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Sentencing in Virginia Criminal Cases

Sentencing is what occurs after a finding of guilt has been made, either through a trial or through a plea. With that said, the way sentencing works specifically depends on a number of different factors including the seriousness of the offense, whether it is a felony or a misdemeanor, the type of conduct that led to the conviction, that is whether it was a trial or a plea, and whether or not that trial or plea was before a judge or a jury. These factors mean that there is some leeway in what you may be sentenced to which is why it is so important to have a Virginia criminal defense attorney present for this stage of the case. An experienced attorney will be able to advocate on your behalf and show a judge through a variety of different means why you deserve the lightest sentence possible.

When Sentencing Occurs After Trial

In misdemeanor cases in the General District Court it is quite common for sentencing to occur immediately after the finding of guilt or plea is entered. There is no separate sentencing date for misdemeanors in most jurisdictions and under most circumstances.

However, in felony cases it is quite common that the plea is entered on one date and the case is then continued to a new date for sentencing. This may be eight, 10 or even 12 weeks after the plea date, depending on the jurisdiction, the type of plea and how much time will be necessary for the sentencing event.

Role of The Jury in Sentencing

Virginia is one of the few jurisdictions in the United States in which the jury recommends the sentence. In a Virginia jury trial, which can only take place in the Circuit Court, the jury makes a finding during the guilt phase of the trial and immediately after begins the sentencing phase of the trial wherein the jury recommends a sentence. However, after all this the judge must ratify or affirm the jury’s sentence.

In Virginia a judge can lower a jury’s sentence if he feels that is appropriate, but the judge cannot increase the jury’s sentence. In many instances the judges do not view it as their role to impede or step on the toes of a jury’s sentence. When it is within reasonable limits, jury sentences are often ratified.

With that said, different rules apply during sentencing. The rules of evidence are slightly different during a sentencing hearing and the defendant loses the presumption of innocence that they enjoy during the guilt phase of the trial.

So even with the trial or a plea, when sentencing occurs there is a presumption that the defendant has committed the offense.

Aggravating Factors

There are a number of aggravating factors which may impact sentencing however these are case-specific and client-specific. Aggravating factors include the nature of the offense, the nature of the victim in the offense, the number of times the defendant has been convicted of the offense previously, and the specific facts of the offense.

For example, a grand larceny case involving $250 is quite different than a grand larceny case involving two million dollars. Likewise, an assault case involving a slap is far different than an assault case involving closed-fist punches to the face. These are just two examples where the same criminal charge may have a very different sentencing event depending on the aggravating factors.

Mitigating Factors

There are a variety of mitigating factors that may impact sentencing. Very often mitigating factors presented by the defendant include:

  • Lack of criminal history
  • Lack of opportunity for a defense
  • Regret and remorse that the offense was committed
  • The nature of the offense being minimal, meaning not as serious as other potential offenses or the opposite of an aggravating offense

Conduct that takes place post-arrest can also have an impact on the sentence, and include:

  • Mental health and substance abuse evaluations
  • Performance of community service
  • Positive letters of recommendation

How An Attorney Can Help During Sentencing

A defense attorney often earns their keep during the sentencing phase of a criminal case. This is true for both plea agreements and trial cases. Sentencing is very important and it must be approached very delicately and appropriately on a case-by-case basis.

In certain cases a judge will want to hear certain types of evidence during the sentencing hearing. There may be other circumstances where restitution is appropriate. In some cases restitution that is requested may be illegal and against case law. Certain evidence can be presented at a sentencing event that may show why the client committed the offense. They may also have true remorse and have done things to restore their place in the community since the offense.

The goal of a good sentencing hearing is to show that the goals of a criminal sentence can be fulfilled without being overly harsh on the defendant. Typically these goals include prevention of recidivism, which means preventing the client from committing the offense again, punishment, meaning that the defendant is appropriately punished for their actions, and sending an appropriate message to the community that the defendant will not commit the offense again, so that they can feel safe.

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