COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Bray 

Argued at Norfolk, Virginia 

MITCHELL A. TOWNSEND 

v. Record No. 2160-93-1 MEMORANDUM OPINION* BY 

 JUDGE JERE M. H. WILLIS, JR. 

COMMONWEALTH OF VIRGINIA SEPTEMBER 5, 1995 

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY 

Glen A. Tyler, Judge 

 Carl H. Bundick (Mapp, Mapp & Klein, on 

brief), for appellant. 

 Robert B. Beasley, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 On appeal from his conviction of sale of a controlled 

substance in violation of Code § 18.2-248, Mitchell A. Townsend 

contends that the trial court erred in refusing to dismiss the 

charge pursuant to Code § 19.2-243. We agree and reverse the 

judgment of the trial court. 

 Code § 19.2-243 requires that an accused not held in custody 

be "forever discharged from prosecution [on the charge] if no 

trial is commenced in the circuit court within nine months from 

the date such probable cause was found. . . . The provisions of 

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

failure to try the accused was caused: By continuance granted on 

motion of the accused or his counsel. . . ." 

 

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

designated for publication. 
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 Townsend was arrested on October 7, 1992. On November 2, 

1992, the juvenile and domestic relations district court found 

probable cause and certified the charge to the circuit court. 

Townsend posted bond and remained free until trial. On December 

7, 1992, he was indicted by the grand jury. 

 In accordance with the custom of the trial court and its 

bar, the Commonwealth's Attorney and defense counsel conferred, 

determined that trial by jury would be waived, and scheduled the 

case for a bench trial on June 11, 1993. The trial court entered 

no order reflecting this arrangement. 

 On June 10, 1993, defense counsel informed the 

Commonwealth's Attorney that Townsend had changed his mind and 

wanted a jury trial. On June 11, 1993, Townsend was arraigned, 

pled not guilty, and demanded trial by jury. He stated that he 

was not ready for trial that day. The trial court asked defense 

counsel whether he was moving for a continuance. Defense counsel 

replied, "No, sir. The next available date we stand ready to try 

this case." The Commonwealth's Attorney stated, "the 

Commonwealth is not moving for a continuance . . . and further, 

the Commonwealth objects to any continuance." Defense counsel 

then said, "the defendant is not here seeking a continuance." 

 The trial court and counsel discussed the requirement of 

Code § 19.2-243 and agreed tentatively that the cutoff date under 

the statute was August 2, 1993. The trial court informed 

Townsend that it could not impanel a jury that day, that it would 
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provide him a jury trial, but that doing so required continuing 

the case. It informed him that he was deemed to have moved for a 

continuance. The trial court entered an order continuing the 

case but the court did not, by order or in any manner on the 

record, reschedule the case. The case was rescheduled for trial 

August 19, 1993, apparently by the Commonwealth's Attorney's 

office. The record does not reflect that this date was requested 

by Townsend or that it was set with his express concurrence, as 

distinguished from his mere acquiescence. 

 Although no order memorializes the scheduling of the case 

for trial June 11, 1993 and the waiver of trial by jury, the 

record establishes without contradiction that this arrangement 

was made by the Commonwealth's Attorney and defense counsel as a 

firm commitment, in accordance with well-established customary 

practice by the trial court and its bar. Townsend had the right 

to change his mind and to demand a jury trial, but because he did 

so knowing that the trial court could not impanel a jury for the 

scheduled date, his motion, of necessity, included a motion for a 

continuance to the trial court's next available date. 

 Any delay in the trial, however, which is attributable 

to the defendant will not be counted in determining 

whether the Commonwealth complied with the statutory 

speedy trial mandate. . . . [T]o the extent that the 

defendant requested or concurred in any delay, that 

time will be excluded in determining whether the trial 

took place within the mandated time period. If the 

defendant caused the delay through his action, that 

time will not be considered in computing compliance 

with the speedy trial statute. 

Shearer v. Commonwealth, 9 Va. App. 394, 399-400, 388 S.E.2d 828, 
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830-31 (1990). 

 The cutoff date under Code § 19.2-243 was August 2, 1993, 

nine months after the finding of probable cause in the juvenile 

and domestic relations district court. At the time of the June 

11 continuance, fifty-two days remained before the falling of the 

statutory bar. The record reflects no good cause for the trial 

court's failure to reschedule Townsend's case within that time. 

 The record discloses plainly that, according to its 

established custom, the trial court permitted counsel to schedule 

the case and that the trial court relied on counsels' diligence. 

 However, the trial court thereby assumed responsibility for the 

errors of counsel. The trial court could not abdicate in favor 

of counsel its obligation to maintain its docket. Specifically, 

it could not abdicate its responsibility to insure that 

Townsend's rights under Code § 19.2-243 were respected. 

 The judgment of the trial court is reversed and the charge 

is ordered dismissed. 

 Reversed and dismissed.