nPresent: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Whiting, Senior Justice
GROVER ROBBS
OPINION BY
v. Record No. 951973 SENIOR JUSTICE HENRY H. WHITING
November 1, 1996
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The issues in this appeal of a criminal conviction are
whether the Commonwealth violated either the five or the nine-
month provisions of the following speedy trial statute:
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.
Code § 19.2-243.
After a preliminary hearing on August 4, 1992, the General
District Court of Hanover County found probable cause to believe
that Grover Robbs committed grand larceny. A grand jury later
indicted Robbs, who was in custody, on that charge. Before his
case was set for trial in the circuit court, Robbs filed a motion
on October 6, 1992 to suppress part of the evidence. This motion
was heard and overruled 20 days later.
Thereafter, the case was set for trial on a date within five
months of the preliminary hearing. However, on the day before
trial, the court sustained the Commonwealth's motion for a
continuance and the case was rescheduled for trial on February
17, 1993.
Several days later, the Commonwealth realized that Robbs had
been continuously confined since his preliminary hearing and that
the new trial date was more than five months from that hearing.
Accordingly, the Commonwealth made a motion to release Robbs on a
recognizance bond returnable on the trial date, which the trial
court granted on December 14, 1992. Upon Robbs's failure to
appear on the trial date, a capias was issued for his arrest. On
March 17, 1993, 26 days later, Robbs was arrested and thereafter
confined until he was tried.
Subsequently, the trial court fixed Robbs's grand larceny
case for trial on June 7, 1993, more than nine months after the
preliminary hearing. Prior to the trial date, Robbs filed a
motion "to dismiss the charges against him" on the ground that he
had been held in custody for more than five months after his
preliminary hearing in violation of Code § 19.2-243. Robbs
contended that in computing the five-month period, the additional
time he was in custody after his arrest on the capias should be
added to the time he was in custody prior to the first trial
date. The trial court overruled Robbs's motion and, following a
jury trial, Robbs was convicted on the grand larceny charge and
sentenced to eight years imprisonment.
On Robbs's appeal to the Court of Appeals, he also argued
that his trial was held beyond the nine-month period following
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his preliminary hearing, even after crediting the Commonwealth
with the 26 days between the date he failed to appear before the
trial court and the date he was arrested on the capias. The
Commonwealth responded that the trial was held within the nine-
month limitation period because it was entitled to an additional
credit for the 20 days that elapsed between the date that Robbs
filed his motion to suppress and the date the trial court ruled
on that motion.
The Court of Appeals affirmed the judgment of the trial
court and Robbs appealed to this Court. We granted Robbs a
delayed appeal, following our grant of a writ of habeas corpus.
We agree with the Court of Appeals and the Commonwealth that
the five-month limitation does not apply in this case. If a
statute is clear and unambiguous, we apply the words as written.
Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985).
Here, the five-month limitation would apply only if Robbs had
been "continuously in custody," and he had not been in continuous
*
custody since his second arrest began a separate confinement. T
Hence, we find no merit in Robbs's contention regarding the
alleged violation of the five-months limitation.
*
Our decision makes it unnecessary to decide whether the
second period of confinement was upon the capias, as the
Commonwealth contends, or upon the original charge, as Robbs
contends.
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However, we agree with Robbs that the trial was held in
violation of the nine-month limitation provision. If the 20-day
period measured from the time Robbs made his motion to suppress
until the time the trial court ruled on it caused a delay in
setting the case for trial, that delay is attributable to Robbs
and thus cannot be counted in computing the nine-month limitation
period. The Commonwealth has the burden of showing that Robbs's
motion and the time taken by the trial court to rule thereon
caused such a delay. Stephens v. Commonwealth, 225 Va. 224, 231-
32, 301 S.E.2d 22, 26 (1983).
This record shows only that 20 days after the motion was
filed, the trial court heard oral argument on the motion and
immediately thereafter ruled orally. Nothing in the record shows
that "the filing of the motion necessitated a slow-down of the
judicial process," Id. at 233, 301 S.E.2d at 26, because (1) the
case had not yet been set for trial and the filing of Robbs's
motion did not necessitate a continuance of the trial date (as in
Stephens) and (2) (unlike the situation in Stephens) the trial
judge ruled immediately upon being presented with the motion and
forthwith set the case for trial.
