Home » Blog » Criminal Defense » Nolle prosequi needs good cause says Fairfax criminal lawyer

Nolle prosequi needs good cause says Fairfax criminal lawyer

Call Us: 703-383-1100

Nolle prosequi needs good cause says Fairfax criminal lawyer- Image of judicial gavel and base / sounding board

Nolle prosequi (non-prejudicial dismissal) dispositions need a finding of good cause by the court, says Fairfax criminal lawyer

Nolle prosequi [NP] is Latin for not prosecuting, in the form of a non-prejudicial dismissal that enables the prosecution to recharge the case within the statute of limitations period. As a Fairfax criminal lawyer, I know that the court must grant a motion to enter a case NP when the Virginia assistant commonwealth’s attorney requests such relief and when the defense consents to such a result, unless the court finds that the NP “motion was made as the result of (i) bribery or (ii) bias or prejudice toward a victim.” Virginia Code § 19.2-265.6(A). When the defense does not agree to the prosecutor’s NP motion, then a NP “shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown.” Va. Code § 19.2-265.3. Consequently, when a Virginia prosecutor presents an opposed motion to enter a prosecution noile prosequi, the trial judge must not grant such a dismissal without good cause shown. Id. The prosecutor is not the arbiter of what is good cause under these circumstance, so good cause never exits by the mere say-so of a prosecutor. Unlike some other jurisdictions that give prosecutor full or near full-reign whether to enter a prosecution NP, in Virginia a judge must use independent judgment about whether to grant a prosecutor’s NP motion. Harris v. Commonwealth of Virginia, 258 Va. 576, 583; Moore v. Commonwealth, 59 Va.App. 795, 812 (2012). 

Virginia judges are generally presumed to have exercised sound discretion in granting a prosecutor’s opposed nolle prosequi motion.

At least two Fairfax District Court judges (one now retired) and another Northern Virginia District Court judge (also now retired) have told me of it being rare for them to deny a prosecutor’s opposed nolle prosequi motion. The retired Fairfax General District Court judge would often ask me in response to my opposition, whether I wanted my client recharged and re-served a warrant of arrest for the same alleged crime. I answered yes, hyperbolically, because I have seen with my own eyes the many times that my client is not recharged with a crime after the original charge is marked NP. Recently, a Fairfax District Court judge — in my view — over-relied on and misinterpreted Duggins v. Commonwealth of Virginia, 59 Va.App. 785 (2012), in stating a view that a Virginia commonwealth’s attorney’s opposed NP motion ordinarily should be deferred to by the court. However, in reading Harris, supra, Moore, supra, Duggins, supra, and Va. Code § 19.2-265.6 together (as one must, while remembering that Harris comes from the highest court of the three), we see that the foregoing statute’s good cause standard placed on judges means just that, as an approach to separation of the authority of the branches of government, where only the prosecution may seek an NP disposition, but only the court may decide to grant such a disposition.

When a Virginia trial judge denies a prosecutor’s continuance request, the same grounds for denying a continuance may be applicable for denying a NP

As I discuss here and as addressed in Virginia Code § 19.2–266.2(D) (for instance) (in “the event such a motion or objection is raised, the district court shall, upon motion of the Commonwealth grant a continuance for good cause show”), good cause should be the standard not only for a judicial decision on a prosecutorial nolle prosequi motion, but also on a trial date continuance motion. That being said, then the prosecutor often will have no extra (or else little extra) grounds to articulate for a nolle prosequi motion that have not already been said by the prosecutor in moving for a dismissal of the prosecution. Again, absent good cause PLUS judicial discretion, no opposed prosecutorial NP motion should be granted in Virginia.

Make sure your Virginia criminal defense lawyer is ready to argue against the continuance of your trial date and nolle prosequi disposition on your prosecution

Your criminal defense lawyer needs not only to be quick and skilled on his or her feet in the courtroom, but also ready to burn the midnight oil to discover the eurekas for obtaining as much justice as possible for you. Fairfax criminal lawyer Jonathan Katz does both. See that for yourself with your free initial in-person confidential consultation with Jon Katz about your court-pending case. Call 703-383-1100 to schedule your appointment.

CALL FOR A FREE IN-PERSON MEETING about your court-pending Virginia criminal or DUI case
Attorney Jon Katz
Posted in Criminal Defense and tagged , ,