Commonwealth of Virginia v. Markcus Anthony White
0831162
Va. Ct. App. UNov 1, 2016Background
- Markcus Anthony White was charged with possession with intent to distribute (third or subsequent); probable cause was found at a September 14, 2015 preliminary hearing and the five-month speedy-trial clock began the next day.
- Multiple circuit-court Scheduling Orders were entered between October 2015 and May 2016; many contained handwritten waiver language with varying or missing start/end dates and several orders had scrivener's errors in the year.
- Some orders expressly waived speedy-trial rights with handwritten expiration dates (e.g., “until 11/12/15,” “until 1/7/16”); other orders omitted the case number or had dates that predated the order signature, creating ambiguity or null waivers.
- The Commonwealth did not try White within 152+ days (the five-month statutory limit) from the probable-cause finding; the circuit court dismissed the indicted charge for violation of Code § 19.2-243.
- The Commonwealth appealed. The Court of Appeals reviewed statutory interpretation de novo but accepted the trial court’s historical findings unless plainly wrong. The appellate court found the Commonwealth failed to meet its burden for time not charged to it.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (White) | Held |
|---|---|---|---|
| Whether White waived speedy-trial time by signing Scheduling Orders lacking explicit waiver start dates | Orders with an explicit end date but no start date constitute broad (general) waivers covering prior delay | Waivers with an explicit end date are limited and begin on the order date, so prior time still counts against the Commonwealth | Waivers with an end date but no start date were limited and began on the order date; the Commonwealth’s view was rejected |
| Whether an order signed Feb 10, 2016 that sets a Feb 4, 2016 date and waives speedy trial until 2/4/16 effectively waived time Jan 7–Feb 4 | The waiver should be treated as effective (bridging the gap) | The waiver is a nullity because its effective end date predates the signature; hence Jan 7–Feb 4 is chargeable to the Commonwealth | The Feb 10 order’s waiver is void; Jan 7–Feb 4 (28 days) counts against the Commonwealth |
| Whether the period Feb 4–Apr 19, 2016 was waived or attributable to White | The scheduling context supports attributing delay to the defendant | No record shows White agreed to the delay; absent concurrence or motion, delay is chargeable to the Commonwealth | Feb 4–Apr 19 (75 days) charged to the Commonwealth |
| Whether the May 13–17 continuance (withdrawal and appointment of new counsel) counts against the Commonwealth | Delay between May 13 and May 17 should be charged to the Commonwealth because court reset | The continuance was caused by defense counsel withdrawal and appointment of new counsel | May 13–17 attributed to White; does not count against the Commonwealth |
Key Cases Cited
- Mitchell v. Commonwealth, 30 Va. App. 520 (distinguishes general vs. limited waivers of statutory speedy-trial rights)
- Ballance v. Commonwealth, 21 Va. App. 1 (the five-month requirement converts to 152+ days; time to initial trial date counts against the Commonwealth)
- Cantwell v. Commonwealth, 2 Va. App. 606 (defendant need not act to preserve statutory speedy-trial rights; silence is not concurrence unless it causes delay)
- Godfrey v. Commonwealth, 227 Va. 460 (burden is on the Commonwealth to explain delay if trial not held within statutory time)
- Robinson v. Commonwealth, 28 Va. App. 148 (speedy-trial clock begins the day after the preliminary hearing where probable cause is found)
- Stephens v. Commonwealth, 225 Va. 224 (when delay is challenged, the Commonwealth must show what delay is attributable to defendant and what prosecution delay is justifiable)