Mitchell A. Townsend v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bray
Argued at Norfolk, Virginia
MITCHELL A. TOWNSEND
v. Record No. 2160-93-1 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA SEPTEMBER 5, 1995
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Glen A. Tyler, Judge
Carl H. Bundick (Mapp, Mapp & Klein, on
brief), for appellant.
Robert B. Beasley, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On appeal from his conviction of sale of a controlled
substance in violation of Code § 18.2-248, Mitchell A. Townsend
contends that the trial court erred in refusing to dismiss the
charge pursuant to Code § 19.2-243. We agree and reverse the
judgment of the trial court.
Code § 19.2-243 requires that an accused not held in custody
be "forever discharged from prosecution [on the charge] if no
trial is commenced in the circuit court within nine months from
the date such probable cause was found. . . . The provisions of
this section shall not apply to such period of time as the
failure to try the accused was caused: By continuance granted on
motion of the accused or his counsel. . . ."
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Townsend was arrested on October 7, 1992. On November 2,
1992, the juvenile and domestic relations district court found
probable cause and certified the charge to the circuit court.
Townsend posted bond and remained free until trial. On December
7, 1992, he was indicted by the grand jury.
In accordance with the custom of the trial court and its
bar, the Commonwealth's Attorney and defense counsel conferred,
determined that trial by jury would be waived, and scheduled the
case for a bench trial on June 11, 1993. The trial court entered
no order reflecting this arrangement.
On June 10, 1993, defense counsel informed the
Commonwealth's Attorney that Townsend had changed his mind and
wanted a jury trial. On June 11, 1993, Townsend was arraigned,
pled not guilty, and demanded trial by jury. He stated that he
was not ready for trial that day. The trial court asked defense
counsel whether he was moving for a continuance. Defense counsel
replied, "No, sir. The next available date we stand ready to try
this case." The Commonwealth's Attorney stated, "the
Commonwealth is not moving for a continuance . . . and further,
the Commonwealth objects to any continuance." Defense counsel
then said, "the defendant is not here seeking a continuance."
The trial court and counsel discussed the requirement of
Code § 19.2-243 and agreed tentatively that the cutoff date under
the statute was August 2, 1993. The trial court informed
Townsend that it could not impanel a jury that day, that it would
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provide him a jury trial, but that doing so required continuing
the case. It informed him that he was deemed to have moved for a
continuance. The trial court entered an order continuing the
case but the court did not, by order or in any manner on the
record, reschedule the case. The case was rescheduled for trial
August 19, 1993, apparently by the Commonwealth's Attorney's
office. The record does not reflect that this date was requested
by Townsend or that it was set with his express concurrence, as
distinguished from his mere acquiescence.
Although no order memorializes the scheduling of the case
for trial June 11, 1993 and the waiver of trial by jury, the
record establishes without contradiction that this arrangement
was made by the Commonwealth's Attorney and defense counsel as a
firm commitment, in accordance with well-established customary
practice by the trial court and its bar. Townsend had the right
to change his mind and to demand a jury trial, but because he did
so knowing that the trial court could not impanel a jury for the
scheduled date, his motion, of necessity, included a motion for a
continuance to the trial court's next available date.
Any delay in the trial, however, which is attributable
to the defendant will not be counted in determining
whether the Commonwealth complied with the statutory
speedy trial mandate. . . . [T]o the extent that the
defendant requested or concurred in any delay, that
time will be excluded in determining whether the trial
took place within the mandated time period. If the
defendant caused the delay through his action, that
time will not be considered in computing compliance
with the speedy trial statute.
Shearer v. Commonwealth, 9 Va. App. 394, 399-400, 388 S.E.2d 828,
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830-31 (1990).
The cutoff date under Code § 19.2-243 was August 2, 1993,
nine months after the finding of probable cause in the juvenile
and domestic relations district court. At the time of the June
11 continuance, fifty-two days remained before the falling of the
statutory bar. The record reflects no good cause for the trial
court's failure to reschedule Townsend's case within that time.
The record discloses plainly that, according to its
established custom, the trial court permitted counsel to schedule
the case and that the trial court relied on counsels' diligence.
However, the trial court thereby assumed responsibility for the
errors of counsel. The trial court could not abdicate in favor
of counsel its obligation to maintain its docket. Specifically,
it could not abdicate its responsibility to insure that
Townsend's rights under Code § 19.2-243 were respected.
The judgment of the trial court is reversed and the charge
is ordered dismissed.
Reversed and dismissed.
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