Roe v. Com.

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton,∗ S.J.

GEORGE JULIOUS ROE
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 050909 April 21, 2006

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Commonwealth may

prosecute a criminal defendant for certain crimes when the

circuit court had previously granted the Commonwealth's motion

to dismiss indictments alleging the same crimes.

The facts relevant to our disposition of this appeal are

not in dispute. In 2002, a grand jury for the City of

Richmond indicted George Julious Roe for the following

offenses: abduction, use of a firearm in the commission of

abduction, shooting into an occupied dwelling, and possession

of a firearm by a convicted felon. The defendant was

scheduled to be tried in the Circuit Court of the City of

Richmond on October 3, 2002. On that date, the Commonwealth's

attorney and the defendant's counsel were present in the

circuit court. However, the defendant was not present because

he was in the custody of the United States Government, and the

∗
Senior Justice Compton participated in the hearing and
decision of this case before his death on April 9, 2006.
Commonwealth had not made arrangements to procure his

presence.

Upon the Commonwealth's motion for a continuance, the

circuit court considered evidence and arguments of counsel and

denied the motion. The Commonwealth made a motion to dismiss

the above-referenced offenses. The circuit court granted the

motion and entered an order that stated in part:

"The defendant was not present this day. He
was represented by appointed counsel, Michael
Herring. The Commonwealth was represented by George
Townsend.
"On motion of the attorney for the
Commonwealth, the Court, having heard the evidence
and argument(s) of counsel, DENIES Commonwealth's
motion for a continuance.
"The attorney for the Commonwealth moved to
dismiss the offense(s) indicated below, which motion
the Court granted.

"CASE OFFENSE DESCRIPTION AND OFFENSE
NUMBER INDICATOR (F/M) DATE

"CR02-F-1434 Use of a Firearm in the 07/04/01
Commission of Abduction
(F)

"CR02-F-1435 Shoot Into An Occupied 07/04/01
Dwelling (F)

"CR02-F-1436 Possession of a Firearm 07/04/01
by a Convicted Felon (F)

"CR02-F-1437 Abduction (F) 07/04/01"

Subsequently, another grand jury for the City of Richmond

indicted Roe for these same offenses. The trial for these

offenses was conducted on September 17, 2003. Before the

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commencement of the trial, Roe moved to dismiss the

indictments because the charges had been dismissed by the

circuit court's order dated October 3, 2002.

Defendant's counsel argued before the circuit court, with

a different judge presiding, that the Commonwealth was not

entitled to proceed with these charges because they were

dismissed in October 2002. Defense counsel informed the

circuit court that the Commonwealth made a motion to continue

the trial in October 2002 because the Commonwealth was not

prepared to proceed with its case and that the victim had

repeatedly failed to appear. The defendant also asserted that

the Commonwealth chose not to request a nolle prosequi

pursuant to Code § 19.2-265.3, but instead the Commonwealth

specifically moved to dismiss the charges. The Commonwealth

responded that even though it made a motion to dismiss during

the October 3, 2002 proceeding, the motion was in the nature

of a motion for a nolle prosequi and that the dismissal was

not with prejudice.

The circuit court reviewed the above-referenced order and

ruled:

"I find that the Court had no power under the
circumstances presented on October 3, 2002 to
dismiss the case with prejudice. It only had the
power to dismiss on a motion to nol pros . . . it
appears to have been phrased in the term motion to
dismiss by the prosecutor in court that day.

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 "As I read the law the only power the Court has
is to grant a motion to nol pros at that time.
That's the way I interpret the order."

The circuit court denied the motion to dismiss and

conducted a bench trial. At the conclusion of the trial, the

defendant was convicted of abduction, use of a firearm in the

commission of a felony, and possession of a firearm by a

felon. The defendant was sentenced to a total of 13 years

with five years suspended.

A divided panel of the Court of Appeals affirmed the

defendant's convictions. Roe v. Commonwealth, 45 Va. App.

240, 609 S.E.2d 635 (2005). The Court of Appeals held that

the circuit court's ruling that the October 3, 2002 dismissal

order constituted a nolle prosequi is a reasonable

interpretation of that order and that the circuit court did

not abuse its discretion. Id. at 249, 609 S.E.2d at 639. Roe

appeals.

The defendant argues in this Court that the circuit court

erred by failing to dismiss the indictments that were the

subject of the second prosecution. The defendant states that

the Commonwealth requested and received a dismissal of those

charges in October 2002 as stated in the circuit court's

dismissal order. Continuing, the defendant asserts that the

circuit court's subsequent ruling that the dismissal order

constituted a nolle prosequi is erroneous and that the Court

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of Appeals erred by affirming the judgment of the circuit

court. The Commonwealth responds that its motion to dismiss

granted in the October 2002 order was the equivalent of a

nolle prosequi and that the circuit court's interpretation of

the October 2002 order is reasonable. We disagree with the

Commonwealth.

