However, there has been a rather small, but very vocal, minority of lawyers and judges out there who have argued for years that this just can't be done. They claim that because the General Assembly has written statutes specifically authorizing advisement in certain cases it is not allowed in other cases (e.g. statutory advisement for domestic assault).
The problem with their argument is that the rule they wish to apply cannot be sustained in a common law plus statutory modification jurisdiction such as Virginia. One simply cannot claim that the common law is abrogated because the General Assembly has passed a statute which specifically encompasses certain activities. If this were true the fact that, per 18.2-195.2:
B. A person who knows that a false statement has been made in writing concerning the financial condition or ability to pay of himself or of any person for whom he is acting or any firm or corporation in which he is interested or for which he is acting and who with intent to defraud, procures a credit card, upon the faith of such false statement, for his own benefit, or for the benefit of the person, firm or corporation in which he is interested or for which he is acting, and obtains by use of the credit card, money, property, services or any thing of value, is guilty of grand larceny if the value of whatever is obtained is $200 or more or petit larceny if the value is less than $200.(and similar statutes) would exclude all other putative common law larcenies because the General Assembly has passed a law specifying that this is a larceny. There is no specific authorization by the General Assembly for the judicially developed elements which Virginia applies to other larceny cases. Of course, the same argument can probably be applied to all sorts of common law definitions used in Virginia law which have not been codified by the General Assembly, but larceny is the one which springs to mind most readily because the General Assembly has passed a number of statutes "deeming" acts to be larceny or simply stating an act is a larceny like 18.2-195.2.
Keeping this in mind, as well as the general statutory interpretation rule that as best possible statutes are to be read as being in harmony with the common law and only abrogating those parts they specifically change, there is a better way to interpret the statutes which the General Assembly has written about advisement in certain offenses. The General Assembly has not abrogated advisement in general, it has merely laid out the limits of what can and shall be done in relation to certain specific offenses.
And it seems the Supreme Court of Virginia is at least in partial agreement with me. Earlier this month it ruled that taking a case under advisement is an inherent power of the judiciary (Moreau v. Fuller). However, the Court blinked when it came to deciding certain parts of the case. It ignored parts of the trial court's record by designating only the order entered as the true record because "courts speak through their orders." So the parts wherein the trial judge noted the conditions and that the case would be dismissed after a period of time and completion of the conditions were not addressed by the Supreme Court because they were not part of a signed order, even though they were in the file.
The consequence of this decision is that the issue of whether advisement with conditions is valid should never reach the appellate courts. There is no signed order in cases taken under advisement because the case will not be completed until the period of time has elapsed and the judge evaluates the case to see if the defendant has done what he was ordered to do. So, technically advisement remains somewhat in limbo, but in reality the Supreme Court has endorsed the practice.
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