1.5 Sequence of a Typical Criminal Case

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

1.5 SEQUENCE OF A TYPICAL CRIMINAL CASE

The sequence of a criminal case will vary depending upon whether the accused is charged with a felony or with a misdemeanor. The sequence described below also may vary depending on such factors as plea bargaining and waiver by the accused of various steps in the process.

1.501 Arrest and Arraignment. The first major step directly involving the accused is the arrest. An arrest may be made with or without a warrant or upon a capias issued by a court. ¹⁰⁴

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Regardless of the nature of the arrest, the accused is then taken before a judicial officer or magistrate. ¹⁰⁵ The magistrate determines the conditions for pretrial release ¹⁰⁶ and, if the accused has been arrested without a warrant, determines whether there is probable cause to believe that the accused committed a criminal offense. ¹⁰⁷ If probable cause is found, the magistrate must issue an arrest warrant. If the accused has been arrested under the authority of a capias or arrest warrant, the magistrate should also determine that the individual is the person named in the capias or warrant.

After the appearance before the magistrate, the accused is brought before a judge of a sitting district court, who determines whether the accused, if indigent, is entitled to the appointment of counsel. ¹⁰⁸ However, if the arrest order was made by a circuit judge, the accused is brought before that judge as soon as possible, but no later than three calendar days, excluding Saturdays, Sundays, and holidays. ¹⁰⁹

1.502 Preliminary Hearing or Trial on Misdemeanor. If the charge is a misdemeanor, the district court judge tries the case (if the accused is prepared) or sets the case for trial. ¹¹⁰ If the offense is a felony, the judge conducts the preliminary hearing (if the accused is prepared) or sets the case for a preliminary hearing. ¹¹¹ The district court certifies all felonies to the circuit court upon a finding of probable cause at the preliminary hearing, dismisses felonies for which probable cause was not found, or may reduce those felonies to a misdemeanor if there is a lesser included misdemeanor. ¹¹² If a felony charge is reduced to a misdemeanor after hearing evidence in the preliminary hearing, the district court determines guilt or innocence and sentences the defendant on the misdemeanor. ¹¹³ A defendant may appeal any final disposition of a misdemeanor to circuit court "at any time within ten days from such conviction, and whether or not such conviction was upon a plea of guilty . . . . There shall also be an appeal of right from any order or judgment of a district court forfeiting any recognizance or revoking any suspension

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of sentence." ¹¹⁴ Such an appeal to the circuit court is de novo and does not go through the grand jury process. Most circuit courts have specific dates on their calendars to handle appeals from general district court.

1.503 Grand Jury Indictment and Arraignment in Circuit Court. At the next seating of the grand jury, it will consider any felony charges certified by the district court for grand jury deliberation, and any original charges directly presented to the grand jury for indictment prepared by the commonwealth's attorney. The grand jury then determines whether there is probable cause to indict as to each bill, and makes its return. ¹¹⁵ If the grand jury concludes that sufficient probable cause exists, it returns a true bill.

If a true bill has been returned by the grand jury, an arraignment is held in the circuit court. The arraignment consists of reading the charge on which the accused is to be tried and calling on him or her to plead to the charge. ¹¹⁶ The accused may plead guilty, not guilty, or nolo contendere. ¹¹⁷ If the accused pleads not guilty or refuses to enter a plea, the case is set for trial. The circuit court also determines whether the accused requests court appointed counsel or will hire an attorney. In most cases, any attorney representing the defendant in general district court continues to represent the defendant in circuit court.

1.504 Disposition in Circuit Court. If the accused enters a plea of guilty, the court hears and determines the case without a jury and determines punishment. ¹¹⁸ The accused may also enter a conditional guilty plea on either a misdemeanor or felony in circuit court, with the approval of the court and the consent of the Commonwealth, to preserve issues for appeal. ¹¹⁹

If the case is set for trial, there are certain motions, objections, and notices that the defense must make or give before trial. Failure to raise certain objections to prosecution before trial may result in waiver. ¹²⁰ In addition,

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the accused may make other motions that may be determined without trial of the general issue, as well as motions relating to discovery. ¹²¹

The trial of a felony or the appeal of a misdemeanor conviction is in the circuit court, and the case must commence within specified...