It is well established in this Commonwealth that a

circuit court speaks only through its written orders. We have

consistently applied this well-established principle. Rose v.

Jaques, 268 Va. 137, 147, 597 S.E.2d 64, 70 (2004); Upper

Occoquan Sewage Authority v. Blake Construction Co., 266 Va.

582, 588, 587 S.E.2d 721, 724 (2003); Commonwealth v.

Williams, 262 Va. 661, 668, 553 S.E.2d 760, 763 (2001); Berean

Law Group, P.C. v. Cox, 259 Va. 622, 626, 528 S.E.2d 108, 111

(2000); Walton v. Commonwealth, 256 Va. 85, 94, 501 S.E.2d

134, 140 (1998).

Another well-established principle in our jurisprudence

is that circuit courts have the authority to interpret their

own orders. Fredericksburg Constr. Co. v. J.W. Wyne

Excavating, Inc., 260 Va. 137, 143-44, 530 S.E.2d 148, 152

(2000); Rusty's Welding Service, Inc. v. Gibson, 29 Va. App.

119, 129, 510 S.E.2d 255, 260 (1999). However, a circuit

court's authority to interpret its order is subject to

judicial review and even though this Court accords deference

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to the circuit court's interpretation, that interpretation

must be reasonable. Smoot v. Commonwealth, 37 Va. App. 495,

500, 559 S.E.2d 409, 412 (2002). We apply an abuse of

discretion standard in determining whether the circuit court's

interpretation of its order is reasonable. Id.

Applying the aforementioned principles, we hold that the

circuit court's interpretation of the October 2002 order is

unreasonable and that the Court of Appeals erred in concluding

otherwise. Contrary to the ruling of the circuit court, the

October 3, 2002 order did not grant a motion for nolle

prosequi. The Commonwealth specifically requested that the

charges be "dismissed," not that the charges be nolle prossed.

The circuit court speaks through its orders, and the October

3, 2002 order specifies that "[t]he attorney for the

Commonwealth moved to dismiss the offense(s) indicated below,

which motion the Court granted."

A nolle prosequi and a motion to dismiss are separate and

distinct procedures. Code § 19.2-265.3, which governs nolle

prosequi, states: "Nolle prosequi shall be entered only in

the discretion of the court, upon motion of the Commonwealth

with good cause therefor shown." Pursuant to the plain

language of Code § 19.2-265.3, the Commonwealth is not

entitled to a nolle prosequi unless it demonstrates the

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requisite good cause. A dismissal at the request of the

Commonwealth does not require a showing of good cause.

We also observe that the General Assembly has enacted

many statutes that contain both the terms "nolle prosequi" and

"dismissed." Examples of statutes that contain both terms

include: Code § 16.1-305.1 that governs disclosure of

disposition in certain delinquency cases; Code § 17.1-213 that

deals with disposition of papers in ended cases; Code § 19.2-

392.2 that governs expungement of police and court records;

and Code § 51.1-124.28 that deals with legal representation of

certain governmental officials. We have repeatedly stated

that "[w]hen the General Assembly uses two different terms in

the same act, it is presumed to mean two different things."

Simon v. Forer, 265 Va. 483, 490, 578 S.E.2d 792, 796 (2003);

Greenberg v. Commonwealth, 255 Va. 594, 601, 499 S.E.2d 266,

270 (1998); Forst v. Rockingham Poultry Mktg. Coop., Inc., 222

Va. 270, 278, 279 S.E.2d 400, 404 (1981). Clearly, the

General Assembly is aware of the difference between the terms

"nolle prosequi" and "motion to dismiss," and the General

Assembly has not used these terms synonymously.

We hold that the circuit court abused its discretion when

it concluded that the October 3, 2002 dismissal order granted

the Commonwealth's motion for a nolle prosequi. The

Commonwealth failed to make such motion.

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 The facts and circumstances surrounding the entry of the

October 2002 dismissal order indicate that the dismissal was

with prejudice. The Commonwealth failed to procure the

presence of the defendant, who was in the custody of federal

officials, and the Commonwealth was not prepared to proceed

with its case against the defendant. The circuit court had

denied the Commonwealth's motion for a continuance, and the

Commonwealth neglected to request a nolle prosequi. Moreover,

the Commonwealth does not identify any circumstances in the

record that suggest that the order was entered without

prejudice.1

Accordingly, we will reverse the judgment of the Court of

Appeals, and we will dismiss the indictments.

Reversed and final judgment.

1
The Commonwealth's remaining arguments are without
merit.

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