Present: All the Justices 

DAVID J. HARRIS 

 OPINION BY 

v. Record No. 990270 JUSTICE LAWRENCE L. KOONTZ, JR. 

November 5, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this appeal, we consider a defendant’s claims that he 

was denied his right to a speedy trial under Code § 19.2-243 and 

the Sixth Amendment of the United States Constitution where he 

was reindicted for the same offenses following the granting of 

the Commonwealth’s motion for nolle prosequi on the original 

indictment. The dispositive issues are whether the Commonwealth 

had good cause for the nolle prosequi motion, and whether its 

motivation therefor constituted a bad faith or oppressive tactic 

amounting to prosecutorial misconduct. 

BACKGROUND 

In 1995, David J. Harris falsely represented to his 

employee-union, the International Association of Firefighters 

(IAFF), that he was in financial need as a result of unpaid 

medical expenses arising from the medical care of Harris’ unborn 

son. Harris provided IAFF with an invoice for expenses, which 

Harris falsely represented as not having been paid by his 

insurer. In response to Harris’ false representation, IAFF 

issued a check to Harris in the amount of $6,744.11. 
Subsequently, in an attempt to procure additional money, Harris 

made a second false representation to IAFF in the form of a 

fabricated invoice showing additional unpaid expenses. 

On January 23, 1996, the Loudoun County General District 

Court held a preliminary hearing and found probable cause to 

believe that Harris had committed the felony offense of 

obtaining money by false pretenses from IAFF. Code § 18.2-178. 

The charge was certified to the grand jury. Subsequently, on 

February 12, 1996, Harris was indicted in a two-count indictment 

for obtaining money by false pretenses from IAFF and for 

attempting to obtain money by false pretenses from IAFF. Code 

§ 18.2-26. At the Commonwealth’s request, a jury trial was set 

for September 3, 1996. Harris was not held in custody pending 

his trial. 

On August 15, 1996, the Commonwealth filed a motion for a 

continuance on the grounds that it had been unable to obtain 

documents essential to the prosecution from both a local 

financial institution and an out-of-state financial institution.1 

On August 22, 1996, a hearing was held on the Commonwealth’s 

motion. During argument, the Commonwealth conceded that 

“there’s a speedy trial issue,” but asserted that the case could 

 

1

The record reflects that the Commonwealth obtained 

subpoenas duces tecum for these documents in May and July, 1996. 

2
be reset, subject to an available date on the trial court’s 

docket, within the statutory nine-month period. 

Harris opposed the granting of a continuance. He contended 

that witnesses for his case would be inconvenienced by the delay 

and that the Commonwealth had failed to act with appropriate 

diligence to obtain the documents. The trial court denied the 

motion and admonished the Commonwealth for not timely requesting 

the subpoenas duces tecum to obtain the documents.2 The 

Commonwealth then moved to nolle prosequi the indictment. Over 

Harris’ objection, the trial court granted this motion and 

stated, “Mr. Harris, you are free to go.” 

On October 15, 1996, the grand jury directly indicted 

Harris for the same offenses. By agreement with the 

Commonwealth, Harris appeared, accepted service, and was 

arraigned on the indictment on November 1, 1996. The 

Commonwealth had previously agreed to Harris’ release on 

personal recognizance and, accordingly, Harris was not held in 

custody. 

 

2

Harris contends that the trial court offered the 

Commonwealth the option of withdrawing its request for a jury 

trial in order to obtain the continuance. The record reflects, 

however, only that the trial court noted that the request for a 

jury trial was a factor in its consideration of the motion for a 

continuance. 

3
On March 31, 1997, Harris moved to dismiss the indictment. 

In a supporting memorandum, Harris contended that the 

Commonwealth lacked good cause for seeking the nolle prosequi of 

the original indictment as required by Code § 19.2-265.3. 

Relying on Battle v. Commonwealth, 12 Va. App. 624, 406 S.E.2d 

195 (1991), Harris contended that the Commonwealth had 

effectively continued the first prosecution in the form of the 

second, thus denying him his statutory rights of speedy trial. 

