It was a year ago in January that I wrote about the Hernandez case and how judges will sometimes take a criminal charge under advisement and later dismiss the charge after the defendant has completed some conditions that were placed upon him. This is sometimes done even when a defendant has pled guilty to the charge. The Supreme Court of Virginia held in the Hernandez case that a trial judge has inherent authority to take charges under advisement in this manner.  It did not specifically rule however that a court had the authority to dismiss a charge when there was a finding that the defendant was guilty.

 Since the Fernandez case was decided on January 13, 2011 a few things have happened.  First the Virginia Court of Appeals (which is one notch below the Supreme Court of Virginia) decided the case of Taylor versus Commonwealth and in that case held that a trial court cannot acquit a person who is guilty using any kind of inherent authority. The Supreme Court of Virginia had already held that the courts do have the inherent authority to take a charge under advisement. The Court of Appeals then decided the Taylor case indicating that even though they may have this authority they could not dismiss a charge in which the evidence proved the person guilty.

 The next thing that has happened is that members of the General Assembly had been asking judges who were up for reappointment for their opinion on the Hernandez case and questions and whether or not they had ever taken charges under advisement and later dismissed them. This would certainly have a chilling effect on any judge who was looking toward being reappointed in the future.

 Finally, the General Assembly has introduced legislation that would require a judge to make a finding of guilt unless the General Assembly through its statutes had specifically authorized the taking of a charge under advisement.  According to a recent article in the Virginia lawyers weekly, at least 1337 defendants had their cases deferred in the last fiscal year and the claim is that there is a cost associated with keeping these cases under advisement.

 Can the General Assembly take away an inherent power of the Courts to take charges under advisement?  Does it really matter if the legislature through its power to reappoint Judges controls the issue by denying reappointment to Judges who take charges under advisement when there is no written law allowing for this result?  That last word has not been written on this.