Virginia Code Section 8.01-428(D) provides that an order entered by a court
may be "set aside" if that court's ruling was based on "fraud upon the court."
Unlike most other post-trial remedies, this rare procedure has no time limit as
to when it must be filed.
To qualify as fraud upon the court, the conviction or sentence must have been a
result of "extrinsic fraud." Extrinsic fraud is categorically different from
intrinsic fraud.
Essentially, intrinsic fraud is when a court makes its decision upon fraudulent
evidence. Conviction or sentencing orders based upon "intrinsic fraud" are
merely "voidable," which means that those convictions may only be attacked in
the normal course of direct appeal or by habeas corpus.
The courts contrast this with "extrinsic fraud," which the Virginia Supreme
Court has held to be fraud that "tampers with the judicial machinery and
subverts the integrity of the court itself" or that "prevents a fair submission of
the controversy to the court." A conviction or sentence based upon "extrinsic
fraud" is void. However, a proceeding under Virginia Code Section 8.01-428(D)
must be used to have the order declared void.
Thus, if a conviction order is declared void due to being the product of extrinsic
fraud, the conviction and sentence would cease to be valid. A new trial would
need to be conducted. In some situations no new trial would be permitted due
to constitutional rights against Double Jeopardy.
A request for relief under Virginia Code Section 8.01-428(D) may be a
particular sub-form of collateral attacks based upon an allegation of no "subject
matter jurisdiction," or it may be its own statute-based form of attack.
Depending on the specifics of the post-trial situation, the best approach may be
to attack the order by both forms of request for relief.
For more information, see the page on "Jurisdictional Attacks" on this website.
may be "set aside" if that court's ruling was based on "fraud upon the court."
Unlike most other post-trial remedies, this rare procedure has no time limit as
to when it must be filed.
To qualify as fraud upon the court, the conviction or sentence must have been a
result of "extrinsic fraud." Extrinsic fraud is categorically different from
intrinsic fraud.
Essentially, intrinsic fraud is when a court makes its decision upon fraudulent
evidence. Conviction or sentencing orders based upon "intrinsic fraud" are
merely "voidable," which means that those convictions may only be attacked in
the normal course of direct appeal or by habeas corpus.
The courts contrast this with "extrinsic fraud," which the Virginia Supreme
Court has held to be fraud that "tampers with the judicial machinery and
subverts the integrity of the court itself" or that "prevents a fair submission of
the controversy to the court." A conviction or sentence based upon "extrinsic
fraud" is void. However, a proceeding under Virginia Code Section 8.01-428(D)
must be used to have the order declared void.
Thus, if a conviction order is declared void due to being the product of extrinsic
fraud, the conviction and sentence would cease to be valid. A new trial would
need to be conducted. In some situations no new trial would be permitted due
to constitutional rights against Double Jeopardy.
A request for relief under Virginia Code Section 8.01-428(D) may be a
particular sub-form of collateral attacks based upon an allegation of no "subject
matter jurisdiction," or it may be its own statute-based form of attack.
Depending on the specifics of the post-trial situation, the best approach may be
to attack the order by both forms of request for relief.
For more information, see the page on "Jurisdictional Attacks" on this website.
Andrew G. Wiggin, P.C.
Extrinsic Fraud
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"Serving clients in all litigation after state criminal trials, all across Virginia."
www.post-trial-litigation.com
(757) 333-7539
(757) 333-7539
Disclaimer: The information provided on this website is not legal advice. Accessing the information on
this website does not establish an attorney/client relationship. No attorney may ethically promise a
certain litigation outcome based on a future decision by a court. Persons interested in retaining the legal
services of Andrew G. Wiggin, P.C. should contact the Firm. Potential clients or interested persons
may contact the Firm to discuss retaining Andrew G. Wiggin for post-trial litigation. Andrew G.
Wiggin does not serve as counsel of record in federal courts, nor give legal advice on representation in
federal litigation, although referrals can be provided.
All pictures used with applicable copyright permission.
Copyright 2007 by Andrew G. Wiggin, P.C. All rights reserved.
this website does not establish an attorney/client relationship. No attorney may ethically promise a
certain litigation outcome based on a future decision by a court. Persons interested in retaining the legal
services of Andrew G. Wiggin, P.C. should contact the Firm. Potential clients or interested persons
may contact the Firm to discuss retaining Andrew G. Wiggin for post-trial litigation. Andrew G.
Wiggin does not serve as counsel of record in federal courts, nor give legal advice on representation in
federal litigation, although referrals can be provided.
All pictures used with applicable copyright permission.
Copyright 2007 by Andrew G. Wiggin, P.C. All rights reserved.