COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
DAVID J. HARRIS
MEMORANDUM OPINION * BY
v. Record No. 2087-97-4 JUDGE RICHARD S. BRAY
OCTOBER 20, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Carleton Penn, Judge Designate
Alexander N. Levay (Michael D. Sawyer;
Moyes & Levay, on briefs), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On July 29, 1997, David J. Harris (defendant) entered a
conditional plea of guilty to an indictment alleging an attempt
to obtain money by false pretenses. He complains on appeal that
the trial court erroneously permitted the Commonwealth to nolle
prosequi a prior indictment for the same offense, without first
demonstrating the "good cause" required by Code § 19.2-265.3,
resulting in a violation of his statutory and constitutional
rights of speedy trial. Finding no error, we affirm the
conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to
disposition of the appeal.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
At a preliminary hearing on January 23, 1996, the Loudoun
County General District Court found probable cause that defendant
had obtained money by false pretenses. Accordingly, defendant
was indicted on February 12, 1996, for that offense as well as
the subject charge, and trial was scheduled for September 3,
1996. On August 22, 1996, the Commonwealth appeared before the
trial court and requested a continuance, arguing that tardy
responses to subpoenas for documents "essential" to the
prosecution necessitated the delay. In denying the motion, the
court concluded that the Commonwealth "should have started [the
subpoena] process" earlier and would "have to live with" the
consequences. 1 The Commonwealth then immediately moved the court
to nolle prosequi the indictments, and the court granted the
motion, despite defendant's objection.
On October 15, 1996, a grand jury directly indicted
defendant for the identical offenses, and he was arrested
November 1, 1996. On March 31, 1997, defendant filed a motion to
dismiss the indictments, arguing, inter alia, that the
Commonwealth had circumvented his statutory and constitutional
rights of speedy trial through the nolle prosequi of the original
charges without the "good cause" mandated by Code § 19.2-265.3. 2
1
The record indicates that the issuance of subpoenas began
in May, 1996, and concluded in July, 1996.
2
We find no merit in the Commonwealth's argument that
defendant failed to properly present this issue to the trial
court.
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The trial court denied defendant's motion, finding "the record
. . . devoid of evidence of improper motive or prosecutorial
vindictiveness in . . . [the] nolle prosse [of] the original
charge or in electing to seek the later indictment for the same
offense." Trial and conviction followed on July 29, 1997, and
defendant appeals.
STATUTORY SPEEDY TRIAL
It is well established that, absent prosecutorial
misconduct, a nolle prosequi is "'a discontinuance which
discharges the accused from liability on the indictment to which
the [order] is entered.'" 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) (citation omitted); see Battle v.
Commonwealth, 12 Va. App. 624, 631, 406 S.E.2d 195, 198 (1991).
Therefore, the nolle prosequi of an indictment puts "to rest that
indictment . . . without disposition, as though [it] had never
existed." Arnold, 18 Va. App. at 222, 443 S.E.2d at 185. "When
the Commonwealth subsequently [brings] a new indictment, it [is]
'a new charge, distinct from the original charge . . . .'"
Watkins v. Commonwealth, 27 Va. App. 473, 475, 499 S.E.2d 589,
590 (1998) (en banc) (quoting Arnold, 18 Va. App. at 221, 443
S.E.2d at 185).
Code § 19.2-265.3 provides, in pertinent part, that a
"[n]olle prosequi shall be entered only in the discretion of the
court, upon motion of the Commonwealth with good cause therefor
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shown." Accordingly, we review an order granting a nolle
prosequi only for abuse of discretion, a strict legal term
defined as a "clearly erroneous conclusion and judgment."
Black's Law Dictionary 10 (6th ed. 1990) (citations omitted).
"'[T]he discretion of the able, learned and experienced trial
judge . . . will not be interfered with upon review of this
Court, unless some injustice has been done.'" Bell v. Kirby, 226
Va. 641, 643, 311 S.E.2d 799, 800 (1984) (citation omitted). We,
therefore, reverse only upon "clear evidence that [the decision]
was not judicially sound" and not simply to substitute our
"discretion for that rendered below." Nat'l Linen Serv. v.
Parker, 21 Va. App. 8, 19, 461 S.E.2d 404, 410 (1995).
