COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Willis 

Argued at Norfolk, Virginia 

KEVIN MARVIN BALLANCE 

v. Record No. 1791-93-1 OPINION BY 

 JUDGE JERE M. H. WILLIS, JR. 

COMMONWEALTH OF VIRGINIA SEPTEMBER 5, 1995 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Edward W. Hanson, Jr., Judge 

 Theresa B. Berry (Samford & Berry, on 

briefs), for appellant. 

 G. Russell Stone, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 On appeal from his convictions of five counts of forcible 

sodomy, six counts of aggravated sexual battery, and two counts 

of taking indecent liberties with minors, Kevin Marvin Ballance 

contends that the trial court erred in denying his motions for 

dismissal based on violations of his statutory right to a speedy 

trial in the cases involving children named Matthew and Joshua. 

 We find no error and affirm the judgment of the trial court. 

 Ballance was arrested July 9, 1992, on five warrants 

charging aggravated sexual battery, five warrants charging 

forcible sodomy, and one warrant charging the taking of indecent 

liberties with a minor, all involving Matthew. At the same time, 

Ballance was arrested upon warrants charging sexual offenses 

committed upon a child named Krystle. His conviction on those 

charges is not at issue here. 
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 At a September 10, 1992 preliminary hearing, probable cause 

was found and the charges were certified to the grand jury. On 

October 5, 1992, the grand jury indicted Ballance on all charges. 

 He was also indicted on one count of aggravated sexual battery 

and one count of taking indecent liberties against a minor, 

involving Joshua. All charges were scheduled for trial on 

November 17, 1992. 

 On November 17, 1992, the trial court granted Ballance's 

motion for a continuance until January 11, 1993, so that he could 

be evaluated for sanity at the time of the offenses and 

competency to stand trial. On January 6, 1993, the trial court 

granted Ballance's motion for a continuance until March 3, 1993, 

to allow his psychiatrist time to complete his evaluations. 

 On March 3, 1993, Ballance's counsel informed the trial 

court that a conflict had developed between Ballance and him, and 

he sought to be removed from the case. The trial court advised 

Ballance that if it allowed defense counsel to withdraw, the case 

would be continued on Ballance's motion. Ballance agreed that 

this should be done. The trial court allowed defense counsel to 

withdraw and appointed a public defender to represent Ballance. 

 With the concurrence of defense counsel, the trial court 

continued the case to March 10, 1993, to permit new defense 

counsel to come into the case and to participate in setting a 

trial date. On March 10, 1993, in consultation with counsel, the 

trial court set all charges for trial on May 4, 1993. 
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 Ballance then filed numerous motions, including a motion to 

sever trial of the charges by victim. On April 20, 1993, a 

hearing was held on the severance motion, but because Ballance 

was unsure whether he wanted to pursue the motion, the matter was 

continued to April 26, 1993. On that date, the trial court 

granted Ballance's motion for a severance of the charges. Trials 

were set for May 4, 1993, on the charges involving Krystle, June 

16, 1993, on the charges involving Matthew, and July 21, 1993, on 

the charges involving Joshua. 

 On June 16, 1993, Ballance was found guilty of all charges 

involving Matthew. The trial court confirmed the verdicts and 

set sentencing for July 21, 1993. 

 On July 15, 1993, Ballance moved to dismiss the charges 

involving Matthew and Joshua on the ground that his right to a 

speedy trial, as set forth in Code § 19.2-243, had been violated. 

 On July 21, 1993, the trial court denied that motion, stating, 

"the only delay in this case has been due to the defendant." 

 On July 21, 1993, Ballance was found guilty on all charges 

relating to Joshua. The trial court confirmed the verdicts and 

continued the case to August 23, 1993, for sentencing. On August 

23, 1993, the trial court imposed sentence on the convictions of 

May 4, 1993 (Krystle), June 16, 1993 (Matthew), and July 21, 1993 

(Joshua). 

 Throughout the entire proceeding, from his arrest on July 9, 

1992, to his July 21, 1993, trial, Ballance was held continuously 
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in custody. 

 Code § 19.2-243 provides, in pertinent part: 

 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 has been found 

. . . . 

 If there was no preliminary hearing in the district 

court, . . . the commencement of the running of the 

five . . . [month period] . . . shall be from the date 

an indictment or presentment is found against the 

accused. 

 The provisions of this section shall not apply to such 

period of time as the failure to try the accused was 

caused: 

* * * * * * * 

 (4) by continuance granted on the motion of the accused 

or his counsel, or by concurrence of the accused or his 

counsel in such a motion by the attorney for the 

Commonwealth . . . . 

 Ballance concedes that his May 4, 1993, trial on the charges 

involving Krystle satisfied the requirements of Code § 19.2-243. 

 This appeal does not address that trial or Ballance's 

convictions on those charges. 

 Ballance first invoked his statutory speedy trial right by 

his motion filed July 15, 1993, subsequent to his June 16, 1993, 

trial on the charges involving Matthew. Citing Brooks v. Peyton, 

210 Va. 318, 171 S.E.2d 243 (1969), the Commonwealth contends 

that by failing to assert his speedy trial right timely, Ballance 

thereby waived it. In Brooks, the Supreme Court said: 

 The protection granted an accused under Code 
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 § 19.1-1911

 is not self-operative. "It may be 

claimed, or it may be waived." Failure to invoke 

 the provisions of the statute until after final 

judgment is a waiver of the protection afforded 

thereunder. 

