PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee, 

JJ., and Stephenson, S.J.

ALEXANDER WAYLAND HUDSON 

v. Record No. 030294 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 January 16, 2004 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this appeal, we consider whether the Court of Appeals 

erred in rejecting a defendant's claim that he was denied his 

right under Code § 19.2-243 to a "speedy trial." 

 Alexander W. Hudson, a juvenile, was indicted by a grand 

jury in Franklin County for capital murder in the commission of 

robbery, in violation of Code § 18.2-31(4), and for robbery, in 

violation of Code § 18.2-58. Before trial, Hudson filed a 

motion to dismiss the charges on the ground that he was denied a 

speedy trial in violation of Code § 19.2-243. The circuit court 

denied Hudson's motion. 

 A jury acquitted Hudson of the capital murder charge and 

the lesser-included offense of first degree murder, but found 

him guilty of the robbery charge. The circuit court sentenced 

Hudson to 35 years' imprisonment and suspended the sentence 

conditioned on his remaining in the custody of the Department of 

Juvenile Justice until his twenty-first birthday. 

 Hudson appealed from his conviction to the Court of 

Appeals, which affirmed the circuit court's judgment. Hudson v. 
Commonwealth, 39 Va. App. 240, 242, 250, 572 S.E.2d 486, 487, 

491 (2002). The Court of Appeals concluded that Hudson was not 

denied his statutory right to a speedy trial because his 

affirmative agreement to the trial date in the circuit court 

constituted a waiver of his right to be tried within the time 

period established in Code § 19.2-243. Id. at 249-50, 572 

S.E.2d at 490-91. Hudson appeals. 

 The relevant facts are not in dispute. On December 31, 

2000, when Hudson was 14 years old, he was charged in two 

petitions initiated in the Franklin County Juvenile and Domestic 

Relations District Court for the offenses of capital murder and 

robbery. Hudson was arrested and taken into custody on that 

date. 

 On February 1, 2001, the circuit court conducted a 

"docketing conference" with the parties for the purpose of 

setting a trial date in anticipation that Hudson's charges would 

be transferred from the juvenile and domestic relations district 

court to the circuit court and that Hudson would be indicted on 

those charges. Hudson's attorneys agreed to a trial date of 

July 18, 2001, and the circuit court entered this trial date 

into its automated case management system. 

 On February 12, 2001, the juvenile and domestic relations 

district court conducted a preliminary hearing in which it found 

probable cause to believe that Hudson had committed the charged 

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offenses and transferred the case to the circuit court for 

Hudson's trial as an adult. The circuit court entered an order 

permitting the Commonwealth to seek indictments and on March 5, 

2001, a grand jury indicted Hudson on the capital murder and 

robbery charges. Hudson's trial on these indictments began on 

July 18, 2001. 

 In its opinion affirming Hudson's conviction, the Court of 

Appeals held that there is "no difference between a waiver of 

the defendant's right to be tried within the statutory period by 

agreeing to . . . a continuance beyond the time period permitted 

under the statute, and the defendant initially agreeing to . . . 

a trial date beyond the statutory period." Hudson, 39 Va. App. 

at 249, 572 S.E.2d at 490. The Court of Appeals further stated: 

The trial dates were never changed, and at no time did 

Hudson or his attorney ever object to the dates. 

Furthermore, there was neither a demand for a prompt 

trial nor any showing of actual prejudice to Hudson as 

a result of the delay. Consequently, it was proper 

for the trial court and the Commonwealth to conclude 

that the scheduled trial date, agreed to by Hudson, 

would be met. 

Id. at 249, 572 S.E.2d at 491. 

 On appeal to this Court, Hudson argues that the Court of 

Appeals erred in requiring him to demonstrate "actual prejudice" 

because the language of Code § 19.2-243 does not require such a 

showing. Hudson also contends that a criminal defendant does 

not waive his right to a speedy trial under the statute merely 

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because he does not demand that a trial date be set within the 

prescribed time period. Hudson asserts that such requirements 

would render the speedy trial statute meaningless. 

 Hudson further argues that he could not have waived his 

right to a speedy trial during the docketing conference on 

February 1, 2001, because the circuit court did not have 

jurisdiction over his case, which was not certified to the 

circuit court until February 12, 2001. Hudson also contends 

that his agreement to the trial date did not waive the 

provisions of the speedy trial statute because the trial date 

was not memorialized in an order of the circuit court. 

 In response, the Commonwealth argues that Hudson's 

statutory right to a speedy trial was not violated. The 

Commonwealth asserts that when a defendant agrees to, or 

acquiesces in, the entry of an order that effectively continues 

his case, the statutory period is tolled during the time set by 

the court in that order. The Commonwealth contends that Hudson 

affirmatively agreed to the July 18, 2001 trial date, which 

effectively continued the case until that day. 

