A nolle prosequi or nolle pros is a form of dismissal of a criminal charge. This guide helps explain the impact of a nolle prosequi or nolle pros. These two terms are used interchangeably.
When does the prosecutor seek a nolle prosequi / nolle pros?
The nolle pros is used for two primary reasons. The first is to help the prosecution determine the timing of the trial and the second is to help the prosecution negotiate results with the defense.
When will a judge grant a nolle prosequi / nolle pros?
To obtain the nolle pros, the Commonwealth's Attorney must demonstrate good cause to the judge. "Nolle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown." Code of Virginia section 19.2-265.3. The threshold of "good cause" is designed to prevent the prosecutor from acting in an arbitrary or punitive manner.
Why would the prosecutor use a nolle pros to delay my case?
The nolle pros allows the prosecution to manage when the case is brought to trial. The temporary dismissal gives the prosecutor more time to identify and gather evidence, such as locating additional witnesses or documents.
Why would my lawyer and I agree to a nolle pros of a charge?
A nolle pros is commonly used to dismiss charges as part of a negotiated or plea agreement. The prosecutor may agree to the nolle pros of certain charges in exchange for a guilty plea to the primary charge. Depending on the facts and circumstances of your case a negotiation that results in the nolle pros of some of the charges could help you avoid a conviction for a more serious crime and/or a more severe sentence.
Can the prosecutor bring back a charge that resulted in a nolle pros?
If a charge against you has been resolved by a nolle pros or nolle prosequi, then the charge is considered dismissed unless or until a prosecutor brings a direct indictment. If the nolle pros is the result of a plea agreement, then it would be rare for it to resurface unless you fail to comply with the terms of the agreement. If the prosecutor chose a nolle pros due to needing more time to prepare his case, then a direct indictment could be pursued within one year of the offense date for a misdemeanor.
How long does the prosecutor have to bring back a charge that resulted in a nolle pros?
The general rule is that "[a] prosecution for a misdemeanor ... shall be commenced within one year after there was cause therefor ..." Code of Virginia section 19.2-8. (Exceptions include a limit of five years for petit larceny and three years for illegal sales of wild animals). The specification that the prosecution begin within one year of the "cause therefor" means that the prosecutor must bring the charge again within one year of the date of offense, not just within one year of the date of the nolle pros.
Can I expunge a charge that was dismissed by nolle pros?
Yes. The nolle pros is a dismissal for all purposes. Therefore, you have the right to petition the court for expungement of the charge so that even the charge itself will be removed from your criminal record.
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