Since the record fails to show that the motion delayed the
court in setting the case for trial, we conclude that the Court
of Appeals erred in affirming the judgment. Accordingly, we will
enter an order reversing the judgment, dismissing the indictment,
and directing that Robbs be forever discharged from prosecution
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for the offense charged in the indictment.
Reversed and final judgment.
CHIEF JUSTICE CARRICO, with whom JUSTICE COMPTON and JUSTICE
STEPHENSON join, concurring in part and dissenting in part.
I would hold that the speedy trial rights of Grover Robbs
under Code § 19.2-243 have not been violated. In my opinion, the
five-month limitation contained in Code § 19.2-243 has not been
violated because Robbs was released on bond within the five-month
period and, since his second arrest began a separate confinement,
he was not entitled to include the time then spent in custody in
computing the five-month limitation.
I do not think the nine-month limitation contained in Code
§ 19.2-243 has been violated because, in the computation of the
nine-month period, the Commonwealth was entitled to have excluded
not only the twenty-six day period following Robbs' failure to
appear but also the twenty-day period between the filing of
Robbs' motion to suppress and the trial court's disposition of
the motion. With respect to the twenty-day period, I think
Stephens v. Commonwealth, 225 Va. 224, 301 S.E.2d 22 (1983),
cited by the majority, is controlling here.
In that case, the defendant burglarized a business and was
charged with four felonies and two misdemeanors. He filed a
motion to suppress the evidence on the ground that his arrest was
illegal. The trial court heard argument on the motion and held
it under advisement from May 22, 1981, to August 25, 1981, or for
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more than three months. We held that this delay did not result
in a violation of the defendant's speedy trial rights under Code
§ 19.2-243. This was the rationale of our decision:
When the defendant filed his motion to suppress he was
not asking for a speedy trial. It was an act which
necessitated a slow-down of the judicial process. What
the defendant desired was favorable action on this
motion. . . . [H]e did not want precipitate action.
He wanted careful consideration by the court. Although
defendant did not make a formal motion for a
continuance, he was the moving party in a proceeding
which necessitated the continuance, and he should not
be permitted to take advantage of the delay thus
occasioned.
Id. at 233-34, 301 S.E.2d at 27-28.
We concluded with this observation:
In view of the gravity of the offenses involved, other
circumstances surrounding the case, and the motion to
suppress, we cannot say that the period of time taken
by the trial court to consider defendant's motion was
unreasonable or inordinate.
Id. at 234, 301 S.E.2d at 28.
While the motion to suppress in Stephens may have been more
complex than the motion involved here, justifying the trial court
in holding the motion under advisement for more than three
months, there is nothing in principle to distinguish the present
*
matter from Stephens. Indeed, the rationale expressed there
*
The majority attempts to distinguish the present case from
Stephens on two grounds, first, that, here, "the case had not yet
been set for trial and the filing of Robbs's motion did not
necessitate a continuance of the trial date (as in Stephens)."
But nothing in the Stephens opinion or the record on file in our
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fits this situation like a glove. Accordingly, I would hold that
the twenty-day period which elapsed before the trial court took
up and disposed of Robbs' motion to suppress was neither
unreasonable nor inordinate and, hence, was excusable.
(..continued)
Clerk's office indicates that a date had been set for Stephens'
trial at the time he filed his motion to suppress. Be that as it
may, it was reasonable for the trial court here to delay setting
a trial date until Robbs' motion to suppress was disposed of; had
the motion been granted, there might not have been any necessity
to set a trial date. Hence, the filing of the motion did cause a
slow-down of the judicial process, and the slow-down was
attributable to Robbs. The other ground upon which the majority
seeks to distinquish this case from Stephens is that "(unlike the
situation in Stephens) the trial judge ruled immediately upon
being presented with the motion and forthwith set the case for
trial." However, I fail to see why, and the majority does not
say why, that should make any possible difference in the outcome
of this case.
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