COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Bray 

Argued at Norfolk, Virginia 

RICHARD BACKUS, III 

 MEMORANDUM OPINION* BY 

v. Record No. 1558-95-1 CHIEF JUDGE NORMAN K. MOON 

 JUNE 25, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

William F. Rutherford, Judge 

 James O. Broccoletti (Zoby & Broccoletti, 

P.C., on brief), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Richard Backus appeals his convictions of two counts of 

possession with intent to distribute heroin, one count of 

possession with intent to distribute cocaine and possession of a 

firearm while in possession of a controlled substance. Backus 

argues that the trial judge erred in failing to dismiss the 

charges against him pursuant to Code § 19.2-243, the speedy trial 

statute, and also in failing to sever the second charge of 

possession of heroin with intent to distribute from the other 

charges. We reverse on the ground that the trial court erred in 

failing to grant the motion to sever. 

 On October 14, 1994, Detective Scott Eicher received a tip 

from an unknown informant. Based on the information he received, 

 

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

designated for publication. 
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Eicher and his partner, Investigator Kaye, went to an 

intersection located within Grandy Village, a housing project in 

Norfolk. They were looking for a black male wearing a green 

jumpsuit and a black hat. They saw Backus, dressed as the 

informant had described, standing next to some bushes and talking 

with another man who had currency in his hand. 

 The detectives approached Backus and asked to speak with 

him. Backus agreed. While Eicher and Backus were talking, Kaye 

searched the bushes where Backus had been standing, and found a 

potato chip bag with two pill bottles inside. One of the bottles 

contained bags of cocaine, and the other bags of heroin. A 

search of Backus produced a set of car keys, a pager, and $250 in 

cash. After arresting Backus, Eicher obtained a search warrant 

for Backus' car, which was parked nearby. Inside the car's 

trunk, Eicher found 270 glassine bags of heroin, a pistol, and a 

bag containing $508. Backus' fingerprint was found on the 

magazine of the pistol. After Backus' arrest, he was released on 

bond. 

 On January 3, 1995, Investigators Bory and Hoggard of the 

Norfolk police were conducting surveillance in the same block 

where Backus had been arrested previously. Bory observed Backus 

on a bicycle, receiving money from people in cars and handing 

them something in exchange. Hoggard approached Backus, 

identified himself as a police officer, and ordered Backus to 

stop. Backus fled on his bicycle, but Hoggard caught and 
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arrested Backus. Hoggard found 12 glassine envelopes containing 

heroin fastened to the bike reflector with rubber bands. 

 On March 1, 1995, the grand jury indicted Backus on all 

charges related to the October 14, 1994 and January 3, 1995 

incidents. 

 Also on March 1, 1995, the parties executed a scheduling 

order that was approved by the trial judge, which set all charges 

for trial on April 6, 1995. The order stated that Backus 

requested a trial by the court without a jury. All motions were 

to be filed by March 24, 1995 and were to be heard on or before 

March 31, 1995. On March 5, 1995, Backus filed motions to 

suppress, for discovery and inspection, and for disclosure of the 

identity of the confidential informant. He did not notice the 

motions for hearing on or before March 31 as directed by the 

scheduling order, but instead noticed them for hearing on April 

6, the trial date. 

 On April 6, 1995, the trial judge heard and ruled on the 

motions to suppress and the motion for disclosure. On that date, 

defense counsel indicated that Backus was now requesting a jury 

trial and stated that it was necessary to pick a trial date. The 

trial judge inquired whether the charges would be tried together 

or separately, to which defense counsel responded that they would 

be tried separately. The trial judge then stated that it would 

be necessary to set two trial dates, but set only one, May 8, 

1995. Backus did not object to this date. 
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 On May 8, 1995, the parties appeared for trial. A witness 

for the Commonwealth, who had been subpoenaed, did not appear and 

the Commonwealth requested a continuance. The trial court 

granted a continuance to July 6, 1995 over Backus' objection. On 

July 5, 1995, Backus filed a motion to dismiss, asserting that 

the Commonwealth had not complied with the five month requirement 

of Code § 19.2-243. On the same date, he filed a motion to sever 

trial on the January charge from the trial on the October 

charges. On July 6, 1995, the trial court denied the motions, 

and the trial took place as scheduled. Backus acknowledges that 

his speedy trial claim does not apply to the charge on direct 

indictment for possession of cocaine with intent to distribute. 

MOTION TO SEVER 

 Backus contends that the trial court erred in denying his 

motion to sever. The Commonwealth claims that Backus waived this 

argument because Backus consented to joinder of the offenses, see

Rule 3A:10(c), and because he filed his motion to sever too late. 

