                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia


WILLIAM L. HARRIS

v.         Record No. 1998-94-1                OPINION BY
                                       JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA                    DECEMBER 12, 1995


           FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                     Westbrook J. Parker, Judge
           Michael D. Eberhardt for appellant.

           Eugene Murphy, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



     On appeal from his convictions of conspiracy to distribute

cocaine and possession of cocaine with the intent to distribute,

William L. Harris contends he was denied his statutory right to a

speedy trial.   See Code § 19.2-243.    We disagree and affirm the

judgments of the trial court.

     On July 27, 1992, without having previously been arrested

thereon, Harris was directly indicted on charges of possession of

cocaine with intent to distribute and conspiracy to distribute

cocaine.   He was arrested on September 27, 1992.    On October 13,

1992, he was released on bail.    From October 22, 1992 until July

30, 1993, his trial was continued six times on his motion.

     On July 27, 1993, Harris was arrested in New Jersey.     On

December 7, 1993, he was extradited and returned to Virginia and

his trial was set for March 23, 1994.     Over Harris's objection,

the Commonwealth was granted a continuance because two witnesses
failed to appear.       The trial court set the trial for May 5, 1994.

Because defense counsel was unavailable on that date due to a

previously scheduled court date, the trial court changed the

trial date to May 12, 1994, and, over defense objection, ruled

that the continuance from May 5 to May 12 was on Harris's motion.

On May 12, Harris requested a continuance until July 7, 1994.

     Code § 19.2-243, in effect at the time of the proceedings,

provides, in pertinent part, as follows:
               Where a general district court has found
          that there is probable cause to believe that
          the accused has committed a felony, the
          accused, if he is held continuously in
          custody thereafter, shall be forever
          discharged from prosecution for such offense
          if no trial is commenced . . . within five
          months from the date such probable cause was
          found . . . ; and if the accused is not held
          in custody but has been recognized for his
          appearance . . . , he shall be forever
          discharged . . . if no trial is commenced
           . . . within nine months . . . .

                    *      *    *    *      *   *   *

               If an indictment . . . is found against
          the accused but he has not been arrested for
          the offense charged therein, the five and
          nine month periods, respectively, shall
          commence to run from the date of his arrest
          thereon.

                    *      *    *    *      *   *   *

               The provisions of this section shall not
          apply to such period of time as the failure
          to try the accused was caused:

                    *      *    *    *      *   *   *

          (4) By continuance granted on 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


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           reason of his escaping from jail or failing

           to appear according to his recognizance . . . .

(Emphasis supplied).

     Harris contends that because he was held continuously in

custody from his return to Virginia on December 7, 1993, the five

month time-frame applies.   Noting that the May 12, 1994 trial

date was beyond the five month limit, he argues that he neither

moved for a continuance from May 5 to May 12, nor concurred in

such a motion by the Commonwealth.     He argues that he had no

obligation to insist on a trial date within the statutory period.

 See Pittman v. Commonwealth, 10 Va. App. 693, 695, 395 S.E.2d

473, 474 (1990).   Therefore, he contends, Code § 19.2-243(4) did

not toll the statutory period from May 5 to May 12 and the

charges against him should have been dismissed.    We disagree.

     Code § 19.2-243 specifically establishes beginning points

for the running of its time calculations.    When a preliminary

hearing is conducted in the general district court and probable

cause is found, that finding commences the running of the

statute.   However, where a direct indictment is returned, without

prior arrest, the time "[commences] to run from the date of []

arrest thereon."   Id.

     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



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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

thereafter," but is "not held in custody but has been recognized

for his appearance . . . ."

     Because Harris was directly indicted, without prior arrest

on the charges, the time prescribed by Code § 19.2-243 did not

begin to run until the date of his arrest, September 27, 1992.

He was not held in continuous custody from that time, but on

October 13, 1992, was released on bail.   Therefore, the nine

month statutory period applies.   Because trial was commenced

within nine months from the date of Harris's arrest, not counting

the periods excluded by the statute, no statutory speedy trial

violation occurred.
     We affirm the judgments of the trial court.

                                                   Affirmed.




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