THIS IS LEGAL INFORMATION NOT LEGAL ADVICE - THIS IS NOT INTENDED TO CREATE AN ATTORNEY CLIENT RELATIONSHIP
ADULT: Felony and/or Misdemeanor Charges
TARRAIGNMENT / FIRST APPEARANCE: Generally, Within 72 Hours After Being Arrested
When you are charged with a crime, you must appear in court for an Initial Appearance also called an Arraignment. During the arraignment / initial appearance the Judge will advise you of your charge(s) and ask you what you want to do about a lawyer. You can either hire your own lawyer, see if you qualify for court appointed counsel or waive your right to an attorney. YOU SHOULD NEVER WAIVE YOUR RIGHT TO COUNSEL. Please NOTE that an arraignment can also be a hearing where you enter a plea of guilty or not guilty (this type of arraignment) should be discussed with your lawyer in terms of when it will take place. In Virginia, this generally does not happen during your first or initial appearance.
BOND HEARING: Generally, Within 1-2 Weeks After Being Arrested
When you are taken into custody on a criminal charge, you have an opportunity to be interviewed by a Magistrate in order to determine if you should be immediately released from incarceration or if you should be held to see a judge who will decide if you should be released (bond hearing). If you are not immediately given a bond by the Magistrate, you have the opportunity to have a bond hearing before a district court (lower court) judge (either general district court or juvenile & domestic relations district court). If you are not granted bond in the general district court, you can appeal your bond hearing to the Circuit Court (high court). During your bond hearing it is helpful to have as many family members and friends as possible to come to court. The judge needs to see that you have community support (friends, family, employer, etc.).
Proper Court-Room Attire For You (When You Are Released) and Witnesses
“Church” clothes are ALWAYS appropriate for court. Beyond this, however, no shorts, no sleeveless shirts (don’t show shoulders), no shirts with inappropriate writing or inappropriate graphics, no cleavage, skirts should cover knees, pants are okay but no jeans.
You Should Sit Down With Your Attorney Within the First 1-2 Weeks of Representation and Discuss Your Case In Complete Detail, Including but Not Limited to: What Happened, Who Your Witnesses Are, What The Court Process is Going to Look Like, Etc.
FELONY CHARGE(S)
A felony charge is a charge that has a punishment of more than one (1) year in prison. The range of punishment for felony charges is one (1) year to life depending on the specific felony / felonies you are charged with.
If you are charged with a felony, you cannot be tried in the district court (low court). You will ONLY have a preliminary hearing in the district court (low court) and you will NOT have a trial on the felony charge in district court (low court).
Collateral Consequences of a Felony Conviction: If you are convicted of a felony, you cannot vote and you cannot own, possess or be around any guns or any other dangerous weapons as defined in the Virginia Code, whether they belong to you or someone else. You may not be able to obtain employment and / or housing.
MISDEMEANOR CHARGE(S): A misdemeanor charge is a charge that has a punishment of 12 months in jail or less. The range of punishment for a misdemeanor is 1 day in jail to 12 months in jail.
If you are charged with a misdemeanor, you will be tried in the district court (low court) and you will be sentenced by the district court judge. However, if you disagree with the judge’s decision, you have ten (10) days to appeal your misdemeanor conviction(s) to the Circuit Court (high court). If you appeal your case, you get a new trial. Your punishment can be either less than the punishment you were given in the district court (low court) or more than the punishment you were given in the district court (low court). You also have a right to a jury trial if you appeal your misdemeanor conviction(s) to the Circuit Court (high court).
PRELIMINARY HEARING (Felony Charges): Generally, Within 3-4 Months After Being Arrested
If you are charged with a felony, you will have a preliminary hearing in the general district court (low court). A preliminary hearing is a probable cause hearing. The judge ONLY needs to determine if there is enough evidence to find that you could have committed a crime. The judge ONLY needs to consider the Commonwealth’s evidence and does not have to consider any evidence presented by the defense. If the judge finds probable cause to believe that you could have committed a crime, the judge will certify your case to Circuit Court (high court) for a trial.
