Can the State Re-File a Criminal Charge?

Posted By David L. Carlson, Attorney At Law || 2-Jul-2015

If you or someone you love has been arrested for a criminal offense in Richmond, you may be wondering if the state can re-file a criminal charge once it’s been dropped. This is a good question, especially if the charges are dropped in your case.

Essentially, a prosecutor, be it through a motion to dismiss or nolle prosequi is at liberty to drop charges against a defendant at any time, however, they are also free to refile them.

Due to the fact that prosecutors have a limited time to take a case to trial, prosecutors are often up against the clock. With that in mind, a prosecutor may be tempted to dismiss charges, only to refile them once they’re ready to proceed with trial. Through this tactic, the defendant can’t say that their right to a speedy trial has been violated.

Speedy Trial Clause in the Sixth Amendment

Under the speedy trial clause of the Sixth Amendment to the U.S. Constitution, the accused shall enjoy the right to a speedy public trial. In Barker v. Wingo, the Supreme Court established a case-by-case balancing test to determine if a defendant’s right to a speedy trial has been violated. The test looks at the length of the delay, the reason for the delay, how and when the defendant asserted their right, etc.

Essentially, once a defendant has been arrested or charged, the trial must occur within a reasonable period of time. A dismissal or nolle prosequi can toll the charges (pause or delay). Meaning, the period of time that lapses between the dismissal and re-filing of the charges doesn’t count against the prosecutor’s limit for bringing the case to trial.

Some states operate under the assumption that re-fling charges doesn’t toll the clock, but rather restarts it.

In Virginia, a criminal charge can be re-filed after it’s been entered nolle prosequi. For misdemeanors, the issue at hand is the state’s deadline for charging a crime. There is however, no statute of limitations for felonies in Virginia, and if a felony case is entered nolle prosequi, it can be re-charged.

Are you looking for legal representation? A Richmond criminal defense attorney from our firm can explain your rights and prepare due process and speedy trial arguments against recharging a case.

At Carlson & Collier, we have a former prosecutor on our team and we have handled thousands of cases – call us 24/7 for a free case evaluation!

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