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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