By: Michael E. Hollingsworth, Criminal Defense Attorney
People charged with felony crimes in Virginia are often whisked through the process without knowing what is happening. As a criminal defense lawyer, I make sure my clients understand the entire process before they make any decisions. These are the important questions you should expect your criminal defense attorney to go over with you right away.
Can I get a bond?
You are entitled to a reasonable bond unless there is a reason to believe you are a flight risk or danger to the community, according to the U.S. Constitution. But Virginia law says that in certain situations you are already considered a flight risk or dangerous, and bond will not be granted. For example, if you were arrested for a violent crime, or if you have another pending felony at the time of arrest. In this situation, you probably won’t have a chance at bond until you get an attorney to file a bond motion for you.
The sooner you hire a lawyer, the sooner you can get your bond motion. Once you get a bond, it may be secured or unsecured. With unsecured, you do not have to pay any money before being released. With a secured bond, you must pay either the cash amount or have a surety (bondsman) sign for your appearance in court. You must pay the bondsman a fee for this (usually 10% of the bond amount). Once out on bond, keep in touch with your lawyer and appear for all court hearings, else risk having your bond revoked.
What does discovery entitle me to?
In Virginia, the only discovery you can obtain about the Commonwealth’s case against you in the preliminary hearing stage are:
- any statements you made to law enforcement that will be used against you, and
- a copy of your criminal history.
That’s it. Even though you are also entitled to any evidence favorable to your case, prosecutors rarely investigate a case thoroughly enough at the preliminary hearing stage to know whether or it exists.
You must rely on your attorney to conduct pre-hearing investigation. To ensure the best results, be sure that you:
- Provide names and contact info of potential witnesses.
- Be honest with your lawyer and don’t hide details. Believe it or not, we are trained in the law and we know what is important and what isn’t. You don’t. So, tell us the information we ask for and trust that we know how to use it (or not use it).
- Share any criminal history. This portion of discovery is important because it aides in calculating your potential sentencing guidelines range. Why would we need to know your sentencing guidelines before preliminary hearing? Because we need to know the potential consequences of proceeding on the felony charge in circuit court.
- Insist your lawyer knows the consequences. How is a defendant supposed to make a decision on whether or not to accept a plea deal if the potential felony sentencing range is not calculated first? Please make sure you ask your lawyer what your guidelines would be if you were found guilty by a judge in circuit court.
What happens at preliminary hearing?
There are a few things that can happen depending on the circumstances of your charge.
1. Move forward with the hearing
A preliminary hearing happens in the lower court, known as district court, and its purpose is to allow the judge to determine if there is enough evidence for the case to proceed to circuit court, the next level of court in Virginia. There are no felony trials in district court, and you do not enter any sort of plea to a felony in district court.
If you have a hearing, the prosecutors will present evidence (usually one or two witnesses) that there is probable cause you committed the charged felony. Probable cause is a low standard, and most cases proceed to circuit court after hearing. If a case moves to circuit court, it is known as being a certified case.
These hearings are useful tools for we defense lawyers because we can cross-examine witnesses and preview the evidence against you. Occasionally, the judge will determine that there is not enough evidence to certify the case to circuit court, and the charge will be dismissed. But the Commonwealth’s attorneys (known as prosecutors) still have the option of taking you to circuit court, even after dismissal, by use of a tool called a direct indictment. Whether or not a direct indictment will be pursued depends on the unique facts of each case.
2. Waive your hearing
You should only do this if the evidence against you is strong and you are offered a plea bargain that is in your best interest. Many times, a waiver of your hearing is in your best interest. But you must make sure you are aware of all potential evidence against you before waiving the hearing. Once you waive, you can’t get it back.
If your plea bargain has you pleading to a felony in circuit court, make sure you know what your sentencing guidelines range is expected to be. The circuit court judge will use these guidelines when sentencing you in circuit court.
3. Change the felony charge to a lesser misdemeanor
In this situation, your case will be fully resolved with a guilty plea in district court. Again, only accept a plea to a misdemeanor after a thorough investigation of the case concludes that such a plea is in your best interest. If the evidence could be sufficient to convict you of a felony but you are given the chance at a misdemeanor, you should consider this option even if it involves jail time. Sometimes jail time on a misdemeanor is better than no jail time on a felony.
What happens if my case proceeds to circuit court?
Grand Jury phase
If your case is certified after the hearing, your case goes to the grand jury. The grand jury is a group of citizens who meet in a private room and hear probable cause evidence against you. If the grand jury finds probable cause that you committed the charged felony, it will return something called an indictment. An indictment is a charging document that lists the charged offense. It is rare for a case to get thrown out at the grand jury stage.
Jury or Non-Jury Trial
After grand jury, your lawyer will set a trial date in circuit court. You must talk to your lawyer about whether you should set a jury or non-jury trial. Jury trials can be advantageous as far as guilt-innocence is concerned. But remember, if you lose at a jury trial, the jury will sentence you, not the judge, The jury does not use sentencing guidelines and will usually return a sentence higher than what your guidelines would be. This is a horrible part of Virginia law, but it is done by design in order to discourage people from going to trial.
Even if you decide on a non-jury trial, the prosecutors can request a jury and there is nothing you can do about it. This is another horrible part of Virginia law. However, if you have a good lawyer, you can be confident that he or she will help you make the right decisions during this process.
Guilty plea instead of trial
If your case is certified to circuit court after a waiver of your hearing, it usually means your lawyer will set your case for a guilty plea and not a trial. In that situation, your next hearing date will be a plea date.
Once you enter your guilty plea, a sentencing date will be set weeks or months later. In the meantime, something called a pre-sentence report will be conducted by the office of probation. You will have to meet with a probation officer and answer some background questions. The probation officer also calculates your official sentencing guidelines for use at sentencing. These guidelines should be the same or similar to what your attorney estimated before preliminary hearing. If the guidelines are different, your attorney can argue alleged errors made in the probation officer’s version.
Can I stay out on bond after my case goes to circuit court?
If you are already out on bond, you most likely will stay out at least until your plea date. But if your guidelines are expected to call for extended jail time, the judge may revoke your bond at your plea hearing and hold you through sentencing. You must be ready for this and must make sure your lawyer explains to you whether jail time is expected later on. Some judges will allow people to remain on bond before sentencing even if jail time is anticipated. This depends on your unique circumstances.
If I get a sentence I don’t like, can I get a reconsideration?
Most likely no. Reconsideration of a sentence is rare and is reserved for cases where new information is learned after sentencing.
How can hiring an experienced lawyer help?
Felony convictions in Virginia can change lives forever. Hiring an experienced criminal defense lawyer with passion and trial expertise, combined with the resources of a firm well known in local courts, can make a difference in getting the best outcome for your case. Take a look at my resume, testimonials from clients like you, and the Nichols Zauzig website. The firm is named a Tier 1 Best Law Firm® in Northern Virginia and the D.C. metro area by U.S. News & World Report, and has been every year since 2010. Reach out to me today at 703-492-4200 for a free consultation and let’s discuss your options.