Farewell v. Commonwealth.

October 22, 2013:

The Virginia Court of Appeals upheld the decision of the Circuit Court of the City of Charlottesville in denying appellant’s motion to dismiss on speedy trial grounds.  On September 2, 2011, an officer was called to the scene to investigate disorderly conduct.  Upon arrival, the officer saw appellant and another man in an altercation.  The officer separated the two men, but appellant continued to yell and try to charge at the other man.  The officer testified that appellant smelled of alcohol, had bloodshot eyes, was slurring his words, and was unsteady on his feet.  Appellant was subsequently arrested for public intoxication and put into the back of the police cruiser.  On the ride to the station, appellant became increasingly agitated, yelled and cursing at the officer.  Appellant then spit on the officer through a partition, and was then charged with assault and battery.

            A preliminary hearing was held on October 3, 2011, appellant was indicted by a grand jury on October, 17, 2011, and a jury trial was set for March 1, 2012.  On February 24, 2012, the public defender made a motion to withdraw and for appellant to continue pro se.  During this time appellant was disruptive, continuously interrupting the counsel and accusing him of lying.  Counsel was relieved and the same day the court appointed stand-by counsel, Mr. Hendricks, to assist.  However, Mr. Hendricks was unable to appear on the scheduled trial date, and appellant insisted it not be changed.  As such, the court dismissed Mr. Hendricks that same day and appointed another stand-by counsel, Mr. Davis.  After meeting with appellant several times, Mr. Davis informed the court he would be appearing as trial counsel and asked for a continuance in order to prepare.  The continuance was granted and the jury cancelled. 

However, Mr. Davis appeared before the court on March 1, 2012 indicating that there was some disconnect between himself and appellant, and that appellant wished to go forward with the trial that day.  The court explained to appellant that the jury had already been cancelled and the next available date was March 27, 2012.  Appellant became disruptive, insisting he wanted to go forward with trial that day and that he did not even know who Mr. Davis was.  On March 2, 2012, Mr. Davis withdrew as counsel and the court appointed Mr. Graham.  Mr. Graham filed a motion to dismiss on the grounds that a delay in trial violated appellant’s rights under the Sixth Amendment and Virginia Code §19.2-243.  Specifically, appellant argued that the delay was not caused by or acquiesced to by him, he should have been prosecuted within five months of the preliminary hearing, and Mr. Davis had no authority to request a continuance.  The trial court denied the motion and appellant was subsequently convicted and sentenced to three years and nine months in prison.

The Virginia Court of Appeals noted that Virginia Code §19.2-243 requires that a defendant accused of a felony, be prosecuted within five months of the preliminary hearing.  However, this right is waived if a defendant or defendant’s counsel requests a continuance.  Appellant insists that Mr. Davis was never his counsel of record, and so his motion for a continuance was not attributable to appellant.  However, the Virginia Court of Appeals held that both the trial court and Mr. Davis reasonably believed that Mr. Davis was acting as counsel of

record when he asked for a continuance.  Mr. Davis had met with appellant several times, and based on those conversations, thought that appellant wanted him to serve as counsel.  Absent the continuance request, the trial would have taken place within the statutory timeframe.  The Virginia Court of Appeals held that the Circuit Court did not err in denying the motion. 

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