Opinion
WILLIS, J.
On appeal from her conviction of credit card theft, Ruth Arnold contends that the trial court erred (1) in permitting the Commonwealth to circumvent Code § 19.2-243 by entering a nolle prosequi without notice to her and then reindicting her on an identical charge, and (2) in denying her constitutional right to a speedy trial. We find no error and affirm the judgment of the trial court.
Code § 19.2-243 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; and if the accused is not held in custody but has been recognized for his appearance in the circuit court to answer for such offense, he shall be forever discharged from prosecution therefor if no trial is commenced in the circuit court within nine months from the date such probable cause was found.
[220]*220The 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;
(4) By continuance granted on the motion of the accused, or by his concurrence in such a motion by the attorney for the Commonwealth.
At a preliminary hearing held October 3, 1991, the General District Court for the City of Bristol found probable cause that Ms. Arnold aided and abetted the theft and fraudulent use of a credit card in violation of Code § 18.2-26 (sic), as charged in a warrant specifying that offense, and certified the case to the grand jury. On November 26, 1991, a grand jury indicted Ms. Arnold for feloniously obtaining a VISA credit card with the intent to use it in violation of Code § 18.2-192. The case was scheduled to be tried on December 16, 1991. On motion of the Commonwealth, with Ms. Arnold’s concurrence, the trial was continued to March 4, 1992. On March 4, the Commonwealth moved for a continuance because two witnesses, who had not been subpoenaed, failed to appear. The Commonwealth’s Attorney represented that one witness was hospitalized, and that he had just learned the location of the other in Tennessee. Over Ms. Arnold’s objection, the trial court granted a continuance to June 4, 1992. On June 4, Detective McVey, who had been subpoenaed, was hospitalized and did not appear. On the Commonwealth’s motion, and over Ms. Arnold’s objection, the trial was continued to June 24, 1992. On that day, the trial was again continued.
The record is unclear why the trial did not commence on June 24, 1992. It does not appear that the June 24 continuance was on Ms. Arnold’s motion or with her concurrence.
On June 30, 1992, on motion of the Commonwealth without notice to Ms. Arnold, the trial court entered a nolle prosequi. On August 25, 1992, the Commonwealth reindicted Ms. Arnold on the same charge. The new charge was set for trial on January 11, [221]*2211993.
On December 8, 1992, Ms. Arnold filed a motion to dismiss, asserting violation of her statutory and constitutional rights to a speedy trial. The trial court denied this motion, finding that Ms. Arnold had not been prejudiced and that no evidence had been lost. On January 11, 1993, Ms. Arnold was tried and convicted.
CODE § 19.2-243
From October 3, 1991 until January 11, 1993, Ms. Arnold was not held in custody. Therefore, Code § 19.2-243 required that trial of the charge against her be commenced within nine months, subject to the statutory exclusions.
Ms. Arnold first contends that the Commonwealth violated Code § 19.2-243 by failing to commence her trial until January 11, 1993, more than nine months after the October 3, 1991 finding of probable cause. Excluding the seventy-nine days that elapsed from December 16, 1991 until March 4, 1992 and the twenty days that elapsed from June 4, 1992 until June 24, 1992, which Ms. Arnold concedes are not chargeable to the Commonwealth, four hundred and one days elapsed from the preliminary hearing until Ms. Arnold’s trial. Ms. Arnold argues that because this passage of time far exceeds the nine months permitted by Code § 19.2-243, that statute requires dismissal of the charge against her. We disagree.
The warrant set forth a specific charge as to which probable cause was found and which was presented in the November 26, 1991 indictment. The nolle prosequi of the November 26, 1991 indictment discharged Ms. Arnold from that charge. “Under Virginia procedure, a nolle prosequi is a discontinuance which discharges the accused from liability on the indictment to which the nolle prosequi is entered.” Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269, 273 (1977), cert. denied, 434 U.S. 1016 (1978). Thus, the nolle prosequi of June 30, 1992 terminated the charge set forth in the November 26, 1991 indictment, into which the charge specified in the warrant had been merged. This was done within nine months of the preliminary hearing.
