RAYMOND LOUIS HARVEY, JR.
COMMONWEALTH OF VIRGINIA
THE CIRCUIT COURT OF THE CITY OF ROANOKE David B. Carson,
Suzanne Moushegian (Moushegian Law, P.L.L.C., on briefs), for
J. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Present: Chief Judge Huff, Judges Humphreys and Alston Argued
at Lexington, Virginia
D. ALSTON, JR. JUDGE
Louis Harvey, Jr. (appellant) appeals his convictions for
attempted murder in violation of Code §§ 18.2-32
and 18.2-26, use of a firearm in the commission of attempted
murder in violation of Code § 18.2-53.1, aggravated
malicious wounding in violation of Code § 18.2-51.2, and
use of a firearm in the commission of aggravated malicious
wounding in violation of Code § 18.2-53.1. Appellant
argues that the trial court erred in denying his motion to
dismiss the indictments based on speedy trial violations. We
agree and reverse the decision of the trial court.
October 14, 2014, appellant was arrested on a felony charge
for malicious wounding. Appellant was directly indicted on
November 3, 2014 for attempted murder pursuant to Code
§§ 18.2-32 and 18.2-26, aggravated malicious
wounding pursuant to Code § 18.2-51.2, and two counts of
use of a firearm in the commission of a felony pursuant to
Code § 18.2-53.1. Appellant was served with the
indictments on November 5, 2014.
February 23, 2015, both parties jointly moved for a
continuance of the trial date, which was granted. The parties
signed the continuance order reasoning that "[b]oth
parties need[ed] additional time to review [forensic work]
and continue the negotiation process."
on April 23, 2015, within twenty-four hours of the scheduled
jury trial, which was scheduled within speedy trial, the
Commonwealth orally moved for a continuance due to the
absence of a subpoenaed witness, to which appellant
strenuously objected. Appellant argued that the Commonwealth
had not shown good cause and relied on McElroy v.
Commonwealth, 153 Va. 877, 149 S.E. 481 (1929), in
arguing that when no affidavits are filed, the trial court
may readily deny a continuance motion. Nevertheless, the
trial court granted the motion and placed the matter on the
docket for rescheduling the following morning.
April 24, 2015, the case continued on the docket for
appellant's motion for bond and further consideration and
argument on the Commonwealth's motion to continue, which
was granted the day prior. After denying appellant's
objection once again, appellant requested, and the trial
court found it reasonable, to include within the continuance
order that appellant was not waiving his speedy trial rights.
The remainder of the hearing focused on appellant's
motion for bond, during which the context of an exchange
between the Assistant Commonwealth's Attorney, the court,
and intermittently appellant's counsel
ensued. While discussing the procedural posture of
the case, and the appellant's unequivocal entreaty to
have the record appropriately reflect his distinct speedy
trial concerns, the Commonwealth interjected, and the
following conversation ensued:
[Commonwealth]: Your Honor before we get to[o] far away[, ] I
appreciate everything that [appellant's counsel] has just
said and I don't really . . . I may disturb a little bit
but that stands to reason that we have picked a trial date I
believe June 12th.
[Commonwealth]: [Counsel] and I both have done the math and
that is still within the
[Commonwealth]: The time frame set.
[Appellant]: Yes, yes.
[Commonwealth]: We both agree that that is within the
Commonwealth's statutory limit of speedy trial. And that
is as the Court has stated there may be need for a further
continuance on this case.
order entered by the trial court on April 24, 2015 read, in
These matters were originally set for a jury trial [on April
24, 2015], and for all of the reasons that were placed on the
record at a hearing on April 23, 2015, today's trial was
continued at the request of the Commonwealth, and objected to
by [appellant] for all of the reasons as stated on the
. . . .
Whereupon . . . the Commonwealth stated the jury trial date
is June 12, 2015 at 9:00 a.m.
Whereupon [appellant's counsel] stated that because the
continuance is granted at the Commonwealth's request, she
is not waiving any of the allowable time under the statute,
and requested the [trial c]ourt to include in this Order that
[appellant] is not waiving his speedy trial rights with this
continuance. The [trial c]ourt stated this will be included
in the Order.
5, 2015, appellant filed a motion to dismiss the indictments
arguing that he had been denied his right to a speedy trial
guaranteed under the Sixth Amendment to the United States
Constitution, Article I, Section 8 of the Constitution of the
Commonwealth of Virginia, and appellant's statutory right
pursuant to Code § 19.2-243. At a hearing on June 9,
2015, before a judge designate of the trial court, the
Commonwealth argued that appellant cannot approbate and
reprobate, and alternatively, that appellant invited any
error because during the April 24, 2015 hearing he took the
position that his speedy trial rights were not violated. The
Commonwealth further argued that the time between December 1,
2014 and February 24, 2015 was excludable because appellant
did not object to setting a new trial on February 24, 2015.
The Commonwealth also stated that the period between November
3, 2014 and November 20, 2014 was waived as to speedy trial
because during that time appellant requested a
court-appointed attorney, the court appointed one for him,
and then continued the case to December 1, 2014 for docket
responded that the Commonwealth was using an incorrect
assessment of law and that speedy trial began to run as soon
as probable cause was found. Thus, according to appellant,
"when [appellant] was found with probable cause on
[November 3, 2014] it was set over to [December 1, 2014]
which is the Court's docket calendar day at which point
it was set over to [February 24, 2015] all of [which was]
within the statutory period." Further, appellant argued
that he does not bear the burden of objecting and invoking
his right to speedy trial every time the court sets a trial
trial court replayed the recording from the February 24, 2015
hearing and despite the clear recitations in the order to the
contrary, believed that both the Commonwealth and appellant
agreed that the new trial date of June 12, 2015 was within
speedy trial. Appellant argued that the trial court was
taking the discussion out of context, that appellant was
simply acknowledging that counsel was available on
that date, and reiterated that appellant objected to the
continuance, invoking his right to speedy trial as evidenced
by the clear language in the order. Appellant's counsel
stated that she
was responding yes while [the Commonwealth] was talking.
Because when he [was] talking and he is trying to make his
motion, I am saying yes, yes we have agreed to [June 12,
2015]. That is what I am responding [to]. . . . [Appellant]
is in no way obligated to make sure that he is tried within