COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Hodges
Argued by teleconference
WILLIAM R. BLAIR
MEMORANDUM OPINION * BY
v. Record No. 2550-98-1 JUDGE WILLIAM H. HODGES
MAY 30, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Timothy G. Clancy (Moschel, Gallo & Clancy,
L.L.C., on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
William R. Blair, appellant, was convicted of first-degree
murder. On appeal, he argues that his statutory right to a speedy
trial was violated. We disagree with appellant and affirm the
conviction.
FACTS
Appellant's preliminary hearing was held on January 13,
1997. Appellant's trial was held on July 16, 1998, resulting in
a 549-day delay. The first trial date was set for March 20,
1997. On March 4, 1997, appellant moved to undergo a
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
psychological evaluation to determine whether he was competent
to stand trial, and the trial court granted the motion.
On March 20, 1997, the trial court granted appellant's
request for a continuance because the psychological evaluation
had not been completed. On May 15, 1997, the trial court
received the first psychological evaluation, which indicated
that appellant needed further evaluation. On May 19, 1997, the
trial court granted appellant's request for a continuance, and
the matter was continued until June 6, 1997 to determine the
status of the evaluation.
On June 6, 1997, the court granted appellant's motion to
continue the case, and the matter was continued until July 28,
1997. On July 28, 1997, the trial court ordered further
psychological evaluation to determine appellant's competency to
stand trial. Also on this date, the court granted appellant's
motion to continue, and the case was continued until September
5, 1997 to determine the status of the evaluation. On September
5, 1997, on joint motion of the parties, the case was continued
to October 9, 1997. On October 9, 1997, the parties agreed to a
continuance until November 19, 1997.
On November 18, 1997, the trial court received the second
psychological evaluation, which indicated that appellant was
incompetent to stand trial. On November 19, 1997, the trial
court granted the Commonwealth's request for a continuance to
November 24, 1997, and appellant did not object to the
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continuance. At a hearing held on November 24, 1997, the trial
court found appellant incompetent to stand trial and ordered
hospital treatment in an effort to restore him to competency.
The trial court also set April 6, 1998 as the date on which to
check the status of the evaluation. On January 9, 1998, the
trial court entered the order for hospital treatment.
On January 13, 1998, the trial court received a
psychological evaluation indicating that appellant had been
restored to competency. On April 6, 1998, the trial court set a
trial date of July 16, 1998. At the July 16, 1998 trial,
appellant moved to dismiss on the ground that his right to a
speedy trial had been violated. See Code § 19.2-243. The trial
court denied the motion.
ANALYSIS
The provisions of Code § 19.2-243 relevant to this case
require that appellant's trial commence within "152 and a
fraction days" from the date of the preliminary hearing. Moten
v. Commonwealth, 7 Va. App. 438, 441, 374 S.E.2d 704, 706
(1988).
"Code § 19.2-243(4) makes clear that continuances requested
or concurred in by a defendant are excepted from the time for
computing compliance with bringing an accused to trial."
Shearer v. Commonwealth, 9 Va. App. 394, 402, 388 S.E.2d 828,
832 (1990).
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The parties agree that the time period between January 13,
1997, the date of the preliminary hearing, and March 4, 1997,
the date the trial court entered the order for a psychological
evaluation, resulted in a fifty-day delay and is chargeable to
the Commonwealth. The parties agree that the time period
between March 4, 1997 and January 13, 1998, the date the trial
court received the psychological evaluation indicating that
appellant was restored to competency, resulted in a 315-day
delay and is chargeable to appellant.
Appellant argues that the delay involved from January 13,
1998 to April 6, 1998, the date the trial court set to check the
status of appellant's competency evaluation, an eighty-three day
delay, is not chargeable to appellant. Appellant also contends
that the 101-day delay from April 6, 1998 to the date of the
trial, July 16, 1998, is not chargeable to appellant.
At the hearing held on November 24, 1997, the trial court
found appellant incompetent to stand trial. The record contains
no written court order addressing the continuance of the case
until April 6, 1998. However, the transcript from the November
24, 1997 hearing indicates that both appellant and the
Commonwealth agreed to the April 6, 1998 date to determine the
status of appellant's competency evaluation.
Initially, the Commonwealth suggested setting a date about
six months from November, 1997 in order to determine the status
of the evaluation. Appellant's counsel then represented to the
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trial court, "So if we hear from them earlier, Your Honor, we
will bring it back on the docket." The trial judge said,
"Right. We need a date about six months away." Appellant's
counsel replied, "Yes, Your Honor." The trial court suggested
April 6, 1998, and appellant's counsel asked, "Is that at 9:00
a.m., Your Honor?" The trial judge responded, "Nine o'clock."
Therefore, although on January 13, 1998 the trial court
received the psychological evaluation indicating that appellant
was restored to competency, because appellant concurred in
setting the April 6, 1998 date to determine appellant's status,
the eighty-three day time period from January 13, 1998 to April
6, 1998 is chargeable to appellant.
Furthermore, the cover letter dated January 12, 1998 and
attached to the psychological evaluation indicates that a copy
of the cover letter was mailed to appellant's counsel. This
letter recommended that appellant was competent to stand trial.
Appellant does not dispute that his counsel received this
letter. However, appellant did not bring the case "back on the
docket" prior to April 6, 1998 as he indicated to the trial
court he would do "if [they] hear[d] from [the evaluators]
earlier." Cf. Jefferson v. Commonwealth, 23 Va. App. 652, 657,
479 S.E.2d 80, 82 (1996) ("When 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.").
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When the eighty-three day time period is added to the other
315-day delay chargeable to appellant, 398 days of delay are
chargeable to appellant. When this period of time is excluded
from the total 549-day delay period, appellant's trial was
commenced within 151 days of the preliminary hearing. 1
Therefore, there was no speedy trial violation. Accordingly,
the trial court did not err in denying appellant's motion to
dismiss on the statutory speedy trial ground.
The judgment of the trial court is affirmed.
Affirmed.
1
Because we find that the trial commenced within 151 days
of the preliminary hearing, we need not address the remaining
101-day delay.
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