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(2011),
precluded the trial court from withholding a finding of guilt and deferring the disposition until a
later date. We disagree and affirm.
BACKGROUND
“Under well-settled principles of appellate review, we consider the evidence presented at
trial in the light most favorable to the Commonwealth, the prevailing party in the circuit court.”
Porter v. Commonwealth,

276 Va. 203

, 215-16,

661 S.E.2d 415

, 419 (2008).
On July 25, 2015, White filled out a firearm transaction form in an attempt to purchase a
firearm. White indicated on the form that he had never been convicted of a crime of domestic
violence. The purchase was denied by the Virginia State Police, and a trooper opened an
investigation based on White’s attempt to purchase a firearm. During the investigation, it came
to light that White had in fact previously been convicted of a crime of assault and battery. A
trooper interviewed White, and White admitted his conviction was for assault and battery on a
family member, a crime of domestic violence. White further admitted to the trooper that he did
fill out and sign the form; however, White explained that he did not realize his assault and
battery conviction was a domestic violence conviction because his sentencing order only stated
misdemeanor assault and battery. He explained that he thought domestic violence was a separate
and distinct offense. Nonetheless, White pleaded guilty to making a false statement.
The trial court performed a thorough plea colloquy, and the Commonwealth proffered the
evidence it would have presented at trial. The trial court accepted the plea and found that the
evidence was sufficient to find White guilty. The trial court, however, deferred entering a
conviction until after the preparation of a presentence report and continued the case. That same
day, the judge signed the plea agreement and accepted the plea on the record.
White testified on his own behalf at the sentencing hearing. His testimony was consistent
with his explanation to the trooper. He explained that he had not known that assault and battery
was a crime of domestic violence. White pointed out that he had always responded in the
affirmative on employment applications when asked if he had ever been convicted of a crime.
He testified that he filled the form out truthfully based on his understanding of the question at the
time. On cross-examination, White admitted that the victim of his assault and battery was the
mother of his child.
White’s counsel argued that his testimony demonstrated an honest mistake and that White
lacked devious intent. Counsel admitted that he advised his client that the crime was complete
when he put “no” down on the firearm transaction form. He nonetheless argued that if the trial
court “look[ed] at the totality of the circumstances here, what was on this man’s mind looking at
his criminal background . . . I think there’s some doubt there . . . .” White’s counsel suggested
-2-
that there were alternatives that the court could fashion to prevent a felony conviction and asked
the court not to “tag this 60-year-old man . . . with a felony at this point in his life.”
Recognizing that White was requesting that the offense be reduced to a misdemeanor or
dismissed altogether, the trial court denied the request and pronounced White guilty. However,
the trial court noted that in this situation it lacked authority to do anything else, stating,
I will tell you if this was a situation that had, the way I interpret the
law, allowed a deferred finding, I would seriously consider one,
but I still believe Taylor was not overruled by Starrs and Taylor
still applies. I invite you to get a definitive answer with a higher
court, but he’s entered a plea of guilty, the evidence is sufficient,
and I do find him guilty. I would consider that alternative if I felt
it was available to me, but my interpretation of the law, its [sic] not
available to me.[1]
ANALYSIS
White argues on appeal that the trial court erred in concluding that it “lacked the
discretion to continue the withhold finding at the sentencing hearing or otherwise decline to enter
a finding of guilty” and that it was compelled to find White guilty under Taylor v.
Commonwealth,

58 Va. App. 435

(2011). Whether a trial court has authority to
take a case under advisement and defer a finding of guilt is a question of law that we review de
novo on appeal. Starrs v. Commonwealth,

287 Va. 1

, 7,

752 S.E.2d 812

, 816 (2014); Moreau v.
Fuller,

276 Va. 127

, 133,

, 845 (2008).
A. Procedural Argument
We must first address the Commonwealth’s argument that White failed to preserve this
issue in the trial court. The Commonwealth contends that White did not argue that his testimony
1
As noted below, both Starrs and Taylor deal with a trial court’s authority to defer and
ultimately dismiss or reduce a charged offense. Thus, when the trial court referred to a deferred
finding we assume that he was referring to an ultimate dismissal or reduction of the charge at a
later date.
-3-
was offered as evidence of guilt or innocence and he did not distinguish his case from Taylor.
Accordingly, the Commonwealth argues that White did not preserve the issue for appeal.
The primary purpose of requiring an argument be made to a trial court is “to alert the trial
judge to possible error so that the judge may consider the issue intelligently and take any
corrective actions necessary to avoid unnecessary appeals, reversals and mistrials.” Neal v.
Commonwealth,

