Richardson & Rosenberg, Trials

Portsmouth Criminal Defense Attorneys

The jury does not receive Sentencing Guidelines. A Judge can reduce a jury verdict, but cannot increase it. This rarely occurs. The Judge who presides at trial must preside at sentencing. The decision whether to waive jury trial is important. We can use our experience to help you make it. Jury trials should be requested in some cases but most cases are better suited to be heard before a Judge without a jury. Our many years of jury trial experience can help you make an informed decision.

Jury Trials - If a defendant pleads "Not Guilty", unless the defendant, Commonwealth, and Judge agree to have a Judge decide the case, (Bench Trial), a jury must decide the case. There are 12 jurors in a felony case, and 7 in a misdemeanor case. Should the defendant be found guilty, the jury, after hearing additional evidence including the defendant's records of previous juvenile and adult convictions, if any, recommends a sentence. If the jury finds the defendant guilty of some offenses relating to driving a motor vehicle, they will also be provided a copy of the defendant's DMV records.
Suffolk , Isle of Wight, Southampton - Due to the limited Court schedule and Judge availability in these jurisdictions, there may be a much longer waiting time for a jury trial date.
Portsmouth , Chesapeake - Usually, jury trials are set within 60-90- days of indictment in Portsmouth and Chesapeake.

Plea Agreements (Plea Bargains) in Felony Cases

The Commonwealth is not required to offer a plea agreement in any case. Virginia Supreme Court Rules 3A: 8 (B) and (C) govern this practice. All plea agreements must be in writing and unlike some jurisdictions, Virginia Circuit Court Judges do not get involved in negotiations.

When a Judge is presented with a plea agreement, they can either:

Accept it
Reject it
Decide whether to accept it after reviewing a Pre-Sentence Report, which includes Sentencing Guidelines and information about the defendant and the offense(s) before the Court.

The most common types of Plea Agreements are:

Agreed Disposition - If the Judge accepts the agreement, the defendant is sentenced to the disposition specified. If the Judge rejects the agreement, the guilty plea may be withdrawn and another Judge can try the case.
Recommendation – The Commonwealth recommends a sentence. The Judge does not have to follow the recommendation, and if the Judge does not, the guilty plea cannot be withdrawn. This type of agreement is usually not advisable.
Charge Bargain – The Defendant pleads guilty to some charges, and others are dismissed or nolle prossed. There is no agreement as to sentencing – the Judge ultimately decides.
Sentencing "Cap" – The Defendant pleads guilty to some or all of the charges. A “Cap” provides that the amount of incarceration will not be more than a certain amount of time (e.g. 5 years), but the defense can argue for a lesser sentence.

Guilty Pleas (Felonies)

City of Suffolk, Chesapeake, Isle of Wight County, and Southampton County - If a defendant pleads guilty and sentencing takes place after preparation of a pre-sentence report, the Judge who accepted the guilty plea does not have to conduct sentencing.
City of Portsmouth - In most cases, the Judge who accepted the guilty plea conducts sentencing. Exceptions are sometimes made when a substitute (retired) Judge accepts the guilty plea.

Virginia Felony Sentencing Guidelines

All defendants sentenced for a felony offense in Virginia must have Sentencing Guidelines prepared. Judges do not have to follow them; depending on the offense and Judge, they are usually followed 60-80% of the time. Judges can go above or below the Guidelines unless there is a Plea Agreement with an agreed sentence. A sentence will not be reversed on appeal if a Judge exceeds the sentencing guidelines.

Call us today at (757) 397-1000 for the representation you deserve!