Tuesday 2nd 

 June, 1998. 

John Edward Watkins, s/k/a 

 John Edward Watkins, Sr., Appellant, 

 against Record No. 0936-96-3 

 Circuit Court No. CR95007076 

Commonwealth of Virginia, Appellee. 

Upon a Rehearing En Banc 

 Before Chief Judge Fitzpatrick, Judges Baker, Benton, 

 Coleman, Willis, Elder, Bray, Annunziata, Overton and Bumgardner 

 James Hingeley, Public Defender, for 

appellant. 

 Richard B. Smith, Assistant Attorney General 

(Richard Cullen, Attorney General, on 

briefs), for appellee. 

By opinion dated October 14, 1997, a panel of this Court 

reversed the conviction of John Edward Watkins for feloniously 

operating a motor vehicle after having been adjudicated an habitual 

offender. The Commonwealth's petition for rehearing en banc was 

granted and heard on April 23, 1998. Upon rehearing, the opinion 

previously rendered on October 14, 1997 is withdrawn, the mandate 

entered on that date is vacated and we affirm the conviction. 

The panel held that the trial court erred in refusing to 

compel the Commonwealth to uphold a conditional plea agreement. Upon 

rehearing, we hold the plea agreement became ineffectual when the 

district court allowed the Commonwealth to nolle prosequi the charges 

due to the failure of a witness to appear. "When the trial court 
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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.

The entry of the nolle prosequi terminated the original 

charges, as well as Watkins' conditional plea agreement, as if they 

had never existed. When the Commonwealth subsequently brought a new 

indictment, it was "a new charge, distinct from the original charge or 

indictment." Arnold, 18 Va. App. at 221, 443 S.E.2d at 185. 

Therefore, the Commonwealth was not bound by the prior plea agreement, 

and the said conviction is affirmed. Appellant's conviction of 

driving while intoxicated remains unchanged. 

For the reasons stated in the panel's opinion, see Watkins 

v. Commonwealth, 25 Va. App. 646, 491 S.E.2d 755 (1997), Judges Benton 

and Annunziata would reverse the conviction. 

The Commonwealth shall recover of the appellant the costs in 

this Court, which costs shall include a fee of $925 for services 

rendered by the Public Defender on this appeal, in addition to 

counsel's necessary direct out-of-pocket expenses, and the costs in 

the trial court. 

This order shall be published and certified to the trial 

court. 
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Costs due the Commonwealth 

 by appellant in Court of 

 Appeals of Virginia: 

 Public Defender $925.00 plus costs and expenses 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Duff 

Argued by Teleconference 

JOHN EDWARD WATKINS, S/K/A 

 JOHN EDWARD WATKINS, SR. 

 OPINION BY 

v. Record No. 0936-96-3 JUDGE ROSEMARIE ANNUNZIATA 

 OCTOBER 14, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Richard S. Miller, Judge 

 James Hingeley, Public Defender, for 

appellant. 

 Richard B. Smith, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Appellant, John Edward Watkins, s/k/a John Edward Watkins, 

Sr., appeals his conviction for feloniously operating a motor 

vehicle after having been adjudicated an habitual offender.1 He 

contends that the trial court erred in refusing to compel the 

Commonwealth to uphold its agreement to reduce the charge to a 

misdemeanor offense. We agree and reverse his conviction. 

 I. 

 On July 10, 1995, appellant appeared in general district 

court for a preliminary hearing on the felony charge of driving 

after having been declared an habitual offender and for trial on 

a misdemeanor charge of driving while intoxicated. Before the 

cases were called, the Assistant Commonwealth's attorney informed 

 

 1Appellant was also convicted of driving while intoxicated. 
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appellant's counsel that she did not have a copy of the order 

adjudicating appellant an habitual offender and that she would 

like a continuance. Plea negotiations ensued, and the resulting 

agreement followed: appellant promised not to oppose the 

Commonwealth's request for a continuance, and the Commonwealth 

promised to reduce the habitual offender charge from a felony to 

a misdemeanor, to which appellant would then plead guilty. 

