COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia
DOUGLAS ROBERT KENYON
OPINION BY
v. Record No. 3051-00-1 JUDGE LARRY G. ELDER
MARCH 19, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Stephen F. Forbes (Forbes & Broadwell, on
brief), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Randolph A. Beales,
Attorney General, on brief), for appellee.
Douglas Robert Kenyon (appellant) appeals from his bench
trial conviction for driving under the influence (DUI) pursuant
to Code § 18.2-266. 1 Appellant was convicted for that offense in
the district court and noted his appeal to the circuit court.
With appellant's consent, the Commonwealth terminated that
prosecution by nolle prosequi. The Commonwealth subsequently
obtained a new warrant charging appellant with DUI based on the
same act of driving, and appellant again was convicted in the
1
Appellant also was convicted for possession of marijuana.
Although he initially contested the marijuana possession
conviction on appeal, his brief indicates that he "voluntarily
withdraws his challenge to the marijuana conviction" and
contests "only . . . the DUI conviction in this appeal."
district court. On de novo appeal to the circuit court,
appellant again was convicted.
On appeal to this Court, appellant contends the circuit
court (trial court) erred in denying his motion to dismiss the
DUI charge on double jeopardy grounds. He argues that the
circuit court conviction was invalid because the district court
lacked jurisdiction to re-try him following the dismissal of the
prior charges by nolle prosequi and that the only way in which
the circuit court could have obtained jurisdiction the second
time would have been by direct indictment.
We hold that when appellant appealed the original district
court conviction, that conviction ceased to exist. Because the
charge was disposed of by nolle prosequi in the circuit court
before the court heard evidence, jeopardy did not attach in that
court and the underlying charge also ceased to exist. Thus, for
purposes of double jeopardy, the first round of proceedings
never occurred, and the second warrant provided the district
court with the jurisdiction necessary for the conviction upon
which the circuit court conviction was based. Thus, we affirm
appellant's conviction.
I.
BACKGROUND
In the early morning hours of June 20, 1999, appellant was
arrested on a warrant for driving under the influence on June
19, 1999. On November 19, 1999, appellant was tried in the
- 2 -
district court and convicted for that offense. He noted an
appeal to the circuit court, and a trial de novo was scheduled
for January 24, 2000.
On January 24, 2000, the Commonwealth moved the circuit
court to dispose of the DUI charge by nolle prosequi. With
appellant's consent, the circuit court granted the motion.
Appellant was represented by counsel in both the district and
circuit court proceedings.
On February 2, 2000, the Commonwealth obtained a new DUI
warrant against appellant for the same act of driving. On
May 19, 2000, appellant appeared pro se in district court and
again was convicted for DUI. The record on appeal contains no
transcript or statement of facts from that proceeding.
Appellant again noted an appeal from that conviction.
On November 28, 2000, appellant appeared with counsel for
trial in circuit court and moved to dismiss. Counsel argued
that the second district court DUI conviction violated double
jeopardy principles and that the only proper way for the
Commonwealth to have proceeded would have been to institute the
second set of charges by direct indictment. Counsel
acknowledged "there is a way to [reinstitute the charge]," but
he argued that "this is not the way to have done it."
The trial court denied the motion, explaining that "when
the case was appealed to the circuit court [the first time], it
was a trial de novo that wiped out the conviction, essentially
- 3 -
wiped out the case in lower court . . . like it never happened
in [district court]."
The court received evidence and found appellant guilty of
the DUI offense. Appellant then noted this appeal.
II.
ANALYSIS
Under double jeopardy prohibitions,
no person "shall . . . for the same offense
. . . be twice put in jeopardy of life or
limb." This . . . provision [of the United
States and Virginia Constitutions]
guarantees protection against (1) a second
prosecution for the same offense after
acquittal; (2) a second prosecution for the
same offense after conviction; and (3)
multiple punishments for the same offense.
Payne v. Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 300
(1999) (quoting U.S. Const. amend. V); see Bennefield v.
Commonwealth, 21 Va. App. 729, 739, 467 S.E.2d 306, 311 (1996)
(noting that double jeopardy provisions of state and federal
constitutions are coextensive). Here, we consider the first and
second protections in the context of Virginia's statutory
scheme, which permits de novo appeals from district court
misdemeanor convictions.
In Virginia, when misdemeanor charges are initiated by
warrant and a defendant is convicted of those charges in
district court, he may appeal to the circuit court for a trial
de novo. See Code § 16.1-136; Ledbetter v. Commonwealth, 18 Va.
App. 805, 810-11, 447 S.E.2d 250, 253-54 (1994). A de novo
- 4 -
hearing means a trial anew, and perfection of an appeal to the
circuit court for trial de novo "annuls the former [district
court] judgment as completely as if no trial had ever occurred."
Ledbetter, 18 Va. App. at 810-11, 447 S.E.2d at 253-54 (emphasis
added); see Malouf v. City of Roanoke, 177 Va. 846, 855-56, 13
S.E.2d 319, 322 (1941) (holding that in a de novo appeal, "'the
judgment appealed from is completely annulled, and is not
thereafter available for any purpose'" (quoting Bullard v.
McArdle, 33 P. 193, 194 (Cal. 1893)) (emphasis added)). But see
Code § 16.1-133 (providing that where misdemeanant withdraws
appeal before it is heard in circuit court, conviction and
sentence of district court are affirmed, either by operation of
law if appeal is withdrawn within ten days after conviction or
by order of circuit court if appeal is withdrawn more than ten
days after conviction).