 In resolving this issue, we first consider the language of 

Code § 19.2-243, which provides in relevant 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 

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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. 

. . . . 

 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, 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. 

 We agree with Hudson that the Court of Appeals erred in 

basing its holding in part on the lack of prejudice to Hudson 

resulting from the July 18, 2001 trial date, as well as on 

Hudson's failure to make an affirmative demand for a speedy 

trial. The issue whether a defendant's statutory right to a 

speedy trial has been violated does not rest, even in part, on 

the existence of prejudice from any delay in his trial date, or 

on his failure to make an affirmative demand for a speedy trial. 

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Instead, the statute, subject to the exceptions stated therein, 

focuses strictly on the length of time that has passed from the 

date of the defendant's preliminary hearing in the district 

court or, if there was no preliminary hearing, from the date of 

indictment or presentment in the circuit court.∗

 The protections afforded to a defendant under Code § 19.2-

243 are not self-operative and are subject to being waived. 

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

(2001); Stephens v. Commonwealth, 225 Va. 224, 230, 301 S.E.2d 

22, 25 (1983); Brooks v. Peyton, 210 Va. 318, 321, 171 S.E.2d 

243, 246 (1969). In addition, the exceptions stated in the 

statute are not meant to be all-inclusive, and other exceptions 

of a similar nature are implied. Stephens, 225 Va. at 230, 301 

S.E.2d at 25. 

 We conclude that the present case is controlled by our 

holding in Commonwealth v. Hutchins, 260 Va. 293, 533 S.E.2d 622 

(2000). There, the defendant was arrested and charged with two 

 ∗

 This statutory focus presents a distinct contrast with the 

balancing test employed by the United States Supreme Court to 

determine whether there has been a violation of a defendant's 

Sixth Amendment right to a speedy trial. In Barker v. Wingo, 

407 U.S. 514, 530 (1972), the Supreme Court stated four factors 

that must be considered and balanced in determining whether a 

speedy trial violation has occurred under the Sixth Amendment. 

Those factors are length of the delay, the reason for the delay, 

the defendant's assertion of his right, and prejudice to the 

defendant. Id. We do not consider these factors in the present 

case, however, because Hudson has not assigned error in this 

Court on the basis of a Sixth Amendment right. 

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counts of malicious wounding, in violation of Code § 18.2-51, 

and was held continuously in custody until his trial. On 

October 23, 1996, a preliminary hearing was held on these 

charges, which were certified to a grand jury. Id. at 295, 533 

S.E.2d at 623. Following his indictment in the circuit court, 

the defendant agreed to a trial date of June 6, 1997. This was 

the original date set for trial and neither the Commonwealth nor 

the defendant requested a continuance to that date. Id.

 We concluded that the defendant's agreement, within the 

five-month period fixed by Code § 19.2-243, to the order setting 

the trial date "constituted a continuance of the trial date 

within the intendment of Code § 19.2-243(4)." Id. at 297-98, 

533 S.E.2d at 625. Therefore, we held that the defendant's 

statutory right to a speedy trial was not violated because he 

affirmatively agreed to the trial date that was set beyond the 

time period prescribed by the statute. Id. at 298, 533 S.E.2d 

at 625. 

 In the present case, Hudson also agreed to an original 

trial date beyond the five-month period fixed by Code § 19.2-

243. Because Hudson's agreement to the trial date was confirmed 

by the circuit court before he was indicted, we do not charge 

Hudson with the time pending before his indictment, but remove 

from the five-month period only the time between his indictment 

in the circuit court on March 5, 2001, and his trial on July 18, 

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2001. When that time is subtracted from the total time Hudson 

was held continuously in custody from the date of his 

preliminary hearing, the record shows that Hudson was tried on 

the capital murder and robbery charges well within the fivemonth limitation period of Code§ 19.2-243. 

 We find no merit in Hudson's argument that his agreement to 

the original trial date is not subject to the exception provided 

in Code § 19.2-243(4), because a preliminary hearing had not 

been held when the trial date was set, and an order was not 

entered memorializing the trial date. The circuit court had 

authority to set trial dates for all cases to be tried in that 

court. The court's action setting Hudson's trial date 

necessarily was conditioned on the charges against Hudson being 

certified to the circuit court after a preliminary hearing. 

 In addition, we observe that the language of Code § 19.2-

243 did not require that the circuit court enter an order 

specifying the trial date. Therefore, the court was free to 

memorialize the trial date by its chosen method of entering the 

date into the court's automated case management system. 

 For the reasons stated in this opinion, we will affirm the 

Court of Appeals' judgment confirming Hudson's conviction. 

Affirmed.

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