Written by attorney Luke Joseph Nichols

Virginia Judicial Process for Felonies Criminal Cases

Judicial Process for Felonies

If you are charged with a felony, your case will take a lot more time and more court appearances. The exact process and requirements for the felony judicial process varies considerably from jurisdiction to jurisdiction, but this section outlines some of the steps that are common to most jurisdictions in Virginia.

Like a misdemeanor case, felonies begin with arrests, followed by an arraignment in General District Court or Juvenile and Domestic Relations Court. At the arraignment, the judge will advise the Defendant of their constitutional right to an attorney.

After the arraignment, the next felony hearing is the preliminary hearing in GDC or JDR. Preliminary hearings look and sound like a normal trial, but they are not.

At a preliminary hearing, the judge is not deciding whether a Defendant is guilty or innocent. At a preliminary hearing, the judge is only trying to determine whether the government has the minimum evidence necessary (sufficient “probable cause") to justify advancing the case to circuit court.

During the preliminary hearing the judge is required to interpret the evidence in a light most favorable to the prosecution whenever possible. After hearing the prosecution’s evidence, the judge asks himself whether the prosecution’s evidence is sufficient enough that a reasonable jury could possibly find the defendant guilty.

If the judge believes the evidence is sufficient, then the judge sends the case to the Circuit Court and a grand jury. If the judge does not believe the evidence is sufficient, the case is dismissed.

However, if the case is dismissed at the preliminary hearing stage, the prosecution can elect to directly indict the defendant and take the case straight to Circuit Court. This type of direct indictment is rare.

The preliminary hearing is also the defense attorney’s first opportunity to negotiate with the prosecution and the first opportunity to take or reject a deal from the prosecution.

Many felony cases are resolved at the preliminary hearing after the defendant accepts a deal.

If the defendant rejects the deal and loses the preliminary hearing, the case is sent to Circuit court for another hearing called a “term date."

A “term date" is a very short simple hearing that is similar to an arraignment. You show up to court, the judge checks whether you have complied with the conditions of your bond, and the judge sets a date for your trial. Failure to appear for the term date can result in a bench warrant, additional criminal charges, and revocation of your bond.

At the term date the defendant and the prosecution must decide whether to have the trial in front of a jury or just a judge (called a bench trial). Either the prosecution or the defendant can ask for a jury trial. Always talk to your attorney about the pros and cons of having a jury. Juries cost more money, take more time, and in Virginia juries frequently impose harsher punishments than judges.

If the defendant wins the trial, they go free. If the defendant is convicted then the judge will set a sentencing date to determine the appropriate punishment.

If the defendant accepts a plea to a felony and waives the preliminary hearing, then there is usually no term day and instead the defendant is assigned a plea date where the judge will ask the defendant a series of questions to determine whether or not they are pleading guilty to the charge freely, voluntarily, and intelligently.

If the judge accepts the guilty plea and everything goes smoothly, then the judge will set a sentencing date.

Prior to the sentencing date, the defendant will be asked to meet with a probation officer. The probation officer will collect the defendant’s adult and juvenile criminal records, interview the defendant, and then create a pre-sentencing report that will be delivered to the prosecution, the defense, and the judge.

The pre-sentencing report will contain a background report about the defendant and a multi-page mathematical formula called the Virginia Sentencing Guidelines. The sentencing guidelines will give the judge a range of recommended punishments that the judge can choose to follow or ignore.

The interview with the probation officer, the sentencing guidelines, and the sentencing report are very important. Always consult with your attorney before your interview to make sure you are properly prepared. The interview with the probation officer can be more important than the sentencing date itself.

Drug or alcohol testing and screening may occur at your pre-sentencing interview. Failing one of these drug or alcohol tests may result in additional jail time, so always refrain from drug or alcohol use while on bond or pretrial release. If you do not believe you can refrain from using drugs or alcohol 100 percent for the months you are pending trial or while on probation, discuss it with your attorney.

Because of how complicated these reports can be, it is common for pre-sentencing reports and sentencing guidelines to contain errors that can result in additional jail time. Make sure you review your pre-sentencing report and sentencing guidelines with your attorney with plenty of time prior to the sentencing hearing.

At the sentencing hearing, the judge will review the pre-sentencing report and listen to arguments from the defense and the prosecution before issuing the sentence. The judge can follow the Sentencing Guideline recommendations or the judge can ignore them.

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