Heath v. Commonwealth

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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