 We disagree. 

 The scheduling order executed by the parties applied to all 

charges, and called for trial on April 6, 1995. As noted, trial 

did not take place on that date, but instead motions were argued, 

and trial was rescheduled. Backus' counsel requested separate 

trials on the charges, and the trial court appeared to concur by 

setting the first trial date for May 8, 1995. While Backus did 

not file a written motion to sever until the day before trial, we 
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find the delay was caused by the trial court having granted 

defense counsel's request for separate trials. In these 

circumstances, Backus had not waived his argument concerning the 

motion to sever. 

 The trial court had limited discretion to order that Backus 

be tried concurrently for multiple offenses. Kirk v. 

Commonwealth, 21 Va. App. 291, 295, 464 S.E.2d 162, 164 (1995) 

(citations omitted). Rule 3A:10(b) provides that all offenses 

pending against an accused may be tried at one time "if justice 

does not require separate trials and . . . the offenses meet the 

requirements of Rule 3A:6(b)." Under Rule 3A:6(b), joinder of 

offenses is permissible if, inter alia, they are based on two or 

more acts or transactions that are connected or constitute parts 

of a common scheme or plan. See Satcher v. Commonwealth, 244 Va. 

220, 229, 421 S.E.2d 821, 827 (1992). 

 In Spence v. Commonwealth, 12 Va. App. 1040, 407 S.E.2d 916 

(1991), on facts similar to those of this case, we held that the 

trial court erred in denying the motion to sever because the drug 

sales in the same area on different dates were not part of the 

same transaction, were not connected transactions, and did not 

constitute parts of a common scheme or plan. In so holding, we 

relied on Boyd v. Commonwealth, 213 Va. 52, 189 S.E.2d 359 

(1972). This case is controlled by Spence and Boyd. Under those 

cases, the requirements for joinder under Rule 3A:6(b) were not 

met, and the trial court therefore erred in denying Backus' 
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motion to sever. 

 RIGHT TO A SPEEDY TRIAL 

 Under Code § 19.2-243, an incarcerated accused held 

continuously in custody shall be brought to trial within five 

months after a general district court finds probable cause to 

believe that the defendant has committed a crime. Norton v. 

Commonwealth, 19 Va. App. 97, 99, 448 S.E.2d 892, 893 (1994). If 

a defendant is not tried within the five-month period, the burden 

is on the Commonwealth to explain the delay. Godfrey v. 

Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 783 (1984). 

Delays attributed to the defendant are not considered in 

computing compliance with the statute. Jones v. Commonwealth, 13 

Va. App. 566, 570, 414 S.E.2d 193, 195 (1992). In assessing 

responsibility for delay in trying a defendant, we limit our 

review to the record before us. Cantwell v. Commonwealth, 2 Va. 

App. 606, 611, 347 S.E.2d 523, 525-26 (1986). 

 Here, the Commonwealth exceeded the five-month deadline by 

less than a week. This delay did not violate Code § 19.2-243, 

because Backus was responsible for the continuance from the 

original trial date until May 8. According to the scheduling 

order, Backus was to set all motions for hearing on or before 

March 31, 1995. He did not do so, but instead set them for the 

date of trial. After argument on the motions, Backus did not 

attempt to proceed with trial, but instead asked for a later 

trial date--in effect moving for a continuance. The trial court 
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granted his request. 

 Backus argues that the delay was necessitated by the trial 

court's consideration of his pretrial motions, a delay that 

cannot be attributed to the defendant, and that the court itself 

continued the matter. We agree that under Code § 19.2-243, 

routine and customary motions, including motions to suppress, are 

to be disposed of within the five-month period. Adkins v. 

Commonwealth, 13 Va. App. 519, 523, 414 S.E.2d 188, 190 (1992). 

However, the record does not show that the court's consideration 

of the motions was responsible for the delay in scheduling the 

trial. The motions were not lengthy or complex, and the trial 

court disposed of them orally after hearing argument. Instead, 

the record indicates that the delay was caused by Backus' action 

in scheduling the motions for the day of trial, and then 

requesting a new trial date. Backus' actions necessitated a 

delay in the commencement of the trial, and therefore the 

Commonwealth did not violate his right to a speedy trial. 

Godfrey, 227 at 463, 317 S.E.2d at 783. 

 The defendant's convictions are reversed and the case is 

remanded for new trials, if the Commonwealth be so advised. 

 Reversed and remanded.