COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia
ANTONIO MAURICE ROBINSON
OPINION BY
v. Record No. 1693-97-2 JUDGE JERE M. H. WILLIS, JR.
AUGUST 11, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
(James L. Banks, Jr.; Maloney, Huennekens,
Parks, Gecker & Parson, on brief), for
appellant.
Richard Barton Campbell, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his convictions of abduction and rape,
Antonio Maurice Robinson contends that the trial court erred in
denying his motion to dismiss the indictments on the ground that
he was denied his statutory right to a speedy trial. 1 We find no
error and affirm the judgment of the trial court.
I.
BACKGROUND
On November 21, 1996, the general district court found
probable cause and certified charges of rape and abduction to the
grand jury. On January 6, 1997, the grand jury indicted Robinson
1
Robinson does not contend that he was denied his right to a
speedy trial under the United States Constitution or the Virginia
Constitution. See U.S. Const. amend. VI; Va. Const. art. I, § 8.
Therefore, we confine our analysis to the application of Code
§ 19.2-243.
on those charges. The charges were scheduled for trial on
January 22, 1997.
On January 22, 1997, upon joint motion of the Commonwealth
and Robinson, the trial court continued the case to February 13,
1997. On February 13, 1997, on the Commonwealth's motion and
with Robinson making no objection, the trial court continued the
case to March 28, 1997. On March 27, 1997, on the Commonwealth's
motion and over Robinson's objection, the trial court continued
the case to April 25, 1997. On April 25, 1997, on Robinson's
motion, the trial court continued the case to May 15, 1997. On
May 15, 1997, on Robinson's motion, the trial court continued the
case to May 23, 1997, when trial commenced. Throughout the
proceedings, Robinson was held continuously in custody.
Prior to trial, Robinson moved to dismiss the charges on the
ground that the Commonwealth failed to commence his trial within
the statutorily-required time. The trial court denied this
motion and convicted Robinson of rape and abduction.
II.
COMPUTATION OF THE STATUTORY PERIOD
Code § 19.2-243 provides, in pertinent part:
Where a general district court has found that
there is probable cause to believe that the
accused has committed a felony, the accused,
if he is held continuously in custody
thereafter, shall be forever discharged from
prosecution for such offense if no trial is
commenced in the circuit court within five
months from the date such probable cause was
found by the district court . . . .
The provisions of this section shall not
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apply to such period of time as the failure
to try the accused was caused:
* * * * * * *
4. By continuance granted on the motion of
the accused or his counsel, or by concurrence
of the accused or his counsel in such a
motion by the attorney for the Commonwealth,
or by the failure of the accused or his
counsel to make a timely objection to such a
motion by the attorney for the Commonwealth,
. . . .
Under Code § 19.2-243, the Commonwealth must commence trial
within five months, which "translates to 152 and a fraction
days." Ballance v. Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d
401, 403 (1995). The five-month period begins to run on the day
after the preliminary hearing at which probable cause is found.
Randolph v. Commonwealth, 22 Va. App. 334, 335, 470 S.E.2d 132,
133 (1996). Any delays that are chargeable to the defendant are
subtracted from the total number of days that elapse from the day
after the finding of probable cause to the commencement of trial.
If the time thus calculated exceeds 152 and a fraction days, the
defendant "shall be forever discharged from prosecution for such
offenses." Code § 19.2-243.
Our inquiry involves "a review of the whole record and
consideration of the trial court orders in the context of the
record that comes before us." Baity v. Commonwealth, 16 Va. App.
497, 503, 431 S.E.2d 891, 895 (1993) (en banc). Strict adherence
to the statutory time requirement is tempered by the provisions
setting forth specific circumstances excusing the Commonwealth's
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failure to bring an accused to trial within the prescribed time.
However, "it is the prosecution which has the responsibility of
vindicating society's interests in swift and certain justice,"
Fowlkes v. Commonwealth, 218 Va. 763, 766, 240 S.E.2d 662, 664
(1978) (footnote omitted), and the burden of demonstrating that a
delay in commencing trial is excused under Code § 19.2-243 lies
upon the Commonwealth. Godfrey v. Commonwealth, 227 Va. 460,
463, 317 S.E.2d 781, 782 (1984).
III.
ANALYSIS OF THE CONTINUANCES
The five-month statutory period began to run in this case on
November 22, 1996, the day after the general district court found
probable cause that Robinson committed the felonies. Thus,
absent excusable delay, the Commonwealth was required to commence
trial on or before April 22, 1997. Because Robinson's trial was
not commenced until May 23, 1997, thirty-one days after the
statutorily-fixed date, we examine each of the five continuances
to determine whether the Commonwealth has shown that the delay
was excused under the statute.
(1) On January 22, 1997, Robinson and the Commonwealth's
attorney moved jointly for a continuance. The trial court
granted their motion and continued the case to February 13, 1997.
