Taking a Charge Under Advisement or Deferred Disposition

Jan
17

Can a Judge take a charge under advisement and defer disposing of a case after finding that there is enough evidence to convict a defendant of a criminal offense?  Many lawyers in Virginia thought that they could.  For years many of us would ask Judges not to convict our clients but to consider an alternative.  An example that comes to mind is a college student who is charged with shoplifting and has had no prior scrapes with the law.  A judge could and would sometimes take the charge under advisement, revoke the student’s bond and have him (or her) serve a few days in jail followed by a probationary period to make sure there were no reoccurences.  If all goes well the Judge may decide to dismiss the charge.  Our Judges in Salem, Roanoke and Roanoke County were known to do something along this line on occasion-at least until the Virginia Court of Appeals decided the Hernandez case.

Rafael Hernandez was charged with the felony of assaulting a police officer.  His case was heard by a Circuit Court Judge without a jury.  At the conclusion of the evidence, Hernandez’ lawyer asked the Judge to defer disposition of his client’s case, to put his client on terms and consider a disposition other than a felony conviction if he met those terms.  The Judge found that she did not have the authority to defer disposition of the case without a statute allowing him to do so, found Hernandez guilty of the felony charge, and sentenced him to eleven months in jail with 5 months suspended.  The case was appealed to the Court of Appeals on the question of whether the trial court was wrong in determining that it did not have the authority to take the charge under advisement and continue the case for disposition in the future.  The Court of Appeals agreed with the Judge finding that he did not have the authority to to defer disposition of the case and affirmed the conviction.

From the date the Court of Appeals handed down its decision until Thursday of last week Virginia state trial judges were bound by this decision.  Hernandez appealed his case to the Supreme Court of Virgnia which rendered its decision last week.  The Supreme Court of Virginia found that the trial judge did have the authority to defer disposition of the case thus reversing the decision of the Court of Appeals.  With this decision our state court judges should be able to defer dispositon of cases even when they have found there is sufficient evidence to convict.  The Hernandez case is being sent back to the trial court for further consideration.  This does not mean that Hernandez’ charge will be taken under advisement.  It only means that the judge can take the charge under advisement if he decides that it is proper to do so in this case.

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