Fairfax County, Virginia Criminal Defense Attorney & Trial Lawyer: Ready to Help You Now!
In Virginia, there are two categories of criminal offenses: Felonies and Misdemeanors.
Felonies are the more serious category of offense. Traditionally, felonies carry possible periods of confinement in excess of one year and involve potential prison terms. Misdemeanors involve periods of confinement not in excess of 12 months in a local jail.
There are other distinctions as well. Felony convictions result in the loss of civil rights, a form of disenfranchisement. A person convicted of a felony may become ineligible for certain government benefits, will lose their right to vote, possess a firearm, hold certain elected offices and hold certain privileges like being a notary public. Each state treats felony convictions differently, but all states treat a felony conviction more harshly than a misdemeanor conviction. If you are charged with a felony, or misdemeanor, contact a seasoned trial attorney. George Freeman, a Fairfax Criminal Defense Attorney, will gladly meet with you to discuss your situation.
Felony punishment ranges are set forth below:
- For Class 1 felonies, death, if the person so convicted was 18 years of age or older at the time of the offense and is not determined to be a person with intellectual disability, or imprisonment for life and a fine of not more than $100,000.*
- For Class 2 felonies, imprisonment for life or for any term not less than 20 years and a fine of not more than $100,000.*
- For Class 3 felonies, a term of imprisonment of not less than five years nor more than 20 years and a fine of not more than $100,000.*
- For Class 4 felonies, a term of imprisonment of not less than two years nor more than 10 years and a fine of not more than $100,000.*
- For Class 5 felonies, a term of imprisonment of not less than one year nor more than 10 years or confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.**
- For Class 6 felonies, a term of imprisonment of not less than one year nor more than five years or confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.**
- Unclassified felonies are punishable by whatever term of confinement and fine, if any, the particular statute sets forth.
*For these offenses imprisonment and a fine or imprisonment only must be imposed; a fine only option is not available.
**For these offenses it is possible to be given only a fine upon conviction.
Unless an offense has "mandatory minimum" requirements, a judge can suspend the imposition of active incarceration and order probation or other terms deemed appropriate. For example, if an offense is punishable by 5 to 20 years confinement, then a judge must impose at least 5 years, but in theory can suspend all of that time conditioned upon probation. If, however, there is a mandatory minimum period of confinement, then at least that period must be actively served. Of course, a judge could sentence to active incarceration above any mandatory minimum period if the case warranted such a punishment. In these scenarios, recommended sentences or agreed sentences with the Commonwealth may be desirable - assuming the defendant desires to plead guilty in lieu of a trial.
A Principal in the First Degree is the actual perpetrator of the crime at issue. A Principal in the Second Degree is not the actual perpetrator, but one who is present and ready, willing and able to assist in the commission of the crime, or does aid and abet the crime. An Accessory Before the Fact is a person who is not present during the commission of the crime, but who has aided or abetted the commission of the crime in preparation thereof. An Accessory After the Fact aids or abets after the crime has occurred so that the principal felon is not apprehended or punished.
In the case of most felonies, every principal in the second degree and every accessory before the fact may be indicted, tried, convicted and punished in all respects as if a principal in the first degree. Accessories After the Fact to Capital or First Degree Murder are punished as Class 6 felons; all other Accessories After the Fact are punished as Class 1 Misdemeanants; those aiding family may, in certain instances, not be punished at all.
Attempt, Conspiracy & Solicitation: Inchoate Offenses
It is possible to be held criminally liable in Virginia even if you don't actually commit a substantive crime. For purposes of this discussion, we will address the crime of Robbery. Robbery involves taking personal property from another person through violence or intimidation. Suppose two people decide they want money from a person they know has a lot of cash on them. Further, assume that one of the two would-be robbers goes to the store and buys an gun. Next, suppose that days later they approach this person at a park and one of them brandishes a gun and the other demands the money and takes it from the person. This is a robbery and they are both guilty of the crime, which is punishable by Life in prison or any term not less than 5 years.
