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Q: Misdemeanor Allegations in Virginia ( Answered 5 out of 5 stars,   0 Comments )
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Subject: Misdemeanor Allegations in Virginia
Category: Relationships and Society > Law
Asked by: legalquestion20-ga
List Price: $20.00
Posted: 14 Dec 2003 00:03 PST
Expires: 13 Jan 2004 00:03 PST
Question ID: 286937
I hope you can answer my questions?this is weighing on my mind:

I was served with two misdemeanor warrants for the following
violations (I can provide you with the warrant numbers if necessary,
but only confidentially):
 18.2-96 less than $200
 18.2-178 less than $200

I have a number of questions in regard to this:

1. At the following URL, I was able to view the VA crimnal code
(http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC1802000), and
read up on  18.2-178:

Obtaining money or signature, etc., by false pretense. 
If any person obtain, by any false pretense or token, from any person,
with intent to defraud, money, a gift certificate or other property
that may be the subject of larceny, he shall be deemed guilty of
larceny thereof;

OR if he obtain, by any false pretense or token, with such intent, the
signature of any person to a writing, the false making whereof would
be forgery, he shall be guilty of a Class 4 felony.

In regards to 18.2-178, it looks like I was charged with larceny and
not the felony clause (both warrants said Misdemeanor at the top)?do
you agree?

2. I got into trouble as a JUVENILE 15 years ago in CA. Will this
information be available to the courts/police? Some of the charges
were felonies and were reduced (and I pleaded to) a single count of
receiving stolen property and I was placed on probation, which I
successfully completed. For these recent charges, the police asked me
I had a criminal record and I denied it since it was a juvenile issue.
Note: I have not had any criminal encounters anywhere since then
(beside minor speeding/traffic violations).

3. Possibly based upon you answer to question 2, will I be eligible
for  19.2-303.2 (see below)?

 19.2-303.2. Persons charged with first offense may be placed on probation. 
Whenever any person who has not previously been convicted of any
felony pleads guilty to or enters a plea of not guilty to any crime
against property constituting a misdemeanor, under Articles 5, 6, 7
and 8 of Chapter 5 ( 18.2-119 et seq.) of Title 18.2, the court, upon
such plea if the facts found by the court would justify a finding of
guilt, without entering a judgment of guilt and with the consent of
the accused, may defer further proceedings and place him on probation
subject to terms and conditions, which may include restitution for
losses caused, set by the court. ?Upon fulfillment of the terms and
conditions, the court shall discharge the person and dismiss the
proceedings against him. Discharge and dismissal under this section
shall be without adjudication of guilt and is a conviction only for
the purpose of applying this section in subsequent proceedings.

Note: The ?Aticles 5,6,7,8? screwed me up. Do the allegations against me qualify?

4. In regards to the last sentence in  19.2-303.2, will I have no
record after that?

5. If I get signed affidavifits (I know it IS very unlikely) from the
victims recognizing restitution, would I qualify under  19.2-151? Or
would they have to appear in person?

Satisfaction and discharge of assault and similar charges. 
When a person is in jail or under a recognizance to answer a charge of
assault and battery or other misdemeanor, ? if the person injured
appears before the court which made the commitment or took the
recognizance, or before the court in which the indictment is pending,
and acknowledges in writing that he has received satisfaction for the
injury, the court may, in its discretion, by an order, supersede the
commitment, discharge the recognizance, or dismiss the prosecution,
upon payment by the defendant of costs accrued to the Commonwealth or
any of its officers.

6. Can you explain section 19.2-392.2, section A.2: 
 19.2-392.2. Expungement of police and court records. 
A. If a person is charged with the commission of a crime and ?.. 2. A
nolle prosequi is taken or the charge is otherwise dismissed,
including dismissal by accord and satisfaction pursuant to  19.2-151,
or
I see that 19.2-151 applies, but does the last sentence of 
19.2-303.2 (shown above) apply to this (?otherwise dismissed?)?

?Upon fulfillment of the terms and conditions, the court shall
discharge the person and dismiss the proceedings against him.
Discharge and dismissal under this section shall be without
adjudication of guilt and is a conviction only for the purpose of
applying this section in subsequent proceedings.?

Thank you in advance for your answers and happy holidays.

Regards,
legalquestion20
Answer  
Subject: Re: Misdemeanor Allegations in Virginia
Answered By: mosquitohawk-ga on 14 Dec 2003 03:16 PST
Rated:5 out of 5 stars
 
Greetings legalquestion20,

This question is right up my alley. I am a professional in the
Virginia legal system and am in a position to give you a legal
interpretation of the statutes you mention and answer your questions,
however, I am not an attorney and you should not infer any
recommendation or accept my answers as legal advice. Only a licensed
attorney can render legal advice to you.

