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by Joseph Brown

Felony Process in Virginia

 

Persons charged with a Felony in Virginia will go through a certain process in the courts. Not all of the courts in Virginia do things exactly alike, but some of the events are required by law and are present in every court.

Felonies in Virginia are tried in the Circuit Court. However these charges often start with an arrest or summons in the District Courts, either General District Court or Juvenile and Domestic Relations District Court.

Process in the district court begins with the arrest or summons. If a person is arrested, they will be brought before a magistrate to decide if they an be released on bond pending trial. If they are not, then they will see a judge in the morning, often by video, to discuss bond.

The next step is arraignment. If a person is held in jail, their arraignment will usually take place the first time they see the judge. Otherwise they will have to appear in the court room for arraignment. At the District Court arraignment a criminal defendant will be asked whether they are going to hire a lawyer or if they want to have a court appointed lawyer represent th em (if they qualify financially). At the arraignment a date for preliminary hearing will be set.

The preliminary hearing is a hearing where the District Court judge must determine if their is probable cause for the case to be certified to the Grand Jury. The prosecutor, or Commonwealth’s Attorney has to put on some of their evidence to establish probable cause that the defendant committed the crime for which he is charged. The Defendant does not have to put on ay evidence, and usually doesn’t at this stage, since it is the Commonwealth who has to prove probable cause. The Defendant can also waive their preliminary hearing, if they think it is advisable to do so. If the Judge finds probable cause, he or she will certify the case to the Grand Jury.

The Grand Jury
The Grand Jury meets every month or so to issue indictments. It consists of citizens who serve as grand jurors for a period of a few months. They hear testimony from police and argument from the prosecutor, or Commonwealth’s Attorney, and they issue indictments.

An indictment can be issued by the Grand Jury either from a case that was certified by a District Court judge or by what is called Direct Indictment by the Commonwealth’s Attorney. A person who is Direct Indicted does not go through any of the process in the District Court. A Capias is issued and the person is contacted and told to appear in the Circuit Court on Term Day.

On Term Day the accused appears in person in Court and sets a date for arraignment. The Term Day appearance is very brief, but there can be many recently indicted people present on each Term Day, which is usually held once per month or so.

Circuit Court Arraignment
At every hearing in the Circuit Court for felony cases there is a court reporter present to make a record of each case. At the Circuit Court Arraignment, the Judge explains all Trial Rights in Virginia, and this is recorded by the court reporter to make the record in the case.

After the Judge gives an explanation of each of Trial Rights in Virginia, each person is called up separately to be arraigned. Each person has to state on the record the following:

  • Whether they plead guilty or not guilty to the charge(s). At this stage everyone enters pleas of not guilty;
  • Whether they want to be tried by a jury or a judge. The Commonwealth’s Attorney or the Judge can also choose a jury trial instead of a judge trial (bench trial). It is common wisdom that juries are less likely to convict a person, but if they do convict their punishments are often harsher than a judge would give;
  • Whether the person understands what the Commonwealth has to prove before he can be found guilty;
  • Whether the person understands the potential range of punishment for each charge.

After this information is given, the Judge will set a date for trial.

Felony Trials in Virginia
If the trial is by jury, the jury must first be chosen and then empaneled. After that Jury and Judge trials are very similar. The Commonwealth’s Attorney goes first, as they have the burden of proof to prove the person guilty. They call witnesses and present evidence such as pictures, items, weapons, laboratory reports and trial aids. After the Commonwealth is finished putting on evidence the Defense Lawyer may make a motion to try to get some or all of the charges dismissed, by arguing that the Commonwealth has not proven it’s case against the person. If there are charges that remain after this, the Defense Lawyer then puts on witnesses and presents his evidence. After the Defense is finished, the Commonwealth has the opportunity to present rebuttal evidence, and may call witnesses to the stand and present other evidence again. Once both parties are finished presenting evidence, the attorneys argue the facts that were presented, which facts the judge or jury should believe, and how those facts apply to the law. After arguments are made by both sides the judge or jury will render a verdict of guilty or not guilty. Sometimes the jury can not reach a verdict, and this hung jury results in a mistrial. After a mistrial the Commonwealth’s Attorney can try the case again with a different jury.

If the person is found not guilty of all charges, then the cases are over. If they are found guilty of any charge(s), then in the case of a jury trial a sentencing hearing is held, usually immediately. After the sentencing hearing in from of the jury the jury will deliberate and fix a punishment for the conviction.

If the trial was held by a judge without a jury, the case would instead be set for a sentencing hearing. This sentencing hearing is set for the jury trials also, but the jury does not need to be present for it. The judge orders a pretrial report, or background examination of the convicted person that includes sentencing guidelines. At the sentencing hearing both sides may once again put on evidence that relates to sentencing (although the Commonwealth is limited in the evidence they can put on), and the judge pronounces the sentence.

