Perhaps the most common question I get is some version of what I call the crystal ball question. "What can you do for me?" "How is this case going to turn out?" "You've been doing this a long time, so what do you think is going to happen?" Or my favorite, "I know you can't predict the future, but can you tell me how you think my case will end up?"
My response is always the same: Don't hire me because you think I can predict the future. Hire me because you think I can have an impact on shaping the future.
Although guaranteeing or making a prediction about specific results in any particular case is essentially impossible, and therefore unethical and should be avoided, lawyers should discuss the various types of outcomes which are possible. Below is a discussion about some of the possible types of outcomes once your case gets to court in Virginia:
Dismissal or Nolle Prosequi
In every case involving a prosecuting attorney, there is at least some discussion exploring the possibility of resolving the matter by agreement without a trial. In a small number of cases, the prosecuting attorney actually agrees not to prosecute the case and asks the Court do dismiss the charge. The latin term for this decision by the government not to prosecute a case is nolle prosequi. In some cases, the judge may decide to dismiss the charge against you. Either of these can happen for any number of reasons, including insufficient evidence of your guilt, absence of a necessary witness, subsequent compliance with a relatively minor violation, or because it is part of a negotiated plea agreement. Your Virginia defense attorney will be able to discuss the likely hood of Nolle Porsequi in Virginia.
Deferred Prosecution / Suspended Imposition of Sentence
Virginia law allows courts to delay making a decision in certain cases for a period of time and to give the defendant an opportunity to fulfill certain conditions which, if successfully completed, could result in the charge being amended, reduced or dismissed at some point in the future. When cases are handled in this fashion, the defendant must typically remain of uniform good behavior, pay court costs, complete counseling of some sort (substance abuse, anger management, shoplifting, etc) and perform a certain number of hours of public and community service work. Your Virginia defense attorney will be able to explain whether your case is the type of case which can be handled in this manner, and if so, what the risks and benefits of choosing to do so are.
Plea Agreement / Plea and Recommendation
In Virginia, many of the misdemeanor criminal cases and traffic offense cases which are heard in Virginia's General District Courts and Juvenile and Domestic Relations District Courts can be handled without a prosecuting attorney. Some jursiditions don't use prosecuting attorneys at all for these cases, other jurisdictions use prosecuting attorneys only for cases in which the accused has a lawyer and other jurisdictions use prosecuting attorneys for all of these cases.
In situations where a prosecuting attorney is involved, the prosecuting attorney will generally make a proposal / offer to the accused or defense counsel regarding how to resolve the case by agreement, rather than having a trial. In some Virginia jurisdictions, this is accomplished by a Plea Agreement and in other Virginia jurisdictions it is accomplished by a Plea and Recommendation. Although these terms are quite similar, the practices they describe are quite different.
- Plea Agreement: If a Plea Agreement is utilized, the agreement includes the sentence to be imposed by the Court and the Court will indicate whether the Plea Agreement is acceptable to the Court.
- Plea and Recommendation: If the situation is one where a Plea and Recommendation is used, the defendant is merely bargaining for the prosecuting attorney to make a recommendation to the Court regarding the sentence to be imposed. There is no guarantee that the Court will accept the recommended sentence. In some Virginia cases, defense counsel negotiates for the prosecuting attorney to remain silent and not make any argument at all regarding the sentence to be imposed, or perhaps not to oppose an argument made by defense counsel. The point is, in this scenario a specific outcome / sentence is not part of the netotiation - the negotiation only involves having the proesecuting attorney proceed in a specified manner - whether that be remain silent, not oppose a certain request of counsel, make a specific recommendation regarding sentence, etc.
Your Virginia defense attorney will be able to have a more in-depth discussion with you about the various ways negotiation is used in the criminal justice process, the specific details of any proposal made for an agreed disposition of your case, and whether it is in the form of a Plea Agreement or a Plea and Recommendation so you can know exactly what to expect when evaluating the offer and deciding how you wish to proceed.
Not Guilty After Trial
The Sixth Amendment to the United States Constitution guarantees you, among other things, the right to a speedy and public trial. If your case is not resolved by agreement, it will proceed to trial unless you give up your right to have a trial and enter a guilty plea. After trial, if the judge or jury believes the government has failed to prove every part of the accusation beyond a reasonable doubt, the law requires you to be be found not guilty. If this happens, you are free to go and no sanctions or punishment will be imposed by the Court.
Guilty After Trial
On the other hand, if your case proceeds to trial and the judge or jury believes that the government did prove every part of the accusation beyond a reasonable doubt then you will be found guilty. If this occurs you will be required to pay court costs, and depending on the case, the Court will likely impose additional sanctions. Some of the more common punishments imposed by Virginia courts are discussed below.
- FINE: If you are convicted of an offense in Virginia, you may or may not be ordered to pay a fine. The maximum fine for misdemeanor offenses is generally $2,500.00, and the amount of the fine can be significantly more if you are convicted of a felony offense. If a fine is imposed, you will be expected to pay this fine, along with court costs, immediately upon completion of your case. In Virginia, even if the judge suspends some, or all, of the fine, you are still required to pay court costs upon leaving the courtroom. Failure to make timely payment of the fine and court costs will result in the suspension of your privilege to drive in Virginia.
