Present: Carrico, C.J., Lacy, Keenan, Koontz, and Kinser, JJ.,
Whiting, S.J.
WAYNE LENARDO HEATH
OPINION BY
v. Record No. 001090 SENIOR JUSTICE HENRY H. WHITING
March 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal involves one of the tolling provisions of the
speedy trial statute. Code § 19.2-243 provides that if, while
awaiting trial, an accused has been incarcerated continuously
for more than five months after a district court finds probable
cause to believe that he has committed a felony, he shall be
"forever discharged from prosecution" for that offense.
However, Code § 19.2-243(4) states in part that the five-
month period is tolled during any period if the failure to try
the accused was caused:
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.
The dispositive issue on appeal is whether the defendant’s
actions in the circuit court tolled the statutory speedy trial
period for at least 56 days of the total time that he remained
in custody awaiting trial after his preliminary hearing.
In a preliminary hearing on March 20, 1997, the Juvenile
and Domestic Relations District Court of the City of Petersburg
found probable cause to believe that the defendant Wayne Lenardo
Heath had committed the crime of first-degree murder and
certified the charge to the grand jury. Heath was incarcerated
at the time of his preliminary hearing and remained continuously
in custody thereafter until his case was tried in the circuit
court on October 15, 1997, a time period of five months plus 56
days after the probable cause finding in the district court.
The record discloses that during the five-month period
following Heath’s preliminary hearing, the circuit court entered
three orders. One order, not endorsed by counsel, was entered
on July 8. This order recited action taken by the court at a
May 6 hearing, in which the court sustained the Commonwealth's
motion that a sample of blood be taken from the defendant, and
that the case be continued to May 15 to be reset for trial.
Another order, which was endorsed by counsel for defendant as
“Seen,” was entered on May 15 and reflects the court’s action in
once again ordering that a blood sample be taken from the
defendant. The order further provided that the defendant be
given “any scientific findings” made in relation to the testing
of the blood sample, but did not specify a date by which these
results must be produced or set a date for trial of the case.
The blood tests that were the subject of this order were
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conducted on October 6, and the test results were filed with the
circuit court on October 10.
A third order, dated August 1, granted the defendant’s
motion made under Code § 19.2-169.1 for a determination of his
competency to stand trial. In the order, the circuit court
directed that the results of this examination be provided to
counsel for the defendant by September 12. The defendant states
on brief that a report containing the results of the examination
was filed with the circuit court on September 10.
Although there were three “term,” or “docket call,” days
between May 6 and August 1, the record in this case does not
contain any orders other than the three described above; 1 nor
does the record contain any motion requesting that the case be
fixed for trial. However, the Commonwealth and the defendant
are in agreement on appeal that at the term day on September 18,
the circuit court ordered that the case be tried on October 15.
The record does not disclose, and the defendant does not claim,
that the defendant objected to the action of the court in fixing
the trial date.
On October 8, the defendant filed a motion to dismiss the
indictment, alleging that the Commonwealth had violated the
1
In 1997, term days in criminal cases in the circuit court were
the third Thursday of each month except the month of August.
Criminal cases were "set" on term day. Appendix to Rule 1:15(d)
of the Rules of the Supreme Court of Virginia.
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speedy trial provisions of Code § 19.2-243. The court denied
the motion on the ground that the speedy trial period had been
tolled between the time of the defendant's motion for a
psychiatric examination and the date fixed for the beginning of
the trial.
The defendant was subsequently tried by the court,
convicted of the charge, and sentenced to confinement in the
penitentiary for a period of 69 years and five months. In an
unpublished opinion, a panel of the Court of Appeals reversed
the defendant’s conviction, primarily on the ground that he was
not responsible for any of the delays that occurred prior to the
trial of the case. Heath v. Commonwealth, Record No. 0203-98-2
(July 6, 1999). Upon a rehearing en banc, the Court of Appeals
affirmed Heath's conviction, principally for the reasons
assigned by the trial court. Heath v. Commonwealth, 32 Va. App.
