Opinion
Record No. 0203-98-2
JULY 6, 1999
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG James F. D'Alton, Jr., Judge
Mary Katherine Martin, Senior Assistant Public Defender (John H. Cobb, Jr., Public Defender, on brief), for appellant.
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Senior Judge Cole
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.
The trial judge denied Wayne Lenardo Heath's motion to dismiss the charge for failure to bring him to trial within five months of the preliminary hearing. See Code § 19.2-243. Following his conviction for murder, Heath contends that his statutory right to a speedy trial was violated. We agree and reverse the conviction.
I.
The record establishes that the Juvenile and Domestic Relations District Court of the City of Petersburg held a preliminary hearing on March 20, 1997, and found probable cause to believe Wayne Lenardo Heath committed the charged murder. The grand jury indicted Heath on that charge. On September 18, 1997, the circuit court set the trial date for October 15, 1997. Heath remained continuously in custody from the preliminary hearing until the trial on October 15, 1997, a period of two hundred and nine days.
II.
The statute governing the time limitation for the commencement of felony trials provides as follows:
Where a general district court has found that there is probable cause to believe that the accused has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date such probable cause was found by the district court.
Code § 19.2-243. "If [the accused] is not tried within the time specified in Code § 19.2-243, the burden is on the Commonwealth to explain the delay." Godfrey v. Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 782 (1984). To avoid the statutory remedy of discharge from prosecution, "[t]he Commonwealth must prove that the delay was based on 'one of the reasons enumerated in [Code § 19.2-243] or on [the accused's] waiver, actual or implied, of his right to be tried within the designated period.'" Baker v. Commonwealth, 25 Va. App. 19, 22, 486 S.E.2d 111, 113, aff'd on reh'g en banc, 26 Va. App. 175, 493 S.E.2d 687 (1997) (citation omitted).
The entire statute reads as follows:
Where a general district court has found that there is probable cause to believe that the accused has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date such probable cause was found by the district court; and if the accused is not held in custody but has been recognized for his appearance in the circuit court to answer for such offense, he shall be forever discharged from prosecution therefor if no trial is commenced in the circuit court within nine months from the date such probable cause was found.
If there was no preliminary hearing in the district court, or if such preliminary hearing was waived by the accused, the commencement of the running of the five and nine months periods, respectively, set forth in this section, shall be from the date an indictment or presentment is found against the accused.
If an indictment or presentment is found against the accused but he has not been arrested for the offense charged therein, the five and nine months periods, respectively, shall commence to run from the date of his arrest thereon.
Where a case is before a circuit court on appeal from a conviction of a misdemeanor or traffic infraction in a district court, the accused shall be forever discharged from prosecution for such offense if the trial de novo in the circuit court is not commenced (i) within five months from the date of the conviction if the accused has been held continuously in custody or (ii) within nine months of the date of the conviction if the accused has been recognized for his appearance in the circuit court.
The provisions of this section shall not apply to such period of time as the failure to try the accused was caused:
1. By his insanity or by reason of his confinement in a hospital for care and observation;
2. By the witnesses for the Commonwealth being enticed or kept away, or prevented from attending by sickness or accident;
3. By the granting of a separate trial at the request of a person indicted jointly with others for a felony;
4. By continuance granted on the motion of the accused or his counsel, or by concurrence of the accused or his counsel in such a motion by the attorney for the Commonwealth, or by the failure of the accused or his counsel to make a timely objection to such a motion by the attorney for the Commonwealth, or by reason of his escaping from jail or failing to appear according to his recognizance; or
5. By the inability of the jury to agree in their verdict.
But the time during the pendency of any appeal in any appellate court shall not be included as applying to the provisions of this section.
Code § 19.2-243.
Heath's trial was not commenced within five months from the date the judge of the juvenile court found probable cause. "The five month period is computed as 152 and a fraction days."Moten v. Commonwealth, 7 Va. App. 438, 441, 374 S.E.2d 704, 706 (1988). Although the five month period ended August 20, 1997, the Commonwealth contends the additional fifty-six days that lapsed before the trial should be charged to Heath. The record does not support that claim.
The Commonwealth argues that the first delay, which was occasioned by the Commonwealth's request to take a blood sample from Heath, is chargeable to Heath. The record indicates that on May 6, 1997, the parties appeared in the circuit court on the Commonwealth's motion to compel the taking of a blood sample from Heath "for scientific comparison." Although the record contains no written motion, the trial judge entered an order on May 15, 1997, granting the motion and ordering Heath to give the blood sample. The order, which is endorsed by both counsel, contains no request for a continuance and grants no continuance. Without any explanation, however, the record also contains an order entered July 8, 1997, which notes that the hearing was held on May 6, 1997, duplicates the earlier order that Heath give a blood sample, and contains the notation that "[i]t is further ordered that the case be continued until May 15, 1997, @ 11:00 a.m. to be reset for trial." This order is not endorsed by counsel and contains no indication that this continuance was requested by either attorney. Because the record does not contain any indication that either party requested this continuance or that Heath's counsel had an opportunity to object to the "continuance," which is not recited in the May order and stated in an order entered two months after the hearing, this delay cannot be attributed to Heath. See Taylor v. Commonwealth, 12 Va. App. 425, 429, 404 S.E.2d 86, 88 (1991). Cf. 19.2-243(4) (applying to continuances granted on request of the parties).
The record does not indicate that a trial date had been set prior to either May 15, 1997 or July 8, 1997. The record also reflects that no trial date was set at the hearing on May 15, 1997.
