The new landscape for deferred dispositions in Virginia

Before we discuss the significant recent changes in deferred dispositions made by the Virginia General Assembly, I should first make sure that everyone understands the concept.

The Virginia State Crime Commission describes deferred disposition this way:

“In general, deferred disposition permits a court to withhold imposition of a sentence and place conditions on the defendant that, when met, allow for the charges to be dismissed. Deferred disposition is usually accompanied by the imposition of conditions similar to probation. Upon the satisfactory completion of all conditions, and if no other criminal offenses are committed during the period of deferment, the original charge may be dismissed.”

In short, this is an excellent tool for a criminal defense attorney when our client is a first offender, or is otherwise unlikely to commit any other offense during the period of deferment … and when it is available.  Which leads us to the reason for the recent change.

Prior to the 1st 2020 Special Session of the Virginia General Assembly, the availability of deferred disposition in a given case was often the subject of some controversy.

At the time there were approximately nine code section that specifically granted courts the ability to use deferred disposition.

However, some judges and commonwealth attorneys took the position that the ability to suspend judgment and defer disposition was an inherent power of the court and could be used in most criminal cases.

Over the last fifteen years, there were several cases that made it to the Virginia Supreme Court over some variation of this question.

During the 1st 2020 Special Session, the General Assembly passed, and the Governor signed, H.B. 5062, which clarified the issue by adding § 19.2-298.02 to the Code of Virginia.

§ 19.2-298.02. Deferred disposition in a criminal case.

A. A trial court presiding in a criminal case may, with the agreement of the defendant and the Commonwealth, after any plea or trial, with or without a determination, finding, or pronouncement of guilt, and notwithstanding the entry of a conviction order, upon consideration of the facts and circumstances of the case, including (i) mitigating factors relating to the defendant or the offense, (ii) the request of the victim, or (iii) any other appropriate factors, defer proceedings, defer entry of a conviction order, if none, or defer entry of a final order, and continue the case for final disposition, on such reasonable terms and conditions as may be agreed upon by the parties and placed on the record, or if there is no agreement, as may be imposed by the court. Final disposition may include (a) conviction of the original charge, (b) conviction of an alternative charge, or (c) dismissal of the proceedings.

B. Upon violation of a term or condition, the court may enter an adjudication of guilt, if not already entered, and make any final disposition of the case provided by subsection A. Upon fulfillment of the terms and conditions, the court shall adjudicate the matter consistent with the agreement of the parties or, if none, by conviction of an alternative charge or dismissal of the case.

C. By consenting to and receiving a deferral of proceedings or a deferral of entry of a final order of guilt and fulfilling the conditions as specified by the court as provided by subsection A, the defendant waives his right to appeal such entry of a final order of guilt.

Prior to granting a deferral of proceedings, a deferral of entry of a conviction order, if none, or a deferral of a final order, the court shall notify the defendant that he would be waiving his rights to appeal any final order of guilt if such deferral is granted.

D. Upon agreement of all parties, a charge that is dismissed pursuant to this section may be considered as otherwise dismissed for purposes of expungement of police and court records in accordance with § 19.2-392.2, and such agreement of all parties and expungement eligibility shall be indicated in the final disposition order.

With the passage of this bill, deferred dispositions became widely available as an option in almost all criminal proceedings, but with the key requirement that there be agreement of  both the defendant and the Commonwealth Attorney.

If you are facing a criminal charge, make sure to discuss with your defense attorney whether a deferred disposition is a possibility and a good idea in your case.

Next Article in the H.B. 5062 series: H.B. 5062 also changed whether a charge may be expunged based upon a deferred disposition.

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