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Deferred disposition revoked for not paying court costs

Where appellant failed to pay his court costs, the Court of Appeals correctly affirmed the circuit court’s revocation of his deferred disposition and his conviction for possessing heroin.


After his arrest for possessing heroin, Smallwood made a plea agreement in which he would plead guilty and be given a  first-offender deferred disposition subject to terms and conditions, including the payment of court costs.

Upon fulfilling the terms and conditions, the court would dismiss the charge. The court conducted a hearing and took Smallwood’s guilty plea.

“Smallwood was also required to sign a payment agreement plan (hereafter, ‘Form CC-1379’) wherein he agreed to pay his court costs by May 30, 2017. Form CC-1379 included a provision stating: ‘if the fines, costs, forfeitures, restitution, penalties, and/or interest are not paid in full by the date ordered, that the Court shall proceed according to the provisions of Virginia Code § 19.2-358, which state that a show cause summons or capias for my arrest may be issued.’”

Smallwood was being held on other, unrelated charges. He was released in November 2016. The court, at the May 17, 2017 hearing, agreed to extend Smallwood’s deadline to pay to Nov. 13, 2017 to give him a full year to comply with the deferral order.

At the Nov. 13, 2017, hearing, the court noted that Smallwood had completed all conditions except the payment of costs. The court gave Smallwood another year to comply. At the Nov. 14, 2018 hearing, the court noted, and Smallwood confirmed, that he had not made any payments.

The court found he had not complied with the deferred disposition’s terms and “adjudicated him guilty as charged.”

The court considered Smallwood’s objections, upheld its previous ruling and gave Smallwood a two-year suspended sentence.

The Court of Appeals affirmed.


“On appeal, Smallwood initially argues that revoking his deferred disposition and convicting him of possession of heroin due to his failure to pay court costs violated due process, equal protection and fundamental fairness under the Fourteenth Amendment.

“In raising this argument, Smallwood relies on the United States Supreme Court’s decision in Bearden v. Georgia, 461 U.S. 660 (1983). According to Smallwood, Bearden holds that, prior to convicting him, the circuit court was required to find that there was no legitimate reason for his failure to pay costs. He insists that, absent such a finding, the circuit court was required to simply continue his deferred disposition. …

“Assuming without deciding that Bearden applies, we note that the record establishes that the circuit court made the requisite inquiry. During the November 13, 2017 hearing, the circuit court specifically requested information regarding Smallwood’s ability to pay his court costs.

“Based on the financial information offered by Smallwood and Smallwood’s affirmative representation that he could pay the costs with more time, the circuit court granted him an additional year in which to make the payments. This decision clearly represents an implicit finding that Smallwood had the ability to pay if given more time.

“Having determined that he had the ability to pay, the question before the circuit court was whether Smallwood made ‘sufficient bona fide efforts legally to acquire the resources to pay.’ …

“Although Smallwood similarly claimed that he was not in a financial position to make any payments, he did not present any evidence in support of his claims, nor did he make any attempt to proffer such evidence.

“To the contrary, at the November 2018 hearing, Smallwood stated that he brought ‘all [his] pay stubs,’ confirming that he was still employed, which, given his previous affirmative representation, supports a finding that he willfully refused or failed to make sufficient bona fide efforts to pay his court costs.

“Bearden expressly holds that, under these circumstances, a court is permitted to revoke an individual’s probation and sentence them. Accordingly, Smallwood’s reliance on Bearden is misplaced.

“Smallwood next argues that the Court of Appeals erred because paying costs was not a valid ‘term or condition’ under Code § 18.2-251. He notes that Code § 18.2-251 does not specifically mention the payment of costs as a term or condition of a deferred disposition and he asserts that that imposing such a term or condition is ultra vires. …

“‘Statutes that permit the trial court to impose alternatives to incarceration … are highly remedial and should be liberally construed to provide trial courts valuable tools for rehabilitation of criminals.’ …

“As such, the use of these tools lies within the broad discretion of the circuit court. … Therefore, the decision to require that Smallwood pay his court costs as a term or condition of his deferred disposition falls squarely within the broad discretion granted to the circuit court by the General Assembly.”


Smallwood v. Commonwealth, Record No. 200803 (Powell) Jan. 13, 2022, From the Court of Appeals of Virginia. D. Eric Wiseley (Struckmann, White & Wiseley, on briefs), for appellant. Brittany Marie Jones, Deputy Solicitor General (Mark R. Herring, Attorney General; Michelle S. Kallen, Acting Solicitor General; K. Scott Miles, Deputy Attorney General; Jessica Merry Samuels, Deputy Solicitor General; Katherine Quinlan Adelfio, Assistant Attorney General; Kendall T. Burchard, John Marshall Fellow, on brief), for appellee. VLW 022-6-005, 9 pp.

VLW 022-6-005

Virginia Lawyers Weekly