COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Elder,
Bray, Annunziata, Bumgardner, Lemons ∗ and Frank
Argued at Richmond, Virginia
WAYNE LENARDO HEATH
OPINION BY
v. Record No. 0203-98-2 JUDGE ROSEMARIE ANNUNZIATA
APRIL 11, 2000
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
Mary Katherine Martin, Senior Assistant
Public Defender (Office of the Public
Defender, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On July 6, 1999, a panel of this Court reversed the murder
conviction of Wayne Lenardo Heath based on its view that
appellant's statutory right to a speedy trial pursuant to Code
§ 19.2-243 had been violated. The Commonwealth filed a petition
for rehearing en banc, which we granted on August 20, 1999. Upon
rehearing, we affirm the decision of the trial court.
∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
BACKGROUND
The record establishes that the Juvenile and Domestic
Relations District Court of the City of Petersburg held a
preliminary hearing on March 20, 1997, and found probable cause to
believe Wayne Lenardo Heath committed first-degree murder. The
grand jury indicted Heath on that charge. On September 18, 1997,
the circuit court set the trial date for October 15, 1997. Heath
was convicted of first-degree murder at a bench trial on that
date, and was sentenced on February 6, 1998 to sixty-nine years
and five months in prison.
Heath remained continuously in custody from the preliminary
hearing, March 20, 1997, until the trial on October 15, 1997, a
period of 209 days. Absent tolling of the statute, he should
have been tried within 152 and a fraction days. See Moten v.
Commonwealth, 7 Va. App. 438, 441, 374 S.E.2d 704, 706 (1988).
On May 6, 1997, the parties appeared in the circuit court
on the Commonwealth's motion to compel the taking of a blood
sample from Heath "for scientific comparison." Although the
record contains no written motion, the trial judge entered an
order on May 15, 1997, granting the motion and ordering Heath to
give the blood sample. The order, which is endorsed by both
counsel without objection, contains no request for a continuance
and grants no continuance. The record also contains an order
entered July 8, 1997, which duplicates the earlier order that
Heath give a blood sample. The July 8, 1997 order also contains
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the notation that "[i]t is further ordered that the case be
continued until May 15, 1997, at 11:00 a.m. to be reset for
trial." 1 This order was not endorsed by counsel and does not
reflect whether either attorney requested the continuance.
On August 1, 1997, the trial court granted Heath's motion
requesting a psychiatric evaluation to determine his competency
to stand trial and ordered an evaluation. From the entry of the
court's order until September 10, 1997, when Heath received the
results of the evaluation, he could not proceed to trial. At
the circuit court's next docket call on September 18, 1997, the
case was set for trial on October 15, 1997, fifty days beyond
the five-month period. 2
The time limitation for the commencement of felony trials is
governed by Code § 19.2-243, 3 which provides, in relevant part:
1
The record does not indicate that a trial date had been
set prior to either May 15, 1997 or July 8, 1997. The record
also reflects that no trial date was set at the hearing on May
15, 1997.
2
Trial was set at Heath's request, notwithstanding the fact
that the analysis of Heath's blood sample which the Commonwealth
earlier requested had not been completed. The Commonwealth
nonetheless did not oppose the setting of the trial date and
made no motion for a continuance. Ultimately, the certificate
of analysis was completed on October 6, 1997, and filed prior to
trial on October 10, 1997.
3
The entire statute reads 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
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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.
If there was no preliminary hearing in the
district court, or if such preliminary
hearing was waived by the accused, the
commencement of the running of the five and
nine months periods, respectively, set forth
in this section, shall be from the date an
indictment or presentment is found against
the accused.
If an indictment or presentment is found
against the accused but he has not been
arrested for the offense charged therein,
the five and nine months periods,
respectively, shall commence to run from the
date of his arrest thereon.
Where a case is before a circuit court on
appeal from a conviction of a misdemeanor or
traffic infraction in a district court, the
accused shall be forever discharged from
prosecution for such offense if the trial de
novo in the circuit court is not commenced
(i) within five months from the date of the
conviction if the accused has been held
continuously in custody or (ii) within nine
months of the date of the conviction if the
accused has been recognized for his
appearance in the circuit court.
The provisions of this section shall not
apply to such period of time as the failure
to try the accused was caused:
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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 . . . .
