                      COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia


STEVENSON LEE SHIFFLETT
                                            MEMORANDUM OPINION * BY
v.   Record No. 0645-97-2                 JUDGE JAMES W. BENTON, JR.
                                                 MAY 5, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                           Jay T. Swett, Judge

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



      A jury convicted Stevenson Lee Shifflett of malicious

wounding in violation of Code § 18.2-51.     He contends on this

appeal that his statutory and constitutional rights to a speedy

trial were violated because he was not tried within five months

of the preliminary hearing on the charge of assault and battery

of a household member in violation of Code § 18.2-57.2.       For the

reasons that follow, we affirm the conviction.

                                   I.

      The evidence in the record and the statement of facts prove

that Shifflett was arrested June 27, 1996, on the charge of

felony assault and battery, as a third offense, for an incident

that occurred on May 28, 1996.      See Code § 18.2-57.2.

Shifflett's application for bail was denied.       At a preliminary

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
hearing on July 12, 1996, a judge of the Charlottesville Juvenile

and Domestic Relations District Court certified the charge.

     Because of an administrative error, Shifflett was released

from jail following the preliminary hearing.    However, Shifflett

was again arrested two days after his release on a new charge of

felony assault and battery as a third or subsequent offense; he

was charged with assaulting the same person during his release

that he was charged with assaulting on May 28.    Shifflett's

application for bail was again denied.
     On August 19, 1996, a grand jury indicted Shifflett on a

charge of malicious wounding in violation of Code § 18.2-51 for

conduct occurring on May 28, 1996.     The same grand jury also

indicted him on two charges of felony assault and battery, as

third or subsequent offenses, in violation of Code § 18.2-57.2,

for conduct occurring on May 28, 1996, and July 14, 1996.    Prior

to trial, an order of nolle prosequi was entered on the

indictment charging felony assault and battery for conduct on

July 14, 1996.   Claiming a violation of his right to a speedy

trial under Code § 19.2-243, Shifflett filed a written pretrial

motion on December 16, 1996, to dismiss the malicious wounding

charge and made an oral motion at the hearing to dismiss the

remaining felony assault charge.   The circuit judge denied the

motions.

     On January 3, 1997, Shifflett was tried by a jury on the

charges of malicious wounding and felony assault and battery, as



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a third offense.    By agreement of counsel, the indictment

alleging assault and battery as a third offense was submitted to

the jury as a lesser and included offense of the malicious

wounding offense.   The jury convicted Shifflett of malicious

wounding and fixed his sentence at ten years in prison.    The

trial judge dismissed the felony assault and battery charge "as

being encompassed within the malicious wounding charge that

[Shifflett] was found guilty of by the jury."   The trial judge

later suspended one year and six months of the ten-year sentence.
                                  II.

     An accused, who is held "continuously in custody" must be

brought to trial within five months from the date of his

preliminary hearing or, if there was no preliminary hearing,

within five months from the date of indictment.    Code § 19.2-243.

     Shifflett's pretrial motion to dismiss the charge of

malicious wounding because of a violation of Code § 19.2-243 was

not well founded.   The evidence proved that the grand jury issued

its indictment August 19, 1996.    Shifflett was tried on January

3, 1997, which was within five months of the date the indictment

was issued by the grand jury.

     Shifflett orally moved to bar his trial on the felony

assault and battery charges on the ground that his speedy trial

rights were violated.   Although the record does not contain the

specifics of that motion, the trial judge's order "denie[d] this

motion on statutory and constitutional grounds."   However, to the




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extent that Shifflett now alleges error from the trial judge's

failure to dismiss the felony assault and battery charge, that

issue is now moot because no conviction was had on that charge.

The jury only convicted Shifflett of malicious wounding.

        Contrary to Shifflett's suggestion, we cannot say from this

record that the Commonwealth sought the indictment on the

malicious wounding charge to avoid Shifflett's claim of a speedy

trial violation on the assault charge.    The malicious wounding

indictment was obtained a month after the preliminary hearing on

the assault and battery charge.    Ample time remained to try the

charges within the statutory range.
        Moreover, although both charges were tried together, the

offenses are not necessarily lesser-included offenses of each

other.     See Walker v. Commonwealth, 14 Va. App. 203, 206, 415

S.E.2d 446, 448 (1992) (noting that "[a]n offense is not a lesser

included offense of another if each offense contains an element

that the other does not").    To the extent that the charges

require proof of different elements, they are not essentially the

same.    The decision that was made at trial to charge the jury

that the assault charge was a lesser-included offense of the

malicious wounding offense was the result of an agreement between

Shifflett's counsel and the Commonwealth's attorney.

Accordingly, we do not view that action as an implicit ruling by

the trial judge that the charges were the same offense.

        For these reasons, we affirm the judgment.



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        Affirmed.




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