Anatomy Of The Criminal Process In Virginia


Be Quiet and Don’t Talk

Anatomy Of The Criminal Process In VirginiaThe first thing everyone should do, especially if they’re stopped or contacted by the police, is to keep quiet and not talk to the police or anyone about their situation, [except maybe their “significant other” that you can absolutely trust], and an attorney. People love to talk, but and letting people know you’re now charged with a criminal offense is just about the second worst thing you could do.  What is the first worst thing you could do, Talking about your criminal case on “Social Media” [Facebook, Twitter, Instagram or any other Social Media].

Hire An Experienced Criminal Defense Attorney

Of course, the second thing you want to do is hire an experienced criminal defense attorney as soon as you can. One of the best ways of finding the most experienced Criminal defense attorney for you, in your local area, is to “Google” “Criminal Defense Attorneys in (your area)” for your type of case, then call and interview several attorneys on the phone – find out if they will take your call personally – or they only want you to talk to their secretary to book you for an appointment – and will not talk about your case on the phone. Find out if they will talk to you for a while on the phone; about your case, about you, about your life, your job, your needs and wants in relation to the criminal charge you have. If they give you guidance, comfort and direction regarding your case; and, if you are comfortable with your conversation with the attorney, then make an appointment, in person, but only if they offer you a Free Consultation and a “Payment Plan” for their fee, that meets your financial needs.

How We Handle New Potential Clients

As the senior attorney and owner of my own law firm, NovaLegalGroup, P.C., whenever a new potential client calls my office, myself, or one of my experienced attorneys, will always speak to you on the phone for as long as necessary to get all of details of the charge, and then begin to give you the outline of a customized “Plan of Action” to deal successfully with your case. We then explain the law to you and how we would handle your case – as well as quote you a reasonable fee and a “Personalized Payment Plan” to meet your personal and financial needs.  We then, invite you to meet with us, in person, to work out the details of your customized “Plan of Action” to get your criminal or criminal traffic charge, dismissed or reduced to a significantly lesser charge, or a lesser penalty.

The Criminal Process in Virginia for Misdemeanors

For criminal misdemeanors, people will either receive a Summons, which looks much like a “Traffic Ticket” or, they will receive an Arrest Warrant. An Arrest Warrant is exactly what it sounds like; the person has been  arrested for a criminal misdemeanor or felony, and are fingerprinted and photographed and their arrest information will have been put into the FBI and Homeland Security’s “National Crime Information Center” [NCIC] database, as having been charged and arrested for a crime.

As mentioned, a Summons looks like a traffic ticket and can be used not only for criminal traffic offenses such as a DUI or Reckless Driving, or for traditional Misdemeanors. However, most traditional criminal Misdemeanor charges are made by an Arrest Warrant, just like a felony, where the person is physically arrested, booked at the jail, fingerprinted and photographed; have their charge and arrest put in the NCIC; and have a Bond set by the Magistrate. The procedure for Misdemeanors in most jurisdictions is then to have an “Arraignment’ or ‘Advisement” several days after the person has been formally charged. This is where the person charged appears in front of a judge, in court, or sometimes in the jail by video, who then advises them of the seriousness of the criminal charge, the maximum penalties, they face, and that they should to obtain the services of an attorney to protect their rights.

Do You Qualify For a Public Defender or Court-Appointed attorney

If they are below the “Poverty Line” set by the Federal government and can’t afford an attorney, the Court will then appoint one for then.

A misconception many people have is that they think if they don’t have a job, or they are a college student, that they’ll automatically get a Public Defender or Court-Appointed attorney, which isn’t necessarily true. The Court, at the Arraignment or Advisement has them fill-out a Financial Statement to disclose all of their assets and  income, and that of the people they live with or who support them; and then determine if the person is entitled to a Public Defender or Court-Appointed Counsel. For instance, if they live with their family, or with others, who contribute to their support, but they’re not working or in school, then the car, home, bank savings and any income from those they live with, and who participate in some way in their support, will also be factored into their Financial Statement to determine whether or not they are really “below the “Poverty Line”. After that, a trial date is set on their charge and usually held within 1-3 months from the date they were charged.

Virginia Criminal Process for Felony Charges

For a Felony, there will always be an Arrest Warrant issued never just as Summons; which results in the person being charged and arrested; then taken to the police station or detention center where they will be fingerprinted and photographed, and all of their information will be entered into the NCIC/FBI-Homeland Security database. At that point, they will have some type of Bond set by the Magistrate, who works out of the jail; and, after Bond is set and bail is met, they will then attend Arraignment in front of a Judge, several days after they’ve been released on a Bail Bond.  During the Arraignment, the judge will explain to them the seriousness of the Felony charge, that they can go to prison, and that they need to obtain a lawyer by a specific date.