Harris further contended that, even if his statutory speedy 

trial right had not been violated, his right to a speedy trial 

under the Sixth Amendment of the United States Constitution had 

been prejudiced by the delay occasioned by the Commonwealth’s 

nolle prosequi of the original indictment. Harris conceded that 

he could not “determine . . . whether any evidence will be lost 

due to witness unavailability, or whether there will be an 

inability of any witness . . . to now accurately recall events.” 

However, he asserted that he had been prejudiced by a change in 

counsel necessitated when his original counsel ended his 

employment with the firm retained by Harris and discontinued his 

practice of law. 

In a responding brief, the Commonwealth, relying on Arnold 

v. Commonwealth, 18 Va. App. 218, 443 S.E.2d 183, aff’d, 19 Va. 

App. 143, 450 S.E.2d 151 (1994)(en banc), contended that the 

motion for nolle prosequi of the original indictment had been 

4
properly taken and, thus, Harris’ statutory period in which to 

be afforded a speedy trial ran from the date of his arraignment 

on the second indictment. The Commonwealth further contended 

that Harris had failed to show that the delay was prejudicial, 

precluding a review of his claim for a violation of his Sixth 

Amendment right. 

In a letter opinion, the trial court indicated that it 

would deny the motion to dismiss. Citing Arnold, 18 Va. App. at 

222, 443 S.E.2d at 185, the trial court held that the nolle

prosequi of the original indictment “laid to rest that 

indictment, . . . . as though it never had existed.” 

Accordingly, the trial court concluded that Harris’ statutory 

speedy trial right was to be calculated from the date of his 

arraignment on the charges in the second indictment.3

The trial court continued in its opinion letter to consider 

Harris’ claim that the delay in prosecuting him constituted a 

violation of his Sixth Amendment right to a speedy trial. The 

trial court concluded that “[t]he evidence before the Court 

. . . does not justify the conclusion that any such deprivation 

 

3

Although Harris had not expressly asserted a violation of 

his due process rights at this time, the trial court further 

stated that it found no improper motive or prosecutorial 

vindictiveness in the Commonwealth’s decision to nolle prosequi

the original indictment or in its electing to seek the later 

indictment of Harris for the same offenses and, thus, no basis 

for finding a due process violation. 

5
has occurred.” An order incorporating by reference the trial 

court’s opinion letter was entered May 29, 1997. 

On July 29, 1997, Harris entered into a conditional plea 

agreement whereby he agreed to plead guilty to attempting to 

obtain money by false pretenses from IAFF while reserving his 

right to appeal the denial of his speedy trial claims. By order 

entered August 18, 1997, the trial court found Harris guilty of 

that offense, sentenced him to a suspended six months term of 

confinement, and ordered him to make restitution. 

Harris noted an appeal to the Court of Appeals. With 

respect to the speedy trial right under Code § 19.2-243, Harris 

contended that the trial court erred in finding that the nolle

prosequi of the original indictment had been taken for good 

cause. He asserted that because the trial court had denied the 

Commonwealth’s motion for a continuance, there was no good cause 

for sustaining the motion for nolle prosequi as well. Harris 

further asserted that the trial court erred in finding that 

there had been no improper motive in seeking the nolle prosequi

and that this “bad faith” infringed upon his constitutionally 

protected right to a speedy trial. Harris also contended that 

the delays occasioned by the nolle prosequi of the original 

indictment had violated his Sixth Amendment right to a speedy 

trial. 

6
In an unpublished opinion, Harris v. Commonwealth, Record 

No. 2087-97-4 (October 20, 1998), the Court of Appeals rejected 

Harris’ assertion that the motion for nolle prosequi had been 

granted without good cause. Noting that the result of a motion 

for nolle prosequi being granted was more favorable to the 

defendant than where a case is merely continued, the Court of 

Appeals found that it was “uncontroverted that the Commonwealth 

had not obtained documents indispensable to prosecution of 

[Harris] on the scheduled trial date.” In this context, the 

Court held that the Commonwealth had made a sufficient showing 

of good cause for the trial court to sustain a motion for nolle

prosequi. 