This continuance, granted upon Robinson's motion, tolled the
statutory period. Code § 19.2-243(4). Thus, as Robinson
concedes, the twenty-two day delay caused by this continuance is
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chargeable to him. See Shearer v. Commonwealth, 9 Va. App. 394,
400, 388 S.E.2d 828, 830-31 (1990).
(2) On February 13, 1997, upon the Commonwealth's motion and
without objection by Robinson, the trial court continued the case
to March 27, 1997. This delay consumed forty-two days. Robinson
contends that this delay should be charged to the Commonwealth.
In Pittman v. Commonwealth, 10 Va. App. 693, 395 S.E.2d 473
(1990), we held that a continuance granted to the Commonwealth
without objection by the defendant did not toll the statutory
time period. Id. at 695, 395 S.E.2d at 474. We noted as
follows:
In Flanary [v. Commonwealth, 184 Va. 204, 35
S.E.2d 135 (1945),] the Supreme Court stated:
"We have found no case in Virginia which
holds that the accused waives his right [to a
speedy trial] simply by failing to oppose a
motion for a continuance made by the
Commonwealth." When the accused and his
attorney do not object to a continuance, it
is not the same as the accused being a
proponent of the continuance. In Fowlkes v.
Commonwealth, 218 Va. 763, 240 S.E.2d 662
(1978), the Supreme Court reaffirmed Flanary.
In Fowlkes, the Court noted that the rule
that a defendant can stand mute without
waiving his right to a speedy trial was
established in Virginia law almost thirty
years prior to Barker v. Wingo, 407 U.S. 514
(1972). In Virginia, one does not relinquish
constitutional rights by mere silence; there
must be an affirmative act.
Id. (citations omitted).
However, in 1995, the General Assembly amended Code
§ 19.2-243(4), and provided that the statutory period shall be
tolled by "the failure of the accused or his counsel to make a
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timely objection to such a [continuance] motion by the attorney
for the Commonwealth . . . ." 1995 Va. Acts cc. 37, 352.
Robinson made no timely objection to the Commonwealth's motion or
to the granting of that motion by the trial court. Accordingly,
the delay resulting from this continuance is charged to Robinson.
(3) As the Commonwealth concedes, the third continuance
granted by the trial court from March 27, 1997, to April 25,
1997, did not toll the statute. The Commonwealth moved for the
continuance and Robinson objected.
(4) The fourth and fifth continuances were granted on
Robinson's motion and facially are chargeable to him. Thus, the
resulting twenty-eight day delay is attributable to Robinson.
Code § 19.2-243 states unequivocally that "[t]he provisions of
this section shall not apply to such period of time as the
failure to try the accused was caused: . . . [b]y continuance
granted on the motion of the accused or his counsel." See
Stinnie v. Commonwealth, 22 Va. App. 726, 473 S.E.2d 83 (1996)
(en banc) (holding that delays granted an accused for trial
preparation "are not inherent in the orderly process of fixing a
trial date and will extend the statutory time limitation for the
commencement of the trial").
Robinson argues that need for the April and May continuances
was imposed upon him because the Commonwealth failed to transport
to trial a defense witness held in a detention facility. We
agree that prosecutorial efforts intended to hinder or impede the
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operation of an accused's right to a speedy trial will not be
tolerated. Cf. Fowlkes, 218 Va. at 767, 240 S.E.2d at 664.
However, beyond Robinson's bald assertions in his motion to
dismiss, the record makes no disclosure of the circumstances
under which Robinson sought the two continuances. The record
contains no showing that the defense witness was, in fact, not
present, or, if not, why he was not present. The record contains
no showing as to what efforts, if any, Robinson made to secure
the appearance of the witness before moving for a continuance.
The record contains no showing as to why the motions were
granted. The transcript of the proceedings on Robinson's motion
to dismiss contains no showing as to why Robinson made the
motions to continue. A court speaks through its written orders.
Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773
(1964). The relevant orders state simply that Robinson's motions
for continuances were granted. Those orders were endorsed by
Robinson's counsel.
While the Commonwealth must prove that a given delay was
excusable under the statute, the appellant has the responsibility
of providing us with an adequate record. See Ferguson v.
Commonwealth, 10 Va. App. 189, 194, 390 S.E.2d 782, 785, aff'd in
part, rev'd in part on other grounds, 240 Va. ix, 396 S.E.2d 675
(1990). The record establishes that the orders granting the
fourth and fifth continuances were entered upon Robinson's
motions and that the Commonwealth objected to the second of those
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motions. Thus, the resulting twenty-eight day delay is
chargeable to him.
The Commonwealth commenced trial against Robinson 183 days
after the general district court made its finding of probable
cause. Ninety-two days of that period are chargeable to
Robinson. Thus, only ninety-one days chargeable to the
Commonwealth expired from the finding of probable cause in the
general district court to the commencement of trial. Code
§ 19.2-243 was satisfied. The judgment of the trial court is
affirmed.
Affirmed.
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