COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
CALVIN FILES
v. Record No. 0896-94-1 MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA OCTOBER 10, 1995
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
E. Everett Bagnell, Judge
Robert O'Neill, Public Defender, for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Calvin Files (appellant) appeals from judgments of the
Circuit Court of Southampton County (trial court) that approved a
jury verdict convicting him of robbery and attempted capital
murder. In this appeal, he contends that the trial court erred
when it failed to grant his motion to modify two trial court
orders entered respectively on August 9 and October 19, 1993, and
that the trial court further erred when it denied his motion to
dismiss both charges based upon a claim that he was not brought
to trial within the limitation set by Code § 19.2-243, generally
referred to as the speedy trial statute. Because sufficiency of
the evidence is not an issue, we refer only to the facts relating
to the speedy trial and the contents of the two orders.
____________________
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Appellant was arrested on April 12, 1993. At a preliminary
hearing held on June 21, 1993, probable cause was found. On July
19, 1993, appellant was indicted, charged with robbery and
attempted capital murder, whereupon trial was set without a jury
for September 2, 1993. From the date of the preliminary hearing,
appellant has remained in custody.
At his arraignment on July 28, 1993, appellant pled not
guilty and advised the court that he desired to be tried by a
jury. At that time, appellant was being represented by the
Public Defender who had sent his assistant to represent appellant
at arraignment. Neither the prosecutor nor the Public Defender's
assistant could affirm a specific trial date at that time. The
prosecutor advised the trial court that he would call the Public
Defender later that afternoon and give him the available dates.
The trial court responded, acknowledging to appellant that the
cases "will be set for trial by jury, . . ., at a date to be
determined later today with the concurrence of your attorney."
The Assistant Public Defender told the court that she would
inform the Public Defender.
On August 9, 1993, the trial court entered an order
documenting the events occurring at the arraignment, a portion of
which provided that "after having first been advised by his
attorney and the Court of his right to trial by a jury and with
the concurrence of the Attorney for the Commonwealth and the
Court . . . this case is continued on the motion of the defendant
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from the 28th day of July, 1993, to the 20th day of September,
1993, at which time this case will be set for trial by a jury and
continued to a new date on motion of defendant." At the time,
appellant made no objection to the entry of that order and no
motion to alter its content. By agreement, the matter was set to
be heard by a jury on October 7, 1993.
On October 7, 1993, the matter was again continued. The
victim had been subpoenaed by the Commonwealth but did not appear
due to trial date confusion. The Commonwealth moved for a
continuance to which appellant's counsel replied, "Under these
circumstances * * * we would concur * * * I don't object." The
attorneys agreed that the cases would be continued until the
current jury panel's term ended on November 15, 1993, and the new
panel was assembled. Counsel for appellant stated, "I
specifically concur with that."
On October 19, 1993, the trial court again documented the
events of October 7, 1993, by entering an order reciting that the
case was being continued to November 15, 1993 on the motion of
the Commonwealth, "at which time the case will again be set for
trial by a jury and continued to a new date on motion of the
defendant." On November 15, 1993, the case was set to be tried
on January 6, 1994. Again, there was no objection made to the
entry of that order or a motion to alter it.
On December 27, 1993, appellant moved to have the charges
dismissed with prejudice on speedy trial grounds provided by Code
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§ 19.2-243. On January 6, 1994, appellant moved that arguments
on the motion be continued to January 25, 1994 to allow time to
prepare transcripts of prior proceedings and thereafter to March
10, 1994 in the event his motion be denied. On March 3, 1994,
appellant filed additional motions asking that the August 9, 1993
and October 19, 1993 orders be modified to delete references that
the continuances were on his motions or with his concurrence. On
March 10, 1994, the trial court denied all of appellant's motions
and trial on both charges was held, resulting in the convictions
which are the basis for this appeal.
In relevant part, Code § 19.2-243 provides:
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:
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,
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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.
The exceptions contained in that Code section are not meant
to be all inclusive, but others of a similar nature may be
implied. Stephens v. Commonwealth, 225 Va. 224, 230, 301 S.E.2d
22, 25 (1983).