- JAIL SENTENCE: If you are convicted of a crime in Virginia, you may or may not be sentenced to serve time in jail. Although some criminal offenses in Virginia are punishable only by a fine, most criminal offenses in Virginia provide for possible incarceration. The maximum jail sentence allowed for any single misdemeanor criminal offense in Virginia is one year. If you spent any time in jail after being arrested and before your case came to trial, you will be given credit for that time and it will reduce the amount of time remaining to be served. The normal procedure is for you to be taken into custody immediately following the resolution of your case, so it is important that you not bring children with you to court so your children and your vehicle are not abandoned if you are incarcerated. In certain limited circumstances the Court may authorize you to either (1) return to court to be sentenced on a different day or (2) report to jail on a later date to begin serving the jail sentence. However, you should not expect or anticipate that you will be afforded that luxury and you should make whatever arrangements are necessary prior to coming to court.
- WORK RELEASE, HOME ELECTRONIC MONITORING, etc: In certain cases, offenders who are convicted of a crime in Virginia and sentenced to serve time in jail may be allowed to fulfill a sentence of incarceration by participating in an alternative sentencing program such as a Work Release program, a Home Electronic Monitoring program (sometimes called Electronic Incarceration) or a Weekend Jail program. You shouild not expect or anticipate you will be allowed to participate in these programs as it is the exception rather than the rule.
- SUSPENDED SENTENCE: If you are convicted of a criminal or traffic offense in Virginia, the Court may suspend some, or all, of the fine and /or jail sentence for a period of time, provided you comply with certain conditions placed upon you by the Court. If you satisfy all of the conditions placed upon you by the Court, you will never have to pay the suspended portion of the fine or serve the suspended portion of the jail sentence. However, if you fail to comply with any of the conditions placed upon you by the Court, it could result in some, or all, of the previously suspended fine and / or jail sentences being imposed.
- PROBATION: If you are convicted of a criminal offense in Virginia and have had a portion of your jail sentence suspended, you may be placed on probation with the Court for a period of time. If you are placed on active probation, a probation officer will be assigned to supervise certain aspects of your life and report back to the Court. Probation officers monitor compliance with conditions placed upon you by the Court and have the authority to place additional conditions upon you. Some of the things a probation officer may require of a probationer and monitor for the Court include periodic drug testing, participation in various counseling and/or treatment programs (substance abuse, domestic violence, anger management, shoplifting, etc.), completion of community service work, payment of restitution, payment of court costs, attendance at school, obtaining and maintaining employment, compliance with all local, state and federal laws and general uniform good behavior.
- PRISON SENTENCE: If you are convicted of a felony offense in Virginia, you may be sentenced to serve a period of time in a state penitentiary / prison. The length of any particular prison sentence will vary depending on the specific felony offense and the specific facts and circumstances of the case – and in certain cases in Virginia the possible punishment includes a sentence of incarceration for life. If you are convicted of a felony offense and are sentenced to serve time in the penitentiary, you will be housed in the local / regional jail until you are transferred to the custody of the Department of Corrections.
- VASAP: If you are found guilty of a DUI / DWI offense in Virginia (sometimes referred to as Driving While Intoxicated or Driving While Under the Influence of Alcohol) you will be required to enroll in and successfully complete the substance abuse education and treatment through the Virginia Alcohol Safety Action Program (VASAP), or a similar program approved by VASAP. This requirement is usually a condition of a suspended sentence, and in all cases it must be done before your privilege to drive in Virginia can be reinstated. VASAP employees will perform an assessment of your drinking habits and establish a course of education and/or treatment for you which you must complete in order to satisfy the order of the Court. VASAP also essentially fulfills the role of a probation officer in Virginia because if you fail to comply with the treatment program established for you by VASAP, your case worker at VASAP will report your failure to the Court. If this happens it will likely result in the Court issuing a contempt citation requiring you to come before the Court and explain why you should not be incarcerated for failing to comply with Court’s order.
- SUSTANCE ABUSE TREATMENT: If you have been found guilty, or have been given the benefit of a Deferred Disposition, in a case involving drugs and/or alcohol in Virginia, you may be required to complete a substance abuse counseling / treatment program in addition to, or as an alternative to, completing VASAP. Depending on the facts and circumstances of the case, this required counseling / treatment may be either on an inpatient or outpatient basis.
If you are convicted of a traffic or criminal offense in either a General District Court or a Juvenile and Domestic Relations District Court in Virginia, you have the right to appeal the conviction and have a new trial in a Virginia Circuit Court. Unlike Virginia’s General District Court and Juvenile and Domestic Relations District Court, when your case comes to trial in a Virginia Circuit Court you can have a jury trial if you wish to have one. The procedure you must follow to appeal a case is not complex, but it must be done within 10 calendar days of your conviction. It is wise to consult with an attorney if you plan to appeal your case to the Circuit Court.
If you are found guilty in a Virginia Circuit Court, you can appeal your case to either the Virginia Court of Appeals or the Virginia Supreme Court. However, this appeal is completely different than an appeal from a Virginia District Court to a Virginia Circuit Court and the process is quite complicated. Unlike the appeal from a Virginia District Court to a Virginia Circuit Court which results in a new trial, an appeal to the Virginia Court of Appeals or the Virginia Supreme Court does not result in a new trial. Instead, in an appeal to either the Virginia Court of Appeals or the Virginia Supreme Court, you are alleging significant mistakes were made during your trial which prevented you from receiving a fair trial and you are asking the appellate court to agree with you.
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