Felony vs. Misdemeanor
The judicial process is very different depending on whether you have been charged with a felony or a misdemeanor. In addition, the consequences of conviction are different for felonies vs. misdemeanors.
Both are crimes, and both remain on your permanent criminal record forever. Felons can go to prison for more than one year, they can be banned from voting, they cannot own guns, and cannot serve on a jury. Felonies carry much more social stigma and most job applications ask whether you have ever been convicted of a felony.
Felonies are much more likely to affect your immigration status, security clearance and military service.
In Virginia, a single misdemeanor can never result in more than 12 months in jail, and misdemeanors usually do not affect your civil rights (voting, gun ownership, etc.) Misdemeanors can affect employment, immigration, and security clearance as well, but sometimes to a lesser extent.
Judicial Process for Misdemeanors
If you are charged with a misdemeanor your case begins with an arrest. Being arrested can involve being given a Virginia Uniform Summons without ever being in handcuffs. Or being arrested can include a ride to the police station. Being arrested is different than being taken into police custody. You can be arrested without ever being placed in handcuffs.
Whether you are taken to jail or released with a summons, misdemeanors begin in General District Court (GDC) for adults or Juvenile and Domestic Relations Court (JDR) for minors and adult cases involving victims who are family members or minors.
Whenever a crime involves the possibility of jail time, a judge must inform the Defendant of their constitutional right to have an attorney. For more serious criminal charges the judge does this at a special hearing called an arraignment. If the Defendant is locked up in jail, the arraignment may be done by a video conference from the jail.
Some jurisdictions skip the arraignment for some less serious misdemeanor charges. And some jurisdictions will skip the arraignment if the defendant hires an attorney before the arraignment hearing.
After the arraignment, the next hearing for misdemeanors is usually the trial. If the Defendant is not happy with the outcome of the trial, the Defendant can appeal the judge’s decision to the Circuit Court for any reason within 10 days of the trial in GDC or JDR.
Pending appeal the Defendant will be innocent again, and will owe the court no fines, no court cost and will usually be released from jail. The Circuit Court will have a completely new trial and the Circuit Court judge will not even know what happened in the first trial.
The prosecution or the Defendant can choose to have a jury trial in Circuit Court, though defendants should consult with an attorney before ever deciding whether or not to have a jury. Jury trials are much more complicated, more expensive, and juries in Virginia get to decide the punishment in criminal cases. Virginia Juries can be a blessing or a curse depending on your situation.
If the Defendant is not happy with the outcome in Circuit Court, he can try to appeal to the Virginia Court of Appeals and then to the Virginia Supreme Court. Both of these courts can choose whether or not they want to hear the appeal and neither holds trials.
To win an appeal at the Virginia Court of Appeals or the Virginia Supreme Court, the Circuit Court judge must have made a significant mistake while acting as judge. These appeals are not automatically granted.
Most misdemeanors take two to four months to get through General District Court or Juvenile and Domestic Relations Court. However, in extreme cases getting through GDC or JDR court can take more than 4-8 months. Very few cases take longer. An appeal to Circuit Court takes another one to three months typically.
On rare occasions the prosecution can skip GDC or JDR court and go straight to Circuit Court. This is called a “direct indictment”. This happens often when a defendant has both misdemeanor and felony charges at the same time. The prosecution may direct indict the misdemeanors so that all the charges (misdemeanor and felony) can be tried at the same time in Circuit Court.
Judicial Process for Felonies
If you are charged with a felony, your case will take a lot more time and more court appearances. The exact process and requirements for the felony judicial process varies considerably from jurisdiction to jurisdiction, but this section outlines some of the steps that are common to most jurisdictions in Virginia.
Like a misdemeanor case, felonies begin with arrests, followed by an arraignment in General District Court or Juvenile and Domestic Relations Court. At the arraignment, the judge will advise the Defendant of their constitutional right to an attorney.
After the arraignment, the next felony hearing is the preliminary hearing in GDC or JDR. Preliminary hearings look and sound like a normal trial, but they are not.
