Succeed on appeal if you lose in Virginia District Court

Succeed against your Virginia District Court prosecution. If you do not, as a Fairfax criminal lawyer, I know that you get another bite at the apple through an appeal to Circuit Court. This appeal right has never been more beneficial, now that selecting a jury trial on appeal will set such a trial for no earlier than 2022 in counties like Fairfax, and a jury no longer needs to be feared for sentencing purposes, because starting in mid-2021 jurors will no longer be involved with non-capital sentencing unless a Virginia criminal defendant timely requests it.

Why not simply succeed in Virginia District Court rather than hoping for appellate relief?

Of course the goal at any trial stage is to win or else to succeed in the next best way in District Court. Nonetheless, a Virginia misdemeanor criminal defendant’s (and even infraction defendant’s for that matter) absolute right to an appeal to Circuit Court from District Court can motivate prosecutors at the District Court stage to agree to more favorable settlement negotiations than otherwise, and judges to issue more favorable sentencing orders than otherwise, lest the case simply be appealed to then take up the limited resources of the Circuit Court.

What are the implications of the Fairfax Court’s waiting until Spring 2021 to resume traffic infraction trials and most jury trials only resuming more than a year from now?

Each courthouse in Virginia is adjusting to Covid-19 by resuming and prioritizing jury trials, spacing out trial dates (Fairfax traffic infractions are waiting until April 2021 to resume) and start times to reduce courthouse crowding, and expanding the types of pretrial and trial matters that may proceed entirely or partly remotely, despite the Due Process and Confrontation Clause issues that come with mandating online court appearances, rather than making them available only with the consent of all parties. I anticipate bottlenecks creating substantial backlogs of both Virginia criminal and civil cases — offset by some degree by people staying home more often and arrested less frequently during the coronavirus — that present challenges in waiting for trial dates, but also new opportunities to succeed with case settlement negotiations.

Will the Fairfax prosecutor’s office ultimately reverse its practice of not participating in most non-DUI / non-intimate partner assault misdemeanor cases?

Having no prosecutor involved in most Fairfax cases other than DUI (under Va. Code § 18.2-266) and assault involving intimate partners, continues to offer opportunities to succeed and challenges. The benefits are having no prosecutorial firepower against Fairfax criminal defendants against whom the prosecutors do not get involved. The frequent disadvantage is that judges will not let police officers in these cases stand in the shoes of prosecutors for settlement negotiation purposes. By the time misdemeanor jury trials proceed in this county starting in early 2022, I anticipate that the county prosecutor’s office will have found funding and/or political expediency to be involved with a wider range of misdemeanor cases.

How important is knowing about unforeseen risks of appealing a Virginia misdemeanor conviction to Circuit Court?

Unless the parties agree to condition a plea deal on waiving the right to appeal to Circuit Court, that appeal right absolutely remains even with a guilty or no contest plea in Virginia District Court. At the same time, appealing to Circuit Court gets a criminal defendant a de novo trial, and does not preclude the prosecutor from recharging the original counts and even new counts against the defendant. Ideally, a criminal defendant will obtain a qualified criminal defense lawyer’s advice and full defense to succeed in court.

How do I withdraw my appeal to Circuit Court?

Virginia law permits criminal defendants to withdraw their appeals on a business day prior to the Circuit Court trial date. It can be risky to wait until the last moment to pursue appellate relief. Of course, while the defendant’s goal on appeal is simply to succeed, if the prosecutor’s office in the process renews or adds criminal counts against the defendant, the defendant’s right to withdraw the appeal of the convicted count(s) does not preclude the prosecutor from continuing to proceed on the recharged or added counts.

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense in Virginia District and Circuit Court against DUI, misdemeanor and felony prosecutions. Call 703-383-1100 for a free in-person confidential consultation with Jon Katz about your court-pending case.