Virginia Crminal Law: Appealing a Conviction

Sometimes even the best trial strategies result in a conviction. However, a guilty verdict is not the end of the line. Virginia, like most states in the United States, have a process for a person who has been found guilty to appeal the verdict. There are many different types of appeals, and the appeal process changes depending on the severity of the crime you have been charged with and where you are in the appeal process.

So how do appeals basically work in Virginia, and what are some things you need to be aware of when discussing your criminal case with your lawyer?

Criminal Appeals from General District Court

If you have been charged with a misdemeanor offense, it is likely that your case will be tried in one of Virginia’s district courts. District Courts are part of a group of courts known as “courts not of record.” The Juvenile and Domestic Relations Court is one other such court.

Anything that happens in a court not of record is unlikely to be written down. When you appeal from a court not of record, the next level of court hears all the evidence as if hearing it for the first time.

In order to appeal a guilty verdict from a general district court, you must file the proper appeals paperwork within ten (10) days from your conviction. If you have timely filed your notice of appeal, you also have the option, within sixty (60) days, to have the court not of record reconsider the matter. If the court reconsiders the matter and reverses the conviction, you can withdraw the appeal.

Criminal Appeals From Circuit Court

If you have been charged with a felony offense, or if you are on appeal from the general district court, the likely court that will hear your case is the Circuit Court of Virginia. The Circuit Court of Virginia is known as a “court of record.” Everything that happens in Circuit Court is written down and recorded.

As such, if you have to appeal to the next level of court after the circuit court you better make sure your grounds for appeal are clearly stated during your circuit court trial. This is known as “perfecting an issue for appeal.” Your criminal defense lawyer, if they are doing their job, should be perfecting any applicable issues for appeal to the next level of court.

There are a number of things a criminal defense attorney will need to do to prepare an appeal to the next level of court, which would be the Court of Appeals. Some common activities a criminal defense lawyer will do include requesting that a sentence be postponed, preparing a transcript for the appeal, and requesting additional bail terms.

Like in the General District Court, there is a time limit to file an appeal. An appeal must be filed within thirty (30) days from the conviction date. The notice of appeal in a circuit court case must be far more descriptive than the appeal from general district court. You must state every single grounds that entitles you to an appeal. Failure to preserve or mention a grounds means your case will be denied.

Criminal Appeals from Court of Appeals

The last step in the appeals process is an appeal from the Court of Appeals to the Supreme Court of Virginia. As with the other courts, there are deadlines and filing requirements for taking an appeal from the Court of Appeals to the Supreme Court. These deadlines are strict, and failure to comply with those deadlines will likely cause your appeal to be denied.

Why You Need a Criminal Appeals Lawyer

Appealing a case is a complicated process and even normal lawyers often have a hard time navigating the complex maze of rules. Most lawyers will recommend that you utilize a special appeals lawyer to help in the process. Make sure you have a lawyer with you every step of the way, as failure to properly note an appeal will automatically mean a loss.

Virginia Criminal Law: Bail, Bond, and Recognizance

One of the things that people charged with a crime for the first are shocked by is the possibility that they may have to stay in jail until their trial date. In Virginia, trial dates can be several months away depending on the Court’s schedule and your lawyer’s availability. You could spend as much as three (3) months in jail awaiting a trial on an offense which may otherwise carry a jail sentence of only five to ten days.

However, there is a process of applying for something known as bail. Bail is the process of getting released from jail while you await your trial. Bail includes several conditions such as bond and restrictions on your rights.

Bond is a financial arrangement you enter into with the court system whereby you are released pending trial in exchange for setting up a financial promise with the court.

Sometimes it is a good idea to request bail. Sometimes bail is a bad idea. You may not even be eligible for bail.

So what is bail, what are the types of bonds you have to post to receive bail, how do you know if you should ask for bail, and how do you ask for bail?

The Bail System in Virginia

As discussed above, bail is the process where you ask the court to release you through a financial arrangement with the court. The purpose of bail is to have a financial obligation hanging over your head that will force you to comply with the terms of a court order. For example, you may need to post a bond with the court to be released pending trial to make sure you appear for trial. If you fail to appear for trial, you may forfeit your the bond.

Virginia law defines your rights to bail in Virginia Code §19.2-120. Under that law, a person who is held in custody pending trial or hearing for an offense, civil or criminal contempt, or otherwise shall be admitted to bail by a judicial officer unless the court believes that they will not appear for trial or that the person may be a danger to himself or others.

