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September 15, 2000
Record No. 992355
COMMONWEALTH OF VIRGINIA
RUDOLPH LYNWOOD HUTCHINS, JR.
FROM THE COURT OF APPEALS OF VIRGINIA
Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ., and Poff, Senior Justice
OPINION BY JUSTICE LEROY R. HASSELL, SR.
In this appeal, we consider whether the
Commonwealth violated the defendant’s statutory rights to a
speedy trial contained in Code ? 19.2-243. That statute
states in relevant 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 commenced in the circuit
court within nine months from the date such probable cause was
. . . .
"The provisions of this section shall not
apply to such period of time as the failure to try the accused
. . . .
"4. By continuance granted on the motion
of the accused or his counsel, or by concurrence of the accused
or his counsel in such a motion by the attorney for the
Commonwealth, or by the failure of the accused or his counsel to
make a timely objection to such a motion by the attorney for the
Commonwealth, or by reason of his escaping from jail or failing
to appear according to his
recognizance . . . ."
Rudolph Lynwood Hutchins, Jr., was arrested on
September 18, 1996, and charged with two counts of malicious
wounding, in violation of Code ? 18.2-51. He was taken
before a magistrate who set his bond at $100,000. The defendant,
unable to post the bond, was remanded to the custody of the
sheriff of Martinsville and remained in continuous custody in the
Martinsville City Jail. On October 23, 1996, the defendant
appeared in the Juvenile and Domestic Relations District Court
for the City of Martinsville for a preliminary hearing on the
charged offenses. The charges were certified to a grand jury
which indicted the defendant on February 10, 1997. The defendant
appeared in the Circuit Court for the City of Martinsville on
February 25, 1997, and was arraigned on two indictments for
The defendant entered pleas of not guilty and
requested a jury trial. In response to the court’s inquiry:
"If you will sign here that you want a trial by a jury.
Friday, June the 6th ?," the defendant’s counsel
responded: "That’s fine, Judge." The defendant and his
counsel signed an order captioned, "REQUEST FOR JURY TRIAL
and CONSEQUENCES OF FAILURE TO APPEAR" which stated that the
defendant’s jury trial was set for June 6, 1997.
On May 15, 1997, six months and 22 days after
the preliminary hearing, the defendant, relying upon Code
? 19.2-243, filed a motion to dismiss the charges against
him. The defendant stated in his motion "[t]hat on February
25, 1997, the trial court set a trial date for June 6, 1997. Both
the Commonwealth and the Defendant acquiesced to that trial date.
Neither the Commonwealth nor the Defendant requested a
continuance to that date." The circuit court denied the
defendant’s motion, he was tried by a jury and convicted of one
count of unlawful wounding, and he was sentenced to three years
imprisonment. The circuit court entered an order confirming the
jury verdict, and the defendant appealed to the Court of Appeals.
A panel of the Court of Appeals, in an
unpublished opinion, affirmed the judgment of the circuit court. Hutchins
v. Commonwealth, Record No. 1439-97-3 (January 19, 1999).
The Court of Appeals held that the defendant’s statutory speedy
trial rights were not violated because his trial commenced when
he was arraigned and that the arraignment occurred within five
months from the date that the district court found probable
The Court of Appeals granted the defendant’s
petition for rehearing en banc and reversed and dismissed
the defendant’s conviction, holding that the trial did not
commence within the intendment of Code ? 19.2-243 until the
jury was sworn on June 6, 1997, and, therefore, the trial was
beyond the five-month period prescribed in Code ? 19.2-243.
Hutchins v. Commonwealth, 30 Va. App. 574, 580, 518
S.E.2d 838, 841 (1999). The Court of Appeals did not discuss the
Commonwealth’s argument that the circuit court’s action on
February 25, 1997, in scheduling the trial date for June 6, 1997,
constituted a continuance and that the defendant’s failure to
object to that date, as required by Code ? 19.2-243(4),
barred the defendant from applying the period of time between
February 25, 1997 and June 6, 1997, to the five-month period
prescribed in Code ? 19.2-243. The Commonwealth appeals.
