As defendant failed to object to a commonwealth motion for a continuance, the speedy trial statute was tolled during that continuance, and defendant cannot demonstrate a speedy trial violation under the Virginia statute; the Court of Appeals affirms his convictions for breaking and entering and credit card theft.
Defendant argued the continuance at issue should not have been charged to him because it arose from the commonwealth’s failure to provide requested discovery. At the hearing on defendant’s speedy trial motion, the trial court ruled that defendant did not waive his speedy trial rights as to either of two continuances, but he also did not object to either a May 22 to July 3 continuance or a July 3 to August 14 continuance, and he admitted he was not ready for trial on July 3. The court denied defendant’s motion to dismiss the charges on speedy trial grounds.
Although the speedy trial statute specifically refers only to continuances granted at the request of the defendant or the commonwealth, the Supreme Court of Virginia has made clear that acquiescence in the entry of any order that continues a case – whether at the request of the commonwealth or on the court’s own motion – even where the new date is within the speedy trial limit, effectively tolls the running of the speedy trial statute. If a defendant wishes to preserve his speedy trial rights under Va. Code Sec. 19.2-243 when the court requires a continuance, a defendant must object to the continuance even if the new trial date is within the applicable time limit set out in the statute.
Accordingly, the five-month speedy trial period was tolled from May 22 to July 3, 2008. We conclude defendant’s trial on Aug. 14, 2008 occurred within the five-month period.
Defendant’s brief reference to the state and federal constitutions in his motion to dismiss was insufficient under Rule 5A:18 to preserve this aspect of his claim for appeal.
Howard v. Commonwealth (Elder, J.) No. 0413-09-3, Dec. 22, 2009; Botetourt County Cir.Ct. (Irvine) Seth C. Weston for appellant; Rosemary V. Bourne, AAG, for appellee. VLW 009-7-544, 8 pp.