Opinion
Record No. 1090-92-3
July 27, 1993
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY NICHOLAS E. PERSIN, JUDGE.
Robert J. Breimann (Street, Street, Street, Scott Bowman, on brief), for appellant.
Janet F. Rosser, Assistant Attorney General, (Stephen D. Rosenthal, Attorney General; Margaret Ann B. Walker, Assistant Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Barrow and Koontz.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In this appeal of a robbery conviction, we hold that the defendant's right to a speedy trial under Code § 19.2-243 was violated; therefore, he must be discharged from prosecution for this offense.
The defendant was held continuously in custody from September 8, 1988, the date probable cause was found by the district court, until his trial began on October 2, 1989. The Attorney General agrees that two periods of time, September 8 to October 10, 1988, and June 6 to July 17, 1989, were not attributable to any recognized exception to the statutory requirement. We hold that two other periods of time were not attributable to such an exception because they did not result from continuances requested or concurred in by the defendant, as contended by the Attorney General.
The first of these periods of time, from January 9 to March 10. 1989, resulted from an order that did not state that the case was being continued. Instead, the order recited that "with prior consent and approval of the Defendant and his counsel, the Court now sets his cases for trial on the 15th and 16th days of March, 1989." Although the defendant and his attorney agreed to the case being set for trial on March 15, they did not agree to a continuance of the trial until that date. See Taylor v. Commonwealth, 12 Va. App. 425, 429, 404 S.E.2d 86, 88 (1991).
The second period of time, July 17 to October 2, 1989, was caused by a conflict in the court's calendar, not by a continuance requested or concurred in by the defendant. Although the order entered continuing the case during this period of time recites that it was "pursuant to an agreement of counsel," the trial court found that rescheduling the trial because of a conflict with a medical malpractice review panel was over the objection of the defendant. Thus, the language in the order was an erroneous statement of the defendant's position with regard to that continuance, and the time period is not attributable to a continuance concurred in by the defendant.
Our conclusion regarding these two time periods, totaling sixty days and seventy-seven days, respectively, means that more than five months passed before the defendant's trial began. When added to the seventy-three days that the Commonwealth does not dispute, these two time periods result in at least 210 days, not attributable to the defendant, having passed before the trial began. Thus, more than five months passed while the defendant remained in custody without being brought to trial, and the defendant was entitled to be discharged from prosecution for this offense. See Code § 19.2-243.
We reverse the judgment of conviction and dismiss the indictment of robbery upon which it was based.
Reversed and Dismissed.
I believe that the period from January 9 to March 10, 1989, should be charged against the defendant. The language in the order that recites that "with prior consent and approval of the defendant and his counsel, the Court now sets his cases for trial on the 15 and 16 days of March, 1989" is, in my opinion, a continuance granted with the agreement and concurrence of counsel. In this case, contrary to what occurred in Taylor v. Commonwealth, 12 Va. App. 425, 404 S.E.2d 86 (1991), the court order shows that the continuance of the case from January 9 to March 10, 1989, was with the approval and concurrence of counsel. In Taylor the order did not reflect that the case was being set at some future date with the concurrence of counsel. Defense counsel had not appeared at docket call but had sent his list of "avoid" dates for June through October 26, 1989. The trial judge set the case for September 8, 1989, which was beyond the five month period. This Court in Taylor held that, under those facts, there was no continuance by agreement by the defendant. Id. at 429, 404 S.E.2d at 88.
I would affirm.