I. The Orders
Appellant argues that the orders entered respectively on
August 9, 1993 and October 19, 1993 did not accurately contain
the events that occurred with regard to motions for, or
concurrence with, the several continuances. He filed no motion
to modify those orders until March 3, 1994. "'Where a defendant
does not object to the accuracy of an order within 21 days after
its entry, an appellate court may presume that the order, as the
final pronouncement on the subject, rather than a transcript that
may be flawed by omissions, accurately reflects what
transpired.'" Thomas v. Commonwealth, 16 Va. App. 851, 861, 434
S.E.2d 319, 325 (1993) (quoting Stamper v. Commonwealth, 220 Va.
260, 280-81, 257 S.E.2d 808, 822 (1979), cert. denied, 445 U.S.
972 (1980)). At appellant's request, the trial court reviewed
the transcripts and, after hearing and considering all the
evidence, denied the motions, thereby finding that the orders
accurately reflected that appellant had either moved for or
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concurred with the trial delays, and that nothing in the
transcripts justified changing the findings contained therein.
We find no error in the trial court's refusal to modify the
August 9, 1993 and October 19, 1993 orders.
II. Speedy Trial
Code § 19.2-243 requires that the trial of an accused who
remains incarcerated must commence within five months after the
preliminary hearing at which probable cause was found. O'Dell v.
Commonwealth, 234 Va. 672, 681, 364 S.E.2d 491, 496, cert.
denied, 488 U.S. 871 (1988). That Code section is the
legislature's interpretation of what constitutes a "speedy trial"
as that term is used in the Bill of Rights. Flanary v.
Commonwealth, 184 Va. 204, 208, 35 S.E.2d 135, 137 (1945). In
this case, appellant's trial began 262 days after a finding of
probable cause; therefore, appellant asserts that his trial did
not commence within the period provided by Code § 19.2-243. For
the reasons that follow, because appellant either moved for or
concurred with the several continuances, we hold that at least
154 days should be excluded from consideration of Code
§ 19.2-243, see Corey v. Commonwealth, 8 Va. App. 281, 284, 381
S.E.2d 19, 20 (1989), and thus, no violation occurred.
The order entered on October 19, 1993 reflects that on
October 7, 1993, appellant moved that the trial of the case be
continued to November 15, 1993. Appellant concedes he concurred
in this continuance, resulting in a 39-day delay not chargeable
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to the Commonwealth. However, appellant asserts that the 52-day
period between November 15, 1993 and January 6, 1994 must be
counted as delay time to the Commonwealth. We disagree. The
record discloses that when the case was continued from October 7,
1993, it was mutually agreed that the new trial date was to be on
a "date subsequent to the next term day of court" to be selected
by agreement of the parties who would then advise the court so
that an appropriate order could be prepared reflecting the
agreement. Appellant "specifically concur[red] with that"
procedure; therefore, that 52-day delay is also not chargeable to
the Commonwealth.
In December 1993, appellant moved that the charges against
him be dismissed pursuant to the provisions of Code § 19.2-243.
On January 6, 1994, appellant moved the trial court to continue
the matter to January 25, 1994 for argument on his motion to
dismiss, and further moved that in the event the trial court
denied his motion, trial on the charges be continued further to
March 10, 1994. Appellant's "speedy trial" motion was denied and
he was tried and convicted on March 10, 1994, 262 days after
probable cause had been found.
The Commonwealth was required to commence trial on the
charges within five months of a finding of probable cause, which
in this case was 153 days, unless the time for trial could be
extended by reasons of the exceptions contained in Code
§ 19.2-243. The record discloses that by appellant's various
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motions for or concurrence with motions to continue, a 154-day
delay must be deducted from the 262 days of delay when
determining whether Code § 19.2-243 barred this prosecution. The
result is clear that applying the exceptions contained in that
Code section, appellant's trial was commenced within 108 days and
that there was no violation of Code § 19.2-243.
Accordingly, for the reasons stated, the judgments of the
trial court are affirmed.
Affirmed.
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