COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Overton 

Argued at Richmond, Virginia 

ANTONIO MAURICE ROBINSON 

 OPINION BY 

v. Record No. 1693-97-2 JUDGE JERE M. H. WILLIS, JR. 

 AUGUST 11, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Donald W. Lemons, Judge 

 (James L. Banks, Jr.; Maloney, Huennekens, 

Parks, Gecker & Parson, on brief), for 

appellant. 

 Richard Barton Campbell, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 On appeal from his convictions of abduction and rape, 

Antonio Maurice Robinson contends that the trial court erred in 

denying his motion to dismiss the indictments on the ground that 

he was denied his statutory right to a speedy trial.1 We find no 

error and affirm the judgment of the trial court. 

 I. 

 BACKGROUND 

 On November 21, 1996, the general district court found 

probable cause and certified charges of rape and abduction to the 

grand jury. On January 6, 1997, the grand jury indicted Robinson 

 

 1Robinson does not contend that he was denied his right to a 

speedy trial under the United States Constitution or the Virginia 

Constitution. See U.S. Const. amend. VI; Va. Const. art. I, § 8. 

 Therefore, we confine our analysis to the application of Code 

§ 19.2-243. 
- 2 - 

on those charges. The charges were scheduled for trial on 

January 22, 1997. 

 On January 22, 1997, upon joint motion of the Commonwealth 

and Robinson, the trial court continued the case to February 13, 

1997. On February 13, 1997, on the Commonwealth's motion and 

with Robinson making no objection, the trial court continued the 

case to March 28, 1997. On March 27, 1997, on the Commonwealth's 

motion and over Robinson's objection, the trial court continued 

the case to April 25, 1997. On April 25, 1997, on Robinson's 

motion, the trial court continued the case to May 15, 1997. On 

May 15, 1997, on Robinson's motion, the trial court continued the 

case to May 23, 1997, when trial commenced. Throughout the 

proceedings, Robinson was held continuously in custody. 

 Prior to trial, Robinson moved to dismiss the charges on the 

ground that the Commonwealth failed to commence his trial within 

the statutorily-required time. The trial court denied this 

motion and convicted Robinson of rape and abduction. 

 II. 

COMPUTATION OF THE STATUTORY PERIOD 

 Code § 19.2-243 provides, in pertinent 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 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 
- 3 - 

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, 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, 

. . . . 

 Under Code § 19.2-243, the Commonwealth must commence trial 

within five months, which "translates to 152 and a fraction 

days." Ballance v. Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d 

401, 403 (1995). The five-month period begins to run on the day 

after the preliminary hearing at which probable cause is found. 

Randolph v. Commonwealth, 22 Va. App. 334, 335, 470 S.E.2d 132, 

133 (1996). Any delays that are chargeable to the defendant are 

subtracted from the total number of days that elapse from the day 

after the finding of probable cause to the commencement of trial. 

 If the time thus calculated exceeds 152 and a fraction days, the 

defendant "shall be forever discharged from prosecution for such 

offenses." Code § 19.2-243. 

 Our inquiry involves "a review of the whole record and 

consideration of the trial court orders in the context of the 

record that comes before us." Baity v. Commonwealth, 16 Va. App. 

497, 503, 431 S.E.2d 891, 895 (1993) (en banc). Strict adherence 

to the statutory time requirement is tempered by the provisions 

setting forth specific circumstances excusing the Commonwealth's 
- 4 - 

failure to bring an accused to trial within the prescribed time. 

 However, "it is the prosecution which has the responsibility of 

vindicating society's interests in swift and certain justice," 

Fowlkes v. Commonwealth, 218 Va. 763, 766, 240 S.E.2d 662, 664 

(1978) (footnote omitted), and the burden of demonstrating that a 

delay in commencing trial is excused under Code § 19.2-243 lies 

upon the Commonwealth. Godfrey v. Commonwealth, 227 Va. 460, 

463, 317 S.E.2d 781, 782 (1984). 

 III. 

ANALYSIS OF THE CONTINUANCES 

 The five-month statutory period began to run in this case on 

November 22, 1996, the day after the general district court found 

probable cause that Robinson committed the felonies. Thus, 

absent excusable delay, the Commonwealth was required to commence 

trial on or before April 22, 1997. Because Robinson's trial was 

not commenced until May 23, 1997, thirty-one days after the 

statutorily-fixed date, we examine each of the five continuances 

to determine whether the Commonwealth has shown that the delay 

was excused under the statute. 

 (1) On January 22, 1997, Robinson and the Commonwealth's 

attorney moved jointly for a continuance. The trial court 

granted their motion and continued the case to February 13, 1997. 

 This continuance, granted upon Robinson's motion, tolled the 

statutory period. Code § 19.2-243(4). Thus, as Robinson 

concedes, the twenty-two day delay caused by this continuance is 
- 5 - 

chargeable to him. See Shearer v. Commonwealth, 9 Va. App. 394, 

400, 388 S.E.2d 828, 830-31 (1990). 

