Summary
holding that the plea agreement, as permitted by Code § 18.2-251, explicitly required dismissal after one year if the defendant did not violate the law in that time
Summary of this case from Cilwa v. CommonwealthOpinion
49852 No. 1244-93-4
Decided December 20, 1994
(1) Criminal Law — Sentencing — Deferred Adjudication. — Code Sec. 18.2-251 authorizes a trial court, under specified conditions, to defer proceedings of a case without entering a judgment of guilt and to place the accused on probation upon terms and conditions; upon a violation of the terms or conditions, the court may enter an adjudication of guilt and proceed as otherwise provided, but upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings.
Dominique F. T. Poirier, Assistant Public Defender (Steven T. Webster, Deputy Public Defender; Office of the Public Defender, on brief), for appellant.
Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
SUMMARY
Defendant was convicted of possession of cocaine. He argued that the trial court erred in refusing to dismiss the charge pursuant to Code Sec. 18.2-251 (Circuit Court of Fairfax County, Jack B. Stevens, Judge).
The Court of Appeals reversed, holding that the trial judge was bound under the terms of the plea agreement to dismiss the charges.
Reversed and dismissed.
OPINION
On appeal from his conviction of possession of cocaine, pursuant to Code Sec. 18.2-250, Jose Socorro Calvillo contends that the trial court erred in refusing to dismiss the charge pursuant to Code Sec. 18.2-251. Under the circumstances of this case, we agree. We reverse the conviction and order the charge dismissed.
On March 19, 1992, pursuant to a plea agreement, Calvillo pled guilty to possession of cocaine. The plea agreement provided as follows: "[T]he appropriate disposition in [the possession of cocaine charge] is a disposition pursuant to Code Sec. 18.2-251, whereby the case will be dismissed after one (1) year conditioned that the defendant has no further violations of the law."
The trial court accepted the plea agreement. It delayed imposition of sentence for one year pursuant to Code Sec. 18.2-251 and ordered "that imposition of sentence on [the charge] be continued conditioned that the defendant be placed on unsupervised probation for one (1) year. This case was continued to March 19, 1993 at 10:00 a.m., for final disposition on [the charge]." Neither the trial order nor the record of that day's proceedings discloses any further statement to Calvillo requiring him to appear on March 19, 1993. Calvillo was remanded to custody to serve the sentence imposed on another charge.
Prior to March 19, 1993, due to a scheduling problem, the trial court notified counsel that the case was continued to April 16, 1993. On April 16, 1993, Calvillo's counsel appeared, but Calvillo did not. Calvillo's counsel stated that he had tried to contact Calvillo but had neither seen nor heard from him. The trial court issued a bench warrant commanding that Calvillo be apprehended and produced before the court "to show cause, if any he can, why imposition of sentence should not be imposed and to be further dealt with according to law." Calvillo was arrested and produced on this process.
On May 21, 1993, Calvillo told the trial court that it had not instructed him that he was required to appear and that he had not understood such a requirement. He stated that he had moved from his previous address and had received no notice requiring his attendance. The evidence disclosed no new violations of the law by Calvillo since March 19, 1992.
Calvillo moved the trial court to dismiss the proceeding pursuant to Code Sec. 18.2-251. The court denied this motion and imposed a sentence of five years, suspending four and one-half years. The court made no finding as to Calvillo's failure to appear on April 16. The court stated: "He's here not for a failure to appear, he's here for disposition on an offense that carries ten years. . . . I'm not considering his failure to appear in my thinking as to what I'm going to impose."
(1) Code Sec. 18.2-251 authorizes a trial court, under specified circumstances, to defer proceedings of a case without entering a judgment of guilt and to place the accused on probation upon terms and conditions. Code Sec. 18.2-251 further provides as follows:
[U]pon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purposes of applying this section in subsequent proceedings.
The plea agreement, which the trial court accepted on March 19, 1992, explicitly referred to Code Sec. 18.2-251 and required dismissal of the charge after one year if Calvillo committed no further violations of law. Calvillo committed no further violations. Therefore, the trial court was bound to enforce the plea agreement, to discharge Calvillo and to dismiss the charge against him. It erred in failing to do so.
The judgment of the trial court is reversed and the charge is ordered dismissed pursuant to Code Sec. 18.2-251.
Reversed and dismissed.
Barrow, J., and Coleman, J., concurred.