Stevenson Lee Shifflett v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia
STEVENSON LEE SHIFFLETT
MEMORANDUM OPINION * BY
v. Record No. 0645-97-2 JUDGE JAMES W. BENTON, JR.
MAY 5, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Jay T. Swett, Judge
Edward H. Childress for appellant.
Leah A. Darron, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
A jury convicted Stevenson Lee Shifflett of malicious
wounding in violation of Code § 18.2-51. He contends on this
appeal that his statutory and constitutional rights to a speedy
trial were violated because he was not tried within five months
of the preliminary hearing on the charge of assault and battery
of a household member in violation of Code § 18.2-57.2. For the
reasons that follow, we affirm the conviction.
I.
The evidence in the record and the statement of facts prove
that Shifflett was arrested June 27, 1996, on the charge of
felony assault and battery, as a third offense, for an incident
that occurred on May 28, 1996. See Code § 18.2-57.2.
Shifflett's application for bail was denied. At a preliminary
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
hearing on July 12, 1996, a judge of the Charlottesville Juvenile
and Domestic Relations District Court certified the charge.
Because of an administrative error, Shifflett was released
from jail following the preliminary hearing. However, Shifflett
was again arrested two days after his release on a new charge of
felony assault and battery as a third or subsequent offense; he
was charged with assaulting the same person during his release
that he was charged with assaulting on May 28. Shifflett's
application for bail was again denied.
On August 19, 1996, a grand jury indicted Shifflett on a
charge of malicious wounding in violation of Code § 18.2-51 for
conduct occurring on May 28, 1996. The same grand jury also
indicted him on two charges of felony assault and battery, as
third or subsequent offenses, in violation of Code § 18.2-57.2,
for conduct occurring on May 28, 1996, and July 14, 1996. Prior
to trial, an order of nolle prosequi was entered on the
indictment charging felony assault and battery for conduct on
July 14, 1996. Claiming a violation of his right to a speedy
trial under Code § 19.2-243, Shifflett filed a written pretrial
motion on December 16, 1996, to dismiss the malicious wounding
charge and made an oral motion at the hearing to dismiss the
remaining felony assault charge. The circuit judge denied the
motions.
On January 3, 1997, Shifflett was tried by a jury on the
charges of malicious wounding and felony assault and battery, as
- 2 -
a third offense. By agreement of counsel, the indictment
alleging assault and battery as a third offense was submitted to
the jury as a lesser and included offense of the malicious
wounding offense. The jury convicted Shifflett of malicious
wounding and fixed his sentence at ten years in prison. The
trial judge dismissed the felony assault and battery charge "as
being encompassed within the malicious wounding charge that
[Shifflett] was found guilty of by the jury." The trial judge
later suspended one year and six months of the ten-year sentence.
II.
An accused, who is held "continuously in custody" must be
brought to trial within five months from the date of his
preliminary hearing or, if there was no preliminary hearing,
within five months from the date of indictment. Code § 19.2-243.
Shifflett's pretrial motion to dismiss the charge of
malicious wounding because of a violation of Code § 19.2-243 was
not well founded. The evidence proved that the grand jury issued
its indictment August 19, 1996. Shifflett was tried on January
3, 1997, which was within five months of the date the indictment
was issued by the grand jury.
Shifflett orally moved to bar his trial on the felony
assault and battery charges on the ground that his speedy trial
rights were violated. Although the record does not contain the
specifics of that motion, the trial judge's order "denie[d] this
motion on statutory and constitutional grounds." However, to the
- 3 -
extent that Shifflett now alleges error from the trial judge's
failure to dismiss the felony assault and battery charge, that
issue is now moot because no conviction was had on that charge.
The jury only convicted Shifflett of malicious wounding.
Contrary to Shifflett's suggestion, we cannot say from this
record that the Commonwealth sought the indictment on the
malicious wounding charge to avoid Shifflett's claim of a speedy
trial violation on the assault charge. The malicious wounding
indictment was obtained a month after the preliminary hearing on
the assault and battery charge. Ample time remained to try the
charges within the statutory range.
Moreover, although both charges were tried together, the
offenses are not necessarily lesser-included offenses of each
other. See Walker v. Commonwealth, 14 Va. App. 203, 206, 415
S.E.2d 446, 448 (1992) (noting that "[a]n offense is not a lesser
included offense of another if each offense contains an element
that the other does not"). To the extent that the charges
require proof of different elements, they are not essentially the
same. The decision that was made at trial to charge the jury
that the assault charge was a lesser-included offense of the
malicious wounding offense was the result of an agreement between
Shifflett's counsel and the Commonwealth's attorney.
Accordingly, we do not view that action as an implicit ruling by
the trial judge that the charges were the same offense.
For these reasons, we affirm the judgment.
- 4 -
Affirmed.
- 5 -