Criminal – Deferred Disposition – Officer Assault

A trial court does not have inherent authority to dismiss criminal charges on grounds other than the legal or factual merits, when such a dismissal is not authorized by statute, and the Court of Appeals affirms a trial court decision declining to exercise such authority to defer disposition of defendant’s charge of assault on an officer.

However, we do not address the question whether a court has the authority, with the agreement of the commonwealth and the defendant, to order a dismissal or other disposition of criminal charges, when such a dismissal or other disposition is not otherwise authorized by statute.

Defendant was tried for feloniously assaulting a police officer, in violation of Va. Code § 18.2-57(C), which calls for a mandatory minimum six months confinement. The statute makes no provision for any deferred finding of guilt or disposition. His trial counsel maintained the court had the inherent authority to either defer findings or else find guilt and defer sentencing and ultimately dismiss the case. The prosecutor argued that under the statute, the trial court did not have such inherent authority, and refused to agree to the proposed deferral or disposition. The trial court held it did not have such “inherent authority” in this case, found defendant guilty and sentenced him to 11 months in jail, all suspended except the six months mandatory minimum.

It is clear, manifestly clear, that the issue presented in the case presently before this court; that is, does a trial court have the inherent authority to defer judgment upon terms contemplating a future dismissal of criminal charges, especially without the agreement of the commonwealth, was not decided in either Moreau v. Fuller, 276 Va. 127 (2008) or Gibson v. Commonwealth, 50 Va. App. 285 (2007).

No court has the sole authority to dismiss a criminal charge for any reason not based upon the legal or factual merits, unless authorized to do so by a legislature. To construe the inherent power of a court to dismiss a criminal charge on a basis other than legal or factual merits would by such construction, potentially authorize judicial nullification of a legislative act, in violation of the separation of powers.

Once there is a finding of guilt (or a finding of evidence sufficient to support the same), or such a finding following a continuance to take that determination under advisement, the consequences of that finding; that is, a permissible punishment a court may impose, are circumscribed and delineated by the legislature. In accord with the separation of powers, the responsibility for “fixing penalties are legislative, not judicial functions.”

The General Assembly has granted courts the authority to defer findings of guilt contemplating a potential future dismissal of specifically designated criminal charges: marital rape, marital forcible sodomy, marital object sexual penetration, first offender possession of controlled substance or marijuana. Also included among crimes for which deferral and potential dismissal is authorized is assault and battery upon a family/household member. No statute contains authorization for deferral and dismissal of a charge under Code§ 18.2-57(C), assault upon an officer, the crime for which defendant was convicted.

Conviction affirmed.

Hernandez v. Commonwealth (Haley, J.) No. 1892-08-4, Nov. 17, 2009; Alexandria Cir.Ct. (Kemler) Paul E. Pepper, DPD, for appellant; Eugene Murphy, Sr. AAG, for appellee. VLW 009-7-473, 12 pp.