Commonwealth v. Shifflett

20 Va. Cir. 46, 1989 Va. Cir. LEXIS 397

Opinion

By JUDGE THOMAS D. HORNE

This cause came to be heard upon the defendant’s Motion to Quash the Indictment and Plea of Former Jeopardy.

The defendant’s Motion to Quash is denied, and his Plea is overruled.

Since the General District Court Judge dismissed the original felony charge for lack of probable cause, there was no final adjudication on the merits. Moore v. Commonwealth, 218 Va. 388, 390 (1977). It follows that no jeopardy having attached at the preliminary hearing, no double jeopardy ensued when the defendant was subsequently indicted.

Distribution as an accommodation is not a lesser included offense of the felonious distribution of marijuana. Stillwell, et al. v. Commonwealth, 219 Va. 214 (1978). Accordingly, the General District Court Judge has no authority to arraign the defendant on that charge. Accordingly, the Commonwealth’s motion to nolle prosequi was of no legal consequence. The dismissal of the original felony charge served only to discharge the defendant, leaving to the Commonwealth the right to seek the instant indictment.