You should know that when the Commonwealth brings a felony charge, they have “2 bites at the apple.” If the judge does not find probable cause and dismisses your felony charge(s) during your preliminary hearing, the Commonwealth Attorney can direct indict you on the felony charge(s) instead. Since the preliminary hearing is NOT a trial, double jeopardy DOES NOT apply. If you are on bond and your case is dismissed and the Commonwealth is NOT in agreement, the Commonwealth can request a direct indictment and you would be re-arrested, and your case would start all over again in Circuit Court (high court). This hearing is almost like a mini-trial but ONLY the Commonwealth’s evidence matters. Again, it is just a probable cause hearing (is someone saying you did something that could be a crime). To put it a different way, is there enough evidence for a trial.
PRE-TRIAL MOTIONS: Generally, Hearings Are Within 6-7 Months After Being Arrested (DISCOVERY MOTIONS SHOULD BE SENT TO THE COMMONWEALTH IMMEDIATELY UPON COMMENCEMENT OF THE CASE - PLEASE SEE WEBSITE FOR SAMPLE DISCOVERY MOTIONS)
It is important that you let your lawyer / attorney know everything that you feel went wrong in case. Any actions the police took or any actions that anyone took in your case that you feel were wrong. Your lawyer / attorney will file necessary pre-trial Motions in an effort to have certain issues resolved before you go to trial. Some examples of pre-trial Motions include:
Discovery Motions (this is filed automatically and right away in order to find out what evidence the Commonwealth has against you);
Motion to Suppress;
Motion to Exclude;
Motion to Dismiss;
etc.
BENCH TRIAL / JURY TRIAL: Generally, Within 9-12 Months After Being Arrested
A trial is when either a judge or a jury determines your guilt or innocence. A bench trial is a judge-only trial and a jury trial is a trial where 12 people determine your guilt or innocence. The standard is beyond a reasonable doubt. During your trial, the Commonwealth Attorney will present his / her evidence first. Your attorney will have an opportunity to cross-examine the Commonwealth’s witnesses. Then your defense attorney will present his / her evidence. During this presentation of the evidence, you have a right to either remain silent or testify on your own behalf. It is important to provide your lawyer / attorney with the names, addresses, telephone numbers and emails of any and all witnesses who can help you, as well as a summary of what each witness is expected to testify to. This information should be provided to your lawyer / attorney well in advance of your trial date (immediately but not more than 90 days prior to trial) so that they may be subpoenaed to court.
Once all the evidence has been submitted, the judge (in a bench trial) or the jury (in a jury trial) will make a decision regarding your guilt or innocence on each charge. When a jury is making a decision it is called deliberating. If you are on bond and if you are found guilty, your bond could be revoked meaning, you would be sent to jail or you could remain on the same bond. This decision is a decision the presiding Judge makes.
SENTENCING: Generally, Within 12-16 Months After Being Arrested
If your case is dismissed during your trial, you will never get to sentencing. If you do get to sentencing, you should be aware of the following information.
Pre-Sentence Report
After a finding of guilt, the judge, your lawyer / attorney and /or the attorney for the Commonwealth will ask the probation department to prepare a pre-sentence report. This report generally takes approximately 3 to 4 months to prepare. You would need to provide the probation department with your history, for your part of this report.
Sentencing Guidelines
Some charges have Sentencing Guidelines and some charges do not. Sentencing Guidelines are prepared by the probation department and used by the court to determine how much ACTIVE INCARCERATION TIME an individual should get if they are found guilty based primarily on the current charge(s) and their prior record, if any. The sentencing guidelines are discretionary, meaning the judge does not have to follow the guidelines. If the judge goes outside of the guidelines, he / she has to provide a race-neutral reason for going outside the guidelines. There is no recommendation provided for any suspended time. This is something you should discuss with your attorney / lawyer within the first 1 to 4 weeks of your representation.
Statutory Penalties
Each charge has statutory penalties. These are penalties provided for each charge based on the Virginia Code. However, these statutory penalties are NOT realistic in terms of the amount of time you would serve. The sentencing guidelines are more realistic. This is something you should discuss with your attorney / lawyer within the first 1 to 4 weeks of your representation.
Your sentencing guidelines provide you with a realistic number for your worst-case scenario. Please know that the guidelines are discretionary, and your sentence would ultimately be up to the judge or jury, if you go to trial.
Your Attorney-Client Relationship Should be a Partnership Between You and Your Lawyer
The above are things to think about but these are decisions that you and your attorney should make together.
Sincerely,
Amina Matheny-Willard
Attorney and Counselor at Law
AMW/amw