Ned Michie
​Attorney at law

Experience Matters

Charged with

Fail to Appear in Court,

Violation of Probation 

or Other Court Order?

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Office in Charlottesville, Virginia
​
​​(434) 296-1198

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Personal Attention to Every Case

​Representing Central Virginia Clients 
​for Over 30 Years

I've been honored to be chosen by multiple lawyers and law professors for
​legal representation of themselves or their family members on criminal and traffic cases. 
​Let me put my experience to work for you.

Violating Court Requirements
​(Fail to Appear; Contempt of Court;
​Violation of Terms of Sentence/Court Order; Probation Violations)

The outcome of all criminal cases
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Whether You Decide to Hire an Attorney
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20 COMMON ISSUES and DECISIONS 
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    There are quite a few ways to get in trouble directly with the court and the judge, rather than with the police. ​Below are the common ways.

Failing to Appear (FTA) on Your Court Date

     The Best Advice of course is -- Don't do this!  Nevertheless, it is a common event for a variety of individual reasons.

     Missing court when you are required to be there will almost certainly create another criminal charge against you for failing to appear, and the judge also can order a forfeiture of part or all of the bail bond amount.  

Va. Code § 19.2-128. Penalties for failure to appear are as follows:

"A. Whoever, having been released pursuant to this chapter or § 19.2-319 or on a summons pursuant to § 19.2-73or § 19.2-74, willfully fails to appear before any court or judicial officer as required, shall, after notice to all interested parties, incur a forfeiture of any security which may have been given or pledged for his release, unless one of the parties can show good cause for excusing the absence, or unless the court, in its sound discretion, shall determine that neither the interests of justice nor the power of the court to conduct orderly proceedings will be served by such forfeiture.

B. Any person (i) charged with a felony offense or (ii) convicted of a felony offense and execution of sentence is suspended pursuant to § 19.2-319 who willfully fails to appear before any court as required shall be guilty of a Class 6 felony.

​C. Any person (i) charged with a misdemeanor offense or (ii) convicted of a misdemeanor offense and execution of sentence is suspended pursuant to § 19.2-319 who willfully fails to appear before any court as required shall be guilty of a Class 1 misdemeanor.

Code 1950, § 19.1-109.7; 1973, c. 485; 1975, c. 495; 1981, c. 382; 1982, c. 271; 1999, c. 821."

     The judge has the power, with a misdemeanor charge, to go forward and have a trial in the absence of the defendant as long as the judge doesn't impose a jail sentence, but normally the judge will just issue a warrant for the defendant's arrest for failing to appear (also known as a "capias").  See Va. Code § 19.2-237.  The police will then seek to find the defendant at home -- and maybe elsewhere -- to make an arrest. The arrest warrant will remain outstanding until the defendant is found or just happens to cross paths with a police officer who learns the defendant's name (for example, a defendant is stopped for a minor traffic infraction that would have resulted in being handed a ticket or warning -- but instead results in an arrest and a trip to jail).
​
"I forgot" a court date is normally not a successful defense.

      If you miss your court date/time, the best thing to do is to contact an attorney and the court and/or turn yourself in as soon as you can.  If you realize the mistake on the same date you were scheduled to be there, the best play may be to go to the court and tell the bailiff and/or clerk you are there. The judge may retract the warrant or at least let you walk out of court with a recognizance  bond on the FTA charge. Indeed, even in the days following a missed court date, going to court at a time when the judge is sitting, in order to turn yourself in, may create this opportunity.  Again, talking to an attorney about the situation is always a good idea.

    Whether you turn yourself in at court or to an officer (who may suggest you just meet at the magistrate's office), try to bring a  friend/family member to help talk to the magistrate/judge about setting a bail/bond. Be aware that you may nevertheless be held by the magistrate without bond until you get a chance to talk to the judge -- which generally happens the next morning that court is in session. The judge will then decide what, if any, bond amount is appropriate. These initial bond hearings are often held via video conference. At these initial hearings, the judge will also give a freshly arrested defendant a chance to try to qualify for a court-appointed lawyer if the defendant can't afford a lawyer.

Contempt of Court

If a person violates a court order, the judge can find the person in contempt.  The judge, without a jury, can sentence a person for contempt up to 10 days in jail and up to a $250 fine.  Va. Code ​§ 18.2-458; Va. Code  ​§ 18.2-457
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Misbehaving in front of the judge can also lead to an immediate finding of contempt by a judge.
 