176, 183 (2000). We granted Heath an appeal.
Heath argues that the Commonwealth must be charged with the
entire delay in bringing him to trial because the Commonwealth
waited until September 18 to obtain a trial date. He contends
that his request for a psychiatric examination did not contain a
request for a continuance and could not have tolled the
statutory speedy trial period, since the blood tests requested
by the Commonwealth were not completed until after he received
4
the results of his psychiatric examination. We disagree with
Heath’s arguments.
The protections granted in Code § 19.2-243 may be waived.
Stephens v. Commonwealth, 225 Va. 224, 233-34, 301 S.E.2d 22,
27-28 (1983); Brooks v. Peyton, 210 Va. 318, 321, 171 S.E.2d
243, 246 (1969). When a defendant requests, agrees to, or
acquiesces in an order that effectively continues a case, the
five-month speedy trial period of Code § 19.2-243 is tolled
during the time reasonably specified by the court to carry out
the terms of its order. See Code § 19.2-243(4); Commonwealth v.
Hutchins, 260 Va. 293, 297-98, 533 S.E.2d 622, 624-25 (2000).
We need not consider whether the time periods covered by
the orders of May 15 and July 8 are subject to the tolling
provisions of Code § 19.2-243(4), because the orders entered on
August 1 and September 18 resolve the defendant’s speedy trial
claim. Here, the order of August 1 granted the defendant's
motion for a psychiatric examination, which included a request
to determine the defendant's competency to stand trial. The
motion implicitly requested the circuit court to continue the
case so that this psychiatric examination could be performed.
Thus, the defendant’s motion triggered the statutory tolling
provisions of Code § 19.2-243(4) and stopped the running of the
five-month speedy trial period between August 1 and September
10, a period of 40 days. See id.; see also Stephens, 225 Va. at
5
233-34, 301 S.E.2d at 27-28 (defendant's filing of motion to
suppress evidence with written memoranda requiring careful study
by circuit court necessitated continuance chargeable to
defendant). This 40-day period effected by the August 1 order
must therefore be subtracted from the total time that the
defendant was held in custody awaiting trial after his
preliminary hearing. See Code § 19.2-243(4).
Our conclusion is not altered by the fact that Heath’s
motion for a psychiatric examination was made when no trial date
had been fixed and trial of the case had been delayed by the
Commonwealth’s request for the performance of certain blood
tests. Heath’s motion affirmatively demonstrated that he was
not ready for trial and could not proceed until he received the
results of his psychiatric examination. Thus, it is of no
consequence that the results of the blood tests were still
pending and no trial date had been fixed because, manifestly, a
trial could not have been held as long as the issue of Heath's
mental competency remained unresolved. Accordingly, the period
of time effected by the August 1 order was properly chargeable
to him.
Finally, we conclude that the 27-day period between
September 18, when the court ordered a trial date, and the date
of trial, October 15, must also be subtracted from the total
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time the defendant was in custody awaiting trial. 2 The
defendant's failure to object to the court's action in fixing
the trial date is an acquiescence in the fixing of a trial date
beyond the five-month speedy trial period and constitutes a
continuance of the trial date under Code § 19.2-243(4). See
Hutchins, 260 Va. at 297-98, 533 S.E.2d at 624-25. The above
27-day period, when added to the earlier 40-day period, yields a
total of 67 days chargeable to the defendant. When we subtract
these 67 days from the total time the defendant was in custody
awaiting trial, the record demonstrates that he was tried well
within the five-month period required by Code § 19.2-243. 3
Accordingly, the judgment of the Court of Appeals will be
Affirmed.
2
We need not consider whether the eight days between September
10 and 18 are chargeable either to the Commonwealth or to the
defendant.
3
This holding obviates a discussion of the defendant’s remaining
contentions.
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