COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
DOUGLAS M. ARMEL, JR.
OPINION BY
v. Record No. 1735-97-4 JUDGE RICHARD S. BRAY
OCTOBER 13, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY
William Shore Robertson, Judge
Elwood Earl Sanders, Jr., Director
Capital/Appellate Services (Laura A. Cook,
Assistant Public Defender; Public Defender
Commission, on briefs), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Douglas Armel, Jr. (defendant) was convicted in a bench
trial on indictments which alleged that he uttered a check with
intent to defraud and possessed a firearm while a convicted
felon. The indictments followed a nolle prosequi in the general
district court of warrants charging the identical offenses.
Defendant complains on appeal that this procedure denied him a
preliminary hearing on the original warrants in violation of Code
§ 19.2-218. Finding no error, we affirm the convictions.
On July 17, 1996, defendant was arrested on warrants
charging the instant offenses. A witness necessary to
prosecution of the offenses was not present at the preliminary
hearing in the general district court, and the Commonwealth
successfully moved the court to nolle prosequi the charges.
Thereafter, on September 9, 1996, a grand jury directly indicted
defendant for the same offenses.
Defendant moved the trial court to quash the indictments,
arguing that the Commonwealth had pursued a procedural course
which circumvented his statutory right to a preliminary hearing
on the original arrest warrants. In denying the motion, the
court found that a nolle prosequi of the warrants had been
granted in accordance with Code § 19.2-265.3 1 and, therefore,
defendant was not entitled to a preliminary hearing pursuant to
Code § 19.2-218 because he was not "arrested on a charge of
felony" at the time of indictment.
It is well established that "[w]hen the Commonwealth seeks
to prosecute an adult for a felony, it has several options how to
proceed, including direct indictment, presentment, information,
or arrest warrant followed by a preliminary hearing" in the
general district court. Burfoot v. Commonwealth, 23 Va. App. 38,
44, 473 S.E.2d 724, 728 (1996); see Code §§ 19.2-217, -218. The
preliminary hearing which attends prosecution of an arrest
warrant is "essentially a screening process . . . [to ascertain]
whether there is reasonable ground to believe that the crime has
been committed and . . . the accused is the person who committed
it." Moore v. Commonwealth, 218 Va. 388, 391, 237 S.E.2d 187,
190 (1977) (citation omitted); see Code § 19.2-186. Similarly,
direct indictment by a grand jury results from a finding of "just
1
Defendant does not take issue with this finding on appeal.
- 2 -
or probable cause" that the accused committed a specified
criminal offense. See Britt v. Commonwealth, 202 Va. 906, 907,
121 S.E.2d 495, 496 (1961) (citation omitted); see also Code
§§ 19.2-191, -200, -202. Although neither a preliminary hearing
nor an indictment is "jurisdictional and constitutionally
imposed," it is reversible error to deny such statutory rights
whenever asserted by an accused. Triplett v. Commonwealth, 212
Va. 649, 650-51, 186 S.E.2d 16, 17 (1972) (citation omitted).
An election by the Commonwealth to pursue a felony
prosecution either by warrant and arrest or direct indictment has
substantive procedural implications. "'[W]here an adult accused
is directly indicted . . ., without having been previously
arrested and charged, the jurisdiction of the circuit court is
thereby invoked, and no preliminary hearing is required . . . .'"
Burfoot, 23 Va. App. at 45, 473 S.E.2d at 728 (alteration in
original) (citation omitted). Code § 19.2-218, however, directs
that,
[n]o person who is arrested on a charge of
felony shall be denied a preliminary hearing
upon the question of whether there is
reasonable ground to believe that he
committed the offense and no indictment shall
be returned in a court of record against any
such person prior to such hearing unless such
hearing is waived in writing by the accused.
Defendant, therefore, reasons that his earlier arrest on felony
warrants triggered the necessity of a preliminary hearing before
an "indictment shall be returned."
Defendant's argument, however, is belied by the procedural
- 3 -
history of the instant prosecution. The nolle prosequi of the
original arrest warrants in the general district court
"terminated the . . . charges, . . . as if they had never
existed. When the Commonwealth subsequently brought [the] new
indictment[s], [they were] 'new charge[s], distinct from the
original charge[s] . . . .'" Watkins v. Commonwealth, 27 Va.
App. 473, 475, 499 S.E.2d 589, 590 (1998) (en banc) (quoting
Arnold v. Commonwealth, 18 Va. App. 218, 221, 443 S.E.2d 183,
185, aff'd en banc, 19 Va. App. 143, 450 S.E.2d 161 (1994)).
Thus, "'the slate [was] wiped clean, and the situation [was] the
same as if "the Commonwealth had chosen to make no charge."'"
Id. at 475, 499 S.E.2d at 590 (quoting Burfoot, 23 Va. App. at
44, 473 S.E.2d at 727 (citation omitted)).
In construing former Code § 19.1-163.1, the predecessor to
Code § 19.2-218, the Supreme Court instructed that "'arrested'
. . . within this context [references] a person who is detained
in custody by authority of law or one . . . under a legal
restraint." Moore, 218 Va. at 394, 237 S.E.2d at 192 (rejecting
argument that the only route to indictment after arrest is
through preliminary hearing). An accused "whose freedom of
movement and liberty is not subject to any legal restriction,
certainly is not a person who 'is arrested on a charge of
felony'" within the intendment of Code § 19.2-218. Id. at 394,
237 S.E.2d at 192. Therefore, direct indictment of an accused
not then arrested for such offense is neither "manipulative [nor]
- 4 -
. . . a denial of any statutory right to which the defendant was
entitled." Waye v. Commonwealth, 219 Va. 683, 689, 251 S.E.2d
202, 206, cert. denied, 442 U.S. 294 (1979) (citation omitted);
see also Moore, 218 Va. at 394, 237 S.E.2d at 192; Land v.
Commonwealth, 211 Va. 223, 224-25, 176 S.E.2d 586, 587-88 (1970);
Seibert v. Commonwealth, 22 Va. App. 40, 43-44, 467 S.E.2d 838,
840 (1996).
Accordingly, upon nolle prosequi of the offenses charged in
the original warrants, defendant was no longer "arrested on a
charge of felony" contemplated by Code § 19.2-218 and was
thereafter properly indicted without the benefit of a preliminary
hearing. We, therefore, affirm the convictions.
Affirmed.
- 5 -