"When an accused asserts that he has been denied a speedy trial,
the burden is on the Commonwealth to explain and excuse the
1. By his insanity or by reason of his
confinement in a hospital for care and
observation;
2. By the witnesses for the Commonwealth
being enticed or kept away, or prevented
from attending by sickness or accident;
3. By the granting of a separate trial at
the request of a person indicted jointly
with others for a felony;
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; or
5. By the inability of the jury to agree in
their verdict.
But the time during the pendency of any
appeal in any appellate court shall not be
included as applying to the provisions of
this section.
Code § 19.2-243.
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delay." Adkins v. Commonwealth, 13 Va. App. 519, 521, 414
S.E.2d 188, 189 (1992). "[I]t is the prosecution which has the
responsibility of vindicating society's interests in swift and
certain justice, and the burden of demonstrating that a delay in
commencing trial is excused under Code § 19.2-243 lies upon the
Commonwealth." Robinson v. Commonwealth, 28 Va. App. 148, 153,
502 S.E.2d 704, 706 (1998) (citations omitted). "The
Commonwealth must prove that the delay was based on 'one of the
reasons enumerated in [Code § 19.2-243] or on [the accused's]
waiver, actual or implied, of his right to be tried within the
designated period.'" Powell v. Commonwealth, 29 Va. App. 745,
748, 514 S.E.2d 785, 787 (1999) (citation omitted). If the
Commonwealth fails to meet these burdens, the statute requires
discharge of the prosecution. See id.
ANALYSIS
To decide the question presented, we look to the court's
orders explaining the delays in proceeding to trial. See Guba
v. Commonwealth, 9 Va. App. 114, 118, 383 S.E.2d 766, 767
(1989). We may also look to the rest of the record to assess
the responsibility for delay that caused "the failure to try the
accused," Stinnie v. Commonwealth, 22 Va. App. 726, 729, 473
S.E.2d 83, 84 (1996) (en banc), within the time frame mandated
by statute. See Baity v. Commonwealth, 16 Va. App. 497, 503,
431 S.E.2d 891, 894-95 (1993) ("Although [the court's] orders
facilitate the assessment of responsibility for delay and the
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determination of the merits of a Code § 19.2-243 claim, such
orders do not and should not limit the scope of appellate
review.").
Delays in the trial were caused by both the Commonwealth
and the defendant. During the delay occasioned by the
Commonwealth's motion for a blood test, Heath's motion for a
psychiatric examination was granted, necessitating a trial delay
until he stood ready to proceed. Thus, notwithstanding the
Commonwealth's responsibility for delaying the trial for the
purpose of obtaining a blood test, Heath made clear that he was
not ready for trial. The delay caused by Heath's motion for a
psychiatric examination is, therefore, properly chargeable to
him. 4 See Moten, 7 Va. App. at 444, 374 S.E.2d at 707; see also
Jones v. Commonwealth, 13 Va. App. 566, 569-71, 414 S.E.2d 193,
194-95 (1992).
As we have stated previously,
[w]hen the defendant requests and is granted
a continuance for an indefinite period of
time, the speedy trial period will not
recommence until the defendant announces to
the Commonwealth that he stands ready for
trial. "[W]here the accused affirmatively
acts and invites the delay in the
commencement of trial by such motion, there
is no violation of his speedy trial right."
4
By his motion, Heath acquiesced, in effect, to that
portion of the delay caused by the Commonwealth which ran
concurrently with the delay he had caused.
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Jefferson v. Commonwealth, 23 Va. App. 652, 657, 479 S.E.2d 80,
82 (1996) (quoting Stinnie, 22 Va. App. at 730, 473 S.E.2d at
85) (additional citations omitted). The delay in this instance
was for Heath's benefit, and, notwithstanding the absence of a
formal motion to continue the matter to permit a psychiatric
examination to be conducted, the de facto continuance which
resulted was caused by his action. See Stephens v.
Commonwealth, 225 Va. 224, 233-34, 301 S.E.2d 22, 27-28 (1983)
(although defendant did not move for a continuance, he was
responsible for the delay because he filed a motion to suppress
which necessitated a slow-down in the judicial process); see
also Jones, 13 Va. App. at 569-71, 414 S.E.2d at 194-95; Moten,
7 Va. App. at 444, 374 S.E.2d at 707.
Calculating the time from August 2, 1997, the day following
the date Heath's motion was filed and the court's order was
entered, see Randolph v. Commonwealth, 22 Va. App. 334, 335-36,
470 S.E.2d 132, 133 (1996), to October 15, 1997, the date Heath
was tried, produces a total chargeable delay of 75 days. See
Stinnie, 22 Va. App. at 728-30, 473 S.E.2d at 84-85 (defendant's
continuance did not end at term day, but rather on the date
trial was set). As such, the delay is properly chargeable to
Heath and tolled the time limitations imposed under Code
§ 19.2-243.
