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Virginia Criminal Court Process for Misdemeanors and Felonies

Thomas Soldan, an experienced Virginia criminal lawyer, answers questions about the court process for misdemeanor and felony charges in the Commonwealth of Virginia.

What is the court process like for someone being charged with a misdemeanor or a felony?

Thomas Soldan:Criminal Court Process in Virginia In misdemeanor cases, someone is arrested either on a summons because the officer witnessed the offense, or a warrant of arrest is issued because they have determined probable cause. Those cases always originate in either the general district court or the Juvenile and Domestic Relations Court, if they involve a minor or a family member. The juvenile court and the general district court are both not on record. That means that if someone is found guilty in those courts, they can appeal the case and get a new trial in the circuit court. Those courts are also courts in which only a bench trial is available. There is no right to a jury trial for a misdemeanor in Virginia. There has to be an appeal of a finding in the lower court, and then the person has a statutory right to request a jury trial at the circuit court level. Every jurisdiction in Virginia is a little bit different in terms of how they run their legal docket. If it’s a misdemeanor, that may carry jail time. If it’s the first court date, the Commonwealth’s Attorney, or the prosecutor, will let the court know whether they are waiving or seeking a potential jail sentence, and that triggers the person’s constitutional right to counsel. That happens pretty quickly, as far as the actual mechanics of the proceeding. It’s definitely a good idea for somebody accused of a misdemeanor to contact an attorney as soon as possible. They can help them understand what potential problems might be and help them navigate those issues, in addition to the potential penalties.

Are felony and misdemeanor cases are heard in different places?

Thomas Soldan: Yes. Felony offenses can originate in two ways. One way is that someone can be arrested on a warrant of arrest and have a preliminary hearing in general district court, which is our court not of record. If you’re arrested on an initial warrant of arrest, the matter may be scheduled for a preliminary hearing in general district court, and that’s a probable cause hearing to decide whether or not there’s enough evidence to prove that a felony was committed and that you are the person who is properly accused of committing this felony. There are all different considerations that can be made in a general district court hearing, including finding out more information about the alleged offense, setting up defenses, and potentially negotiating a resolution at that level. A felony case can also be originated by direct indictment, in which case probable cause is presented to a special grand jury that decides whether or not to return what is called “a true bill” or “not a true bill” on the alleged offense. The rate of return on a true bill in Virginia is extraordinarily high. Then, the case originates through Circuit Court with an arraignment and motions and the decision of whether there will be a trial or a plea. It can originate in either of those ways, and if the case is certified in general district court it then proceeds to circuit court. The Circuit Court is the only court with the authority to have a trial on a felony matter in which the outcome of the trial is a conviction or a dismissal of the charge.

Question: What factors are considered to determine whether a crime is a misdemeanor or a felony?

Thomas Soldan: There are different elements. For a DUI, it’s based on the time period in which the offense has occurred. If someone is convicted of DUI as a third offense within five years, that can be a felony. A third offense in ten years can also be a felony. If it’s an assault charge, it is based on malice or the instrument used in the assault. If it’s a larceny-type offense, it would be based on the amount taken or the circumstances of the larceny. That is the same for fraud cases. For a drug offense, the difference between a misdemeanor and felony would be the frequency of the occurrence, whether it’s somebody’s first, second, third, or subsequent offense, the weight and type of the drug, and whether it’s possession or distribution.

How is it determined whether a case will be tried as a misdemeanor or a felony?

Thomas Soldan: The elements of the offense determine whether it’s a felony or misdemeanor. A good example is a petty larceny offense, which could be simply taking of property from a store, aka larceny via shoplifting. If a person steals an item worth under $200, that’s a misdemeanor. If they have a third or subsequent offense under $200, it becomes a felony, or if they have a first offense that’s above $200, that is also a felony. There are different levels of misdemeanors and felonies, for example things can be aggravated non-aggravated. The charging document is not the be-all and end-all. Having an experienced criminal offense attorney in these cases could lead you to have a positive negotiation. Having a defense attorney involved in the process from an early stage can really help someone charged with an enhanced offense by virtue of either an aggravation or a repeated conduct. They can help explain the facts or circumstances of the particular crimes to the prosecutor and potentially negotiate for a lesser charge.

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