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Tuesday16th

December, 1997.

Gerald E. Baker, Jr., Appellant,

against Record No. 1417-96-2
Circuit Court Nos. 489-95 and 28-96

Commonwealth of Virginia, Appellee.

On Rehearing En Banc

Before Chief Judge Fitzpatrick,* Judges Baker, Benton,
Coleman, Willis, Elder, Annunziata and Overton

Russell E. Allen for appellant.

Leah A. Darron, Assistant Attorney General
(Richard Cullen, Attorney General, on brief), for
appellee.

On June 17, 1997, a panel of this Court issued an opinion
reversing the appellant's convictions for two counts of burglary and
for one count of grand larceny (Circuit Court No. 489-95). Baker v.
Commonwealth, 25 Va. App. 19, 486 S.E.2d 111 (1997). A dissenting
opinion was filed to the panel decision. Pursuant to Code
17-116.02(D), the Court of Appeals granted a rehearing en banc and
stayed the mandate of the Court. Upon rehearing en banc, the Court of
Appeals, with no judges dissenting, reverses and dismisses those
convictions of Gerald E. Baker, Jr. for the reasons stated in the
majority panel opinion at 25 Va. App. 19, 486 S.E.2d 111.
Accordingly, the stay of this Court's June 17, 1997 mandate
is lifted, the said convictions are reversed, and those indictments
are dismissed. The trial court shall allow court-appointed counsel for the
appellant an additional fee of $200 for services rendered the
appellant on the rehearing portion of this appeal, in addition to
counsel's costs and necessary direct out-of-pocket.
This order shall be published and certified to the trial court.
____________________

*On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as Chief Judge.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk
COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia

GERALD E. BAKER, JR.
OPINION BY
v. Record No. 1417-96-2 JUDGE SAM W. COLEMAN III
JUNE 17, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge

Russell E. Allen for appellant.

Leah A. Darron, Assistant Attorney General (James
S. Gilmore, III, Attorney General, on brief), for
appellee.

This criminal appeal arises from a denial of the defendant's
motion to dismiss three indictments against him for failure to provide
a speedy trial as required by Code 19.2-243. We hold that the
defendant did not waive the right to a speedy trial when his counsel,
after objecting to a continuance granted on the Commonwealth's motion,
provided an available trial date that he knew to be beyond the
statutory five month speedy trial period. Thus, we reverse the
defendant's convictions.
The defendant, Gerald Baker, was arrested and charged with two
counts of burglary and with grand larceny. At the preliminary hearing
on September 20, 1995, the district court found probable cause and
certified the charges to a grand jury, which returned indictments on
all three charges on November 21, 1995. The defendant was
continuously incarcerated from the time of his arrest until the trial.
On November 21, 1995, the Commonwealth's attorney, Baker's
attorney, and attorneys for the two codefendants appeared to set the
case for trial. The defendants and the Commonwealth waived trial by
jury, and the prosecutor requested that the cases be joined for trial.
The trial judge, after discussing possible trial dates with counsel,
set the cases for trial without a jury for January 2, 1996.
On January 2, 1996, the defendants and counsel appeared for
trial, at which time the Commonwealth's attorney moved for a
continuance until after January 16, 1996, the next term day. He
requested the continuance in order to indict the defendants for
additional offenses. Baker's counsel objected to the continuance, as
did the codefendants' counsel. The trial judge granted the
continuance and then requested available trial dates. Baker's
attorney said, "I believe the date we worked out, Your Honor, and
correct me if I'm wrong, gentlemen, is February the 28th, for the
three of us [defense counsel]." Because the judge could not hear the
case on February 28, he set the trial for February 26, 1996, with
agreement of the prosecutor and all defense counsel.
On February 22, 1996, the defendant moved to dismiss the charges
for failing to commence trial within five months from the finding of
probable cause as required by Code 19.2-243. On February 26, the
trial date, the Commonwealth's attorney asked for another continuance
in order to obtain transcripts of the previous hearings. All parties
agreed and the trial was rescheduled for March 26, 1996.
On March 26, the trial judge denied the motions to dismiss,
stating:
It's the Court's opinion that when you take the
statute and interpret it in accordance with the
constitutional grounds, I find that when everybody
agreed to a date in February, that that was a
point at which the right to speedy trial was
waived by the defendants, and the fact that there
was an objection to a continuance and then we
backed up and started again, I don't know that
that affects it.

The defendant was found guilty on all three charges. He then renewed
the motion to dismiss based on violation of his statutory right to a
speedy trial, which the trial court overruled.
Code 19.2-243 provides that an accused, if held continuously in
custody from the time when probable cause is determined by the
district court, "shall be forever discharged from prosecution" if
trial is not commenced within five months from the date probable cause
was found. However, this provision does not apply to delays caused
by:
continuance[s] 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 . . . .

