Home » Blog » Criminal Defense » Fairfax misdemeanor appeals – When the complainant does not appear

Fairfax misdemeanor appeals – When the complainant does not appear

Call Us: 703-383-1100

Fairfax misdemeanors- podium photo

Fairfax misdemeanor appeals – What happens with complainant absence when no prosecutor participates?

Fairfax misdemeanor convictions in District Court proceed to the Circuit Court when the defendant timely and correctly appeals for a new trial. When that happens, the defendant has no opposing prosecutor in the vast majority of cases that do not charge Virginia DUI nor intimate partner assault. What happens if the complaining witness (typically called a “victim” by prosecutors) does not appear on the trial date but neither the prosecutor, police officer nor court has delivered the complainant notification of the trial date? If the Circuit Court judge is Randy I. Bellows, a case dismissal will not be the defendant’s reward for the complainant’s combined no show with nor record of having been informed of the trial date. Virginia v. Chastain, ___ Va. Cir. ___ (Fairfax Circ. Ct. No. MI-2020-961, Jan. 29, 2021) (Letter Opinion).

Why are prosecutors still not prosecuting a wide range of non-DUI / non-assault Fairfax misdemeanor District Court matters?

Virginia law does not require prosecutors to prosecute Fairfax misdemeanor cases nor misdemeanor cases elsewhere in the commonwealth. Fairfax commonwealth’s attorney Steve Descano announced around 2020 that funding limitations for his office leads him to have prosecutors handle very few non-DUI and non-intimate-partner misdemeanor cases. Descano’s predecessors for decades prosecuted all misdemeanor cases involving defense lawyers, which means that the judges in the courthouse are adjusting to this absence of prosecutors in a wide universe of misdemeanors in many defense lawyer-represented cases.

Does a Fairfax misdemeanor defendant get an automatic dismissal when a non-notified “victim” does not appear for a misdemeanor trial?

Judge Bellows’s very detailed Letter Opinion is not binding on his colleagues for Fairfax misdemeanor cases. Nonetheless, I anticipate seeing many if not all Fairfax judges following suit, whether out of agreeing with the Letter Opinion or wanting uniformity on such matters.  For those judges following the ruling of the Letter Opinion, they may inquire whether the court, prosecutor’s office, any police officer in the case, or defense counsel have notified the alleged victim of the court date. If no notice has been made to the absent complainant, then I anticipate that the judge will reschedule the trial date, and make provisions for the complainant to be notified of the next court date.

Does a Fairfax prosecutor’s non-participation with a trial excuse him or her from notifying the complainant of court dates?

The Chastain Letter Opinion determines that the commonwealth’s attorney’s office is obligated to notify Fairfax misdemeanor complainants of their trial dates when the complainant already has provided his or her name, phone number and address. Chastain says this whether or not the the prosecutor’s office otherwise will prosecute the case and whether or not the complainant has asked to be informed of all court dates. The Letter Opinion reaches this conclusion after analyzing a combination of the complainant notification provisions of  Virginia Bill of Rights Art. I § 8, and Va. Code § 19.2-265.01

Will a misdemeanor defendant ever want to make sure a complainant is notified of the trial date?

Chastain places no obligation on a Fairfax misdemeanor defendant to notify the complainant of the trial date. Will a defendant ever want to make sure that such notice is given? I can only foresee that if the complainant wants to ask the judge to dismiss the case under Virginia’s satisfaction and discharge law, or if the defendant will incur a great financial or time hardship to have to come to court a second time in any absence of the complainant (although there is value for the defendant to simply showing up in court and seeing no complainant present on the first nor subsequent court date).

Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia DUI, misdemeanor and felony prosecutions. Learn what Jon Katz can do for your defense by calling 703-383-1100 to set a free initial in-person consultation with Jon about your court-pending case.