Raymond Louis Harvey, Jr. v. Commonwealth of Virginia, 67 Va. App. 336

Raymond Harvey was indicted Nov 3, 2014 on attempted murder, aggravated malicious wounding, and two firearm counts; served Nov 5, 2014. Arrested Oct 14, 2014.
Trial originally set within the statutory five-month speedy-trial period; Commonwealth sought a continuance April 23–24, 2015 over Harvey’s counsel’s objections. The April 24 order expressly recorded that Harvey was not waiving speedy-trial rights and that a new trial date was set for June 12, 2015.
At the April 24 hearing counsel twice said “yes” during a colloquy in which the Commonwealth stated June 12 was within the speedy-trial period; counsel also asked the court to include in the order that Harvey was not waiving his speedy-trial rights.
Harvey moved to dismiss June 5, 2015 arguing Code § 19.2-243 speedy-trial had run; the trial court (Judge Weckstein) ruled June 10 that Harvey waived the speedy-trial defense by consenting to the June 12 date and denied dismissal.
Trial proceeded June 12, 2015; Harvey was convicted and sentenced. On appeal the Court of Appeals reversed, holding the continuance did not toll the statutory speedy-trial period because Harvey objected and expressly preserved his rights in the court order.

Issue	Plaintiff's Argument (Harvey)	Defendant's Argument (Commonwealth)	Held
Whether the April 24 continuance tolled the five-month speedy-trial period under Code § 19.2-243	Harvey: he objected to the continuance and the April 24 order expressly states he did not waive speedy-trial; time between April 24 and June 12 did not toll	Commonwealth: counsel’s repeated “yes” and agreement that June 12 was within speedy-trial constitute concurrence/waiver; approbate-reprobate and invited-error doctrines bar complaint	Held: Reversed — continuance did not toll statute; trial occurred after five-month period and dismissal should have been granted
Whether counsel’s on-the-record affirmations estop Harvey via approbate-reprobate or invited-error doctrines	Harvey: his counsel only acknowledged availability and preserved objection on the record; she did not intentionally waive rights	Commonwealth: counsel’s statements amounted to affirmative agreement to the date and to the assertion it was within speedy-trial, so Harvey cannot now complain	Held: Court rejects Commonwealth’s approbate-reprobate/invited-error arguments — counsel did not knowingly waive, and the April 24 order controls

McElroy v. Commonwealth, 153 Va. 877, 149 S.E. 481 (Va. 1929) (continuance practice and need for affidavits when appropriate)
Brown v. Commonwealth, 57 Va. App. 381, 702 S.E.2d 582 (Va. Ct. App. 2010) (Commonwealth bears burden to justify speedy-trial delay)
McCray v. Commonwealth, 44 Va. App. 334, 605 S.E.2d 291 (Va. Ct. App. 2004) (defense counsel’s affirmative agreement to a date outside statutory period can toll speedy-trial)
Baity v. Commonwealth, 16 Va. App. 497, 431 S.E.2d 891 (Va. Ct. App. 1993) (review requires considering the whole record and court orders)
Fowlkes v. Commonwealth, 218 Va. 763, 240 S.E.2d 662 (Va. 1978) (prosecution bears responsibility to vindicate speedy trial)
Godfrey v. Commonwealth, 227 Va. 460, 317 S.E.2d 781 (Va. 1984) (defendant does not waive speedy trial merely by failing to demand trial)
Baker v. Commonwealth, 25 Va. App. 19, 486 S.E.2d 111 (Va. Ct. App. 1997) (providing available dates outside statutory period does not necessarily waive speedy-trial right)
Batts v. Commonwealth, 30 Va. App. 1, 515 S.E.2d 307 (Va. Ct. App. 1999) (invited-error/waiver exceptions where court exceeds statutory authority)
Dufresne v. Commonwealth, 66 Va. App. 644, 791 S.E.2d 335 (Va. Ct. App. en banc 2016) (approbate-reprobate and invited-error doctrines can bar appellate review when counsel affirms an erroneous position)
Sullivan v. Commonwealth, 157 Va. 867, 161 S.E. 297 (Va. 1931) (accused bound by acquiescence to certain procedural changes)