A new indictment is a new charge, distinct from the original charge or indictment. “ ‘[W]hen an original indictment is supplanted by a second indictment, the terms contemplated by [Code [222]*222§ 19.2-243] are to be counted from the time of the second indictment.’ ” Presley v. Commonwealth, 2 Va. App. 348, 350, 344 S.E.2d 195, 196 (1986) (quoting Brooks v. Peyton, 210 Va. 318, 322, 171 S.E.2d 243, 246 (1969)). See also Miller, 217 Va. at 934, 234 S.E.2d at 273. Because the August 25, 1992 indictment was tried on January 11, 1993, within nine months, Code § 19.2-243 was satisfied.
The nolle prosequi of the November 26, 1991 indictment laid to rest that indictment and the underlying warrant without disposition, as though they had never existed. The slate was clean until the return of the August 25, 1992 indictment. Had the Commonwealth chosen to make no charge until that time, it would have been within its rights in making that choice. The return of the August 25, 1992 indictment created a situation no different.
Ms. Arnold next contends that the Commonwealth was negligent in failing to secure the attendance of its witnesses and that the nolle prosequi was entered merely to deny her right to a speedy trial. The record does not support this contention.
The record discloses that two witnesses, young girls, moved their residences during the course of the original prosecution and that the Commonwealth had difficulty locating those witnesses. One of those witnesses and the investigating police officer were hospitalized. Each incident of sickness required a continuance. The continuance from March 4, 1992 to June 4, 1992 was longer than necessary. However, the record discloses no basis for finding that this resulted from unfair or oppressive tactics by the Commonwealth or from any reason other than honest perceptions of scheduling requirements.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion
WILLIS, J.
On appeal from her conviction of credit card theft, Ruth Arnold contends that the trial court erred (1) in permitting the Commonwealth to circumvent Code § 19.2-243 by entering a nolle prosequi without notice to her and then reindicting her on an identical charge, and (2) in denying her constitutional right to a speedy trial. We find no error and affirm the judgment of the trial court.
Code § 19.2-243 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; and if the accused is not held in custody but has been recognized for his appearance in the circuit court to answer for such offense, he shall be forever discharged from prosecution therefor if no trial is commenced in the circuit court within nine months from the date such probable cause was found.
[220]*220The 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;
(4) By continuance granted on the motion of the accused, or by his concurrence in such a motion by the attorney for the Commonwealth.
At a preliminary hearing held October 3, 1991, the General District Court for the City of Bristol found probable cause that Ms. Arnold aided and abetted the theft and fraudulent use of a credit card in violation of Code § 18.2-26 (sic), as charged in a warrant specifying that offense, and certified the case to the grand jury. On November 26, 1991, a grand jury indicted Ms. Arnold for feloniously obtaining a VISA credit card with the intent to use it in violation of Code § 18.2-192. The case was scheduled to be tried on December 16, 1991. On motion of the Commonwealth, with Ms. Arnold’s concurrence, the trial was continued to March 4, 1992. On March 4, the Commonwealth moved for a continuance because two witnesses, who had not been subpoenaed, failed to appear. The Commonwealth’s Attorney represented that one witness was hospitalized, and that he had just learned the location of the other in Tennessee. Over Ms. Arnold’s objection, the trial court granted a continuance to June 4, 1992. On June 4, Detective McVey, who had been subpoenaed, was hospitalized and did not appear. On the Commonwealth’s motion, and over Ms. Arnold’s objection, the trial was continued to June 24, 1992. On that day, the trial was again continued.
The record is unclear why the trial did not commence on June 24, 1992. It does not appear that the June 24 continuance was on Ms. Arnold’s motion or with her concurrence.
On June 30, 1992, on motion of the Commonwealth without notice to Ms. Arnold, the trial court entered a nolle prosequi. On August 25, 1992, the Commonwealth reindicted Ms. Arnold on the same charge. The new charge was set for trial on January 11, [221]*2211993.
On December 8, 1992, Ms. Arnold filed a motion to dismiss, asserting violation of her statutory and constitutional rights to a speedy trial. The trial court denied this motion, finding that Ms. Arnold had not been prejudiced and that no evidence had been lost. On January 11, 1993, Ms. Arnold was tried and convicted.
