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Bill takes direct aim at ‘Hernandez’

Del. Ben Cline has introduced a bill to abolish any inherent authority of Virginia judges to defer and dismiss criminal cases if the facts justify a finding of guilt.

House Bill 750 would undermine the holding of the Supreme Court of Virginia in Hernandez v. Commonwealth where the court declared that judges have the inherent authority to take cases under advisement any time before a written finding of guilt.

The bill would limit judges’ power to defer disposition to those crimes where it is expressly authorized by statute.

The Amherst Republican told The (Staunton) News Leader he is considering an amendment to allow deferred dispositions in other cases if both sides agree.

Del. Jennifer McClellan, D-Richmond, questioned the need for Cline’s bill, noting deferred disposition is rarely used. “Personally, I think deferred disposition is a good idea under certain circumstances, and believe judges should have the discretion to use it when the facts before them warrant,” she told the paper.

Another bill introduced last month would address Hernandez by giving judges 72 hours to convict or acquit in criminal cases, unless both sides agree to a delay.

Cline also has introduced a bill to bar expungement of criminal records in cases of deferred disposition. Current law allows a defendant to ask that his criminal record be erased after charges are dismissed, but House Bill 748 would eliminate that option when cases are dismissed based on the defendant complying with terms and conditions of a deferred judgment.

One comment

  1. I would think that any of these bills trying to encumber a court’s inherent authority to do anything would violate the separation of powers between the three branches of government.

    That is the very nature of a court’s inherent authority; it is a power not subject to restraint or infringement by either of the other two branches.

    (I guess those constitutional constraints – separation of powers – don’t matter in populist legislation.)

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