15 Va. App. 416

, 422,

425 S.E.2d 521

, 525 (1992) (quoting Martin v.
Commonwealth,

13 Va. App. 524

, 530,

414 S.E.2d 401

, 404 (1992)).
The Commonwealth is correct that White did not specifically refer to Taylor or attempt to
distinguish his case. However, he did argue that there were doubts as to White’s state of mind at
the time of the act sufficient that the court should make an alternative disposition. The trial court
clearly understood White’s argument when it told him the court had no authority to make such a
deferred finding under Taylor. The trial court cited to the relevant case law and made specific
reference to Starrs v. Commonwealth and the court’s belief that Starrs did not overrule Taylor.
The trial court had the ability to “consider the issue intelligently” and, aware of the possibility of
appeal, invited White to get a “definitive answer with a higher court.” Once the trial court ruled
on the issue, White was not required to argue with the court about its interpretation of Starrs and
Taylor. See Code § 8.01-384 (“No party, after having made an objection or motion known to the
court, shall be required to make such objection or motion again in order to preserve his right to
appeal, . . . .”). Therefore, we find that White did properly preserve the issue for appeal.
B. Authority of the Court
“Under the Constitution of Virginia, judicial power is ‘vested in a Supreme Court and in
such other courts of original or appellate jurisdiction subordinate to the Supreme Court as the
General Assembly may from time to time establish.’”

Starrs, 287 Va. at 7

, 752 S.E.2d at 816
(quoting Va. Const. art. VI, § 1). “The court’s inherent power has been recognized to extend to
-4-
matters ‘incident to the exercise of the judicial power which is vested’ in it.”

Id. at 7-8,

752
S.E.2d at 816 (quoting

Moreau, 276 Va. at 136

, 661 S.E.2d at 846). “A judgment is the
determination by a court of the rights of the parties, as those rights presently exist upon matters
submitted to it in an action or proceeding.” Id. at

7, 752 S.E.2d at 816

(quoting Rollins v. Bazile,

205 Va. 613

, 617,

139 S.E.2d 114

, 117 (1964)).
Although the court has the constitutional authority to render judgment, in doing so it may
not intrude upon the powers of the other branches of government. For example, a trial court
“may not assume a power of clemency or pardon” or “the function of statutory enactment.”

Moreau, 276 Va. at 136

, 661 S.E.2d at 846. This becomes especially relevant when considering
a trial court’s authority to withhold a finding of guilt and the purpose for which it may withhold
such a finding. These issues have been repeatedly litigated in both this Court and the Supreme
Court.2
A panel of this Court first addressed the issue in Powell v. Commonwealth,

34 Va. App. 13

537 S.E.2d 602

(2000), withdrawn by

36 Va. App. 231

548 S.E.2d 926

(2001).3 In Powell,
the trial court took a case under advisement with a promise to dismiss the charges if certain
2
The Supreme Court, however, has repeatedly avoided the question of what future
dispositions a trial court is permitted to make after a continuance. See, e.g., Hernandez v.
Commonwealth,

281 Va. 222

, 225,

, 274 (2011);

Moreau, 276 Va. at 137

, 661
S.E.2d at 847.
3
The Supreme Court addressed a similar issue in In re Commonwealth’s Atty. for
Chesterfield Cty.,

229 Va. 159

326 S.E.2d 695

(1985). In that case, the Court considered
whether the trial court had authority to withhold imposition of a mandatory sentence after
convicting the defendant.

Id. at 161,

326 S.E.2d at 696. Based on statutory language, the Court
determined the trial court did not have authority to withhold imposition of the sentence.

