Duggins v. Commonwealth, 59 Va. App. 785

Duggins was indicted in 2009 on two counts of credit card fraud; the prosecutor sought a continuance due to a cooperating witness; after the witness retracted, the court granted a nolle prosequi without prejudice and dismissed the charges.
On appeal from the 2009 dismissal, the Virginia Court of Appeals indicated it lacked jurisdiction over final orders terminating a prosecution, not over final convictions.
In January 2010, a new grand jury indicted Duggins on the same two counts; Duggins moved to dismiss with prejudice, arguing the prior dismissal precluded reprosecution.
The trial court denied the motion; a jury then found Duggins guilty on both 2010 counts.
Duggins appeals, contending the 2010 indictments should have been dismissed with prejudice due to the prior nolle prosequi; the Commonwealth argues reprosecution is permissible and the prior ruling cannot collaterally attack the later proceeding.
The Court of Appeals affirms, holding that a reprosecution after a nolle prosequi is not barred simply because the prior court disagreed with good-cause findings, and the earlier decision cannot be collaterally reviewed in the subsequent proceeding.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does a later reprosecution for identical charges bar dismissal with prejudice?	Duggins argues prior nolle prosequi on identical charges should preclude reprosecution with prejudice.	Commonwealth maintains reprosecution is permitted; prior ruling cannot mandate prejudice in later indictments.	No; reprosecution may proceed.
Can the prior court's good-cause finding for nolle prosequi be reviewed in the subsequent case?	Duggins contends the prior decision's evaluation should bind the later case.	Commonwealth argues the earlier court's reasoning cannot collaterally review the later proceeding.	No; cannot collaterally review.
Does the prior continuance objection affect the validity of the nolle prosequi in the earlier proceeding?	Duggins asserts that because continuance was denied, there was no good cause for nolle prosequi.	Commonwealth asserts continuance and nolle prosequi involve different calculus; the nolle can stand regardless.	Different calculus; nolle prosequi can remain valid.

Miller v. Commonwealth, 217 Va. 929 (Va. 1977) (nolle prosequi discharges but does not bar subsequent prosecution unless otherwise barred)
Lindsay v. Commonwealth, 4 Va. (2 Va. Cas.) 345 (Va. 1823) (nolle prosequi generally does not act as an acquittal)
Harris v. Commonwealth, 258 Va. 576 (Va. 1999) (collateral review of good-cause findings rejected; continuance vs. nolle prosequi distinct)
Battle v. Commonwealth, 12 Va.App. 624 (Va. App. 1991) (prosecutorial misconduct may occur; not per se a bar to reprosecution)
Goodson (United States v.), 204 F.3d 508 (4th Cir. 2000) (dismissal with prejudice not appropriate to remedy every prosecutorial error)