They will also fill out a Financial Statement, as noted above. If they truly cannot afford a retained attorney, a Public Defender; a Court-Appointed attorney will be appointed.  If they don’t obtain the services of an attorney by the date set at the Arraignment by the Judge, [known as the Information on Attorney Date], then their Bond can be revoked and they can be put in jail until their next scheduled court date, known as a “Preliminary Hearing”.

A Preliminary Hearing is handled in what is known as the “lower court”, the General District Court. The “lower court” is where all Misdemeanors, Traffic and Criminal Traffic charges and Juvenile and Domestic Relations cases start but, this is where felonies start but do not necessarily end.  A preliminary Hearing is also known as a “Probable Cause” hearing, because it is the judge’s job to evaluate the evidence produced by the prosecutor at the Preliminary Hearing to determine if the prosecutor has set forth sufficient “Probable Cause” to believe that a felony has been committed; and that the individual charged is more likely than not the person who committed the felony.

Probable Cause” simply means that it is more likely than not that a Felony has been committed. If the Judge finds there is Probable Cause [and they almost always do], then the judge “Certifies” the person to the higher “Circuit Court” for a Grand Jury to hear evidence about the felony from the prosecutor, in private, and then to determine whether or not there is Probable Cause for the felony charge or charges to go forward to trial in the Circuit Court.

Next Step in The Virginia Criminal Process: The Secret Grand Jury Hearing

At the secret Grand Jury hearing, the prosecutor presents very limited and basic facts to the Grand Jury, usually with no participation by the person charged, or their attorney; and they virtually always find the necessary “Probable Cause” and will the issue a “True Bill of Indictment” against the person to start trial in Circuit Court.  There is an old legal expression, which is very true, and that is that a good Jury would indict a “Ham Sandwich”, if a “Ham Sandwich” was presented by the prosecutor to the Grand Jury for indictment.  In essence, a Grand Jury simply “Rubber stamps”, whatever the prosecutor wants.

When the Indictment is issued by the Grand Jury, the person charged with the Felony is given a date to appear in the Circuit Court, with their attorney; this date is known as a “Term Day”, this Term Day in front a circuit court judge is a date when the actual trial date will be selected [which could be as much as up to 6 months in the future, or more].  If you have a Plea Bargain arranged before at a trial date, or you plead guilty, plead no contest or you’re found guilty by a judge, then sentencing will usually occur approximately 2 months after your court date. The judge, on the trial date, orders that a “Pre-Sentence Investigation” report [PSI] be prepared by the Probation Office.  A PSI is where the probation Officer is assigned to the person’s case and reviews their entire background; social, educationally, work history and any prior criminal record.  All of this information in the PSI is taken into consideration by the Judge in fashioning a sentence at the sentencing date approximately 2 months after the trial or disposition date.

The Judge is also presented by the defendant’s attorney and the prosecutor with information regarding Virginia’s “Voluntary Sentencing Guidelines”.  The judge does not have to follow the “Guidelines” when sentencing an individual for a Felony, but they almost always do. If a Judge does decide to depart from the “Guidelines”, upwardly by giving a harsher sentence then the “Guidelines” would suggest; or conversely if the Judge departs downwardly from the “Guidelines” to give a less harsh sentence than the “Guidelines” suggest then the Judge must put his or her reasons on the Court Record for making such departures from the “Guidelines”.

If a person is found guilty at a trial in which a Jury is sitting, then they will be immediately sentenced by the Jury. After that the Judge orders a “Pre-Sentence Investigation Report” to be prepared and approximately 2 months later, the Judge will review the Jury’s sentence and the “Pre-Sentence Investigation Report” about the individual convicted. The Judge is looking to see if the jury’s decision comports with the law and the evidence presented. A Judge virtually never undoes or disturbs a Jury’s sentence; rather they almost always let it stand -because a jury is a group of one’s peers and neighbors has that been legitimatized by Constitutional standards and our society.

How Long, On Average, Does A Misdemeanor Or A Felony Take To Go From Start To Finish?

Misdemeanors usually take 3-4 months from the date the person is charged, to the date of trial; while felonies virtually never take less than 6 months – and generally will take up to 12 months and sometimes more, from the date of arrest to the date of final sentencing, as noted above.  It should also be noted that there are at least 6 steps to every felony if it is not plea-bargained at the Preliminary Hearing, and goes to trial or disposition and sentence in the Circuit Court.

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