Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell and
Keenan, JJ. and Poff, Senior Justice
STEVEN JEROME JOHNSON
OPINION BY
v. Record No. 952053 SENIOR JUSTICE RICHARD H. POFF
November 1, 1996
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The principal issue framed on this appeal is whether the
accused was denied his statutory right to a speedy trial upon
remand following reversal by the Court of Appeals on an unrelated
1
issue. Because the speedy trial statute defines a breach of the
1
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; and if the accused is not held in
custody but has been recognized for his appearance in
the circuit court to answer for such offense, he shall
be forever discharged from prosecution therefor if no
trial is commenced in the circuit court within nine
months from the date such probable cause was found.
If there was no preliminary hearing in the district
court, or if such preliminary hearing was waived by the
accused, the commencement of the running of the five and
nine months periods, respectively, set forth in this
section, shall be from the date an indictment or
presentment is found against the accused.
If an indictment or presentment is found against
the accused but he has not been arrested for the offense
charged therein, the five and nine months periods,
respectively, shall commence to run from the date of his
arrest thereon.
Where a case is before a circuit court on appeal
from a conviction of a misdemeanor or traffic infraction
in a district court, the accused shall be forever
discharged from prosecution for such offense if the
trial de novo in the circuit court is not commenced (i)
right in terms of the expiration of stated time periods, we will
summarize the relevant chronology.
January 9, 1992 The General District Court of
the City of Richmond conducted
a preliminary hearing on
warrants charging Steven
Jerome Johnson with robbery
and with the use of a firearm
in the commission of robbery.
That court found probable
cause and certified the case
to the circuit court.
April 27, 1992 Convicted by a jury on both
counts and sentenced to a
total of nine years'
imprisonment, Johnson appealed
to the Court of Appeals.
December 14, 1993 A panel of the Court of
Appeals entered an order
finding "error in the
judgment" and remanding the
case "for a new trial".
March 11, 1994 Alleging denial of his
statutory right to a speedy
trial, Johnson filed a motion
to dismiss. Following a
hearing, the circuit court
denied the motion.
May 9, 1994 Johnson entered a guilty plea,
conditioned upon his right to
appeal the speedy trial issue.
The trial court imposed
within five months from the date of the conviction if
the accused has been held continuously in custody or
(ii) within nine months of the date of the conviction if
the accused has been recognized for his appearance in
the circuit court.
. . . .
But the time during the pendency of any appeal in
any appellate court shall not be included as applying to
the provisions of this section.
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sentence, and Johnson appealed
the final judgment to the
Court of Appeals.
October 24, 1995 A panel of the Court of
Appeals affirmed the trial
court's judgment. This appeal
ensued.
I.
Invoking "the last unnumbered paragraph of 19.2-243",
Johnson contends that the "running of the [five-month] statutory
period was tolled during the pendency of the appeal" and that the
"statutory period resumed on [December 14, 1993], leaving the
Commonwealth with the unexpired balance of time within which to
try the case or take other action." We disagree with that
construction of the statute.
The statute expressly provides that an accused felon must be
"forever discharged from prosecution . . . if no trial is
commenced in the circuit court within five months from the date
. . . probable cause was found by [a] district court" when the
accused has been "held continuously in custody" for that period;
if at liberty during that period, the accused will be discharged
from prosecution if "no trial is commenced . . . within nine
months from the date such probable cause was found." The same
time periods, with the same distinctions concerning custody,
apply to an accused on appeal of a district court conviction of a
misdemeanor or traffic infraction, that is, the accused must be
discharged from prosecution "if the trial de novo in the circuit
court is not commenced" before expiration of the applicable time
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period.
Code § 19.2-243 uses the word "commenced" repeatedly and
purposefully to define compliance with the time periods
prescribed as the statutory measure of the right of an accused to
a speedy trial. Nowhere does the statute, including the last
unnumbered paragraph, require that the trial, once timely
commenced, be concluded before the termination of the time
period.
This Court reached that conclusion in Butts v. Commonwealth,
145 Va. 800, 133 S.E. 764 (1926). There, the appellant argued,
as Johnson argues here, that the speedy trial statute required
that final judgment be entered before expiration of the
applicable time period. Rejecting that contention, we said:
The object of the statute is to secure a "speedy trial," and
where the accused is actually brought to trial within the
time required by the statute, but from some adventitious
cause, without fault on the part of the Commonwealth, . . .
final judgment cannot be entered during such [time], the
statute has been sufficiently complied with.
Id. at 808, 133 S.E. at 766; accord Howell v. Commonwealth, 186
2
Va. 894, 898, 45 S.E.2d 165, 166-67 (1947) .
Johnson's challenge addresses only the speedy trial statute.
Neither the Sixth Amendment of the federal Constitution nor
article 1, § 8 of the Constitution of Virginia was invoked in the
trial court or on appeal to this Court. In Barker v. Wingo, 407
2
The speedy trial statute construed in Butts and applied in
Howell, former Code § 4926, contained the same language contained
"in the last unnumbered paragraph of 19.2-243" invoked by Johnson
in support of his construction of the statute.
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U.S. 514 (1972), the Supreme Court concluded that, in the
enactment of such statutes, "[t]he States . . . are free to
prescribe a reasonable period", id. at 523, and that when
required to determine "whether a particular defendant has been
deprived of his [constitutional] right", courts should consider
"[l]ength of delay, the reason for the delay, the defendant's
assertion of his right, and prejudice to the defendant", id. at
530.
