Tuesday 16th 

 December, 1997. 

Gerald E. Baker, Jr., Appellant, 

 against Record No. 1417-96-2 

 Circuit Court Nos. 489-95 and 28-96 

Commonwealth of Virginia, Appellee. 

On Rehearing En Banc 

 Before Chief Judge Fitzpatrick,* Judges Baker, Benton, 

Coleman, Willis, Elder, Annunziata and Overton 

 Russell E. Allen for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), for 

appellee. 

 On June 17, 1997, a panel of this Court issued an opinion 

reversing the appellant's convictions for two counts of burglary and 

for one count of grand larceny (Circuit Court No. 489-95). Baker v. 

Commonwealth, 25 Va. App. 19, 486 S.E.2d 111 (1997). A dissenting 

opinion was filed to the panel decision. Pursuant to Code 

§ 17-116.02(D), the Court of Appeals granted a rehearing en banc and 

stayed the mandate of the Court. Upon rehearing en banc, the Court of 

Appeals, with no judges dissenting, reverses and dismisses those 

convictions of Gerald E. Baker, Jr. for the reasons stated in the 

majority panel opinion at 25 Va. App. 19, 486 S.E.2d 111. 

 Accordingly, the stay of this Court's June 17, 1997 mandate 

is lifted, the said convictions are reversed, and those indictments 
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are dismissed. 
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 The trial court shall allow court-appointed counsel for the 

appellant an additional fee of $200 for services rendered the 

appellant on the rehearing portion of this appeal, in addition to 

counsel's costs and necessary direct out-of-pocket. 

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

____________________ 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge 

Moon as Chief Judge. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
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COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

GERALD E. BAKER, JR. 

 OPINION BY 

v. Record No. 1417-96-2 JUDGE SAM W. COLEMAN III 

 JUNE 17, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H. C. Taylor, Judge 

 Russell E. Allen for appellant. 

 Leah A. Darron, Assistant Attorney General (James 

S. Gilmore, III, Attorney General, on brief), for 

appellee. 

 This criminal appeal arises from a denial of the defendant's 

motion to dismiss three indictments against him for failure to provide 

a speedy trial as required by Code § 19.2-243. We hold that the 

defendant did not waive the right to a speedy trial when his counsel, 

after objecting to a continuance granted on the Commonwealth's motion, 

provided an available trial date that he knew to be beyond the 

statutory five month speedy trial period. Thus, we reverse the 

defendant's convictions. 

 The defendant, Gerald Baker, was arrested and charged with two 

counts of burglary and with grand larceny. At the preliminary hearing 

on September 20, 1995, the district court found probable cause and 

certified the charges to a grand jury, which returned indictments on 

all three charges on November 21, 1995. The defendant was 
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continuously incarcerated from the time of his arrest until the trial. 

 On November 21, 1995, the Commonwealth's attorney, Baker's 

attorney, and attorneys for the two codefendants appeared to set the 

case for trial. The defendants and the Commonwealth waived trial by 

jury, and the prosecutor requested that the cases be joined for trial. 

 The trial judge, after discussing possible trial dates with counsel, 

set the cases for trial without a jury for January 2, 1996. 

 On January 2, 1996, the defendants and counsel appeared for 

trial, at which time the Commonwealth's attorney moved for a 

continuance until after January 16, 1996, the next term day. He 

requested the continuance in order to indict the defendants for 

additional offenses. Baker's counsel objected to the continuance, as 

did the codefendants' counsel. The trial judge granted the 

continuance and then requested available trial dates. Baker's 

attorney said, "I believe the date we worked out, Your Honor, and 

correct me if I'm wrong, gentlemen, is February the 28th, for the 

three of us [defense counsel]." Because the judge could not hear the 

case on February 28, he set the trial for February 26, 1996, with 

agreement of the prosecutor and all defense counsel. 