Id. at 163,

326 S.E.2d at 698.
The Court of Appeals also mentioned the matter in passing in Holden v. Commonwealth,

26 Va. App. 403

494 S.E.2d 892

(1998). In Holden, this Court recognized that deferment of
judgment or imposition of a sentence may be authorized, but “[g]enerally absent an express
statutory grant, trial courts may not dismiss criminal charges on grounds other than the legal or
factual merits.”

Id. at 407,

494 S.E.2d at 894.
-5-
conditions were met.

Id. The trial

court refused to dismiss the charges and convicted the
defendant.

Id. Although a

court has limited authority to take cases under advisement, this Court
held that
where evidence is sufficient beyond a reasonable doubt to convict,
in the absence of specific statutory authority to defer a finding of
guilt, a trial court has no authority to defer judgment and further
proceedings, with a view toward dismissal of the charge upon
meeting certain terms and conditions imposed by the court.

Id. Ultimately, however,

this Court, sitting en banc, withdrew the panel opinion and decided the
case on different grounds. Powell v. Commonwealth,

36 Va. App. 231

548 S.E.2d 926

(2001)
(en banc).
The issue came before the Court again after a trial court deferred disposition for a year,
but subsequently determined it lacked authority to defer further and entered a conviction order.
Gibson v. Commonwealth,

50 Va. App. 285

, 291,

694 S.E.2d 214

, 217 (2007), overruled by
Moreau v. Fuller,

276 Va. 127

(2008). This Court specifically rejected the
argument that a trial court has inherent authority to defer disposition and take a case under
advisement with the ultimate intent to dismiss.

Id. at 300,

694 S.E.2d at 221. Such inherent
authority would render meaningless the specific statutory grants of authority to defer in certain
types of criminal offenses.

Id. The Supreme

Court avoided the issue on appeal and decided the
case on different grounds. Gibson v. Commonwealth,

276 Va. 176

, 180-81,

662 S.E.2d 54

, 57
(2008).4
The Supreme Court finally addressed the issue of a trial court’s authority to defer in
three different cases. See Moreau,

276 Va. 127

; Hernandez v. Commonwealth,
4
The Supreme Court issued Moreau,

276 Va. 127

, on the same day it
issued an opinion in Gibson. In Gibson the Supreme Court decided the case on different grounds
than this Court. However, in Moreau the Supreme Court expressly overruled this Court’s
opinion in Gibson.

Moreau, 276 Va. at 138

n.5, 661 S.E.2d at 847

n.5.
-6-

281 Va. 222

(2011); In re Commonwealth’s Atty. for the City of Roanoke,

265 Va. 313

576 S.E.2d 458

(2003). In all three cases, the Supreme Court based its holding on the
essential role of a trial court to render judgment. Although a trial court could not assume the
power of clemency or pardon, neither would the Court interfere with the essential function of
rendering judgment.

Moreau, 276 Va. at 136

, 661 S.E.2d at 846.
In Moreau, a juvenile and domestic relations (J&DR) judge issued an order stating that
the evidence was sufficient to convict but that it was appropriate to defer entering a judgment of
guilty.

Id. at 131,

661 S.E.2d at 843. A circuit court issued a writ of mandamus and ordered the
J&DR judge to enter judgment.

Id. at 132,

661 S.E.2d at 844. The Supreme Court reversed and
held that “it was within the inherent authority of the court to ‘take the matter under advisement’
or ‘continue the case for disposition’ at a later date. Such practices involve the essence of
rendering judgment.”

Id. at 137,

661 S.E.2d at 846-47. Thus, a finding that the evidence was
sufficient to convict was not the same as a conviction order.

Id. at 138,

661 S.E.2d at 847.
The Court specifically limited its opinion and noted,
What may in a proper case be reasonably subject to challenge is
whether the judge may decline to render judgment and continue the
case with or without terms akin to probation status with the
promise from the court of a particular disposition at a later date.
However, the case before us does not present such questions.5
Id. at

137, 661 S.E.2d at 847

(footnote added).
In Hernandez v. Commonwealth,

55 Va. App. 190

, 193-94,

684 S.E.2d 845

, 847 (2009),
rev’d,

281 Va. 222

(2011), the request to defer came from the defense counsel.
Counsel admitted the client was guilty but asked the trial court to use its inherent authority to
5
The contemporaneous records of the J&DR court indicated that the judge promised to
dismiss if there were no problems. Moreau, 276 Va. at

132, 661 S.E.2d at 844

. However,
because the promise was not in the form of an order, the Court refused to consider the issue of
future dispositions after a deferral.

