Code § 19.2-243, the speedy trial statute, provides that if a defendant accused of a felony is continuously held in custody from the time he is indicted, he must be tried within five months of the date of the indictment if there was no preliminary hearing or five months from the preliminary hearing. If he is not held in custody but is recognized for his appearance then the trial must begin within nine months. The statute also provides that if the trial does not commence within the stated time period, the defendant “shall be forever discharged from prosecution” for the charged offense.
Code § 19.2-243 paragraph 4 provides that calculation of the time period for commencing the trial will be tolled for time attributed to a continuance granted on a motion made by the defendant or his counsel, or time attributed to a continuance granted on a motion made by the Commonwealth in which the defendant or his counsel concurred or did not make a timely objection.
See Howard v. Commonwealth, 281 Va. 455, 459-60 (Va. 2011)
To make things a little more confusing, an indictment on a different charge resets the time clock.
The Virginia Supreme Court explained in one case:
The Commonwealth obtained one indictment against him on October 1, 2012. Furthermore, as the Court of Appeals ruled, the speedy trial time period began to run on the date of Herrington’s indictment on October 1, 2012, not on the date of the preliminary hearing, August 28, 2012.
The indictment by the grand jury on the charge of possession with intent to sell or distribute supplanted the district court’s finding of probable cause on the charge of simple possession at the preliminary hearing. See Ashby v. Commonwealth, 33 Va. App. 540, 545-46, 535 S.E.2d 182, 185 (2000) (indictments charging different offense than charges certified by district court supplanted finding of probable cause by district court and speedy trial clock began to run anew from date of indictments); see also Brooks v. Peyton, 210 Va. 318, 322, 171 S.E.2d 243, 246 (1969) (“When an original indictment is supplanted by a second indictment, the terms contemplated by [the speedy trial statute] are to be counted from the time of the second indictment.”); Harris v. Commonwealth, 258 Va. 576, 585, 520 S.E.2d 825, 830 (1999) (same); Miller v. Commonwealth, 217 Va. 929, 934, 234 S.E.2d 269, 273 (1977) (same).
Herrington’s continued incarceration, therefore, was based on the indictment for possession with intent to sell or distribute, rather than the charge of simple possession certified by the district court. Pursuant to Code § 19.2-243, the Commonwealth was required to commence the trial within five months from the date he was indicted.
Herrington v. Commonwealth, 291 Va. 181, 186-87, 781 S.E.2d 561, 564-65 (2016)
The Federal Rules are slightly different:
A claim of a violation of speedy trial rights under the federal constitution is resolved by the balancing of four factors – length of delay, reason for delay, defendant’s assertion of his right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
§ 19.2-243. Limitation on prosecution of felony due to lapse of time after finding of probable cause; misdemeanors; exceptions
Where a district court has found that there is probable cause to believe that an adult 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 by the district court; and if the accused is not held in custody but has been recognized for his appearance in the circuit court to answer for such offense, he shall be forever discharged from prosecution therefor if no trial is commenced in the circuit court within nine months from the date such probable cause was found.
If there was no preliminary hearing in the district court, or if such preliminary hearing was waived by the accused, the commencement of the running of the five and nine months periods, respectively, set forth in this section, shall be from the date an indictment or presentment is found against the accused.
If an indictment or presentment is found against the accused but he has not been arrested for the offense charged therein, the five and nine months periods, respectively, shall commence to run from the date of his arrest thereon.
Where a case is before a circuit court on appeal from a conviction of a misdemeanor or traffic infraction in a district court, the accused shall be forever discharged from prosecution for such offense if the trial de novo in the circuit court is not commenced (i) within five months from the date of the conviction if the accused has been held continuously in custody or (ii) within nine months of the date of the conviction if the accused has been recognized for his appearance in the circuit court to answer for such offense.
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;
2. By the witnesses for the Commonwealth being enticed or kept away, or prevented from attending by sickness or accident;
3. By the granting of a separate trial at the request of a person indicted jointly with others for a felony;
4. By continuance granted on the motion of the accused or his counsel, or by concurrence of the accused or his counsel in such a motion by the attorney for the Commonwealth, or by the failure of the accused or his counsel to make a timely objection to such a motion by the attorney for the Commonwealth, or by reason of his escaping from jail or failing to appear according to his recognizance;
5. By continuance ordered pursuant to subsection I or J of § 18.2-472.1 or subsection C or D of § 19.2-187.1;
6. By the inability of the jury to agree in their verdict; or
7. By a natural disaster, civil disorder, or act of God.
But the time during the pendency of any appeal in any appellate court shall not be included as applying to the provisions of this section.
