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Still no ruling on deferred judgment

The Supreme Court of Virginia handed down opinions in a slew of criminal cases listed in a VLW blog Friday, but it didn’t issue a decision in the cases prosecutors and criminal defense attorneys were watching the closest.

Those would be Gibson v. Commonwealth, the Virginia Court of Appeals decision in August that held judges have the authority to defer judgment only when the General Assembly has granted it to them explicitly, and Moreau v. Fuller, Record No. 062688.

That’s the appeal of a writ of mandamus from Danville Circuit Judge Joseph W. Milam Jr. directing a juvenile and domestic relations district judge to enter a finding of guilt after she had concluded that a 21-year-old man had contributed to the delinquency of a minor by having sex with a 15-year-old girl. Judge Stacey W. Moreau had continued the case with the apparent intention of dismissing the charge six months after the trial.

The court was expected to issue a decision in Moreau on Jan. 11, and when it didn’t most court observers concluded that it had not done so because it wanted to decide the case and Gibson at the same time. But the court heard arguments in Gibson in February and again was off schedule Friday in not issuing an opinion in either case.

The issue may turn out to be a matter for the legislature in any event. House Majority Leader H. Morgan Griffith of Salem introduced HB 553, which would give judges the authority to defer judgment in most cases, but moved to carry the legislation over to next year to give the Supreme Court an opportunity to rule on the matter.

The issue long has been a source of contention between judges and prosecutors. Some judges argue that they have the inherent authority to defer a finding of guilt for several months or a year and then dismiss the charge if a defendant has no further legal difficulty.

Prosecutors counter that any such authority must come from the legislature and point to the grant of it in some cases, most notably first-time drug offenses, as support for their position that judges lack the power to do it on their own hook.

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