Damon D. Davis v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
DAMON D. DAVIS MEMORANDUM OPINION* BY
v. 	Record No. 2300-97-2 	JUDGE DONALD W. LEMONS
FEBRUARY 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
Mary Katherine Martin, Senior Assistant
Public Defender (John H. Cobb, Jr., Public
Defender, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Damon D. Davis appeals his conviction for attempted robbery
alleging that he was not prosecuted in a timely manner pursuant
to the speedy trial provisions of Code § 19.2-243. 	We disagree
and affirm his conviction.
On October 10, 1995, taxi driver John E. Jones was shot
during an attempted robbery in his cab. 	On July 8, 1996, a
preliminary hearing was held in the General District Court of the
City of Petersburg, and the court found probable cause that
Damon D. Davis, appellant, committed felonies related to the
incident. 	On July 18, 1996, the grand jury returned indictments
charging Davis with attempted robbery, use of a firearm while
committing robbery, malicious wounding, and conspiracy to commit
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

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robbery. 	A trial was set in the circuit court for September 10,
1996.
Both Davis and the Commonwealth agree that the nine-month
provision of Code § 19.2-243 is applicable to this case, by which
the Commonwealth is required to try the accused within 273 days
of a finding of probable cause. 	Davis was tried for these
offenses on September 17, 1997, 436 days after the probable cause
hearing. 	Among other things, the provisions of the speedy trial
act do not apply to periods where the defendant has absconded or
to periods where the case is continued on motion of the
defendant, upon joint motion, or upon motion of the Commonwealth
without objection from the defendant. 	See Code § 19.2-243.
The first trial date was set for September 10, 1996,
sixty-four days after the date of the probable cause hearing.
This period constitutes the delay inherent in the orderly process
of fixing a trial date and will be counted against the
Commonwealth. 	From September 10 to December 19, 1996, Davis
absconded from justice, was arrested, and upon apprehension, on
his motion, new counsel was appointed to represent him. 	These
eighty-nine days are not counted against the Commonwealth. 	From
December 20, 1996 to September 17, 1997, multiple joint motions
to continue were made, or motions were made by the Commonwealth,
in which Davis either joined or the record does not show an
objection. 	These 283 days are not counted against the
Commonwealth.

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Upon review of the record we hold that the only delay
properly attributable to the Commonwealth is sixty-four days.
The trial court correctly concluded that Davis was tried within
the nine-month provision of Code § 19.2-243. 	Because no
violation of his right to a speedy trial occurred, we affirm his
conviction.
Affirmed.