When the period of delay occasioned by Heath's motion for a
psychiatric evaluation is subtracted from the total period of
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delay, it is manifest that Heath was tried within the five-month
period required by statute. Thus, for the reasons stated, we
affirm the conviction.
Affirmed.
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Benton, J., with whom Coleman, J., joins, dissenting.
The Juvenile and Domestic Relations District Court of the
City of Petersburg held a preliminary hearing on March 20, 1997,
and found probable cause to believe Wayne Lenardo Heath committed
the charged murder. The grand jury indicted Heath for first
degree murder. On September 18, 1997, six months after the
finding of probable cause, the trial judge set the initial trial
date for October 15, 1997. Heath remained continuously in custody
from the preliminary hearing until the trial on October 15, 1997,
a period of 209 days. I would hold that the delay in trying Heath
within the 152 days required by statute is chargeable to the
Commonwealth.
The statute governing the time limitation for the
commencement of felony trials provides 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 district
court . . . .
Code § 19.2-243. "If [the accused] is not tried within the time
specified in Code § 19.2-243, the burden is on the Commonwealth
to explain the delay." Godfrey v. Commonwealth, 227 Va. 460,
463, 317 S.E.2d 781, 782 (1984). To avoid the statutory remedy
of discharge from prosecution, "[t]he Commonwealth must prove
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that the delay was based on 'one of the reasons enumerated in
[Code § 19.2-243] or on [the accused's] waiver, actual or
implied, of his right to be tried within the designated
period.'" Baker v. Commonwealth, 25 Va. App. 19, 22, 486 S.E.2d
111, 113, aff'd on reh'g en banc, 26 Va. App. 175, 493 S.E.2d
687 (1997) (citation omitted).
Heath's trial was not commenced within five months from the
date the judge of the juvenile court found probable cause. "The
five month period is computed as 152 and a fraction days."
Moten v. Commonwealth, 7 Va. App. 438, 441, 374 S.E.2d 704, 706
(1988). The five-month period ended August 20, 1997, and Heath
was tried on October 15, 1997. Although the Commonwealth
contends the additional fifty-six days that elapsed before the
trial should be charged to Heath, the record does not support
that claim.
The Commonwealth argues that the first delay, which was
occasioned by the Commonwealth's request to take a blood sample
from Heath, is chargeable to Heath. I disagree. The
Commonwealth neglected to secure a timely trial date and
focused, instead, on obtaining a blood sample to use as evidence
for trial. The Commonwealth's lack of diligence in obtaining
the blood sample and completing the testing was the superseding
cause for all of the delay in this case.
The record indicates that on May 6, 1997, the parties
appeared in the circuit court on the Commonwealth's motion to
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compel the taking of a blood sample from Heath "for scientific
comparison." The trial judge entered an order on May 15, 1997,
granting the motion and ordering Heath to give the blood sample.
The order, which was endorsed by both counsel and entered five
months before Heath was ultimately tried, contains no reference
to a continuance. Although the Commonwealth asserts that Heath
did not object to a continuance, the record clearly reflects
that the Commonwealth made no motion for a continuance.
Furthermore, the order granted no continuance; it merely
"ORDERED [the Commonwealth] to report any scientific findings in
relation to the . . . examination."
For reasons unexplained in the record, the trial judge
signed another order on July 8, 1997, nunc pro tunc to May 6,
1997, granting the same motion to compel a blood sample and
continuing the matter to May 15, 1997. The record contains no
indication that any notice was given to either party of the
entry of the order; the order was not signed by either counsel,
"and nothing in the order indicated that compliance with . . .
[Rule 1:13] was waived or dispensed with for good cause."
Smiley v. Erickson, 29 Va. App. 426, 430, 512 S.E.2d 842, 844
(1999); see also Guba v. Commonwealth, 9 Va. App. 114, 118, 383
S.E.2d 764, 767 (1989) (holding that "a court speaks through its
written orders"). Thus, this order was "void ab initio because
it was entered in violation of Rule 1:13." Smiley, 29 Va. App.
at 430, 512 S.E.2d at 844. Furthermore, the record does not
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indicate that a trial date had been set prior to either May 15,
1997, or July 8, 1997. The record also reflects that no trial
date was set on May 15, 1997.
