Virginia Supreme Court: Norfolk Circuit Court doesn’t have to dismiss pot charges

Norfolk Commonwealths Attorney Greg Underwood (Southside Daily/Courtesy of Norfolk Commonwealth’s Attorney’s Office)
Norfolk Commonwealths Attorney Greg Underwood (Southside Daily/Courtesy of Norfolk Commonwealth’s Attorney’s Office)

The Virginia Supreme Court on Thursday dismissed a motion from Norfolk’s Commonwealth’s s Attorney’s Office to order the city’s circuit court to dismiss marijuana possession charges.

Commonwealth’s Attorney Greg Underwood has sought to have those cases tossed out. He wrote a letter to judges and city officials in January, informing them his office “will cease prosecuting all misdemeanor marijuana possessions cases and will be to nolle prosequi or dismiss such cases.”

Underwood argued he had the discretion to dismiss the charges.

“The Office already does not prosecute these cases; however, some come to the Office as misdemeanor appeals or when attached to felony charges or misdemeanor charges the Office handles. The Office will cease prosecuting all misdemeanor marijuana possession cases and will move to nolle prosequi or dismiss such cases that fall within our purview,” Underwood wrote in the January letter.

A three-justice panel, in the Thursday ruling said ““As we have explained repeatedly, the act of rendering a binding judgment is a quintessentially judicial function that cannot be compelled…Upon consideration whereof, the Commonwealth’s Attorney’s motions to stay the criminal proceedings in the circuit court are denied.”

Underwood declined interview requests and instead sent an email statement through his spokeswoman, Amanda Howie:

“This legal disagreement was (is) about criminal procedure (protecting the ability of prosecutors to exercise their discretion), not marijuana. The Norfolk Circuit Court had a good faith basis for its position, as did this Office.  Seeking a decision from the Virginia Supreme Court was the next appropriate action and Greg Underwood, Norfolk Commonwealth’s Attorney, is pleased to now have the Court’s decision.  He’s aware this process generated a significant amount of conversation – by those in criminal justice and the public in general – and he appreciates that those discussions will likely continue going forward.”

RELATED STORY: Commonwealth’s Attorney in Norfolk no longer prosecuting simple pot possession

“This Office will continue to not pick up cases or withdraw from cases where the sole charge of simple possession of marijuana are appealed to Norfolk Circuit Court.  We have never had to handle these cases; we simply just ‘did’ as a matter of practice in Norfolk,” Howie wrote in the email. “Effective March 1, 2019, that changed…”

Underwood in March said his prosecutors would not handle misdemeanor appeals involving pot — when simple possession was the only charge.

“These cases are now handled by the parties involved – defendant/defense attorney, law enforcement officers(s), and judge,” Howie wrote. “This is how the cases are handled in Norfolk General District Court (where this Office hasn’t ever been involved).

“Again, this legal disagreement was (is) about criminal procedure, not marijuana,” Howie wrote.

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John Mangalonzo ( is the managing editor of Local Voice Media’s Virginia papers – WYDaily (Williamsburg), Southside Daily (Virginia Beach) and HNNDaily (Hampton-Newport News). Before coming to Local Voice, John was the senior content editor of The Bellingham Herald, a McClatchy newspaper in Washington state. Previously, he served as city editor/content strategist for USA Today Network newsrooms in St. George and Cedar City, Utah. John started his professional journalism career shortly after graduating from Lyceum of The Philippines University in 1990. As a rookie reporter for a national newspaper in Manila that year, John was assigned to cover four of the most dangerous cities in Metro Manila. Later that year, John was transferred to cover the Philippine National Police and Armed Forces of the Philippines. He spent the latter part of 1990 to early 1992 embedded with troopers in the southern Philippines as they fought with communist rebels and Muslim extremists. His U.S. journalism career includes reporting and editing stints for newspapers and other media outlets in New York City, California, Texas, Iowa, Utah, Colorado and Washington state.