Appellant also agreed to plead guilty to driving while 

intoxicated. 

 Appellant stood silent, as the Commonwealth requested, and 

the trial court granted a continuance. When the hearing 

reconvened on August 2, 1995, appellant was prepared to plead 

guilty to the misdemeanor habitual offender charge and to driving 

while intoxicated. The Commonwealth, however, represented by a 

different attorney, refused to reduce the habitual offender 

charge and announced its intent to prosecute the felony offense. 

 The trial court rejected appellant's motion to compel the 

Commonwealth to reduce the charge in accord with the prior 

agreement, finding that 

 until the Defendant is substantially 

prejudiced, . . . there is no agreement 

enforceable by the Defendant with the 

Commonwealth. And, in fact, the Commonwealth 

can withdraw its agreement at any time up 

until that point. 

Appellant pled not guilty, was tried by the court, and was 

convicted. 
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 II. 

 Under the terms of the parties' agreement, the Commonwealth 

promised to reduce the charge against appellant from a felony to 

a misdemeanor in exchange for appellant's promise not to oppose 

the Commonwealth's request for a continuance and to plead guilty 

to two misdemeanor offenses. Appellant performed all that was 

required of him by the agreement prior to the Commonwealth's 

obligation to perform. The Commonwealth failed to perform. The 

issue on appeal is whether the trial court erred in refusing to 

compel the Commonwealth's performance. Under the facts of this 

case, we hold that the trial court erred, and we reverse 

appellant's conviction. 

 The principles which guide our decision are "an amalgam of 

constitutional, supervisory, and private [contract] law 

concerns," which comprise a body of law unique to plea 

bargaining. United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 

1986). While plea bargains are analogous to commercial 

contracts, they do not demand strict application of the common 

law principles of contract. See, e.g., id.; United States v. 

Mozer, 828 F. Supp. 208, 215 (S.D.N.Y. 1993); State v. Brockman, 

357 A.2d 376, 383 (Md. App. 1976); see generally, William M. 

Ejzak, Plea Bargains and Nonprosecution Agreements: What 

Interests Should Be Protected When Prosecutors Renege?, 1991 

U. Ill. L. Rev. 107 (1991); Lawrence K. Rynning, Note, 

Constitutional Recognition for Defendant's Plea Bargaining 
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Expectations in the Absence of Detrimental Reliance, 58 N.C.L. 

Rev. 599 (1980). "The rigid application of contract law to plea 

negotiations would be incongruous since, for example, the trial 

court is not ordinarily bound by the compact and [the government] 

cannot obtain `specific performance' of a defendant's promise to 

plead guilty." Brockman, 357 A.2d at 383. Furthermore, rigid 

application of contract principles is tempered by the fact that 

"the defendant's underlying `contract' right is constitutionally 

based and, therefore, reflects concerns that differ fundamentally 

from and run wider than those of commercial contract law." 

Harvey, 791 F.2d at 300. Moreover, underlying any criminal 

prosecution are concerns for the "`honor of the government, 

public confidence in the fair administration of justice, and the 

effective administration of justice.'" Id. (quoting United 

States v. Carter, 454 F.2d 426, 428 (4th Cir. 1972), cert. 

denied, 417 U.S. 933 (1974)). 

 "The prevailing doctrine is that `the State may withdraw 

from a plea agreement at any time prior to, but not after, the 

actual entry of the guilty plea by the defendant or other action 

by him constituting detrimental reliance upon the agreement.'" 

W. LaFave & J. Israel, Criminal Procedure § 20.2(e) (1984) 

(quoting Shields v. State, 374 A.2d 816 (Del.), cert. denied, 434 

U.S. 893 (1977)); see also, e.g., Virgin Islands v. Scotland, 614 

F.2d 360, 365 (3d Cir. 1980); United States v. Savage, 978 F.2d 

1136, 1138 (9th Cir. 1992), cert. denied, 507 U.S. 997 (1993); 
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United States v. Gonzales, 918 F.2d 1129, 1134 n.2 (3d Cir. 