Reaffirming our construction of the statute in Butts and
Howell, we hold that when, as here, the trial of an accused has
been commenced within the applicable time period prescribed by
the Virginia statute and, on appeal, a conviction is reversed and
the case is remanded for retrial, the time for retrial rests
within the discretion of the trial court, a discretion measured
and controlled by the constitutional standards of reasonableness
and fairness explicated in Barker. Stated differently, upon
retrial following reversal on appeal, the right of an accused to
a speedy trial is governed exclusively by the constitutional
3
mandate.
II
In a second assignment of error, Johnson contends that the
3
A number of courts in other states have agreed that the time
limitations of speedy trial statutes do not apply on retrial and
that when a retrial is required, an accused must rely on the
constitutional guarantee. See e.g., Lahr v. State, 615 N.E.2d
150, 151-52 (Ind. App. 2 Dist. 1993); Carlisle v. State, 393 So.2d
1312, 1314 (Miss. 1981); Ruester v. Turner, 250 So.2d 264, 267
(Fla. 1971).
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panel of the Court of Appeals whose judgment is under review
erred in holding that it was "bound by the principle of stare
decisis to apply" an earlier ruling made by another panel in
Morgan v. Commonwealth, 19 Va. App. 637, 453 S.E.2d 914 (1995).
In Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456,
457 (1990), we said:
As used in Code § 17-116.02(C), acting independently merely
means that each panel must decide on its own the cases it
hears, not that it is free from traditional rules of
decision, such as stare decisis.
Complaining that the Burns court "did not consider the
provision in Code § 17-116.02(D)(ii)" authorizing an en banc
hearing by the Court of Appeals, Johnson characterizes our
statutory interpretation as dictum. The Court of Appeals has
repeatedly applied our interpretation as a rule of law. See
Rocco Turkeys, Inc. v. Lemus, 21 Va. App. 503, 510, 465 S.E.2d
156, 160 (1996); In Re Baskins, 16 Va. App. 241, 245, 430 S.E.2d
555, 558 (1993), rev'd on other grounds sub nom. Jamborsky v.
Baskins, 247 Va. 506, 442 S.E.2d 636 (1994). Hall v.
Commonwealth, 14 Va. App. 892, 894 n.2, 421 S.E.2d 455, 457 n.2
(1992).
Reaffirming our statutory interpretation in Burns we hold
that a decision of a panel of the Court of Appeals becomes a
predicate for application of the doctrine of stare decisis until
overruled by a decision of the Court of Appeals sitting en banc
or by a decision of this Court. Finding no error below, we will
affirm the judgment.
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Affirmed.
JUSTICE LACY, with whom JUSTICE KEENAN joins, concurring.
I write separately because, while the majority's disposition
resolves the case, its rationale does not address the principal
issue raised by the defendant in this appeal.
Steven Johnson has consistently based his claim that he was
denied a speedy trial on his interpretation of the final sentence
of Code § 19.2-243, the speedy trial statute. That sentence
provides:
But the time during the pendency of any appeal in any
appellate court shall not be included as applying to
the provisions of this section.
Johnson asserts that when his first trial began, approximately
one month and 14 days of the five-month period prescribed by the
statute remained unused. Johnson construes the quoted portion of
the statute as "tolling" the running of this unused period until
December 14, 1993, when the Court of Appeals reversed his
conviction and remanded the case for a new trial. At that point,
under Johnson's theory the tolling ceased and the Commonwealth
was required to commence his second trial within the unused one
month and 14 days. Because his second trial did not commence
within that period, he concludes that the speedy trial statute
was violated and the charges against him must be dismissed.
The lynchpin of Johnson's argument is that if the time
periods established in the speedy trial act only apply to the
commencement of his initial trial, as the Court of Appeals
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concluded, the reference in the statute to time elapsed "during
the pendency of any appeal" is meaningless. I disagree with
Johnson.
The Court of Appeals construed the sentence in question as
applying only to pre-trial appeals. This sentence was added to
the speedy trial statute in 1894. Acts of Assembly, 1893-94, p.
464. Although there were no specific statutory procedures for
pretrial appeals at that time, defendants nevertheless pursued
appeals prior to the commencement of the first trial. See e.g.
Saunders v. Commonwealth, 79 Va. 522, 523 (1884) (appeal of
denial of double jeopardy plea dismissed when case had not
"progressed further than the order of the court rejecting the
second plea tendered by the defendant"). Furthermore, in its
very next session 1895-96, the General Assembly enacted
legislation providing statutory procedures for pretrial appeals
in certain situations. Acts of Assembly, 1895-96, p. 365-66.
Construing the statute as suggested by Johnson and thereby
allowing dismissal of criminal charges under these circumstances
is not required in order to provide a defendant with the
protection of a speedy trial, and I cannot ascribe such an intent
to the General Assembly. The Court of Appeals' interpretation of
the statute imposes statutory periods that guarantee a timely
commencement of a defendant's first trial, and leaves evaluation
of the timeliness of second and subsequent trials to the
standards developed under the state and federal constitutions.
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See Barker v. Wingo, 407 U.S. 514 (1972).
Although this Court has not addressed the specific issue
presented in this appeal, we have previously stated that the
statutory requirement for a speedy trial is satisfied if the
trial is commenced within the requisite period. Butts v.
Commonwealth, 145 Va. 800, 133 S.E. 764 (1926) (statute satisfied
although trial court's final judgment not entered within the
statutory period). The Court of Appeals' construction of the last
paragraph of the statute is consistent with this statement and is
the proper interpretation of § 19.2-243. Therefore, for the
reasons stated, I concur in the disposition reached by the
majority.
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