That being said, let's get down to business. 

1) A violation of  18.2-96, or, petit larceny is a misdemeanor,
provided you do not have more than 2 previous adult convictions of an
offense that is deemed larceny, such as shoplifting, concealing
merchandise, etc. I will assume you don't based on what you've said. A
violation of  18.2-178 with the amount in question being less than
$200 is a misdemeanor. Another way for you to look at it is, if your
warrants are yellow or pink, then they are misdemeanors. If your
warrants are green, they are felonies. Virginia conveniently color
codes it's legal processes for fast identification by judges and
magistrates.

2) The courts should only have access to your adult records in this
case. In certain instances, courts can request access to juvenile
court records, but this is usually only in the case of violent
felonies, and because your records are out of state, this increases
the likelihood that even if your charges were a violent felony, the
state holding these records is not likely to release them to another
state's agency or court. The summary though is, you needn't worry
about the court requesting these records, and you're not under any
obligation to answer any police questions regarding your criminal
record. However, you should keep in mind that if you elect to testify
on your own behalf in court, you will likely be under oath and could
face perjury charges if you answer any question falsely.

3) You would NOT be eligible for probation under this statute.
Articles 5, 6, 7, and 8 of Chapter 5, Title 18.2 are crimes against
property. Article 5 deals with trespassing issues, Article 6 deals
with damage to realty issues, Article 7 deals with damage to personal
property issues and Article 8 deals with offenses relating to railroad
and utility companies. The crimes you have been charged with commiting
fall under Article 3, Chapter 5 of Title 18.2 ( 18.2-96) and Article
2 of Chapter 6, Title 18.2.

4) Based on my answer above, this question has no applicability. If
you were convicted, the record of conviction would be entered by the
clerk of court and reported to the Virginia State Police
electronically.

5) The individuals/victims in question would have to file the motions
with the court. You would not be able to file it on their behalf under
 19.2-151. Additionally, the court does not have to accept the
complainant's petition. This statute is only discretionary in nature,
not compulsory upon the court. In either event, you would be required
to appear in court at all proceedings unless implicitly instructed not
to by a member of the court, otherwise, you face possible penalties
under  18.2-416 and/or  19.2-128.

6) The expungement statute you provide is very useful for those
accused of committing a crime but not convicted. For example, if you
were arrested by a law enforcement officer, you were most likely
'booked' or taken to the jail or police department, photographed and
fingerprinted. The record of your arrest is recorded instantly with
the Virginia State Police and becomes a permanent part of your
criminal record. The court can then update the VSP and indicate with
them the final result of the case, whether you were convicted or the
case was dismissed or some other disposition. (See Answer #4) If your
case is dismissed (sufficient evidence to establish guilt beyond a
reasonable doubt is unfounded or for technical reasons), you are
acquitted (found not guilty) or your case is ordered 'nolle prosequi'
which means Not Prosecuted, you can apply for relief under this
statute with the Circuit Court. If the judge finds reason to, they can
order an expungement directing the clerk and state police to destroy
all records related to your conviction. Also, according to the
statute, "if the petitioner has no prior criminal record and the
arrest was for a misdemeanor violation" they may receive relief under
this statute. However, if you are convicted, most likely the court
will not grant you relief under this statute until a reasonable time
had passed, unless you had been pardoned by the Governor. The reason
for this interpretation is based on a precedent decision in Snyder v.
City of Alexandria which stated "This section [19.2-392.2] applies to
innocent persons, not to those who are guilty." See that case for
further details. It's case numbers are 870 F. Supp 672 (E.D. Va.
1994).

Some useful links for you:

Supreme Court of Virginia - http://www.courts.state.va.us

Virginia Code and Laws -
http://www.virginia.gov/cmsportal/government_881/virginia_1048/index.html

Virginia State Bar Association - http://www.vsp.org/


I hope this question has been helpful, and I'd be glad to help you
with any other questions regarding interpretation of Virginia
statutes, cases, etc. As I said before, I am a professional in the
Virginia legal system.

Good luck and kindest regards.

Clarification of Answer by mosquitohawk-ga on 14 Dec 2003 03:19 PST
Clarification:

#1 - I should have said "provided you do not have *2 or more* previous
adult convictions of an offense that is deemed larceny".

#2 - 18.2-416 should have been 18.2-456, the contempt of court statute
and 19.2-128, the failure to appear statute.

