1.4 The Criminal Justice System in Virginia

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

1.4 THE CRIMINAL JUSTICE SYSTEM IN VIRGINIA

1.401 In General. Each county in Virginia has a court of record with jurisdiction to try any criminal case, a court not of record to try misdemeanors, a commonwealth's attorney to prosecute cases for the government, and one or more magistrates to issue arrest and search warrants and grant bail. Certain enumerated cities have a similar system. ⁵⁵ There are two appellate courts: the Supreme Court of Virginia and the Court of Appeals of Virginia.

1.402 The Courts.

A. Supreme Court of Virginia. The Supreme Court of Virginia is created under the provisions of Article VI of the Virginia Constitution. Under Section 1 of Article VI, the Supreme Court has original jurisdiction in cases of (i) habeas corpus, (ii) mandamus and prohibition, (iii) claims of actual innocence by convicted felons, (iv) judicial censure, retirement, and removal, and (v) state law questions certified from the courts of other states or the United States. In all other cases, the Supreme Court's jurisdiction is appellate. The court consists of seven justices, chosen by the General Assembly for terms of 12 years. ⁵⁶ The Chief Justice is elected by a majority vote of the justices and serves a term of four years. ⁵⁷

The Supreme Court is constitutionally authorized to sit and render final judgment en banc or in divisions as prescribed by law; no decision becomes the judgment of the court except on the concurrence of at least three justices, and no law may be declared unconstitutional under either the Virginia Constitution or the Constitution of the United States except on the concurrence of a majority of all justices. ⁵⁸

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The General Assembly, by statute, ⁵⁹ has authorized the court to sit in divisions, as prescribed by rules of the court. ⁶⁰ If the justices composing any division differ as to the judgment to be rendered or if any justice of a division certifies that in his or her opinion a decision is in conflict with a prior decision of the court or one of its divisions, the case must be reheard and decided by the court sitting en banc.

B. Court of Appeals of Virginia. The Court of Appeals has jurisdiction to hear appeals from any final conviction in a circuit court of a traffic infraction or a crime, except that the Virginia Supreme Court hears the appeals in cases where a sentence of death is imposed. ⁶¹ Appeal to the Court of Appeals lies only from a final conviction in the circuit court, but under Virginia Code sections 19.2-124 and 19.2-319, the court also may hear appeals from the circuit court denying or fixing the amount and terms of bail before the underlying case is finalized. Appeals from a final judgment of a circuit court involving a petition for a writ of habeas corpus lie directly and exclusively to the Supreme Court. ⁶²

Review of criminal cases in the Court of Appeals is by petition for appeal. When an appeal has been taken to the Court of Appeals, the Supreme Court, in its discretion, on motion of the Court of Appeals or on its own motion, may certify the case for review by the Supreme Court before it has been determined in the Court of Appeals. ⁶³

Decisions of the Court of Appeals are final and without appeal to the Supreme Court in traffic infraction and misdemeanor cases where no incarceration is imposed, although review may be had in the Supreme Court if these cases present a substantial constitutional question or involve matters of significant precedential value. ⁶⁴ In all other cases, any party aggrieved by a final decision in the Court of Appeals, including the Commonwealth, may petition the Supreme Court for review. ⁶⁵

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C. Courts of Record. Courts of record, designated as circuit courts, are created by the General Assembly ⁶⁶ by the authority conferred by the Virginia Constitution. ⁶⁷ Each county in the state, and certain enumerated cities, has a circuit court designated as the circuit court of that county or city.

The various circuit courts are grouped into thirty-one judicial circuits, each embracing one or more counties and cities, ⁶⁸ and each individual circuit has two or more judges. ⁶⁹ Circuit court judges are elected by the General Assembly for terms of eight years. ⁷⁰

The circuit courts have original jurisdiction over all felonies and presentments, informations and indictments for misdemeanors, ⁷¹ and original writs of habeas corpus, ⁷² and appellate jurisdiction over misdemeanors tried in courts not of record. ⁷³ They also have jurisdiction to hear motions to modify, dissolve, or extend their own protective orders. ⁷⁴ Circuit courts may try misdemeanor cases brought by presentment, indictment, or information or may certify the presentment, indictment, or information for trial in the district court that would otherwise have jurisdiction. ⁷⁵

D. Courts Not of Record. Courts not of record, designated as district courts, are also created by the General Assembly under the authority conferred by the Virginia Constitution. ⁷⁶ The district courts are divided into two branches: general district courts and juvenile and domestic relations district courts. The district courts are divided into thirty-two districts encompassing all the counties and cities in the state. ⁷⁷ Each...