COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Frank and Clements 

Argued at Richmond, Virginia 

RONALD LAMAR MITCHELL 

 MEMORANDUM OPINION* BY 

v. Record No. 1738-00-2 JUDGE JAMES W. BENTON, JR. 

 JUNE 12, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

L.A. Harris, Jr., Judge 

 (Brice E. Lambert; Leonard W. Lambert & 

Associates, on brief), for appellant. 

Appellant submitting on brief. 

 Richard B. Smith, Senior Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 The sole issue raised by this appeal is whether Ronald Lamar 

Mitchell was tried in violation of his right to a speedy trial as 

provided by Code § 19.2-243. We affirm the conviction. 

I. 

 Mitchell, a juvenile, was arrested for robbery and use of a 

firearm in the commission of the robbery. At a preliminary 

hearing on October 4, 1999 in the juvenile and domestic relations 

district court, a judge certified the charges to the grand jury 

and remanded Mitchell to the custody of the Sheriff. On November 

8, 1999, after the grand jury returned indictments, the trial 
judge scheduled the trial for December 7, 1999. The order noted 

that Mitchell's attorney was not present. 

 The trial did not occur on December 7, 1999. The trial judge 

entered an order that states Mitchell "was receiving medical 

treatment at a Diagnostic Center" and was not present in court on 

December 7. The order continued the trial to January 26, 2000; it 

notes that Mitchell's attorney was present; and it does not 

indicate that Mitchell's attorney objected to the continuance. 

 The trial judge again continued the trial from January 26, 

2000 to March 8, 2000. The order recites that the circuit court 

was closed January 26 due to inclement weather. The order 

contains no indication that notice of the order was given to 

Mitchell, his attorney, or the prosecutor. 

 On the day of trial, March 8, 2000, Mitchell's attorney moved 

to discharge Mitchell from prosecution and alleged that Mitchell's 

right to a speedy trial had been violated. He argued that 

Mitchell was in custody and that March 8, 2000 was four days 

beyond the statutory 152 days in which the Commonwealth was 

required to try the case. The trial judge denied the motion. 

Mitchell then entered a conditional plea of guilty to the charge 

of robbery, preserving the right to appeal the judge's ruling on 

his speedy trial motion pursuant to Code § 19.2-254. By 

agreement, the Commonwealth did not prosecute Mitchell for the 

firearm charge. 

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II. 

 In pertinent part, Code § 19.2-243 provides as follows: 

 Where a . . . 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 . . . . 

* * * * * * * 

 The provisions of this section shall not 

apply to such period of time as the failure 

to try the accused was caused: 

1. By his insanity or by reason of his 

confinement in a hospital for care and 

observation . . . . 

 The record establishes that the initial trial date of 

December 7, 1999, was well within the statutorily permissible 

range. By the trial judge's order, that date was changed to 

January 26, 2000, which was also within the permissible 

statutory range. Although Mitchell argues on brief that "the 

lack of transportation, not the medical treatment, . . . forced 

the court to continue the case" on December 7, 1999, the recital 

in the order, that Mitchell "was receiving medical treatment at 

a Diagnostic Center," is a verity. It is unrefuted by any 

evidence or objection in the record. See Kern v. Commonwealth, 

2 Va. App. 84, 88, 341 S.E.2d 397, 400 (1986). 

 In construing Code § 19.2-243, which is the legislative 

determination of what constitutes a speedy trial, see Flanary v. 

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Commonwealth, 184 Va. 204, 208, 35 S.E.2d 135, 137 (1945) 

(discussing former Code § 4926), the Supreme Court held as 

follows: 

[T]he exceptions in the speedy trial statute 

are not meant to be all-inclusive, but that 

others of a similar nature were 

implied. . . . 

"The truth is the statute never meant by its 

enumeration of exceptions, or excuses for 

failure to try, to exclude others of a 

similar nature or in pari ratione; but only 

to enact if the Commonwealth was in default 

. . . without any of the excuses for the 

failure enumerated in the statute, or such 

like excuses, fairly implicable by the 

Courts from the reason and spirit of the 

law, the prisoner should be entitled to his 

discharge." 

Stephens v. Commonwealth, 225 Va. 224, 230, 301 S.E.2d 22, 25 

(1983) (citation omitted). 

 The trial judge's order continuing the trial from December 

7, 1999 to January 26, 2000 recites a reason sufficiently 

similar to the medical treatment provision enumerated in the 

speedy trial statute to bring that continuance within the spirit 

of the statute. Thus, we hold that, for the period December 7, 

1999 to January 26, 2000, the failure to hold Mitchell's trial 

was caused by a continuance due to his confinement for medical 

care as recognized by Code § 19.2-243(1). 

 We also note that Mitchell's attorney did not object to 

this continuance. As amended in 1995, the speedy trial statute 

now states, "[t]he provisions of this section shall not apply to 

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such period of time as the failure to try the accused was 

caused . . . by the failure of the accused or his counsel to 

make a timely objection to such a motion by the attorney for the 

Commonwealth . . . ." Code § 19.2-243(4). In Robinson v. 

Commonwealth, 28 Va. App. 148, 155, 502 S.E.2d 704, 708 (1998), 

we held that the failure to make a timely objection to a 

continuance caused "the delay resulting from this continuance 

[to be] charged to" the defendant. Id. at 154, 502 S.E.2d at 

707. In a similar vein, the Supreme Court recently ruled that 

"[w]hen a defendant . . . acquiesces in an order that 

effectively continues a case, the five-month speedy trial period 

of Code § 19.2-243 is tolled during the time reasonably 

specified by the court to carry out the terms of its order." 

Heath v. Commonwealth, 261 Va. 389, 393, 541 S.E.2d 906, 908 

(2001). 

 When the time period of this continuance is factored out of 

the period required to bring this case to trial on March 8, 

2000, the record plainly establishes that Mitchell was tried 

within "[t]he five month requirement . . . [which] translates to 

152 and a fraction days." Ballance v. Commonwealth, 21 Va. App. 

1, 6, 461 S.E.2d 401, 403 (1995). Accordingly, we affirm the 

conviction. 

 Affirmed. 

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