                                      Tuesday          16th

     December, 1997.



Gerald E. Baker, Jr.,                                         Appellant,

 against         Record No. 1417-96-2
                 Circuit Court Nos. 489-95 and 28-96

Commonwealth of Virginia,                                     Appellee.

                            On Rehearing En Banc

           Before Chief Judge Fitzpatrick,* Judges Baker, Benton,
               Coleman, Willis, Elder, Annunziata and Overton

             Russell E. Allen for appellant.

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



             On June 17, 1997, a panel of this Court issued an opinion

reversing the appellant's convictions for two counts of burglary and

for one count of grand larceny (Circuit Court No. 489-95).         Baker v.
Commonwealth, 25 Va. App. 19, 486 S.E.2d 111 (1997).       A dissenting

opinion was filed to the panel decision.       Pursuant to Code

§ 17-116.02(D), the Court of Appeals granted a rehearing en banc and

stayed the mandate of the Court.    Upon rehearing en banc, the Court of

Appeals, with no judges dissenting, reverses and dismisses those

convictions of Gerald E. Baker, Jr. for the reasons stated in the

majority panel opinion at 25 Va. App. 19, 486 S.E.2d 111.

             Accordingly, the stay of this Court's June 17, 1997 mandate

is lifted, the said convictions are reversed, and those indictments
are dismissed.




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     The trial court shall allow court-appointed counsel for the

appellant an additional fee of $200 for services rendered the

appellant on the rehearing portion of this appeal, in addition to

counsel's costs and necessary direct out-of-pocket.

     This order shall be published and certified to the trial court.
____________________

          *On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as Chief Judge.


                          A Copy,
                               Teste:

                                         Cynthia L. McCoy, Clerk

                               By:

                                         Deputy Clerk




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                       COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia


GERALD E. BAKER, JR.
                                                 OPINION BY
v.        Record No. 1417-96-2            JUDGE SAM W. COLEMAN III
                                           JUNE 17, 1997
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF HANOVER COUNTY
                      Richard H. C. Taylor, Judge
          Russell E. Allen for appellant.

          Leah A. Darron, Assistant Attorney General (James
          S. Gilmore, III, Attorney General, on brief), for
          appellee.



     This criminal appeal arises from a denial of the defendant's

motion to dismiss three indictments against him for failure to provide

a speedy trial as required by Code § 19.2-243.     We hold that the

defendant did not waive the right to a speedy trial when his counsel,

after objecting to a continuance granted on the Commonwealth's motion,

provided an available trial date that he knew to be beyond the

statutory five month speedy trial period.     Thus, we reverse the

defendant's convictions.

     The defendant, Gerald Baker, was arrested and charged with two

counts of burglary and with grand larceny.     At the preliminary hearing

on September 20, 1995, the district court found probable cause and

certified the charges to a grand jury, which returned indictments on

all three charges on November 21, 1995.     The defendant was




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continuously incarcerated from the time of his arrest until the trial.

     On November 21, 1995, the Commonwealth's attorney, Baker's

attorney, and attorneys for the two codefendants appeared to set the

case for trial.   The defendants and the Commonwealth waived trial by

jury, and the prosecutor requested that the cases be joined for trial.

The trial judge, after discussing possible trial dates with counsel,

set the cases for trial without a jury for January 2, 1996.

     On January 2, 1996, the defendants and counsel appeared for

trial, at which time the Commonwealth's attorney moved for a

continuance until after January 16, 1996, the next term day.    He

requested the continuance in order to indict the defendants for

additional offenses.   Baker's counsel objected to the continuance, as

did the codefendants' counsel.    The trial judge granted the

continuance and then requested available trial dates.   Baker's

attorney said, "I believe the date we worked out, Your Honor, and

correct me if I'm wrong, gentlemen, is February the 28th, for the

three of us [defense counsel]."   Because the judge could not hear the

case on February 28, he set the trial for February 26, 1996, with

agreement of the prosecutor and all defense counsel.
     On February 22, 1996, the defendant moved to dismiss the charges

for failing to commence trial within five months from the finding of

probable cause as required by Code § 19.2-243.   On February 26, the

trial date, the Commonwealth's attorney asked for another continuance

in order to obtain transcripts of the previous hearings.   All parties

agreed and the trial was rescheduled for March 26, 1996.




