Hernandez continued from page 31 Endnotes 1 See Va. Code §§ 4.1-305 (underage possession of alcohol), 18.2-57.3 (assault and battery of a family or household member), 18.2-61(C), 18.2-67.1(C), 18.2-67.2(C) (interspousal sexual offenses), 18.2-251 (fi rst offense posses-sion of a controlled substance or marijuana), 16.1-278.8, -278.9 (juvenile cases), 19.2-303.2 (certain misdemeanor property crimes), and for minor traffi c offenses, by implication of sections 16.1-69.48:1, 17.1-275(12), 17.1-275.7, and 46.2-305. Deferral and dismissal is now available for “dangerous dogs” under Va. Code §3.2-6540(E). 2 In 1996, an Attorney General’s opinion expressed the view that the practice should be limited to the offenses containing specifi c authority to defer and dismiss. See Opinion of the Attorney General to the Honorable Charles D. Griffi th, Jr., Commonwealth’s Attorney for the City of Norfolk (February 20, 1996). 3 Powell v. Commonwealth , 34 Va. App. 13, 537 S.E.2d 602 (2000), withdrawn and vacated, en banc , 36 Va. App. 231, 548 S.E.2d 926 (2001). 4 Id. at 17, 537 S.E.2d at 604. 5 36 Va. App. 231, 232, 548 S.E.2d 926, 927 (2001). 6 265 Va. 313, 576 S.E.2d 458 (2003). 7 276 Va. 176, 662 S.E. 2d 54 (2008). 8 Id . at 180-181, 662 S.E.2d at 56-57. 9 276 Va. 127, 661 S.E.2d 841 (2008). 10 In Moreau , the J&DR district judge had made notes in the fi le refl ecting an agreement to defer and dismiss, but the Supreme Court disregarded the unsigned notes because they did not constitute a court order. Id . at 137, 661 S.E.2d at 847. 11 281 Va. 222, 707 S.E.2d 273 (2011). 12 Id. at 224, 707 S.E.2d at 274. 13 Id. at 225, 707 S.E.2d at 274. 14 Id. at 226, 707 S.E.2d at 275 (emphasis added). 15 Id . 16 See, e.g., H.B. 2513, 2011 Gen. Assemb., Reg. Sess. (Va. 2011) and H.B. 750, 2012 Gen. Assemb., Reg. Sess. (Va. 2012). Both bills passed the House but died in the Senate Courts of Justice Committee. 17 The author was one of the judges who received a letter of warning that the issue would be raised in the House Courts of Justice Committee. Fortunately, he was re-elected for a second term in 2012. 18 58 Va. App. 435, 710 S.E.2d 518 (2011). 19 Id . at 437-438, 710 S.E.2d at 519. 20 Id . at 438, 710 S.E.2d at 519. 21 Id . at 442, 710 S.E.2d at 521 (quoting Laurels of Bon Air, LLC v. Med. Facilities of America , 51 Va. App. 583, 599, 659 S.E.2d 561, 569 (2008), and Sorrells v. United States , 287 U.S. 435, 450 (1932)) (other citations omitted). 22 Id. at 449-450, 710 S.E.2d at 525. The Supreme Court of Virginia refused a petition to review the Court of Appeals decision in Taylor . Rec. No. 111413 (Va. Sup. Ct. Nov. 8, 2011). 23 Id . at 439-449, 710 S.E.2d at 520-524. 24 287 Va. 1, 752 S.E.2d 812 (2014). 25 Id . at 13, 752 S.E.2d at 819. 26 Id . 27 Id . at 11, 752 S.E.2d at 818. 28 See Kibert v. Commonwealth , 216 Va. 660, 222 S.E.2d 790 (1960) (indictment allowed fact-fi nder to select between fi rst and second degree murder); Hobson v. Youell , 177 Va. 906, 15 S.E.2d 76 (1941) (same); Smyth v. Morrison , 200 Va. 728, 107 S.E.3d 430 (1959) (even after a guilty plea, court must determine whether defendant committed burglary or the lower offence of housebreaking). 29 287 Va. at 13, 752 S.E.2d at 819-820, quoting Ex parte United States , 242 U.S. 27, 41-42 (1916). 30 63 Va. App. 525, 759 S.E.2d 29 (2014). 31 Id. at 535, 759 S.E.2d at 34. 32 67 Va. App. 599, 798 S.E.2d 818 (2017). 33 Id . at 614, 798 S.E.2d at 825. 34 Opinion of the Attorney General to the Honorable Scott A. Surovell, Member, Senate of Virginia (November 9, 2018). 35 This idea of inherent power can be likened to a trio of golfers: a judge, a commonwealth’s attorney and a defense counsel. If the judge drives his or her tee shot into the woods, the other two might say, “Judge, we both agree that you should pick up your ball and place it in the middle of the fairway – no penalty, of course. No one can see us from the clubhouse, and if we all agree, this will never be appealed.” Moving the ball is still against the rules. 36 See Va. Code § 19.2-398 et seq . 37 Opinion of the Attorney General to the Honorable Scott A. Surovell, Member, Senate of Virginia (November 9, 2018), footnote 3. 38 See 287 Va. at 9, 752 S.E.2d at 817. 39 281 Va. at 225-226, 707 S.E.2d at 274-275. 40 Starrs also, as discussed infra , is a very narrow ruling, fi nding only that deferral is still proper after a written acceptance of a guilty plea, but before entry of a written conviction order. It is problematic to read too much into the Court’s introductory summaries of its prior decisions. The Court’s summary of Hernandez is not at all essential to the Court’s analysis or its ultimate holding in Starrs . Further, the Court in Starrs did not revise or revisit Hernandez . The Court certainly did not make such a broad ruling, as the AG writes, in Hernandez or Starrs . 41 Opinion of the Attorney General to the Honorable Scott A. Surovell, Member, Senate of Virginia (November 9, 2018), footnote 4. 42 See also White, 67 Va.App. 599, 615, 798 S.E.2d 818, 826 (Humphreys, J., concurring). 43 In additions to the laws cited in endnote 1, Code § 46.2-869 allows the judge to reduce a reckless driving charge to improper driving “where the degree of culpability is slight.” A commonwealth’s attorney may also reduce reckless to improper driving at any time prior to the judge’s decision. See also Va. Code § 29.1-738.01 (improper boating). Got an Ethics Question? The VSB Ethics Hotline is a confi dential consultation service for members of the Virginia State Bar. Non-lawyers may submit only unauthorized practice of law questions. Questions can be submitted to the hotline by calling (804) 775-0564 or by clicking on the “Email Your Ethics Question” link on the Ethics Questions and Opinions web page at www.vsb.org/site/regulation/ethics/. 52 VIRGINIA LAWYER | August 2019 | Vol. 68 www.vsb.org