dissenting.
The trial judge considered Thomas’ acquittal to be an adverse contact with the criminal justice system for purposes of sentencing and, thus, an incident “of the accused’s criminal record.” Nothing in Code § 19.2-299(A) permits a Virginia trial judge at sentencing to consider the fact that a defendant was tried and acquitted in a criminal case. Decisions of federal courts and courts of other states are irrelevant to the question whether Code § 19.2-299(A) permits a Virginia judge to consider an acquittal on a criminal charge as a negative indication of character because it establishes that the defendant had contact with the criminal justice system. I find no basis to conclude that under *605Code § 19.2-299(A) the fact of an acquittal may be considered as a part of a presentence report.
Recently, in a case arising from a sentencing in this same trial court, this Court rejected the Commonwealth’s argument that the trial judge may consider at the sentencing phase improper information. See Craddock v. Commonwealth, 16 Va. App. 402, 429 S.E.2d 889 (1993). There, we reversed the sentence and remanded the case for resentencing. Id. at 407, 429 S.E.2d at 892.
I would reverse the sentencing order in this case and remand this case for resentencing on a probation report that excludes from the “criminal record” references to the fact of acquittal and references to cases that indicate “no disposition located.” For these reasons, I dissent.