Code 19.2-243(4).
When a defendant asserts that his statutory right to a speedy
trial has been violated, the burden is on the Commonwealth to explain
the delay. Godfrey v. Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781,
782 (1984). The Commonwealth must prove that the delay was based on
"one of the reasons enumerated in [Code 19.2-243] or on appellant's
waiver, actual or implied, of his right to be tried within the
designated period." Norton v. Commonwealth, 19 Va. App. 97, 99, 448
S.E.2d 892, 893 (1994).
It is well settled that the Commonwealth has the affirmative duty
to try an accused within the time periods specified in Code 19.2-
243. The accused has no duty to request that a trial date be set
within the prescribed period in order to preserve his or her statutory
right to a speedy trial. Baity v. Commonwealth, 16 Va. App. 497, 501,
431 S.E.2d 891, 893 (1993); Cantwell v. Commonwealth, 2 Va. App. 606,
611, 347 S.E.2d 523, 525 (1986). An accused may "'stand mute without
waiving his rights so long as his actions [do] not constitute a
concurrence in or necessitate a delay of the trial.'" Baity, 16 Va.
App. at 501, 431 S.E.2d at 891 (quoting Moten v. Commonwealth, 7 Va.
App. 438, 441, 374 S.E.2d 704, 706 (1988)). "A defendant does not
waive his right to a speedy trial merely because he remains silent or
does not demand that a trial date be set within the prescribed
period." Godfrey, 227 Va. at 463, 317 S.E.2d at 782.
The Commonwealth had until February 22, 1996, to begin the trial.
The continuance granted on January 2, 1996, was at the Commonwealth's
attorney's request and was objected to by defense counsel. Only after
the trial judge granted the Commonwealth's continuance did defense
counsel suggest February 28 as an available date. Nevertheless, the
judge set February 26 as the trial date with the agreement of defense
counsel and the Commonwealth's attorney. We hold that by supplying
the court with available trial dates, the defendant did not concur in
the Commonwealth's attorney's request for a continuance, nor did he
waive his right to a speedy trial.
The Commonwealth contends that defense counsel waived his
client's statutory right to a speedy trial by knowingly suggesting a
trial date beyond the five month period. The Commonwealth argues that
by agreeing to the trial date the defendant cannot be heard to
complain that his right to a speedy trial was violated. See Manns v.
Commonwealth, 13 Va. App. 677, 679, 414 S.E.2d 613, 615 (1992) ("The
defendant, having agreed upon action taken by the trial court, should
not be allowed to assume an inconsistent position."). At oral
argument, Baker's counsel acknowledged that the defendants knew the
available date was beyond the five month speedy trial period.
It is the responsibility of the trial court, not the prosecutor
or the accused, to control the court's docket and schedule criminal
cases for trial. See Baity, 16 Va. App. at 501, 431 S.E.2d at 893;
Williams v. Commonwealth, 2 Va. App. 566, 569, 347 S.E.2d 146, 148
(1986). The fact that defense counsel knew that the available trial
date was beyond the five month period is of no consequence. Although
in setting its docket the trial court should consider counsel's
available dates and whether the date selected is convenient for
counsel, absent defendant's request for a continuance or concurrence
in the Commonwealth's request or waiver of the right to a speedy
trial, the trial judge has the responsibility to commence the trial
within the statutorily specified time regardless of whether the date
is convenient for counsel. Moreover, in this case, the trial court
did not set trial on the original convenient date suggested by
counsel. The Commonwealth has the duty, absent an exception set forth
in the statute, to provide the accused a speedy trial.
Providing available dates and agreeing to a trial date that is
outside the statutory period are not actions constituting a waiver of
the statutory speedy trial requirement. See Taylor v. Commonwealth,
12 Va. App. 425, 429-30, 404 S.E.2d 86, 88 (1991). In Taylor, defense
counsel wrote a letter to the trial court stating that he could not be
present at docket call on June 13, 1989, but informed the court that
the defendant pleaded not guilty and requested a trial by jury. The
letter also included the attorney's "avoid dates" from June through
October. Id. at 429, 404 S.E.2d at 88. By letter dated June 20,
1989, defense counsel acknowledged that the defendant's case was set
for trial on September 8, 1989. Id. This Court held that the
attorney's letters did not constitute a concurrence in setting the
trial outside the five month period. Id. We stated, "[t]he
Commonwealth, without any hindrance or delay from the defendant, could
have fixed the trial date at its convenience within the five month
period."
Here, Baker's counsel did not consent to the Commonwealth's
request for a continuance; instead, he expressly objected to it.
Waiver involves an "intentional relinquishment or abandonment of a
known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464
(1938); see Stanley's Cafeteria, Inc. v. Abramson, 226 Va. 68, 74, 306
S.E.2d 870, 873 (1983); Peterson v. Commonwealth, 5 Va. App. 389, 396,
363 S.E.2d 440, 444 (1987). With respect to fundamental
constitutional rights, "courts indulge every reasonable presumption
against waiver." Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937).
By providing the court with available dates beyond the statutory
period after the court overruled counsel's objection to the
continuance, defense counsel did not waive the defendant's statutory
right to a speedy trial. Accordingly, we reverse the defendant's
convictions and dismiss the case.
Reversed and dismissed.
Moon, C.J., dissenting.
I respectfully dissent because I believe that counsel's
suggestion of a date beyond the five month period in which the trial
should have been commenced was tantamount to "concurrence of the
accused or his counsel" in a motion by the Commonwealth to continue
the case. The court announced that it would grant the Commonwealth's
motion. Counsel was aware of the date by which the case should have
commenced. Even though defense counsel objected to a continuance, he
then knowingly suggested that trial be set beyond the critical date.
This in my opinion was an implied waiver of his client's right to be
tried within the five month period. See Norton v. Commonwealth, 19
Va. App. 97, 99, 448 S.E.2d 892, 893 (1994) (recognizing that a
defendant may impliedly waive his right to be tried within the
statutory period).
Although we have held that the accused has no duty to request
that a trial date be set within the prescribed period in order to
preserve his or her statutory right to a speedy trial, Baity v.
Commonwealth, 16 Va. App. 497, 501, 431 S.E.2d 891, 893 (1993), and
that an accused may "stand mute without waiving his rights so long as
his actions [do] not constitute a concurrence in or necessitate a
delay of the trial," id., we have not held that counsel may knowingly
propose a date that violates his client's speedy trial right and then
benefit because his client's right has been violated. When counsel
knowingly led the trial court into selecting a date beyond the
statutory period, I believe that was tantamount to concurring in a
continuance beyond the statutory period. Accordingly, I would affirm.

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