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      On March 26, the trial judge denied the motions to dismiss,

stating:
             It's the Court's opinion that when you take the
             statute and interpret it in accordance with the
             constitutional grounds, I find that when everybody
             agreed to a date in February, that that was a
             point at which the right to speedy trial was
             waived by the defendants, and the fact that there
             was an objection to a continuance and then we
             backed up and started again, I don't know that
             that affects it.


The defendant was found guilty on all three charges.    He then renewed

the motion to dismiss based on violation of his statutory right to a

speedy trial, which the trial court overruled.
      Code § 19.2-243 provides that an accused, if held continuously in

custody from the time when probable cause is determined by the

district court, "shall be forever discharged from prosecution" if

trial is not commenced within five months from the date probable cause

was found.    However, this provision does not apply to delays caused

by:
             continuance[s] granted on the motion of the
             accused or his counsel, or by concurrence of the
             accused or his counsel in such a 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 . . . .


Code § 19.2-243(4).

      When a defendant asserts that his statutory right to a speedy

trial has been violated, the burden is on the Commonwealth to explain

the delay.     Godfrey v. Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781,

782 (1984).    The Commonwealth must prove that the delay was based on



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"one of the reasons enumerated in [Code § 19.2-243] or on appellant's

waiver, actual or implied, of his right to be tried within the

designated period."     Norton v. Commonwealth, 19 Va. App. 97, 99, 448

S.E.2d 892, 893 (1994).

        It is well settled that the Commonwealth has the affirmative duty

to try an accused within the time periods specified in Code § 19.2-

243.    The accused has no duty to request that a trial date be set

within the prescribed period in order to preserve his or her statutory

right to a speedy trial.     Baity v. Commonwealth, 16 Va. App. 497, 501,

431 S.E.2d 891, 893 (1993); Cantwell v. Commonwealth, 2 Va. App. 606,

611, 347 S.E.2d 523, 525 (1986).    An accused may "'stand mute without

waiving his rights so long as his actions [do] not constitute a

concurrence in or necessitate a delay of the trial.'"      Baity, 16 Va.

App. at 501, 431 S.E.2d at 891 (quoting Moten v. Commonwealth, 7 Va.

App. 438, 441, 374 S.E.2d 704, 706 (1988)).    "A defendant does not

waive his right to a speedy trial merely because he remains silent or

does not demand that a trial date be set within the prescribed

period."     Godfrey, 227 Va. at 463, 317 S.E.2d at 782.

        The Commonwealth had until February 22, 1996, to begin the trial.

The continuance granted on January 2, 1996, was at the

Commonwealth's attorney's request and was objected to by defense

counsel.    Only after the trial judge granted the Commonwealth's

continuance did defense counsel suggest February 28 as an available

date.    Nevertheless, the judge set February 26 as the trial date with

the agreement of defense counsel and the    Commonwealth's attorney.   We




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hold that by supplying the court with available trial dates, the

defendant did not concur in the Commonwealth's attorney's request for

a continuance, nor did he waive his right to a speedy trial.

     The Commonwealth contends that defense counsel waived his

client's statutory right to a speedy trial by knowingly suggesting a

trial date beyond the five month period.   The Commonwealth argues that

by agreeing to the trial date the defendant cannot be heard to

complain that his right to a speedy trial was violated.   See Manns v.
Commonwealth, 13 Va. App. 677, 679, 414 S.E.2d 613, 615 (1992) ("The

defendant, having agreed upon action taken by the trial court, should

not be allowed to assume an inconsistent position.").   At oral

argument, Baker's counsel acknowledged that the defendants knew the

available date was beyond the five month speedy trial period.

