                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Lemons
Argued at Chesapeake, Virginia


ANTONIO L. WIGGINS
                                      MEMORANDUM OPINION * BY
v.   Record No. 0187-99-1        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                         DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                      Joseph A. Leafe, Judge

          John T. Callahan III for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Kathleen B. Martin, Assistant Attorney
          General, on brief), for appellee.


     Antonio L. Wiggins (appellant) was convicted in a jury

trial of robbery, unlawful wounding and use of a firearm in the

commission of a felony.     The trial court denied appellant's

pretrial motion to dismiss the indictments pursuant to the

speedy trial provisions of Code § 19.2-243.     The sole issue

raised on appeal is whether the period of time after which a

witness recovered from illness should be charged against the

Commonwealth.   For the following reasons, we affirm the trial

court's judgment.




     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                  I.

        On April 2, 1997, the grand jury charged appellant with the

robbery of Linda Cook, the malicious wounding of Herbert Adkins,

and the use of a firearm in the commission of these crimes.     The

indictments were served on appellant on April 13, 1997.

Although the case was continued on numerous occasions at the

requests of both appellant and the Commonwealth, the parties

agree that the only time period in dispute is between February

5, 1998 and May 14, 1998.

        The record established that the trial in this matter was

set for February 5, 1998.    Due to inclement weather, the trial

court was closed on that day.    Additionally, a material witness

for the Commonwealth, Herbert Adkins, underwent surgery on

January 27, 1998, and had not recovered by the February trial

date.    His doctor instructed him not to return to work "for a

month to six weeks" following the surgery.    Adkins, who had

relocated to North Carolina following his surgery, was able to

return to work in "early March."

        At the June 11, 1998 hearing, appellant argued that since

Adkins returned to work in "early March" and was able to travel

at that time, the delay from "early March" until May 14, 1998

should be charged against the Commonwealth and the indictments




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should be dismissed pursuant to Code § 19.2-243. 1   Denying

appellant's motion, the trial court ruled as follows:

            The [speedy trial] statute does not apply to
            "such period of time as the failure to try
            the accused was caused . . . by the
            witnesses for the Commonwealth being . . .
            prevented from attending by sickness." I
            conclude that the continuance from February
            5, 1998 was within clause (2) [of Code
            § 19.2-243], and that the continuance did
            not run against the Commonwealth from that
            date until May 14, 1998, when both counsel
            announced they were ready to proceed. To
            rule otherwise would subject the application
            of the statute to vagaries I cannot believe
            the General Assembly intended.




     1
         That section provides in pertinent part:

            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 in the circuit
            court within five months from the date such
            probable cause was found by the district
            court . . . .

            *      *      *      *      *      *       *

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

            *      *      *      *      *      *       *

            2. By the witnesses for the Commonwealth
            being enticed or kept away, or prevented
            from attending by sickness or accident;
            . . . .



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Appellant was subsequently tried by a jury and convicted of the

offenses charged.

                                II.

     This case is controlled by Townes v. Commonwealth, 234 Va.

307, 362 S.E.2d 650 (1987), where the Supreme Court rejected an

argument similar to the one before us.   In Townes, the defendant

argued that the period of unavailability of a witness due to

illness should be limited to "the period the witness is

'prevented from attending.'"   Id. at 323, 362 S.E.2d at 658.

However, the Court disagreed and concluded that the time period

must be reasonable under the circumstances of the case.     The

Court wrote:

          Townes, however, reads the Code section too
          narrowly. We think the language of the
          section allows a trial court discretion in
          determining the length of time a case should
          be continued due to the illness of a
          witness. Here, the trial court stated that
          the period should be reasonable and then
          sought to determine "the feasible trial
          date, taking into account the length of
          anticipated illness of this witness." We
          cannot say on this record that the trial
          court abused its discretion.

Id. at 323, 362 S.E.2d at 658-59.

     In the present case, the trial court found that the

continuance from February 5, 1998 to May 14, 1998 was a

reasonable period of time.   The trial court noted that a

narrower reading of the statute "would require the Commonwealth

to monitor the daily health of ill witnesses."   Under the


                               - 4 -
circumstances of this case, including the reasonable recovery

period after Adkin's prostate surgery and his relocation to

North Carolina, we cannot say that the trial court abused its

discretion.   Accordingly, the trial court's judgment is

affirmed.

                                                           Affirmed.




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