COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Richmond, Virginia
MARQUIS LOVELLE WHITE, S/K/A
MARQUIS LAVELLE WHITE
OPINION BY
v. Record No. 2699-00-2 JUDGE LARRY G. ELDER
MARCH 19, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Leslie M. Osborn, Judge
Robert H. Morrison (Watson, Nelson,
Morrison & Miller, P.C., on brief), for
appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Marquis Lovelle White, sometimes known as Marquis Lavelle
White (appellant), appeals from his jury trial convictions for
second degree murder and use of a firearm in the commission of
murder. On appeal, he contends the trial court's denial of his
motion to dismiss violated Code § 19.2-243, the speedy trial
statute, because he was held "continuously in custody" for more
than five months before trial. The Commonwealth contends
appellant waived his speedy trial claim. In light of the trial
court's ruling that appellant did not waive his claim in that
court, we do not entertain the Commonwealth's procedural bar
argument. We assume without deciding that appellant remained
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"in custody," as that term is used in Code § 19.2-243, despite
his physical release from jail, until he executed the personal
recognizance bond. Nevertheless, we look to the legislature's
intent in enacting Code § 19.2-243, which provides that a
defendant may not invoke statutory speedy trial protections
where the defendant's conduct has caused the state to be unable
to try him within the five-month period. We hold, by analogy,
that where a defendant's conduct caused him to be held
"continuously in custody" for more than five months, the state
is not responsible and the statutory speedy trial limit does not
apply. Thus, appellant may not invoke the five-month limit of
Code § 19.2-243 because the court had taken all necessary legal
steps to release appellant from custody and appellant's refusal
to execute the personal recognizance bond containing standard
conditions was the only impediment to a full legal release.
I.
BACKGROUND
On October 4, 1999, appellant was arrested on the instant
charges and held without bail. On January 21, 2000, the
district court found probable cause to believe appellant
committed the charged offenses and certified them to the circuit
court. On motion of appellant, the district court set a bond of
$200,000 with security, but appellant was unable to post that
bond and remained in jail. The grand jury issued an indictment
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at its March 2000 term, and the case was scheduled to be tried
on June 23, 2000.
Sometime prior to trial, the Commonwealth discovered that
the date scheduled for appellant's trial was two days beyond the
five-month limit posed by Code § 19.2-243 for a defendant held
continuously in custody. At a hearing on June 14, 2000, the
Commonwealth moved the court to enter an order "that would
reduce [appellant's] bond" of $200,000 with surety to a personal
recognizance bond (p.r. bond) of $200,000 without any surety but
"subject . . . to pretrial release and monitoring through . . .
Court Services." Counsel for appellant said he objected "[f]or
the record" but that it "would be almost ludicrous" for him to
"give an argument against it." It was undisputed that the
purpose of the motion was to prevent the speedy trial statute
from barring appellant's trial. Following questioning by the
trial court, appellant said he understood the conditions of the
bond and the fact that he would be released that day. The court
then entered an order "ORDER[ING] the release of [appellant]
upon his own recognizance to appear before this Court on June
23, 2000 at 9:30 A.M. for trial" and indicating that appellant
"shall be monitored during his pre-trial release by the . . .
Court Services Unit." The order did not include a dollar amount
and also omitted certain conditions enunciated by the court from
the bench, including the condition that appellant have no
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contact with the Commonwealth's witnesses. Appellant's counsel
endorsed the order "SEEN," with no objection specified.
Later on the afternoon of June 14, 2000, appellant refused
to sign the paperwork prepared by the clerk's office as well as
"the bond that the magistrate actually issued on him." The
Commonwealth Attorney's office originally told the magistrate to
release appellant regardless of whether he signed the bond, but
appellant's counsel objected. After multiple conversations
involving the Commonwealth Attorney's office, appellant's
counsel, the magistrate, and a judge other than the one who had
issued the bond order, the parties agreed that appellant would
remain in jail until the next day, when they hoped to obtain a
ruling from the judge who had issued the order directing
appellant's release. However, before the parties could
communicate this agreement to the magistrate, appellant was
released from jail without executing the bond.