 On February 22, 1996, the defendant moved to dismiss the charges 

for failing to commence trial within five months from the finding of 

probable cause as required by Code § 19.2-243. On February 26, the 

trial date, the Commonwealth's attorney asked for another continuance 

in order to obtain transcripts of the previous hearings. All parties 

agreed and the trial was rescheduled for March 26, 1996. 
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 On March 26, the trial judge denied the motions to dismiss, 

stating: 

 It's the Court's opinion that when you take the 

statute and interpret it in accordance with the 

constitutional grounds, I find that when everybody 

agreed to a date in February, that that was a 

point at which the right to speedy trial was 

waived by the defendants, and the fact that there 

was an objection to a continuance and then we 

backed up and started again, I don't know that 

that affects it. 

The defendant was found guilty on all three charges. He then renewed 

the motion to dismiss based on violation of his statutory right to a 

speedy trial, which the trial court overruled. 

 Code § 19.2-243 provides that an accused, if held continuously in 

custody from the time when probable cause is determined by the 

district court, "shall be forever discharged from prosecution" if 

trial is not commenced within five months from the date probable cause 

was found. However, this provision does not apply to delays caused 

by: 

 continuance[s] granted on the motion of the 

accused or his counsel, or by concurrence of the 

accused or his counsel in such a motion by the 

attorney for the Commonwealth, or by the failure 

of the accused or his counsel to make a timely 

objection to such a motion by the attorney for the 

Commonwealth . . . . 

Code § 19.2-243(4). 

 When a defendant asserts that his statutory right to a speedy 

trial has been violated, the burden is on the Commonwealth to explain 

the delay. Godfrey v. Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 

782 (1984). The Commonwealth must prove that the delay was based on 
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"one of the reasons enumerated in [Code § 19.2-243] or on appellant's 

waiver, actual or implied, of his right to be tried within the 

designated period." Norton v. Commonwealth, 19 Va. App. 97, 99, 448 

S.E.2d 892, 893 (1994). 

 It is well settled that the Commonwealth has the affirmative duty 

to try an accused within the time periods specified in Code § 19.2-

243. The accused has no duty to request that a trial date be set 

within the prescribed period in order to preserve his or her statutory 

right to a speedy trial. Baity v. Commonwealth, 16 Va. App. 497, 501, 

431 S.E.2d 891, 893 (1993); Cantwell v. Commonwealth, 2 Va. App. 606, 

611, 347 S.E.2d 523, 525 (1986). An accused may "'stand mute without 

waiving his rights so long as his actions [do] not constitute a 

concurrence in or necessitate a delay of the trial.'" Baity, 16 Va. 

App. at 501, 431 S.E.2d at 891 (quoting Moten v. Commonwealth, 7 Va. 

App. 438, 441, 374 S.E.2d 704, 706 (1988)). "A defendant does not 

waive his right to a speedy trial merely because he remains silent or 

does not demand that a trial date be set within the prescribed 

period." Godfrey, 227 Va. at 463, 317 S.E.2d at 782. 

 The Commonwealth had until February 22, 1996, to begin the trial. 

 The continuance granted on January 2, 1996, was at the 

Commonwealth's attorney's request and was objected to by defense 

counsel. Only after the trial judge granted the Commonwealth's 

continuance did defense counsel suggest February 28 as an available 

date. Nevertheless, the judge set February 26 as the trial date with 

the agreement of defense counsel and the Commonwealth's attorney. We 
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hold that by supplying the court with available trial dates, the 

defendant did not concur in the Commonwealth's attorney's request for 

a continuance, nor did he waive his right to a speedy trial. 

 The Commonwealth contends that defense counsel waived his 

client's statutory right to a speedy trial by knowingly suggesting a 

trial date beyond the five month period. The Commonwealth argues that 

by agreeing to the trial date the defendant cannot be heard to 

complain that his right to a speedy trial was violated. See Manns v. 

Commonwealth, 13 Va. App. 677, 679, 414 S.E.2d 613, 615 (1992) ("The 

defendant, having agreed upon action taken by the trial court, should 

not be allowed to assume an inconsistent position."). At oral 

argument, Baker's counsel acknowledged that the defendants knew the 

available date was beyond the five month speedy trial period. 

