Deferred Dispositions in Virginia: New Statutes Take Hold

Written by: Bradley Marshall, Esq., VF&N Criminal Law Division

A deferred disposition is a way to resolve a criminal case in a way that can reduce or even dismiss a charge if certain conditions are met. Generally, the defendant has to enter a plea of guilty or no contest (meaning you don’t admit guilt, but you agree that the prosecution has enough evidence to convict you), but some deferred dispositions are allowed after a plea of not guilty and after having been convicted at trial. Either way, the defendant is not convicted at that time, but instead, a finding of guilt is withheld while they complete certain conditions. These conditions can include probation, completing certain programs or classes such as anger management, making restitution to any victim, completing community service, payment of court costs, and more. If the person does successfully complete the terms, their case is dismissed or reduced depending on the agreement of the prosecution and defense or the court’s order. Therefore, deferred dispositions are a flexible way for defendants to earn a reduction or dismissal of their charges with conditions that can be adapted to their particular case.

For many years in Virginia, a deferred disposition was only allowed in very specific cases authorized by statute. For example, there was a first offender disposition for drug crimes (See Va. Code § 18.2-251. Persons charged with a first offense may be placed on probation; conditions; substance abuse screening, assessment treatment, and education programs or services; drug tests; costs and fees; violations; discharge (virginia.gov)), a first offender disposition for domestic violence (see Va. Code § 18.2-57.3. Persons charged with a first offense of assault and battery against a family or household member may be placed on local community-based probation; conditions; education and treatment programs; costs and fees; violations; discharge (virginia.gov)), and a first offender deferred disposition for property crimes (such as trespassing or larceny ) so long as the person did not previously have a felony conviction and did not previously have a deferred disposition under the first offender statute (see Va. Code § 19.2-303.2. Persons charged with a first offense may be placed on probation (virginia.gov)). Other than these specifically enumerated code sections, deferred dispositions were not available.

However, beginning in 2011, a string of cases from the Virginia appellate courts opened the possibility for a deferred disposition in other criminal cases. See Hernandez v. Commonwealth, 281 Va. 222 (2011); Taylor v. Commonwealth, 58 Va.App. 435 (2011); Epps v. Commonwealth, 59 Va.App.71 (2011); and the seminal case of Starrs v. Commonwealth, 287 Va. 1 (2014)(wherein the Virginia Supreme Court overturned the Virginia Court of Appeals in affirming courts’ inherent authority to withhold a finding of guilt and defer cases). These cases were construed differently throughout the state, leading to disparate results and proposed legislation to clarify the courts’ authority – or lack thereof – to defer dispositions. For example, see LIS > Bill Tracking > HB2513 > 2011 session (virginia.gov), which did not pass, but would have prevented courts from entering any deferred disposition not specifically allowed by statute. Confusion and varied applications of the law reigned across the state for the several years that followed the Starrs decision.

Then in the Virginia General Assembly’s Special Session in the spring of 2020, which focused on criminal justice reform, new statutes were born to give explicit authority to courts to enter deferred dispositions in almost any criminal case for the first time. The most prominent of these new laws is Va. Code § 19.2-298.02. Deferred disposition in a criminal case (virginia.gov). This statute allows a trial court to defer a disposition in criminal cases when both the Commonwealth and the defense agree, lays out which factors the court must consider, and waives the right to appeal the end result of the case if the defendant fails to complete the deferral and is convicted and sentenced on the original charge. Importantly, this code section – for the first time ever in Virginia – allowed a type of deferred disposition that can be expunged from someone’s record if they successfully complete the deferred disposition as if it never happened so long as the prosecution agrees. That is in contrast to the statutory deferred dispositions for first-time drug, domestic violence, and property crime offenders, where expungement is still not possible after a successful deferral. Just two years in, this new code section is already one of the most utilized in all of the criminal justice system across Virginia.

There was also another important deferred disposition statute that was enacted by the General Assembly in 2020 for persons whose crimes were “caused by or had a direct and substantial relationship to” the person’s autism or intellectual disabilities, which was codified in Va. Code § 19.2-303.6. Deferred disposition in a criminal case; persons with autism or intellectual disabilities (virginia.gov). Unlike Va. Code 19.2-298.02 above, this code section does not require the agreement by the prosecution to defer the disposition but does require the court to consider the prosecution’s position, as well as the views of the victim (if any). The statute, however, is silent on expungement if successfully deferred. It does, however, allow for deferred dispositions under this code section no matter the person’s criminal record and no matter whether they have previously had a charge deferred under the same code section.

Therefore, there are now several different options to defer cases and protect your record in Virginia. These code sections and their application can be complicated and may not fit every situation. It is highly recommended that you seek the advice of a seasoned criminal defense attorney to see what options may apply in any particular case. At VF&N, we have successfully resolved dozens of cases under these code sections, and we would be happy to consult with you about your individual situation at no charge. Please feel free to reach out by way of phone 703-369-4738 or email for guidance. 

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer