dissenting.
I respectfully dissent from the majority opinion.
As noted by the majority, the 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 is not considered for speedy trial purposes, Stinnie was brought to trial within the five-month period required by statute.
Under the facts of this case and the law that applied, the entire period between February 9 and April 7 is properly excluded from the provisions of Code § 19.2-243 because the delay in the trial date was provided solely for Stinnie’s benefit. Specifically, 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 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. 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. *615denied, 485 U.S. 971, 108 S.Ct. 1249, 99 L.Ed.2d 447 (1988)); Nelms v. Commonwealth, 11 Va.App. 639, 641-42, 400 S.E.2d 799, 800-01 (1991); see also 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. The majority, in adopting this view, effectively nullifies the principle of law that delay caused by the defendant is excluded from the requirements of Code § 19.2-243, and places upon the Commonwealth a continuing “statutory duty to ensure [the defendant, whose motion for a continuance has been granted, is] still tried within the appropriate time limitations.” 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, the Supreme Court of Virginia, as well as 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, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988); Shearer v. Commonwealth, 9 Va.App. 394, 402, 388 S.E.2d 828, 832 (1990).
For the reasons stated, I would affirm the appellant’s conviction.