What’s the Difference Between a Felony and Misdemeanor in Virginia?

What are the main differences between a felony and misdemeanor in Virginia?In Virginia, there are significant differences between misdemeanors and felonies that need to be thoroughly understood before anyone can properly consider their own case. This article will discuss a few key differences.

(Special note regarding this article - Of course, with any offense, there may be other tangential consequences not addressed in this article that can impose serious consequences, for example, a license suspension for DUIs or requirement to be on the Sex Offender Registry for sex offenses. This article is meant to provide a foundational understanding of the differences between felonies and misdemeanors. You will certainly need to ask more questions of your attorney if you are charged with a crime.)

Punishment

The first major difference is punishment one can receive if convicted. While both misdemeanors and felonies are subdivided into different “classes,” this article will discuss them in their most serious terms.

When it comes to misdemeanors, an individual can receive up to a year in jail and up to a $2,500 fine.

For felonies, an individual is eligible to receive greater than a year in jail, thus making him or her eligible for a prison sentence. Just how many years a person can receive for a felony conviction will vary depending on the crime of which they are convicted. As you likely know, some felonies are so serious that one can receive a life sentence and even a death sentence.

So, if you’re facing a charge, you must first determine whether it’s a felony or misdemeanor because the possible results can have huge differences.

Label of “Convicted Felon”

Another significant difference is the mere fact of being convicted of a felony. With a felony conviction there comes with it the loss of many civil rights, including the right to vote and own firearms. There are also other consequences that will be person/case dependent. Again, you’ll have to talk to your attorney specifically about your case.

The label of being a convicted felon also brings with it a serious “political” connotation. When employers look at job applications, it will be an issue; if you’re applying for college, it will be an issue; and it will come up in many other ways.

One remarkable way it becomes an issue is if you have to testify in court for ANY matter. Being a convicted felon is relevant cross-examination for your testimony. So, if 10 years down the road you’re injured in a car accident and have to testify about it, you will likely be asked to admit that you’re a felon. 

This does not mean to say that having a misdemeanor conviction is not an issue.  Indeed, any criminal conviction is very serious.  But being a convicted felon will have significant consequences no matter how much time passes.

Felonies Progress through Virginia Courts Differently than Misdemeanors

Another significant difference is how cases are prosecuted in Virginia. For misdemeanors, your charge generally starts in the District Court (the lowest trial court). You have a trial in that court and if you lose, you can appeal it to the Circuit Court (the highest trial court). So that means that your first significant court date is your trial.

For felonies, there’s a much different process. Felonies start in the District Court, where a preliminary hearing is held. At the preliminary hearing, the District Court judge determines whether there is probable cause for the case to go forward.  If the judge “certifies” probable cause, then the charge goes to the grand jury.  

A grand jury, while important, is largely just a formal process where the felony will be presented to citizens by the Commonwealth (with no opportunity for the defense to question any evidence) and the grand jury may then issue an indictment.

If the grand jury issues an indictment, the case then goes to the Circuit Court where a trial is set for the accused. For felonies, you have a choice of a jury (which will be comprised of 14 members) or a judge. (Note - you can also have a jury for a misdemeanor appeal in the Circuit Court, but there will only be seven jury members on the panel.)

As you can see, the felony criminal procedure is a bit more complex. The strategies for defending the case will likely be wildly different than if it were a misdemeanor. For example, an accused's inclination may be for his or her attorney to “fight” a felony charge at the preliminary hearing. The problem is even if a judge finds that the felony lacks probable cause, the Commonwealth (prosecutor) can simply “direct indict” the charge to a grand jury and it can  still make it to the Circuit Court. You need to discuss your case strategy with your attorney to understand the intricacies of the criminal procedure in your case.

Also, because felonies carry with them much more serious punishment time frames, the Court will use Sentencing Guidelines to help fashion a punishment in the event of a conviction. Sentencing Guidelines are essentially worksheets that help the Court determine what the “average” sentence is for the conviction of a particular crime. They factor in one's criminal history, age, facts of his or her case, and other variables.

While the Sentencing Guidelines are not mandatory for a judge to follow, if the judge fails to follow the Guidelines, the judge is required to state in writing the reason why he did not follow the guidelines. So, you and your attorney should review the Guidelines if you are facing a felony.

This means that if you are charged with a crime, you need to appreciate the difference between felonies and misdemeanors so that you can understand the charges and ultimately make the best decision for your case.

Remember, NO conviction in Virginia (whether felony or misdemeanor) can be expunged.

I want to be clear, if you are convicted of a crime in Virginia, your conviction cannot be expunged. That’s for both misdemeanors and felonies. So, if you’re charged, you absolutely need to seek out knowledgeable counsel before deciding what you want to do with your case.  For a more in-depth discussion of Virginia expungement law, check out my article here

James S. Abrenio
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Focusing on criminal, traffic defense and personal injury cases