COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton, Coleman, Willis,
Elder, Bray, Fitzpatrick, Annunziata and Overton
Argued at Richmond, Virginia
JAMES THOMAS STINNIE, JR.
OPINION BY
v. Record No. 0706-94-2 JUDGE ROSEMARIE ANNUNZIATA
JULY 23, 1996
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Jay T. Swett, Judge
Richard A. DeLoria for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
By opinion issued February 6, 1996, a panel of this Court
reversed the conviction for statutory burglary of James Thomas
Stinnie, Jr. on the ground that the Commonwealth failed to
commence the trial of his case within five months of finding
probable cause, in violation of Code § 19.2-243. Stinnie v.
Commonwealth, 21 Va. App. 610, 466 S.E.2d 752 (1996). A
rehearing en banc was granted to determine whether the delay in
the commencement of Stinnie's case is properly attributable to
Stinnie under the speedy trial statute. We conclude that the
delay was attributable to Stinnie and affirm his conviction.
Code § 19.2-243 provides, in 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
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 . . . .
The district court determined probable cause existed on October
14, 1993. Stinnie's original trial date was set for February 9,
1994. In late January, Stinnie requested additional time to
prepare his case after he was permitted to dismiss his
court-appointed counsel. At that time, he did not request a
specific trial date or a continuance for any particular period of
time. On February 2, 1994, the trial court heard argument on
Stinnie's motion and continued the case until docket call on
February 22, 1994, which was the court's term day. On term day,
the trial court scheduled Stinnie's new trial date for April 7,
1994.
Both parties agreed that the time between Stinnie's original
trial date of February 9 and the date of the docket call,
February 22, 1994, was chargeable to Stinnie and that the
critical time for the purpose of deciding the speedy trial issue
is the period from February 22 to April 7. If that time period
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is not considered for speedy trial purposes, Stinnie was brought
to trial within the five-month period required by the statute.
If that period is considered, on the theory that the continuance
lasted only until February 22, Stinnie's trial was held twelve
days beyond the last possible day to try him under the speedy
trial statute.
Under the facts of this case, we hold that the period
between February 9 and April 7 is properly excluded from the
provisions of Code § 19.2-243. We are not persuaded by the
argument that Stinnie's motion for continuance lasted only until
term day, February 22, a day on which the trial court clearly
would not have intended to conduct trial.
The delay in the commencement of trial was provided solely
for Stinnie's benefit. The failure to try Stinnie in accordance
with Code § 19.2-243 resulted from his motion for time to prepare
for trial pro se after dismissing counsel. Unlike a continuance
granted to an individual accused of a felony to initially obtain
counsel, a continuance of a trial previously set, requested by
the accused to prepare for trial, benefits only him. Such delays
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. See Baity v. Commonwealth, 16 Va.
App. 497, 507, 431 S.E.2d 891, 897 (1993) (citing Townes v.
Commonwealth, 234 Va. 307, 362 S.E.2d 650 (1987), cert. denied,
485 U.S. 971 (1988)); Nelms v. Commonwealth, 11 Va. App. 639,
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641-42, 400 S.E.2d 799, 800-01 (1991); Cantwell v. Commonwealth,
2 Va. App. 606, 609-13, 347 S.E.2d 523, 524-27 (1986).
Stinnie contends that, notwithstanding his motion for a
continuance, he did not waive his right to a speedy trial and
that any delay in rescheduling the trial to a date beyond that
imposed by the requirements of Code § 19.2-243 is a violation of
that right. However, adoption of Stinnie's position would
effectively nullify the principle of law that delay caused by the
defendant is excluded from the requirements of Code § 19.2-243,
and would place upon the Commonwealth a continuing duty to ensure
a trial within the appropriate time limitations to a defendant
whose motion for a continuance has been granted. This position
is supported neither by the statute nor the relevant case law.
Code § 19.2-243 expressly excludes the application of its
provisions to "such period of time as the failure to try the
accused was caused . . . [b]y continuance granted on [the
accused's] motion." Based on that statute, both the Supreme
Court of Virginia and this Court have held that where 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. O'Dell v. Commonwealth, 234 Va. 672, 681, 364 S.E.2d 491,
496, cert. denied, 488 U.S. 871 (1988); Shearer v. Commonwealth,
9 Va. App. 394, 402, 388 S.E.2d 828, 832 (1990).
Accordingly, Stinnie's conviction is affirmed.
Affirmed.
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Elder, J., with whom Benton, J., joins, dissenting.
For the reasons stated in the majority opinion of the panel
decision I would reverse appellant's conviction.
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