Woodard v. Com.

• Decision Date: 14 January 1974
• Citation: Woodard v. Com., 201 S.E.2d 785, 214 Va. 495 (1974)
• Court: Virginia Supreme Court
• Parties: Dennis Ray WOODARD v. COMMONWEALTH of Virginia.

Page 785

201 S.E.2d 785

214 Va. 495

Dennis Ray WOODARD v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

Jan. 14, 1974.

Albert L. Fary, Jr., Portsmouth for plaintiff in error.

Gilbert W. Haith, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

COCHRAN, Justice.

The question for determination in this appeal is whether the speedy trial provisions of Code § 19.1--191 ¹ (1960 Repl.Vol.) require a reversal of Dennis Ray Woodard's conviction of the felony of distributing marijuana.

Woodard was indicted and held for trial at the July, 1971, term of the Circuit Court of the City of Chesapeake. By order entered July 16, 1971, the case was continued 'on motion of the Attorney for the Commonwealth until the November term of this court.' By order entered December 2, 1971, '(d)ue to manifest necessity' the case was continued until January 26, 1972. When arraigned, Woodard pleaded not guilty, and his counsel moved that Woodard be forever discharged on the ground that three regular terms of the trial court had passed since he had been indicted and held for trial. The court overruled this motion. On January 27, 1972, Woodard was tried without a jury and was convicted.

The Attorney General contends that only one regular term of court had passed between Woodard's indictment and his trial. Although the court entered orders during October, November and December terms, the Deputy Clerk of the court testified that only the November term was a criminal term, that the October and December terms were civil terms, and that criminal cases are tried during civil terms only upon agreement of counsel.

All three terms, however, must be considered regular terms for purposes of the time limitation imposed by Code § 19.1--191. Although Code § 17--127 ² (1960 Repl.Vol.) authorized certain circuit court judges to designate civil terms, there is no provision that these civil terms shall not be regular terms. Indeed, this statute required that at any of the terms all criminal and chancery matters be tried.

The Attorney General argues that Code § 17--127 provided for only two regular terms each year of the circuit court of a city and that all other terms were special. There is nothing in the record, however, to show any designation of special terms by the judge of the trial court by order or warrant, as required by Code § 17--129. More importantly, Code § 17--127 contained the qualifying language '(u)nless otherwise provided', and the legislature has provided for additional terms of the Circuit Court of the City of Chesapeake.

The Act of the General Assembly which provided for creation of the new City of Chesapeake by consolidation of the City of South Norfolk and Norfolk County also provided that 'the Circuit Court of Norfolk County shall be known as the Circuit Court' of the consolidated city, with exclusive jurisdiction of all criminal matters. Acts 1962, c. 211, § 20.01, at 314. Under the provisions of Acts 1914, c. 315, at 544, the State was divided into judicial circuits with specified court terms. The first circuit comprised Norfolk County, whose court terms were to begin on the first Monday in January, February, March, April, May, June, July, October, November, December. See also Times for the Commencement of the Regular Terms, Circuit Courts of Virginia, Acts 1918, at 791. This schedule, which remained unchanged when the 1950 Code took effect, continued in the first circuit after formation of the City of Chesapeake. See Times for the Commencement of the Regular Terms, Circuit Courts of Virginia, Acts 1964, at 1161; Acts 1966, at 1611. Although the legislature has changed the terms of court in various other circuits, See Code §§ 17--127.1 et seq. (1960 Repl.Vol.), no such changes have been made in the first circuit. Nor does the record show that the November term was omitted by order entered by the circuit judge as permitted by Code § 17-- 127. Therefore, the July, October, November and December terms of the Circuit Court of the City of Chesapeake wer regular terms within the meaning of Code § 19.1--191.

The Attorney General attaches undue significance to the recent omission of the November term from the tables of terms of the Circuit Court of the City of Chesapeake found in the Acts of Assembly. See Times for the Commencement of the Regular Terms, Circuit Courts of Virginia, Acts 1968, at 1605; Acts 1970, at 1764; Acts 1972, at 1648. These tables are prepared by the Clerk of the House of Delegates as required by Code § 30--13 (1973 Repl.Vol.), and, although assembled pursuant to legislative mandate, they are not themselves legislative enactments. They constitute merely lists containing information, furnished by clerical personnel for the use and benefit of the public. See Revisors' Note to Code (Annotated) of 1919, § 5893. Thus, any error in the tables does not alter the legislative provision for regular terms of the Circuit Court of the City of Chesapeake in July, October, November and December.

As Woodard was indicted and held for trial at the July term, which is therefore excluded from computation of three regular terms within the meaning of Code § 19.1--191, Butts v. Commonwealth, 145 Va. 800, 807--808, 133 S.E. 764, 766 (1926), our concern is with the October, November and December terms. The burden was on the Commonwealth to prove excuse for the failure to try Woodard before these three regular terms had passed. Heflin v. Commonwealth, 211 Va. 407, 409, 177 S.E.2d 644, 645 (1970); Flanary v. Commonwealth, 184 Va. 204, 210, 35 S.E.2d 135, 138 (1945).

The Commonwealth, even with the testimony of the Deputy Clerk, failed to carry its burden of proving that no court was held at the November or December terms, an excuse allowable under clause (6) of the Code § 19.1--191. Assuming, without deciding, that this testimony was admissible, it tends to explain rather than excuse the delay in bringing Woodard to trial. The Deputy Clerk testified that the judge of the trial court was ill in November and December, that the judge who had agreed to try Woodard on December 2, 1971, the last day of the November term, failed to appear on the trial date so that the case was continued because no judge was present, and that the judge of the trial court, who was 'in and out of here' during December, signed some orders at his home and at least one order which showed his presence in the courthouse.

The...