenses and objections made before trial that heretofore could have been made by other pleas or by demurrers and motions to quash must be made only by motion to dismiss or to grant appropriate relief, as provided in these Rules.(b)The Motion Raising Defenses and Objections.
(1) Defenses and Objections That Must Be Raised Before Trial. Defenses and objections based on defects in the institution of the prosecution or in the written charge upon which the accused is to be tried, other than that it fails to show jurisdiction in the court or to charge an offense, must be raised by motion made within the time prescribed by paragraph (c) of this Rule. The motion must include all such defenses and objections then available to the accused. Failure to present any such defense or objection as herein provided constitutes a waiver thereof. Lack of jurisdiction or the failure of the written charge upon which the accused is to be tried to state an offense may be noticed by the court at any time during the pendency of the proceeding.(2) Defenses and Objections That May Be Raised Before Trial. In addition to the defenses and objections specified in subparagraph (b) (1) of this Rule, any defense or objection that is capable of determination without the trial of the general issue may be raised by motion before trial. Failure to present any such defense or objection before the jury returns a verdict or the court finds the defendant guilty constitutes a waiver thereof.(3) Form of Motion. Any motion made before trial must be in writing if made in a circuit court, unless the court for good cause shown permits an oral motion. A motion must state with particularity the grounds or grounds on which it is based. (4) Hearing on Motion. A motion before trial raising defenses or objections must be determined before the trial unless the court orders that it be deferred for determination at the trial of the general issue. An issue of fact must be heard and determined by the court, unless a jury trial is required by constitution or statute.(5) Effect of Determination. If a motion is determined adversely to the accused, his plea may stand or he may plead over or, if the accused has not previously pleaded, he must be permitted to plead. The motion need not be renewed if the accused properly saves the point for the purpose of appeal when the court first determines the motion.(c)Time of Filing Notice or Making Motion. A motion referred to in subparagraph (b) (1) must be filed or made before a plea is entered and, in a circuit court, at least 7 days before the day fixed for trial, or, if the motion raises speedy trial or Double Jeopardy grounds as specified in Code ยง 19.2-266.2 A (ii), at such time prior to trial as the grounds for the motion or objection arise, whichever occurs last. A copy of such motion must, at the time of filing, be submitted to the judge of the circuit court who will hear the case, if known.(d)Relief From Waiver. For good cause shown the court may grant relief from any waiver provided for in this Rule.
Va. Sup. Ct. 3A:9
Amended by order dated August 29, 2005; effective immediately; amended by order dated October 31, 2006, effective immediately; amended by Order dated March 1, 2011; effective May 2, 2011; amended by order dated March 1, 2011, effective May 2, 2011; amended by order dated September 3, 2020, effective September 3, 2020; amended by order dated November 23, 2020, effective March 1, 2021.
