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

Keenan, JJ. and Poff, Senior Justice 

STEVEN JEROME JOHNSON 

 OPINION BY 

v. Record No. 952053 SENIOR JUSTICE RICHARD H. POFF 

 November 1, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 The principal issue framed on this appeal is whether the 

accused was denied his statutory right to a speedy trial upon 

remand following reversal by the Court of Appeals on an unrelated 

issue. Because the speedy trial statute1

 defines a breach of the 

 

 1In relevant part, Code § 19.2-243 provides: 

 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. 

 If there was no preliminary hearing in the district 

court, or if such preliminary hearing was waived by the 

accused, the commencement of the running of the five and 

nine months periods, respectively, set forth in this 

section, shall be from the date an indictment or 

presentment is found against the accused. 

 If an indictment or presentment is found against 

the accused but he has not been arrested for the offense 

charged therein, the five and nine months periods, 

respectively, shall commence to run from the date of his 

arrest thereon. 

 Where a case is before a circuit court on appeal 

from a conviction of a misdemeanor or traffic infraction 

in a district court, the accused shall be forever 

discharged from prosecution for such offense if the 

trial de novo in the circuit court is not commenced (i) 
 -2- 

 

right in terms of the expiration of stated time periods, we will 

summarize the relevant chronology. 

 January 9, 1992 The General District Court of 

the City of Richmond conducted 

a preliminary hearing on 

warrants charging Steven 

Jerome Johnson with robbery 

and with the use of a firearm 

in the commission of robbery. 

 That court found probable 

cause and certified the case 

to the circuit court. 

 April 27, 1992 Convicted by a jury on both 

counts and sentenced to a 

total of nine years' 

imprisonment, Johnson appealed 

to the Court of Appeals. 

 December 14, 1993 A panel of the Court of 

Appeals entered an order 

finding "error in the 

judgment" and remanding the 

case "for a new trial". 

 March 11, 1994 Alleging denial of his 

statutory right to a speedy 

trial, Johnson filed a motion 

to dismiss. Following a 

hearing, the circuit court 

denied the motion. 

 May 9, 1994 Johnson entered a guilty plea, 

conditioned upon his right to 

appeal the speedy trial issue. 

 The trial court imposed 

within five months from the date of the conviction if 

the accused has been held continuously in custody or 

(ii) within nine months of the date of the conviction if 

the accused has been recognized for his appearance in 

the circuit court. 

 . . . . 

 But the time during the pendency of any appeal in 

any appellate court shall not be included as applying to 

the provisions of this section. 
 -3- 

sentence, and Johnson appealed 

the final judgment to the 

Court of Appeals. 

 October 24, 1995 A panel of the Court of 

Appeals affirmed the trial 

court's judgment. This appeal 

ensued. 

 I. 

 Invoking "the last unnumbered paragraph of 19.2-243", 

Johnson contends that the "running of the [five-month] statutory 

period was tolled during the pendency of the appeal" and that the 

"statutory period resumed on [December 14, 1993], leaving the 

Commonwealth with the unexpired balance of time within which to 

try the case or take other action." We disagree with that 

construction of the statute. 

 The statute expressly provides that an accused felon must be 

"forever discharged from prosecution . . . if no trial is 

commenced in the circuit court within five months from the date 

. . . probable cause was found by [a] district court" when the 

accused has been "held continuously in custody" for that period; 

if at liberty during that period, the accused will be discharged 

from prosecution if "no trial is commenced . . . within nine 

months from the date such probable cause was found." The same 

time periods, with the same distinctions concerning custody, 

apply to an accused on appeal of a district court conviction of a 

misdemeanor or traffic infraction, that is, the accused must be 

discharged from prosecution "if the trial de novo in the circuit 

court is not commenced" before expiration of the applicable time 
 -4- 

period. 