Here, it is uncontroverted that the Commonwealth had not
obtained documents indispensable to prosecution of defendant on
the scheduled trial date. The Commonwealth's dilemma was fully
disclosed to the court in support of the related continuance
motion. When the motion was denied, the Commonwealth quickly
sought to nolle prosequi the charges, clearly prompted by those
evidentiary concerns presented to the court moments earlier.
Acting in this context, the court granted the motion, implicitly
finding that the circumstances constituted sufficient "good
cause" to justify the requested relief.
Defendant's argument on appeal that the denial of the
Commonwealth's continuance motion precluded the later finding of
good cause in support of the nolle prosequi overlooks the
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differences between the remedies. Unlike a continuance, the
nolle prosequi terminated the prosecution and released defendant
from the restraint of arrest or other criminal process, a result
substantially more favorable to him and prejudicial to the
Commonwealth.
Defendant relies on Battle to support his contention that
taint inherent in the nolle prosequi of the original prosecution
infected the later indictment. 12 Va. App. 624, 406 S.E.2d 195.
However, in Battle, the Commonwealth clearly acted vindictively,
threatening to nolle prosequi pending charges and indict the
accused for more serious offenses unless he withdrew a
well-founded motion to suppress. See Battle, 12 Va. App. at 630,
406 S.E.2d at 198. Under such circumstances, this Court decided
that the Commonwealth could not threaten a nolle prosequi as "a
sword to force a defendant to relinquish an advantage obtained by
a favorable judicial ruling." Id. Here, the Commonwealth sought
the nolle prosequi because it was unable to properly prosecute
3
the original indictment, without suggestion of unfair or
oppressive tactics.
Thus, the disputed conviction attended an indictment which
supplanted the original indictment and the time constraints
prescribed by Code § 19.2-243 related only to the later
indictment, resulting in a timely commencement of trial on July
3
Defendant's allegations of misconduct by the Commonwealth
during the prosecution of the second indictment are unrelated to
the court's good cause determination in the original proceeding.
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29, 1997. 4
CONSTITUTIONAL RIGHT TO SPEEDY TRIAL
Lastly, defendant argues that the misconduct of the
Commonwealth, beginning with the "purposeful act requesting to
nolle prosequi to defeat defendant's right to a speedy trial
. . . without any showing of good cause," together with "improper
motive" and "bad faith," defeated his constitutionally protected
right to a speedy trial. However, consistent with our analysis
and rejection of defendant's statutory speedy trial challenge,
we, likewise, reject his constitutional claim.
In adjudicating a constitutional speedy trial issue, "[t]he
length of the delay is the 'triggering mechanism' for [the]
analysis." Kelley v. Commonwealth, 17 Va. App. 540, 544, 439
S.E.2d 616, 619 (1994) (quoting Barker v. Wingo, 407 U.S. 514,
530 (1972)). "Unless there is sufficient delay to be
'presumptively prejudicial, there is no necessity for [further]
inquiry . . . .'" Id. Thus, an accused "must establish that,
under the particular circumstances of his case, the length of the
delay presumptively 'was so detrimental as to have endangered his
right to a fair trial.'" Kelley, 17 Va. App. at 545, 439 S.E.2d
at 619. An accused unaided by such presumption must demonstrate
actual prejudice. See Arnold, 18 Va. App. at 224, 443 S.E.2d at
187.
4
Defendant was not "held in custody" awaiting trial, and
compliance with Code § 19.2-243 is an issue on appeal only if the
original proceedings are implicated in the speedy trial analysis.
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Here, defendant's trial was delayed from the date of arrest
on the subject indictment, November 1, 1996, until trial on July
29, 1997, and, therefore, comported with the mandate of Code
§ 19.2-243. "'Code § 19.2-243 is the statutory embodiment of the
constitutional right to a speedy trial'" and "[a] process which
results in a trial on the merits within the statutorily described
time does not support a presumption of prejudice." Sheard v.
Commonwealth, 12 Va. App. 227, 231, 403 S.E.2d 178, 180 (1991)
(citation omitted). Thus, defendant, without the benefit of the
presumption or a showing of actual prejudice, failed to establish
the circumstances indispensable to a Sixth Amendment speedy trial
analysis.
Accordingly, defendant was denied neither his statutory nor
constitutional rights of a speedy trial, and we affirm the
conviction.
Affirmed.
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