nPresent: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and 

Keenan, JJ., and Whiting, Senior Justice 

GROVER ROBBS 

 OPINION BY 

v. Record No. 951973 SENIOR JUSTICE HENRY H. WHITING 

 November 1, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 The issues in this appeal of a criminal conviction are 

whether the Commonwealth violated either the five or the ninemonth provisions of the following speedy trial statute: 

 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; and if the accused is not held in 

custody but has been recognized for his appearance in 

the circuit court to answer for such offense, he shall 

be forever discharged from prosecution therefor if no 

trial is commenced in the circuit court within nine 

months from the date such probable cause was found. 

Code § 19.2-243. 

 After a preliminary hearing on August 4, 1992, the General 

District Court of Hanover County found probable cause to believe 

that Grover Robbs committed grand larceny. A grand jury later 

indicted Robbs, who was in custody, on that charge. Before his 

case was set for trial in the circuit court, Robbs filed a motion 

on October 6, 1992 to suppress part of the evidence. This motion 

was heard and overruled 20 days later. 

 Thereafter, the case was set for trial on a date within five 

months of the preliminary hearing. However, on the day before 

trial, the court sustained the Commonwealth's motion for a 
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continuance and the case was rescheduled for trial on February 

17, 1993. 

 Several days later, the Commonwealth realized that Robbs had 

been continuously confined since his preliminary hearing and that 

the new trial date was more than five months from that hearing. 

Accordingly, the Commonwealth made a motion to release Robbs on a 

recognizance bond returnable on the trial date, which the trial 

court granted on December 14, 1992. Upon Robbs's failure to 

appear on the trial date, a capias was issued for his arrest. On 

March 17, 1993, 26 days later, Robbs was arrested and thereafter 

confined until he was tried. 

 Subsequently, the trial court fixed Robbs's grand larceny 

case for trial on June 7, 1993, more than nine months after the 

preliminary hearing. Prior to the trial date, Robbs filed a 

motion "to dismiss the charges against him" on the ground that he 

had been held in custody for more than five months after his 

preliminary hearing in violation of Code § 19.2-243. Robbs 

contended that in computing the five-month period, the additional 

time he was in custody after his arrest on the capias should be 

added to the time he was in custody prior to the first trial 

date. The trial court overruled Robbs's motion and, following a 

jury trial, Robbs was convicted on the grand larceny charge and 

sentenced to eight years imprisonment. 

 On Robbs's appeal to the Court of Appeals, he also argued 

that his trial was held beyond the nine-month period following 
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his preliminary hearing, even after crediting the Commonwealth 

with the 26 days between the date he failed to appear before the 

trial court and the date he was arrested on the capias. The 

Commonwealth responded that the trial was held within the ninemonth limitation period because it was entitled to an additional 

credit for the 20 days that elapsed between the date that Robbs 

filed his motion to suppress and the date the trial court ruled 

on that motion. 

 The Court of Appeals affirmed the judgment of the trial 

court and Robbs appealed to this Court. We granted Robbs a 

delayed appeal, following our grant of a writ of habeas corpus. 

 We agree with the Court of Appeals and the Commonwealth that 

the five-month limitation does not apply in this case. If a 

statute is clear and unambiguous, we apply the words as written. 

Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985). 

Here, the five-month limitation would apply only if Robbs had 

been "continuously in custody," and he had not been in continuous 

custody since his second arrest began a separate confinement.*

T 

Hence, we find no merit in Robbs's contention regarding the 

alleged violation of the five-months limitation. 

 

 *Our decision makes it unnecessary to decide whether the 

second period of confinement was upon the capias, as the 

Commonwealth contends, or upon the original charge, as Robbs 

contends. 
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 However, we agree with Robbs that the trial was held in 

violation of the nine-month limitation provision. If the 20-day 

period measured from the time Robbs made his motion to suppress 

until the time the trial court ruled on it caused a delay in 

setting the case for trial, that delay is attributable to Robbs 

and thus cannot be counted in computing the nine-month limitation 

period. The Commonwealth has the burden of showing that Robbs's 

motion and the time taken by the trial court to rule thereon 

caused such a delay. Stephens v. Commonwealth, 225 Va. 224, 231-

32, 301 S.E.2d 22, 26 (1983). 