Appellant then requested a continuance to allow him time to
file a motion to dismiss based on his claim that the
prosecutor's actions surrounding appellant's release from jail
amounted to prosecutorial misconduct. At the June 19, 2000
hearing on that motion, appellant's counsel appeared at first to
concede that appellant no longer had a viable motion to dismiss
based on a violation of the speedy trial statute's five-month
limit for defendants held "continuously in custody." However,
after an extended colloquy on the record between appellant's
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counsel and the court, the court ruled, "[Y]ou're not waiving
the five[-]month [limit] and saying that there's no problem with
that. . . . I don't think you've waived anything." The trial
court denied the motion to continue.
On June 21, 2000, appellant filed a written motion to
continue and two motions to dismiss, one based on prosecutorial
misconduct and the other based on a violation of the speedy
trial statute. At a hearing on June 22, 2000, the trial court
granted the motion to continue and set the motions to dismiss
for hearing on July 17, 2000. On the Commonwealth's motion, the
trial court entered an order clarifying the earlier bond order.
That order provided as follows:
On the motion of the defendant, and for
good cause shown, this case is continued to
July 17, 2000 at 2:00 p.m. for the hearing
of defense motions, and thereafter to July
19, 2000 at 9:30 a.m. for trial.
The defendant is hereby recognized to
reappear before the Court on each of those
days and times. By his signature hereto, he
agrees that his appearance is secured by a
personal recognizance bond in the amount of
$200,000, which is issued on his promises to
be of uniform good behavior while on bond
and that he will be subject to and compliant
with the pretrial supervision of
Halifax-Pittsylvania Court Services.
That same day, five months and one day after the preliminary
hearing, appellant endorsed the order, "I AGREE TO THIS."
At the hearing on July 17, 2000, the Commonwealth argued
that the court's June 14 order directing that appellant be
released on his own recognizance was complete as issued and that
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appellant's signature was not required for his release. The
trial court ruled, "I cannot agree . . . . I don't think the
[June 14 bond order] qualifies as a recognizance. I think from
the language of the hearing and the language of the bond Order
that the judge intended that the recognizance would be done at a
later time." It also indicated that the order was merely an
authorization to bond appellant. The court then denied the
motion to dismiss based on prosecutorial misconduct.
On the speedy trial motion, the following exchange took
place:
[APPELLANT'S COUNSEL]: What I'm saying
is the record does not ever show that
[appellant's] custody was transferred from
the jail to another bonding party or to
another person or to himself or anything
else. The record of this court has a bond
Order that we've talked about at length
today and then [shows] a release on the
154th day.
So if the Court confines your review of
this to the record, the record itself shows
that [appellant] was held continuously in
custody until the 154th day, which is after
the statutory speedy trial time frame.
THE COURT: And you're talking about
the word "custody" or held in custody? He
was not held after the day he was released,
and you've got a statement of facts that you
all stipulated to.
[APPELLANT'S COUNSEL]: Well, Your
Honor, I think that obviously is a matter of
interpretation. We would submit that he was
held in custody of the jail. Whether he's
on -- I mean, every day you have people
released on work release furloughs. Those
people are still in the custody of the jail
whether they're behind bars or not.
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The Commonwealth argued that appellant had conceded previously
that the five-month speedy trial period ended when appellant was
released from physical custody. The Commonwealth did not,
however, make any claim of prejudice at that time. The trial
court then specifically observed, "I'm not ruling you waived
[the five-month speedy trial argument] by any statements you
made, [counsel for appellant]. I'm not going to rule that."
The court then denied the motion, ruling that "the language in
the statute 'held in custody' has its regular and ordinary
meaning . . . . And we know what date he was released and that
was before the five[-]month maximum period under the statute.
And so I'm going to deny your second Motion also."
Appellant was tried and convicted for the charged offenses,
and he noted this appeal.
II.
ANALYSIS
A.
PROCEDURAL BAR
The Commonwealth contends appellant waived his right to
raise the statutory speedy trial claim by his statements to the
court at the June 19, 2000 hearing. Although the trial court
held that appellant did not waive his statutory speedy trial
argument, the Commonwealth contends this ruling was erroneous.
The Commonwealth argues that it was entitled to rely on
appellant's concession at the June 19, 2000 hearing and that
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this reliance "severely prejudiced" it because it could have
asked the trial court to require appellant to execute the p.r.
bond that day, which was still within the five-month period.
Thus, it contends, the trial court's ruling that appellant did
not concede this issue was plainly wrong and we should hold that
the trial court reached the right result for the wrong reason.