What is an Attempt?
An attempt involves committing a "direct act" with the intent to commit the offense (in this case a robbery) but for some reason, any reason, the crime does not actually occur. Whether the two would-be robbers change their minds and withdraw their plan, or the person they intend to rob refuses to give them any money, if they set out to commit the offense they both could be convicted of Attempted Robbery. This would be the case even if the person they intended to rob had no money. This means that even if it is factually impossible for the would-be robbers to commit the crime, they could still be convicted of Attempted Robbery. This is still a felony, albeit a lesser offense than the actual crime of Robbery.
What is a direct act? It requires an act that goes beyond mere preparation. It must show a present intention to commit the crime but does not need to be the last act before the crime is actually committed. In our scenario, the purchase of the gun would be mere preparation. But once the two guys arrive at the park, there is a strong argument they have engaged in a direct act going beyond mere preparation. Exit the vehicle and approach the person with the cash, and the argument is even stronger. Draw the weapon, and it is near certain an attempt has been made and both would-be robbers are now guilty of Attempted Robbery.
Attempts to commit felonies are punished as lesser felonies. Attempts to commit misdemeanors are punished the same as the misdemeanor attempted.
What is Conspiracy?
Conspiracy to Commit a Felony is a crime in Virginia. It involves two or more persons coming to an agreement to commit a felony. Once the two have conspired to commit a felony, they are guilty of Conspiracy. In our scenario, once the two guys decide to rob at some future point the person with the money, a conspiracy to commit robbery has occurred. They are both guilty. Many states, and federal law, requires for conspiracy not only the agreement to commit the felony but also requires an overt act in furtherance of the conspiracy. Virginia law does not require an overt act. However, as a practical matter an overt act would supply the necessary evidence to show the parties actually intended to commit the felony. It is not Conspiracy to joke around with a friend; the parties must actually intend their plan.
In our scenario, if the police were able to prove the parties agreed (conspired) to rob the guy at the park they could be charged with the felony of Conspiracy. Even though the Commonwealth would not have to prove an "overt act," the overt act of purchasing the gun would be evidence that they were not joking.
Generally Conspiracy is punished as a lesser felony than the felony conspired. (There is no such criminal charge as Conspiracy to Commit a Misdemeanor, except for the crime of Trespass). Conspiracy related to a drug offense, however, carries the same penalty as the offense which is the subject of the conspiracy.
What is Solicitation?
Solicitation to Commit a Felony is a crime in Virginia. Solicitation involves asking, entreating, commanding, or attempting to persuade another person to commit a felony. The most common example is hiring a hitman to commit a violent crime. But, in our scenario, whichever of the two would-be robbers who brought up first the idea to rob the guy with the cash at the park could be charged with Solicitation. The person who is being solicited does not have to agree in any way with the criminal plan. If the person solicited rejects the solicitation, he has committed no crime; but if he agrees to the plan, he now (along with the solicitor) has committed a Conspiracy. The person who solicits does not have to intend to participate in the crime itself. And, once he has committed a solicitation, he is guilty of Solicitation even if the other person rejects his request. Solicitation to Commit a Felony is punished as a felony, too.
Inchoate Offenses - attempt, conspiracy, solicitation - exist to discourage people from engaging in criminal conduct. You can see how serious these offenses are treated; just trying to get another person to commit a felony could land you in jail. Coming to an agreement only makes matters worse, and once you set out on an attempt, abandonment or impossibility cannot save you from criminal liability.
As you read about various criminal acts punished under Virginia law on this site, be mindful of the definition of Intent. A jury will be instructed that: You may infer that every person intends the natural and probable consequences of his acts. Accidents happen and can permit excuse of liability under the law. It is possible, for example, for a person to accidentally kill another, and even to do so without acting in a criminally negligent way. However, keep in mind that a jury may infer you intend the consequences likely to flow from your conduct. Some offenses require specific intent, meaning you commit an act with a particular purpose or goal in mind. It can be difficult to know one's specific intent unless they tell us. Jurors and judges may look, however, at all of the relevant surrounding circumstances to infer what one's intent must have been in a given case.