Id. at 132,

137-38, 661 S.E.2d at 844

, 847.
-7-
defer a finding of guilt and ultimately dismiss the case if the client complied with every
condition the judge may impose on him.

Id. Because the

issue involved the question of future
dispositions, this Court determined it was not governed by Moreau.

Id. at 201,

684 S.E.2d at
851. This Court reiterated that “absent an express statutory grant, trial courts may not dismiss
criminal charges on grounds other than the legal or factual merits.”

Id. (emphasis omitted)

(quoting

Holden, 26 Va. App. at 407

, 494 S.E.2d at 895). “Once there is a finding of guilt (or a
finding of evidence sufficient to support the same) . . . the consequences of that finding; that is, a
permissible punishment a court may impose, are circumscribed and delineated by the
legislature.”

Id. at 202,

684 S.E.2d at 851.
The Supreme Court reversed and found that the question in Hernandez was the same as in
Moreau in a slightly different factual circumstance.

Hernandez, 281 Va. at 223

, 707 S.E.2d at
273. The Supreme Court agreed with this Court that once the trial court has entered a judgment
of conviction, the court has “no inherent authority to depart from the range of punishment
legislatively prescribed.”

Id. at 225,

707 S.E.2d at 275. However, it disagreed that a statement
saying the “evidence was sufficient to support a conviction amounts to a judgment of
conviction.”

Id. at 225-26,

707 S.E.2d at 275. “Until the court enters a written order finding the
defendant guilty of a crime, the court has the inherent authority to take the matter under
advisement or to continue the case for disposition at a later date.”

Id. at 226,

707 S.E.2d 275

.
Like in Moreau, however, the Supreme Court specifically declined to answer the question of
“whether a court may defer judgment and continue a case with a promise of a particular
disposition at a later date.”

Id. at 225,

707 S.E.2d 274

.
C. Taylor & Starrs
The trial court here, however, determined that it did not have the authority to defer
disposition for the purpose of reducing or dismissing the charge because of the holding in Taylor
-8-
v. Commonwealth,

58 Va. App. 435

(2011), appeal refused, Rec. No. 111413
(Va. S. Ct. Nov. 8, 2011). In Taylor, this Court held that a trial court does not have the inherent
authority to “acquit a defendant of a crime that the evidence proved beyond a reasonable doubt
[he] committed.”

Id. at 440,

710 S.E.2d at 520. The defendant in Taylor asked the court to find
her guilty of a misdemeanor instead of a felony.

Id. at 437,

710 S.E.2d at 519. Because
“Moreau and Hernandez merely hold a trial court has the discretion to continue a case for a
future disposition,” neither controlled the outcome in Taylor.

Id. at 449,

710 S.E.2d at 525. This
Court looked at all possible sources of a court’s power—constitutional, common law, statutory,
and inherent authority. Noting the separation of powers doctrine, this Court stated that
a Virginia court cannot refuse to convict a guilty defendant merely
because it questions the category of offense assigned by the
legislature, considers the range of statutory punishment too harsh,
or believes certain guilty offenders undeserving of a criminal
conviction. “Judicial nullification” of a constitutionally valid
criminal statute “has happily, no place in our system.”

Id. at 442,

710 S.E.2d at 521 (quoting Sorrells v. United States,

287 U.S. 435

, 450 (1932)). This
Court determined that without a common law or constitutional source of power or without an
express statutory grant of authority, the trial court did not have authority to acquit the defendant
of the crime charged and convict her of a lesser offense.

Id. at 450,

710 S.E.2d at 525.
Taylor has never been expressly overruled by the Supreme Court. However, without
expressly addressing the holding in Taylor, the Supreme Court raised questions about its
continued viability in Starrs v. Commonwealth,

287 Va. 1

752 S.E.2d 812

(2014). Herein lies
the dilemma recognized by the trial court. Because the Supreme Court did not provide clear
guidance as to the authority of a trial court to reduce or dismiss a charge despite conceded
evidence of guilt, we must cobble together an answer based on a close reading of Starrs and
Taylor.
-9-
The defendant in Starrs made a request similar to the one made in Taylor. The defendant
pleaded guilty and then asked the court to withhold a finding of guilt and to “release him under
certain terms and conditions, and at the end of that period to ‘consider dismissal of the case in
lieu of a conviction.’”

