Present: Carrico, C.J., Lacy, Keenan, Koontz, and Kinser, JJ., 

Whiting, S.J. 

WAYNE LENARDO HEATH 

 OPINION BY 

v. Record No. 001090 SENIOR JUSTICE HENRY H. WHITING 

 March 2, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 This appeal involves one of the tolling provisions of the 

speedy trial statute. Code § 19.2-243 provides that if, while 

awaiting trial, an accused has been incarcerated continuously 

for more than five months after a district court finds probable 

cause to believe that he has committed a felony, he shall be 

"forever discharged from prosecution" for that offense. 

 However, Code § 19.2-243(4) states in part that the fivemonth period is tolled during any period if the failure to try 

the accused was caused: 

By continuance 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. 

The dispositive issue on appeal is whether the defendant’s 

actions in the circuit court tolled the statutory speedy trial 

period for at least 56 days of the total time that he remained 

in custody awaiting trial after his preliminary hearing. 
 In a preliminary hearing on March 20, 1997, the Juvenile 

and Domestic Relations District Court of the City of Petersburg 

found probable cause to believe that the defendant Wayne Lenardo 

Heath had committed the crime of first-degree murder and 

certified the charge to the grand jury. Heath was incarcerated 

at the time of his preliminary hearing and remained continuously 

in custody thereafter until his case was tried in the circuit 

court on October 15, 1997, a time period of five months plus 56 

days after the probable cause finding in the district court. 

 The record discloses that during the five-month period 

following Heath’s preliminary hearing, the circuit court entered 

three orders. One order, not endorsed by counsel, was entered 

on July 8. This order recited action taken by the court at a 

May 6 hearing, in which the court sustained the Commonwealth's 

motion that a sample of blood be taken from the defendant, and 

that the case be continued to May 15 to be reset for trial. 

Another order, which was endorsed by counsel for defendant as 

“Seen,” was entered on May 15 and reflects the court’s action in 

once again ordering that a blood sample be taken from the 

defendant. The order further provided that the defendant be 

given “any scientific findings” made in relation to the testing 

of the blood sample, but did not specify a date by which these 

results must be produced or set a date for trial of the case. 

The blood tests that were the subject of this order were 

2
conducted on October 6, and the test results were filed with the 

circuit court on October 10. 

A third order, dated August 1, granted the defendant’s 

motion made under Code § 19.2-169.1 for a determination of his 

competency to stand trial. In the order, the circuit court 

directed that the results of this examination be provided to 

counsel for the defendant by September 12. The defendant states 

on brief that a report containing the results of the examination 

was filed with the circuit court on September 10. 

 Although there were three “term,” or “docket call,” days 

between May 6 and August 1, the record in this case does not 

contain any orders other than the three described above;1 nor 

does the record contain any motion requesting that the case be 

fixed for trial. However, the Commonwealth and the defendant 

are in agreement on appeal that at the term day on September 18, 

the circuit court ordered that the case be tried on October 15. 

The record does not disclose, and the defendant does not claim, 

that the defendant objected to the action of the court in fixing 

the trial date.

 On October 8, the defendant filed a motion to dismiss the 

indictment, alleging that the Commonwealth had violated the 

 

1

 In 1997, term days in criminal cases in the circuit court were 

the third Thursday of each month except the month of August. 

Criminal cases were "set" on term day. Appendix to Rule 1:15(d) 

of the Rules of the Supreme Court of Virginia. 

3
speedy trial provisions of Code § 19.2-243. The court denied 

the motion on the ground that the speedy trial period had been 

tolled between the time of the defendant's motion for a 

psychiatric examination and the date fixed for the beginning of 

the trial. 

 The defendant was subsequently tried by the court, 

convicted of the charge, and sentenced to confinement in the 

penitentiary for a period of 69 years and five months. In an 

unpublished opinion, a panel of the Court of Appeals reversed 

the defendant’s conviction, primarily on the ground that he was 

not responsible for any of the delays that occurred prior to the 

trial of the case. Heath v. Commonwealth, Record No. 0203-98-2 

(July 6, 1999). Upon a rehearing en banc, the Court of Appeals 

affirmed Heath's conviction, principally for the reasons 

assigned by the trial court. Heath v. Commonwealth, 32 Va. App. 

