Criminal Process

Misdemeanors offenses may result in a fine or incarceration up to 12 months in jail. (See Misdemeanor penalties). The charges are almost always brought by an arrest warrant or a summons. Common misdemeanor charges include simple assault and battery, domestic violence, theft, possession of marijuana>, DUI and driving on a revoked or suspended license.

These cases go first to the General District Court. If you receive a summons for a misdemeanor, the police officer will tell you when you have to go to court. If you have been arrested on a warrant, the magistrate will tell you when you have to appear in court. At the first appearance, the judge will advise you of your right to hire a lawyer, and will appoint one for you if you are not able to afford to hire your own attorney.

You have a constitutional right to have a lawyer for any crime that has the possibility of a jail sentence, and if you cannot afford a lawyer, the judge may appoint one to represent you. (Class 3 or Class 4 misdemeanors carry only a fine and no incarceration, so there is no constitutional right to have court-appointed counsel these misdemeanors) If the judge appoints a lawyer for you, and then your family hires a lawyer, your private attorney will notify the court and counsel of the change in representation. At that first appearance, the judge will set the case for trial on a date a few weeks (or perhaps months) in advance. You will not be expected to have your witnesses for the first appearance, but you should plan on having all of your witnesses there for the trial date.

If you have been told that you have to come for your first appearance on a date that is inconvenient, you may be able to get a continuance and to reschedule the court date with the Court Clerk, but procedures on this differ from court to court. In most of the District Courts in which we practice, if you have hired a lawyer, and that lawyer sends a letter to the Court with “available dates” — days that you will be able to have the trial — then you may not have to come to court for the first appearance. Again, procedures differ from court to court.

If you have been arrested on a warrant and you go before the magistrate, the magistrate will set a bond based on several factors — whether there is a risk that you will not appear for trial, and whether you are a danger to yourself or to the community taking into consideration the current allegations and any criminal history. The most important facts in determining the amount of a bond in most cases will be your prior criminal record, the nature of the offense, and the strength of your ties to the local community. In many cases, the judge will require as a condition of your release on bond that you be supervised by a pre-trial services organization. The pre-trial release program may require drug testing while you are on bond, and if you test positive for drugs while you are on bond, there is a good chance that your bond will be revoked. This includes all drugs, including marijuana, that you do not have a legitimate medical prescription.

If you were convicted in District Court, you have the right to appeal to the Circuit Court. You have to note your appeal within 10 days. If you note your appeal, and then later decide not to go through with the appeal, you can withdraw the appeal. You may have to pay more in court costs. Be aware that if you have a new trial in the Circuit Court, the judge in the Circuit Court may give you MORE jail time, or a higher fine, than what you received in District Court.

Misdemeanor Penalties

Jail up to 12 months and a fine up to $ 2,500, either or both

A fine of not more than $ 500

Felonies are the most serious crimes — those punishable by more than a year in prison. They include grand larceny (stealing more than $200), breaking and entering, most drug offenses (NOT including simple possession of marijuana), and serious assaults and batteries.

A felony prosecution can begin either by an arrest warrant or by the Circuit Court issuing an indictment. If you were arrested for a felony by a police officer, you will have a bond set by the magistrate (unless the crime is so serious, or your record is so bad, that you are denied any bond). You will have a first appearance, often the very next day. At that first appearance, you will be advised of your right to have a lawyer. If you cannot afford a lawyer, one will be appointed for you. If you have a lawyer appointed, and your family decides that they want to hire a lawyer, you have the right to hire your own attorney. At that first appearance, the judge will set the case for a preliminary hearing, usually a few weeks or months away.

A preliminary hearing is NOT a trial — it is a hearing where the only question is whether there is sufficient evidence to support a charge. Generally the judge will not consider defense evidence; the question is whether the government’s evidence is believed, and there is “probable cause” that the defendant committed the offense charged. “Probable cause” is a lower standard than “beyond a reasonable doubt” used in a criminal trial for a conviction. Although cases are sometimes negotiated down at this point, in the great majority of cases in which a preliminary hearing is held, the case is certified to the grand jury. This means that it is sent to the Circuit Court which is the only court that can hold a full trial in a felony case.

The grand jury of the Circuit Court meets every month or two (it depends on the schedule in that court). The grand jury meets on “term day,” which is the first day of the month-long or two-month-long term of court. At that time, the case is presented to the grand jury — a group of 5 to 8 citizens chosen by the Clerk and the Judge. In such a case, the police officer or lead investigator will typically tell the grand jury the Commonwealth’s evidence. The grand jury will almost never hear from actual witnesses, and typically will not hear any of the defense side. Not surprisingly, in virtually all cases certified to the grand jury, the grand jury issues an indictment.

You have a right under both the Virginia and the United States Constitutions to choose to have a jury trial on a plea of “not guilty". If you want to have a trial by only a judge without a jury, both the prosecution and the judge have to agree to waive a jury. In other words, unless EVERYONE agrees to a judge trial, you will have a jury trial.

If you have a jury trial and you are found guilty, the jury will recommend a sentence. Unlike the Judge who has experience, training and knowledge when determining an appropriate sentence on a case, this is usually the only criminal sentencing recommendation the members of the jury have ever made. While the Judge is not bound by the sentencing recommendation of the jury, rarely does the Judge depart from the jury’s recommendation. Serious consideration must be given to whether or not it is in your best interest to request a jury trial depending on the type of charges and the range of incarceration that the jury may recommend.

If you were found guilty at your trial, you will usually have a pre-sentence report prepared, and you will have a sentencing hearing two or three months after the trial