COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton, Coleman, Willis, 

 Elder, Bray, Fitzpatrick, Annunziata and Overton 

Argued at Richmond, Virginia 

JAMES THOMAS STINNIE, JR. 

 OPINION BY 

v. Record No. 0706-94-2 JUDGE ROSEMARIE ANNUNZIATA 

 JULY 23, 1996 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

 FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Jay T. Swett, Judge 

 Richard A. DeLoria for appellant. 

 Michael T. Judge, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 By opinion issued February 6, 1996, a panel of this Court 

reversed the conviction for statutory burglary of James Thomas 

Stinnie, Jr. on the ground that the Commonwealth failed to 

commence the trial of his case within five months of finding 

probable cause, in violation of Code § 19.2-243. Stinnie v. 

Commonwealth, 21 Va. App. 610, 466 S.E.2d 752 (1996). A 

rehearing en banc was granted to determine whether the delay in 

the commencement of Stinnie's case is properly attributable to 

Stinnie under the speedy trial statute. We conclude that the 

delay was attributable to Stinnie and affirm his conviction. 

 Code § 19.2-243 provides, in part: 

 Where a general district court has found 

that there is probable cause to believe that 

the accused has committed a felony, the 

accused, if he is held continuously in 

custody thereafter, shall be forever 
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discharged from prosecution for such offense 

if no trial is commenced in the circuit court 

within five months from the date such 

probable cause was found by the district 

court . . . . 

* * * * * * * 

 The provisions of this section shall not 

apply to such period of time as the failure 

to try the accused was caused: 

* * * * * * * 

 4. By continuance granted on the motion 

of the accused or his counsel . . . . 

The district court determined probable cause existed on October 

14, 1993. Stinnie's original trial date was set for February 9, 

1994. In late January, Stinnie requested additional time to 

prepare his case after he was permitted to dismiss his 

court-appointed counsel. At that time, he did not request a 

specific trial date or a continuance for any particular period of 

time. On February 2, 1994, the trial court heard argument on 

Stinnie's motion and continued the case until docket call on 

February 22, 1994, which was the court's term day. On term day, 

the trial court scheduled Stinnie's new trial date for April 7, 

1994. 

 Both parties agreed that the time between Stinnie's original 

trial date of February 9 and the date of the docket call, 

February 22, 1994, was chargeable to Stinnie and that the 

critical time for the purpose of deciding the speedy trial issue 

is the period from February 22 to April 7. If that time period 
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is not considered for speedy trial purposes, Stinnie was brought 

to trial within the five-month period required by the statute. 

If that period is considered, on the theory that the continuance 

lasted only until February 22, Stinnie's trial was held twelve 

days beyond the last possible day to try him under the speedy 

trial statute. 

 Under the facts of this case, we hold that the period 

between February 9 and April 7 is properly excluded from the 

provisions of Code § 19.2-243. We are not persuaded by the 

argument that Stinnie's motion for continuance lasted only until 

term day, February 22, a day on which the trial court clearly 

would not have intended to conduct trial. 

 The delay in the commencement of trial was provided solely 

for Stinnie's benefit. The failure to try Stinnie in accordance 

with Code § 19.2-243 resulted from his motion for time to prepare 

for trial pro se after dismissing counsel. Unlike a continuance 

granted to an individual accused of a felony to initially obtain 

counsel, a continuance of a trial previously set, requested by 

the accused to prepare for trial, benefits only him. Such delays 

are not inherent in the orderly process of fixing a trial date 

and will extend the statutory time limitation for the 

commencement of the trial. See Baity v. Commonwealth, 16 Va. 

App. 497, 507, 431 S.E.2d 891, 897 (1993) (citing Townes v. 

Commonwealth, 234 Va. 307, 362 S.E.2d 650 (1987), cert. denied, 

485 U.S. 971 (1988)); Nelms v. Commonwealth, 11 Va. App. 639, 
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641-42, 400 S.E.2d 799, 800-01 (1991); Cantwell v. Commonwealth, 

2 Va. App. 606, 609-13, 347 S.E.2d 523, 524-27 (1986). 

 Stinnie contends that, notwithstanding his motion for a 

continuance, he did not waive his right to a speedy trial and 

that any delay in rescheduling the trial to a date beyond that 

imposed by the requirements of Code § 19.2-243 is a violation of 

that right. However, adoption of Stinnie's position would 

effectively nullify the principle of law that delay caused by the 

defendant is excluded from the requirements of Code § 19.2-243, 

and would place upon the Commonwealth a continuing duty to ensure 

a trial within the appropriate time limitations to a defendant 

whose motion for a continuance has been granted. This position 

is supported neither by the statute nor the relevant case law. 

Code § 19.2-243 expressly excludes the application of its 

provisions to "such period of time as the failure to try the 

accused was caused . . . [b]y continuance granted on [the 

accused's] motion." Based on that statute, both the Supreme 

Court of Virginia and this Court have held that where the accused 

affirmatively acts and invites the delay in the commencement of 

trial by such motion, there is no violation of his speedy trial 

right. O'Dell v. Commonwealth, 234 Va. 672, 681, 364 S.E.2d 491, 

496, cert. denied, 488 U.S. 871 (1988); Shearer v. Commonwealth, 

9 Va. App. 394, 402, 388 S.E.2d 828, 832 (1990). 

 Accordingly, Stinnie's conviction is affirmed. 

Affirmed.
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Elder, J., with whom Benton, J., joins, dissenting. 

 For the reasons stated in the majority opinion of the panel 

decision I would reverse appellant's conviction.