For reasons also not explained in this record, the
Commonwealth did not draw the blood sample until August 20,
1997, and did not report the results of the testing until
October 6, 1997, exactly five months after the original order
was entered. The record contains no indication that Heath did
anything to delay the process of taking a sample of his blood.
Cf. Jones v. Commonwealth, 13 Va. App. 566, 570, 414 S.E.2d 193,
195 (1992) (noting that "[d]espite several written requests to
defense counsel for information necessary to the examination,
defendant did not respond until . . . nearly five months after
the initial correspondence). Heath was incarcerated during the
entire period; therefore, he was clearly available for the
sample to be drawn at an earlier time. Neither defense counsel
nor Heath can be charged with anticipating that the request of
the Commonwealth for a blood sample would cause a delay,
particularly one that would span more than five months. Indeed,
it appears that even the trial judge assumed on July 8, 1997,
that the blood testing would take one week.
In ruling on Heath's dismissal motion, the trial judge
noted that Heath did not object to the length of time it took to
test his blood. Heath bore no responsibility, however, to
assure that he was tried within the statutory speedy trial
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period. "It is well settled than [an accused] ha[s] no duty to
demand that a trial date be set within the [statutorily]
prescribed period . . . in order to preserve his statutory right
to a speedy trial." Baity v. Commonwealth, 16 Va. App. 497,
501, 431 S.E.2d 891, 893 (1993) (en banc).
The fact that defense counsel knew that the
available trial date was beyond the five
month period is of no consequence. Although
in setting its docket the trial court should
consider counsel's available dates and
whether the date selected is convenient for
counsel, absent defendant's request for a
continuance or concurrence in the
Commonwealth's request or waiver of the
right to a speedy trial, the trial judge has
the responsibility to commence the trial
within the statutorily specified time
regardless of whether the date is convenient
for counsel. . . . The Commonwealth has the
duty, absent an exception set forth in the
statute, to provide the accused a speedy
trial.
Providing available dates and agreeing to a
trial date that is outside the statutory
period are not actions constituting a waiver
of the statutory speedy trial requirement.
Baker, 25 Va. App. at 24, 486 S.E.2d at 114. Further, as we
have stated in the recent past with alarming frequency:
Only the trial court, not the Commonwealth's
Attorney, has authority to schedule criminal
cases for trial. Code § 19.2-241 provides
that "[t]he judge of each circuit court
shall fix a day of his court when the trial
of criminal cases will commence, and may
make such general or special order in
reference thereto. . . ." This provision
contemplates an orderly procedure for
setting criminal cases and expressly places
the control of that process under the
supervision of the trial court, not a party
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litigant. The policy expressed in this
provision recognizes the role of the trial
judge in insuring the prompt disposition of
criminal cases.
Williams v. Commonwealth, 2 Va. App. 566, 569, 347 S.E.2d 146,
148 (1986) (citations omitted); see also Powell v. Commonwealth,
29 Va. App. 745, 750, 514 S.E.2d 785, 788 (1999); Baker, 25 Va.
App. at 23-24, 486 S.E.2d at 113-14; Baity, 16 Va. App. at 502,
431 S.E.2d at 894.
The record also is devoid of evidence that the Commonwealth
made any attempt or expressed any desire to schedule a trial
date either during the pendency of its motion to compel a blood
test or during the delay in taking the blood sample and
reporting the results of the test. Moreover, at Heath's
request, notwithstanding the fact that the analysis of his blood
sample had not been completed, a trial date was set and the
Commonwealth did not object or ask for a date to be set within
the statutory framework. Given that the Commonwealth managed to
file the certificate of analysis on October 10, 1997, five days
before the trial, certainly it could have been made available at
an earlier date if trying Heath in accordance with the guarantee
of a speedy trial had been a priority.
The record does not contain any indication that either
party requested a continuance or that Heath's counsel knew of
the void order entered two months after the hearing. The May 6,
1997 order does not recite that a continuance was sought or
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granted. Certainly, Heath's counsel had no obligation to object
to what the Commonwealth now baldly asserts to be a
"continuance." Therefore, I would hold that this delay cannot
be attributed to Heath. See Taylor v. Commonwealth, 12 Va. App.