 Code § 19.2-243 uses the word "commenced" repeatedly and 

purposefully to define compliance with the time periods 

prescribed as the statutory measure of the right of an accused to 

a speedy trial. Nowhere does the statute, including the last 

unnumbered paragraph, require that the trial, once timely 

commenced, be concluded before the termination of the time 

period. 

 This Court reached that conclusion in Butts v. Commonwealth, 

145 Va. 800, 133 S.E. 764 (1926). There, the appellant argued, 

as Johnson argues here, that the speedy trial statute required 

that final judgment be entered before expiration of the 

applicable time period. Rejecting that contention, we said: 

 The object of the statute is to secure a "speedy trial," and 

where the accused is actually brought to trial within the 

time required by the statute, but from some adventitious 

cause, without fault on the part of the Commonwealth, . . . 

final judgment cannot be entered during such [time], the 

statute has been sufficiently complied with. 

Id. at 808, 133 S.E. at 766; accord Howell v. Commonwealth, 186 

Va. 894, 898, 45 S.E.2d 165, 166-67 (1947)2

. 

 Johnson's challenge addresses only the speedy trial statute. 

 Neither the Sixth Amendment of the federal Constitution nor 

article 1, § 8 of the Constitution of Virginia was invoked in the 

trial court or on appeal to this Court. In Barker v. Wingo, 407 

 

 2The speedy trial statute construed in Butts and applied in 

Howell, former Code § 4926, contained the same language contained 

"in the last unnumbered paragraph of 19.2-243" invoked by Johnson 

in support of his construction of the statute. 
 -5- 

U.S. 514 (1972), the Supreme Court concluded that, in the 

enactment of such statutes, "[t]he States . . . are free to 

prescribe a reasonable period", id. at 523, and that when 

required to determine "whether a particular defendant has been 

deprived of his [constitutional] right", courts should consider 

"[l]ength of delay, the reason for the delay, the defendant's 

assertion of his right, and prejudice to the defendant", id. at 

530. 

 Reaffirming our construction of the statute in Butts and 

Howell, we hold that when, as here, the trial of an accused has 

been commenced within the applicable time period prescribed by 

the Virginia statute and, on appeal, a conviction is reversed and 

the case is remanded for retrial, the time for retrial rests 

within the discretion of the trial court, a discretion measured 

and controlled by the constitutional standards of reasonableness 

and fairness explicated in Barker. Stated differently, upon 

retrial following reversal on appeal, the right of an accused to 

a speedy trial is governed exclusively by the constitutional 

mandate.3

 II 

 In a second assignment of error, Johnson contends that the 

 

 3A number of courts in other states have agreed that the time 

limitations of speedy trial statutes do not apply on retrial and 

that when a retrial is required, an accused must rely on the 

constitutional guarantee. See e.g., Lahr v. State, 615 N.E.2d 

150, 151-52 (Ind. App. 2 Dist. 1993); Carlisle v. State, 393 So.2d 

1312, 1314 (Miss. 1981); Ruester v. Turner, 250 So.2d 264, 267 

(Fla. 1971). 
 -6- 

panel of the Court of Appeals whose judgment is under review 

erred in holding that it was "bound by the principle of stare

decisis to apply" an earlier ruling made by another panel in 

Morgan v. Commonwealth, 19 Va. App. 637, 453 S.E.2d 914 (1995). 

 In Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456, 

457 (1990), we said: 

 As used in Code § 17-116.02(C), acting independently merely 

means that each panel must decide on its own the cases it 

hears, not that it is free from traditional rules of 

decision, such as stare decisis. 

 Complaining that the Burns court "did not consider the 

provision in Code § 17-116.02(D)(ii)" authorizing an en banc

hearing by the Court of Appeals, Johnson characterizes our 

statutory interpretation as dictum. The Court of Appeals has 

repeatedly applied our interpretation as a rule of law. See

Rocco Turkeys, Inc. v. Lemus, 21 Va. App. 503, 510, 465 S.E.2d 

156, 160 (1996); In Re Baskins, 16 Va. App. 241, 245, 430 S.E.2d 

555, 558 (1993), rev'd on other grounds sub nom. Jamborsky v. 

