Stinnie v. Com.

• Decision Date: 23 July 1996
• Docket Number: No. 0706-94-2,0706-94-2
• Citation: Stinnie v. Com., 473 S.E.2d 83, 22 Va.App. 726 (Va. App. 1996)
• Court: Virginia Court of Appeals
• Parties: James Thomas STINNIE, Jr. v. COMMONWEALTH of Virginia. Record

Page 83

473 S.E.2d 83

22 Va.App. 726

James Thomas STINNIE, Jr. v.COMMONWEALTH of Virginia.

Record No. 0706-94-2.

Court of Appeals of Virginia Richmond.

July 23, 1996.

Richard A. DeLoria, Charlottesville, for appellant.

Michael T. Judge, Assistant Attorney General(James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: MOON, C.J., and BENTON, COLEMAN, WILLIS, ELDER, BRAY, FITZPATRICK, ANNUNZIATA and OVERTON, JJ.

UPON A REHEARING EN BANC

ANNUNZIATA, Judge.

By opinion issued February 6, 1996, a panel of this Court reversed the conviction for statutory burglary of James Thomas Stinnie, Jr. on the ground that the Commonwealth failed to commence the trial of his case within five months of finding probable cause, in violation of Code§ 19.2-243.Stinnie v. Commonwealth, 21 Va.App. 610, 466 S.E.2d 752(1996).A rehearing en banc was granted to determine whether the delay in the commencement of Stinnie's case is properly attributable to Stinnie under the speedy trial statute.We conclude that the delay was attributable to Stinnie and affirm his conviction.

Code§ 19.2-243 provides, 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....

* * * * * *

The provisions of this section shall not apply to such period of time as the failure to try the accused was caused:

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4.By continuance granted on the motion of the accused or his counsel....

The district court determined probable cause existed on October 14, 1993.Stinnie's original trial date was set for February 9, 1994.In late January, Stinnie requested additional time to prepare his case after he was permitted to dismiss his court-appointed counsel.At that time, he did not request a specific trial date or a continuance for any particular period of time.On February 2, 1994, the trial court heard argument on Stinnie's motion and continued the case until docket call on February 22, 1994, which was the court's term day.On term day, the trial court scheduled Stinnie's new trial date for April 7, 1994.

Both parties agreed that the time between Stinnie's original trial date of February 9 and the date of the docket call, February 22, 1994, was chargeable to Stinnie and that the critical time for the purpose of deciding the speedy trial issue is the period from February 22 to April 7.If that time period is not considered for speedy trial purposes, Stinnie was brought to trial within the five-month period required by the statute.If that period is considered, on the theory that the continuance lasted only until February 22, Stinnie's trial was held twelve days beyond the last possible day to try him under the speedy trial statute.

Under the facts of this case, we hold that the period between February 9 and April 7 is properly excluded from the provisions of Code§ 19.2-243.We are not persuaded by the argument that Stinnie's motion for continuance lasted only until term day, February 22, a day on which the trial court clearly would not have intended to conduct trial.

The delay in the commencement of trial was provided solely for Stinnie's benefit.The failure to try Stinnie in accordance with Code§ 19.2-243 resulted from his motion for time to prepare for trial pro se after dismissing counsel.Unlike a continuance granted to an individual accused of a felony to initially obtain counsel, a continuance of a trial previously set, requested by the accused to prepare for trial, benefits only him.Such delays are not inherent in the orderly process of fixing a trial date and will extend the statutory time limitation for the commencement of the trial.SeeBaity v. Commonwealth, 16 Va.App. 497, 507, 431 S.E.2d 891, 897(1993)(citingTownes v. Commonwealth, 234 Va. 307, 362 S.E.2d 650(1987), cert. denied, 485 U.S. 971, 108 S.Ct. 1249, 99 L.Ed.2d 447(1988));...