Ford v. Com.

• Court: Virginia Court of Appeals
• Writing for the Court: FRANK.
• Citation: Ford v. Com., 536 S.E.2d 467, 33 Va. App. 682 (Va. App. 2000)
• Decision Date: 07 November 2000
• Docket Number: Record No. 0106-00-2.
• Parties: Kevin Edgar FORD v. COMMONWEALTH of Virginia.

536 S.E.2d 467

33 Va. App. 682

Kevin Edgar FORD v. COMMONWEALTH of Virginia.

Record No. 0106-00-2.

Court of Appeals of Virginia, Richmond.

November 7, 2000,

Charles L. Weber, Jr., Charlottesville, for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BUMGARDNER, FRANK and HUMPHREYS, JJ.

FRANK, Judge.

Kevin Edgar Ford (appellant) was convicted of unlawful wounding, by a jury, in violation of Code § 18.2-51. On appeal, he contends the trial court erred in finding that his speedy trial rights under Code § 19.2-243 were not violated. For the following reasons, we affirm the judgment of the trial court.¹

I. BACKGROUND

On October 18, 1996, appellant was arrested for malicious wounding by an Albemarle County police officer. Appellant posted bond and was released from custody. He was free on bond until December 18, 1996, when he was incarcerated by federal authorities for a supervised release violation. Appellant remained in continuous federal custody from

December 18, 1996 until his November 4, 1997 trial for malicious wounding in Albemarle County.

On February 24, 1997, appellant's trial counsel notified the Commonwealth's Attorney for Albemarle County that appellant was in custody and requested assistance in securing his presence at trial. Appellant was present at the preliminary hearing on the malicious wounding charge on February 27, 1997.

On March 18, 1997, trial counsel again requested assistance from the Commonwealth's Attorney in having appellant transported to Albemarle County for trial. By letter, dated March 27, 1997, the Commonwealth's Attorney indicated he would initiate transportation arrangements once the trial date was set. On April 7, 1997, at docket call in the Circuit Court of Albemarle County, the Commonwealth moved to pass the case to the June docket, without objection by appellant's trial counsel. On June 2, 1997, the case was set for trial on July 17, 1997.

On May 13, 1997, the Commonwealth requested that a detainer be lodged against appellant for the pending malicious wounding charge in Albemarle County. By letter dated May 30, 1997, the Warden of the Federal Correctional Institution at Cumberland, Maryland, indicated the detainer had been lodged. The letter was filed in the Circuit Court of Albemarle County on June 6, 1997.

On June 4, 1997, appellant's trial counsel again requested assistance from the Commonwealth's Attorney in having appellant transported to Albemarle County for trial. However, on July 16, 1997, the trial court granted the Commonwealth's motion to continue the case because appellant had not yet been transported to Virginia. Defense counsel said:

I would need him to be here, I would think, at least ten days prior to trial in order to have time to notify the clerk of any subpoenas I need to have issued. So I'm stuck in this position of, no, I can't object to it because I couldn't try him if he were here today, in good conscience, without incurring an ineffective assistance of counsel, I think, but at the same time I don't think that this is through any steps of [appellant's] and I don't think it should be held against him on any speedy trial matters.

On October 3, 1997, at a hearing prior to trial, appellant contended he was entitled to be tried within five months of the February 27, 1997 preliminary hearing because he had been continuously incarcerated since that time. The parties, however, stipulated that "the defendant was in fact held on federal charges the entire time and riot directly on state charges." The Commonwealth acknowledged the federal "probation violation on which he was held . . . stem[med] from the arrest on the Virginia charges."

Following the October 3, 1997 hearing, the trial judge, in an opinion letter dated October 15, 1997, found that the nine-month provision of Code § 19.2-243 applied, rather than the five-month period, because appellant was not being held on the malicious wounding charge but was being held by federal authorities on the federal probation violation. The trial judge noted in his letter opinion:

The letter sent to the Commonwealth Attorney by the Federal Bureau of Prisons clearly states that "inmates who are temporarily transferred pursuant to [The Interstate Agreement on Detainers Act] remain under the primary jurisdiction of federal authorities . you are required to return the above named inmate to this institution after prosecution ... this inmate may not be released on bail or bond while in your custody ... this inmate is not to be committed to a state correctional institution for service of any state sentence(s) that may be imposed as a result of your prosecution."

Hence, the trial judge determined that the November 4, 1997 trial date would be timely. Alternatively, the trial judge found that the date set for trial would have been timely under the five-month provision of the statute. He stated that appellant and his attorney failed to make a "timely objection" either to the Commonwealth's motion for a continuance on June 2, 1997 or on July 16, 1997. The trial judge, thus, found that the period from June 2, 1997 to November 4, 1997 "should not count against the Commonwealth for purposes of the speedy trial statute."

Appellant was tried on November 4, 1997 and was found guilty of unlawful wounding by a jury.

II. ANALYSIS

Appellant contends that because he was in custody continuously following the preliminary hearing, the five-month limit for prosecution under Code § 19.2-243 applies, not the nine-month period as determined by the trial judge. It is uncontroverted that appellant remained continuously in custody from the preliminary hearing on February 27, 1997 until the trial on November 4, 1997. If the nine-month limitation applies, appellant was tried within nine months of the preliminary hearing. If the five-month limitation applies, we then must determine whether the periods of delay caused by the continuances should be charged to the Commonwealth.²

Code § 19.2-243 states, in part:

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 cola enced688 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) 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.

Appellant contends the statute's plain meaning is that the five-month limitation applies when a defendant has been held continuously in custody, no matter what authority or sovereign holds the defendant in custody and no matter which sovereign's charges held the defendant.

Under basic rules of statutory construction, we examine the statute in its entirety, rather than by isolating words or phrases. Ragan v. Woodcroft Village Apartments, 255 Va. 322, 325, 497 S.E.2d 740, 742 (1998) (citations omitted). Therefore, we examine all of the provisions of Code § 19.2-243 to determine the legislative intent. The statute contains four events from which the speedy trial time period is calculated, each depending on the nature of the proceeding. See Code § 19.2-243. First, if there is a preliminary hearing, the time period is calculated from the date of the preliminary hearing. See id. If the accused "is held continuously in custody thereafter" he cannot be prosecuted if the trial is not commenced with five months. Id. However, "if the accused is not held in custody but has been recognized for his appearance in the circuit court to answer for such offense," the time period is nine months. Id. (emphasis added). Second, if the accused is arrested but has no preliminary hearing or if the accused waives preliminary hearing, the time period is calculated from the date of indictment. See id. Third, when an indictment is found against the accused and he is arrested thereafter, the time period is calculated from the date of arrest thereon. See id. Finally, when an accused appeals a misdemeanor or traffic infraction from general district court, the time period is calculated from the date of conviction in general district court. See id.

In the second, third and fourth categories, the period of time is calculated from an event where the court exercises a degree of control, authority and rights over the accused, whether it be by indictment, arrest or conviction. Therefore, it follows that the phrase "continuously in custody" contained in the first paragraph of Code § 19.2-243 can only refer to "custody" when the court has control, authority and rights over the accused. This...