Rosemberg Batres-Jurado v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: January 30, 2001
• Docket: 0375004
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Willis and Senior Judge Overton Argued at Alexandria, Virginia

ROSEMBERG BATRES-JURADO MEMORANDUM OPINION * BY v. Record No. 0375-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK JANUARY 30, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Jean Harrison Clements, Judge

Bonnie H. Hoffman, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.

Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General; Susan M. Harris, Assistant Attorney General, on brief), for appellee.

Rosemberg Batres-Jurado (appellant) appeals the denial of a

pretrial bond pursuant to Code § 19.2-120. He raises four issues

on appeal. Appellant argues: 1) the statutory presumptions set

forth in Code § 19.2-120 violate the constitutional guarantee

against excessive bail; 2) the statute is void for vagueness; 3)

the statute is arbitrary and irrational; and 4) appellant

presented sufficient evidence to rebut the presumption under the

statute. Because we find his case moot, we dismiss the appeal.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.

Appellant was charged with two counts of rape and one count

of abduction with intent to defile. Appellant's counsel requested

that pretrial bond be set by the Juvenile and Domestic Relations

District Court of Loudoun County (J&DR). The J&DR court denied

bond, and appellant appealed to the trial court which again denied

pretrial bond. Appellant appealed that decision to this Court.

After the filing of the appeal, appellant was indicted by the

grand jury and bond was set at $20,000 personal recognizance and

appellant was released. During the pendency of the appeal and

after appellant was released, the Commonwealth's attorney nolle

prosequied appellant's charges.

The issues in this case are mooted by the dismissal of the

charges by nolle prosequi. "When the trial court enters a nolle

prosequi of an indictment, it lays 'to rest that indictment and

the underlying warrant without disposition, as though they had

never existed.'" Burfoot v. Commonwealth, 23 Va. App. 38, 44,

473 S.E.2d 724, 727 (1996) (quoting Arnold v. Commonwealth, 18

Va. App. 218, 222, 443 S.E.2d 183, 185, aff'd en banc, 19 Va.

App. 143, 450 S.E.2d 161 (1994)). "After a nolle prosequi of an

indictment, the slate is wiped clean, and the situation is the

same as if 'the Commonwealth had chosen to make no charge.'"

Id. It is as if the appellant had never been charged and thus,

all issues presented are moot.

- 2 - II.

Additionally, appellant contends that even if his case is

moot, we must address his arguments because this is a situation

that is "capable of repetition yet evading review." Weinstein

v. Bradford, 423 U.S. 147, 148 (1975). Weinstein provides a two

prong test to determine if a situation meets that standard.

Issues that are moot will be heard only if: (1) the time for

resolving the overall case is too short to litigate the issue;

and (2) it is reasonable to expect that the defendant will be

subject to the same action in the future. Id. at 149.

Appellant fails to establish that he may be subject to the

same action in the future. No evidence showed any intent to

recharge appellant. The nolle prosequi of the underlying

charges disposed of the case and placed appellant in the same

position as any other person who may potentially commit a crime.

Based on the limited information presented during the motion to

nolle prosequi all charges against appellant, it does not appear

there is any "reasonable expectation or demonstrated probability

that the same controversy will recur involving the same

complaining party." Murphy v. Hunt, 455 U.S. 478, 482 (1982).

We find this case to be moot and not subject to the

Weinstein exception. Accordingly, we dismiss.

Dismissed.

- 3 -