Id. at 5,

752 S.E.2d at 815. Defense counsel admitted his “entire
purpose” was the hope the trial court “would ultimately dismiss the charges.”

Id. The trial

court
determined that it did not have authority to grant the request for a deferral.

Id. However, the

trial court wanted to be “absolutely clear” about its ruling and explained,
I have discretion to continue this; I can absolutely continue this for
two years.
But at the end of two years, my only option would be to sentence
[Starrs] on the charges in which he entered pleas of guilty. And, as
[Starrs] has confirmed, the whole purpose in seeking the deferral is
ultimately to obtain a dismissal. . . . And if dismissal is not an
option, there’s no bona fide reason to defer disposition.

Id. at 6,

752 S.E.2d at 815.
This Court agreed because the trial court may not “in the absence of a statutory grant of
authority, . . . defer disposition upon set terms and, upon satisfaction of those terms, later acquit a
defendant who was determined to be guilty of the offense.” Starrs v. Commonwealth,

61 Va. App. 39

, 45,

733 S.E.2d 142

, 145 (2012), rev’d,

287 Va. 1

752 S.E.2d 812

(2014). Because
the trial court accepted the guilty plea and entered it in the records, it was the same as a
conviction.

Id. at 46,

733 S.E.2d at 145.
But the Supreme Court disagreed. The Court concluded that “the circuit court, upon
accepting and entering Starrs’ guilty pleas in a written order, still retained the inherent authority
to withhold a finding of guilt, to defer disposition, and to consider an outcome other than a
felony conviction.”

Starrs, 287 Va. at 13

, 752 S.E.2d at 819. “To hold that the circuit court,
after accepting and entering Starrs’ guilty pleas, had no discretion to do anything other than
impose the legislatively prescribed punishment would be tantamount to controlling the ‘exercise
- 10 -
of judicial discretion by prescribing the precise judgment to be entered, a judgment of guilt.’”
Id. at

13, 752 S.E.2d at 819

. The Court was careful to point out that the decision in Starrs “does
not traverse the separation of powers” doctrine because the trial court had not yet entered the
order adjudicating guilt and, thus, still had discretion.

Id. at 14,

752 S.E.2d at 820.
Without referring to Taylor, the Supreme Court stated, “Our precedents make clear that a
guilty plea obviates the need for evidence to establish guilt, but a trial court may nevertheless
hear evidence and actually convict the accused of a lesser offense.”

Id. at 11,

752 S.E.2d at 819.
The Court also stated that the trial court “still retained the inherent authority to withhold a
finding of guilt, to defer the disposition, and to consider an outcome other than a felony
conviction.” Id. at

13, 752 S.E.2d at 819

.6 This language seems to implicitly overrule the
holding in Taylor that a trial court has no inherent authority to acquit a defendant of a crime
proved beyond a reasonable doubt and convict of a lesser offense.
However, Starrs is not the end of the discussion. In Harris v. Commonwealth,

63 Va. App. 525

759 S.E.2d 29

(2014), which was decided after Starrs, we once again attempted to
apply the Supreme Court’s holding.7 Harris recognized that Starrs determined how far into trial
6
The Supreme Court made clear the source of that inherent authority.
[T]he judiciary’s inherent power derives from its existence as an
institution entrusted with the function of rendering judgment. To
deny this function is to deny the very institution itself. The court’s
inherent power has been recognized to extend to matters “incident
to the exercise of the judicial power which is vested” in it.

Starrs, 287 Va. at 7

-8, 752 S.E.2d at 816 (citations omitted).
7
While we are ultimately bound by decisions of the Supreme Court, this Court also
recognizes the doctrine of interpanel accord. A holding by one panel of the Court of Appeals of
Virginia “bind[s] all other three-judge panels under the interpanel accord doctrine.” Startin v.
Commonwealth,

56 Va. App. 26

, 39 n.3,

690 S.E.2d 310

, 316 n.3 (2010) (en banc). A decision
of one panel protected by the interpanel accord doctrine “cannot be overruled except by the
Court of Appeals sitting en banc or by the Virginia Supreme Court.” Congdon v. Congdon, 40
- 11 -
proceedings a trial court’s authority to defer disposition extends—until the conviction order is
entered.