Having thus found that Harris lacked grounds to assert a 

violation of his statutory right to a speedy trial, the Court of 

Appeals concluded that there was no presumption of prejudice in 

the delay occasioned by his release from the original charges. 

The Court further concluded that Harris had failed to 

demonstrate actual prejudice as a result of this delay, thus he 

was precluded from asserting a violation of his Sixth Amendment 

right. 

The Court of Appeals further held that the Commonwealth’s 

motivation in making the motion for nolle prosequi was that it 

was “unable to properly prosecute the original indictment, 

without suggestion of unfair or oppressive tactics.” 

7
Accordingly, the Court rejected Harris’ assertion of 

prosecutorial misconduct. 

On January 4, 1999, the Court denied Harris’ petition for a 

rehearing en banc. We awarded Harris this appeal. 

DISCUSSION 

Harris first contends that the trial court’s granting of 

the motion for nolle prosequi of the first indictment without 

any showing of good cause by the Commonwealth was error and, 

thus, the second indictment was effectively a continuation of 

the original prosecution and subject to the speedy trial time 

limits of the original prosecution, which would have commenced 

from the date probable cause was found in the general district 

court.4 Specifically, he contends the record is devoid of any 

 

4

The Commonwealth contends that Harris failed to preserve 

his objection to the trial court’s “good cause” determination at 

the time that the motion for nolle prosequi was granted. During 

oral argument, the Commonwealth further contended that Harris is 

barred from collaterally challenging the granting of the motion 

for nolle prosequi, asserting that his remedy was to have 

challenged the trial court’s action on direct appeal. We 

disagree. At the time the motion for nolle prosequi was 

granted, Harris was not an “aggrieved party . . . [petitioning] 

from [a] final conviction in a circuit court of a traffic 

infraction or a crime.” Code § 17.1-406 (emphasis added). 

Accordingly, Harris had no right to petition the Court of 

Appeals for a review of the trial court’s action at that time. 

Harris’ right of appeal accrued only when he was convicted under 

the second indictment. The issues before us arise from his 

assertion of his speedy trial rights, including the claim that 

the original indictment was improperly terminated, during that 

prosecution. 

8
basis upon which the trial court could have granted the motion 

for nolle prosequi for “good cause.” This is so, Harris 

asserts, because the Commonwealth could not rely on its argument 

in favor of the motion for a continuance as supporting its 

motion for nolle prosequi and offered no additional reason to 

support the motion before the trial court made its ruling. 

Harris further asserts that the trial court’s denial of the 

continuance motion establishes that there was no good cause to 

support that motion and, thus, none to support the motion for 

nolle prosequi. We disagree. 

We review the granting of a motion for nolle prosequi under 

well-settled principles of law. Code § 19.2-265.3 provides that 

“[n]olle prosequi shall be entered only in the discretion of the 

court, upon motion of the Commonwealth with good cause therefor 

shown.” The express language of the statute commits a finding 

of good cause to the discretion of the trial court. “In 

reviewing an exercise of discretion, we do not substitute our 

judgment for that of the trial court. Rather, we consider only 

whether the record fairly supports the trial court’s action.” 

Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906 

(1997). Accordingly, the granting of a motion for nolle

prosequi will only be overturned if there is clear evidence that 

the decision to grant the motion was not judicially sound. 

9
Harris’ contention that the Commonwealth could not rely on 

its argument in favor of a continuance to support its subsequent 

motion for nolle prosequi is without merit. It is clear from 

the record that the Commonwealth sought the nolle prosequi as an 

alternative to the continuance and on the same grounds. That 

argument and its underlying factual assertions were before the 

trial court, and it was not necessary for the Commonwealth to 

reiterate its position under those circumstances. 

Harris’ contention that the trial court’s refusal to grant 

the continuance is tantamount to a finding that there was no 

good cause to support the subsequent motion for nolle prosequi

is equally without merit. In denying the Commonwealth’s motion 

for a continuance, the trial court noted that Harris’ concern 

for rescheduling his witnesses and the trial court’s concern 

over the difficulty in setting a new date for a jury trial 

weighed against granting the motion. These concerns were not 

applicable to the subsequent motion for nolle prosequi. 

