Advisement: Let's Look at the Court of Appeals' Rationale: STATUTORY

Posted by Ken Lammers - - 0 comments

To start with, the first statutory question is:

Did the Virginia Court of Appeals have jurisdiction to hear a case concerning the ability of a court to take a case under advisement?

I'm not sure. Per § 17.1-406(A) the nearest jurisdiction I can find that the Court of Appeals had was

Any aggrieved party may present a petition for appeal to the Court of Appeals from (i) any final conviction in a circuit court of a traffic infraction or a crime, except where a sentence of death has been imposed
So, the Court of Appeals has the ability to hear an appeal of a conviction. However, this case isn't about the conviction. The error alleged had to do with the trial judge's assertion that he did not have the power to take a case under advisement.


In any case, the Court of Appeals has shown that it is obsessed enough with this issue to take a rather weak case to address it with. If it can't get this issue addressed here it will continue to seek ways to force the issue forward. So, the Supreme Court should probably address the question to get it settled (even if there is a lack of jurisdiction, there's got to be some way for the Supreme Court to assume the case).


Next, we have to look at the Court of Appeals' single paragraph reasoning that the General Assembly's passage of statutes regulating the way advisement can be done in certain cases forecloses it in all cases. Here's the pertinent section:
The enactment of these statutes demonstrates the General Assembly correctly concluded no common law precedent authorized such extraordinary relief and that, if Virginia courts were to have this power, it must be granted by statute
Nothing in that statement stands up to even medium level scrutiny. You have to want to believe to agree with the rationale offered.


With a view toward reality, the General Assembly had to get the idea of taking a case under advisement from somewhere. Where did the General Assembly get that idea? From the common law judicial practice of taking cases under advisement. What did the General Assembly do with this knowledge? Did it forbid such an act by passing an extremely simple statute such as I have offered previously:
1-200.01 Limitations on Judicial Sentencing

Unless provided for by a specific statute, no judge in the Commonwealth of Virginia is allowed to reduce, mitigate, or vary in any manner the punishment which the General Assembly has determined is appropriate for a citation, misdemeanor, or felony.
It chose not to do so.

In fact, it recognized and regularized the practice in regards to certain specific criminal violations. It certainly set the proper procedure for advisement in those cases and therefore forbade other ways of taking those particular crimes under advisement. 

What the General Assembly has done is recognize a common law judicial procedure, regulate it in certain charges, and otherwise left it alone statutorily. This is a purposeful act on the part of Virginia's legislature and if you don't think so ask yourself this: Do you believe that law enforcement and prosecutors have failed to actively lobby the General Assembly to try to get advisement banished from law for years and years (and years and years)?

There is no statutory basis for the court to ban advisement. Furthermore, banning it will step on the legislature's prerogative of writing a specific law to deal with this issue.