                   COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia


SHERRY DENISE BATTLE
                                        MEMORANDUM OPINION * BY
v.         Record No. 1757-97-1         JUDGE DONALD W. LEMONS
                                           DECEMBER 8, 1998
CITY OF NORFOLK


           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
              Benjamin N. A. Kendrick, Judge Designate
           Sa'ad El-Amin (El-Amin & Crawford, on brief),
           for appellant.

           William P. Robinson, Jr. (Robinson, Shelton,
           Malone & Anderson, on brief), for appellee.



     Sherry Denise Battle appeals her conviction for disorderly

conduct alleging that she was not prosecuted in a timely manner

pursuant to the speedy trial provisions of Code § 19.2-243.    We

agree and reverse and dismiss her conviction.

     On May 3, 1994, Battle was convicted of disorderly conduct

and assault in the General District Court for the City of

Norfolk.   She filed her notice of appeal, and the case was

docketed in the Circuit Court of the City of Norfolk.     On May 17,

1994, Battle filed a petition for rehearing in the general

district court.   The City of Norfolk filed a petition for writ of

prohibition in the circuit court seeking to prohibit any

rehearing in the general district court.   On December 13, 1995

the circuit court issued the writ.   Battle appealed the order to
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
the Supreme Court of Virginia.    The criminal charges were not set

for trial in the circuit court while the controversy over the

petition for writ of prohibition was litigated.      The same judge

presided over the criminal matters and the civil proceeding for

an extraordinary writ.

     On April 9, 1996, the trial judge issued a "Notice of

Issuance of Writ of Prohibition" and directed Battle to appear

before the Clerk of the Norfolk Circuit Court on April 23, 1996

to advise the court of her "intent as such may be available

pursuant to your appellate remedies due to your convictions in

the General District Court for the City of Norfolk, Criminal

Division."   The parties agree that appellate proceedings over the

petition for writ of prohibition had concluded at that time.      The

record reflects no order setting the case for trial; however, the

trial commenced on April 28, 1997.       On that day prior to trial,

Battle moved for dismissal of the charges because the case had

not been tried within the statutory constraints of the speedy

trial provisions of Code § 19.2-243.      The court denied the

motion, the cases were heard by a jury and the jury returned a

verdict of not guilty of assault and guilty of disorderly

conduct.
     Code § 19.2-243 provides in part:
          [w]here a case is before a circuit court on
          appeal from a conviction of a misdemeanor or
          traffic infraction in a district court, the
          accused shall be forever discharged from
          prosecution for such offense if the trial de
          novo in the circuit court is not commenced
          (i) within five months from the date of the



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          conviction if the accused has been held
          continuously in custody or (ii) within nine
          months of the date of the conviction if the
          accused has been recognized for his
          appearance in the circuit court.

          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;

          2.  By the witnesses for the Commonwealth
                being enticed or kept away, or
          prevented     from attending by sickness or
          accident;
          3.  By the granting of a separate trial at
                the request of a person indicted
          jointly     with others for a felony;

          4.  By continuance granted on the 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 the
          failure of the         accused or his counsel
          to make a timely        objection to such a
          motion by the              attorney for the
          Commonwealth, or by           reason of his
          escaping from jail or            failing to
          appear according to his
          recognizance; or

          5.   By the inability of the jury to agree in
               their verdict.

          But the time during the pendency of any
          appeal in any appellate court shall not be
          included as applying to the provisions of
          this section.


     We do not reach the issue of whether the time expended

during an appeal of a civil proceeding for an extraordinary writ

ancillary to a criminal prosecution is chargeable to the




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Commonwealth under Code § 19.2-243.      After appellate proceedings

concluded, twelve months elapsed from April 23, 1996 to the date

of the trial on April 28, 1997.    The record reflects no

justifiable basis for delay in setting the case for trial.

     We have previously stated that,
          Code § 19.2-241 requires that "[t]he judge of
          each circuit court shall fix a day of his [or
          her] court when the trial of criminal cases
          will commence" and that the accused "shall be
          tried within the time limits fixed in [Code]
          § 19.2-243." This Code section is, in part,
          a legislative acknowledgement of the obvious
          imperative that the trial judge, rather than
          the prosecutor or the accused, controls the
          trial docket. Code § 19.2-243 contemplates
          an orderly procedure for setting criminal
          trial dates to ensure that the accused is
          afforded a statutory speedy trial without
          penalizing the Commonwealth for delays not
          fairly attributable to it.


Baity v. Commonwealth, 16 Va. App. 497, 502, 431 S.E.2d 891, 894

(1993).

     The record is devoid of any permissible reason for delay in

the setting of Battle's case for trial for the twelve-month

period between April 23, 1996 and April 28, 1997.     Accordingly,

the trial judge erred in denying Battle's motion to dismiss the

prosecution for failure to comply with the speedy trial

provisions of Code § 19.2-243.    The conviction is reversed and

dismissed.

                                            Reversed and dismissed.




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