1990), cert. denied, 498 U.S. 1107 (1991). The decision to 

compel enforcement of the agreement, in other words, is 

determined according to the action taken by the defendant, if 

any, in reliance on the agreement. 

 When a defendant enters a plea of guilty in reliance on an 

agreement with the government, enforcement of the agreement will 

be compelled. Santobello v. New York, 404 U.S. 257, 264 (1971) 

("[W]hen a plea rests in any significant degree on a promise or 

agreement of the prosecutor, so that it can be said to be part of 

the inducement or consideration, such promise must be 

fulfilled."); Johnson v. Commonwealth, 214 Va. 515, 517-18, 201 

S.E.2d 594, 596 (1974); Jordan v. Commonwealth, 217 Va. 57, 

58-61, 225 S.E.2d 661, 661-64 (1976); Jones v. Commonwealth, 217 

Va. 248, 256, 227 S.E.2d 701, 706-07 (1976).2

 When a defendant has taken no action in reliance on the 

agreement, however, the contrary result obtains. An offer by the 

government alone, even if accepted by the defendant under common 

law contract principles, does not require specific enforcement of 

the agreement. See Mabry v. Johnson, 467 U.S. 504, 507-08 (1984) 

 

 2Indeed, a defendant's "detrimental reliance" is manifest 

when he or she enters a plea of guilty pursuant to an agreement 

with the government because "the entry of a guilty plea is a 

waiver of certain constitutional rights . . . [including] the 

Fifth Amendment right against compulsory self-incrimination, the 

Sixth Amendment right to trial by jury, and the Sixth Amendment 

right of confrontation." See, e.g., Gardner v. Warden, 222 Va. 

491, 493-94, 281 S.E.2d 876, 877 (1981). 
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("A plea bargain standing alone is without constitutional 

significance; in itself it is a mere executory agreement which, 

until embodied in the judgment of a court, does not deprive an 

accused of liberty or any other constitutionally protected 

interest. It is the ensuing guilty plea that implicates the 

Constitution."); People v. Heiler, 262 N.W.2d 890, 895 (Mich. 

App. 1977) ("To hold the prosecutor bound by the agreement under 

[such circumstances] would . . . actually inhibit the 

dispositional use of plea bargaining by placing the prosecutor at 

an absolute disadvantage."). Enforcement is not compelled absent 

some performance by the defendant because, under such 

circumstances, the defendant's right to trial by jury remains a 

sufficient remedy to the government's withdrawal of the 

agreement. Indeed, 

 [the] fundamental right [to trial by jury] 

would be belittled if [it were] held [] to be 

an insufficient "remedy" or result for a 

defendant who has not been induced to rely on 

the plea to his detriment. The prosecutor is 

under no duty to plea bargain if no offer is 

made, and the defendant is entitled to trial. 

 There is no rational basis for holding, in 

essence, that a trial is sufficient for the 

defendant who has not been offered a plea and 

insufficient for the one who has. 

Virgin Islands v. Scotland, 614 F.2d 360, 365 (3rd Cir. 1980). 

 A middle ground exists when the defendant, although not 

having pled guilty, has taken some "other action" pursuant to a 

plea agreement. In such a case, the full panoply of 

constitutional protections attending a plea of guilty does not 
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attain, yet, the agreement cannot be dismissed as executory when 

the defendant has acted in accordance with the terms of the 

agreement. The issue is what "other action" taken by the 

defendant, short of pleading guilty, compels enforcement of the 

agreement. 

 Some courts hold that enforcement of the agreement should be 

compelled only where the defendant's performance implicates his 

or her constitutional rights. See, e.g., People v. Navarroli, 

521 N.E.2d 891, 895 (Ill. 1988) (agreement not enforced because 

defendant's cooperation in informing police with respect to 

ongoing drug transactions did not implicate constitutional 

right). We disagree with that position because, as stated above, 

a defendant's constitutional rights are not always, necessarily, 

the basis for compelling enforcement of plea agreements.3

 

 

 3We recognize that the procedural posture of a case may 

demand that enforcement be determined in strict adherence to 

constitutional principles. See Mabry, 467 U.S. at 507 (where 

defendant could "obtain . . . relief only if his custody is in 

violation of the Federal Constitution"). Our decision here, 

however, is not constrained by such principles. 

