In Virginia if a prosecutor chooses not to go forward on a case he usually makes a motion for nolle prosequi - usually referred to as a motion to "nul pross." In theory a judge could deny this motion but in reality the prosecutor can get a nolle prosequi because it's the second Tuesday of April and his tarot reading told him he wouldn't succeed in efforts on this date. Some judges will ask if the defense objects but they'll grant the motion every time (not really the trial judge's fault - case law tells her to do this). Basically, the a nolle prosequi is what other States call a dismissal without prejudice.
Sometimes a prosecutor will move a dismissal. I have never heard a judge in Virginia qualify a dismissal with terms such as with or without prejudice. I've heard fellow defense attorneys opine and some judges hint that every dismissal in Virginia a dismissal with prejudice. I've even heard what I think are implicit admissions from prosecutors that this is the state of the law; i.e. "As part of this plea agreement we're going to move dismissal instead of nul prossing, Your Honor." However, it's always been an area where I've been uncomfortable.
The prosecutor in Roe v. Commonwealth moved to dismiss three charges. Then he went and re-indicted Roe. The defense attorney argued that the dismissal was with prejudice. The government argued that it was the equivalent to a nolle prosequi or a dismissal without prejudice. Both the trial court and the court of appeals resolved the ambiguity in favor of the prosecutor and held that it was a dismissal without prejudice. The Virginia Supreme Court, without dissent, overturns this and finds that the dismissal was a dismissal with prejudice.
It may be a little early to be entirely certain but it seems that the Virginia Supreme Court is trying to convince the Court of Appeals that ambiguities in the record must be decided in favor of the defendant (see also Overby v. Commonwealth). If the prosecutor had moved for a dismissal without prejudice I think it would not have come out in the defendant's favor. However, merely moving a dismissal is ambiguous without something further in the record and therefore must be interpreted as a dismissal with prejudice.
As a matter of actual practice, I think this settles the question of whether a dismissal in Virginia is with prejudice or not: it is a dismissal with prejudice. While I think a prosecutor could, under this decision, still move for a motion to dismiss without prejudice he's not going to do that. When he wants to be able to bring the case back he will move for nolle prosequi.
Now for the interesting thought. When a preliminary hearing is held the general district court judge can find a lack of probable cause and dismiss a case rather than certify it to the grand jury. Many times the prosecutor just goes straight to the grand jury anyway and directly indicts for a trial in the circuit court. However, there's now a colorable argument that the general district court judge's dismissal carries prejudice and jeopardy attaches. Very interesting . . .
Found at: Va App. News - Every Virginia Lawyer should be reading this blog so you can keep up with latest appellate rulings.