In order to obtain bail and be released pending trial, you will likely need to post something known as a bond, which a financial promise to pay money to the court in the event that you do not appear. There can also be other restrictions on your bail, such as conditions not to leave the state.

Types of Bond

There are several different types of bond in Virginia. The type of bond that you need depends on the type of case you are involved in. Common examples of bond include a purge bond (which is used in child support cases), a cash bond (which is paid directly to the court for release), an unsecured bond (which allows you to leave jail without putting any money up), and a secured bond (which requires you to put money or property down before you can be released).

How to Obtain Bail

Your first opportunity to obtain bail will be during a bail determination hearing in front of the magistrate after you are arrested. The magistrate will review all the factors required under the law, as well as your criminal history, and make an initial determination as to whether you are eligible for bail, and what kind of bonds or restrictions will be placed on your bail.

After that initial eligibility determination, if you are approved for bail, there are several steps you may need to take in order to be released. One example is you or a family member contacting a bondsman to obtain money to pay for a secured bond. Alternatively, you or a family member may need to pay the money directly if you can afford it.

In the event that you were not approved for bail, if you were given unfair conditions of release, or your bond was set too high, your lawyer can request that the court reconsider your eligibility for bail and to set a bond that is more appropriate for your financial position.

Why You Need a Lawyer

A lawyer is important to have during your entire criminal case. Primarily because a lawyer is there to help protect you from unfair treatment, to make sure your rights are protected, and give you a fighting chance. Bail hearings are no exception. A lawyer can help you determine when it is a good idea to request a modification of bail. One of the major considerations that could play into whether requesting a modification of bail is the fact that you may get credit for time served if you were denied bail or your bail was rescinded. Talk to a lawyer immediately if you are facing criminal charges.

Virginia Criminal Law: Work Release Programs

Many people who are facing criminal charges have good jobs, and they do not want to lose those jobs. Not all jobs are eligible for work release programs, but some inmates may be able to maintain their job while they are incarcerated.

Cities and counties throughout Virginia have different rules for their work release programs. It is important to understand your local rules regarding work release before entering into any kind of plea agreement.

This article will be discussing the rules governing the Northwestern Regional Adult Detention Center near Winchester, Virginia, but many jails have similar rules.

What is a Work Release Program?

A work release program is a program that is instituted by a local jail pursuant to Virginia Code §53.1-131. Program coordinators work together with local businesses to allow inmates in their jail to keep a job while they are incarcerated.

If you are eligible for work release, the jail can allow you to leave the jail during your normal work hours and continue to make a living. The money that you obtain while you are in the work release program will be paid to the jail. The jail will then either use those funds to pay child support orders you may have, or disburse them for your use while in jail.

Are You Eligible for Work Release?

As previously stated, each jail is different. However, in order to be eligible for work release at the Northwestern Regional Adult Detention Center, you must meet the following criteria:

1. You cannot have any other outstanding charges or a detainer from another state;

2. Your sentence must be less than twelve (12) months;

3. You cannot have any escape attempts, violent crimes, or felonious assault on your record in the last five (5) years;

4. No sexual offenses;

5. No active protective orders; and,

6. No failure to appear or capias charges in the last five (5) years.

The reason for these requirements is that the jail has to be sure that you will not engage in any harmful activities while you are at your work site.

Your local jail may have additional requirements for eligibility.

How Do You Request Work Release?

Work release programs are managed by the jail. A judge is not the person you have to ask for permission to be put on work release. There are several documents that must be submitted to your holding facility prior to your incarceration date. For the Northwestern Regional Adult Detention Center, you must complete and submit all those documents at least five (5) days prior to your incarceration date.

If you would like to be considered for work release, discuss that with your lawyer prior to your trial date or delayed sentencing date. Additionally, once you have spoken with your lawyer, the lawyer may advise that you contact the jail.

Why Do You Need a Lawyer?

It is important to have a lawyer during any criminal case because jail time can have a lasting impact on your employability and future. Even a jail sentence of five (5) days can harm your future. Therefore, it is important to make sure you take every step you can to get the best outcome possible. Depending on the facts of your case, that strategy may include work release. Work with your lawyer to determine what strategy is best for your specific case.

Virginia Criminal Law: To Plea or Not to Plea

There are three major ways that a criminal case can be resolved. It is important to know what those three major options are when facing criminal charges. Each of these three options carry different pros and cons.

So what are these three options, and which is the best in your particular case?

Pleading Guilty, No Contest, or Alford

The first option that you have when facing a criminal charge is to enter a plea to a charge. A plea can be entered at any point during a criminal proceeding. For example, a plea can be entered during your arraignment, right before your trial, or even after the prosecution has finished presenting their evidence.

