COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Lemons and Senior Judge Hodges 

Argued at Alexandria, Virginia 

SHERRY DENISE BATTLE 

 MEMORANDUM OPINION* BY 

v. Record No. 1757-97-1 JUDGE DONALD W. LEMONS 

 DECEMBER 8, 1998 

CITY OF NORFOLK 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Benjamin N. A. Kendrick, Judge Designate 

 Sa'ad El-Amin (El-Amin & Crawford, on brief), 

for appellant. 

 William P. Robinson, Jr. (Robinson, Shelton, 

Malone & Anderson, on brief), for appellee. 

 Sherry Denise Battle appeals her conviction for disorderly 

conduct alleging that she was not prosecuted in a timely manner 

pursuant to the speedy trial provisions of Code § 19.2-243. We 

agree and reverse and dismiss her conviction. 

 On May 3, 1994, Battle was convicted of disorderly conduct 

and assault in the General District Court for the City of 

Norfolk. She filed her notice of appeal, and the case was 

docketed in the Circuit Court of the City of Norfolk. On May 17, 

1994, Battle filed a petition for rehearing in the general 

district court. The City of Norfolk filed a petition for writ of 

prohibition in the circuit court seeking to prohibit any 

rehearing in the general district court. On December 13, 1995 

the circuit court issued the writ. Battle appealed the order to 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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the Supreme Court of Virginia. The criminal charges were not set 

for trial in the circuit court while the controversy over the 

petition for writ of prohibition was litigated. The same judge 

presided over the criminal matters and the civil proceeding for 

an extraordinary writ. 

 On April 9, 1996, the trial judge issued a "Notice of 

Issuance of Writ of Prohibition" and directed Battle to appear 

before the Clerk of the Norfolk Circuit Court on April 23, 1996 

to advise the court of her "intent as such may be available 

pursuant to your appellate remedies due to your convictions in 

the General District Court for the City of Norfolk, Criminal 

Division." The parties agree that appellate proceedings over the 

petition for writ of prohibition had concluded at that time. The 

record reflects no order setting the case for trial; however, the 

trial commenced on April 28, 1997. On that day prior to trial, 

Battle moved for dismissal of the charges because the case had 

not been tried within the statutory constraints of the speedy 

trial provisions of Code § 19.2-243. The court denied the 

motion, the cases were heard by a jury and the jury returned a 

verdict of not guilty of assault and guilty of disorderly 

conduct. 

 Code § 19.2-243 provides in part: 

 [w]here 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) within five months from the date of the 
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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. 

 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; 

 2. By the witnesses for the Commonwealth 

 being enticed or kept away, or 

prevented from attending by sickness or 

accident; 

 3. By the granting of a separate trial at 

 the request of a person indicted 

jointly with others for a felony; 

 4. By continuance granted on the motion of 

 the accused or his counsel, or by 

 concurrence of the accused or his 

counsel in such motion by the attorney 

for the Commonwealth, or by the 

failure of the accused or his counsel 

to make a timely objection to such a 

motion by the attorney for the 

Commonwealth, or by reason of his 

escaping from jail or failing to 

appear according to his 

recognizance; or 

 

 5. By the inability of the jury to agree in 

 their verdict. 

 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. 

 

 We do not reach the issue of whether the time expended 

during an appeal of a civil proceeding for an extraordinary writ 

ancillary to a criminal prosecution is chargeable to the 
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Commonwealth under Code § 19.2-243. After appellate proceedings 

concluded, twelve months elapsed from April 23, 1996 to the date 

of the trial on April 28, 1997. The record reflects no 

justifiable basis for delay in setting the case for trial. 

 We have previously stated that, 

 Code § 19.2-241 requires that "[t]he judge of 

each circuit court shall fix a day of his [or 

her] court when the trial of criminal cases 

will commence" and that the accused "shall be 

tried within the time limits fixed in [Code] 

§ 19.2-243." This Code section is, in part, 

a legislative acknowledgement of the obvious 

imperative that the trial judge, rather than 

the prosecutor or the accused, controls the 

trial docket. Code § 19.2-243 contemplates 

an orderly procedure for setting criminal 

trial dates to ensure that the accused is 

afforded a statutory speedy trial without 

penalizing the Commonwealth for delays not 

fairly attributable to it. 

 

Baity v. Commonwealth, 16 Va. App. 497, 502, 431 S.E.2d 891, 894 

(1993). 

 The record is devoid of any permissible reason for delay in 

the setting of Battle's case for trial for the twelve-month 

period between April 23, 1996 and April 28, 1997. Accordingly, 

the trial judge erred in denying Battle's motion to dismiss the 

prosecution for failure to comply with the speedy trial 

provisions of Code § 19.2-243. The conviction is reversed and 

dismissed. 

 Reversed and dismissed.