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Court Rules Trial Judge Did Not Err in Denying Motion to Dismiss Indictment
July 28, 2009
Topic: Virginia Legal News
The Court of Appeals has held that the trial court did not err in refusing to dismiss the indictment because the Fairfax County Circuit Court was without subject matter jurisdiction to review a lower court's order granting a motion to nolle prosequi.
The defendant argued on appeal that the trial court erred in denying his motion to dismiss the indictment or, in the alternative, to remand the case to the juvenile and domestic relations district court for a preliminary hearing. The defendant asserted that he was initially arrested on a felony arrest warrant and that, on the Commonwealth's motion, that charge was nolle prosequied by the juvenile and domestic relations district court, over his objection that "the Commonwealth failed to show good cause" to justify the nolle prosequi.
The Court of Appeals, however, found no error in the trial court's denial of defendant's motion to dismiss the indictment. The Court of Appeals noted that it recently decided the case of Wright v. Commonwealth, 52 Va. App. 690 (2008) (en banc) where the court held that "the circuit court is without subject matter jurisdiction to conduct an appellate review of the district court's order granting a motion for nolle prosequi, therefore cannot reverse that court's order." According to the court, the defendant "was not entitled to have the circuit court review the district court's discretionary decision and grant [his] requested remedy of either having the case remanded to the district court for preliminary hearing or having the subsequent indictment[] dismissed." Accordingly, the trial court did not err in refusing to do so. See attached opinion.
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Attachments:
VACt.ofAppeals-Kolensikoff.pdf