 This record shows only that 20 days after the motion was 

filed, the trial court heard oral argument on the motion and 

immediately thereafter ruled orally. Nothing in the record shows 

that "the filing of the motion necessitated a slow-down of the 

judicial process," Id. at 233, 301 S.E.2d at 26, because (1) the 

case had not yet been set for trial and the filing of Robbs's 

motion did not necessitate a continuance of the trial date (as in 

Stephens) and (2) (unlike the situation in Stephens) the trial 

judge ruled immediately upon being presented with the motion and 

forthwith set the case for trial. 

 Since the record fails to show that the motion delayed the 

court in setting the case for trial, we conclude that the Court 

of Appeals erred in affirming the judgment. Accordingly, we will 

enter an order reversing the judgment, dismissing the indictment, 

and directing that Robbs be forever discharged from prosecution 
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for the offense charged in the indictment. 

Reversed and final judgment. CHIEF JUSTICE CARRICO, with whom JUSTICE COMPTON and JUSTICE 

STEPHENSON join, concurring in part and dissenting in part. 

 I would hold that the speedy trial rights of Grover Robbs 

under Code § 19.2-243 have not been violated. In my opinion, the 

five-month limitation contained in Code § 19.2-243 has not been 

violated because Robbs was released on bond within the five-month 

period and, since his second arrest began a separate confinement, 

he was not entitled to include the time then spent in custody in 

computing the five-month limitation. 

 I do not think the nine-month limitation contained in Code 

§ 19.2-243 has been violated because, in the computation of the 

nine-month period, the Commonwealth was entitled to have excluded 

not only the twenty-six day period following Robbs' failure to 

appear but also the twenty-day period between the filing of 

Robbs' motion to suppress and the trial court's disposition of 

the motion. With respect to the twenty-day period, I think 

Stephens v. Commonwealth, 225 Va. 224, 301 S.E.2d 22 (1983), 

cited by the majority, is controlling here. 

 In that case, the defendant burglarized a business and was 

charged with four felonies and two misdemeanors. He filed a 

motion to suppress the evidence on the ground that his arrest was 

illegal. The trial court heard argument on the motion and held 

it under advisement from May 22, 1981, to August 25, 1981, or for 
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more than three months. We held that this delay did not result 

in a violation of the defendant's speedy trial rights under Code 

§ 19.2-243. This was the rationale of our decision: 

 When the defendant filed his motion to suppress he was 

not asking for a speedy trial. It was an act which 

necessitated a slow-down of the judicial process. What 

the defendant desired was favorable action on this 

motion. . . . [H]e did not want precipitate action. 

He wanted careful consideration by the court. Although 

defendant did not make a formal motion for a 

continuance, he was the moving party in a proceeding 

which necessitated the continuance, and he should not 

be permitted to take advantage of the delay thus 

occasioned. 

Id. at 233-34, 301 S.E.2d at 27-28. 

 We concluded with this observation: 

 In view of the gravity of the offenses involved, other 

circumstances surrounding the case, and the motion to 

suppress, we cannot say that the period of time taken 

by the trial court to consider defendant's motion was 

unreasonable or inordinate. 

Id. at 234, 301 S.E.2d at 28. 

 While the motion to suppress in Stephens may have been more 

complex than the motion involved here, justifying the trial court 

in holding the motion under advisement for more than three 

months, there is nothing in principle to distinguish the present 

matter from Stephens.*

 Indeed, the rationale expressed there 

 

 *The majority attempts to distinguish the present case from 

Stephens on two grounds, first, that, here, "the case had not yet 

been set for trial and the filing of Robbs's motion did not 

necessitate a continuance of the trial date (as in Stephens)." 

But nothing in the Stephens opinion or the record on file in our 
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(..continued) 

fits this situation like a glove. Accordingly, I would hold that 

the twenty-day period which elapsed before the trial court took 

up and disposed of Robbs' motion to suppress was neither 

unreasonable nor inordinate and, hence, was excusable. 

Clerk's office indicates that a date had been set for Stephens' 

trial at the time he filed his motion to suppress. Be that as it 

may, it was reasonable for the trial court here to delay setting 

a trial date until Robbs' motion to suppress was disposed of; had 

the motion been granted, there might not have been any necessity 

to set a trial date. Hence, the filing of the motion did cause a 

slow-down of the judicial process, and the slow-down was 

attributable to Robbs. The other ground upon which the majority 

seeks to distinquish this case from Stephens is that "(unlike the 

situation in Stephens) the trial judge ruled immediately upon 

being presented with the motion and forthwith set the case for 

trial." However, I fail to see why, and the majority does not 

say why, that should make any possible difference in the outcome 

of this case.