We disagree. Under appropriate circumstances, we may
affirm the decision of a trial court when it has reached the
right result for the wrong reason. See, e.g., Driscoll v.
Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313 (1992).
However, "the Commonwealth cannot use [this principle] as a
subterfuge for a constitutionally prohibited cross-appeal." Id.
The Commonwealth is entitled to appeal a trial court ruling only
in a limited number of circumstances, and this is not one of
them. See, e.g., Code § 19.2-398. Thus, assuming without
deciding that the trial court's ruling was wrong, the
Commonwealth may not challenge that ruling on appeal.
B.
"CONTINUOUSLY IN CUSTODY" UNDER THE SPEEDY TRIAL STATUTE
Code § 19.2-243 provides in relevant part 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
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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.
Appellant contends that whether an accused is held "continuously
in custody" for purposes of calculating the statutory speedy
trial period depends not upon whether he physically remains in
jail but rather upon whether the appropriate judicial documents
indicate he remains lawfully in custody. Thus, he contends, he
remained "continuously in custody" for purposes of the speedy
trial statute despite his physical release from jail. This was
so, he contends, both because the court's bond order, standing
alone, was insufficient to authorize his release and because his
signature on a p.r. bond containing the terms of release
outlined orally by the court was not obtained until after the
five-month speedy trial period had expired.
We disagree. We assume without deciding that appellant
remained "in custody" for purposes of Code § 19.2-243 until he
executed the p.r. bond, despite his physical release from jail. 1
Nevertheless, we conclude that appellant may not rely on the
five-month limit on custody in Code § 19.2-243 because, to the
1
The trial court held the June 14, 2000 bond order was
sufficient to authorize appellant's release upon his execution
of a p.r. bond, and appellant does not, on appeal, assign error
to this conclusion.
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extent he remained in legal rather than physical "custody"
beyond that period, he did so only because of his own actions in
refusing to endorse a p.r. bond containing standard conditions. 2
In reaching this conclusion, we look to the express
language of the speedy trial statute to determine legislative
intent. Code § 19.2-243 provides that the five- and nine-month
periods outlined above "shall not apply to such period of time
as the failure to try the accused was caused" by numerous
circumstances fairly attributable to the accused, expressly
including "by reason of his escaping from jail or failing to
appear according to his recognizance." As we previously have
noted, "[t]he enumerated exceptions are not all-inclusive;
others of a similar nature may be implied. The exceptions, both
express and implied, often look to the defendant's actions which
tend to delay the trial." Cantwell v. Commonwealth, 2 Va. App.
606, 610, 347 S.E.2d 523, 525 (1986) (citation omitted).
As the language in both the statute and Cantwell makes
clear, we do not apply the statutory time limits in a vacuum;
rather, we must look to the impact of appellant's actions on our
2
We do not hold that a defendant's failure to obtain
release when the court has required security is attributable to
him for purposes of the speedy trial calculation. We do not
endorse application of a "financial means" test whenever a
defendant who may obtain release on a secured bond fails to post
that bond. We also do not hold that a defendant's failure to
obtain release when the court has imposed particularly onerous
conditions in a p.r. bond is attributable to that defendant for
purposes of the speedy trial statute.
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calculations. Thus, just as a defendant may not invoke
statutory speedy trial protections where his conduct caused the
Commonwealth to be unable to try him within the five-month
period, we hold that a defendant also may not invoke speedy
trial protections where his conduct caused him to be held
"continuously in custody" for more than five months. We assume
without deciding that "continuously in custody" means lawfully
in the custody of the state as indicated by relevant legal
documents. Nevertheless, the only reason the relevant legal
documents did not indicate appellant's release from custody was
because appellant refused to execute the p.r. bond. Whether
appellant remained in jail was irrelevant where the evidence
established that appellant's refusal to endorse the unsecured
bond containing standard conditions was what kept him "in
custody" for purposes of Code § 19.2-243. Because appellant
retained control over his release under a standard p.r. bond
and, therefore, caused himself to remain "in custody" when he
refused to execute that bond, we hold that the five-month time
limit in Code § 19.2-243 did not bar his trial and conviction.
For these reasons, we hold the trial court's denial of
appellant's motion to dismiss under Code § 19.2-243 was not
erroneous, and we affirm appellant's convictions.
Affirmed.
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