Va. Code. ​§ 18.2-456. Cases in which courts and judges may punish summarily for contempt.

"The courts and judges may issue attachments for contempt, and punish them summarily, only in the cases following:

(1) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice;

(2) Violence, or threats of violence, to a judge or officer of the court, or to a juror, witness or party going to, attending or returning from the court, for or in respect of any act or proceeding had or to be had in such court;

(3) Vile, contemptuous or insulting language addressed to or published of a judge for or in respect of any act or proceeding had, or to be had, in such court, or like language used in his presence and intended for his hearing for or in respect of such act or proceeding;

(4) Misbehavior of an officer of the court in his official character;

(5) Disobedience or resistance of an officer of the court, juror, witness or other person to any lawful process, judgment, decree or order of the court."
​
Code 1950, § 18.1-292; 1960, c. 358; 1975, cc. 14, 15.
​

Violating Terms of a Sentence

It is common that convictions lead to sentences by judges that include terms the defendant must abide by -- for example, requiring that the defendant be of good behavior for X years, stay away from a person or place, refrain from consuming drugs and/or alcohol, or pay restitution to a victim. These terms are generally coupled with jail sentences that have been at least partially suspended, such as "30 days in jail all suspended on condition of . . . " These types of sentencing terms can be in addition to or (often) instead of a term of active probation (see below).

   If a defendant violates a term of the sentence, even though the violation would not otherwise be a crime, the judge is empowered to impose, as punishment for the violation, any jail time that was suspended or fine that was suspended.

Probation Violations

     This is a similar/related issue to violation of a term or terms of a sentencing order (see above).  A defendant can be put on a probationary status for a misdemeanor, but the term "probation" is perhaps more apt when referring to a felony conviction where the defendant is given a formal probationary period and sent to the probation office to be actively followed for compliance. Violation of a felony probation is a major problem, and the defendant is faced with being penalized up to the amount of his suspended prison sentence and/or fines. Generally, there are years of prison time hanging in the balance, and a defendant would be foolish not to have an attorney to try to get the best result possible, given the situation -- even if the person is guilty of the violation.

See, generally, the following statute:

Va. Code § 19.2-306. Revocation of suspension of sentence and probation.

"A. In any case in which the court has suspended the execution or imposition of sentence, the court may revoke the suspension of sentence for any cause the court deems sufficient that occurred at any time within the probation period, or within the period of suspension fixed by the court. If neither a probation period nor a period of suspension was fixed by the court, then the court may revoke the suspension for any cause the court deems sufficient that occurred within the maximum period for which the defendant might originally have been sentenced to be imprisoned.

B. The court may not conduct a hearing to revoke the suspension of sentence unless the court issues process to notify the accused or to compel his appearance before the court within one year after the expiration of the period of probation or the period of suspension or, in the case of a failure to pay restitution, within three years after such expiration. If neither a probation period nor a period of suspension was fixed by the court, then the court shall issue process within one year after the expiration of the maximum period for which the defendant might originally have been sentenced to be incarcerated. Such notice and service of process may be waived by the defendant, in which case the court may proceed to determine whether the defendant has violated the conditions of suspension.

C. If the court, after hearing, finds good cause to believe that the defendant has violated the terms of suspension, then: (i) if the court originally suspended the imposition of sentence, the court shall revoke the suspension, and the court may pronounce whatever sentence might have been originally imposed or (ii) if the court originally suspended the execution of the sentence, the court shall revoke the suspension and the original sentence shall be in full force and effect. The court may again suspend all or any part of this sentence and may place the defendant upon terms and conditions or probation.

D. If any court has, after hearing, found no cause to impose a sentence that might have been originally imposed, or to revoke a suspended sentence or probation, then any further hearing to impose a sentence or revoke a suspended sentence or probation, based solely on the alleged violation for which the hearing was held, shall be barred.

E. Nothing contained herein shall be construed to deprive any person of his right to appeal in the manner provided by law to the circuit court having criminal jurisdiction from a judgment or order revoking any suspended sentence."

​Code 1950, § 53-275; 1958, c. 468; 1970, c. 275; 1975, c. 495; 1978, c. 687; 2002, c. 628; 2016, c. 718.