The Commonwealth argues that the second delay chargeable to Heath was occasioned by Heath's motion for a psychiatric competency examination pursuant to Code § 19.2-169.1. We disagree. This case is unlike Jones v. Commonwealth, 13 Va. App. 566, 414 S.E.2d 193 (1992), where a request was made by the accused for a competency evaluation. In Jones, the report was not returnable to a date certain, and it was delayed because of a request for information by the institution responsible for preparing the report and because the accused was uncooperative with the examiner. See 13 Va. App. at 569-70, 414 S.E.2d at 194-95. In addition, the accused in Jones requested a hearing to determine competency after the report was filed. See id.
The record in this appeal proves that on August 1, 1997, Heath filed in the trial court a motion for a competency evaluation. The trial judge granted the motion on August 1 and ordered the competency evaluation report to be filed on September 12, 1997. The report was filed on September 10, 1997. Heath made no request for a hearing and on September 18, 1997, agreed to the October 15, 1997 date for trial. Heath's motion contained no request for a continuance, and the order granted none. Even if the granting of the motion could be considered as a de facto continuance, Jones does not control. We have unequivocally held that "[b]efore a continuance tolls the running of time under the statute, two requirements must be met: (1) the continuance must result in a 'failure to try the accused' and (2) the continuance must be granted 'on motion of the accused, or by his concurrence in such a motion by the attorney for the Commonwealth," Nelms v. Commonwealth, 11 Va. App. 639, 641, 400 S.E.2d 799, 801 (1991) (citation omitted), or "by the failure of the accused or his counsel to make a timely objection to such a motion by the attorney for the Commonwealth." Code § 19.2-243(4).
Clearly, any time consumed during the examination and preparation of the competency evaluation did not result in the failure to try Heath. First, we note that Heath's blood sample, which was ordered given in May, was not taken until August 20, 1997. Although Heath was continuously in custody, the blood sample was not submitted to the laboratory until August 21, 1997, two months after the Commonwealth was authorized to take the sample. Furthermore, the certificate of analysis of his blood was not completed until October 6, 1997, and was not filed in the trial court until October 10, 1997. Second, the act of setting a trial date did not occur within five months from the preliminary hearing. The failure to try Heath at an earlier time undoubtedly occurred because the need to fix a trial date was not considered significant.
The principle is well established that prompt setting of a trial date provides a benchmark "to insure a speedy trial, for the benefit of the accused no less than for the Commonwealth."Benton v. Commonwealth, 90 Va. 328, 332, 18 S.E. 282, 284 (1893). We noted the following in Nelms:
No trial date had been set and no attempt was made to set one. . . . The order does not reflect that the case was continued on a motion by either party. Since the matter had not been set for trial, neither the accused nor the attorney for the Commonwealth had any reason to move for a continuance.
11 Va. App. at 641-42, 400 S.E.2d at 801. These same circumstances prevail in this case. "Nothing in the record shows that '[Heath's] filing of the motion necessitated a slow-down of the judicial process,' because . . . the case had not yet been set for trial and the filing of [the] motion did not necessitate a continuance of the trial date." Robbs v. Commonwealth, 252 Va. 433, 436, 478 S.E.2d 699, 700 (1996) (citation omitted). Furthermore, even if Heath is charged with the time that lapsed from the date of filing the motion to the date the trial was set (August 1 to September 18), that duration accounts for only forty-nine days of the two hundred and nine day delay from the preliminary hearing. The statutory time limit would still be exceeded.
"It is well settled than [an accused] had no duty to demand that a trial date be set within the [statutorily] prescribed period . . . in order to preserve his statutory right to a speedy trial." Baity v. Commonwealth, 16 Va. App. 497, 501, 431 S.E.2d 891, 893 (1993) (en banc).
The fact that defense counsel knew that the available trial date was beyond the five month period is of no consequence. Although in setting its docket the trial court should consider counsel's available dates and whether the date selected is convenient for counsel, absent defendant's request for a continuance or concurrence in the Commonwealth's request or waiver of the right to a speedy trial, the trial judge has the responsibility to commence the trial within the statutorily specified time regardless of whether the date is convenient for counsel. . . . The Commonwealth has the duty, absent an exception set forth in the statute, to provide the accused a speedy trial.
Providing available dates and agreeing to a trial date that is outside the statutory period are not actions constituting a waiver of the statutory speedy trial requirement.
Baker, 25 Va. App. at 24, 486 S.E.2d at 114. We again state the following, as we have stated in the recent past with alarming frequency:
Only the trial court, not the Commonwealth's Attorney, has authority to schedule criminal cases for trial. Code § 19.2-241 provides that "[t]he judge of each circuit court shall fix a day of his court when the trial of criminal cases will commence, and may make such general or special order in reference thereto. . . ." This provision contemplates an orderly procedure for setting criminal cases and expressly places the control of that process under the supervision of the trial court, not a party litigant. The policy expressed in this provision recognizes the role of the trial judge in insuring the prompt disposition of criminal cases.
Williams v. Commonwealth, 2 Va. App. 566, 569, 347 S.E.2d 146, 148 (1986) (citations omitted). See also Powell v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (May 25, 1999);Baker, 25 Va. App. at 23-24, 486 S.E.2d at 113-14; Baity, 16 Va. App. at 502, 431 S.E.2d at 894.
Because the record reflects that Heath was held continuously in custody and not tried within five months of the date of his preliminary hearing, we reverse the conviction.
Reversed and dismissed.