FAILURE TO APPEAR AND ALL OF ITS CONSEQUENCES
When someone willfully fails to appear in court, a judge can take a few different courses
of action under the Virginia Code. The consequences of failing to appear in court range from
relatively minor to a criminal offense. Failure to appear in court is a separate offense. Under
Virginia Code § 19.2-73 even if the defendant is found innocent or the original charge that he
was arrested for is dropped a judge may still impose the following penalties.
As a preliminary matter a finding of contempt contains four elements: 1) issuance of
lawful process, 2) valid service of the process by one of the modes prescribed by law, 3) timely
knowledge of the process by the person upon whom service is sought, where service was not
personal, and 4) willful disobedience of the process. Bellis v. Commonwealth, 241 Va. 257
(1991).
The power to punish for contempt and for failure to appear is completely discretionary
and is not mandatory under any of the statutes. Higginbotham v. Commonwealth, 206 Va. 291
(1965).
Virginia Code § 18.2-456
Power to Punish
This statute allows courts and judges to punish summarily for contempt of court. This
means that in most circumstances when a defendant fails to appear a judge may sentence him
without the intervention of a jury. A court is limited to the classes set forth in this statute if it
punishes summarily for contempt. See Yoder v. Commonwealth, 107 Va. 823 (1907). A court
may punish for common law contempt of court and is not limited by this statute or the categories
of contempt that it defines if it holds a plenary hearing.
The statute lays out five categories of contempt that a judge may use to punish a
defendant. Failure to appear falls under the fifth category of contempt which is defined as
“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.”
Virginia Code § 19.2-128
Forfeiture of Bail
Under this statute subsection A, whenever an individual fails to appear in court they
forfeit any bail posted. The statute does provide that a court can decide that there is no forfeiture
if it determines that both the interests of justice and the power of the court to conduct orderly
proceedings are not served by forfeiture of bail. It is unlikely that a court will not forfeit posted
bail when there is a failure to appear.
Felony
This statute provides in subsection B that a defendant who is originally charged with a
felony and willfully fails to appear before the court is guilty of a Class 6 felony. Additionally, if
the defendant is convicted of a felony and the execution of the sentence is suspended then when
he fails to appear in court he is guilty of a Class 6 felony. Punishment for a Class 6 felony under
Virginia Code § 18.2-10 is a term of imprisonment of not less than one year nor more then five
years, or in the discretion of the court, confinement in jail for not more than 12 months and a fine
of not more then $2,500, either or both. The Class 6 felony for failure to appear becomes a
separate charge and requires a jury trial to be convicted. See Greene v. Tucker, 375 F. Supp. 892
(E.D. Va. 1974) (holding that imprisonment for more then six months or a fine for more than
$500 for contempt requires a jury trial).
Misdemeanor
Under subsection C of the statute, a person that is originally charged with a misdemeanor
or convicted of a misdemeanor with a suspended sentence that willfully fails to appear in court is
guilty of a Class 1 misdemeanor. Punishment for a Class 1 misdemeanor under Virginia Code
§ 18.2-11 is confinement in jail for not more than twelve months and a fine of not more than
$2,500, either or both. However, if the court wishes to impose more than six months of
imprisonment or a fine of more than $500 dollars a separate jury trial is required.
Virginia Code § 19.2-358
Fines and Payments
This statute applies when a defendant is obliged to pay a fine or make a payment and he
fails to appear when an order to appear has been made. In these circumstances, the court may
sentence the defendant to imprisonment for no more then 60 days or impose a fine not to exceed
$500. The court may reduce this sentence at any time for good cause shown. Thus, if the
defendant shows that he paid the fine, the court may reduce the sentence or order a release from
confinement.
Virginia Code § 16.1-69.24
District Courts
This statute gives district courts the same powers as circuit courts to punish summarily
for contempt. However, this statute further limits the punishments that a district court may
impose for contempt.
Limitations on Punishment
Under this statute, a district court judge cannot impose a fine that will exceed $250 and
imprisonment cannot exceed ten days for failure to appear. The statute also allows a right of
appeal when there is a fine or sentence.
Virginia Code § 19.2-306
Revocation of Suspension of Sentence and Probation
This statute allows judges to revoke a suspension of sentence for any cause that the court
deems sufficient if it occurs within the probation period. This means that if a defendant fails to
appear in court, the judge may revoke a suspension of sentence. The defendant may then be
imprisoned for the remainder of his sentence.
Common Law Contempt
Definition
Common law contempt occurs when there is indirect contempt which occurred outside
the presence of the court so that the offender must be brought before the court by a rule or some
other sufficient process. Davis v. Commonwealth, 219 Va. 395 (1978). When a judge holds a
full hearing for the contempt, rather then punishing summarily under one of the above statutes,
then the charge is common law contempt of court.
Punishment
A judge is not bound by statutory restrictions when punishing for common law contempt.
Robinson v. Commonwealth, 41 Va. App. 137 (2003). Thus, the punishment is up to the judge’s
discretion and creativity. In Robinson, the judge sentenced the defendant to thirty days in jail,
fined him $1000, and prohibited him from practicing law in any new cases within the jurisdiction
for one year.
However, there would still be some constitutional restrictions on the punishment. The
sentence cannot violate the Eight Amendment’s prohibition on cruel and unusual punishment.
Failure To
Appear
Type of
Court
Fines
Imprisonment
Other
Punishments
Type of
Defendant
Jury
16.1-69.24
18.2-456
19.2-128
Limits
District Court
Up to $250
Any Court
Not District
----------
Up to $2,500
Up to 10
Days
----------
Up to 5 years
Fine +
Summary
Fine +
Imprisonment Punishment Imprisonment,
Forfeiture of
Bail
Any
Any
Charged with
Misdemeanor
or Felony
No
No
If >$500/6m,
then Yes
19.2358
Any
Court
Up to
$500
Up to
60
Days
--------
19.2-306
Any
Court
-----------
Common
Law
Any
Court
Yes
Revoke
Probation
Yes
Reinstate
Sentence
Yes
Owes
Money
Convicted
Any
No
No
Yes