RD44 - Unrestorable Incompetent Defendants
The Code of Virginia, § 19.2-169.3, pertains to the disposition of unrestorable incompetent defendants. Subsection C of this section provides:
"If not dismissed without prejudice at an earlier time, charges against an unrestorable incompetent defendant shall be dismissed on the date upon which his sentence would have expired had he been convicted and received the maximum sentence for the crime charged, or on the date five years from the date of his arrest for such charges, whichever is sooner."
A review of the legislative history of § 19.2-169.3 reveals that the language of Subsection C published in the current Code of Virginia is not the same language enacted by the General Assembly in 1982. Furthermore, this section has not been affected by amendments since its enactment. The language passed by the General Assembly, after recommendations concurred with by both the Senate and House, provided:
"If not dismissed at an earlier time, charges against an unrestorable incompetent defendant shall be dismissed without prejudice on the date upon which his sentence would have expired had he been convicted and received the maximum sentence for the crime charged, or on the date five years from the date of his arrest for such charges, whichever is sooner."
The words “without prejudice” were inserted as the result of a recommendation of the Governor and with the concurrence of both the Senate and House. The Governor’s recommendation specifically expressed that the words “without prejudice” be inserted on the second line after the word “dismissed.” This change was correctly reflected when the act was published in the 1982 Acts of Assembly. However, when the next edition of the Virginia Code was published for the year 1983, the words “without prejudice” appeared after the word “dismissed” on the first line. All subsequent editions of the Virginia Code have continued this incorrect placement.
This error in publication is not merely technical. The clear meaning of the subsection that existed at the time of its enactment has been severely diminished as a result of the incorrect placement. In fact, it is commonly understood throughout the Commonwealth that Subsection C requires a complete dismissal of charges after no more than five years. However, the language passed by the General Assembly clearly reveals that the purpose of the subsection is merely to take cases off the docket, not to prevent prosecution in the future should the defendant become competent and certainly not to require the defendant’s release. Replacing the words “without prejudice” after the word “dismissed” on the second line will restore to the subsection the clear meaning to which the General Assembly intended.