 In addition, we note that the performance necessary to 

implicate the constitution as a vehicle for enforcing a plea 

agreement has received varying interpretation. Some courts have 

held that the constitution requires enforcement only where a 

defendant enters an involuntary plea in reliance on the 

agreement. See United States v. Coon, 805 F.2d 822, 825 (8th 

Cir. 1986). Under that theory, even cooperation with the 

government that leads to incriminating statements does not 

implicate the constitution, because incriminating statements can 

simply be suppressed at trial. See id. Other courts have held 

that the constitution requires enforcement only when a defendant 

waives a constitutional right in reliance on the agreement. See

Navarroli, 521 N.E.2d at 895 (agreement not enforced because 

defendant's cooperation in informing police with respect to 

ongoing drug transactions did not implicate constitutional 
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Rather, the decision to compel enforcement is guided by "an 

amalgam of constitutional, supervisory, and private [contract] 

law concerns." Harvey, 791 F.2d at 300. See also Navarroli, 521 

N.E.2d at 899 (Clark, J., dissenting) (criticizing majority for 

failing to look beyond constitutional implications of defendant's 

performance to enforce agreement on other grounds); Workman v. 

Commonwealth, 580 S.W.2d 206, 207 (Ky. 1979), overruled on other 

grounds, 817 S.W.2d 218 (Ky. 1991) ("If the government breaks its 

word, it breeds contempt for integrity and good faith. It 

destroys the confidence of citizens in the operation of their 

government and invites them to disregard their obligations. That 

way lies anarchy. We deal here with a `pledge of public faith--a 

promise made by state officials--and one that should not be 

lightly disregarded.'"); see generally Rynning, supra, at 606-07 

(Examples of detrimental reliance requiring enforcement of an 

agreement have included: "[p]roviding information to government 

authorities, testifying for the government, confessing guilt, 

returning stolen property, making monetary restitution, failing 

to file a motion to have charges presented to a grand jury, 

submitting to a lie detector test and waiving certain procedural 

guarantees.") (citations omitted). 

 

right). Yet other courts hold that enforcement on constitutional 

grounds does not require a defendant's reliance on the agreement 

to implicate constitutional rights. See People v. MacRander, 756 

P.2d 356, 360-61 (Colo. 1988) (waiver of preliminary hearing in 

reliance on agreement sufficient to require enforcement of 

agreement). 
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 Guided by such principles, we hold that where a plea 

agreement calls for performance by the defendant and the 

defendant has performed pursuant to the terms of the agreement, 

the agreement will be enforced.4

 We find no authority to support 

a qualitative analysis of a defendant's performance and find, 

instead, that the terms of the parties' agreement best define 

their respective performance obligations. 

 In the present case, appellant did not enter a guilty plea 

in reliance on the plea agreement; thus, his reliance on 

Santobello, Johnson, Jordan, and Jones is misplaced. This is not 

a case, however, where the government sought to withdraw an 

agreement that consisted solely of an exchange of executory 

promises upon which the defendant had not acted. Cf. Mabry, 467 

U.S. at 507-08; Heiler, 262 N.W.2d at 892. Rather, this case 

presents the middle ground. Here, because appellant had fully 

performed his obligation under the terms of the agreement, he was 

entitled to have the agreement enforced. 

 Accordingly, we reverse appellant's conviction on the 

habitual offender charge5

 and remand for further proceedings 

 4We reject the Commonwealth's suggestion that a plea 

agreement has no legal significance until it is accepted by the 

court pursuant to Rule 3A:8(c)(1). That contention is contrary 

to the vast weight of authority on the subject and ignores the 

heart of the issue in these cases: the government's fair 

treatment of criminal defendants during the course of plea 

bargaining. 

 5The appellant's conviction on the DWI charge remains 

unchanged by this decision since the Commonwealth's failure to 

perform its part of the agreement had no detrimental effect on 

appellant with respect to this charge. 
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consistent with this opinion. 

Reversed and remanded.