Baskins, 247 Va. 506, 442 S.E.2d 636 (1994). Hall v. 

Commonwealth, 14 Va. App. 892, 894 n.2, 421 S.E.2d 455, 457 n.2 

(1992). 

 Reaffirming our statutory interpretation in Burns we hold 

that a decision of a panel of the Court of Appeals becomes a 

predicate for application of the doctrine of stare decisis until 

overruled by a decision of the Court of Appeals sitting en banc

or by a decision of this Court. Finding no error below, we will 

affirm the judgment. 
 -7- 

Affirmed. 

JUSTICE LACY, with whom JUSTICE KEENAN joins, concurring. 

 I write separately because, while the majority's disposition 

resolves the case, its rationale does not address the principal 

issue raised by the defendant in this appeal. 

 Steven Johnson has consistently based his claim that he was 

denied a speedy trial on his interpretation of the final sentence 

of Code § 19.2-243, the speedy trial statute. That sentence 

provides: 

 But the time during the pendency of any appeal in any 

appellate court shall not be included as applying to 

the provisions of this section. 

Johnson asserts that when his first trial began, approximately 

one month and 14 days of the five-month period prescribed by the 

statute remained unused. Johnson construes the quoted portion of 

the statute as "tolling" the running of this unused period until 

December 14, 1993, when the Court of Appeals reversed his 

conviction and remanded the case for a new trial. At that point, 

under Johnson's theory the tolling ceased and the Commonwealth 

was required to commence his second trial within the unused one 

month and 14 days. Because his second trial did not commence 

within that period, he concludes that the speedy trial statute 

was violated and the charges against him must be dismissed. 

 The lynchpin of Johnson's argument is that if the time 

periods established in the speedy trial act only apply to the 

commencement of his initial trial, as the Court of Appeals 
 -8- 

concluded, the reference in the statute to time elapsed "during 

the pendency of any appeal" is meaningless. I disagree with 

Johnson. 

 The Court of Appeals construed the sentence in question as 

applying only to pre-trial appeals. This sentence was added to 

the speedy trial statute in 1894. Acts of Assembly, 1893-94, p. 

464. Although there were no specific statutory procedures for 

pretrial appeals at that time, defendants nevertheless pursued 

appeals prior to the commencement of the first trial. See e.g.

Saunders v. Commonwealth, 79 Va. 522, 523 (1884) (appeal of 

denial of double jeopardy plea dismissed when case had not 

"progressed further than the order of the court rejecting the 

second plea tendered by the defendant"). Furthermore, in its 

very next session 1895-96, the General Assembly enacted 

legislation providing statutory procedures for pretrial appeals 

in certain situations. Acts of Assembly, 1895-96, p. 365-66. 

 Construing the statute as suggested by Johnson and thereby 

allowing dismissal of criminal charges under these circumstances 

is not required in order to provide a defendant with the 

protection of a speedy trial, and I cannot ascribe such an intent 

to the General Assembly. The Court of Appeals' interpretation of 

the statute imposes statutory periods that guarantee a timely 

commencement of a defendant's first trial, and leaves evaluation 

of the timeliness of second and subsequent trials to the 

standards developed under the state and federal constitutions. 
 -9- 

See Barker v. Wingo, 407 U.S. 514 (1972). 

 Although this Court has not addressed the specific issue 

presented in this appeal, we have previously stated that the 

statutory requirement for a speedy trial is satisfied if the 

trial is commenced within the requisite period. Butts v. 

Commonwealth, 145 Va. 800, 133 S.E. 764 (1926) (statute satisfied 

although trial court's final judgment not entered within the 

statutory period). The Court of Appeals' construction of the last 

paragraph of the statute is consistent with this statement and is 

the proper interpretation of § 19.2-243. Therefore, for the 

reasons stated, I concur in the disposition reached by the 

majority.