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Sua Sponte Continuance Did Not Toll Speedy Trial Statute

The tolling provisions of Virginia’s speedy trial statute, Va. Code 19.2-243, did not apply to a trial court order entered sua sponte continuing defendant’s trial date, the Supreme Court of Virginia holds.

Defendant argues that because no express language in the speedy trial statute addresses court-initiated continuances, the statute’s tolling provisions do not apply and, in any event, he was not required to object to the continuance because the court-initiated continuance did not extend the trial date beyond the five-month statutory time period. We reject both arguments.

In the absence of language specifically including a court-initiated continuance within the tolling provisions of the speedy trial statute, we must consider if such a continuance is of a “similar nature” to those contained in the statute.

The provisions of paragraph 4 of Code § 19.2-243 relevant in this case clearly demonstrate that in order to avoid the tolling provision, the defendant must be adverse to the granting of the continuance and must affirmatively express his objection even when a new trial date is set within the speedy trial time limits for the commencement of the trial. Because a continuance entered by the court sua sponte has the same effect as a continuance entered at the request of the defendant or the commonwealth, we conclude that a court-initiated continuance is of “a similar nature” and therefore is subject to the same requirements regarding objections as other continuances.

Consequently, defendant’s failure to object to the continuance initiated by the trial court that extended the date for trial from May 22 to July 3 resulted in tolling the five-month time period for that 43-day period. There was no error in the Court of Appeals’ judgment that the trial, commencing Aug. 14, was within the five-month period required by the speedy trial statute.

Defendant also contends the Court of Appeals erred in declining to apply the ends of justice exception to his state and federal constitutional speedy trial claims. Considering all the factors involved in determining whether there was a federal constitutional speedy trial violation, we conclude that no such violation occurred and therefore, there is no basis for applying the ends of justice exception to this case. Nor is defendant’s state constitutional claim sufficient to invoke the ends of justice exception.

Judgment denying defendant’s speedy trial claims and upholding his convictions of credit card theft and breaking and entering is affirmed.

Howard v. Commonwealth (Lacy) No. 100912, March 4, 2011; Va.Ct.App. Seth C. Weston for appellant; Rosemary V. Bourne, AAG; Kenneth T. Cuccinelli II, AG. VLW 011-6-044, 11 pp.

VLW 011-6-044

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