Last week, Virginia’s Supreme Court underlined how harsh can be the penalties when a criminal defendant fails to appear for a court date.

In Virginia, willfully failing to appear for a felony court date is a Class 6 felony, jailable up to five years with a fine up to $2,500.00  Willfully failing to appear for a misdemeanor case is a Class 1 misdemeanor, jailable up to one year with a fine up to $2,500.00. Va. Code § 19.2-128.

Ronald Edward Johnson, Jr., learned this the hard way when he failed to appear for his General District Court preliminary hearing on three felony counts. Johnson’s three felony charges of forgery, uttering, and attempting to obtain money by false pretenses arose from his allegedly altering a check written by a third party and attempting to cash the check. Johnson v. Virginia, ___ Va. ___ (Dec. 8, 2016).

Instead of being indicted for only one count of failure to appear for missing but one court date, Johnson was indicted for three counts of failure to appear on one court date, with one count for each respective underlying criminal charge of forgery, uttering, and false pretenses.

Johnson conditionally entered a guilty plea on all three failure to appear counts, and was sentenced to six years suspending all but five years. He did not succeed in the Virginia Court of Appeals nor Virginia Supreme Court with his argument that the United States Constitution’s Double Jeopardy Clause precluded a conviction for more than one failure to appear count.

Two justices dissented in Johnson’s favor, with dissent author Justice Mims writing: “As I interpret the language of that provision, the criminal act is ‘willfully fail[ing] to appear before any court as required.’ The summonses here required Johnson to appear at one time and one place, so there is one unit of prosecution.” However, a dissent does not a victory make.

The message is clear to Virginia criminal defendants. Arrive timely to your designated courtroom for all court dates, do not expect that traffic or courthouse security lines will automatically be accepted as an excuse for a delay, and stay in the courtroom at all times that the judge is on the bench right until your case is concluded, even if you feel the need to go to the bathroom. If you have a lawyer, ask your lawyer about the leeway you might have to wait in the courtroom hallway rather than the courtroom until your lawyer tells you to enter the courtroom.

A related risk of failing to appear in court is being found guilty in absentia for a misdemeanor case, thereby leaving the defendant in cold sweats to seek a retrial order, and to preserver his or her right to appeal to the Circuit Court within the ten calendar day period for doing so (whereby the sentence in District Court does not limit the possible penalty if convicted in Circuit Court). Waiting to obtain a possible retrial order does not stay the deadline for appealing.

All of us experience unexpected delays to court, including traffic, car accidents, and plane delays. It is important to leave plenty early to avoid such delays. When a criminal defendant has a lawyer, the lawyer can ask the judge to wait for a delayed defendant, but that decision rests in the trial judge’s hands.