The benefit of a plea is that it removes the ability for a prosecutor to ask for specific types of sentencing by a jury. It also has the benefit of expediting the process. A plea may be appropriate if you do not have any valid defenses to the criminal charges.

Additionally, a plea puts the resolution of your case and sentencing in the hands of your judge. Judges can often be lenient depending on the facts of your case. Judges have extensive powers in deferring or waiving your sentence. However, juries have less power to depart from mandatory sentencing requirements.

Demanding a Criminal Trial

You also have the right to demand a full trial. The Commonwealth Attorney is the office responsible for pursuing criminal charges in Virginia. You have the right to require the Commonwealth Attorney to present sufficient evidence to find you guilty.

Often times, there may be deficiencies in the evidence that the Commonwealth Attorney has acquired. For example, the officer that arrested you may have done something wrong, or a witness is unavailable for trial.

Alternatively, the Commonwealth Attorney may be overestimating the strength of their evidence. Some juries may not think that the evidence the Commonwealth Attorney has acquired is enough to convict you.

The benefit of having a trial is that is forces all of these issues into the light. If there is a significant deficiency in the Commonwealth Attorney’s evidence, you could be found not guilty.

However, if the Commonwealth Attorney is able to prove their case, you could face harsher sentencing from the jury. Juries in Virginia are typically more harsh than a judge would be if you are found guilty. Therefore, trial can be both rewarding and risky depending on the unique facts of your case.

Entering into a Plea Agreement

The last major option that you have is to negotiate with the Commonwealth Attorney to receive a specific sentence. Common options in negotiating a plea agreement include; a) amending your charge to something less serious, b) suspending any jail sentence you may receive so you do not have to go to jail or c) having a deferred disposition whereby if you complete classes or some other requirements your case could be dismissed.

The benefit of a plea agreement is that you know exactly what will happen after your criminal case concludes so long as you follow the rules. The downside is that you often waive your right to an appeal, so any agreement you work out is the end of the line for your case.

Why You Need a Lawyer

Criminal law is extremely fact specific. It is impossible to recommend one course of action over another without fully understanding the nature of the charges against you and the facts surrounding how you were charged. There are a number of things which, if true, could mean that a plea agreement is the best option. Alternatively, some things could have happened which would encourage a full trial.

At the end of the day, many criminal charges carry the possibility of jail time. There are also several other consequences that can arise out of a conviction. Therefore, you should speak to a local attorney to determine what course of action you should take.

Virginia Criminal Law: First Offender Programs

Have you been caught and charged with a crime? Awaiting your court hearing can be an emotional and challenging time for everyone. Virginia law can be harsh on people charged with a crime. Most crimes carry with them at least some amount of jail time.

However, if this is the first time you have been charged with a crime, you may be eligible for one of Virginia’s many first offender or deferred sentencing programs.

Drug Related Offenses

Have you been charged with possession of a controlled substance? 

If you were charged with simple possession of a controlled substance, such as marijuana, you may be eligible for Virginia’s First Offender Program. This program is designed to help people with substance abuse problems.

If you qualify for the program, then you may not have to serve any jail time so long as you comply with the terms set out by the judge. Common terms include community service, educational programs about the dangers of drug use, and court fines.

Failure to complete any one of these conditions may result in a jail sentence being given to you. The length of the sentence typically depends on the reason for your failure to comply with your program.

Domestic Violence Related Charges

If you were charged with domestic violence, you may be eligible for another of Virginia’s First Offender Programs. There are several requirements to be eligible for the program including, but not limited to, having been an adult at the time of the offense and having not been convicted of a prior domestic violence crime or a similar violent crime.

The benefits of the domestic violence first offender program is that you can often avoid jail time. You may have to take anger management classes, pay court costs, and be on good behavior for a period of one year.

Other Types of Crimes

Have you been charged with a different type of crime such as drunk in public or disorderly conduct? Virginia judges have a wide variety of options available to them in terms of handling cases. Judges have the option of deferring any of your charges for the purposes of providing you an opportunity to get better. These options, however, are not formal programs and are largely up to the discretion of the Judge.

Why You Need a Lawyer

If your charge falls outside of drug or domestic related offenses, then you need a lawyer to advocate on your behalf to determine the best possible outcome for your case. A lawyer can help by attempting to convince the judge that jail time is not appropriate in your case. If you have been caught with a crime, immediately consult an attorney for more information about Virginia’s first offender programs.