For the purposes of this section, an arrest on an indictment or warrant or information or presentment is deemed to have occurred only when such indictment, warrant, information, or presentment or the summons or capias to answer such process is served or executed upon the accused and a trial is deemed commenced at the point when jeopardy would attach or when a plea of guilty or nolo contendere is tendered by the defendant. The lodging of a detainer or its equivalent shall not constitute an arrest under this section.
HISTORY: Code 1950, § 19.1-191; 1960, c. 366; 1974, c. 391; 1975, c. 495; 1984, c. 618; 1988, c. 33; 1993, c. 425; 1995, cc. 37, 352; 2002, c. 743; 2005, c. 650; 2007, c. 944; 2009, Sp. Sess. I, cc. 1, 4.
Va. Const. Art. I, § 8 Criminal prosecutions
That in criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, and to call for evidence in his favor, and he shall enjoy the right to a speedy and public trial, by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty. He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers, nor be compelled in any criminal proceeding to give evidence against himself, nor be put twice in jeopardy for the same offense.
Laws may be enacted providing for the trial of offenses not felonious by a court not of record without a jury, preserving the right of the accused to an appeal to and a trial by jury in some court of record having original criminal jurisdiction. Laws may also provide for juries consisting of less than twelve, but not less than five, for the trial of offenses not felonious, and may classify such cases, and prescribe the number of jurors for each class.
In criminal cases, the accused may plead guilty. If the accused plead not guilty, he may, with his consent and the concurrence of the attorney for the Commonwealth and of the court entered of record, be tried by a smaller number of jurors, or waive a jury. In case of such waiver or plea of guilty, the court shall try the case.
The provisions of this section shall be self-executing.
Q. What if I am already incarcerated in a Virginia jail or a prison, does the right to a speedy trial apply to me?
A. Yes. Here’s language from case law Knott v. Commonwealth, 215 Va. 531, 532-33, 211 S.E.2d 86, 86-87 (1975), addressing an earlier statutory version (19.1-191), but explaining the constitutional right is not limited by the statute with emphasis added:
A memorandum on file at the penitentiary shows that penitentiary authorities learned of defendant’s presence in Virginia on October 25, 1972, four days after his arrest. On November 22, 1972, defendant was indicted for escape in violation of Code § 53-291(2). More than a year later, on December 12, 1973, he was convicted of that offense and sentenced to one year in the penitentiary. It is stipulated that in the interval between indictment and trial, six regular terms of the trial court had passed. Before final judgment, defendant moved to dismiss the indictment on the ground that he had been held for trial for more than three regular terms of the trial court before he was brought to trial.
Code § 19.1-191 is the statutory implementation of the constitutional guarantee of the right to a speedy trial. Brooks v. Peyton, 210 Va. 318, 171 S.E.2d 243 (1969). Under the statute the right begins to run in favor of an accused felon when the “indictment is found” and he is “held . . . for trial”. The right is violated “if there be three regular terms of the circuit . . . court in which the case is pending after he is so held without a trial”. The right is not violated if “the failure to try him was caused” by any of six stated circumstances.
The Commonwealth contends that during the time defendant was held in the Alexandria and Fairfax County jails he “was not available for trial before the Circuit Court of the City of Richmond on the escape charge” and that he was not held for trial “until such time as he was returned to the Virginia State Penitentiary.” We do not agree.
The Commonwealth acquired sovereign jurisdiction over the person of the defendant the moment he entered her borders. Between defendant’s indictment and his trial, the Commonwealth held the defendant for more than a year in three of her penal institutions. Two were jails; one was a penitentiary; all were “penal institutions”. Code § 53-9 (now Code § 53-19.18 (Repl. Vol. 1974)). As an inmate, defendant was subject to transfer from one penal institution to another. Code § 53-8 (now Code § 53-19.17 (Repl. Vol. 1974)). With jurisdiction under Code § 53-295 (Cum. Supp. 1974) to try the escape indictment, the trial court had full process powers, reaching into every penal institution within the jurisdiction of the sovereign. At any time after the indictment was found, the trial court could have issued process and defendant could have been transferred from the jail to the penitentiary for ready access. What could have been done to grant a speedy trial should have been done. “It is the duty of officers charged with the responsibility of enforcing the criminal laws of the Commonwealth to prepare for and obtain a trial of an accused within the three regular terms of court specified.” Flanary v. Commonwealth, 184 Va. 204, 210-11, 35 S.E.2d 135, 138 (1945).
The materials are prepared for information purposes only. The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.