COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Overton and Senior Judge Duff 

Argued at Alexandria, Virginia 

DOUGLAS M. ARMEL, JR. 

 OPINION BY 

v. Record No. 1735-97-4 JUDGE RICHARD S. BRAY 

 OCTOBER 13, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY 

William Shore Robertson, Judge 

 Elwood Earl Sanders, Jr., Director 

Capital/Appellate Services (Laura A. Cook, 

Assistant Public Defender; Public Defender 

Commission, on briefs), for appellant. 

 Michael T. Judge, Assistant Attorney General 

 (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Douglas Armel, Jr. (defendant) was convicted in a bench 

trial on indictments which alleged that he uttered a check with 

intent to defraud and possessed a firearm while a convicted 

felon. The indictments followed a nolle prosequi in the general 

district court of warrants charging the identical offenses. 

Defendant complains on appeal that this procedure denied him a 

preliminary hearing on the original warrants in violation of Code 

§ 19.2-218. Finding no error, we affirm the convictions. 

 On July 17, 1996, defendant was arrested on warrants 

charging the instant offenses. A witness necessary to 

prosecution of the offenses was not present at the preliminary 

hearing in the general district court, and the Commonwealth 

successfully moved the court to nolle prosequi the charges. 
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Thereafter, on September 9, 1996, a grand jury directly indicted 

defendant for the same offenses. 

 Defendant moved the trial court to quash the indictments, 

arguing that the Commonwealth had pursued a procedural course 

which circumvented his statutory right to a preliminary hearing 

on the original arrest warrants. In denying the motion, the 

court found that a nolle prosequi of the warrants had been 

granted in accordance with Code § 19.2-265.31 and, therefore, 

defendant was not entitled to a preliminary hearing pursuant to 

Code § 19.2-218 because he was not "arrested on a charge of 

felony" at the time of indictment. 

 It is well established that "[w]hen the Commonwealth seeks 

to prosecute an adult for a felony, it has several options how to 

proceed, including direct indictment, presentment, information, 

or arrest warrant followed by a preliminary hearing" in the 

general district court. Burfoot v. Commonwealth, 23 Va. App. 38, 

44, 473 S.E.2d 724, 728 (1996); see Code §§ 19.2-217, -218. The 

preliminary hearing which attends prosecution of an arrest 

warrant is "essentially a screening process . . . [to ascertain] 

whether there is reasonable ground to believe that the crime has 

been committed and . . . the accused is the person who committed 

it." Moore v. Commonwealth, 218 Va. 388, 391, 237 S.E.2d 187, 

190 (1977) (citation omitted); see Code § 19.2-186. Similarly, 

direct indictment by a grand jury results from a finding of "just 

 

 1Defendant does not take issue with this finding on appeal. 
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or probable cause" that the accused committed a specified 

criminal offense. See Britt v. Commonwealth, 202 Va. 906, 907, 

121 S.E.2d 495, 496 (1961) (citation omitted); see also Code 

§§ 19.2-191, -200, -202. Although neither a preliminary hearing 

nor an indictment is "jurisdictional and constitutionally 

imposed," it is reversible error to deny such statutory rights 

whenever asserted by an accused. Triplett v. Commonwealth, 212 

Va. 649, 650-51, 186 S.E.2d 16, 17 (1972) (citation omitted). 

 An election by the Commonwealth to pursue a felony 

prosecution either by warrant and arrest or direct indictment has 

substantive procedural implications. "'[W]here an adult accused 

is directly indicted . . ., without having been previously 

arrested and charged, the jurisdiction of the circuit court is 

thereby invoked, and no preliminary hearing is required . . . .'" 

Burfoot, 23 Va. App. at 45, 473 S.E.2d at 728 (alteration in 

original) (citation omitted). Code § 19.2-218, however, directs 

that, 

 [n]o person who is arrested on a charge of 

felony shall be denied a preliminary hearing 

upon the question of whether there is 

reasonable ground to believe that he 

committed the offense and no indictment shall 

be returned in a court of record against any 

such person prior to such hearing unless such 

hearing is waived in writing by the accused. 

 

Defendant, therefore, reasons that his earlier arrest on felony 

warrants triggered the necessity of a preliminary hearing before 

an "indictment shall be returned." 

 Defendant's argument, however, is belied by the procedural 
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history of the instant prosecution. The nolle prosequi of the 

original arrest warrants in the general district court 

"terminated the . . . charges, . . . as if they had never 

existed. When the Commonwealth subsequently brought [the] new 

indictment[s], [they were] 'new charge[s], distinct from the 

original charge[s] . . . .'" Watkins v. Commonwealth, 27 Va. 

App. 473, 475, 499 S.E.2d 589, 590 (1998) (en banc) (quoting 

Arnold v. Commonwealth, 18 Va. App. 218, 221, 443 S.E.2d 183, 

185, aff'd en banc, 19 Va. App. 143, 450 S.E.2d 161 (1994)). 

Thus, "'the slate [was] wiped clean, and the situation [was] the 

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

Id. at 475, 499 S.E.2d at 590 (quoting Burfoot, 23 Va. App. at 

44, 473 S.E.2d at 727 (citation omitted)). 

 In construing former Code § 19.1-163.1, the predecessor to 

Code § 19.2-218, the Supreme Court instructed that "'arrested' 

. . . within this context [references] a person who is detained 

in custody by authority of law or one . . . under a legal 

restraint." Moore, 218 Va. at 394, 237 S.E.2d at 192 (rejecting 

argument that the only route to indictment after arrest is 

through preliminary hearing). An accused "whose freedom of 

movement and liberty is not subject to any legal restriction, 

certainly is not a person who 'is arrested on a charge of 

felony'" within the intendment of Code § 19.2-218. Id. at 394, 

237 S.E.2d at 192. Therefore, direct indictment of an accused 

not then arrested for such offense is neither "manipulative [nor] 
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. . . a denial of any statutory right to which the defendant was 

entitled." Waye v. Commonwealth, 219 Va. 683, 689, 251 S.E.2d 

202, 206, cert. denied, 442 U.S. 294 (1979) (citation omitted); 

see also Moore, 218 Va. at 394, 237 S.E.2d at 192; Land v. 

Commonwealth, 211 Va. 223, 224-25, 176 S.E.2d 586, 587-88 (1970); 

Seibert v. Commonwealth, 22 Va. App. 40, 43-44, 467 S.E.2d 838, 

840 (1996). 

 Accordingly, upon nolle prosequi of the offenses charged in 

the original warrants, defendant was no longer "arrested on a 

charge of felony" contemplated by Code § 19.2-218 and was 

thereafter properly indicted without the benefit of a preliminary 

hearing. We, therefore, affirm the convictions. 

 Affirmed.