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Virginia Criminal Justice Reform: Charges to be Dismissed in Fairfax County?

Posted by George L. Freeman | Mar 06, 2021 | 0 Comments

Virginia has traditionally not permitted many instances of a "pass" for first time offenders.  Deferred disposition statutes are not uncommon, but in Virginia the use of such a mechanism was very limited.  If you possessed a drug, possessed alcohol under age, committed a misdemeanor domestic assault, or committed a misdemeanor property crime you were eligible for a deferred disposition.  This would mean that a judge, instead of finding you guilty and sentencing you, would set terms and conditions (potentially including active probation) and if you were successful, the charge would be dismissed.  The charge would remain on your criminal record, but not as a conviction.  And, you were only eligible for these deferrals once for each category of charge.  Further, you had no right to the deferral.  The prosecutor could object and the judge could agree and enter a conviction.  But that old system has changed.

Effective March 1, 2021 a new statute is on the books.  This new statute applies to any criminal charge.  But, it requires the consent of the prosecutor.  In other words, if the prosecutor objects the Court cannot overrule the objection and enter the deferral.  In addition to the case being dismissed after completion of whatever terms and conditions are imposed, the Court could alternatively enter a conviction on a different (and presumably lesser) charge.  

This new statute seems like a positive for a defendant facing criminal prosecution but here are some potential concerns.  If a defendant agrees to a deferral under this new statute and fails the obligations imposed upon him, he waives his right to appeal.  This means if he pleads not guilty and proceeds to trial and is ultimately convicted, though given the opportunity under this new law, he cannot appeal his trial conviction.  If he is successful, not only will the charge be dismissed but he may be able to expunge the case.

Although this statute opens the door dramatically to recognize that people make mistakes and should be given second chances, this statute has potential for misuse and abuse by prosecutors.  And it could entice an individual to enter into an agreement by a form of coercion.  Consider this example: the police suspect an individual is involved in a series of retail burglaries.  They can prove he was in the area and his fingerprint was found at one location, but beyond that they do not have much else in the way of evidence.  Facing several felonies, the Commonwealth offers that he enter a plea of guilty and agree to 5 years of probation.  If he succeeds his charges will either be reduced to a misdemeanor or even dismissed.  But if he fails his probation, he is convicted of several felonies and then sentenced.  Odds are he could have prevailed at trial, but the fruit hanging in front of him was nearly irresistible - the chance for dismissal on a case the Commonwealth may not have been able to prove.  Sometimes being risk averse results in decisions that produce the wrong result.

Another scenario of concern: a defendant pleads not guilty and proceeds to trial.  During trial evidence is admitted that should not have been and the defendant is found guilty.  There is no guarantee, but the error in trial is an excellent issue to be heard on appeal.  The Commonwealth knows the case may be reversed on appeal so they offer a deferral.  The defendant, anxious about a conviction and realizing that there is no such think as a guarantee on appeal, takes the deferral.  If he fails his probation, he has forfeited his right to appeal his case even though he pled not guilty.  And even though the case had a serious error in the record.

This statute is a good thing, but like all things, it has potential for misuse and abuse.

Read Virginia Code Section 19.2-298.02 by clicking here.

About the Author

George L. Freeman

I was born and raised in Fairfax County.  I graduated from Fairfax High School and then from Virginia Tech.  After spending a few years as a bail bondsman and court clerk, I attended the University of Baltimore, School of Law.  I graduated in 2010 with a Juris Doctor, manga cum laude. I spent 9 ...


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