 It is the responsibility of the trial court, not the prosecutor 

or the accused, to control the court's docket and schedule criminal 

cases for trial. See Baity, 16 Va. App. at 501, 431 S.E.2d at 893; 

Williams v. Commonwealth, 2 Va. App. 566, 569, 347 S.E.2d 146, 148 

(1986). The fact that defense counsel knew that the available trial 

date was beyond the five month period is of no consequence. Although 

in setting its docket the trial court should consider counsel's 

available dates and whether the date selected is convenient for 

counsel, absent defendant's request for a continuance or concurrence 

in the Commonwealth's request or waiver of the right to a speedy 

trial, the trial judge has the responsibility to commence the trial 

within the statutorily specified time regardless of whether the date 
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is convenient for counsel. Moreover, in this case, the trial court 

did not set trial on the original convenient date suggested by 

counsel. The Commonwealth has the duty, absent an exception set forth 

in the statute, to provide the accused a speedy trial. 

 Providing available dates and agreeing to a trial date that is 

outside the statutory period are not actions constituting a waiver of 

the statutory speedy trial requirement. See Taylor v. Commonwealth, 

12 Va. App. 425, 429-30, 404 S.E.2d 86, 88 (1991). In Taylor, defense 

counsel wrote a letter to the trial court stating that he could not be 

present at docket call on June 13, 1989, but informed the court that 

the defendant pleaded not guilty and requested a trial by jury. The 

letter also included the attorney's "avoid dates" from June through 

October. Id. at 429, 404 S.E.2d at 88. By letter dated June 20, 

1989, defense counsel acknowledged that the defendant's case was set 

for trial on September 8, 1989. Id. This Court held that the 

attorney's letters did not constitute a concurrence in setting the 

trial outside the five month period. Id. We stated, "[t]he 

Commonwealth, without any hindrance or delay from the defendant, could 

have fixed the trial date at its convenience within the five month 

period." 

 Here, Baker's counsel did not consent to the Commonwealth's 

request for a continuance; instead, he expressly objected to it. 

Waiver involves an "intentional relinquishment or abandonment of a 

known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464 

(1938); see Stanley's Cafeteria, Inc. v. Abramson, 226 Va. 68, 74, 306 
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S.E.2d 870, 873 (1983); Peterson v. Commonwealth, 5 Va. App. 389, 396, 

363 S.E.2d 440, 444 (1987). With respect to fundamental 

constitutional rights, "courts indulge every reasonable presumption 

against waiver." Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937). 

 By providing the court with available dates beyond the statutory 

period after the court overruled counsel's objection to the 

continuance, defense counsel did not waive the defendant's statutory 

right to a speedy trial. Accordingly, we reverse the defendant's 

convictions and dismiss the case. 

Reversed and dismissed. 
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Moon, C.J., dissenting. 

 I respectfully dissent because I believe that counsel's 

suggestion of a date beyond the five month period in which the trial 

should have been commenced was tantamount to "concurrence of the 

accused or his counsel" in a motion by the Commonwealth to continue 

the case. The court announced that it would grant the Commonwealth's 

motion. Counsel was aware of the date by which the case should have 

commenced. Even though defense counsel objected to a continuance, he 

then knowingly suggested that trial be set beyond the critical date. 

This in my opinion was an implied waiver of his client's right to be 

tried within the five month period. See Norton v. Commonwealth, 19 

Va. App. 97, 99, 448 S.E.2d 892, 893 (1994) (recognizing that a 

defendant may impliedly waive his right to be tried within the 

statutory period). 

 Although we have held that the accused has no duty to request 

that a trial date be set within the prescribed period in order to 

preserve his or her statutory right to a speedy trial, Baity v. 

Commonwealth, 16 Va. App. 497, 501, 431 S.E.2d 891, 893 (1993), and 

that an accused may "stand mute without waiving his rights so long as 

his actions [do] not constitute a concurrence in or necessitate a 

delay of the trial," id., we have not held that counsel may knowingly 

propose a date that violates his client's speedy trial right and then 

benefit because his client's right has been violated. When counsel 

knowingly led the trial court into selecting a date beyond the 

statutory period, I believe that was tantamount to concurring in a 
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continuance beyond the statutory period. Accordingly, I would affirm.