     It is the responsibility of the trial court, not the prosecutor

or the accused, to control the court's docket and schedule criminal

cases for trial.   See Baity, 16 Va. App. at 501, 431 S.E.2d at 893;

Williams v. Commonwealth, 2 Va. App. 566, 569, 347 S.E.2d 146, 148

(1986).   The fact that defense counsel knew that the available trial

date was beyond the five month period is of no consequence.    Although

in setting its docket the trial court should consider counsel's

available dates and whether the date selected is convenient for

counsel, absent defendant's request for a continuance or concurrence

in the Commonwealth's request or waiver of the right to a speedy

trial, the trial judge has the responsibility to commence the trial

within the statutorily specified time regardless of whether the date



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is convenient for counsel.   Moreover, in this case, the trial court

did not set trial on the original convenient date suggested by

counsel.   The Commonwealth has the duty, absent an exception set forth

in the statute, to provide the accused a speedy trial.

     Providing available dates and agreeing to a trial date that is

outside the statutory period are not actions constituting a waiver of

the statutory speedy trial requirement.         See Taylor v. Commonwealth,

12 Va. App. 425, 429-30, 404 S.E.2d 86, 88 (1991).        In Taylor, defense

counsel wrote a letter to the trial court stating that he could not be

present at docket call on June 13, 1989, but informed the court that

the defendant pleaded not guilty and requested a trial by jury.        The

letter also included the attorney's "avoid dates" from June through

October.   Id. at 429, 404 S.E.2d at 88.    By letter dated June 20,

1989, defense counsel acknowledged that the defendant's case was set

for trial on September 8, 1989.   Id.     This Court held that the

attorney's letters did not constitute a concurrence in setting the

trial outside the five month period.      Id.    We stated, "[t]he

Commonwealth, without any hindrance or delay from the defendant, could

have fixed the trial date at its convenience within the five month

period."

     Here, Baker's counsel did not consent to the Commonwealth's

request for a continuance; instead, he expressly objected to it.

Waiver involves an "intentional relinquishment or abandonment of a

known right or privilege."   Johnson v. Zerbst, 304 U.S. 458, 464

(1938); see Stanley's Cafeteria, Inc. v. Abramson, 226 Va. 68, 74, 306



                                  - 9 -
S.E.2d 870, 873 (1983); Peterson v. Commonwealth, 5 Va. App. 389, 396,

363 S.E.2d 440, 444 (1987).   With respect to fundamental

constitutional rights, "courts indulge every reasonable presumption

against waiver."   Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937).

By providing the court with available dates beyond the statutory

period after the court overruled counsel's objection to the

continuance, defense counsel did not waive the defendant's statutory

right to a speedy trial.       Accordingly, we reverse the defendant's

convictions and dismiss the case.
                                                Reversed and dismissed.




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Moon, C.J., dissenting.

     I respectfully dissent because I believe that counsel's

suggestion of a date beyond the five month period in which the trial

should have been commenced was tantamount to "concurrence of the

accused or his counsel" in a motion by the Commonwealth to continue

the case.    The court announced that it would grant the Commonwealth's

motion.   Counsel was aware of the date by which the case should have

commenced.   Even though defense counsel objected to a continuance, he

then knowingly suggested that trial be set beyond the critical date.

This in my opinion was an implied waiver of his client's right to be

tried within the five month period.    See Norton v. Commonwealth, 19

Va. App. 97, 99, 448 S.E.2d 892, 893 (1994) (recognizing that a

defendant may impliedly waive his right to be tried within the

statutory period).

     Although we have held that the accused has no duty to request

that a trial date be set within the prescribed period in order to

preserve his or her statutory right to a speedy trial, Baity v.
Commonwealth, 16 Va. App. 497, 501, 431 S.E.2d 891, 893 (1993), and

that an accused may "stand mute without waiving his rights so long as

his actions [do] not constitute a concurrence in or necessitate a

delay of the trial," id., we have not held that counsel may knowingly

propose a date that violates his client's speedy trial right and then

benefit because his client's right has been violated.   When counsel

knowingly led the trial court into selecting a date beyond the

statutory period, I believe that was tantamount to concurring in a




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continuance beyond the statutory period.   Accordingly, I would affirm.




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