Virginia Criminal Attorney’s explanation of Deferred Disposition

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What is a deferred disposition?

In some criminal cases in Virginia, if it is your first offense, you may have a chance at getting your case dismissed through what is called a deferred disposition. In a deferred disposition you will first enter a plea of Guilty or No Contest. Then, the judge will make a finding that there are facts sufficient to find you guilty of the crime accused if you had gone to trial. The judge then does not enter the conviction on your record. Instead, the judge will set aside your case for a length of time. The judge will then impose upon you some conditions, such as probation, uniform good behavior, restitution, community service, alcohol or substance abuse classes. Once you complete this probationary period and the requirements set forth by the court, your case will be dismissed.

The statute that outlines this process is Va. Code 19.2-298.02:

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.

When you enter into a Deferred Disposition, your attorney will usually have worked out an agreement with the Commonwealth. This agreement typically consists of 1) How long the proceedings will be deferred for, 2) what requirements you must comply with during that period, and 3) the resolution if you successfully comply with those conditions. This resolution will typically be either a dismissal of the charge, or a conviction, but on a lesser charge.

By agreeing to a Deferred Disposition, you are agreeing to two things. First, that if you do not comply with the requirements the Judge can rely on your plea of Guilty or No Contest and find you guilty of the original charge. Second, that you cannot appeal that finding of guilt.

What happens to my criminal record after the case is dismissed?

Your criminal record will show that at some point you were charged with a crime and then it was dismissed. Previously Deferred Dispositions were not able to be expunged. However, recent changes in Virginia law have effected this in two ways. A charge that is resolved by deferred disposition may be expunged automatically, pending certain factors. This provision will go into effect sometime before 2025, and is not immediate even then. However, your attorney can also work out an agreement with the Commonwealth that your charge is eligible for expungement. If this Commonwealth agrees, this must be noted on the final disposition by the Judge. In this circumstance, you can petition for expungement immediately after the resolution.

Should you hire an attorney if you can just accept a deferred disposition?

Yes, while a deferred disposition might be available for the cases mentioned above, it is not a guarantee. It is still something a prosecutor has to be convinced of. You will want to have your attorney carefully negotiate the terms of any agreement for a Deferred Disposition.

Have an experienced criminal defense attorney take a look at all facts of your case and the impact a deferred disposition can have on all areas of your life before you choose to accept it.

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