Prosecution Threats

In a recent case a prosecutor "threatened" to seek felony charges against one of my clients if the client refused to accept a plea offer on a misdemeanor. In some situations a prosecutor's promise to seek higher or additional charges is appropriate. Ultimately if a defendant has committed an offense and the government believes it can prove its case, it is not problematic for the prosecution to discuss additional charges in the context of a plea negotiation.

A recent Virginia Supreme Court case has held that it is not always appropriate for prosecutor to threaten indictment when a defendant appeals a misdemeanor conviction. Statutorily any misdemeanor conviction may be appealed from the General District Court to a Circuit Court. These appeals should be considered "de novo." De novo" appeals are considered by the appellate court as if the previous trial never occurred.

The Virginia Supreme Court reasoned that if a person is found guilty in a General District Court and then appeals, he loses his statutory right to have the de novo consideration if a prosecutor raises the ante by charging the offense as a felony. This situation often occurs in a DUI or petit larceny matter where the prosecutor learns that the defendant has prior convictions just before trial. Statutorily those offenses have greater punishment if a person has prior convictions.

Due process requires a prosecutor to give a defendant advance notice if he intends to increase punishment due to prior convictions. Due process does not however allow a prosecutor to eviscerate a defendant's de novo appeal rights with a threatened felony indictment.

In light of the above I always push back when I feel prosecutors try to coerce my client into a plea based upon previous convictions. There are occasions where the prosecution loses its ability to ask for an increased punishment. An experienced criminal attorney can remind prosecutors that they do not always have the final authority that they believe to have.

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