Criminal Defense Lawyer in Virginia Beach

What is the court process like for a felony charge in Virginia?

Well, it all starts with your paperwork. If you are charged with a Felony in Virginia then you should at some point receive some paperwork, likely served by a police officer. That paperwork should have your identifying information on it, and it should have the exact charge that you are charged with and it should have the alleged offense date of said charge, and it should also have your very first court date and time on it as well. For example, let’s say that someone was charged with one count of Felony Possession of a Schedule 1 or Schedule 2 drug, which is a class 5 Felony, that allegedly occurred on 10-1-25 in the city of Virginia Beach. At some point you should have received a warrant for that charge. On that paper work it would include your identifying information, it would show you are charged with Felony Possession of a Schedule 1 or Schedule 2 drug which is VA Code Section § 18.2-250 and it would should that it was a class 5 Felony and would would have the alleged offense date of 10-1-25, it would also show your first court date, which is called your arraignment.  For example, it might say that your first court date is 11-1-25 in Virginia Beach General District Court, Courtroom “F” at 8:30 am. After the arraignment the case is usually set out to a preliminary hearing date. The preliminary hearing is generally set around 2-3 months out from the arraignment. That preliminary hearing is to determine whether or not the Commonwealth’s Attorney has probable cause for the felony charge against you. Please note that if you are charged with a Felony you can pretty much safely assume that the Commonwealth’s Attorney is prosecuting the case. In my experience, the Commonwealth’s Attorney’s always prosecute felonies regardless of the jurisdiction. The preliminary hearings are heard in the lower courts, so either in Juvenile & Domestic Relations Court or the General District Court. If you look at the link, you can see why a felony preliminary hearing may fall in one court opposed to another.

So what happens at the preliminary hearing? Well, a couple of things could happen. One thing is if your lawyer is able to work a plea deal to get your felony reduced to a misdemeanor that plea deal could occur in the lower court on the date of the preliminary hearing. The reason that is allowed is because the lower courts have jurisdiction to hear and resolve all misdemeanors. Otherwise, the lower courts only have authority to determine whether or not probable cause exists for felonies. They do not have jurisdictions to resolve felonies, they may only resolve felonies that are reduced to misdemeanors. A second thing that could happen at the preliminary hearing is your lawyer could make the prosecutor go forward with the preliminary hearing.  At that hearing your lawyer can cross examine the Commonwealth’s Attorney’s witnesses. In that case, the prosecution would be required to call witnesses to establish probable cause for your felony. If they prevail then the felony charge would be certified to the circuit court. If they do not prevail the felony charge would be dismissed due to lack of probable cause. Please note that if your lawyer gets the felony dismissed at a preliminary hearing due to lack of probable cause the Commonwealth’s Attorney still could bring back the Felony by directly indicting it in circuit court and putting it before a grand jury and if the grand jury issues a true bill the charge would then exist as a current felony pending before the circuit court. Generally speaking, if the lawyer got the felony dismissed at the preliminary hearing based on an error that the prosecutor could correct then the prosecutor would likely correct the error and then directly indict the felony. Conversely, if the lawyer got the felony dismissed at the preliminary hearing based on an error the prosecutor would not be able to correct, then they would likely not directly indict the felony. Lastly, your lawyer could advise you to waive your preliminary hearing. Here are some reasons a defense lawyer might want to waive a preliminary hearing:

#1= The lawyer already worked out a plea deal with the prosecutor on your behalf for a plea deal that is to be taken in the Circuit Court and part of that deal was for you to waive the preliminary hearing. Note, this is a good reason to waive a preliminary hearing.

#2= The lawyer does not have a plea deal worked out with the prosecutor; however, the lawyer has some genuinely strategic reason to waive the preliminary hearing nonetheless. An example of a strategic reason for this might be that the case against you primarily consists of a video or voicemail etc and the lawyer does not want to give the prosecutor a dry run for entering it into evidence correctly.

#3= The lawyer does not have a plea deal worked out with the prosecutor; and the lawyer has no strategic reason for waiving the preliminary hearing. In my opinion this is NOT a good reason for a lawyer to waive a preliminary hearing. Sadly, this happens a lot.

Ultimately, it is your decision to waive the preliminary hearing.

What happens if the Felony is certified to the Circuit Court? At this point the Felony is now in the Circuit Court and there are essentially 4 possible outcomes:

Outcome #1=  The prosecutor ultimately ends up dropping the case in circuit court. 

Outcome #2= Your defense lawyer works out a plea deal with the prosecutor in circuit court and that plea deal is taken in circuit court.

Outcome #3= Your lawyer has you plead guilty to the judge without a plea deal with the prosecutor. Note, this rarely ever makes any sense to do this. Once in a blue moon there is a strategic reason to do it, but it is very rare.

Outcome #4 = You do a trial by Judge on the Felony.

Outcome #5= You do a trial by jury on the Felony.

Lastly, remember how I said even if the prosecutor loses the preliminary hearing they could still directly indict your felony in circuit court so long as the grand jury issues a true bill? Well, the prosecutors are also allowed to do that very same thing with felony charges and may even bypass the preliminary hearing altogether if they so choose. In these cases, the felony charge would originate in the circuit court. Your case would begin and end in the circuit court, and it would never be seen in the lower court. You would not have a preliminary hearing in that case. Your arraignment would be the same process as the lower court but it would be heard in the Circuit Court. Generally speaking prosecutors allow the felonies to originate in the lower court opposed to directly indicting them in the circuit court, so the vast majority of felonies in Virginia will start out in the lower courts. As a little tip, here are some examples when prosecutors might be more likely to directly indict felonies right off the bat:

If the case involves a confidential informant the prosecutors are more likely to directly indict, they do this to try to protect their identity. An example of this usually deals with charges for possession with intent to distribute.

If the case is an absolute slam dunk for the prosecutor, they do this because they can. An example of this is cases where someone is charged with providing a false statement on a gun application form.

Please note, Attorney Matthew Barbero handles all criminal misdemeanors and criminal felonies.