Virginia criminal defense – Some key procedural statutes and cases for trials and appeals

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Apr 04, 2017 Virginia criminal defense – Some key procedural statutes and cases for trials and appeals

The following statutes and caselaw is 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.

– In Virginia, 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 § 16.1-136; 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).

– 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.

– Misdemeanor appeals to the Circuit Court are by jury. Va. Code §§ 16.1-132 and 16.1-136.

– 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 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

– If a jury convicts for a felony or Class 1 misdemeanor, the jury will recommend a sentence, only permitted to recommend active jail time and/or an active fine amount. Va  Code § 19.2-295.1. The sentencing jury is not instructed on the judge’s option to reduce (Batts v. Com., 30 Va.App. 1, 515 S.E.2d 307 (1999)) and/or suspend (Va. Code § 19.2-303; Duncan v. Com.2 Va.App. 342 (1986) (with a probation period imposed for any suspended incarceration time) part of the jury’s recommended sentence. The jury is not advised about Virginia’s discretionary sentencing guidelines, which apply to felony cases other than Class 1 felonies. Va. Code § 19.2-298.01. The jury is not permitted to recommend a sentence below the statutory minimum, even though the judge is permitted to suspend part of the statutory minimum sentence unless it is a mandatory minimum sentence. Judges do not always reduce or suspend a jury’s sentencing recommendation, but the jury’s recommendation caps the final sentence imposed by the judge.

– For felony sentencing, the court “shall, in addition to any other punishment imposed if such other punishment includes an active term of incarceration in a state or local correctional facility, except in cases in which the court orders a suspended term of confinement of at least six months, impose a term of postrelease supervision of not less than six months nor more than three years, as the court may determine. Such additional term shall be suspended and the defendant placed under postrelease supervision upon release from the active term of incarceration.” Va. Code § 19.2-295.2(A). 

– The meaning of a plea of no contest/nolo contendere is governed by Com. v. Jackson, 255 Va. 552 (1998).

– Written motions are not required to be filed in District Court  versus in Circuit Court. Va. Code § 19.2-266.2 (“[s]uch a motion or objection [including motions to suppress evidence] in a proceeding in circuit court shall be raised in writing, before trial”; “[i]n a criminal proceeding in district court, any motion or objection as described in subsection A may be raised prior to or at such proceeding”).

– When a defendant testifies at trial even in a limited scope, that opens the door to the prosecutor’s cross-examining him about anything relevant to the prosecution.  Drumgoole v. Commonwealth, 26 Va. App. 783 (1998).

– “[W]hen a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.”  Simmons v. United States, 390 U.S. 377  (1968).

At first blush, Virginia criminal procedure presents a dizzying array of rules. Those rules provide many opportunities and potential pitfalls.

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