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Appeals Court to rehear case on power to nol pros

The full Virginia Court of Appeals will review the consequences when a prosecutor nol prosses a charge without giving a reason for doing so.

Last month, a unanimous three-judge panel reversed a conviction for assaulting a state trooper in Wright v. Commonwealth, (VLW 008-7-184), and remanded the case for circuit for a preliminary.

But last week, the court, “on its own motion,” entered an order in which it decided to hear the case en banc. The court said the merits of the case had been adequately addressed in briefs that have already been filed and asked only for the submission of additional copies of them.

Before the preliminary hearing for Stacey Lynn Wright, a Fairfax County prosecutor told the defendant and her attorney that he would nol pros the case and indict her if she did not accept a plea agreement.

Wright rejected the deal, and the prosecutor moved to nol pros the charge in general district court. The defense attorney demanded that he state a reason, but the judge granted the motion without requiring the prosecutor to do so.

After Wright was indicted, her attorney asked Circuit Judge Randy I. Bellows to dismiss the charges because there was no “good cause” for nol prossing the charge as required by Virginia Code § 19.2-265.3. Bellows ruled, however, that he had no authority to dismiss the indictments because of an alleged error by the lower court.

Writing for the appellate panel, Judge James W. Haley Jr. said Code § 19.2-265.3 dovetails with Code § 19.2-218, which bars the indictment of a defendant arrested on a warrant before he has a preliminary hearing unless the defendant waives the proceeding.
Read together, the statutes required a preliminary hearing for Wright, Haley said, because the prosecutor offered no cause, good or otherwise, for asking that the charge be nol prossed.

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