THE HERNANDEZ CASES Of course, in one sense, the Attorney General is correct. If the commonwealth’s attorney, the defendant, and the trial judge are all in agreement, then anything is possible, because there will be no appeal. 35 The Commonwealth cannot appeal when a court dismisses a criminal case on the merits with a fi nal order. 36 When no one can appeal, do judges have inher-ent powers to ignore the appellate courts and the General Assembly? As authority for his answer, the Attorney General states that: In accordance with the Court’s decision in Hernandez v. Commonwealth , the authority to defer disposition in a criminal case also includes the authority to “con-sider dismissal of the case” at the end of the contin-uance period, provided the defendant has “complied with all the prescribed conditions.” As the Attorney General’s footnote reveals, the passage quoted above is not something the Supreme Court actually said in Hernandez . 37 The Attorney General is quoting from Starrs , where the Court was quoting from its earlier decision in Hernandez . 38 If you look for the place where the above-quot-ed language appears in Hernandez , you will fi nd it where the Court describes the facts and case history at the beginning of the opinion. The Court was merely quoting the request made by the defense counsel at the trial level. The Supreme Court in Hernandez , as we have seen, made a very narrow ruling. Hernandez held only that the continuance was proper before a conviction order had been entered. The Court specifi cally emphasized that the remainder of the defendant’s request (considering dismissal, and compliance with conditions) was not necessary to the Court’s decision. 39 The assertion that the Supreme Court ruled on all of the defendant’s requests can only be viewed as a great overstatement of Hernandez . 40 Interestingly, the Attorney General acknowledges or “notes” that “the Court of Appeals has stated its opposition to the use of deferred disposition as an extension of judicial clemency,” citing White in the footnote. 41 Here, the Attorney General seems to view the Court of Appeals as a competing law fi rm around the block, rather than an appellate court, whose decisions all trial judges in the Commonwealth are bound to follow. Conclusions What conclusions can we take away from the fi nal product of the bubbling cauldron? First, the Supreme Court, in exercising judicial restraint, did not make the sort of broad declaration about inherent judicial authority as many in the Bar and espe-cially some in the General Assembly originally believed. 42 Second, considered together, the Supreme Court cases create a clear guide as to when, in the course of a trial, the court may continue a case before making a fi nding of guilt. After entering a conviction order, judges may not grant further deferrals, and they are constrained by the sentencing authority established by the General Assembly in the Code. www.vsb.org Third, the Court of Appeals, in Taylor , Harris , and White , has addressed the ultimate issue squarely. When our highest appellate court has not directly addressed an issue, but the intermediate appellate court has spoken very clearly on the subject, Virginia’s trial courts are obligated to follow the Court of Appeals. Finally, judges should carefully review Taylor , Harris , and White. To follow the law in these cases, courts in Virginia, and especially general district courts, should reconsider policies of gratuitously reducing various charges to lesser included offens-es, or to other offenses unrelated to the actual facts, without statutory authority. 43 These cases do not in any way preclude creativity and sensitivity in sentencing. Courts remain at lib-erty to accept plea bargains, amend criminal charges or enter a nolle prosequi order at the request of the commonwealth’s attorney, impose community service, and to require defendants to undergo anger management training, alcohol or drug treat-ment, or other efforts at rehabilitation. However, to stay within the constitutional separation of powers, courts should respect the General Assembly’s sanction of defer-and-dismiss proba-tion options for some offenses, to the exclusion of others, even if a commonwealth’s attorney joins the request. We should recall that the clemency power is held only by the governor. Thus, a judge should not, on his or her own motion, reduce or dismiss a proven criminal charge because he or she disagrees with the legislative classifi cation of the crime, as a favor to a defendant, to avoid giving a defendant a fi rst conviction, as a reward for a clean criminal record or DMV transcript, to avoid imposing driver’s demerit points, or for similar reasons. This serving of the potion may be hard to swallow for some, but it is essential to a judge’s duty to be faithful to the law. The views advanced in this article represent commentary “concerning the law, the legal system (and) the administration of justice” as authorized by Virginia Canon of Judicial Conduct 4(B). The author’s opinions are not offi cial opinions of the General District Court in District 2A, and do not necessarily represent the viewpoint of the Board of Governors of the Criminal Law Section or any other committee of the court system or the Bar, nor do they represent the author’s opinion in the context of any specifi c case. Hernandez continued on page 52 Judge Gordon S. Vincent has served as General District Judge for Accomack and Northampton Counties since 2006. He is a member of the Board of Governors of the Criminal Law Section and was recently selected for the faculty of the Virginia State Bar’s professionalism course. He leads a panel discussion of the Hernandez cases and other sentencing issues at the annual Pre-Bench Orientation for new judges. Judge Vincent is a graduate of the University of Virginia Law School. CRIMINAL LAW SECTION | Vol. 68 | August 2019 | VIRGINIA LAWYER 31