425, 429, 404 S.E.2d 86, 88 (1991) (holding that "[w]ithout
anything . . . in the record . . . to show that a defendant
agreed to or concurred in the delay of his trial, or instituted
a proceeding which of necessity brought about a delay in his
trial, the delay must be attributed to the Commonwealth). Cf.
Code § 19.2-243(4) (discussing the tolling of the speedy trial
requirement when a continuance is granted at the request of the
defendant or upon the concurrence of the defendant in a request
of the Commonwealth).
The Commonwealth further argues that the time which elapsed
during Heath's psychiatric competency examination is a delay
chargeable to Heath. Recognizing "the Commonwealth's
responsibility for delaying the trial for the purpose of
obtaining a blood test," the majority, nonetheless, holds that
this time is charged to Heath. I disagree.
Although the majority relies on Jones and Moten, both of
which involved a request made by the accused for a competency
evaluation pursuant to Code § 19.2-169.1, those cases are
inapposite. In Jones, unlike this case, the report was not
returnable to a date certain, and it was delayed both because of
a request for information by the institution responsible for
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preparing the report and because the accused was uncooperative
with the examiner. See 13 Va. App. at 569-71, 414 S.E.2d at
194-95. In addition, unlike Heath, the accused in Jones
requested a hearing to determine competency after the report was
filed. See id. at 569, 414 S.E.2d at 195.
In Moten, also unlike this case, the defendant refused to
cooperate with the psychologist who was assigned to conduct the
competency evaluation. Because of that difficulty, the judge
had to transfer the defendant to a mental health facility for a
second evaluation. See 7 Va. App. at 444, 374 S.E.2d at 707.
The majority aptly notes that Heath did not move for a
continuance when he requested a competency evaluation. Yet,
relying on Jefferson v. Commonwealth, 23 Va. App. 652, 479
S.E.2d 90 (1996), the majority rules that Heath's motion created
a de facto continuance. The holding in Jefferson does not
support that ruling; it only applies when a defendant "requests
and is granted a continuance for an indefinite period of time."
23 Va. App. at 652, 479 S.E.2d at 82.
The record in this appeal proves that on August 1, 1997,
when Heath filed a motion for a competency evaluation, no trial
date had been set and the results of the blood test requested by
the Commonwealth had not been filed. The trial judge granted
Heath's motion on August 1, 1997, and ordered the competency
evaluation report to be filed on a specific date, September 12,
1997. Heath fully cooperated with the evaluation and did
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nothing to delay it or the setting of a trial date. Heath filed
the report on September 10, 1997, and made no request for a
hearing. At that time, no trial date had been set and the
results of the blood test still had not been filed. On
September 18, 1997, six months after the finding of probable
cause, the trial judge set a trial date of October 15, 1997.
Heath's motion for an evaluation contained no request for a
continuance; the order approving the evaluation granted no
continuance; and, contrary to the majority opinion's assertion,
the evaluation caused no delay in the trial. Although certain
types of defense motions inherently cause delay in the process,
see, e.g., Stephens v. Commonwealth, 225 Va. 224, 233-34, 301
S.E.2d 22, 27 (1983) (finding that when the defendant filed a
motion to suppress he was not asking for a speedy trial, but
instead wanted reasoned consideration from the judge), "[t]he
filing of motions by a defendant will not in every case justify
a delay beyond the time required by Code § 19.2-243 to bring him
to trial." Cantrell v. Commonwealth, 2 Va. App. 606, 613, 347
S.E.2d 523, 526 (1986). Certainly, Heath's conduct did not
delay this trial; it could not have done so because the orderly
process of going to trial had already been and continued to be
delayed by the Commonwealth's failure to diligently obtain and
test the blood sample.
Even if the granting of the motion could be considered a de
facto continuance, Jones and Moten do not control. We have
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unequivocally held that "[b]efore a continuance tolls the
running of time under the statute, two requirements must be met:
(1) the continuance must result in a 'failure to try the
accused' and (2) the continuance must be granted 'on motion of
the accused, or by his concurrence in such a motion by the
attorney for the Commonwealth," Nelms v. Commonwealth, 11 Va.
App. 639, 641, 400 S.E.2d 799, 801 (1991) (citation omitted), 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." Code § 19.2-243(4).
