Ronald Lamar Mitchell v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia
RONALD LAMAR MITCHELL
MEMORANDUM OPINION * BY
v. Record No. 1738-00-2 JUDGE JAMES W. BENTON, JR.
JUNE 12, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L.A. Harris, Jr., Judge
(Brice E. Lambert; Leonard W. Lambert &
Associates, on brief), for appellant.
Appellant submitting on brief.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The sole issue raised by this appeal is whether Ronald Lamar
Mitchell was tried in violation of his right to a speedy trial as
provided by Code § 19.2-243. We affirm the conviction.
I.
Mitchell, a juvenile, was arrested for robbery and use of a
firearm in the commission of the robbery. At a preliminary
hearing on October 4, 1999 in the juvenile and domestic relations
district court, a judge certified the charges to the grand jury
and remanded Mitchell to the custody of the Sheriff. On November
8, 1999, after the grand jury returned indictments, the trial
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
judge scheduled the trial for December 7, 1999. The order noted
that Mitchell's attorney was not present.
The trial did not occur on December 7, 1999. The trial judge
entered an order that states Mitchell "was receiving medical
treatment at a Diagnostic Center" and was not present in court on
December 7. The order continued the trial to January 26, 2000; it
notes that Mitchell's attorney was present; and it does not
indicate that Mitchell's attorney objected to the continuance.
The trial judge again continued the trial from January 26,
2000 to March 8, 2000. The order recites that the circuit court
was closed January 26 due to inclement weather. The order
contains no indication that notice of the order was given to
Mitchell, his attorney, or the prosecutor.
On the day of trial, March 8, 2000, Mitchell's attorney moved
to discharge Mitchell from prosecution and alleged that Mitchell's
right to a speedy trial had been violated. He argued that
Mitchell was in custody and that March 8, 2000 was four days
beyond the statutory 152 days in which the Commonwealth was
required to try the case. The trial judge denied the motion.
Mitchell then entered a conditional plea of guilty to the charge
of robbery, preserving the right to appeal the judge's ruling on
his speedy trial motion pursuant to Code § 19.2-254. By
agreement, the Commonwealth did not prosecute Mitchell for the
firearm charge.
- 2 -
II.
In pertinent part, Code § 19.2-243 provides as follows:
Where a . . . court has found that there
is probable cause to believe that the
accused has committed a felony, the accused,
if he is held continuously in custody
thereafter, 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 . . . .
* * * * * * *
The provisions of this section shall not
apply to such period of time as the failure
to try the accused was caused:
1. By his insanity or by reason of his
confinement in a hospital for care and
observation . . . .
The record establishes that the initial trial date of
December 7, 1999, was well within the statutorily permissible
range. By the trial judge's order, that date was changed to
January 26, 2000, which was also within the permissible
statutory range. Although Mitchell argues on brief that "the
lack of transportation, not the medical treatment, . . . forced
the court to continue the case" on December 7, 1999, the recital
in the order, that Mitchell "was receiving medical treatment at
a Diagnostic Center," is a verity. It is unrefuted by any
evidence or objection in the record. See Kern v. Commonwealth,
2 Va. App. 84, 88, 341 S.E.2d 397, 400 (1986).
In construing Code § 19.2-243, which is the legislative
determination of what constitutes a speedy trial, see Flanary v.
- 3 -
Commonwealth, 184 Va. 204, 208, 35 S.E.2d 135, 137 (1945)
(discussing former Code § 4926), the Supreme Court held as
follows:
[T]he exceptions in the speedy trial statute
are not meant to be all-inclusive, but that
others of a similar nature were
implied. . . .
"The truth is the statute never meant by its
enumeration of exceptions, or excuses for
failure to try, to exclude others of a
similar nature or in pari ratione; but only
to enact if the Commonwealth was in default
. . . without any of the excuses for the
failure enumerated in the statute, or such
like excuses, fairly implicable by the
Courts from the reason and spirit of the
law, the prisoner should be entitled to his
discharge."
Stephens v. Commonwealth, 225 Va. 224, 230, 301 S.E.2d 22, 25
(1983) (citation omitted).
The trial judge's order continuing the trial from December
7, 1999 to January 26, 2000 recites a reason sufficiently
similar to the medical treatment provision enumerated in the
speedy trial statute to bring that continuance within the spirit
of the statute. Thus, we hold that, for the period December 7,
1999 to January 26, 2000, the failure to hold Mitchell's trial
was caused by a continuance due to his confinement for medical
care as recognized by Code § 19.2-243(1).
We also note that Mitchell's attorney did not object to
this continuance. As amended in 1995, the speedy trial statute
now states, "[t]he provisions of this section shall not apply to
- 4 -
such period of time as the failure to try the accused was
caused . . . by the failure of the accused or his counsel to
make a timely objection to such a motion by the attorney for the
Commonwealth . . . ." Code § 19.2-243(4). In Robinson v.
Commonwealth, 28 Va. App. 148, 155, 502 S.E.2d 704, 708 (1998),
we held that the failure to make a timely objection to a
continuance caused "the delay resulting from this continuance
[to be] charged to" the defendant. Id. at 154, 502 S.E.2d at
707. In a similar vein, the Supreme Court recently ruled that
"[w]hen a defendant . . . acquiesces in an order that
effectively continues a case, the five-month speedy trial period
of Code § 19.2-243 is tolled during the time reasonably
specified by the court to carry out the terms of its order."
Heath v. Commonwealth, 261 Va. 389, 393, 541 S.E.2d 906, 908
(2001).
When the time period of this continuance is factored out of
the period required to bring this case to trial on March 8,
2000, the record plainly establishes that Mitchell was tried
within "[t]he five month requirement . . . [which] translates to
152 and a fraction days." Ballance v. Commonwealth, 21 Va. App.
1, 6, 461 S.E.2d 401, 403 (1995). Accordingly, we affirm the
conviction.
Affirmed.
- 5 -