                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


KELLY ANNE DARA
                                           MEMORANDUM OPINION * BY
v.          Record No. 2795-95-1          JUDGE NELSON T. OVERTON
                                             FEBRUARY 11, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                       Thomas S. Shadrick, Judge
            Thomas B. Shuttleworth (Lawrence H. Woodward,
            Jr.; Beverly A. Rebar; Shuttleworth, Ruloff &
            Giordano, P.C., on brief), for appellant.

            Monica S. McElyea, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.


     Kelly Anne Dara was convicted by a jury of first-degree

murder, conspiracy to commit robbery, and attempted robbery.    She

appeals, contending that (1) the Commonwealth's failure to

produce allegedly exculpatory evidence in the juvenile court

denied her a proper transfer hearing, and (2) that the

Commonwealth's nolle prosequi of the indictment in the circuit

court required a new transfer hearing.    We disagree with both of

these contentions, and we affirm the convictions.

     The parties are fully conversant with the record in the

cause, and because this memorandum opinion carries no

precedential value, no recitation of the facts is necessary.

     *
      Pursuant to Code § 17-116.010 this opinion is not

designated for publication.
     The evidence complained of by Dara consists of a statement

given to the police made by Josh Johnson, the co-conspirator who

actually committed the killing.   His statement claims that Dara

was not present when he actually stabbed and killed the victim

and that Dara did not want to kill the victim. 1   Johnson's

statement was in the possession of the Commonwealth at the time

of the transfer hearing, but was not disclosed to the defense,

despite a discovery order.
     Assuming for the purposes of this decision that the

statement was exculpatory and should have been disclosed prior to

the transfer hearing, the information contained was not material

to the transfer hearing.   Independent evidence supported the

juvenile court's finding of probable cause for the conspiracy to

commit robbery and the attempted robbery.   The statement does not

contradict or discredit these findings.    Because the victim was

killed while defendant was engaged in the felony of attempted

robbery, probable cause need not be found that Dara intended to

kill to satisfy a charge for first-degree (felony) murder.      See

Haskell v. Commonwealth, 218 Va. 1033, 1044, 243 S.E.2d 477, 483

(1978).   Therefore, Johnson's statement would not alter the

ultimate finding of probable cause on any of the charges at

issue.


     1
      The statement also alleges that Dara helped plan the

intended robbery of the victim, however.



                               - 2 -
     Nor would Johnson's statement affect the transfer to circuit

court.   Dara was transferred under Code § 16.1-269.1(B).   Under

that subsection, the court is not required to consider the

factors under Code § 16.1-269.1(A)(4) if the offender is fourteen

or older and charged with an unclassified felony violation of

Chapter 4 of Title 18.2 punishable by life imprisonment.    Dara

was seventeen at the time of the offense and charged with

first-degree murder, an offense punishable by life imprisonment.

She could thus be transferred upon a finding of probable cause

without considering other factors.
     Dara's second issue on appeal is without merit.   A new

transfer hearing is not required after the Commonwealth enters a

nolle prosequi on the indictments in circuit court.

     Although a nolle prosequi generally discontinues the

prosecution as though the indictment had never existed, Burfoot

v. Commonwealth, 23 Va. App. 38, 44, 473 S.E.2d 724, 727 (1996),

the General Assembly has statutorily modified this mechanism

within the juvenile justice framework.   The applicable Code

section, amended in 1994, now provides that
          [t]he circuit court order advising the
          attorney for the Commonwealth that he may
          seek an indictment shall divest the juvenile
          court of its jurisdiction over the case as
          well as the juvenile court's jurisdiction
          over any other allegations of delinquency
          arising from the same act, transaction or
          scheme giving rise to the charge for which
          the juvenile has been transferred.


Code § 16.1-269.6(C) (emphasis added).   This Court in Burfoot




                               - 3 -
recognized the new change in the statute, stating that
          under the new statute, the juvenile and
          domestic relations district court loses
          jurisdiction for all time over a juvenile
          defendant when the Commonwealth is authorized
          by the circuit court to seek an indictment.
          Thus, if the Commonwealth enters a nolle
          prosequi of that indictment, the circuit
          court retains jurisdiction over the juvenile.


Burfoot, 23 Va. App. at 43 n.2, 473 S.E.2d at 727 n.2 (emphasis

added).

     The nolle prosequi in the instant case did not have the same

effect as it would have if decided under the old statute.   Under

the new statute, the circuit court retains jurisdiction and the

Commonwealth may, as it did, seek new indictments without having

to return to the juvenile court.
     For the reasons stated, we affirm the convictions.

                                             Affirmed.




                              - 4 -
