Steven Jerome Johnson v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia
STEVEN JEROME JOHNSON
v. Record No. 0917-94-2 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA OCTOBER 24, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Jose R. Davila, Jr., Judge
Steven D. Benjamin (Betty Layne DesPortes; Steven D.
Benjamin and Associates, on briefs), for appellant.
Eugene Murphy, Assistant Attorney General (James S.
Gilmore, III, Attorney General; Robert B. Condon,
Assistant Attorney General, on brief), for appellee.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Appellant, Steven Jerome Johnson, appeals his convictions
for robbery and use of a firearm in the commission of a robbery
on the ground that the Commonwealth failed to prosecute its case
within the time limitations prescribed by Code § 19.2-243,
relying on the last sentence of Code § 19.2-243 which provides
that "the time during the pendency of any appeal in any appellate
court shall not be included as applying to the provisions of this
section." 1 Finding no reversible error, we affirm the
convictions.
Johnson was arrested on charges of robbery and use of a
firearm in the commission of a felony on December 17, 1991. A
preliminary hearing was held on January 9, 1992, and the charges
were certified to the circuit court. On April 27, 1992, he
was convicted of the two charges and judgment was entered. On
appeal, this Court reversed and remanded the case for a new trial
on December 14, 1993.
On March 11, 1994, Johnson filed a motion to dismiss the
indictments for violation of his right to a speedy trial pursuant
to Code § 19.2-243. The trial court denied the motion and
Johnson entered a conditional plea of guilty, preserving his
right to appeal the motion to dismiss.
1
Although appellant relies on the relevant provision of the
United States and Virginia Constitutions in support of his
position on appeal, his failure to raise these grounds at the
trial level precludes our consideration of them. Rule 5A:18.
See Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d
630, 631 (1991) (citing Rule 5A:18).
- 2 -
This Court has held that Code § 19.2-243 is inapplicable to
retrial following reversal on appeal. Morgan v. Commonwealth, 19
Va. App. 637, 453 S.E.2d 914 (1995). In Morgan, the defendant
was re-tried following a reversal of his original conviction.
Morgan, 19 Va. App. at 638, 453 S.E.2d at 914. Morgan argued
that the reversal of his first conviction commenced a new running
of the speedy trial statute, requiring that he be re-tried within
five months. Id. at 639, 453 S.E.2d at 915. However, this Court
held that "Code § 19.2-243 is inapplicable to retrial following
reversal on appeal . . . ." Morgan, 19 Va. App. at 639, 453
S.E.2d at 915. The Court stated:
Morgan's retrial, following reversal, was but
an extension of that same proceeding, based
upon the same indictment and process and
following a regular, continuous order of
proceedings. Thus, it is distinguishable
from a new proceeding, based upon a new
indictment and process, implicating a new
speedy trial time frame. See Presley v.
Commonwealth, 2 Va. App. 348, 344 S.E.2d 195
(1986).
Code § 19.2-243 requires the timely
commencement of trial. It does not require
that trial be concluded within the specified
time. . . . Butts v. Commonwealth, 145 Va.
800, 808, 133 S.E. 764, 766 (1926). See also
Howell v. Commonwealth, 186 Va. 894, 898, 45
S.E.2d 165, 167 (1947).
* * * * * * *
[W]e find direction in the language and
structure of the statute. Code § 19.2-243
addresses the commencement of trial, not the
conclusion of proceedings. The enumerated
exceptions to the statute's applicability
address this requirement. The final
paragraph of the statute serves the same
purpose. It relates to appeals addressing
- 3 -
matters necessary to be resolved prior to the
commencement of trial.
Morgan, 19 Va. App. at 639-40, 453 S.E.2d at 915
We are bound by the principle of stare decisis to apply that
ruling to this case. See Commonwealth v. Burns, 240 Va. 171,
172, 395 S.E.2d 456, 457 (1990). The appellant's convictions are
affirmed.
Affirmed.
- 4 -