CODE § 19.2-243
From October 3, 1991 until January 11, 1993, Ms. Arnold was not held in custody. Therefore, Code § 19.2-243 required that trial of the charge against her be commenced within nine months, subject to the statutory exclusions.
Ms. Arnold first contends that the Commonwealth violated Code § 19.2-243 by failing to commence her trial until January 11, 1993, more than nine months after the October 3, 1991 finding of probable cause. Excluding the seventy-nine days that elapsed from December 16, 1991 until March 4, 1992 and the twenty days that elapsed from June 4, 1992 until June 24, 1992, which Ms. Arnold concedes are not chargeable to the Commonwealth, four hundred and one days elapsed from the preliminary hearing until Ms. Arnold’s trial. Ms. Arnold argues that because this passage of time far exceeds the nine months permitted by Code § 19.2-243, that statute requires dismissal of the charge against her. We disagree.
The warrant set forth a specific charge as to which probable cause was found and which was presented in the November 26, 1991 indictment. The nolle prosequi of the November 26, 1991 indictment discharged Ms. Arnold from that charge. “Under Virginia procedure, a nolle prosequi is a discontinuance which discharges the accused from liability on the indictment to which the nolle prosequi is entered.” Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269, 273 (1977), cert. denied, 434 U.S. 1016 (1978). Thus, the nolle prosequi of June 30, 1992 terminated the charge set forth in the November 26, 1991 indictment, into which the charge specified in the warrant had been merged. This was done within nine months of the preliminary hearing.
A new indictment is a new charge, distinct from the original charge or indictment. “ ‘[W]hen an original indictment is supplanted by a second indictment, the terms contemplated by [Code [222]*222§ 19.2-243] are to be counted from the time of the second indictment.’ ” Presley v. Commonwealth, 2 Va. App. 348, 350, 344 S.E.2d 195, 196 (1986) (quoting Brooks v. Peyton, 210 Va. 318, 322, 171 S.E.2d 243, 246 (1969)). See also Miller, 217 Va. at 934, 234 S.E.2d at 273. Because the August 25, 1992 indictment was tried on January 11, 1993, within nine months, Code § 19.2-243 was satisfied.
The nolle prosequi of the November 26, 1991 indictment laid to rest that indictment and the underlying warrant without disposition, as though they had never existed. The slate was clean until the return of the August 25, 1992 indictment. Had the Commonwealth chosen to make no charge until that time, it would have been within its rights in making that choice. The return of the August 25, 1992 indictment created a situation no different.
Ms. Arnold next contends that the Commonwealth was negligent in failing to secure the attendance of its witnesses and that the nolle prosequi was entered merely to deny her right to a speedy trial. The record does not support this contention.
The record discloses that two witnesses, young girls, moved their residences during the course of the original prosecution and that the Commonwealth had difficulty locating those witnesses. One of those witnesses and the investigating police officer were hospitalized. Each incident of sickness required a continuance. The continuance from March 4, 1992 to June 4, 1992 was longer than necessary. However, the record discloses no basis for finding that this resulted from unfair or oppressive tactics by the Commonwealth or from any reason other than honest perceptions of scheduling requirements. Likewise, the continuance from June 4, 1992 to June 24, 1992 was longer than necessary. However, this continuance was but for twenty days, and the record discloses no basis for finding that the sufficiency of a lesser delay was apparent at the time the June 24, 1992 date was set. In any event, Ms. Arnold does not, in this appeal, contest the granting of the continuances. She merely asserts the delays as violative of her statutory and constitutional speedy trial rights.
The Commonwealth entered its nolle prosequi in the face of difficulty in securing the attendance of its witnesses and in an effort to preserve a serious criminal charge under the rule of Presley. The record suggests no oppressiveness or unfair trial tactic.
