Deferred Dispositions
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Deferred Dispositions in Criminal Cases 

Virginia Under § 19.2-298.02 

Effective in July 2020, the Virginia Legislature added a phenomenal tool for use by both prosecutors and defense lawyers that permit almost any criminal case to be deferred for a dismissal provided the prosecutor concurs with this outcome.  Virginia Code Section 19.2-298.02 permits a prosecutor and defense attorney to resolve a criminal matter without a conviction or with a reduction of the offense based on consideration of the facts and circumstances of the case. 

This tool, often referred to as a Deferred Disposition, Probation before Judgment (PBJ), or suspended imposition of sentence allows prosecutors, defendants, defense attorneys, and victims to impose a specific set of conditions after a plea of guilty, no contest, or not guilty with a stipulation of facts sufficient that will result in a reduction or dismissal of the offense provided the defendant complies with terms and conditions of the suspended sentence. 

Prosecutors and defense lawyers can also agree on whether or not the case is eligible for an expungement at the conclusion of the deferment period.  While not appropriate in all cases, use of this code section allows prosecutors and defense lawyers the latitude to impose sanctions on a defendant while avoiding a conviction.  The enactment of this statute brings Virginia more on par with other jurisdictions, like Maryland, to avoid unnecessary criminal convictions in cases where the facts and circumstances, mitigation efforts, the request of victim, and other appropriate factors deem it reasonable to defer the entry of a final order for a dismissal.   

One caveat, is that a person who accepts this type of disposition waives their right to appeal the case to a higher court should they violate the terms and conditions of the deferment. 

This tool when used in conjunction with mitigation efforts can help thousands of Virginians charged with criminal offenses avoid convictions and potentially expunge his or her case.  This type of disposition saves people from adverse employment decisions as a result of criminal charges, denial of housing opportunities, and avoids many burdens often associated with criminal convictions. 

While currently used sparingly by prosecutors, the use of these dispositions are becoming more mainstream as defense lawyers continue to push prosecutors to exercise their discretion. Experienced criminal defense lawyers can help you get your case deferred. 

§ 19.2-298.02 - Deferred disposition in a criminal case (2021 updated section)

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.

2020, Sp. Sess. I, cc. 2021.

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