Rosemberg Batres-Jurado v. Commonwealth of Virginia ( 2001 )

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.
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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.
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