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.”
“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.