Court of Appeals of Virginia on Tuesday the 19th day of June,
2018., 11th day of April, 2017.
THE CIRCUIT COURT OF THE CITY OF ROANOKE David B. Carson,
Judge Circuit Court Nos. CR14-1774, CR14-1775, CR14-1801 and
Petition for Rehearing
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.
Chief Judge Huff, Judges Humphreys, Petty, Beales, Alston,
Chafin, Decker, O'Brien, Russell, AtLee and Malveaux.
accordance with the unpublished order of this Court entered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Court on February 21, 2017 is withdrawn, the mandate entered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
order shall be published and certified to the trial court.
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
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.
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. 
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
[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, ...