176, 183 (2000). We granted Heath an appeal. 

 Heath argues that the Commonwealth must be charged with the 

entire delay in bringing him to trial because the Commonwealth 

waited until September 18 to obtain a trial date. He contends 

that his request for a psychiatric examination did not contain a 

request for a continuance and could not have tolled the 

statutory speedy trial period, since the blood tests requested 

by the Commonwealth were not completed until after he received 

 

4
the results of his psychiatric examination. We disagree with 

Heath’s arguments. 

The protections granted in Code § 19.2-243 may be waived. 

Stephens v. Commonwealth, 225 Va. 224, 233-34, 301 S.E.2d 22, 

27-28 (1983); Brooks v. Peyton, 210 Va. 318, 321, 171 S.E.2d 

243, 246 (1969). When a defendant requests, agrees to, or 

acquiesces in an order that effectively continues a case, the 

five-month speedy trial period of Code § 19.2-243 is tolled 

during the time reasonably specified by the court to carry out 

the terms of its order. See Code § 19.2-243(4); Commonwealth v. 

Hutchins, 260 Va. 293, 297-98, 533 S.E.2d 622, 624-25 (2000). 

We need not consider whether the time periods covered by 

the orders of May 15 and July 8 are subject to the tolling 

provisions of Code § 19.2-243(4), because the orders entered on 

August 1 and September 18 resolve the defendant’s speedy trial 

claim. Here, the order of August 1 granted the defendant's 

motion for a psychiatric examination, which included a request 

to determine the defendant's competency to stand trial. The 

motion implicitly requested the circuit court to continue the 

case so that this psychiatric examination could be performed. 

Thus, the defendant’s motion triggered the statutory tolling 

provisions of Code § 19.2-243(4) and stopped the running of the 

five-month speedy trial period between August 1 and September 

10, a period of 40 days. See id.; see also Stephens, 225 Va. at 

5
233-34, 301 S.E.2d at 27-28 (defendant's filing of motion to 

suppress evidence with written memoranda requiring careful study 

by circuit court necessitated continuance chargeable to 

defendant). This 40-day period effected by the August 1 order 

must therefore be subtracted from the total time that the 

defendant was held in custody awaiting trial after his 

preliminary hearing. See Code § 19.2-243(4).

Our conclusion is not altered by the fact that Heath’s 

motion for a psychiatric examination was made when no trial date 

had been fixed and trial of the case had been delayed by the 

Commonwealth’s request for the performance of certain blood 

tests. Heath’s motion affirmatively demonstrated that he was 

not ready for trial and could not proceed until he received the 

results of his psychiatric examination. Thus, it is of no 

consequence that the results of the blood tests were still 

pending and no trial date had been fixed because, manifestly, a 

trial could not have been held as long as the issue of Heath's 

mental competency remained unresolved. Accordingly, the period 

of time effected by the August 1 order was properly chargeable 

to him. 

Finally, we conclude that the 27-day period between 

September 18, when the court ordered a trial date, and the date 

of trial, October 15, must also be subtracted from the total 

6
time the defendant was in custody awaiting trial.2 The 

defendant's failure to object to the court's action in fixing 

the trial date is an acquiescence in the fixing of a trial date 

beyond the five-month speedy trial period and constitutes a 

continuance of the trial date under Code § 19.2-243(4). See

Hutchins, 260 Va. at 297-98, 533 S.E.2d at 624-25. The above 

27-day period, when added to the earlier 40-day period, yields a 

total of 67 days chargeable to the defendant. When we subtract 

these 67 days from the total time the defendant was in custody 

awaiting trial, the record demonstrates that he was tried well 

within the five-month period required by Code § 19.2-243.3

Accordingly, the judgment of the Court of Appeals will be 

Affirmed.

 

2

 We need not consider whether the eight days between September 

10 and 18 are chargeable either to the Commonwealth or to the 

defendant. 

3

 This holding obviates a discussion of the defendant’s remaining 

contentions. 

7