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Virginia Criminal Defense Procedures

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Virginia criminal defense procedures

Virginia criminal defense procedures explained

Virginia criminal defense is not only about preparing for trials and challenging the existence of proof beyond a reasonable doubt. As a Fairfax criminal lawyer, I know that mastery of criminal procedure and well-executed procedure is part of the toolkit for winning defense.

The following statutes and caselaw are important for all Virginia criminal defense practitioners to have handy

  • A Virginia District Court criminal defendant’s appeal deadline is within ten calendar days of his sentencing, and an appeal is not precluded by a guilty nor no contest plea. Va. Code §§ 16.1-132 and 16.1-296.

Virginia criminal defense involves de novo jury trials on appeal

  • For Virginia criminal defense, misdemeanors (offenses jailable for no more than one year) must be tried in District Court without a jury before a de novo jury trial is available. Va. Const. Art. I, § 8; Va. Code §§ 16.1-132 and 16.1-136; McCormick v. Virginia Beach, 5 Va. App. 369 (1987) (confirming the jury trial right for all de novo criminal appeals to a Virginia Circuit Court, as opposed to the federal Constitution’s limit of the jury trial right to petty offenses). The United States Supreme Court has upheld the Constitutionality of two-tiered state systems that require a bench trial before a de novo appeal may proceed by jury. Ludwig v. Massachusetts, 427 U.S. 618 (1976), as has the Virginia Supreme Court in Manns v. Commonwealth, 213 Va. 322 (1972).

Fairfax criminal lawyer on misdemeanor jury trials

  • For Virginia criminal defense, an appeal will be a trial is de novo, and the sentence in District Court does not cap the possible penalty in Circuit Court.Va. Code § 16.1-136. If the appeal follows the entry of a guilty or no contest/nolo contendere plea deal whereby certain counts were amended to more favorable counts or entered nolle prosequi/not prosecuting, the defendant exposes himself or herself to a Circuit Court trial on all the original criminal counts against the defendant.
  • Although perhaps counterintuitive, the defendant is entitled to a jury trial on appeal to Circuit Court for a non-jailable traffic infraction. Va. Code § 19.2-258.1.
  • A misdemeanor jury trial for Virginia criminal defense is conducted before a jury of seven members, and a felony jury trial before twelve members. Va. Code § 19.2-262.
  • Any withdrawal of a criminal appeal to Circuit Court must be effectuated at least one business day before the appeal is to be tried in Circuit Court. Va. Code § 16.1-133.

This is part one of a two-part article. The second part is here.

Fairfax criminal lawyer Jonathan L. Katz pursues your best approach to a winning defense against felony, misdemeanor, DUI, drug and sex prosecutions. To discuss your Virginia criminal defense case with Jon Katz, please call his staff at 703-383-1100 to schedule a confidential consultation.