Request for Answer Clarification by legalquestion20-ga on 23 Mar 2004 09:34 PST
Not a clarification--I just couldn't figure out how to make a comment.

I wanted to share my experience with the courts and the resolution of my case.

Realizing I made too much money to qualify for a free attorney, I
found one who would accept my case for a fixed fee. The guy was great,
and practices in both VA and DC; does misdemenor, felony, and federal
cases. His website is at:

http://www.lawyers.com/nicewiczlaw. I highly recommend him.

In preparation for my court case, I began seeing a psychologist. My
psychologist, along with my employer, a professor, and an organization
that I had done volunteer work for--wrote letters of recommendation on
my behalf. I did not share with any of them the reason I needed these
LORs. I took the LORs with my college transcript and letter from the
dean congratulating me on my fine work in the past semeter, and gave
them to my attorney.

One of the screwy things about Fairfax County is that your attorney
can't see what evidence the state has against you until the day of the
trial--not like what you see on TV. Then, your attorney gets the
opportunity to talk to the officers involved as well as the
Commonwealth's attorney. The Commonwealth will also subpoena witnesses
to appear (they did show too).

On the day of my trial I went to the Fairfax County courthouse and met
my attorney in the morning. The case was 'held over' which means that
the judge won't hear the case, even though you are listed on the
docket (your attorney will ask for this). The judge then hears the
case when the Commonwealth's attorney requests it.

In Fairfax County, there are two alternate programs for first time
misdemeanor offenders: the OAR Community Service Restitution Program
(CSRP), for jirst time shoplifters; and the Prescriptive Sentencing
Program (PSP), which I believe is for non-shoplifting offenses. In
both programs, the charges are dismissed after you do community
service and stay out of trouble in the mean time.

See: http://www.co.fairfax.va.us/courts/cjsdesc.htm for details.

My attorney met with the Commonwealth's attorney, presented my LORs
and got the CA to agree to the PSP program, even though I didn't
normally qualify (per my attorney, due to the fact that there was more
than one charge). Also, normally, you have to go and interview for the
programs, but I didn't, probably because of the information already on
my letters (have job, ties to the community, etc.).

The Commonwealth's attoryney then presented the case to the judge. I
pled guilty to the charges and the charges were continued for a period
of four months for me to do my community service. The judge asked me
if I realized I was getting quite a break and I replied, "Yes, sir".
After that time period, I have to appear before the judge with proof
that I did the community service. Then, the judge will dismiss the
charges. The end result is that I will be able to say "NO" to the
question, "Have you ever been convicted of a crime?".

However, since I was convicted (at least for now), I was processed by
the Sheriff's office. This means that my fingerprints and my picture
taken. These were entered into the NCIS National Crime database. So,
every time I get pulled over by a cop, my information pops up--even
after I get my charges dismissed...for the rest of my life (or when I
turn 80). Plus, these public records are available for everyone to see
forever, and may, in fact, show up in my credit report for the rest of
my life.

Things to keep in mind:
1. Suit and tie for court.
2. Get LORs from employers, priest, psychologist, volunteer, etc.
3. Get an attorney. Now is not the time to be cheap and attempt to
represent yourself. In fact, the Commonwealth's attorney will refuse
to meet with you due to their policies. Borrow the money!
4. Pleding guilty/getting the charges dismissed---this record cannot
be expunged. It will remain forever (unless the VA legislature changes
the law regarding expungement).
5. "Yes, your honor" not "Yeah", as I heard some defendants say.
6. Take the whole day off for court. Court start at 9:30, but my case
wasn't heard till near Noon, and I wasn't processed until 2:30 PM.
Then, I went to the OAR PSP across the street to get an appt. (they
recommend you do it the same day, as long as you are there).
7. OR, you can call the OAR or PSP program before your court date and
request an appointment. They have a one month waiting list--that makes
it a little hard to get your full hours in when you lose a month
waiting... 703-246-3033 for both OAR PSP and OAR CSRP.
8. Get a PO Box for court mailings and receiving correspondence from
your LORs and attorney to protect your privacy at your residence.

What important things did I learn?
1. Don't ever talk to the police. 
2. See #1. They will only use what you say against you.
3. Whatever it is, it's not worth it. Trust me.

Clarification of Answer by mosquitohawk-ga on 31 Mar 2004 17:50 PST
#3 is very good advice, even in hindsight.  Glad it's worked out in a
somewhat positive way for you.  Good luck in the future.
legalquestion20-ga rated this answer:5 out of 5 stars
Responded to every part of my multi-faceted question and even provided
a case reference and court decision.

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