Legal Question in Criminal Law in Virginia

Clerical error = mistaken identity = Nolle Prosequi ???

A clerical error was made and someone has been relieved by Nolle Pros. Isn't there another term or word that should be used to remove this completely from this persons record? Should it have been Nolle Pros or ''thrown out'' completely? If thrown out, what is the word that should have been used? I'm thinking about writing to judge concerning the attorney and DA's decision not to present evidence they had to prove this was the wrong person. Nolle Pros just doesn't seem right. Nolle Pros is still on his record and has to remain for 13 months and then it is his responsibility to pay to have it expunged. I don't understand why it was Nolle Pros, being that means they still have time to get evidence to charge him, even though they know it wasn't him. It doesn't look good on his record, and shouldn't be there in the first place - except due to a clerical error (2 people - same town, same first & last name, different middle name). Thank you for your assistance!

Asked on 6/05/09, 5:26 pm

1 Answer from Attorneys

Michael E. Hendrickson Attorney & Counsellor at Law
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Re: Clerical error = mistaken identity = Nolle Prosequi ???

The criminal rules governing prosecutorial procedures for this type of circumstance allow for the Commonwealth to dismiss the charge on the basis of Nolle Prosequi. Va. Code Sec. 19.2-392.2 et seq. will allow your friend to later petition the circuit court for expungement of all police and court records concerning the matter.

And, if you would like to see a change in the law governing this kind of circumstance, you should contact your local state legislators so they can take it up at the next seesion of the legislature in Richmond.

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6/06/09, 11:34 am

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