Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice
COMMONWEALTH OF VIRGINIA
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 992355 September 15, 2000
RUDOLPH LYNWOOD HUTCHINS, JR.
FROM THE COURT OF APPEALS OF VIRGINIA
I.
In this appeal, we consider whether the Commonwealth
violated the defendant's statutory rights to a speedy trial
contained in Code § 19.2-243. That statute states in relevant
part:
"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.
. . . .
"The provisions of this section shall not apply
to such period of time as the failure to try the
accused was caused:
. . . .
"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 . . . ."
II.
Rudolph Lynwood Hutchins, Jr., was arrested on September
18, 1996, and charged with two counts of malicious wounding,
in violation of Code § 18.2-51. He was taken before a
magistrate who set his bond at $100,000. The defendant,
unable to post the bond, was remanded to the custody of the
sheriff of Martinsville and remained in continuous custody in
the Martinsville City Jail. On October 23, 1996, the
defendant appeared in the Juvenile and Domestic Relations
District Court for the City of Martinsville for a preliminary
hearing on the charged offenses. The charges were certified
to a grand jury which indicted the defendant on February 10,
1997. The defendant appeared in the Circuit Court for the
City of Martinsville on February 25, 1997, and was arraigned
on two indictments for malicious wounding.
The defendant entered pleas of not guilty and requested a
jury trial. In response to the court's inquiry: "If you will
sign here that you want a trial by a jury. Friday, June the
6th [1997]?," the defendant's counsel responded: "That's
fine, Judge." The defendant and his counsel signed an order
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captioned, "REQUEST FOR JURY TRIAL and CONSEQUENCES OF FAILURE
TO APPEAR" which stated that the defendant's jury trial was
set for June 6, 1997.
On May 15, 1997, six months and 22 days after the
preliminary hearing, the defendant, relying upon Code § 19.2-
243, filed a motion to dismiss the charges against him. The
defendant stated in his motion "[t]hat on February 25, 1997,
the trial court set a trial date for June 6, 1997. Both the
Commonwealth and the Defendant acquiesced to that trial date.
Neither the Commonwealth nor the Defendant requested a
continuance to that date." The circuit court denied the
defendant's motion, he was tried by a jury and convicted of
one count of unlawful wounding, and he was sentenced to three
years imprisonment. The circuit court entered an order
confirming the jury verdict, and the defendant appealed to the
Court of Appeals.
A panel of the Court of Appeals, in an unpublished
opinion, affirmed the judgment of the circuit court. Hutchins
v. Commonwealth, Record No. 1439-97-3 (January 19, 1999). The
Court of Appeals held that the defendant's statutory speedy
trial rights were not violated because his trial commenced
when he was arraigned and that the arraignment occurred within
five months from the date that the district court found
probable cause.
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The Court of Appeals granted the defendant's petition for
rehearing en banc and reversed and dismissed the defendant's
conviction, holding that the trial did not commence within the
intendment of Code § 19.2-243 until the jury was sworn on June
6, 1997, and, therefore, the trial was beyond the five-month
period prescribed in Code § 19.2-243. Hutchins v.
Commonwealth, 30 Va. App. 574, 580, 518 S.E.2d 838, 841
(1999). The Court of Appeals did not discuss the
Commonwealth's argument that the circuit court's action on
February 25, 1997, in scheduling the trial date for June 6,
1997, constituted a continuance and that the defendant's
failure to object to that date, as required by Code § 19.2-
243(4), barred the defendant from applying the period of time
between February 25, 1997 and June 6, 1997, to the five-month
period prescribed in Code § 19.2-243. The Commonwealth
appeals.
III.
The Commonwealth asserts, among other things, that the
defendant's statutory speedy trial rights were not violated
because he did not object when the circuit court set the trial
date for June 6, 1997, and, therefore, the circuit court's
action scheduling the trial for that date must be viewed as a
continuance. The defendant responds that he did not waive his
statutory right to a speedy trial merely because he remained
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silent or did not demand that a trial date be set within the
prescribed period. We disagree with the defendant.
In Townes v. Commonwealth, 234 Va. 307, 362 S.E.2d 650
(1987), cert. denied, 485 U.S. 971 (1988), we considered
whether a defendant's conviction should be reversed and the
indictments dismissed because of an alleged violation of his
statutory right to a speedy trial. The defendant, Richard
Townes, Jr., was indicted for robbery, capital murder in the
commission of robbery, and use of a firearm while committing
robbery. A general district court found probable cause on
August 23, 1985, and Townes was held in continuous custody.
Id. at 312, 321, 362 S.E.2d at 652, 658.
On October 16, 1985, Townes appeared in the circuit court
and requested a continuance, which was granted by order
entered the same date, and the trial date was continued until
December 4, 1985. On that date, Townes and his counsel
appeared in court on a number of motions, including a motion
that Townes be allowed to represent himself. The circuit
court granted this motion and designated Townes' former
counsel as standby counsel. A discussion occurred regarding a
new trial date, and Townes' standby counsel suggested a date
of March 3, 1986, and everyone assented. An order was entered
on December 23, 1985, which embodied the actions taken by the
court on December 4, 1985. Id. at 321-22, 363 S.E.2d at 658.
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The December 23, 1985 order contained a statement that "the
trial of this matter is set for March 3, 1986, on motion of
both parties by agreement." Id. at 322, 362 S.E.2d at 658.
Rejecting Townes' contention that his statutory right to
a speedy trial was violated, we stated:
"The order of December 23, entered well within the
five-month period, expressly states that the March
3, 1986 trial date was set 'on motion of both
parties by agreement.' This recitation imports
verity and reflects judicial action constituting a
continuance granted with the concurrence of both the
prosecution and the accused. This continuance, from
December 4 until March 3, extended the five-month
period for three months less one day, or more than
enough to satisfy the requirements of Code § 19.2-
243 . . . ."
Id. at 323, 362 S.E.2d at 659. We also observed in Townes
that "the recital in the order of December 23, 1986, with
respect to agreement on the trial date, not only imports
verity but also is supported by the record." Id. at 323 n.3,
362 S.E.2d at 659 n.3.
In the present case, the defendant, Hutchins, agreed to
the trial date of June 6, 1997. Indeed, the defendant
admitted, as we have already stated, in his motion to dismiss
that "[b]oth the Commonwealth and the Defendant acquiesced to
[the June 6, 1997] trial date." The defendant also states in
his brief filed with this Court that he acquiesced to that
trial date. And, as we have already stated, the record shows
defendant's counsel informed the circuit court that a trial by
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jury on June 6, 1997, was "fine." Therefore, we can only
conclude that the defendant's actions in acquiescing with and
agreeing to the order dated February 25, 1997, signed by the
defendant and his counsel, which was entered well within the
five-month period, constituted a continuance of the trial date
within the intendment of Code § 19.2-243(4). The defendant
made no objection to this continuance. Indeed, rather than
object, the defendant affirmatively agreed to the trial date,
and there is no dispute that when the period of time between
February 25, 1997 and June 6, 1997 is not included, the
defendant's trial was within the statutorily prescribed
period. Therefore, we hold that the defendant's right to a
speedy trial provided by Code § 19.2-243 was not violated.
IV.
For these reasons, we will reverse the judgment of the
Court of Appeals, and we will reinstate Hutchins' conviction
in accordance with the circuit court's judgment order. *
Reversed and final judgment.
*
In view of our holding, we do not consider the Court of
Appeals' holding that a trial commences within the intendment
of Code § 19.2-243 when the jury is sworn.
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