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FAQ on the Criminal Process

In order to understand the criminal justice process in Fairfax County, you should speak with a Fairfax Criminal Defense Attorney.  The following provides basic information about the criminal justice process in Virginia.  

Do I need a lawyer during the investigative stage before I am even charged?

Click here to learn more.

What is an arraignment or advisement hearing?

               After a person is charged with an offense, a court may set an arraignment hearing, also known as an advisement hearing.  This is always the case for a felony and may be the case for a misdemeanor.  It is an opportunity for the Court to inform you of your charge and to advise you of your right to Counsel.  A person will always have such a hearing if they are held in custody.  You do not enter a plea at this initial hearing and it only takes a couple of minutes.

Am I entitled to bond pending the outcome of my case?

               For a non-presumption offense, you are entitled to bond unless there is probable cause to believe you will not appear or that you are a danger to yourself or the public.  For a presumption offense, like murder, rape, and robbery, it is presumed, subject to rebuttal, that you should be held without bond.  If bond is denied in district court, you are entitled to a new bond hearing in circuit court.

What is an adjudicatory hearing?

               An adjudicatory hearing, most referenced to in the district courts, is a hearing designed for resolution of the case, either by a plea or by trial.  If you are charged with a misdemeanor, the court sets an adjudicatory hearing.  If you were released by an officer on a summons, the hearing date on the summons is for adjudication.

What is a preliminary hearing?

               Preliminary hearings are hearings in the district courts that are docketed after a person is arraigned or advised on a warrant charging a felony.  A preliminary hearing is an early stage in a criminal prosecution and permits the parties to negotiate a resolution and, most of the time, to receive some discovery in the case.  Often a defendant learns a lot about the Commonwealth's case at the preliminary hearing.  Click here to read an article on the importance of a preliminary hearing in Fairfax County and everywhere in Virginia.

What happens at the preliminary hearing?

               The charge can be pled down to a misdemeanor from a felony and disposed of in district court.  The charge can be amended or reduced yet remain a lesser felony.  In such a case a waiver of the hearing would likely occur and the case would proceed to Circuit Court.  If no resolution on a reduced charge or an agreed or recommended sentence occurs, an evidentiary hearing could occur.  The Commonwealth would be required to show there is probable cause that the defendant committed the offense charged.  Even if the Commonwealth fails to establish probable cause, the case can still proceed through a direct indictment.  Preliminary Hearings provide defendants with an opportunity to cross examine government witnesses, which can be unbelievably valuable later.

How is my sentence determined if I am found guilty either by trial or by plea?

               If you plead not guilty, and a jury trial occurred, the jury fixes your punishment.  Unless there is mandatory minimum time, the judge may suspend some of that sentence.  You should assume, however, that a jury's sentencing verdict will be imposed in full.  If you have a trial by judge (not by jury) or you plead guilty, the judge decides your sentence.  Your sentence is lawful as long as it does not exceed the statutory maximum penalty.  If you have an agreed sentence with the Commonwealth, the judge will impose a sentence consistent with the agreement, unless the judge rejects the agreement.  If the judge rejects the agreement, you are entitled to withdraw your guilty plea and proceed before a different judge.  This ability to withdraw your guilty plea is only for rejected agreements.  You cannot withdraw your guilty plea if a judge rejects a recommendation.

                For misdemeanor offenses, the maximum penalty one can receives is 12 months in jail and fine of not more than $2,500.00.  For some misdemeanors the penalties are even less.

If I am pleading guilty to a felony, can I rely on the Virginia Sentencing Guidelines to predict my punishment?

               Maybe.  You must consult your attorney on this matter.  Sentencing guidelines recommend a range of punishment for a circuit court judge to impose on felony charges based on the facts of your case and your criminal conviction record.  Often the Court follows the sentencing guidelines, especially if the Commonwealth recommends them.  However, unless there is an agreed sentence with the Commonwealth, the Court is not bound by them whatsoever.  A judge who deviates above the guidelines does not provide a basis for appeal; neither does a miscalculation of the guidelines during plea negotiations.

If I have a jury trial, will the jury see the Virginia Sentencing Guidelines or a Pre-Sentence Investigation and Report?

                No.  The jury will not see the sentencing guidelines and will not see a pre-sentence report.  A Judge will view those items if you have a bench trial, if you have a jury trial or if you plead guilty.  What is contained in those items may be the basis for a suspension of some of the sentence a jury imposes – it is entirely up to the Judge.

What does a jury see at a sentencing hearing?

               A jury will be able to view certified copies of your prior convictions, provided the Commonwealth has obtained them and given a 14 day notice.  They may be able to see your DMV record.  Those individuals that qualify under the law as victims will be able to testify as to the impact the offense has had on them emotionally, physically, psychologically and financially.  The defendant may present mitigation evidence, meaning evidence tending to show the defendant in a favorable light.  There are rules as to what evidence is admissible that you would discuss with your attorney if a sentencing hearing took place.

How long does it take for a case to conclude?

               A case can take a year or more to conclude.  This is typically not the case for misdemeanors, but felonies, especially those that result in trial, can take longer.  If you are charged with a felony, you must resign yourself to the fact the final disposition may take up to 18 months.  This is due to the nature of the district court preliminary hearing process, and the circuit court motion and trial process.

Can I appeal my conviction after I plead guilty?

               Appeals, to be successful, must have merit.  They cannot be successful unless you have a genuine appealable issue.  Appellate courts review for error, not whether they (or you) agree or like how things played out.  A guilty plea supplies all that is necessary for a conviction of the charge and waives any other defects on appeal, if there be any, except for matters of jurisdiction or the imposition of an illegal sentence.  Additionally, plea agreements often require a defendant to waive any right of an appeal.  If the defendant then appeals, he may lose the benefit and consideration given in the plea deal.  This could result in additional charges being filed and in a harsher penalty.  If defense counsel believes an appeal to be without merit, he may seek to withdraw from the case.  Remember, an appeal must be based on legal error, not on a perceived grievance.  Generally speaking, the error must be preserved through a timely objection. 

               On the other hand, if you plead “not guilty” and are found guilty, any error preserved in the record can be the subject of a merit worthy and potentially successful appeal.     

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