[223]*223THE CONSTITUTIONAL RIGHT
Ms. Arnold next contends that the trial court violated her constitutional right to a speedy trial. We disagree. To determine whether a defendant’s constitutional right to a speedy trial has been violated, we must evaluate the conduct of both the Commonwealth and the defendant by considering four factors: “ ‘(1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right [to a speedy trial]; and (4) prejudice to the defendant.’ ” Kelley v. Commonwealth, 17 Va. App. 540, 544, 439 S.E.2d 616, 618-19 (1994) (quoting Holliday v. Commonwealth, 3 Va. App. 612, 616, 352 S.E.2d 362, 364 (1987)).
The fourteen month delay from Ms. Arnold’s initial indictment to her trial requires us to address the three additional factors listed in Kelley.
First, we must examine the reason for the delay by determining “ ‘what [part of the delay] was attributable to the defendant and, . . . what part of any delay attributable to the [Commonwealth] was justifiable.’ ” Id. (quoting Fowlkes v. Commonwealth, 218 Va. 763, 767, 240 S.E.2d 662, 664 (1978)).
The first delay was a continuance from December 16, 1991 to March 4, 1992. This delay should not be attributed to the Commonwealth because Ms. Arnold concurred. See Williamson v. Commonwealth, 13 Va. App. 655, 658, 414 S.E.2d 609, 610 (1992).
The next two continuances, from March 4, 1992 to June 4, 1992 and from June 4, 1992 to June 24, 1992, were caused by the failure of two of the Commonwealth’s witnesses to appear due to illness. Barker v. Wingo, 407 U.S. 514, 536 (1972). Although the sickness of important witnesses justified the continuances, the record sets forth no reason for the length of delay from March 4, 1992 to June 4, 1992, and that delay appears excessive. The Commonwealth was obliged to bring Ms. Arnold to trial with reasonable promptness. It failed to do so. However, this was not due to bad faith or oppressive trial tactics, but rather to difficulty in locating witnesses and to sickness of witnesses.
The delay from June 24, 1992 to June 30, 1992 should count against the Commonwealth. The delay from June 30, 1992 to August 25, 1992, based upon the Commonwealth’s need to secure [224]*224its witnesses and to prepare its case for further prosecution, should not count against the Commonwealth. The delay from August 25, 1992 to January 11, 1993, based on scheduling with the concurrence of Ms. Arnold, should not count against the Commonwealth.
Upon consideration of the various delays and the reasons for those delays, we find that the delay from October 3, 1991 to January 11, 1993 should count but slightly against the Commonwealth.
Next, we consider whether Ms. Arnold asserted her right to a speedy trial. We find that she did. She objected to the continuances of March 4 and June 4, 1992. She was not given notice of the motion for nolle prosequi. She moved for a dismissal with reasonable promptness as soon as she could be certain that the statutory time had elapsed.
Finally, in considering the fourth factor, prejudice, we look to three interests that the Supreme Court has identified as protected by the Sixth Amendment speedy trial right. These are: “(1) preventing oppressive pretrial incarceration; (2) minimizing the accused’s anxiety; and (3) limiting the possibility that the defense will be impaired.” Kelley, 17 Va. App. at 546, 439 S.E.2d at 620 (citing Barker, 407 U.S. at 532). Ms. Arnold was not incarcerated. Although she claims that she suffered anxiety due to the delay, the record discloses that she showed no great interest in a speedy resolution of her case. Finally, she makes no claim that her defense was impaired, other than that the delay allowed a prosecution witness to testify against her. She demonstrated no actual prejudice. We will not speculate that her defense was impaired. See United States v. Loud Hawk, 474 U.S. 302, 315 (1986). We find that Ms. Arnold suffered no prejudice by the delay.
Summarizing our findings under the four-part test developed in Barker, we hold: (1) the length of delay requires investigation into the reasons for delay; (2) the Commonwealth should have brought the case to trial sooner but bears only slight responsibility for its failure to do so; (3) Ms. Arnold was not tardy in asserting her speedy trial right; and (4) Ms. Arnold suffered no prejudice by the delay. Balancing these findings, we hold that Ms. Arnold was not denied her Sixth Amendment right to a speedy trial.
[225]*225For these reasons, we affirm the trial court’s decision.
Affirmed.
Koontz, J., concurred.