COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bumgardner 

Argued at Richmond, Virginia 

STEVENSON LEE SHIFFLETT 

 MEMORANDUM OPINION* BY 

v. Record No. 0645-97-2 JUDGE JAMES W. BENTON, JR. 

 MAY 5, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Jay T. Swett, Judge 

 Edward H. Childress for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 A jury convicted Stevenson Lee Shifflett of malicious 

wounding in violation of Code § 18.2-51. He contends on this 

appeal that his statutory and constitutional rights to a speedy 

trial were violated because he was not tried within five months 

of the preliminary hearing on the charge of assault and battery 

of a household member in violation of Code § 18.2-57.2. For the 

reasons that follow, we affirm the conviction. 

 I. 

 The evidence in the record and the statement of facts prove 

that Shifflett was arrested June 27, 1996, on the charge of 

felony assault and battery, as a third offense, for an incident 

that occurred on May 28, 1996. See Code § 18.2-57.2. 

Shifflett's application for bail was denied. At a preliminary 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

hearing on July 12, 1996, a judge of the Charlottesville Juvenile 

and Domestic Relations District Court certified the charge. 

 Because of an administrative error, Shifflett was released 

from jail following the preliminary hearing. However, Shifflett 

was again arrested two days after his release on a new charge of 

felony assault and battery as a third or subsequent offense; he 

was charged with assaulting the same person during his release 

that he was charged with assaulting on May 28. Shifflett's 

application for bail was again denied. 

 On August 19, 1996, a grand jury indicted Shifflett on a 

charge of malicious wounding in violation of Code § 18.2-51 for 

conduct occurring on May 28, 1996. The same grand jury also 

indicted him on two charges of felony assault and battery, as 

third or subsequent offenses, in violation of Code § 18.2-57.2, 

for conduct occurring on May 28, 1996, and July 14, 1996. Prior 

to trial, an order of nolle prosequi was entered on the 

indictment charging felony assault and battery for conduct on 

July 14, 1996. Claiming a violation of his right to a speedy 

trial under Code § 19.2-243, Shifflett filed a written pretrial 

motion on December 16, 1996, to dismiss the malicious wounding 

charge and made an oral motion at the hearing to dismiss the 

remaining felony assault charge. The circuit judge denied the 

motions. 

 On January 3, 1997, Shifflett was tried by a jury on the 

charges of malicious wounding and felony assault and battery, as 
- 3 - 

a third offense. By agreement of counsel, the indictment 

alleging assault and battery as a third offense was submitted to 

the jury as a lesser and included offense of the malicious 

wounding offense. The jury convicted Shifflett of malicious 

wounding and fixed his sentence at ten years in prison. The 

trial judge dismissed the felony assault and battery charge "as 

being encompassed within the malicious wounding charge that 

[Shifflett] was found guilty of by the jury." The trial judge 

later suspended one year and six months of the ten-year sentence. 

 II. 

 An accused, who is held "continuously in custody" must be 

brought to trial within five months from the date of his 

preliminary hearing or, if there was no preliminary hearing, 

within five months from the date of indictment. Code § 19.2-243. 

 Shifflett's pretrial motion to dismiss the charge of 

malicious wounding because of a violation of Code § 19.2-243 was 

not well founded. The evidence proved that the grand jury issued 

its indictment August 19, 1996. Shifflett was tried on January 

3, 1997, which was within five months of the date the indictment 

was issued by the grand jury. 

 Shifflett orally moved to bar his trial on the felony 

assault and battery charges on the ground that his speedy trial 

rights were violated. Although the record does not contain the 

specifics of that motion, the trial judge's order "denie[d] this 

motion on statutory and constitutional grounds." However, to the 
- 4 - 

extent that Shifflett now alleges error from the trial judge's 

failure to dismiss the felony assault and battery charge, that 

issue is now moot because no conviction was had on that charge. 

The jury only convicted Shifflett of malicious wounding. 

 Contrary to Shifflett's suggestion, we cannot say from this 

record that the Commonwealth sought the indictment on the 

malicious wounding charge to avoid Shifflett's claim of a speedy 

trial violation on the assault charge. The malicious wounding 

indictment was obtained a month after the preliminary hearing on 

the assault and battery charge. Ample time remained to try the 

charges within the statutory range. 

 Moreover, although both charges were tried together, the 

offenses are not necessarily lesser-included offenses of each 

other. See Walker v. Commonwealth, 14 Va. App. 203, 206, 415 

S.E.2d 446, 448 (1992) (noting that "[a]n offense is not a lesser 

included offense of another if each offense contains an element 

that the other does not"). To the extent that the charges 

require proof of different elements, they are not essentially the 

same. The decision that was made at trial to charge the jury 

that the assault charge was a lesser-included offense of the 

malicious wounding offense was the result of an agreement between 

Shifflett's counsel and the Commonwealth's attorney. 

Accordingly, we do not view that action as an implicit ruling by 

the trial judge that the charges were the same offense. 

 For these reasons, we affirm the judgment. 
- 5 - 

 Affirmed.