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Harvey v. Commonwealth

Court of Appeals of Virginia

June 19, 2018

Raymond Louis Harvey, Jr., Appellant,
v.
Commonwealth of Virginia, Appellee.

          In the Court of Appeals of Virginia on Tuesday the 19th day of June, 2018., 11th day of April, 2017.

          FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE David B. Carson, [2] Judge Circuit Court Nos. CR14-1774, CR14-1775, CR14-1801 and CR14-1802.

         Upon a Petition for Rehearing

          Suzanne Moushegian (Moushegian Law, P.L.L.C., on briefs), for appellant.

          Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Before Chief Judge Huff, Judges Humphreys, Petty, Beales, Alston, Chafin, Decker, O'Brien, Russell, AtLee and Malveaux.

         In accordance with the unpublished order of this Court entered on June 19, 2018, the opinion previously rendered by this Court on February 21, 2017 is withdrawn, the mandate entered on that date is vacated, and the judgment of the trial court is affirmed.

         This order shall be published and certified to the trial court.

         On March 6, 2017 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on February 21, 2017, and grant a rehearing en banc on the issue(s) raised in the petition.

         On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia, the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.

         The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and served on opposing counsel. In addition, four printed copies of each brief shall be filed. It is further ordered that the appellee shall file an electronic version and four additional copies of the appendix previously filed in this case. [1]

          OPINION

          ROSSIE D. ALSTON, JR. JUDGE.

         Raymond 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.

         Background

         On 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.

         On 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."

         Again, 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.

         On 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.[3] 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.
[Appellant]: Yes.
[Commonwealth]: [Counsel] and I both have done the math and that is still within the
[Appellant]: Yes.
[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.

         The order entered by the trial court on April 24, 2015 read, in pertinent part:

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 record.
. . . .
Whereupon . . . the Commonwealth stated the jury trial date is June 12, ...

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