Moreover, as the Court of Appeals noted, whereas a continuance 

granted over the defendant’s objection is not favorable to him 

in certain respects, a nolle prosequi provides him with the 

benefit of being released from the terms of his bond or from 

being held in custody. Thus, the trial court’s determination of 

whether to grant the Commonwealth’s motion for nolle prosequi

involved a different calculus from the one it had applied to the 

10
continuance motion. The record fairly supports the trial 

court’s action in granting the nolle prosequi and, accordingly, 

there is no basis for finding that decision was not founded upon 

good cause shown by the Commonwealth. 

Harris next contends that even if there was sufficient good 

cause to support the granting of the motion for nolle prosequi, 

the Commonwealth’s motive therefor was improper. Harris asserts 

that the Commonwealth acted in bad faith and used “oppressive 

and unfair trial tactics” in order to avoid the operation of the 

speedy trial statute. We disagree. 

Addressing the issue of prosecutorial misconduct in 

Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978), the United 

States Supreme Court stated, “for an agent of the State to 

pursue a course of action whose objective is to penalize a 

person’s reliance on his legal rights is ‘patently 

unconstitutional.’” Id., 434 U.S. at 363. In the instant case, 

the record does not support a conclusion that the decision to 

nolle prosequi the indictment was made to penalize Harris for 

his reliance on his legal rights. Rather, the Commonwealth’s 

motion for nolle prosequi resulted from the Commonwealth’s 

inability to go forward with the prosecution without a 

continuance in order to obtain essential documentary evidence. 

We recognize that the trial court found that the Commonwealth’s 

failure to obtain the necessary documents in a timely manner 

11
was, at least in part, due to a lack of adequate foresight and 

preparation on the part of the Commonwealth’s Attorney.5 While 

such behavior is not to be encouraged, on this record it does 

not demonstrate bad faith on the Commonwealth’s part. Nor does 

the decision of the Commonwealth to seek a nolle prosequi of the 

indictment rise to the level of oppressive tactics amounting to 

prosecutorial misconduct in this instance. Cf. Battle v. 

Commonwealth, 12 Va. App. at 630, 406 S.E.2d at 198 (prohibiting 

the use of the threat of nolle prosequi in order to increase the 

prosecutorial risk to a defendant to force a defendant to 

relinquish an advantage gained by the exercise of the 

defendant’s legal rights). 

Harris further contends that having failed to prepare 

adequately for trial, the Commonwealth’s action in seeking a 

nolle prosequi constituted a violation of his due process rights 

under the Fourteenth Amendment by providing the Commonwealth 

with an “‘unlimited continuance’ that circumvented [Harris’] 

right to a speedy trial.” In essence, Harris is asserting that, 

even in the absence of an improper or vindictive motive, where 

the Commonwealth elects not to proceed with a prosecution 

because of a weakness in its ability to present its case, any 

 

5

The record also reflects that the delay in obtaining the 

documents was caused in part by factors beyond the 

Commonwealth’s direct ability to control. 

12
subsequent attempt to prosecute the same charge should be 

treated as a continuation of the original prosecution. This 

contention is contrary to the well-established law of this 

Commonwealth concerning the effect of a nolle prosequi. 

“Under Virginia procedure a nolle prosequi is a 

discontinuance which discharges the accused from liability on 

the indictment to which the nolle prosequi is entered." Miller 

v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269, 273 (1977). 

A new indictment is a new charge, distinct from the original 

charge or indictment. “When an original indictment is 

supplanted by a second indictment, the terms contemplated by 

[Code § 19.2-243] are to be counted from the time of the second 

indictment.” Brooks v. Peyton, 210 Va. 318, 322, 171 S.E.2d 

243, 246 (1969); see also Miller, 217 Va. at 934, 234 S.E.2d at 

273; Arnold, 18 Va. App. at 221-22, 443 S.E.2d at 185; Presley 

v. Commonwealth, 2 Va. App. 348, 350, 344 S.E.2d 195, 196 

(1986). 

