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Pompell v. Commonwealth, Record No. 1246-23-3 (Va. Ct. App. Mar. 26, 2024)

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March 26, 2024

By: Juli M. Porto

Virginia Appellate Law Blog

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The Court of Appeals considers whether the statute of limitations can bar the amendment of a felony to a misdemeanor if the misdemeanor is not a lesser-included charge.


Facts. Christopher Pompell was charged with felony breaking and entering with the intent to commit assault and battery. Over a year after the offense date, the Commonwealth moved to amend the felony charge to misdemeanor unlawful entry. Pompell objected, arguing that the misdemeanor was not a lesser-included offense of the felony, thus the statute of limitations for the misdemeanor had expired. The trial court disagreed, finding that the amendment did not “change the nature of character of the offense charged.” Pompell entered a conditional guilty plea and appealed.


Issue. Whether an amended indictment charging a misdemeanor similar in nature and character to the originally charged felony, but which is not a lesser-included offense, commences a new prosecution triggering the statute of limitations.


Holding. No. An amended indictment continues a prosecution, and does not commence a new one, if the amendment does not change the nature or character of the offense charged.


Notes. Pursuant to Code § 19.2-231, an indictment may be amended if it “does not change the nature or character of the offense charged.” The General Assembly did not limit these amendments to lesser-included misdemeanors, and it is not “the province of the judiciary to add words to the statute or alter its plain meaning.” The purpose of the statute of limitations is to ensure that an accused has “timely notice” of charges against them. So long as the prosecution is commenced within the limitations period, the accused has timely notice. Further, Code § 19.2-231 provides that if an amended charge causes surprise, an accused can request a continuance of the trial.


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