Sherry Denise Battle v City of Norfolk

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia
SHERRY DENISE BATTLE MEMORANDUM OPINION* BY
v. 	Record No. 1757-97-1 	JUDGE DONALD W. LEMONS
DECEMBER 8, 1998
CITY OF NORFOLK
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Benjamin N. A. Kendrick, Judge Designate
Sa'ad El-Amin (El-Amin & Crawford, on brief),
for appellant.
William P. Robinson, Jr. (Robinson, Shelton,
Malone & Anderson, on brief), for appellee.
Sherry Denise Battle appeals her conviction for disorderly
conduct alleging that she was not prosecuted in a timely manner
pursuant to the speedy trial provisions of Code § 19.2-243. 	We
agree and reverse and dismiss her conviction.
On May 3, 1994, Battle was convicted of disorderly conduct
and assault in the General District Court for the City of
Norfolk. 	She filed her notice of appeal, and the case was
docketed in the Circuit Court of the City of Norfolk. 	On May 17,
1994, Battle filed a petition for rehearing in the general
district court. 	The City of Norfolk filed a petition for writ of
prohibition in the circuit court seeking to prohibit any
rehearing in the general district court. 	On December 13, 1995
the circuit court issued the writ. 	Battle appealed the order to
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

- 2 -
the Supreme Court of Virginia. 	The criminal charges were not set
for trial in the circuit court while the controversy over the
petition for writ of prohibition was litigated. 	The same judge
presided over the criminal matters and the civil proceeding for
an extraordinary writ.
On April 9, 1996, the trial judge issued a "Notice of
Issuance of Writ of Prohibition" and directed Battle to appear
before the Clerk of the Norfolk Circuit Court on April 23, 1996
to advise the court of her "intent as such may be available
pursuant to your appellate remedies due to your convictions in
the General District Court for the City of Norfolk, Criminal
Division." 	The parties agree that appellate proceedings over the
petition for writ of prohibition had concluded at that time. 	The
record reflects no order setting the case for trial; however, the
trial commenced on April 28, 1997. 	On that day prior to trial,
Battle moved for dismissal of the charges because the case had
not been tried within the statutory constraints of the speedy
trial provisions of Code § 19.2-243. 	The court denied the
motion, the cases were heard by a jury and the jury returned a
verdict of not guilty of assault and guilty of disorderly
conduct.
Code § 19.2-243 provides in part:
[w]here 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

- 3 -
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.
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 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; or
5. 	By the inability of the jury to agree in
their verdict.
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.
We do not reach the issue of whether the time expended
during an appeal of a civil proceeding for an extraordinary writ
ancillary to a criminal prosecution is chargeable to the

- 4 -
Commonwealth under Code § 19.2-243. 	After appellate proceedings
concluded, twelve months elapsed from April 23, 1996 to the date
of the trial on April 28, 1997. 	The record reflects no
justifiable basis for delay in setting the case for trial.
We have previously stated that,
Code § 19.2-241 requires that "[t]he judge of
each circuit court shall fix a day of his [or
her] court when the trial of criminal cases
will commence" and that the accused "shall be
tried within the time limits fixed in [Code]
§ 19.2-243." 	This Code section is, in part,
a legislative acknowledgement of the obvious
imperative that the trial judge, rather than
the prosecutor or the accused, controls the
trial docket. 	Code § 19.2-243 contemplates
an orderly procedure for setting criminal
trial dates to ensure that the accused is
afforded a statutory speedy trial without
penalizing the Commonwealth for delays not
fairly attributable to it.
Baity v. Commonwealth, 16 Va. App. 497, 502, 431 S.E.2d 891, 894
(1993).
The record is devoid of any permissible reason for delay in
the setting of Battle's case for trial for the twelve-month
period between April 23, 1996 and April 28, 1997. 	Accordingly,
the trial judge erred in denying Battle's motion to dismiss the
prosecution for failure to comply with the speedy trial
provisions of Code § 19.2-243. 	The conviction is reversed and
dismissed.
Reversed and dismissed.