Jon Katz, P.C.

The Virginia Supreme Court’s Starrs case permits trial judges to amend or dismiss a criminal charge after a finding of guilt and before a final judgment is entered.

In April 2014, I blogged that Starrs v. Virginia confirms that trial judges have the full authority to withhold entering a final judgment of guilt, and to amend or dismiss a criminal case at any time after a defendant is found guilty and before entering a judgment of guilt. The prosecutor does not need to concur in such a criminal case disposition for it to be entered. Starrs287 Va. 1, 752 S.E.2d 812. In February 2016, I blogged about a Starrs acquittal I won, which I obtained in Circuit Court many months after my client got found guilty of DWI at bench trials in General District Court and on appeal in Circuit Court.

Recently in another lawyer’s case, I thought 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.

Even before Starrs ever was issued, I experienced two judges in two different counties who granted what today would be Starrs dispositions. They were ahead of their time Starrs-wise. In one small county, my client had been found guilty of DWI in General District Court while represented by another lawyer. A DWI conviction could have put at risk his then-future medical school career and medical licensing. My client hired me for his appeal, and we went before a judge who was known sometimes to amend a DWI to reckless driving for compelling personal circumstances. My client entered a guilty plea to DWI, and, over the prosecutor’s objection, I moved for the judge to amend the charge from DWI to reckless driving, explaining my client’s adverse career exposure from a DWI conviction. The judge granted my motion to amend the charge to reckless driving, entered a suspended jail sentence, imposed a six-month license suspension period (as permitted by the reckless driving statute), and permitted my client restricted driving privileges.

In another DWI case in another county, my client proceeded to trial for DWI. For whatever reason — perhaps overconfidence of his chances of obtaining a conviction — the prosecutor did not present any testimony of the breath technician — who was elsewhere in the courthouse at the time of trial — to show that my client had a 0.10 breath alcohol test result on the breathalyzer machine after arrest. In entering his decision, the judge said: “I find the defendant guilty of reckless driving,” which had not even been charged. The judge entered a suspended jail sentence, imposed a six-month license suspension period, and permitted my client restricted driving privileges. The DWI charge had thus gone away and been replaced by a much more favorable reckless driving conviction.

Appellate court cases are essential for lawyers to read, no matter how dull or lively they are written. Then, when a judge is uncertain about the existence of an on-point appellate case or its meaning, the lawyer who knows the particular appellate case can milk it for all it is worth.