Burfoot v. Com.
| Decision Date | 06 August 1996 |
| Docket Number | No. 1591-95-2,1591-95-2 |
| Citation | 473 S.E.2d 724,23 Va.App. 38 |
| Parties | Anne Marie BURFOOT v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Court of Appeals |
Monica S. McElyea, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: BENTON, COLEMAN and FITZPATRICK, JJ.
Anne Marie Burfoot (appellant), a juvenile, was transferred to the circuit court for trial as an adult and was convicted in a bench trial of malicious wounding in violation of Code § 18.2-51. The sole issue on appeal is whether the circuit court erred in exercising jurisdiction over appellant when: (1) the Commonwealth nolle prossed the initial indictment and directly indicted her on the charge without filing a second petition in the juvenile and domestic relations district court, and (2) no additional transfer hearing was conducted. For the reasons that follow, we reverse the conviction.
On November 27, 1993, the complainant, Michael Eric Jenkins (Jenkins), was injured during a fight at a party in Dinwiddie County. A petition was filed in the juvenile and domestic relations district court on December 8, 1993, charging appellant 1 with malicious wounding of Jenkins. A transfer hearing was held in the juvenile and domestic relations district court on March 29, 1994, and on May 17, 1994, appellant was certified for trial in the circuit court. The grand jury returned an indictment for malicious wounding on May 19, 1994, and trial was scheduled for June 24, 1994. Several witnesses for the Commonwealth failed to appear on the day of trial, and the Commonwealth nolle prossed the indictment against appellant.
Appellant was again indicted on the same malicious wounding charge on November 21, 1994. No additional petition was filed in the juvenile and domestic relations district court, and no transfer hearing was held. At the trial on April 13, 1995, the circuit court judge sua sponte asked whether appellant had a problem with the transfer or "any difficulty from a procedural standpoint to proceeding today." Appellant's attorney asked whether the Commonwealth nolle prossed the indictment because its witnesses failed to appear and conceded that, "[i]f that was the reason, the transfer is appropriate." The Commonwealth's attorney confirmed that a nolle prosequi of the indictment was entered when several witnesses failed to appear. Appellant's attorney stated: "That being the circumstances, no, I don't [have a problem with the transfer]." Appellant was convicted of malicious wounding as charged in the second indictment.
At the sentencing hearing on July 17, 1995, appellant moved to set aside the verdict, arguing that, when the Commonwealth nolle prossed the first indictment, the prosecution of appellant on the charge of malicious wounding terminated. Appellant asserted that, because of her status as a juvenile, any further proceedings had to begin with the filing of a second petition in the juvenile and domestic relations district court, and a second transfer hearing should have been conducted. The circuit court denied appellant's motion and found that the jurisdictional requirements were satisfied. The court sentenced appellant to twenty years in the state penitentiary, with fifteen years suspended for twenty years.
Appellant argues that the circuit court erred in exercising jurisdiction over her after the Commonwealth nolle prossed the initial indictment. She contends that, to reinstitute criminal proceedings against her, the Commonwealth was required to file a new petition in the juvenile and domestic relations district court, and the court was required to conduct a new transfer hearing.
The effect of a nolle prosequi of an indictment on the jurisdiction of the circuit court over a juvenile who has been transferred for trial as an adult is an issue of first impression in the Commonwealth. In light of the specific statutory procedures applicable to the prosecution of a juvenile for a crime and the jurisdictional prerequisite of a valid juvenile transfer hearing, we hold that a nolle prosequi terminates the prosecution of a juvenile and that the only way to initiate a new prosecution is to file a second petition in the juvenile and domestic relations district court. 2
Considering the effect of a nolle prosequi in the double jeopardy context, this Court has held that, " '[u]nder Virginia procedure, a nolle prosequi is a discontinuance which discharges the accused from liability on the indictment to which the nolle prosequi is entered.' " Arnold v. Commonwealth, 18 Va.App. 218, 221, 443 S.E.2d 183, 185 (quoting Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269, 273 (1977), cert. denied, 434 U.S. 1016, 98 S.Ct. 735, 54 L.Ed.2d 762 (1978)), aff'd en banc, 19 Va.App. 143, 450 S.E.2d 161 (1994). When the trial court enters a nolle prosequi of an indictment, it lays "to rest that indictment and the underlying warrant without disposition, as though they had never existed." Arnold, 18 Va.App. at 222, 443 S.E.2d at 185 (emphasis added). To reinstitute criminal proceedings against an adult defendant after an indictment has been nolle prossed, the Commonwealth may seek a "new indictment[, which] is a new charge, distinct from the original charge or indictment." Id. at 221, 443 S.E.2d at 185. After a nolle prosequi of an indictment, the slate is wiped clean, and the situation is the same as if "the Commonwealth [had] chosen to make no charge." Id. at 222, 443 S.E.2d at 185. Thus, whether a defendant is an adult or a juvenile, the Commonwealth must comply with statutory procedures for initiating criminal proceedings when it seeks to reinstitute prosecution of the defendant after a nolle prosequi of an earlier indictment.