Brooks at 321, 171 S.E.2d at 246 (citations omitted). We reject 

this contention. The August 23, 1993, sentencing order was the 

final judgment with respect to the charges tried June 16, 1993 

(Matthew). Therefore, Ballance asserted his statutory speedy 

trial right timely. 

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

152 and a fraction days. The Commonwealth is required to 

commence trial within that time. Moten v. Commonwealth, 7 Va. 

App. 438, 441, 374 S.E.2d 704, 706 (1988). The time elapsing 

from the finding of probable cause to the initial trial date, 

even though the accused concurs in the trial date, is not a 

continuance within the contemplation of subsection (4) of the 

statute, but counts against the Commonwealth in a calculation of 

compliance. See Nelms v. Commonwealth, 11 Va. App. 639, 400 

S.E.2d 799 (1991). Thus, with respect to the charges involving 

Matthew, sixty-eight days elapsed from the September 10, 1992, 

finding of probable cause to the initial November 17 trial date. 

 With respect to the charges involving Joshua, forty-three days 

elapsed from the October 5, 1992, indictment to the November 17 

trial date. These times are chargeable to the Commonwealth. 

 Ballance concedes that the delay from November 17, 1992, 

 

 1Now Code § 19.2-243. 
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until the March 3, 1993, trial date, being necessitated by his 

motions for psychiatric evaluation, is chargeable to him. Our 

analysis focuses on the continuances of March 3, 1993, and April 

26, 1993. Acknowledging that his March 3 motion for withdrawal 

of his attorney and for substitution of new counsel required a 

continuance of his March 3, 1993, trial, Ballance contends that 

he should be charged only the seven days required to secure the 

attendance of his new counsel to reschedule the trial date. We 

disagree. The case was scheduled and ready for trial March 3, 

1993. Ballance's motion for substitution of counsel necessitated 

a continuance and a rescheduling of the trial date. The trial 

court so advised him. The granting of Ballance's motion and the 

accomplishment of its purpose required not only securing new 

counsel, but also rescheduling the trial for a date acceptable to 

new counsel. That date was May 4, 1993. Therefore, we hold that 

the delay from March 3, 1993, to May 4, 1993, is charged to 

Ballance. See Stephens v. Commonwealth, 225 Va. 224, 233-34, 301 

S.E.2d 22, 27 (1983); Shearer v. Commonwealth, 9 Va. App. 394, 

401-02, 388 S.E.2d 828, 831-32 (1990). 

 Likewise, we hold that the delays from May 4, 1993, to June 

16, 1993 (Matthew), and from May 4, 1993 to July 21, 1993 

(Joshua), are chargeable to Ballance. The cases were set, with 

Ballance's concurrence, to be tried together on May 4, 1993. 

Ballance's motion for severance necessitated continuance of the 

charges involving Matthew and the charges involving Joshua. 
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Unlike Nelms, where the accused stood by unprotestingly while the 

trial court failed to discharge its duty to set the case timely, 

the scheduling of the June 16 and July 21 trials was part of the 

continuance aspect of Ballance's severance motion. He 

participated in the fixing of those trial dates as a part of that 

motion. Thus, we hold that the fixing of those trial dates was 

with his concurrence. See Stephens, 225 Va. at 233-34, 301 

S.E.2d at 27; Shearer, 9 Va. App. at 401-02, 388 S.E.2d at 

831-32. 

 The judgment of the trial court is affirmed. 

 Affirmed. 
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BENTON, J., concurring in the judgment. 

 Although Ballance was not tried within the time specified by 

Code § 19.2-243, I agree with the majority that delays 

attributable to Ballance caused the trial to occur beyond the 

statutory limit. I do not agree, however, that the time that 

elapsed from May 4 to the trial dates should be attributed to 

Ballance. 

 Ballance concedes that the time that elapsed from November 

13, 1992 (the first trial date) to March 3, 1993, was 

attributable to him. On March 3, 1993, the trial judge granted 

Ballance's request for a new attorney, and set a hearing for 

March 10, 1993, to set a new trial date. Ballance also agrees 

that the time that elapsed from March 3 to March 10 was 

attributable to him. 

 On March 10, 1993, Ballance's new attorney agreed to a May 

4, 1993, trial date. Ballance contends that the time that 

elapsed from March 10, 1993, to May 4, 1993, was not attributable 

to him. I disagree. The delay caused by Ballance's request for 

a change of attorney continued to the date that Ballance's new 

attorney could be available for trial. That was determined to be 

May 4, 1993. 

 The record reflects, however, that on April 26, 1993, 

Ballance requested separate trials for the charges regarding the 

respective victims. The trial judge entered an order, as 

requested by the Commonwealth, maintaining one trial date on May 
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4, 1993, setting another for June 16, 1993, and setting the third 

for July 21, 1993. The record does not reflect that Ballance 

concurred in those continuances. "[A]n agreement [for a 

continuance] is not implicit in [a] request for separate jury 

trials." Walker v. Commonwealth, 225 Va. 5, 11, 301 S.E.2d 28, 

31 (1983). However, even if this delay is attributable to the 

Commonwealth, the record reflects that when the delay 

attributable to Ballance is considered, he was tried within the 

statutory time. For these reasons, I concur in the judgment to 

affirm the trial judge's order.