Commonwealth v. Taylor

10 Va. Cir. 152, 1987 Va. Cir. LEXIS 168

• Court: Norfolk County Circuit Court
• Decided: July 29, 1987
• Docket: Case No. 870103F01
• Status: Published

Opinion

By JUDGE LEONARD B. SACHS

At the hearing of this matter on May 4th, the defendant, by counsel, moved the Court for the entry of an Order dismissing the two indictments charging the defendant with possessing more than one-half ounce but less than five pounds of marijuana with intent to distribute on the grounds that the defendant had previously been placed in jeopardy with respect to each of the offenses charged in those indictments.

It was the contention of the defendant, by counsel, that Taylor was arrested upon warrants which charged "did have in his possession a quantity of marijuana with intent to distribute." It is the position and was the position of the defendant, by counsel, at the District Court and again at this trial level that the defendant was placed in jeopardy before the District Court when evidence was put on there because the warrants charged only a misdemean- or.

I disagree.

The warrants state in the pre-printed opening paragraph that the defendant "did unlawfully and feloniously in violation of Section 18.2-248.1, Code of Virginia, did have in his possession a quantity of marijuana with intent to distribute."

By alleging that he feloniously had in his possession a quantity, the defendant was advised that he was being charged with something more than one-half ounce. Since he was charged with a felony, the District Court did not have authority to try him therefore, he was not in jeopardy on either of these charges, and the Commonwealth’s Attorney will present an order overruling the Motion to Dismiss on the grounds of prior jeopardy, noting the objection of the defendant to the ruling in each case.