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Virginia trial judges will hesitate to amend or dismiss criminal counts, until Starrs is better clarified

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In 2014, I though I had died and gone to heaven, when the Virginia Supreme Court seemed clearly enough to authorize trial courts — after a finding of guilt but before conviction — to amend the guilty count to a lesser offense or even to dismiss the case. Starrs v. Virginia, 287 Va. 1 (2014).

Two years later, I heard a Circuit Court judge in another county — while I awaited my own client’s sentencing hearing — saying he was not sure he had the authority under Starrs to impose anything but a conviction for which the defendant had been found guilty. Unless a final judgment of guilt had already been entered, the trial judge did have such authority. The following language from Starrs in particular grants such authority: “We therefore conclude that the circuit court, upon accepting and entering Starrs’ guilty pleas in a written order, still retained the inherent authority to withhold a finding of guilt, to defer the disposition, and to consider an outcome other than a felony conviction.” Starrs, 287 Va. at 12.

Similarly: “Our precedents make clear that a guilty plea obviates the need for evidence to establish guilt, but a trial court may nevertheless hear evidence and actually convict the accused of a lesser offense. Thus, the mere acceptance and entry of a guilty plea does not constitute ‘a formal adjudication of guilt.’” Starrs, 287 Va. at 11.

Starrs reverses the Court of Appeals’ ruling below. Consequently, it is less wonder that five months after Starrs was decided, the Court of Appeals severely narrowed Starrs to apply only very limited circumstances, and to underline that Starrs does not amount to permitting judicial clemency. Harris v. Virginia63 Va.App. 525, 535 (2014).

With the foregoing backdrop, this week the Virginia Court of Appeals affirmed a trial court’s refusal to defer entering judgment after Stephen White entered a guilty plea to the felony of making a false statement on a firearm transaction form, in violation of Va. Code § 18.2-308.2:2. White v. Virginia, ___ Va. App. ___ (May 2, 2017). The trial court rejected deferring the entry of a final judgment against White, finding that the only ultimate judgment could be for guilt of the crime for which White had entered a guilty plea, and for which the court had thus found White guilty.

Starrs did not spend so much ink on its opinion to have the lower courts narrow any of that ink’s clear language, which is that trial courts do indeed have the authority — after a guilty finding is made but before final judgment is entered — to enter judgment for a lesser offense or even to dismiss the criminal action. Starrs, 287 Va. 1

White says that the law binds Court of Appeals panels to the precedents of prior published panel opinions, and says its decision is compelled by Harris. At the same time, White confirms: “To say that the law on this issue is unclear is an understatement. The only thing that is clear is that a trial court may take a case under advisement until a written conviction order is entered.”

It is time, then, for the Virginia Supreme Court to take up White on appeal.