No dismissal after failure to object to speedy trial violation

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Where a defendant’s trial was scheduled to take place more than five months after his preliminary hearing, in violation of Virginia’s speedy trial requirements, the defendant was not entitled to a dismissal of the indictment because he failed to object to the violation when the trial date was first set.

Background

On June 28, 2018, Arkevis L. Vinson appeared in the General District Court of the City of Richmond for a preliminary hearing on the charges of robbery and use of a firearm in the commission of a felony. The court found probable cause as to both charges and certified them to the grand jury, which returned true bills of indictment on Aug. 6, 2018.

On Aug. 22, 2018, Vinson appeared for a bond hearing in the circuit court for the City of Richmond. The court denied bond and continued the case to docket call on Sept. 4, 2018. At the docket call, the court scheduled Vinson’s trial for Jan. 22, 2019.

On Dec. 6, 2018, Vinson filed a motion to dismiss the indictments arguing that the commonwealth failed to try him within the five-month statutory window mandated by Code § 19.2-243. The commonwealth opposed the motion, arguing that Vinson’s failure to object to the continuance from Sept. 4, 2018 to Jan. 22, 2019 constituted a waiver of his speedy trial rights. On Jan. 14, 2019, the circuit court granted Vinson’s motion and dismissed the indictments on speedy trial grounds. This appeal followed.

Analysis

Code § 19.2-243 requires that, where a criminal defendant held continuously in custody after a preliminary hearing, a trial shall be commenced in the circuit court within five months from the date probable cause was found by the district court. As such, under the statute, the commonwealth was required to commence Vinson’s trial by Nov. 28, 2018. The trial date of Jan. 22, 2019, indisputably falls outside of the requisite time frame.

In certain circumstances, however, the effective date on which a trial must be commenced may be extended. Under § 19.2-243(4), a delay may be excused if the accused or his counsel fails to timely object to a motion for a continuance by the commonwealth. Moreover, under this court’s precedent, a defendant or his counsel’s failure to object when the court fixes a trial date which is beyond the speedy trial limit, where no trial date has previously been set, is the functional equivalent of failing to object to a continuance requested by the commonwealth that places the trial date beyond the speedy trial limit.

Here, there is no evidence that Vinson objected to the Jan. 22, 2019, trial date when it was scheduled by the court following the Sept. 4, 2018, docket call. The docket call order does not record any such objection, and pleadings and emails from the commonwealth that were sent to the Vinson’s counsel likewise fail to note that any objection to that date had been raised. This is sufficient to demonstrate neither Vinson nor his counsel objected to the circuit court setting his trial date beyond the speedy trial limit before filing a motion to dismiss. As such, the circuit court erred in granting Vinson’s motion to dismiss the indictments.

Reversed and remanded.

Commonwealth of Virginia v. Vinson, Record No. 0104-19-2, May 28, 2019. CAV (Humphreys), from Richmond Cir. Ct. (Hairston). Virginia B. Thiesen for Appellant; Jerald R. Hess for Appellee. VLW 019-7-096. 9 pp. Unpublished.