Id. at 533,

759 S.E.2d at 33. But Harris also reasoned that “[t]he Supreme Court of
Virginia could not have intended in its Moreau, Hernandez, and Starrs decisions to hold that a
trial court somehow possesses the power of judicial clemency.”

Id. at 535,

759 S.E.2d at 34.
This Court refused to interpret “Starrs to alter the fundamental principle of judicial restraint or
the constitutionally required separation of powers . . . .”

Id. at 534,

759 S.E.2d at 33.
Moreau and Hernandez did not answer what future dispositions a court had authority to
make after a continuance where the evidence proved beyond a reasonable doubt that the accused
was guilty.

Id. at 535,

759 S.E.2d at 34. And “[t]he Supreme Court’s decision in Starrs, which
came after Taylor, does not lead to or compel any different conclusion.”

Id. The opinion

in
Taylor did address what types of future dispositions a court was permitted to make. In other
words, the panel in Harris determined that Starrs did not overrule Taylor.
Rather, this Court interpreted the holding in Starrs as limited.

Id. at 535,

759 S.E.2d at
34. Harris interpreted Starrs to say that the court may defer and hear additional evidence if the
“purpose of hearing [additional] evidence is to determine whether an accused is guilty or not and
the measure of guilt.”

Id. (alteration in

original) (quoting Starrs, 287 Va. at

11, 752 S.E.2d at 819

).
In Harris, this Court stated that
any authority of a trial court to permit the ‘“mere postponement’ in
the entry” of a conviction order cannot serve “as a pretext for
granting a criminal defendant ‘a pardon for his crime’” because
that would be an improper exercise of clemency by the judiciary
that would definitely exceed the judiciary’s authority under the
separation of powers doctrine.
Va. App. 255, 265,

578 S.E.2d 833

, 838 (2003). The decision of the panel in Harris has not been
overruled by this Court sitting en banc or by the Supreme Court. Therefore, we are bound by its
interpretation of Starrs.
- 12 -

Id. at 536,

759 S.E.2d at 34 (quoting Ex parte United States,

242 U.S. 27

, 46 (1916)). The Court
pointed out that the request was “nothing more than a guilty defendant’s attempt to escape (or
delay) an inevitable conviction through judicial clemency.”

Id. Here, the

trial court had not yet entered a written conviction order. Undoubtedly then, it
had inherent authority to defer disposition and continue the case even after it accepted White’s
guilty plea on the record. However, based on Harris’s interpretation of Starrs, that inherent
authority is limited to continuing the case in order to take evidence to determine the guilt or
innocence of the accused or the degree of guilt. The inherent authority of a trial court cannot be
used as a type of judicial clemency to acquit the accused of a crime proved beyond a reasonable
doubt and convict the accused of a lesser crime. See

Taylor, 58 Va. App. at 449

, 710 S.E.2d at
521.
Just as the accused in Taylor asked the trial court to convict her of a misdemeanor instead
of a felony, White admitted guilt and asked the court for a degree of judicial clemency: an
outcome other than a felony conviction. There is no indication in the record that the trial court
was in doubt of White’s guilt. Instead the trial court referred to Taylor and its holding that a trial
court could not simply acquit an accused where the evidence proved the offense beyond a
reasonable doubt. In acknowledging Starrs, the trial court made clear it was aware of its
authority to take a case under advisement and continue it to a future date. See Coley v.
Commonwealth,

55 Va. App. 624

, 634,

688 S.E.2d 288

, 293 (2010) (“[T]he ‘judge is presumed
to know the law and apply it correctly in each case.’” (quoting Groves v. Commonwealth,

