Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and 

Millette, JJ., and Russell, S.J. 

RAFAEL HERNANDEZ 

 OPINION BY 

v. Record No. 092524 SENIOR JUSTICE CHARLES S. RUSSELL 

 January 13, 2011 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In Moreau v. Fuller, 276 Va. 127, 661 S.E.2d 841 (2008), 

we considered the question whether a court, having taken a 

criminal case under advisement for deferred disposition, had a 

ministerial duty, enforceable by mandamus, to enter final 

judgment in the case. We held that the act of rendering 

judgment was within the inherent power of the court and that 

it was discretionary, not ministerial, and therefore not 

subject to compulsion by mandamus. Id. at 138-39, 661 S.E.2d 

at 847-48. Today, we revisit that question in a different 

factual context. 

Facts and proceedings

 The facts are undisputed and the appeal presents a pure 

question of law. Rafael Hernandez was indicted for 

feloniously assaulting a police officer in violation of Code 

§ 18.2-57(C). At the conclusion of the evidence at a bench 

trial, defense counsel, citing Moreau, moved the court to 

defer disposition of the case for a period of time to be fixed 

by the court, to continue the defendant’s bond in effect for 
that period, subject to such conditions as the court might 

prescribe, and at the end of that period to consider dismissal 

of the case in lieu of a conviction if the defendant complied 

with all the prescribed conditions. The attorney for the 

Commonwealth did not agree. The court stated from the bench 

that the evidence was sufficient to support a finding of guilt 

and held that even though the case might be an appropriate one 

for a deferred disposition, the court did not have inherent 

authority to do so. The defense waived a pre-sentence report 

and the court imposed a sentence of eleven months in jail with 

five months suspended subject to probation for eleven months 

after release. 

 Hernandez appealed to the Court of Appeals, which granted 

him an appeal limited to the question whether the trial court 

erred in concluding that it lacked inherent authority to 

continue the defendant’s case for future determination. By a 

published opinion, a panel of the Court of Appeals affirmed 

the judgment, holding that the circuit court had neither 

statutory nor inherent authority to defer disposition of the 

case. Hernandez v. Commonwealth, 55 Va. App. 190, 684 S.E.2d 

845 (2009). We awarded Hernandez an appeal on a single 

assignment of error, that the Court of Appeals erred in 

concluding that the trial court lacked inherent authority to 

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defer judgment “upon terms contemplating a future dismissal of 

criminal charges.” 

Analysis

 Because the appeal presents a pure question of law, we 

apply a de novo standard of review. Moreau, 276 Va. at 133, 

661 S.E.2d at 845. There are marked similarities between this 

case and Moreau. Here, as in Moreau, the Commonwealth did not 

agree to a deferred disposition. Here, as in Moreau, the 

trial judge stated that the evidence was sufficient to support 

a finding of guilt. Here, as in Moreau, the trial court 

considered the question of deferred disposition before 

entering an order finding the defendant guilty of a crime. 

The trial courts, however, reached opposite conclusions in the 

two cases. Here, the circuit court held that it lacked 

authority to defer disposition, while the juvenile and 

domestic relations district court in Moreau held that it had 

such authority. 

Moreau was a civil case, a petition for mandamus brought 

by a Commonwealth’s Attorney in a circuit court to compel the 

judge of a juvenile and domestic relations district court to 

perform the allegedly ministerial duty of entering final 

judgment in a criminal case that had been taken under 

advisement and continued for further disposition. Our 

holdings in Moreau, although arising in a different context, 

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nevertheless control the present case. There, we held that 

“the act of rendering judgment is within the inherent power of 

the court and that the very essence of adjudication and entry 

of judgment by a judge involves discretionary power of the 

court.” Id. at 139, 661 S.E.2d at 847-48. In reaching that 

holding, we said: 

 Upon hearing the evidence in the criminal 

proceeding at issue in this case, 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. No one 

contends that the judge must immediately render 

judgment upon the instant that the presentation of 

evidence has been concluded. 

Id. at 137, 661 S.E.2d at 846-47. We noted that while such a 

case was pending, the court has statutory authority to 

continue bail requirements. Id. at 137 n.4, 661 S.E.2d at 847 

n.4. 

 In Moreau, we left open the question whether a court may 

defer judgment and continue a case with a promise of a 

particular disposition at a later date. Id. at 137, 661 

S.E.2d at 847. That question was not before the Court in 

Moreau and is not before us here, as neither case involved 

such a promise. 

 We agree with the Court of Appeals’ observation in the 

present case that once a court has entered a judgment of 

conviction of a crime, the question of the penalty to be 

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imposed is entirely within the province of the legislature, 

and the court has no inherent authority to depart from the 

range of punishment legislatively prescribed. Hernandez, 55 

Va. App. at 196-97, 684 S.E.2d at 848-49. We do not agree, 

however, with the Court of Appeals’ holding that the mere 

statement by a judge that the evidence was sufficient to 

support a conviction amounts to a judgment of conviction. See

55 Va. App. at 202, 684 S.E.2d at 851. 

 As we have repeatedly held, "a court speaks only through 

its written orders." Moreau, 276 Va. at 137-38, 661 S.E.2d at 

847 (citing Conyers v. Martial Arts World of Richmond, Inc., 

273 Va. 96, 103, 639 S.E.2d 174, 177 (2007)). An observation 

by the court as to the sufficiency of the evidence does not 

amount to a formal adjudication of guilt. 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. 

Conclusion

 In the present case, during the interval between the 

conclusion of the evidence and the entry of a written order 

adjudicating the defendant guilty, the circuit court had the 

inherent power, in the exercise of its discretion, to take the 

matter under advisement and to continue the case for future 

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disposition, subject to such lawful conditions as the court 

might prescribe. The circuit court erred in holding that it 

lacked that power and in denying the defendant’s motion for 

that reason. The Court of Appeals also erred in holding that 

the circuit court lacked that inherent power and in affirming 

the judgment accordingly. 

 For the reasons stated, we will reverse the judgment of 

the Court of Appeals and remand the case to that Court with 

direction to further remand the same to the circuit court for 

such consideration of the defendant’s motion for deferred 

disposition as the circuit court in its discretion may deem 

appropriate. 

Reversed and remanded. 

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