When the Commonwealth seeks to prosecute an adult for a felony, it has several options how to proceed, including direct indictment, presentment, information, or arrest warrant followed by a preliminary hearing. See Code §§ 19.2-217, -218. An adult defendant charged with a crime is not always entitled to a preliminary hearing. Payne v. Warden of the Powhatan Correctional Ctr., 223 Va. 180, 184, 285 S.E.2d 886, 888 (1982). " 'The primary purpose of a preliminary hearing is to ascertain whether there is reasonable ground to believe that a crime has been committed and the person charged is the one who has committed it.' " Id. at 183, 285 S.E.2d at 888 (quoting Webb v. Commonwealth, 204 Va. 24, 31, 129 S.E.2d 22, 28 (1963)). See also Moore v. Commonwealth, 218 Va. 388, 391, 237 S.E.2d 187, 190 (1977) ( ). "[W]here an adult accused is directly indicted by a grand jury, without having been previously arrested and charged, the jurisdiction of the circuit court is thereby invoked, and no preliminary hearing is required, even though the victim of the crime involved may be a juvenile." Payne, 223 Va. at 184, 285 S.E.2d at 888 (emphasis added). 3
However, the juvenile and domestic relations district courts have exclusive, original jurisdiction over criminal offenses alleged to have been committed by a juvenile. Code § 16.1-241(A)(1); Peyton v. French, 207 Va. 73, 79, 147 S.E.2d 739, 743 (1966). "All matters alleged to be within the jurisdiction of the court[, including the prosecution of a juvenile for a criminal offense,] shall be commenced by the filing of a petition" in the juvenile and domestic relations district court. Code § 16.1-260(A) (emphasis added). Thus, the sole avenue available to prosecute a juvenile defendant charged with a criminal offense begins with the Commonwealth filing a petition in the juvenile and domestic relations district court. No statute allows the Commonwealth to directly indict a juvenile for a criminal offense; process must be initiated by filing an appropriate petition in the juvenile and domestic relations district court.
Additionally, the juvenile and domestic relations district court must conduct a transfer hearing before the circuit court may obtain jurisdiction over a juvenile alleged to have committed a criminal offense. Peyton, 207 Va. at 79-80, 147 S.E.2d at 743. Payne, 223 Va. at 184, 285 S.E.2d at 888. Additionally, "[a] hearing held under the Juvenile and Domestic Relations Court Law is not as limited in its scope as a preliminary hearing under the criminal procedures applicable to an adult." Peyton, 207 Va. at 78, 147 S.E.2d at 742. Code § 16.1-269(A), in effect at the time of appellant's juvenile transfer hearing, 4 provided the conditions for juvenile transfer as follows:
If a child fifteen years of age or older is charged with an offense which, if committed by an adult, could be punishable by confinement in a state correctional facility, the court shall on motion of the attorney for the Commonwealth and prior to a hearing on the merits, hold a transfer hearing and may retain jurisdiction or transfer such child for proper criminal proceedings to the appropriate circuit court having criminal jurisdiction of such offenses if committed by an adult. Any transfer to the appropriate circuit court shall be subject to the following conditions:
1. The child was fifteen or more years of age at the time of the alleged commission of the offense.
2. Notice as prescribed in §§ 16.1-263 and 16.1-264 shall be given to the child and his parent, guardian,...
To continue reading
Request your trial
- Reittinger v. Com.
-
Wright v. Com.
...prosequi invariably "`lays to rest the indictment and the underlying warrant, as though they never existed.'" Burfoot v. Commonwealth, 23 Va.App. 38, 44, 473 S.E.2d 724, 727 (1996) (quoting Arnold v. Commonwealth, 18 Va. App. 218, 222, 443 S.E.2d 183, 185 The majority's description of the a......
- Reittinger v. Com.
-
Wright v. Angelone
...that jury instruction misstated South Carolina law). Wright relies upon the Virginia Supreme Court's decision in Burfoot v. Commonwealth, 23 Va.App. 38, 473 S.E.2d 724 (1996), to support his claim that the circuit court lacked jurisdiction over the last two counts of his indictment. In that......