Rice v. Commonwealth , 212 Va. 778 ( 1972 )

Per Curiam.

Herman Clarence Rice, Jr., was convicted by a jury of second degree murder and sentenced in accordance with the jury’s verdict to confinement in the State penitentiary for a period of eighteen years. Rice’s sole contention on this appeal is that the trial court erred in overruling his motion for a continuance because his counsel, Thomas W. Moss, Jr., was a member of the General Assembly of Virginia, which was in session at the time his case was tried, and he was entitled to a continuance under Code § 30-5, as amended.

The pertinent portion of Code § 30-5 reads as follows:

“Any party to an action or proceeding in any court # # # who has * * * employed or retained to represent him in such action or proceeding an attorney who is an officer, employee or member of the General Assembly * * * shall be entitled to a continuance as a matter of right during the period beginning thirty days prior to the commencement of the session and ending thirty days after the adjournment thereof # * *. The failure of any court * * * to allow such continuance when requested so to do * * * during the period hereinabove specified shall constitute reversible error * * (Emphasis added.)

The record shows that Rice’s counsel was a member of the General Assembly, which was in session when the motion for a continuance was made seven days before the trial date. The trial court denied the motion on the ground that it had not been timely made.

As a general rule, a motion for a continuance should be timely made, but there is no such limitation in the statute here involved. Under the plain language of the statute Rice was entitled to a continuance “as a matter of right,” and the failure of the trial court to grant his motion constituted reversible error.

The question of the constitutionality of the statute was first raised by the Commonwealth in this case on appeal and we will not notice it at this time.

Reversed and remanded for a new trial.