50 Va. App. 57

, 61-62,

646 S.E.2d 28

, 30 (2007))).
The language in Starrs must be interpreted in light of Harris. Thus, if the trial court had
doubts as to White’s guilt, it had the option of deferring disposition and taking more evidence in
order to determine guilt or innocence or degree of guilt. However, where the evidence proved
- 13 -
guilt beyond reasonable doubt, the trial court did not have inherent authority to acquit or to
convict White of a lesser offense.
White pleaded guilty to the offense, and his counsel admitted that he had told White that
the crime was committed when he checked no on the form. White’s counsel did not argue that
White was innocent of the offense charged, rather he argued that the trial court should not “tag
this 60-year-old man . . . with a felony at this point in his life.” The trial court was not permitted
to acquit a defendant simply because it “believes certain guilty offenders undeserving of a
criminal conviction.” See Taylor, 58 Va. App. at

442, 710 S.E.2d at 521

. The request by
White’s counsel was “nothing more than a guilty defendant’s attempt to escape . . . an inevitable
conviction through judicial clemency.” See Harris, 63 Va. App. at

536, 759 S.E.2d at 34

.
CONCLUSION
To say that the law on this issue is unclear is an understatement. The only thing that is
clear is that a trial court may take a case under advisement until a written conviction order is
entered. However, that inherent authority “is neither a gateway nor a loophole for acquitting or
refusing to convict a defendant whose guilt has been established beyond a reasonable doubt.”

Id. at 537,

759 S.E.2d at 35. Without some other source of authority, the trial court cannot use its
inherent authority as a source of judicial clemency or as a pardon power. Since the trial court
found the evidence proved the crime beyond a reasonable doubt, it was correct in holding that it
did not have the authority to acquit White and convict him of some other crime.
Affirmed.
- 14 -
Humphreys, J., concurring.
I join entirely in the analysis and judgment of my colleagues in affirming the judgment of
the circuit court in this case and write separately only to express my view that our Supreme
Court’s opinion in Starrs v. Commonwealth,

287 Va. 1

752 S.E.2d 812

(2014), has been
interpreted by some circuit judges and many practitioners more broadly than that Court likely
intended.
It is axiomatic that the primary mission of the courts of the Commonwealth is to render
judgments according to law. The substantive law dictating what those judgments ought to be,
assuming the appropriate burden of proof has been met, comes from only five sources: the
Constitution of the United States, the Constitution of the Commonwealth of Virginia, the statutes
adopted by the Congress of the United States and applicable to the Commonwealth under the
Supremacy Clause of Article VI, Section 2 of the Constitution of the United States, the statutes
adopted by the General Assembly of Virginia, and the common law.
“Adopted over a decade before [the similar provision found in] the United States
Constitution, the 1776 Virginia Declaration of Rights provided that ‘the legislative and executive
powers of the State should be separate and distinct from the judiciary.’” Taylor v.
Commonwealth,

58 Va. App. 435

, 439,

, 520 (2011) (quoting Va. Decl. of Rights
§ 5 (1776); see also Va. Const. ¶ 2 (1776)). “Th[at] original principle”—though suffering
erosion in other jurisdictions—endures in the Commonwealth, “ensuring that the legislative,
executive, and judicial branches of government ‘shall be separate and distinct’ and that no one
branch could ‘exercise the powers properly belonging to the others.’”

Taylor, 58 Va. App. at 439

, 710 S.E.2d at 520 (quoting Va. Const. art. III § 1 (1971)).8
8
Although the concept of separation of governmental powers originated in Virginia’s
post-colonial government and first appears as § 5 of the Virginia Declaration of Rights of 1776,
- 15 -
The separate and independent status of the judiciary in the
Commonwealth’s tripartite system of government implies certain
inherent powers “incident to the exercise of judicial power” vested
in the courts. 2 A. E. Dick Howard, Commentaries on the
Constitution of Virginia 718-20 (1974) (citation omitted). Such
powers include, for example, the “authority to discipline
attorneys,” In re Moseley,

273 Va. 688

, 697,

643 S.E.2d 190

, 195
(2007), the power of summary contempt, Robinson v.
Commonwealth,

41 Va. App. 137

, 145,

583 S.E.2d 60

, 64 (2003),
and the power to continue a case for a lawful disposition at a later
date, Hernandez v. Commonwealth,

281 Va. 222

, 226,

, 275 (2011); Moreau v. Fuller,

276 Va. 127

, 137,