Preliminary Hearing on a Felony
Most felony criminal prosecutions begin with the issuance of a felony warrant of arrest. The arrest warrant charges a felony and sets the matter for preliminary hearing in either the General District Court or the Juvenile & Domestic Relations District Court. District courts cannot try or adjudicate felonies for adults. Instead, District Courts determine whether there is probable cause to believe a felony was committed by the defendant. If the District Court judge finds probable cause (reason to believe) the felony charged was committed by the defendant, the case is certified to the Grand Jury. If the Grand Jury returns a True Bill of Indictment, the case becomes within the jurisdiction of the Circuit Court. In Circuit Court, the case can be tried as a felony, or tried as an amended charge to a misdemeanor if the prosecutor is so inclined, or can be resolved upon a plea of guilty, no contest or an Alford plea either to the felony charged or to an amended charge including a misdemeanor.
If a District Court judge does not find probable cause, the charge will be dismissed and discharged at preliminary hearing. However, the Commonwealth still has the right to Direct Indict and submit the case to the Grand Jury as if the charge had been certified. A dismissal at preliminary hearing usually signals there is an issue with the Commonwealth's case, but that is not always the case. A knowledgeable and seasoned Fairfax Criminal Defense Lawyer can explain the nuances of the various criminal procedure maneuvers if you are facing a felony prosecution.
Some cases, however, do not leave District Court at the preliminary hearing stage. If the prosecutor offers a misdemeanor plea deal, that is often done in the District Court. Sometimes the Commonwealth will amend the charge, believing the case to not actually be a felony, and the matter will be tried as a misdemeanor in District Court. Sometimes the Commonwealth will drop the case (nolle pross) and the matter will end in the District Court.
Post-Release Supervision & Probation
If you are sentenced to a period of confinement for a felony offense and at least six months of that confinement is not suspended, the Court must impose a period of "post release supervision" and impose, but suspend an additional 6 months but not more than three years of incarceration. Instead of being supervised by the Court through a Probation Officer, you would be supervised by a Probation Officer through the Department of Corrections (DOC). This sentencing scenario typically arises when court's impose jury verdicts in their entirety. For example, if a jury fixes punishment at 3 years and a court imposes that time, the court must also impose an additional period of time as described above, but will suspend that time conditioned upon successful supervision by DOC upon release. Otherwise, typical sentences with suspended time will involve traditional probation - meaning a court will suspend at least six months of incarceration (and more likely a term of several years) conditioned upon successful court supervision through a Probation Officer. If you violate "post release supervision" you are brought before the Parole Board at DOC; if you violate probation you are brought back before your sentencing judge.
To the extent possible, an individual should engage in a legal defense strategy to avoid a felony conviction. This may mean taking a charge to trial before a judge or jury. It could also mean pleading guilty to a lesser offense as a misdemeanor. The right strategy for you will require consultation with a knowledgeable and skilled Fairfax Criminal Defense Attorney.
George Freeman has tried to a jury felony charges, including: Rape, Murder, Robbery, Aggravated Malicious Wounding, Abduction with Intent to Defile, Arson of an Occupied Dwelling, Arson of Personal Property, Aggravated Sexual Battery, Malicious Wounding by Mob, Malicious Wounding, Sodomy, Object Sexual Penetration, Hit and Run, and Grand Larceny. There is no substitute for actual trial experience. That experience provides knowledge and wisdom to counsel an individual with important legal strategy choices that must be made during a felony adjudication.
Fairfax County, Virginia Criminal Defense Attorney & Trial Lawyer: Ready to Help You Now!
If you are facing a felony charge, contact George Freeman today. He will gladly meet with you to discuss your case. Mr. Freeman has tried hundreds of cases and has extensive criminal justice experience in Fairfax County.