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Post-Hernandez Deferral OK, Not Dismissal

A trial court did not err in finding it had authority to defer, but not dismiss, drug charges against defendant after he pleaded guilty to possession with intent to distribute ecstasy and heroin, and the Court of Appeals rejects defendant’s claim that the trial court erred by not withholding a finding of guilt and deferring disposition of his charges for future dismissal.

Whether the trial court erred by concluding it did not have the authority to withhold a finding of guilt and to defer defendant’s adjudication in order to dismiss the indictment against him is a pure question of law that this court reviews de novo.

The Supreme Court in Hernandez v. Commonwealth, 281 Va. 222 (2011), expressly held that the mere statement by a judge that the evidence was sufficient to support a conviction did not preclude deferred disposition because it did not constitute a formal adjudication of guilt. Defendant contends the trial court erred by not deferring disposition for future dismissal, arguing that, pursuant to Hernandez, a trial court has the inherent authority to withhold a written order of adjudication, take the matter under advisement and defer disposition to another date in contemplation of dismissal.

Contrary to defendant’s assertion, however, the Supreme Court in Hernandez explicitly declined to address the question whether a court may defer judgment and continue a case with a promise of a particular disposition at a later date. In Taylor v. Commonwealth, 58 Va. App. 435 (2011), this court concluded that a trial court has no authority – constitutional, common law or statutory – to acquit a defendant after finding the evidence proved his guilt beyond a reasonable doubt.

As a practical matter, in the wake of Hernandez and Taylor, trial courts may, notwithstanding a finding of guilt, take a matter under advisement for a variety of long-accepted purposes. For example, courts may, before entering a written order of guilt, examine cases cited by the parties, consider motions for a new trial, or review testimony or notes taken on the bench, in order to ensure the conclusion the court has reached on a point of law or on the facts is correct. What courts may not do, in the absence of a statutory grant of authority, is defer disposition upon set terms and, upon satisfaction of those terms, later acquit a defendant who was determined to be guilty of the offense.

Appellant seeks to distinguish the holding in Taylor from the facts presented in the record on appeal by noting that Taylor moved the trial court to defer disposition and dismiss the felony charge against her after the court entered a written order finding her guilty. Here, defendant moved the trial court to defer disposition and to dismiss the charges against him prior to the trial court’s entry of a written order adjudicating him guilty. A court simply has no authority to free guilty defendants, whose guilt was proved in a lawful trial.

Here, defendant’s voluntary and intelligent pleas of guilty were, in reality, a self-supplied conviction authorizing implication of the punishment fixed by law. When the trial court accepted defendant’s knowing and voluntary guilty pleas and entered his guilty pleas on the record, it thereafter had no discretion to dismiss the charges against him.

We conclude the trial court did not err by finding it lacked the authority to defer defendant’s disposition solely in order to dismiss the charges against him.

Convictions affirmed.

Starrs v. Commonwealth (Felton) No. 2516-11-4, Oct. 23, 2012; Fairfax Cir.Ct. (Bellows) Cary S. Greenberg for appellant; Alice T. Armstrong, AAG II, for appellee. VLW 012-7-292, 7 pp.

VLW 012-7-292

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