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House bill would undo Hernandez decision

Legislation at the General Assembly would take away the newfound authority of Virginia courts to defer and dismiss criminal charges in any case, even when the evidence would support conviction.

House Bill 2513 introduced by Del. C. Todd Gilbert, R-Woodstock, an assistant commonwealth’s attorney, would overturn the Jan. 13 Virginia Supreme Court opinion declaring that Virginia judges have the inherent authority to defer and dismiss any criminal charge. The case is Hernandez v. Commonwealth, VLW 011-6-002.

The bill would add a new code section that reads simply, “No court shall have the authority, upon a plea of guilty or nolo contendere or after a plea of not guilty, when the facts found by the court would justify a finding of guilt, to defer proceedings or to defer entry of a final order of guilt or to dismiss the case upon completion of terms and conditions except as provided by statute.”

There are ten statutes in the code providing for deferred disposition of criminal cases, according to an impact statement from the Virginia Criminal Sentencing Commission.

The bill is before a subcommittee of the House Courts of Justice Committee.

By Peter Vieth

One comment

  1. This is nothing less than a power struggle between Commonwealth’s Attorneys and the judiciary. The less discretion judges have, the more power prosecutors have in their charging decisions, plea agreements, etc. Of course you can’t find many people besides prosecutors themselves who think prosecutors need more power.

    Let’s hope the General Assembly has not given up on the ancient tradition of an independent judiciary.

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