Virginia Felonies

Felonies are typically the most serious crimes in any system of criminal law. A standard definition of a felony is any crime punishable by more than one year in prison or by death. This means that any crime that has a sentence of only a fine or confinement in the local jail is not a felony. Often the offense itself is not labeled as a felony, but the punishment tells the public that the offense is a felony. On the other hand, state codes may label a crime a “gross” or “aggravated” misdemeanor but provide for a sentence of more than one year in the state penitentiary system, thereby ensuring that the so-called misdemeanor is treated as a felony in many respects.

If a crime is a felony, additional criminal procedures apply. The right to a court-appointed attorney in cases where the defendant is too poor to afford to hire a lawyer is usually triggered if the charge is a felony, but not for less-serious crimes. Likewise, whether or not a criminal defendant must be present in court for various parts of the process may depend on whether he or she is charged with a felony. In some jurisdictions, felonies can only be charged upon a grand jury indictment, while lesser crimes can be charged by a written information. Criminal defendants and witnesses can have their testimony disregarded in some jurisdictions by showing a prior conviction for a felony but not for a lesser crime. Finally, many jurisdictions base their “three strikes” laws on felonies but not Misdemeanors. If the offender has been twice convicted of a felony, one more felony conviction will subject him to life in prison.

In addition to differences in procedural criminal law, the substantive law can be affected if a crime is designated a felony. Some statutes make an accidental death a murder if it occurs in the commission of a felony, but if it occurs in the commission of a lesser crime, it is only manslaughter. Burglary is defined at common law as breaking and entering a house for the purpose of committing a felony; if the purpose was not to commit a felony the crime cannot be charged as burglary. The crime of conspiracy may carry a harsher penalty if the offense is conspiracy to commit a felony rather than conspiracy to commit a misdemeanor. Justifiable homicide is sometimes described as a killing to prevent the commission of a felony, although more commonly it is limited to prevention of certain of the most serious felonies.

A person convicted of a felony may have more restrictions on their rights than a person convicted of a lesser crime. In many jurisdictions, felons cannot serve on juries. Often times they lose their right to vote or to practice certain professions, such as being a lawyer or a teacher. Felons may be prohibited from owning guns or serving in the military. Some states have a “three strikes, you’re out” statute which provides that a person who already has been convicted of two felonies may be sentenced to life in prison if he or she is convicted of a third felony.

Examples of some felonies are assault in the first degree or assault that causes serious bodily injury, all degrees of murder, rape or sexual abuse in the first degree, grand theft, kidnapping, embezzlement of large amounts of money, serious drug crimes, and racketeering.

Quiz: Do I Have The Right to an Attorney?

Anyone who has ever watched a police drama on television, or has gone to a police movie at the theaters, has heard the infamous line “you have the right to an attorney.” And in fact people suspected of a crime are often entitled to an attorney. However, that right does not always exist. The following quiz may help answer the question of when you are entitled to have an attorney present.

Q: Jake is stopped by the police while driving his car. The officer tells him that he is going to write him a speeding ticket and Jake says, “wait a minute! I want a lawyer!” Does he have a right to an attorney at that point?

A: No. Jake does not have a right to an attorney when he is receiving a speeding ticket. Speeding, while against the law, is considered a moving violation. Jake cannot request an attorney to defend him at this stage. Of course, he can protest the ticket and can pay to have an attorney represent him through that process if he wishes.

Q: Bonnie has been suspected of murdering her husband. She has been arrested and brought to the police station where she has been placed in an interrogation room and handcuffed to the table. The police have started to ask her a number of different questions about her whereabouts on the night of her husband’s death and have asked her if she in fact murdered him. Does she have the right to have an attorney present?

A: Bonnie has been arrested for murder, and she is in police custody and under questioning for the crime. She is in a situation where she is not free to leave, or walk out on the questioning. If she asks for an attorney, she must be allowed to contact one and the questioning must stop until her attorney is present.

Q: Lee is shopping in a grocery store when he is approached by the police. They start to ask him questions about whether he has just left the scene of a car accident in which another motorist was killed. Does Lee have the right to an attorney?

A: Not immediately. Lee, like Bonnie, is being questioned about a crime. However, he is not being confined. He can walk away from the police at any time and can refuse to answer any more questions. If the police place him under arrest, or if they place him in a confined situation, he may request an attorney to assist him.

Q: Miguel is brought in for questioning by the police about a string of robberies in his town. He asks to speak to an attorney, and is allowed to contact one. The attorney is present for the remainder of the questioning. After his attorney leaves, Miguel is placed in a holding cell where he waits for five hours. The police then bring him back into the interrogation room and start asking him more questions. Miguel asks for his attorney to return, and the police tell him, “sorry, you already had your chance with your attorney.” Is Miguel entitled to have his attorney present at this second questioning?

A: Yes. Miguel has a right to have his attorney present at any time that he is being questioned. It is not a “one-shot” deal as the police have told him. All people in police custody who are under suspicion of a crime are entitled to have an attorney present any time that they are being questioned by the police.

Q: Jim is traveling in a foreign country and has been arrested for using illegal drugs. Does he have the right to an attorney?

A: It depends on the laws of that country. In some foreign countries, criminal suspects, or those persons placed under arrest, have the right to an attorney much as they would in the United States. In other countries, they may not have that same right. Jim’s status as a U.S. citizen will not necessarily protect him. If possible, he should attempt to contact the U.S. Embassy or the U.S. Consular Officer for that country. While a Consular Officer cannot act as his attorney, he or she will be able to help him contact an attorney or his family in the United States.

Q: Al is a homeless man living on the streets of a large U.S. city. He is arrested one day for killing another homeless person. He has confessed to the crime and is being held in jail, because he cannot afford bail. He cannot afford an attorney, either. Is he entitled to one?

A: Yes. People have the right to an attorney, even if they cannot afford one. In this situation, the state will appoint a public defender to represent Al in his criminal trial. Even though Al has already confessed to the crime, he is still entitled to an attorney.

Q: Martina is a millionaire who has been arrested on suspicion of kidnapping her child, who normally lives with her ex-husband. The police have told her that the only attorney she may have is a public defender. Is Martina entitled to her own attorney?

A: Yes Martina can afford to pay for her own attorney, and she has requested her own attorney. In this type of situation, the police cannot force her to accept the services of the public defender.

Q: Justin has been arrested for making terroristic threats against the U.S. government. He wants to represent himself, but there is a valid concern that he is not sane. Does he have to have an attorney?

A: Justin can be allowed to represent himself. Attorneys or other legal assistants cannot be forced upon anyone. When defendants may not appreciate the charges that have been brought against them, or where they may not be able to adequately defend themselves due to their diminished mental or rational capacities, the court may appoint an attorney to act as their legal advisor.