Criminal- Charges dismissed because of Speedy Trial Act

Although the Commonwealth argued that the period when the defendant sought several extensions to obtain counsel should toll the time limitations, because it failed to raise this specific argument in the circuit court, the argument was unpreserved.

Background                              

The Commonwealth appeals the circuit court’s order dismissing five felony indictments against John Antonio Fennell. The Commonwealth contends the circuit court erred in dismissing the charges because the period during which Fennell sought to secure counsel tolled his statutory speedy trial rights and trial therefore could commence within the time limitations prescribed under Code § 19.2-243. The Commonwealth further asserts that Fennell approbated and reprobated when he moved to dismiss the indictments on speedy trial grounds after requesting multiple continuances.

 Waiver

The Commonwealth’s first argument—that only the continuance granted immediately following the accused’s initial hearing date is reasonable and thus does not toll his speedy trial rights—was not raised with specificity before the circuit court. Instead, the Commonwealth puts a “different twist” on the original argument challenging Fennell’s reliance on Baity v. Commonwealth, 16 Va. App. 497 (1993) (en banc).

The Commonwealth now concedes that Baity applies but argues for a narrow reading of its scope, rather than contending, as she did before the circuit court, that Baity does not apply at all. The Commonwealth maintains, however, that the same argument was pressed in both courts: the trial delay is attributable to Fennell.

Even where a position remains the same, a party may not raise a new rationale for that position on appeal and expect this court to consider it as an initial proposition. Because the Commonwealth failed to raise this argument before the circuit court, the argument is unpreserved, and this court does not consider it.

Approbate-reprobate doctrine

The Commonwealth also contends that the approbate-reprobate doctrine bars Fennell from seeking the dismissal of his indictments on speedy trial grounds. The Commonwealth argues that because Fennell received the benefit of multiple continuances to obtain counsel, he cannot also benefit from the dismissal of his charges for a violation of his speedy trial right. This court disagrees.

For the approbate-reprobate doctrine to apply, Fennell must have “actually made a previous affirmative, inconsistent representation” that he was then contradicting in his motion to dismiss. In his motion to dismiss, Fennell argued that the period during which he sought counsel did not toll the statutory speedy trial deadline, and therefore the court was required to dismiss his indictments.

Yet the record does not demonstrate that at any point Fennell argued the contrary: that the period during which he sought counsel did toll the statutory speedy trial deadline. Although Fennell has received an additional, perhaps unexpected, benefit—the dismissal of his charges—from the delays that originally benefited him, this is not enough to bar the dismissal of his indictments under the approbate-reprobate doctrine.

The Commonwealth fails to establish that Fennell advocated for a position different from the one he advanced before the circuit court. Thus, the approbate-reprobate doctrine did not bar Fennell’s motion to dismiss, and the circuit court did not err in its judgment.

Affirmed.

Commonwealth v. Fennell, Record No. 1994-25-3, April 21, 2026. CAV (unpublished opinion) (Callins). From the Circuit Court of Henry County (McGarry). Sheri H. Kelley, Assistant Attorney General (Jay Jones, Attorney General, on briefs), for appellant. Steven P. Milani for appellee. VLW 026-7-161. 8 pp.

Full-Text Opinion

VLW 026-7-161
Virginia Lawyers Weekly