The fact that a motion for nolle prosequi comes close in 

time to the running of a defendant’s speedy trial period does 

not obviate the ultimate effect of that motion. Once the motion 

is granted, the defendant is released from custody or the terms 

of his bond and is at liberty. While this may provide the 

Commonwealth with an opportunity to gather more evidence, it 

does not amount to an “unlimited continuance” because the 

13
defendant no longer suffers the consequences of being under 

indictment. 

For these reasons, we find no merit to any of Harris’ 

contentions in support of his claim that he was denied his 

statutory right to a speedy trial or that his due process rights 

were violated when the trial court granted the Commonwealth’s 

motion for nolle prosequi. 

We now consider Harris’ contention that, even if the trial 

court did not err in granting the motion for nolle prosequi, he 

was nonetheless denied his right to a speedy trial as provided 

under the Sixth Amendment. In Barker v. Wingo, 407 U.S. 514 

(1972), the United States Supreme Court listed four factors that 

are to be weighed in determining whether an accused has been 

deprived of his Sixth Amendment right to a speedy trial. These 

factors are the length of the delay, the reason for the delay, 

whether the defendant has asserted his right, and the prejudice 

to the accused from the delay. Id. at 530. The Court noted 

that prejudice to the defendant must be considered in the light 

of the interests the speedy trial right was designed to protect: 

"(i) to prevent oppressive pretrial incarceration; (ii) to 

minimize anxiety and concern of the accused; and (iii) to limit 

the possibility that the defense will be impaired. Of these, 

the most serious is the last, because the inability of a 

14
defendant adequately to prepare his case skews the fairness of 

the entire system." Id. at 532 (footnote omitted). 

Addressing each of the factors identified in Barker,6 Harris 

asserts that the delay caused by the nolle prosequi of the 

original indictment creates a presumption of prejudice since he 

was not brought to trial for the offenses charged in that 

indictment until approximately nineteen months after the 

original probable cause hearing in the general district court. 

This delay, he asserts, “was deliberate in that the Commonwealth 

had not prepared for the original trial.” Thus, while conceding 

that he was on a personal recognizance bond following his arrest 

in each instance, Harris contends that he “was kept in anxiety 

for more than nineteen (19) months.” Harris further contends 

that he was prejudiced by the delay because he was required to 

substitute new counsel and was otherwise subjected to the 

inherent prejudice of being kept under suspicion of having 

committed a crime. 

The difficulty with all these contentions is that they fail 

to account for the effect of the nolle prosequi of the original 

indictment. We have already determined that the trial court did 

not err in granting the motion for nolle prosequi. As a result, 

 

6

It is not disputed that Harris asserted the right as 

required by the third factor. 

15
Harris’ claim for a violation of his constitutional right to a 

speedy trial relates only to the prosecution of the second 

indictment.7 The record fails to disclose that the time it took 

to bring Harris to trial on the second indictment was occasioned 

by any factor other than the normal proceedings of the trial 

court, including Harris’ own requests for discovery and pretrial motions. 

Nor does Harris point to any evidence in the record showing 

actual prejudice to his defense. Although Harris’ original 

counsel left the employ of the firm Harris had retained for his 

defense, other members of that firm represented him throughout 

the proceedings. The aggressive nature of the defense they 

provided discloses no indication of any deficiency resulting 

from the change in lead counsel. Similarly, we find no support 

in the record of Harris’ claim of generalized prejudice 

resulting from his being under indictment. Accordingly, we hold 

that the period between Harris’ appearance to accept service of 

the second indictment and his subsequent conviction thereon did 

not constitute a violation of his constitutional right to a 

speedy trial under the Sixth Amendment. 

 

7

Harris concedes on brief that, taking into account his 

delay in accepting service of the indictment, his conviction on 

the second indictment occurred within the limits of Code § 19.2-

243. 

16
For the reasons stated, we will affirm the judgment of the 

Court of Appeals. 

Affirmed. 

17