COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Senior Judge Hodges 

Argued via teleconference 

JEFFREY NELSON RIDDICK 

 MEMORANDUM OPINION* v. Record No. 0493-95-1 BY JUDGE WILLIAM H. HODGES 

 JULY 23, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John E. Clarkson, Judge 

 Fay F. Spence for appellant. 

 Monica S. McElyea, Assistant Attorney General 

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

brief), for appellee. 

 Jeffrey Nelson Riddick (appellant) was convicted by a jury 

of the robbery of Robert Johnson and the attempted robbery of 

another individual. On appeal, appellant contends his statutory 

and constitutional speedy trial rights were violated, and that 

the trial court erred in failing to dismiss the indictments 

against him. We disagree and affirm the convictions. 

I. Statutory Speedy Trial Issue

 Code § 19.2-243 provides, in pertinent part, that "the 

accused, if . . . held continuously in custody thereafter, shall 

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 the district court . . . ." 

"The five month requirement of Code § 19.2-243 translates to 152 

 

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

designated for publication. 
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and a fraction days." Ballance v. Commonwealth, 21 Va. App. 1, 

6, 461 S.E.2d 401, 403 (1995). 

 Appellant's preliminary hearing for attempted robbery 

occurred on August 4, 1993, and he was incarcerated continuously 

thereafter. In order to comply with appellant's statutory speedy 

trial right, his trial must have commenced within five months of 

the preliminary hearing, excluding such periods of delay 

attributable to appellant. See Code § 19.2-243(1) through 

§ 19.2-243(5). 

 Following the preliminary hearing, appellant's first court 

appearance on these charges occurred on September 30, 1993. As 

the parties agree, the fifty-seven days between the preliminary 

hearing and September 30, 1993 should be included within the five 

month statutory period. See Nelms v. Commonwealth, 11 Va. App. 

639, 642, 400 S.E.2d 799, 801 (1991). The parties further agree 

that the days between September 30 to December 21, 1993 should be 

excluded from the statutory period because appellant joined in 

the motion to continue the case during that time. See Code 

§ 19.2-243(4). 

 Thereafter, trial was delayed from December 21, 1993 to 

March 1, 1994 (seventy days) and March 1, 1994 to May 12, 1994 

(seventy-two days). Assuming for the sake of argument that the 

seventy day delay was attributable to the Commonwealth, the March 

1, 1994 continuance order clearly demonstrates that appellant 

moved for a continuance and agreed to the May 12, 1994 trial 
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date. "'[W]here a defendant does not object to the accuracy of 

an order within 21 days after its entry, an appellate court may 

"presume that the order, as the final pronouncement on the 

subject, . . . accurately reflects what transpired."'" Thomas v. 

Commonwealth, 16 Va. App. 851, 861, 434 S.E.2d 319, 325 (1993) 

(citations omitted), aff'd en banc, 18 Va. App. 454, 444 S.E.2d 

275 (1994). Thus, the seventy-two day period should not be 

included in the speedy trial computation. 

 On May 12, 1994, appellant appeared with counsel, was 

arraigned for the Johnson robbery and two other robberies, and 

tendered guilty pleas. A written plea agreement stated that in 

exchange for appellant's guilty pleas, the Commonwealth agreed to 

move to nolle prosequi the charge of attempted robbery. The 

court withheld acceptance of the plea agreement and ordered a 

presentence report. 

 On July 14, 1994, the trial court rejected the plea 

agreement, finding the proposed sentences too lenient for the 

crimes committed. Appellant withdrew his guilty pleas, and 

another judge was assigned to the case. Following a series of 

continuances, a jury began hearing evidence on March 2, 1995 on 

the Johnson robbery and the attempted robbery. 

 Appellant contends that his trial did not commence on May 

12, 1994 when he entered his guilty pleas and the plea agreement 

was tendered to the trial court. However, we specifically 

rejected this argument in Riddick v. Commonwealth, 22 Va. App. 
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136, 468 S.E.2d 135 (1996), a case involving another robbery to 

which appellant entered a guilty plea on May 12, 1994. We 

observed that "'"[t]he trial of a criminal case begins with the 

arraignment . . ., and ends with the sentence pronounced upon him 

by the court,"'" and concluded that the proceedings against 

appellant commenced, for speedy trial purposes, on May 12, 1994. 

Id. at 143, 468 S.E.2d at 138 (citations omitted). 

 Although appellant was not arraigned on the attempted 

robbery charge on May 12, 1994, he then agreed to the disposition 

of the attempted robbery charge contingent upon the court's 

acceptance of the plea agreement. Because that charge was to be 

nolle prossed as part of the agreement, arraignment upon the 

offense was not necessary. Accordingly, the proceedings on May 

12, 1994 commenced appellant's trial for robbery and attempted 

robbery within the intendment of Code § 19.2-243. 

 Including the seventy day period mentioned above, on May 12, 

1994 only 127 days of delay arguably attributable to the 

Commonwealth had passed since the preliminary hearing. Thus, 

appellant's trial did not begin later than the period prescribed 

by Code § 19.2-243. The subsequent procedural events constituted 

"an extension of that same proceeding, based upon the same 

indictment and process and following a regular, continuous order 

. . . ." Morgan v. Commonwealth, 19 Va. App. 637, 639, 453 

S.E.2d 914, 915 (1995). See Rule 3A:8(c). While these 

proceedings doubtless necessitated delay, "Code § 19.2-243 
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requires the timely commencement of trial[,] . . . not . . . that 

trial be concluded within the specified time." Morgan, 19 Va. 

App. at 640, 453 S.E.2d at 915. Thus, appellant's speedy trial 

right guaranteed by Code § 19.2-243 was not violated. 

II. Constitutional Speedy Trial Issue

 In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court 

of the United States, "recognizing the difficulty in evaluating 

speedy trial claims, adopted a balancing test" which "identified 

four factors to be assessed by courts in determining whether a 

particular defendant has been deprived of his speedy trial right: 

(1) the length of delay; (2) the reason for the delay; (3) the 

defendant's assertion of his right; and (4) prejudice to the 

defendant." Holliday v. Commonwealth, 3 Va. App. 612, 616, 352 

S.E.2d 362, 364 (1987). There is, however, no "precise formula 

for determining when a constitutional right to a speedy trial has 

been abridged." Moten v. Commonwealth, 7 Va. App. 438, 445, 374 

S.E.2d 704, 708 (1988). 

 A significant portion of the delay between appellant's 

arrest and the seating of a jury to hear evidence was occasioned 

by his own continuance requests. Appellant requested or 

concurred in pretrial delays of at least 154 days, from September 

30 to December 21, 1993 and from March 1 to May 12, 1994. In 

fact, appellant did not object to the delay until October of 

1994, after his "trial" for purposes of Code § 19.2-243 had 

already commenced. Other than the mere passage of time, 
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appellant has demonstrated no prejudice from the delay. Under 

these circumstances, appellant's constitutional right to a speedy 

trial was not violated. 

 For the foregoing reasons, we affirm appellant's 

convictions. 

 Affirmed.