                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia


RONALD LAMAR MITCHELL
                                           MEMORANDUM OPINION * BY
v.   Record No. 1738-00-2                JUDGE JAMES W. BENTON, JR.
                                                JUNE 12, 2001
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                     L.A. Harris, Jr., Judge

          (Brice E. Lambert; Leonard W. Lambert &
          Associates, on brief), for appellant.
          Appellant submitting on brief.

          Richard B. Smith, Senior Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     The sole issue raised by this appeal is whether Ronald Lamar

Mitchell was tried in violation of his right to a speedy trial as

provided by Code § 19.2-243.    We affirm the conviction.

                                  I.

     Mitchell, a juvenile, was arrested for robbery and use of a

firearm in the commission of the robbery.    At a preliminary

hearing on October 4, 1999 in the juvenile and domestic relations

district court, a judge certified the charges to the grand jury

and remanded Mitchell to the custody of the Sheriff.    On November

8, 1999, after the grand jury returned indictments, the trial

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
judge scheduled the trial for December 7, 1999.   The order noted

that Mitchell's attorney was not present.

     The trial did not occur on December 7, 1999.   The trial judge

entered an order that states Mitchell "was receiving medical

treatment at a Diagnostic Center" and was not present in court on

December 7.   The order continued the trial to January 26, 2000; it

notes that Mitchell's attorney was present; and it does not

indicate that Mitchell's attorney objected to the continuance.

     The trial judge again continued the trial from January 26,

2000 to March 8, 2000.   The order recites that the circuit court

was closed January 26 due to inclement weather.   The order

contains no indication that notice of the order was given to

Mitchell, his attorney, or the prosecutor.

     On the day of trial, March 8, 2000, Mitchell's attorney moved

to discharge Mitchell from prosecution and alleged that Mitchell's

right to a speedy trial had been violated.   He argued that

Mitchell was in custody and that March 8, 2000 was four days

beyond the statutory 152 days in which the Commonwealth was

required to try the case.   The trial judge denied the motion.

Mitchell then entered a conditional plea of guilty to the charge

of robbery, preserving the right to appeal the judge's ruling on

his speedy trial motion pursuant to Code § 19.2-254.   By

agreement, the Commonwealth did not prosecute Mitchell for the

firearm charge.



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                                     II.

     In pertinent part, Code § 19.2-243 provides as follows:

              Where a . . . 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 in the circuit court within five
           months from the date such probable cause was
           found . . . .

                        *   *   *    *     *   *   *

              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 . . . .

     The record establishes that the initial trial date of

December 7, 1999, was well within the statutorily permissible

range.   By the trial judge's order, that date was changed to

January 26, 2000, which was also within the permissible

statutory range.   Although Mitchell argues on brief that "the

lack of transportation, not the medical treatment, . . . forced

the court to continue the case" on December 7, 1999, the recital

in the order, that Mitchell "was receiving medical treatment at

a Diagnostic Center," is a verity.          It is unrefuted by any

evidence or objection in the record.           See Kern v. Commonwealth,

2 Va. App. 84, 88, 341 S.E.2d 397, 400 (1986).

     In construing Code § 19.2-243, which is the legislative

determination of what constitutes a speedy trial, see Flanary v.


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Commonwealth, 184 Va. 204, 208, 35 S.E.2d 135, 137 (1945)

(discussing former Code § 4926), the Supreme Court held as

follows:

           [T]he exceptions in the speedy trial statute
           are not meant to be all-inclusive, but that
           others of a similar nature were
           implied. . . .

           "The truth is the statute never meant by its
           enumeration of exceptions, or excuses for
           failure to try, to exclude others of a
           similar nature or in pari ratione; but only
           to enact if the Commonwealth was in default
           . . . without any of the excuses for the
           failure enumerated in the statute, or such
           like excuses, fairly implicable by the
           Courts from the reason and spirit of the
           law, the prisoner should be entitled to his
           discharge."

Stephens v. Commonwealth, 225 Va. 224, 230, 301 S.E.2d 22, 25

(1983) (citation omitted).

     The trial judge's order continuing the trial from December

7, 1999 to January 26, 2000 recites a reason sufficiently

similar to the medical treatment provision enumerated in the

speedy trial statute to bring that continuance within the spirit

of the statute.   Thus, we hold that, for the period December 7,

1999 to January 26, 2000, the failure to hold Mitchell's trial

was caused by a continuance due to his confinement for medical

care as recognized by Code § 19.2-243(1).

     We also note that Mitchell's attorney did not object to

this continuance.   As amended in 1995, the speedy trial statute

now states, "[t]he provisions of this section shall not apply to


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such period of time as the failure to try the accused was

caused . . . 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).    In Robinson v.

Commonwealth, 28 Va. App. 148, 155, 502 S.E.2d 704, 708 (1998),

we held that the failure to make a timely objection to a

continuance caused "the delay resulting from this continuance

[to be] charged to" the defendant.      Id. at 154, 502 S.E.2d at

707.   In a similar vein, the Supreme Court recently ruled that

"[w]hen a defendant . . . acquiesces in an order that

effectively continues a case, the five-month speedy trial period

of Code § 19.2-243 is tolled during the time reasonably

specified by the court to carry out the terms of its order."

Heath v. Commonwealth, 261 Va. 389, 393, 541 S.E.2d 906, 908

(2001).

       When the time period of this continuance is factored out of

the period required to bring this case to trial on March 8,

2000, the record plainly establishes that Mitchell was tried

within "[t]he five month requirement . . . [which] translates to

152 and a fraction days."    Ballance v. Commonwealth, 21 Va. App.

1, 6, 461 S.E.2d 401, 403 (1995).    Accordingly, we affirm the

conviction.

                                                 Affirmed.




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