William L. Harris v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
WILLIAM L. HARRIS
v. Record No. 1998-94-1 OPINION BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA DECEMBER 12, 1995
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge
Michael D. Eberhardt for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his convictions of conspiracy to distribute
cocaine and possession of cocaine with the intent to distribute,
William L. Harris contends he was denied his statutory right to a
speedy trial. See Code § 19.2-243. We disagree and affirm the
judgments of the trial court.
On July 27, 1992, without having previously been arrested
thereon, Harris was directly indicted on charges of possession of
cocaine with intent to distribute and conspiracy to distribute
cocaine. He was arrested on September 27, 1992. On October 13,
1992, he was released on bail. From October 22, 1992 until July
30, 1993, his trial was continued six times on his motion.
On July 27, 1993, Harris was arrested in New Jersey. On
December 7, 1993, he was extradited and returned to Virginia and
his trial was set for March 23, 1994. Over Harris's objection,
the Commonwealth was granted a continuance because two witnesses
failed to appear. The trial court set the trial for May 5, 1994.
Because defense counsel was unavailable on that date due to a
previously scheduled court date, the trial court changed the
trial date to May 12, 1994, and, over defense objection, ruled
that the continuance from May 5 to May 12 was on Harris's motion.
On May 12, Harris requested a continuance until July 7, 1994.
Code § 19.2-243, in effect at the time of the proceedings,
provides, in pertinent part, as follows:
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 . . . within five
months from the date such probable cause was
found . . . ; and if the accused is not held
in custody but has been recognized for his
appearance . . . , he shall be forever
discharged . . . if no trial is commenced
. . . within nine months . . . .
* * * * * * *
If an indictment . . . is found against
the accused but he has not been arrested for
the offense charged therein, the five and
nine month periods, respectively, shall
commence to run from the date of his arrest
thereon.
* * * * * * *
The provisions of this section shall not
apply to such period of time as the failure
to try the accused was caused:
* * * * * * *
(4) By continuance granted on motion of the
accused or his counsel, or by concurrence of
the accused or his counsel in such motion by
the attorney for the Commonwealth, or by
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reason of his escaping from jail or failing
to appear according to his recognizance . . . .
(Emphasis supplied).
Harris contends that because he was held continuously in
custody from his return to Virginia on December 7, 1993, the five
month time-frame applies. Noting that the May 12, 1994 trial
date was beyond the five month limit, he argues that he neither
moved for a continuance from May 5 to May 12, nor concurred in
such a motion by the Commonwealth. He argues that he had no
obligation to insist on a trial date within the statutory period.
See Pittman v. Commonwealth, 10 Va. App. 693, 695, 395 S.E.2d
473, 474 (1990). Therefore, he contends, Code § 19.2-243(4) did
not toll the statutory period from May 5 to May 12 and the
charges against him should have been dismissed. We disagree.
Code § 19.2-243 specifically establishes beginning points
for the running of its time calculations. When a preliminary
hearing is conducted in the general district court and probable
cause is found, that finding commences the running of the
statute. However, where a direct indictment is returned, without
prior arrest, the time "[commences] to run from the date of []
arrest thereon." Id.
Code § 19.2-243 specifically sets forth two discrete time-
frames, one five months in duration, the other nine months. The
five month time-frame applies when the accused "is held
continuously in custody thereafter . . . ." "Thereafter" plainly
refers to the beginning point of the time-frame. Thus, detention
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in custody for a five month period does not invoke the five month
rule unless that custody runs continuously from the statutory
beginning point.
Code § 19.2-243 specifies a nine month time-frame applicable
to an accused who is not "held continuously in custody
thereafter," but is "not held in custody but has been recognized
for his appearance . . . ."
Because Harris was directly indicted, without prior arrest
on the charges, the time prescribed by Code § 19.2-243 did not
begin to run until the date of his arrest, September 27, 1992.
He was not held in continuous custody from that time, but on
October 13, 1992, was released on bail. Therefore, the nine
month statutory period applies. Because trial was commenced
within nine months from the date of Harris's arrest, not counting
the periods excluded by the statute, no statutory speedy trial
violation occurred.
We affirm the judgments of the trial court.
Affirmed.
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