COMMONWEALTH V. VAN LUU, 79 VA. CIR. 43, 2009 VA. CIR. LEXIS 69 (VA. CIR. CT. 2009)
At a status hearing, after the court denied the Commonwealth’s motion to reconsider the calendar control judge’s denial of a continuance, the Commonwealth moved to nolle prosequi the case pursuant to Va. Code Ann. § 19.2-265.3 (2008). Defendant objected and moved the court to dismiss the case.
The Commonwealth failed to subpoena a doctor for trial. Defendant argued that the Commonwealth had not provided a good cause basis for its motion for nolle prosequi, but rather had only explained to the court that it did not adequately prepare for trial. First, the court made findings as to the circumstances leading to the motion for a continuance and the motion for nolle prosequi. Significantly, there was nothing in the record to suggest or imply that the Commonwealth acted in bad faith or engaged in prosecutorial misconduct. The case was clearly distinguishable from Battle v. Commonwealth because there was no evidence of vindictive intent. There was a lack of adequate preparation but, as soon as the Commonwealth recognized that a necessary witness would be unavailable, it brought the matter before the court. Exercising its discretion to grant the Commonwealth’s motion, the court ruled that the conduct in question amounted to a mere oversight, or a lack of adequate foresight and preparation. It did not constitute bad faith or prosecutorial misconduct.
The court granted the Commonwealth’s motion to nolle prosequi the case. The court denied defendant’s motion to dismiss.
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