Filed Under: Criminal Tagged With: court, criminal law, felony, felony process, trial, virginia

by Joseph Brown

Burglary in Virginia

 

Burglary or Breaking and Entering in Virginia is the act of entering a dwelling or place of business with the intent to commit some other crime, such as larceny. Breaking is the act of opening an entranceway into a building. Entering is the act of going inside the building. Burglary charges cover a number of different situations with different punishments depending on the severity of the crime. Burglary in Virginia is charged and punished as follows:

  • Burglary – Va. Code 18.2-89. Class 3 Felony (5 years to 20 years, fine up to $100,000) prohibits breaking and entering a dwelling in the nighttime with intent to commit a felony or any larceny;
    • If the person was armed with a deadly weapon, conviction is a Class 2 Felony (20 years to life in prison and up to $100,000 fine);
  • Entering Dwelling House, etc., with intent to commit murder, rape, robbery or arson – Va. Code 18.2-90. Prohibits breaking and entering any building with the intent to commit murder, rape, robbery or arson;
    • Includes entry of a building at night time without breaking;
    • Violation is a Class 3 Felony (5 years to 20 years, up to $100,000 fine);
    • If armed with a deadly weapon, it is a Class 2 Felony (20 years to life in prison and up to $250,000 fine);
  • Entering dwelling house, etc., with intent to commit larceny, assault and battery or other felony, – Va. Code 18.2-91. Including breaking and entering a building at any time or just entering a building at night with the intent to commit larceny, assault and battery, or any felony other than murder, rape, robbery, or arson;
    • Conviction is a Unclassified Felony where the range of punishment is 1 day to 20 years, and up to $2,500 fine;
    • If the person was armed with a deadly weapon at the time of entry into the building, conviction is a Class 2 Felony (20 years to life in prison and up to $250,000 fine);
  • Breaking and Entering dwelling house with intent to commit other misdemeanor – Va. Code 18.2-92. Prohibits breaking and entering a dwelling while it is occupied, with the intent to commit any misdemeanor except assault and battery and trespass;
    • Conviction is a Class 6 Felony (1 day to 5 years, up to $2,500 fine);
    • If the person was armed with a deadly weapon at the time of entry, it is a Class 2 Felony (20 years to life in prison and up to $250,000 fine);
  • Entering bank, armed, with intent to commit larceny – Va. Code 18.2-93. Prohibits entry of any bank with a deadly weapon with the intent to commit larceny and imposes a Class 2 Felony for convictions (20 years to life in prison and up to $250,000 fine).

Filed Under: Criminal Tagged With: burglary, court, criminal law, felony, trial, virginia

by Joseph Brown

Bond Hearing in Virginia

 

Anyone who is not held in jail between their arrest and trial has been released on bond with pretrial conditions. Most people who have been arrested are released by the magistrate when they are first arrested. If the magistrate denies a person bond, then they are taken before a judge (often by video) the next morning. The judge considers the person’s bond again and can grant a bond. Often at that hearing there will be a prosecutor present who may ask the judge to hold a person in jail. There also may be a pretrial report which contains information including address, employment, prior criminal convictions and other pending charges. If the person is still held without a bond, then they need to contact the Law Office of Joseph T. Brown PLC to file a bond motion and set a bond hearing as soon as possible. Some judges will let an attorney appear for a bond hearing only, while other judges will only allow a bond hearing by a lawyer who has been retained for the entire case.

At a bond hearing, the issues are whether the prisoner is a risk of flight or a danger to the community. Information that may bear on these issues may include the following:

  • Risk of Flight;
    • Prior Failure to Appear convictions;
    • Local fixed address;
    • Local employment;
    • Other ties to the state such as family in the state;
  • Danger to the Community;
    • Prior Criminal Convictions;
    • Nature of the current charges.

Although a person is presumed innocent until proven guilty, if a person is charged with a serious violent offense such as those listed in Va. Code 19.2-297.1 or any of the other conditions that are listed in Va. Code 19.2-120, there will be a presumption that no bond is proper. This presumption is rebuttable but requires that evidence be presented to the judge that overcomes the presumption of no bond.

At the Law Office of Joseph T. Brown, PLC, we understand that being held in jail pending trial can cause hardships on the person and their family who depends on them. If you or someone you know needs a bond hearing, call the Law Office of Joseph T. Brown PLC to schedule a bond hearing as soon as possible, and to give the person you care about the every possible chance to obtain a bond and to be released from jail pending their trial.

Filed Under: Criminal Tagged With: bond hearing, court, criminal law, jail, virginia

by Joseph Brown

Assault and Battery in Virginia

 

Assault and Battery is one of several violent crimes against the person in Virginia criminal law. These offenses include a range of offenses depending on the severity of the incident, the degree of injury inflicted, and the intent of the person committing the offense.  At common law (the old laws of England that we inherited in Virginia) a battery is the actual touching or striking someone, and an assault was the action of making someone believe they were about to be battered.  Today in Virginia the Code uses the common law definitions of assault and battery, but in practice only battery is usually charged.  At the other end of the spectrum is aggravated malicious wounding, which requires actual injury done with malice and intent to maim or kill.  Information about many of the different types of assault charges are included here:

  • Assault and Battery – Va. Code 18.2-57 – is a class 1 misdemeanor, up to 12 months in jail and up to $2,500 fine;
    • Includes any touching, even slight touching, that is done in an angry, insolent or rude manner;
  • Domestic Assault and Battery – Virginia Code 18.2-57.2 – is a class 1 misdemeanor (up to 12 months in jail and up to $2,500 fine) and a third offense within 20 years is a class 6 felony (1 day to 5 years in prison, fine up to $2,500);
    • Includes any touching done in an angry, insolent or rude manner;
    • Requires that the accused and victim are family or household members;
    • First Offender Provision – Va. Code 18.2-57.3 – allows for dismissal for a first offense if the defendant completes a time period of good behavior monitored by probation and completes counseling;
  • Assault by Mob There are three different versions of this offense
    • Assault and Battery by Mob – Va. Code 18.2-42 – Class 1 Misdemeanor (up to 12 months in jail and up to $2,500 fine);
      • Provides that every person who is part of a mob, where that mob commits assault or battery, is guilty of a class 1 misdemeanor;
    • Acts of Violence by Mob – Va. Code 18.2-42.1 – Provides that every person who is a member of a mob is guilty of any violent offenses committed by the mob and punished as if they have committed the offense themselves;
    • Shooting, Stabbing, etc., with intent to maim, kill, etc., by mob  – Va. Code 18.2-41;
      • Provides that any person who is part of a mob where the mob maliciously shoots, stabs, cuts or wounds a person, or causes bodily injury with intent to maim, disable, disfigure or kill, is guilty of aClass 3 Felony (5 years to 20 years, up $100,000 fine);
  • Assault on Law Enforcement – Va. Code 18.2-57(C) – If any person commits an assault and battery against a law enforcement officer;
    • Class 6 Felony (1 day to 5 years in prison, up to $2,500 fine);
    • Mandatory minimum sentence of 6 months in jail;
  • Unlawful Wounding– Va. Code 18.2-51 – If any person unlawfully shoot, stab, cut, wound or cause bodily injury, with the intent to maim, disfigure, disable or kill, it is a Class 6 Felony (1 day to 5 years, up to $2,500 fine);
  • Malicious Wounding – Va. Code 18.2-51 – Provides that any malicious shooting, stabbing, cutting, wounding or causing bodily injury, with the intent to maim, disfigure, or kill, is a Class 3 Felony (5 years to 20 years, up to $2,500 fine);
  • Aggravated Malicious Wounding – Va. Code 18.2-51.2 – Class 2 Felony (20 years to Life and fine up to $100,000);
    • For any malicious wounding  where the victim is severely injured and suffers permanent and significant physical impairment;
  • Malicious Wounding of Law Enforcement – Va. Code 18.2-51.1 – Provides that any person who commits a malicious wounding against a law enforcement officer, is guilty of an unclassified Felony which carries a range of punishment of 5 years to 30 years, and up to $100,000 fine;
    • Also includes 2 years mandatory minimum sentence.

Filed Under: Criminal Tagged With: assault, battery, court, criminal law, jail, malicious wounding, Unlawful Wounding, virginia, wounding

by Joseph Brown

Punishment for Felonies and Misdemeanors in Virginia

 

If you are charged with a criminal offense in the Fredericksburg, Va. Area including the counties of Stafford, Spotsylvania, King George or Caroline, call the Law Offices of Joseph T. Brown PLC for a free, confidential consultation with a Virginia Criminal Defense Attorney.

Criminal charges and convictions can have serious, long term consequences such as fines, loss of license, or imprisonment for months or years. Anyone who is charged with a Criminal Offense in Virginia should have an attorney to represent them.

Criminal Offenses in Virginia are divided into two categories and numbered according to severity of the offense, with one being the highest punishment and worst crime.

  • Misdemeanor in Virginia – Classification and Maximum Punishment
    • Class 3 and 4 – Fine Only ($500 and $250)
    • Class 2 Misdemeanor – up to six months in jail and up to $1,000.00 fine
    • Class 1 Misdemeanor – up to twelve months in jail and up to $2,500.00 fine
  • Felony in Virginia – Classification and Maximum Punishment
    • Class 6 Felony – 1 day to 5 years, $2,500 fine
    • Class 5 Felony – 1 day to 10 years, $2,500 fine
    • Class 4 Felony – 2 years to 10 years, $100,000 fine
    • Class 3 Felony – 5 years to 20 years, $100,000 fine
    • Class 2 Felony – 20 years to Life Sentence, $100,000 fine
    • Class 1 Felony – Life Sentence, Death Penalty, $100,000 fine
  • Title 18.2 of the Virginia Code – Crimes and Offenses
  • Title 19.2 of the Virginia Code – Criminal Procedure
  • Virginia Sentencing Guidelines
  • Courts Website

Filed Under: Criminal Tagged With: court, criminal defense, criminal law, felony, judge, misdemeanor, sentencing, virginia

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There are many pages in this website that are devoted to giving information about various topics in the law. This information is not meant to constitute legal advice and should not be considered legal advice for any reason. Anyone faced with a legal problem addressed in the pages of this site should contact the Law Offices of Joseph T. Brown PLC for a consultation.

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