At a preliminary hearing, the judge is not deciding whether a Defendant is guilty or innocent. At a preliminary hearing, the judge is only trying to determine whether the government has the minimum evidence necessary (sufficient “probable cause”) to justify advancing the case to circuit court.
During the preliminary hearing the judge is required to interpret the evidence in a light most favorable to the prosecution whenever possible. After hearing the prosecution’s evidence, the judge asks himself whether the prosecution’s evidence is sufficient enough that a reasonable jury could possibly find the defendant guilty.
If the judge believes the evidence is sufficient, then the judge sends the case to the Circuit Court and a grand jury. If the judge does not believe the evidence is sufficient, the case is dismissed.
However, if the case is dismissed at the preliminary hearing stage the prosecution can elect to direct indict the Defendant and take the case straight to Circuit Court. This type of direct indictment is rare.
The preliminary hearing is often the Defense attorney’s first opportunity to negotiate with the prosecution and the first opportunity to take or reject a deal from the prosecution.
Many felony cases are resolved at the preliminary hearing after the defendant accepts a deal.
If the Defendant rejects the deal and loses at the preliminary hearing, the case is sent to Circuit court and the case goes before a grand jury. Grand juries serve a similar function as a preliminary hearing. Defendants and defense attorneys do not participate in the grand jury hearing.
If the grand jury decides that there is enough evidence to justify continuing the case, then the Circuit Court schedules another hearing called a “term date”.
A “term date” is a very short simple hearing that is similar to an arraignment. You show up to court, the judge checks whether you have complied with the conditions of your bond, and the judge sets a date for your trial. Failure to show up for the term date can result in a bench warrant, additional criminal charges, and revocation of your bond.
At the term date the defendant and the prosecution must decide whether to have the trial in front of a jury or just a judge (called a bench trial). Either the prosecution or the defendant can ask for a jury trial. Always talk to your attorney about the pro’s and con’s of having a jury. Juries cost more money, take more time, and in Virginia juries frequently impose harsher punishments than judges in some cases.
If the Defendant wins at the trial, they go free. If the Defendant is convicted at trial without a jury then the judge will set a “Sentencing Date” to determine the appropriate punishment.
If a Defendant accepts a plea to a felony and waives the preliminary hearing, then there is usually no term day and instead the Defendant is assigned a Plea Date where the judge will ask the Defendant a series of questions to determine whether or not they are pleading guilty to the charge freely, voluntarily and intelligently.
If the judge accepts the plea of guilty and everything goes smoothly, then the judge will set a “Sentencing Date”
Prior to the Sentencing Date, the Defendant will be asked to meet with a probation officer. The probation officer will collect the Defendant’s adult and juvenile criminal records, will interview the Defendant and then create a pre-sentencing report that will be delivered to the prosecution, the defense and the judge.
The pre-sentencing report will contain a background report about the defendant and a multi-page mathematical formula called the Virginia Sentencing Guidelines. The sentencing guidelines will give the judge a range of recommended punishments that the judge can choose to follow or ignore.
The interview with the probation officer, the sentencing guidelines, and the sentencing report are very important. Always consult with your attorney before your interview to make sure you are properly prepared.
Drug or alcohol testing and screening may occur at your pre-sentencing interview. Failing one of these drug or alcohol tests may result in additional jail time, so always refrain from drugs or alcohol use while on bond or pretrial release. If you do not believe you can refrain from using drugs or alcohol 100% for the months you are pending trial or while on probation, discuss it with your attorney.
Because of how complicated these reports can be it is common for pre-sentencing reports and sentencing guidelines to contain errors that can result in additional jail time. Make sure you review your pre-sentencing report and sentencing guidelines with your attorney with plenty of time prior to the sentencing hearing.
At the sentencing hearing, the judge will review the pre-sentencing report and listen to arguments from the defense and the prosecution before issuing the sentence. The judge can follow the Sentencing Guideline recommendations or the judge can ignore then