In Virginia, the General Assembly provides specific remedies in select types of cases that either lead to a charge reduction or dismissal upon fulfillment of terms without entering a finding of guilt (referred to hereafter as “deferred dispositions”).  The types of cases for which deferred dispositions are available is limited.

Most deferred dispositions apply to misdemeanors, such as misdemeanor property crimes (Code § 19.2-303.2), family assault and battery (Code § 18.2-57.3), and underage alcohol (Code § 4.1-305(F)).  There are exceptions, however, which apply to felonies, such as the deferred charge reduction for prescription fraud charges (Code § 18.2-258.1(H)), or apply to felonies and misdemeanors, such as the first offender drug program (Code § 18.2-251).  A common thread among all statutory deferred dispositions is that the person was not previously found guilty of a similar crime (or sometimes any crime).  But, what happens when there is no law that says a person can benefit from a deferred finding, or when someone was convicted of a charge decades ago?

This is a question that continues to be unresolved to a large extent.  Virginia’s Supreme Court in 2014 issued the Starrs v. Commonwealth, 287 Va. 1 (2014) decision, which a lot of defense attorneys read as giving courts the inherent power to fashion their own deferred dispositions.  Three years later, and to the chagrin of all defense attorneys, the Court of Appeals of Virginia issued the White v. Commonwealth, 67 Va. App. 599 (2017), which said (and I’m paraphrasing) that courts do not have the power to grant clemency through the use of their inherent judicial powers.  This created a difficult to navigate legal landscape, because the Supreme Court overrides the Court of Appeals, but Starrs was not as clear as attorneys would have hoped on the deferred disposition issue.

Unfortunately, there have been no new cases from either Court dealing with the White ruling.  But, Attorney General Mark Herring weighed in on this issue through an official advisory opinion.  Asked if a deferred disposition may be granted by a trial court, but only where the prosecution and defense agree to it, he answered in the affirmative.  Hopefully this leads to more progress in favor of giving judges the power to craft deferred findings where no statutory authority exists. But as things stand, the landscape remains as unclear as ever.  

If you have a pending case and need to know whether you can benefit from a deferred finding, the implications of a deferred finding, or wish to discuss other issues, we have experience and can help.  Give us a call today.

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