Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Turner v. Commonwealth

Court of Appeals of Virginia

August 8, 2017

LEE ANTONIO TURNER
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF AUGUSTA COUNTY Charles L. Ricketts, III, Judge

          Eric M. Anderson, Assistant Public Defender, for appellant.

          Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, Alston and Russell Argued at Lexington, Virginia.

          OPINION

          WILLIAM G. PETTY JUDGE.

         Lee Antonio Turner argues on appeal that, because of the Commonwealth's violation of the speedy trial statute, the trial court erred in denying his motion to dismiss the felony indictment against him, along with an ancillary misdemeanor charge. We agree regarding the felony conviction, [1] but affirm the misdemeanor conviction.

         Background

         Turner was arrested for felony assault and battery of a family member, third offense, in violation of Code § 18.2-57.2 and for misdemeanor use of profane, threatening, or indecent language over public airways in violation of Code § 18.2-427. He was continually held in custody for the duration of the prosecution. On October 14, 2015, after a preliminary hearing, the Augusta County Juvenile and Domestic Relations District Court certified the felony charge to the grand jury and, at the same time, certified the ancillary misdemeanor to the circuit court pursuant to Code § 19.2-190.1. On November 23, 2015, the grand jury indicted Turner for the felony offense. On the same day, Turner filed with the trial court a motion in limine[2] to exclude two prior convictions from the juvenile and domestic relations district court. Turner argued the convictions could not qualify as the predicate convictions for the "third offense" element of the crime for which he was indicted; they were therefore irrelevant and consequently inadmissible. A hearing on the motion was originally set for January 22, 2016, but the court was closed that day due to inclement weather. The hearing was rescheduled, and the trial court heard oral argument on the motion on February 8, 2016. At the conclusion of that hearing, the trial court took the motion under advisement. The trial court issued a letter opinion on February 16, 2016, denying Turner's motion to exclude and asking defense counsel to prepare the order. The order, noting defense counsel's objection, was entered on March 11, 2016.

         The trial court scheduled a hearing on April 15, 2016, to set an initial trial date. During that hearing, Turner objected to the setting of any trial date because the speedy trial time had run. The trial court entered a continuance order on April 20, 2016, setting the case for trial on May 2, 2016. The order noted Turner's speedy trial objection and continued argument on that objection to May 2. On May 2, Turner argued the indictment should be dismissed because the Commonwealth failed to commence Turner's trial within the time set by Code § 19.2-243. The trial court denied Turner's motion. The trial court subsequently found Turner guilty; this appeal followed.

         Analysis

         A. Misdemeanor Conviction

         We first address Turner's appeal of the ancillary misdemeanor conviction of using profane, threatening, or indecent language over public airways in violation of Code § 18.2-427. Code § 19.2-243 provides that

[w]here a case is before a circuit court on appeal from a conviction of a misdemeanor . . . 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 . . . within five months from the date of the conviction if the accused has been held continuously in custody . . . .

         Here, however, the accused was never convicted in the district court. Instead the district court certified the ancillary misdemeanor to the circuit court pursuant to Code § 19.2-190.1, which states, "Upon certification of any felony offense pursuant to this chapter, the court shall also certify any ancillary misdemeanor offense to the clerk of the circuit court provided that the attorney for the Commonwealth and the accused consent to such ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.