 (2) On February 13, 1997, upon the Commonwealth's motion and 

without objection by Robinson, the trial court continued the case 

to March 27, 1997. This delay consumed forty-two days. Robinson 

contends that this delay should be charged to the Commonwealth. 

 In Pittman v. Commonwealth, 10 Va. App. 693, 395 S.E.2d 473 

(1990), we held that a continuance granted to the Commonwealth 

without objection by the defendant did not toll the statutory 

time period. Id. at 695, 395 S.E.2d at 474. We noted as 

follows: 

 In Flanary [v. Commonwealth, 184 Va. 204, 35 

S.E.2d 135 (1945),] the Supreme Court stated: 

 "We have found no case in Virginia which 

holds that the accused waives his right [to a 

speedy trial] simply by failing to oppose a 

motion for a continuance made by the 

Commonwealth." When the accused and his 

attorney do not object to a continuance, it 

is not the same as the accused being a 

proponent of the continuance. In Fowlkes v. 

Commonwealth, 218 Va. 763, 240 S.E.2d 662 

(1978), the Supreme Court reaffirmed Flanary. 

 In Fowlkes, the Court noted that the rule 

that a defendant can stand mute without 

waiving his right to a speedy trial was 

established in Virginia law almost thirty 

years prior to Barker v. Wingo, 407 U.S. 514 

(1972). In Virginia, one does not relinquish 

constitutional rights by mere silence; there 

must be an affirmative act. 

Id. (citations omitted). 

 However, in 1995, the General Assembly amended Code 

§ 19.2-243(4), and provided that the statutory period shall be 

tolled by "the failure of the accused or his counsel to make a 
- 6 - 

timely objection to such a [continuance] motion by the attorney 

for the Commonwealth . . . ." 1995 Va. Acts cc. 37, 352. 

Robinson made no timely objection to the Commonwealth's motion or 

to the granting of that motion by the trial court. Accordingly, 

the delay resulting from this continuance is charged to Robinson. 

 (3) As the Commonwealth concedes, the third continuance 

granted by the trial court from March 27, 1997, to April 25, 

1997, did not toll the statute. The Commonwealth moved for the 

continuance and Robinson objected. 

 (4) The fourth and fifth continuances were granted on 

Robinson's motion and facially are chargeable to him. Thus, the 

resulting twenty-eight day delay is attributable to Robinson. 

Code § 19.2-243 states unequivocally that "[t]he provisions of 

this section shall not apply to such period of time as the 

failure to try the accused was caused: . . . [b]y continuance 

granted on the motion of the accused or his counsel." See

Stinnie v. Commonwealth, 22 Va. App. 726, 473 S.E.2d 83 (1996) 

(en banc) (holding that delays granted an accused for trial 

preparation "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"). 

 Robinson argues that need for the April and May continuances 

was imposed upon him because the Commonwealth failed to transport 

to trial a defense witness held in a detention facility. We 

agree that prosecutorial efforts intended to hinder or impede the 
- 7 - 

operation of an accused's right to a speedy trial will not be 

tolerated. Cf. Fowlkes, 218 Va. at 767, 240 S.E.2d at 664. 

 However, beyond Robinson's bald assertions in his motion to 

dismiss, the record makes no disclosure of the circumstances 

under which Robinson sought the two continuances. The record 

contains no showing that the defense witness was, in fact, not 

present, or, if not, why he was not present. The record contains 

no showing as to what efforts, if any, Robinson made to secure 

the appearance of the witness before moving for a continuance. 

The record contains no showing as to why the motions were 

granted. The transcript of the proceedings on Robinson's motion 

to dismiss contains no showing as to why Robinson made the 

motions to continue. A court speaks through its written orders. 

Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 

(1964). The relevant orders state simply that Robinson's motions 

for continuances were granted. Those orders were endorsed by 

Robinson's counsel. 

 While the Commonwealth must prove that a given delay was 

excusable under the statute, the appellant has the responsibility 

of providing us with an adequate record. See Ferguson v. 

Commonwealth, 10 Va. App. 189, 194, 390 S.E.2d 782, 785, aff'd in 

part, rev'd in part on other grounds, 240 Va. ix, 396 S.E.2d 675 

(1990). The record establishes that the orders granting the 

fourth and fifth continuances were entered upon Robinson's 

motions and that the Commonwealth objected to the second of those 
- 8 - 

motions. Thus, the resulting twenty-eight day delay is 

chargeable to him. 

 The Commonwealth commenced trial against Robinson 183 days 

after the general district court made its finding of probable 

cause. Ninety-two days of that period are chargeable to 

Robinson. Thus, only ninety-one days chargeable to the 

Commonwealth expired from the finding of probable cause in the 

general district court to the commencement of trial. Code 

§ 19.2-243 was satisfied. The judgment of the trial court is 

affirmed. 

 Affirmed.