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Custody v. Summons

An arrest in Virginia, as you probably already know, is when you are taken into custody by a police officer. You may be arrested at the scene of an alleged crime or later by a warrant based on probable cause. An arrest can feel threatening but it is important not to resist arrest even if you believe you are being wrongfully arrested. If you resist arrest this can add to your charges and put you in a worse position as your case progresses.

Instead of being arrested, you might instead be summoned to appear in court. A summons will be issued with information including a day to appear and the offense with which you are being charged. If you do not appear in accordance with the summons, then a warrant will be issued for your arrest.

Misdemeanor v. Felony

A felony is a more serious charge carrying more serious penalties. Felony charges in Virginia can include homicide, malicious wounding, and other crimes which have various punishments available to courts. Punishments for felony charges can include significant jail or prison time, high fines, and loss of civil rights (think voting and gun ownership).

A misdemeanor is a less serious charge but can still result in up to twelve months in jail and a fine of up to $2,500.

Any criminal conviction will also be placed on your permanent record.

If you are charged with a misdemeanor or felony, you need to contact an experienced criminal defense attorney who can protect you and answer your questions. John A. Boneta has been practicing criminal law since 1994, after leaving the Arlington County Police Department in Virginia. John A. Boneta has been a Commonwealth's prosecutor in Arlington and Loudoun. John A. Boneta knows how the system works from both sides. He'll work to get you the results that you need for your career, your family, and your peace of mind. Call John A. Boneta now to have him on your side.

An arraignment is your first time before the court and is a very short hearing usually lasting ten minutes or less. The process and matters considered at an arraignment can differ depending on the county, but the general format remains the same.

1. 1.The judge will present a formal explanation of the charges against you. You have the right to know what you are being charged with.
2. 2.Informed of the right to a lawyer. You have the right to an attorney and will need to tell the court whether you plan to hire an attorney, represent yourself, or see if you are qualified to be assigned a public defender.
3. 3.You will be asked to plead. You are not required to enter a plea at this time and should consult your lawyer who can help you with your decision and explain to you your rights. If you should choose to plead, you can plead guilty, not guilty, or nolo contendere.
4. 4.Bail will be set. Bail will be set or not set according to a list of factors found in § 19.2-120 of the Code of Virginia. If bail is deemed appropriate, the terms of bail are set based on the factors found in § 19.2-121 of the Code of Virginia. If you are not granted bail or the bail is set too high, an attorney can help you determine whether to appeal the decision.
5. 5.Your next court appearance date will be set.

You may be tempted to try to explain your case to the judge at this point, but it is best, even if you are innocent, to avoid these kinds of statements at this preliminary hearing. After consulting with an attorney you will have a better understanding of how to best tell your story to the court.

Typically, for a misdemeanor, your next court date after your arraignment will be your trial date; however, for felony charges and some misdemeanors you will have a pre-trial hearing.

Pre-trial hearings vary and you may have more than one before your trial date. However, even if you have a pre-trial hearing or set a trial date, it does not mean that you will necessarily go to trial.

In a felony case, a preliminary hearing determines whether the evidence against you gives the court probable cause to believe that you committed the crime of which you have been accused by the Commonwealth. If a judge determines that there is sufficient evidence, you may be indicted by a Grand Jury based on evidence presented by the prosecution.

You may also have a preliminary hearing if your lawyer files a motion relating to your case such as a motion to dismiss or change venues. Lawyers on opposing sides also usually meet during a pre-trial hearing to determine finer details of the case.

Discovery

Often, a pre-trial hearing involves a motion for discovery. A motion for discovery requires that the prosecution turn over evidence that they have relating to your case. This process is reciprocal, meaning that when you collect evidence from the prosecution, the defense is also required to share evidence collected. During discovery the prosecution will provide your lawyer with both physical evidence they have collected and information for witnesses who might have knowledge relating to your case. There is no requirement that the prosecution reveal their trial strategy.

Resolution

A resolution can sometimes be reached before trial occurs. Your case may be dismissed if your lawyer files a successful motion to dismiss and the judge agrees that the evidence against you is insufficient to proceed with a trial. Your case can be dismissed for other reasons as well.

You and your lawyer might also decide to accept a plea agreement to avoid the uncertainty of facing trial and a potentially worse sentence. If this is your first offense, depending on the crime you are accused of, you may be able to avoid trial and only face probation without a determination by the court of your guilt.

The advice of a lawyer can help you determine what strategy to use during this pre-trial stage and prepare your case if you do go to trial.

If your case hasn't settled through pre-trial proceedings, you will face trial.

Misdemeanors

In Virginia, if you are accused of a misdemeanor your first trial will be in the district court and will be a bench trial. At a bench trial, a judge alone decides your innocence or guilt. If you are convicted at your bench trial you will need to appeal within ten days. In Virginia you can appeal de novo which erases the decision of the lower court judge and allows you a brand new trial. This is a great tool for the protection of your liberty that an experienced criminal defense attorney can help you take advantage of.

Trial Proceedings

If you are accused of a felony or you were proven guilty in district court, the next step will be a trial in the circuit court. You have the right to a jury at this trial regardless of the type of crime you are accused of. In a jury trial the judge will rule on legal matters and the jury determines the facts and decides if you are guilty or not guilty. To return a guilty verdict, the jury must determine that each element of the crime you are accused of has been proven by the prosecution beyond a reasonable doubt. After a determination is made in this trial, appeal can only be made on the grounds of misapplication of law. Determinations of fact made by the jury at this stage will remain throughout appeals.

Opening Statement

During the opening statements the prosecution and then your attorney each make a statement about the case they will present.

Evidence

The prosecution presents their evidence first. Evidence includes both physical evidence and testimony from witnesses. Your attorney has the opportunity to cross-examine witnesses to discredit their testimony and bolster your own theory of the case. After the prosecution has presented all of their evidence, your lawyer will present evidence on your behalf. Evidence must be presented according to the Virginia Rules of Evidence.

Closing Arguments

The defense and then the prosecution present their closing arguments. This is an opportunity for each lawyer to convey their theory of the case and serves as a final chance to convince the jury of your innocence.

Jury Instructions

Jury instructions that are most helpful to your view of the case can be argued for by your attorney. Jury instructions are extremely important as they are used to instruct the jury on how to view the evidence and determine guilt. Sometimes jury instructions can be the difference between a finding of guilt or innocence.

Verdict

The jury determines whether you are guilty or innocent based on the evidence presented by your lawyer and the prosecution.

After your trial the jury will return a verdict. If the jury finds you innocent you are able to walk out of the courtroom that same day.

If the jury returns a guilty verdict, the jury will recommend a sentence in some cases. If the crime was a misdemeanor, a sentence will likely be issued by the judge on that same day. If the crime is a felony or sometimes a more complicated misdemeanor, a sentencing hearing will be held at a later date.

In a felony case in Virginia, judges use a sentencing worksheet created by the Virginia Criminal Sentencing Commission. This worksheet limits the discretion of judges in sentencing felonies, although the recommendation from the worksheet is not a mandatory sentence.

A sentence does not necessarily mean that your trial has to end. You may be eligible for appeal which may change your sentence in a new trial. You also might not be able to appeal. If you are placed on probation, it is important to follow any rules of your probation to the letter as courts tend to be unforgiving of violations of probation.

A good criminal defense attorney will be able to help negotiate your sentence, begin an appeals process, or might be able to help you avoid conviction. When the stakes are high, having a criminal defense attorney who understands not only the criminal justice system in Virginia, but you and your case, will help you achieve the best outcome given your circumstances.