Criminal – Speedy trial violation results in conviction being reversed

Where the Commonwealth violated a defendant’s speedy trial rights, his conviction for unlawful wounding for shooting a young man in the face during a drug deal was reversed and a final judgment in his favor was entered.

Background

A jury convicted Ci’yante Arcorey Atavious Wingate of unlawful wounding for shooting a young man in the face during a drug deal. On appeal, Wingate assigns error to the circuit court’s denial of his “Motion to Dismiss for Failure to Comply with Speedy Trial Requirements” under Code § 19.2-243.

Relevant law

A defendant’s constitutional right to a speedy trial “has been supplemented by Code §§ 19.2-241 and 19.2-243, held to be a legislative interpretation of what constitutes a speedy trial.” If “the accused [is] held continuously in custody . . . [he] 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.” This court has recognized that the five-month requirement equates to “152 and a fraction days.” However the speedy trial time frame is “not absolute” and can be tolled in several enumerated circumstances.

Analysis

Wingate was continuously held in custody starting on April 12, when his charges were certified by Juvenile and Domestic Relations District Court. This is the first day of his speedy trial clock. At an April 20, 2023 proceeding, the parties agreed to a trial date beginning on July 17. However, on July 14, Wingate requested a continuance, which the trial court granted by order with Wingate agreeing to waive his speedy trial rights “for the period of this continuance.”

The speedy trial time chargeable to the Commonwealth from April 13 (the day after the preliminary hearing) to July 14 (Wingate’s continuance) was 92 days. Wingate’s continuance order set the new trial date for September 12. But for any intervening circumstance, this period would have been tolled for purposes of speedy trial calculation because “[a] continuance granted on the motion of the accused” does not count against the Commonwealth.

On September 8, during the hearing on the Commonwealth’s continuance motion, the Commonwealth explained that Department of Forensic Science, or DFS, “ha[d] not even assigned a lab person to test [Wingate’s DNA evidence] four months after it being submitted.” Wingate’s counsel stated “[w]e do not object to the continuance as long as my client is released” and “we don’t object to the Commonwealth’s continuance provided that my client is allowed to be released.” The court clarified with Wingate, “am I correct that if the [c]ourt is not granting bond[,] you do oppose the continuance?” Wingate responded, “[y]es, [y]our [h]onor.”

Wingate’s conditioning his objection on whether the court would grant him bond—which it did not—does not equate to an “acquiescence” that his trial date take place outside of the speedy trial window. Because Wingate was not released from custody at the September 8 hearing, any condition that might arguably have been placed on his objection was not met, and he was held “continuously in custody” pursuant to Code § 19.2-243.

The dates from September 8, when the circuit court granted the Commonwealth’s continuance over Wingate’s objection, through November 13, the first day of trial, are chargeable to the Commonwealth. The addition of those 66 days to the 92 days previously attributable to the Commonwealth total 158 days, putting it over the “152 and a fraction days.”

DFS

The next issue is whether the Commonwealth’s September 8 continuance is an “implied exception” under the Code. It is not. Following the Commonwealth’s argument and the circuit court’s reasoning to its natural conclusion, if all delays related to DNA testing operated as a tolling provision, a criminal defendant’s right to a speedy trial would be entirely subject to DFS internal assignment policies, and there would be no limit to the time that a person would remain in custody awaiting trial so long as it was related to DNA analysis.

Reversed and final judgment.

Wingate v. Commonwealth, Record Nos. 2031-24-4, 1347-25-4, July 14, 2026. CAV (Duffan). From the Circuit Court of Fairfax County (Shannon). Kathryn Donoghue, Senior Assistant Public Defender (Fairfax County Public Defender’s Office, on briefs), for appellant. Robert D. Bauer, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 026-7-289. 19 pp.

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