Charlie Maurice Hairston v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Benton and Overton
Argued at Salem, Virginia
CHARLIE MAURICE HAIRSTON
v. 	Record No. 1003-94-3 	MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA 	DECEMBER 19, 1995
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Frank I. Richardson, Jr., Judge
Kimble Reynolds, Jr. (Law Office of Rickey G. Young,
on brief), for appellant.
Marla Graff Decker, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Charlie Maurice Hairston (appellant) appeals from a judgment
of the Circuit Court of the City of Martinsville (trial court)
that approved a jury verdict convicting him for abduction.
Appellant contends that he was denied a speedy trial as required
by the United States Constitution and Virginia Code § 19.2-243.
Finding no error, we affirm the judgment of the trial court.
The record discloses that on June 16, 1993, appellant was
arrested pursuant to warrants issued charging him with abduction
and aggravated sexual battery. 	On that same day, he was released
on bond. 	On July 22, 1993, at a preliminary hearing, the charges
were certified to the grand jury.
Appellant remained on bond until August 23, 1993, when he
was arrested pursuant to a bench warrant issued for a possible
____________________
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

- 2 -
parole violation based upon the charges of aggravated sexual
battery and abduction. 	Because of the parole violation charge,
appellant was held continuously in custody from the date of his
arrest on August 23, 1993 until March 17, 1994, the day on which
he was tried and convicted.
At the preliminary hearing, appellant was represented by the
Public Defender's office. 	On October 18, 1993, before appellant
was indicted, the trial court, by order, approved a motion made
by the Public Defender to withdraw as appellant's counsel and
further ordered that the trial be set for December 29, 1993.
Appellant was indicted on November 1, 1993.
On the trial court's own motion, a further order entered on
December 29, 1993 provided as follows:
This case was set for trial on this day but
an accumulation of snow and sleet required
the Court to continue cases for those
defendants who felt unable to safely come to
Court and for the safety of Jurors and
witnesses.
It is therefore Ordered that this case be,
and the same hereby is, continued, with no
objection by the defendant, his attorney, or
the Attorney for the Commonwealth.
On March 9, 1994, appellant moved the trial court to dismiss
the charges. 	His motion was based solely upon the speedy trial
provision of Code § 19.2-243. 	That motion was denied.
Trial pursuant to the November 1, 1993 indictment was
conducted before a jury on March 17, 1994. 	Appellant was found
not guilty of the charge of aggravated sexual battery and guilty

- 3 -
of abduction.
Relying solely upon Code § 19.2-243, appellant moved to set
aside the jury's verdict, alleging that he should have been
brought to trial within five months of his arrest for his parole
violation. 	The motion was denied.
Appellant argues on appeal that he was denied the right to a
speedy trial granted to him by the United States Constitution.
He did not make that argument to the trial court, and the sole
issue granted for this appeal was "whether appellant was denied a
speedy trial pursuant to Code § 19.2-243." 	Therefore, because
the ends of justice do not require a review of that issue, we
decline to consider the constitutional issue raised.
Appellant further contends that the five-month provision of
Code § 19.2-243 was violated. 	He argues that the time provision
of the Code should be computed from August 23, 1993, the day he
was arrested for the parole violation, and he asserts that he was
not tried within the five-month period provision. 	In Harris v.
Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (1995), we said:
Code § 19.2-243 specifically sets forth two
discrete time-frames, one five months in
duration, the other nine months. 	The five
month time-frame applies when the accused "is
held continuously in custody thereafter
. . . ." 	"Thereafter" plainly refers to the
beginning point of the time-frame. 	Thus,
detention in custody for a five month period
does not invoke the five month rule unless
that custody runs continuously from the
statutory beginning point.
Code § 19.2-243 specifies a nine month
time-frame applicable to an accused who is
not "held continuously in custody

- 4 -
thereafter," but is "not held in custody but
has been recognized for his appearance
. . . ."
Appellant having been released on bond for the charges on
which he was tried, Code § 19.2-243 does not apply to the time he
was being held for the parole violation. 	When you apply the
provisions of Code § 19.2-243 to the conviction from which this
appeal emanates, appellant was tried within the speedy trial
provisions contained in that statute.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.