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MAY 30, 2000
Record No. 2550-98-1
WILLIAM R. BLAIR
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Present: Judges Bray, Frank and Senior Judge
Argued by teleconference
Timothy G. Clancy (Moschel, Gallo & Clancy,
L.L.C., on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.
MEMORANDUM OPINION BY JUDGE
WILLIAM H. HODGES
William R. Blair, appellant, was convicted of
first-degree murder. On appeal, he argues that his statutory
right to a speedy trial was violated. We disagree with appellant
and affirm the conviction.
Appellant’s preliminary hearing was held on
January 13, 1997. Appellant’s trial was held on July 16, 1998,
resulting in a 549-day delay. The first trial date was set for
March 20, 1997. On March 4, 1997, appellant moved to undergo a
psychological evaluation to determine whether he was competent to
stand trial, and the trial court granted the motion.
On March 20, 1997, the trial court granted
appellant’s request for a continuance because the psychological
evaluation had not been completed. On May 15, 1997, the trial
court received the first psychological evaluation, which
indicated that appellant needed further evaluation. On May 19,
1997, the trial court granted appellant’s request for a
continuance, and the matter was continued until June 6, 1997 to
determine the status of the evaluation.
On June 6, 1997, the court granted appellant’s
motion to continue the case, and the matter was continued until
July 28, 1997. On July 28, 1997, the trial court ordered further
psychological evaluation to determine appellant’s competency to
stand trial. Also on this date, the court granted appellant’s
motion to continue, and the case was continued until September 5,
1997 to determine the status of the evaluation. On September 5,
1997, on joint motion of the parties, the case was continued to
October 9, 1997. On October 9, 1997, the parties agreed to a
continuance until November 19, 1997.
On November 18, 1997, the trial court received
the second psychological evaluation, which indicated that
appellant was incompetent to stand trial. On November 19, 1997,
the trial court granted the Commonwealth’s request for a
continuance to November 24, 1997, and appellant did not object to
the continuance. At a hearing held on November 24, 1997, the
trial court found appellant incompetent to stand trial and
ordered hospital treatment in an effort to restore him to
competency. The trial court also set April 6, 1998 as the date on
which to check the status of the evaluation. On January 9, 1998,
the trial court entered the order for hospital treatment.
On January 13, 1998, the trial court received a
psychological evaluation indicating that appellant had been
restored to competency. On April 6, 1998, the trial court set a
trial date of July 16, 1998. At the July 16, 1998 trial,
appellant moved to dismiss on the ground that his right to a
speedy trial had been violated. See Code ? 19.2-243.
The trial court denied the motion.
The provisions of Code ? 19.2-243
relevant to this case require that appellant’s trial commence
within "152 and a fraction days" from the date of the
preliminary hearing. Moten v. Commonwealth, 7 Va. App.
438, 441, 374 S.E.2d 704, 706 (1988).
"Code ? 19.2-243(4) makes clear that
continuances requested or concurred in by a defendant are
excepted from the time for computing compliance with bringing an
accused to trial." Shearer v. Commonwealth, 9 Va.
App. 394, 402, 388 S.E.2d 828, 832 (1990).
The parties agree that the time period between
January 13, 1997, the date of the preliminary hearing, and March
4, 1997, the date the trial court entered the order for a
psychological evaluation, resulted in a fifty-day delay and is
chargeable to the Commonwealth. The parties agree that the time
period between March 4, 1997 and January 13, 1998, the date the
trial court received the psychological evaluation indicating that
appellant was restored to competency, resulted in a 315-day delay
and is chargeable to appellant.
Appellant argues that the delay involved from
January 13, 1998 to April 6, 1998, the date the trial court set
to check the status of appellant’s competency evaluation, an
eighty-three day delay, is not chargeable to appellant. Appellant
also contends that the 101-day delay from April 6, 1998 to the
date of the trial, July 16, 1998, is not chargeable to appellant.
At the hearing held on November 24, 1997, the
trial court found appellant incompetent to stand trial. The
record contains no written court order addressing the continuance
of the case until April 6, 1998. However, the transcript from the
November 24, 1997 hearing indicates that both appellant and the
Commonwealth agreed to the April 6, 1998 date to determine the
status of appellant’s competency evaluation.
Initially, the Commonwealth suggested setting a
date about six months from November, 1997 in order to determine
the status of the evaluation. Appellant’s counsel then
represented to the trial court, "So if we hear from them
earlier, Your Honor, we will bring it back on the docket."
The trial judge said, "Right. We need a date about six
months away." Appellant’s counsel replied, "Yes, Your
Honor." The trial court suggested April 6, 1998, and
appellant’s counsel asked, "Is that at 9:00 a.m., Your
Honor?" The trial judge responded, "Nine o’clock."
Therefore, although on January 13, 1998 the
trial court received the psychological evaluation indicating that
appellant was restored to competency, because appellant concurred
in setting the April 6, 1998 date to determine appellant’s
status, the eighty-three day time period from January 13, 1998 to
April 6, 1998 is chargeable to appellant.
Furthermore, the cover letter dated January 12,
1998 and attached to the psychological evaluation indicates that
a copy of the cover letter was mailed to appellant’s counsel.
This letter recommended that appellant was competent to stand
trial. Appellant does not dispute that his counsel received this
letter. However, appellant did not bring the case "back on
the docket" prior to April 6, 1998 as he indicated to the
trial court he would do "if [they] hear[d] from [the
evaluators] earlier." Cf. Jefferson v.
Commonwealth, 23 Va. App. 652, 657, 479 S.E.2d 80, 82 (1996)
("When the defendant requests and is granted a continuance
for an indefinite period of time, the speedy trial period will
not recommence until the defendant announces to the Commonwealth
that he stands ready for trial.").
When the eighty-three day time period is added
to the other 315-day delay chargeable to appellant, 398 days of
delay are chargeable to appellant. When this period of time is
excluded from the total 549-day delay period, appellant’s trial
was commenced within 151 days of the preliminary hearing.  Therefore, there was no speedy trial violation.
Accordingly, the trial court did not err in denying appellant’s
motion to dismiss on the statutory speedy trial ground.
The judgment of the trial court is affirmed.
 Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.
 Because we find that the trial
commenced within 151 days of the preliminary hearing, we need not
address the remaining 101-day delay.