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Man’s appeal raises ‘Hernandez’ issues

The Supreme Court of Virginia has agreed to consider a case involving a judge’s discretion in taking a DWI charge under advisement and substituting a different charge in the ultimate finding of guilt.

The underlying criminal case in Kelley v. Stamos arose before the touchstone case of Hernandez v. Com. was decided by the Supreme Court.

According to a summary prepared for the Salem/Roanoke County Bar Association, the case focuses on the handling of a driving-while-intoxicated charge by Arlington General District Judge Thomas J. Kelley.

Even though the defendant pleaded guilty to DWI and the commonwealth objected to a delayed disposition, Kelley took the case under advisement. After the defendant completed a VASAP course and performed the required community service, Kelley changed the offense to reckless driving and fined the driver $250.

The prosecutor then persuaded a circuit judge to order Kelley to vacate his judgment and resentence the defendant for DWI within 21 days.

Kelley, represented by Richmond’s Robert R. Musick, sought the appeal of that mandamus order. Among the issues the court agreed to hear are:

  • Whether mandamus can be used to “undo” action that has already been taken,
  • Whether the 21-day rule barred any change in Kelley’s order of conviction, and
  • Whether the circuit court’s order to change the result within 21 days infringed on Kelley’s judicial discretion.

The Supreme Court also asked the parties to address whether the defendant in the underlying criminal prosecution was a necessary party to the mandamus proceeding in the circuit court.

The Hernandez decision recognizes the “inherent authority” of judges to defer judgment in criminal cases for possible acquittal in certain circumstances. It legitimized a practice criticized by many prosecutors and led to General Assembly scrutiny of judges who use deferred disposition.

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