While I do not agree that this time is chargeable to Heath,
even if it were, it would not change the fact that Heath's right
to a speedy trial was violated because of delay caused by the
Commonwealth. Clearly, any time consumed during the examination
and preparation of the competency evaluation did not result in
the failure to try Heath. Heath requested, and the trial judge
ordered, a competency evaluation on August 1, 1997. Heath's
counsel received the results of that evaluation on September 6,
1997, and filed them in the court on September 10, 1997. On
September 18, 1997, the trial judge set the trial for October
15, 1997. The entire process of requesting the evaluation,
completing it, and receiving the report took place within the
time frame of the initial delay caused by the Commonwealth's
lack of diligence in obtaining the requested blood sample and
completing the testing. Heath's blood sample, which was ordered
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given in May, was not taken until August 20, 1997. Although
Heath was continuously in custody, the blood sample was not
submitted to the laboratory until August 21, 1997, more than
three months after the Commonwealth was authorized to take the
sample. The certificate of analysis of Heath's blood was not
completed until October 6, 1997, and was not filed in the trial
court until October 10, 1997. Heath's motion, therefore, could
not have tolled the statute because no trial date had been set
and the Commonwealth had not filed the certificate of analysis
with the circuit court.
Moreover, on August 1, 1997, when the trial judge ordered
the competency evaluation, the trial judge set September 12,
1997, as the deadline for the report to be filed. Heath
completed the evaluation in less than six weeks and filed the
report on September 10, 1997. Meanwhile, from the time the
Commonwealth requested the blood sample on May 6, 1997 to
October 10, 1997, when the certificate of analysis was filed,
more than five months passed.
Thus, Heath did nothing that "delayed the court in setting
the case for trial." Robbs v. Commonwealth, 252 Va. 433, 436,
478 S.E.2d 699, 701 (1996).
Although this [evaluation] benefited
[Heath], it cannot logically or factually be
said that [it] caused a delay in the
commencement of [Heath's] trial. No trial
was set which was delayed during this period
of time and this action did not prevent the
court from setting the case for trial within
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the statutory time. No attempt was made to
set a trial date during this time. The
length of the delay was within the trial
judge's sound discretion and presumably was
exercised while mindful of the requirements
of . . . Code §§ 19.2-241 and 19.2-243.
Baity, 16 Va. App. at 503-04, 431 S.E.2d at 895.
On September 18, 1997, the trial judge set a trial date of
October 15, 1997. Although the trial judge earlier could have
set a trial date, the trial judge failed to do so. The
principle is well established that prompt setting of a trial
date provides a benchmark "to insure a speedy trial, for the
benefit of the accused no less than for the Commonwealth."
Benton v. Commonwealth, 90 Va. 328, 332, 18 S.E. 282, 284
(1893). We noted the following in Nelms:
No trial date had been set and no attempt
was made to set one. . . . The order does
not reflect that the case was continued on a
motion by either party. Since the matter
had not been set for trial, neither the
accused nor the attorney for the
Commonwealth had any reason to move for a
continuance.
11 Va. App. at 641-42, 400 S.E.2d at 801. The same
circumstances prevail in this case.
"Nothing in the record shows that '[Heath's] filing of the
motion necessitated a slow-down of the judicial process' because
. . . the case had not yet been set for trial and the filing of
[the] motion did not necessitate a continuance of the trial
date." Robbs, 252 Va. at 436, 478 S.E.2d at 700. The
Commonwealth cannot fail to act diligently and then shift blame
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for its lack of diligence to the defendant. The failure to try
Heath at an earlier time undoubtedly occurred because neither
the trial judge nor the Commonwealth considered significant the
need to promptly fix a timely trial date.
Furthermore, even if we charged against Heath the time that
elapsed from the date of filing his motion to the day trial was
set, August 1 to September 18, that accounts for only forty-nine
days. Heath remained continuously in custody for 209 days from
the day the juvenile court found probable cause to believe Heath
committed the charged murder. Thus, Heath was still tried 160
days after the finding of probable cause, which is beyond the
152 and a fraction day speedy trial limit. See Code § 19.2-243.
Moreover, had the trial judge scheduled the matter for trial
before October 7, 1997, the trial would have occurred within the
statutory time period. Notably, Heath filed his competency
evaluation report on September 10 and the testing of Heath's
blood was completed October 6. The Commonwealth, however, did
not file the blood test results until October 10.
The record reflects that Heath was held continuously in
custody and, through no fault of his own, was not tried within
five months of the date of his preliminary hearing. Therefore,
I would reverse the conviction. Accordingly, I dissent.
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