Thus, trial on the same charges in the circuit court does
not violate double jeopardy principles, see Ledbetter, 18 Va.
App. at 810-11, 447 S.E.2d at 253-54, subject only to the
limitation that conviction in district court for an offense
lesser included in the one charged constitutes an acquittal of
the greater offense, permitting trial de novo in the circuit
court only for the lesser-included offense, see, e.g., Buck v.
City of Danville, 213 Va. 387, 388-89, 192 S.E.2d 758, 759-60
(1972). Even after an appeal to the circuit court is perfected,
annulling the conviction in the district court, jeopardy does
- 5 -
not attach in a bench trial in circuit court until the court
begins to hear evidence. See, e.g., Courtney v. Commonwealth,
23 Va. App. 561, 567, 478 S.E.2d 336, 338 (1996); see also
Cantrell v. Commonwealth, 7 Va. App. 269, 280, 373 S.E.2d 328,
333 (1988) (holding that where nolle prosequi motion is granted
after jeopardy has attached and accused does not consent to
same, Commonwealth must show "manifest necessity" to avoid
double jeopardy bar to further prosecution).
Here, although appellant was convicted for DUI in the
district court, he noted an appeal of that conviction to the
circuit court for trial de novo, thereby "annul[ling] the former
[district court] judgment as completely as if no trial had ever
occurred." Ledbetter, 18 Va. App. at 810-11, 447 S.E.2d at
253-54. Thus, appellant's district court conviction ceased to
exist at that time, and jeopardy never attached in the circuit
court because that court never heard evidence.
Because the district court conviction was annulled and
because the DUI charge was disposed of by nolle prosequi in the
circuit court before jeopardy had attached, the trial in the
district court on May 19, 2000 did not violate double jeopardy
principles and was sufficient to provide the district court with
jurisdiction to try appellant. At common law, a nolle prosequi
was "'a formal entry on the record by the prosecuting officer by
which he declare[d] that he [would] not prosecute the case
further.'" Black's Law Dictionary 1070 (7th ed. 1999) (quoting
- 6 -
22A C.J.S. Criminal Law § 419, at 1 (1989)). Under Virginia
law, a nolle prosequi "shall be entered only in the discretion
of the court, upon motion of the Commonwealth with good cause
therefor shown." Code § 19.2-265.3. A nolle prosequi is "a
discontinuance which discharges the accused from liability on
the [charging document] to which the nolle prosequi is entered.
For the prosecution to proceed thereafter for the same offense,
a new [charging document] is required." Miller v. Commonwealth,
217 Va. 929, 935, 234 S.E.2d 269, 273 (1977) (applying principle
in context of felony indictments).
When the offense is a felony and "the trial court enters a
nolle prosequi of [the felony] indictment, it lays 'to rest that
indictment and the underlying warrant without disposition, as
though they had never existed.'" Burfoot v. Commonwealth, 23
Va. App. 38, 44, 473 S.E.2d 724, 727 (1996) (quoting Arnold v.
Commonwealth, 18 Va. App. 218, 222, 443 S.E.2d 183, 185
(applying principles in speedy trial context), aff'd on reh'g en
banc, 19 Va. App. 143, 450 S.E.2d 161 (1994)) (emphasis added).
"After a nolle prosequi of an indictment, the slate is wiped
clean, and the situation is the same as if 'the Commonwealth
[had] chosen to make no charge.'" Id. (quoting Arnold, 18 Va.
App. at 222, 443 S.E.2d at 185); see Watkins v. Commonwealth, 27
Va. App. 473, 474-75, 499 S.E.2d 589, 590 (1998) (en banc)
(applying principles to hold that termination of original
- 7 -
charges by nolle prosequi nullified Commonwealth's acceptance of
plea agreement relating to original charges).
We hold likewise that when the offense is a misdemeanor and
the charging document is a warrant, "a nolle prosequi . . .
wipe[s] [the slate] clean, and the situation is the same as if
'the Commonwealth [had] chosen to make no charge.'" Burfoot, 23
Va. App. at 44, 473 S.E.2d at 727 (quoting Arnold, 18 Va. App.
at 222, 443 S.E.2d at 185). Thus, both because appellant noted
an appeal of the original district court conviction and because
the circuit court, with appellant's consent, granted the
Commonwealth's motion to dispose of that charge by nolle
prosequi before jeopardy had attached in the circuit court, 2 the
original charge and district court conviction ceased to exist.
As a result, appellant's second trial in the district court for
misdemeanor DUI did not violate double jeopardy principles. 3 As
2
Appellant does not challenge the trial court's authority
to grant the nolle prosequi.
3
Appellant also contends that the second round of
proceedings violated due process. However, appellant does not
challenge the adequacy of notice or the hearing he received, and
his arguments amount to little more than a restatement of his
double jeopardy claim. Therefore, we do not consider them
separately. We also reject appellant's claim that allowing the
Commonwealth "to refile a misdemeanor charge in the general
district court after a nolle prosequi in the circuit court . . .
would allow the Commonwealth to engage in impermissible forum
shopping." As in the case of any nolle prosequi motion, the
court must find good cause in order to grant such a motion, and
the legislature apparently has concluded that such a requirement
is sufficient to prevent abuse.
- 8 -
the district court thus had jurisdiction to try appellant on the
second warrant, the district court conviction was sufficient to
provide the circuit court with jurisdiction over appellant's de
novo appeal.
For these reasons, we affirm appellant's conviction.
Affirmed.
- 9 -