Felony and Misdemeanor Charges

Virginia criminal laws are divided into two categories, felony charges and misdemeanor charges. A charge is a misdemeanor if the maximum punishment is no more than 12 months. All other charges that carry a maximum penalty greater than one year are felonies. Felony and misdemeanor charges are also divided into classes. The lower the number of the class, the lesser the maximum penalty of the offense. For example, a class one misdemeanor is the toughest offense while a class four misdemeanor is the least serious misdemeanor offense. In comparison, a class six felony is the lowest felony offense, while a class one felony is the most serious.

When a person is charged with a misdemeanor in Virginia, they are prosecuted in the general district court if they are over the age of 18 and the alleged victim of the crime is not a juvenile or a family or household member of the defendant. If the person is under the age of 18 or the alleged victim is a family or household member, the person is prosecuted in the Juvenile and Domestic Relations District Court. Cases in both of these courts are usually tried in front of a judge, not a jury, and if a defendant is convicted of the offense they can appeal the conviction to the circuit court on a trial de novo. This means that a person’s conviction is rescinded and any sentence they have imposed on them is also stayed until such time as their misdemeanor appeal is litigated in the circuit court.

If a person is charged with a felony offense, they are first entitled to a preliminary hearing in the general district court or the Juvenile and Domestic Relations District Court where a judge determines whether there is probable cause that the defendant committed the offense. Because probable cause is such a low standard, most cases proceed forward to the circuit court by a “certification” of a district court judge that probable cause exists. Upon this occurrence, a case is transferred to the circuit court for review by a local grand jury, and, if probable cause is again found by the grand jury, the defendant is indicted for the particular offense for which they are already charged. Once a person is indicted, a trial date is set and the case is litigated in front of a judge or a jury depending upon what the defendant and the prosecution chooses. In Virginia, both the prosecution and the defense have the right to a jury trial, and so even if one of the parties desires to have a judge hear the case, a jury may still be required. While there are variations to the procedures set forth above in felony cases, the above information is representative of the majority of felony cases.

In order to convict a defendant of a felony or misdemeanor charge, the prosecution must prove all the elements of a particular offense beyond a reasonable doubt. Each one of these elements are not only mentioned in each particular statute, but there have been numerous decisions in the United States Supreme Court, Virginia Supreme Court and Virginia Court of Appeals that have interpreted these elements further. It is important that a defense attorney not only understand the criminal offenses in the Virginia Code, but also be someone with experience in reviewing and locating court rulings in higher courts that affect the interpretation of the charges against the defendant.

The plain language of Virginia criminal statutes only gives a range of punishment for each offense, but Virginia’s scheme for sentencing individuals convicted of crimes is much more complicated. For example, while a class one misdemeanor carries a possibility of up to 12 months in jail, a person sentenced to even the maximum amount of jail time can have his sentence “suspended” all or in part. This means the person does not actually serve the jail time to which they are sentenced and instead are placed on probation with the risk of serving the suspended jail time only if they commit or are convicted of another crime, or are found to have violated their probation. A person can also have other forms of punishment inflicted on them, including loss of driver’s license, community service, mental health evaluations or drug use prevention programs.

Similarly, in felony cases, a person can be sentenced to probation, active time in a state penitentiary (prison) or a combination of the two. A person can also have their penitentiary time suspended like in a misdemeanor case and can have several other forms of punishment as set forth above. In felony cases, however, most cases involve the review and consideration of the court of the Virginia Sentencing Guidelines. The Sentencing Guidelines are written guidelines which suggest to a judge how much active jail or prison time a defendant should serve upon conviction for an offense. While a Virginia judge is required to consult the Guidelines, it is not mandatory that they be followed, and judges very often deviate from the Guidelines to punish a defendant more or less severely than the Guidelines require. As such, it is important that a defense attorney have extensive experience in not only litigating the guilt phase of a criminal prosecution but also in litigating the sentencing phase of a prosecution to ensure that the defendant receives a fair punishment for a crime.

Our attorneys at Whitbeck & Cisneros have extensive experience in both felony and misdemeanor cases in all phases of a criminal prosecution.