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No right to preliminary hearing for indicted charge

Where defendant was arrested on a rape warrant, and, after a preliminary hearing, the matter was referred to a grand jury, which issued an indictment of rape, second offense, the trial court correctly refused to dismiss the indicted charge after rejecting defendant’s argument that he was entitled to a preliminary hearing on the indicted charge.

Defendant Stokes was found guilty of rape, second offense and was given a life sentence. The Court of Appeals affirmed.

“Code § 19.2-218 plainly provides that the right to a preliminary hearing for a particular felony charge is triggered solely by an arrest on that charge. As evident from the language of the statute, ‘[t]he primary purpose of a preliminary hearing is to ascertain whether there is reasonable ground to believe that a crime has been committed and the person charged is the one who has committed it.’ Webb v. Commonwealth, 204 Va. 24, 31 (1963) (interpreting former Code § 19.1-163.1, the predecessor to Code § 19.2-218, containing nearly identical language) (citations omitted).

“Absent prior arrest on a particular felony charge, the grand jury’s ‘action’ to indict, after undertaking the same type of inquiry, ‘preempt[s] the defendant’s right to a preliminary hearing’ on that charge.”


“Citing Webb, this Court in Waye v. Commonwealth, 219 Va. 683, 689 (1979), held that there was no ‘circumvent[ion]’ or ‘denial of any statutory right to which the defendant was entitled’ under Code § 19.2-218 when (i) he was granted a preliminary hearing on the charge of first degree murder for which he was arrested; (ii) the charge of first-degree murder was certified to the grand jury; and (iii) the Commonwealth then obtained indictments against him for both capital murder and first-degree murder, but proceeded to trial only on the charge of capital murder.

“The defendant was not entitled to a preliminary hearing on the capital murder charge because he ‘was not arrested on [that] charge’ prior to his indictment on it.”

Stokes has argued in the trial court and on appeal that the indictment of rape, second offense, was a new offense, separate from the charge on which he was arrested. But he has conceded that the rape, second offense charge was not the result of an arrest and now asks that Waye be overturned because the case wrongly interpreted Code § 19.2-218.

“We reject Stokes’ reading of Code § 19.2-218 and adhere to what we reaffirmed in Waye to be the plain meaning of the statute: a defendant’s right to a preliminary hearing under the statute is limited to the particular felony charge(s) upon which the defendant was arrested, if any, prior to indictment on the same.”


Stokes v. Commonwealth. (Unpublished Order) Record No. 180510, May 30, 2019. (Court of Appeals); John Albert Singleton for Appellant, Liam Alexander Curry, Laura Beth Looney for the Commonwealth. VLW 019-6-041, 4 pp.

VLW 019-6-041

Virginia Lawyers Weekly