The Commonwealth asserts, among other things,
that the defendant’s statutory speedy trial rights were not
violated because he did not object when the circuit court set the
trial date for June 6, 1997, and, therefore, the circuit court’s
action scheduling the trial for that date must be viewed as a
continuance. The defendant responds that he did not waive his
statutory right to a speedy trial merely because he remained
silent or did not demand that a trial date be set within the
prescribed period. We disagree with the defendant.
In Townes v. Commonwealth, 234
Va. 307, 362 S.E.2d 650 (1987), cert. denied, 485
U.S. 971 (1988), we considered whether a defendant’s conviction
should be reversed and the indictments dismissed because of an
alleged violation of his statutory right to a speedy trial. The
defendant, Richard Townes, Jr., was indicted for robbery, capital
murder in the commission of robbery, and use of a firearm while
committing robbery. A general district court found probable cause
on August 23, 1985, and Townes was held in continuous custody. Id.
at 312, 321, 362 S.E.2d at 652, 658.
On October 16, 1985, Townes appeared in the
circuit court and requested a continuance, which was granted by
order entered the same date, and the trial date was continued
until December 4, 1985. On that date, Townes and his counsel
appeared in court on a number of motions, including a motion that
Townes be allowed to represent himself. The circuit court granted
this motion and designated Townes’ former counsel as standby
counsel. A discussion occurred regarding a new trial date, and
Townes’ standby counsel suggested a date of March 3, 1986, and
everyone assented. An order was entered on December 23, 1985,
which embodied the actions taken by the court on December 4,
1985. Id. at 321-22, 363 S.E.2d at 658. The December 23,
1985 order contained a statement that "the trial of this
matter is set for March 3, 1986, on motion of both parties by
agreement." Id. at 322, 362 S.E.2d at 658. Rejecting
Townes’ contention that his statutory right to a speedy trial was
violated, we stated:
"The order of December 23, entered well
within the five-month period, expressly states that the March 3,
1986 trial date was set ‘on motion of both parties by agreement.’
This recitation imports verity and reflects judicial action
constituting a continuance granted with the concurrence of both
the prosecution and the accused. This continuance, from December
4 until March 3, extended the five-month period for three months
less one day, or more than enough to satisfy the requirements of
Code ? 19.2-243 . . . ."
Id. at 323, 362 S.E.2d at 659. We also
observed in Townes that "the recital in the order of
December 23, 1986, with respect to agreement on the trial date,
not only imports verity but also is supported by the
record." Id. at 323 n.3, 362 S.E.2d at 659 n.3.
In the present case, the defendant, Hutchins,
agreed to the trial date of June 6, 1997. Indeed, the defendant
admitted, as we have already stated, in his motion to dismiss
that "[b]oth the Commonwealth and the Defendant acquiesced
to [the June 6, 1997] trial date." The defendant also states
in his brief filed with this Court that he acquiesced to that
trial date. And, as we have already stated, the record shows
defendant’s counsel informed the circuit court that a trial by
jury on June 6, 1997, was "fine." Therefore, we can
only conclude that the defendant’s actions in acquiescing with
and agreeing to the order dated February 25, 1997, signed by the
defendant and his counsel, which was entered well within the
five-month period, constituted a continuance of the trial date
within the intendment of Code ? 19.2-243(4). The defendant
made no objection to this continuance. Indeed, rather than
object, the defendant affirmatively agreed to the trial date, and
there is no dispute that when the period of time between February
25, 1997 and June 6, 1997 is not included, the defendant’s trial
was within the statutorily prescribed period. Therefore, we hold
that the defendant’s right to a speedy trial provided by Code
? 19.2-243 was not violated.
For these reasons, we will reverse the judgment
of the Court of Appeals, and we will reinstate Hutchins’
conviction in accordance with the circuit court’s judgment order.
Reversed and final judgment.
 In view of our holding, we do not consider the Court of
Appeals’ holding that a trial commences within the intendment of
Code ? 19.2-243 when the jury is sworn.